Ukrainian citizenship

I have been asked to provide my professional opinion on Ukrainian law as it relates to the grant and loss of citizenship.

According to the Article 2 The Convention on Certain Questions Relating to the Conflict of Nationality Laws adopted in the Hague on April 12, 1930, any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.

The Law of Ukraine "On Citizenship of Ukraine" No. 1636-XII came into effect on October 18, 1991 and was valid until March 1, 2001. On March 1, 2001 the current Law of Ukraine "On Citizenship of Ukraine" No 2235-III came into effect. The current Law No 2235-III differs from the previous one in the fact that the current law, unlike the previous law, allows citizens of Ukraine, in the event of acquiring citizenship of other states, save the citizenship of Ukraine. The previous Law No 1636-XII did not allow this. The new law remains neutral on the question if the person desires a multiple citizenship. If art. 20 of the Law No. 1636-XII (1991) was aimed to avoid multiple citizenship, the current Law No 2235-III (2001) reflects that in case if the person obtained the citizenship of other state, anyway such person will be recognized as the citizen of Ukraine. Article 20 of the Law 1636-XII states: "Citizenship of Ukraine is lost if a citizen of Ukraine has voluntarily acquired a citizenship of other state". Consequently, if in the period of time, starting from November 13, 1991 and ending on February 28, 2001, a Ukrainian citizen acquired another citizenship, and then he automatically lost the citizenship of Ukraine.

This conclusion clearly follows from the legislation of that time and international legislation, as in accordance with Article 9 of the Constitution of Ukraine, international treaties in force, consented by the Verkhovna Rada of Ukraine (parliament) as binding, shall be an integral part of the national legislation of Ukraine.

In accordance with Articles 26, 27 of the Vienna Convention on the Law of Treaties Concluded at Vienna on May 23, 1969, every treaty in force is binding upon the parties to it and must be performed by them in good faith. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

European Convention on Nationality adopted in Strasbourg, on November 6, 1997 (hereinafter referred to as the 1997 Convention), which, including Ukraine, as a party, in Article 3 states that each State shall determine under its own law who are its nationals. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.

The 1997 Convention and the Law of Ukraine "On Citizenship of Ukraine" No. 1636-XII, makes a distinction between the loss of citizenship on the initiative of the State party, and the loss of citizenship on the initiative of a person. In accordance with Art. 7 of the 1997 Convention, a State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: in the case of voluntary acquisition of another nationality (paragraph "a"). This rule is contained in Art. 20 of the Law of Ukraine "On Citizenship" No. 1636-XII. Article 8 of the 1997 Convention states that each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless. As we can see, these are two separate procedures: in one case, the citizen himself who acts as an active participant, wishes to renounce citizenship and submits, in substantiation of his application, relevant evidence and arguments. In the second case, the initiative comes entirely from the state the active participation of the citizen is terminated by the fact of voluntary acquisition of another citizenship. From this moment on, the state acts the main role, and there are no active actions required from the citizen. Article 15 of the 1997 Convention provides that a state determines independently whether its nationals who acquire or possess the nationality of another State retain its nationality or lose it.

Article 26 of the 1997 Convention establishes that, along with the provisions of this convention, the 1963 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality and its Protocols, as well as other mandatory international documents, also apply.

Article 1 the 1963 Convention, of which Ukraine is also a party, directly establishes that nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalization, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorized to retain their former nationality. In the explanatory note to the 1997 European Convention, it is stated on this subject that Article I of the 1963 Convention is based on the idea that multiple citizenship is undesirable and should be avoided as much as possible. Article 1 of this Convention provides that citizens who voluntarily acquire another nationality lose their former nationality.

The Convention for the Protection of Human Rights and Fundamental Freedoms, which is concluded in Rome on November 4, 1950 (hereinafter referred to as the ECHR), secure to everyone within their jurisdiction the rights and freedoms of its member states (Ukraine - including). This Convention explicitly recognizes that the legitimate interests of both states and individuals should be taken into account.

The European Court of Human Rights recognized that the right to citizenship, under certain circumstances, is covered by the notion of “private life” in the meaning of Article 8 ECHR (Case Genovese v. Malta).

The European Court of Human Rights acknowledged that arbitrary changes in the citizenship of a person may raise issues under Article 8 due to interference with private life of the individual (Cases Karassev v. Finland, Ramadan v. Malta). The court also confirmed that the expulsion of settled migrants is an interference with the exercise of their right to respect for private life.

The concept of citizenship was reviewed by the International Court of Justice in the framework of the Nottebohm case (Liechtenstein v. Guatemala). The Court defined nationality as “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” (Nottebohm case (Liechtenstein v. Guatemala), ICJ Reports 1955, p. 23).

Nationality is defined in Article 2 of the 1997 Convention as “the legal bond between a person and a State and does not indicate the person's ethnic origin”.

The right to have a nationality for everyone was first proclaimed in Article 15 of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948.

Article 7 of the 1997 Convention includes an exhaustive list of cases where nationality can be lost automatically by law (ex lege) or at the initiative of a state party. This provision is formulated in the form of denial in order to emphasize that the automatic loss of nationality or loss of nationality at the initiative of the State party can occur only when one of the an exhaustive list of cases provided for in this article occurs. In particular, subparagraph “a” provides for the loss of citizenship when another nationality is voluntarily acquired. The word "voluntary" indicates that nationality was acquired not automatically (ex lege), but as a result of the free expression of the will of the person. A similar rule is fixed in Art. 1 part 1 of the 1963 Convention, in which it is categorically declared that nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalization, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorized to retain their former nationality.

Quoted provisions are based on Article 15 of the Universal Declaration of Human Rights, and serve as a general guarantee of particular importance to prevent arbitrary deprivation or arbitrary retention of nationality, and indicates that cases of loss of nationality must be generally predictable and based on law.

In accordance with Art. 7 p. 2 of the Convention on the Reduction of Statelessness, adopted on August 30, 1961, a national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.

In Art. 15 of the 1997 Convention states that The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: its nationals who acquire or possess the nationality of another State retain its nationality or lose it; the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality. The explanatory report to the European Convention on Nationality emphasized that the possibility of maintaining the previous nationality would be limited by opposing international obligations, in particular, Art. 1 of the 1963 Convention, which explicitly provides for the loss of former nationality in the case of acquisition of another nationality by their free will.

According to the paragraph 1 Article 2 The Law of Ukraine "On Citizenship of Ukraine" No. 1636-XII came into effect on October 18, 1991 and was valid until March 1, 2001, Ukrainian citizens were all people who are at the moment of entry into force of The Law of Ukraine "On Citizenship of Ukraine" resided in Ukraine, and were not citizens of other states and were not object to the acquisition of Ukrainian citizenship. From 1994 all citizens of Ukraine simply could apply inner passport of citizen of Ukraine or passport of Ukrainian citizenship to go abroad in regular way. Inner passport is required in Ukraine. It was not needed to participate any citizenship ceremony, was not required to give an oath, was not required to hold any language or cultural or law or any another test to apply passport of Ukrainian citizenship. Also it was not required to make any another special action to apply Ukrainian citizenship in such case.

The paragraph 1 Article 2 of Law of Ukraine "On Citizenship of Ukraine" No. 1636-XII is the sole law to obtain (and terminate) Ukrainian citizenship after USSR was collapsed. Applicable law was Law No. 1636-XII in edition came into effect on April 15, 2000 by the Amendment Law No 1614-III. Article 20 of Law No. 1636-XII states: “Citizenship of Ukraine is lost if a citizen of Ukraine has voluntarily acquired a citizenship of other state".

In comparison with Article 19 of Law No. 1636-XII (1991) titled ‘Petition for Exit from Ukrainian citizenship’, it demands a written statement from the petitioner who wishes to withdraw their Ukrainian citizenship. However, the deprivation of citizenship stated in Article 20 of Law No. 1636-XII which is the applicable law in this circumstance, is a matter of fact, which occurs regardless of any motion, desire or consent of person, nor without expressing his will in any form, on the basis of the mere fact of voluntary acquisition of citizenship of a foreign country.

In my professional opinion the onus and duty of preparing relevant documentation in this case is imposed on the government. Any action from a former Ukrainian citizen is not required.