B. The revocation of citizenship in the present case: on the domestic legal
framework and its application by the competent authorities
12. We have no hesitation whatsoever in concluding, like the majority,
that in the present case there has been a violation of Article 8.
The question is: how should the Court reach such a conclusion?
13. The majority argue that there are a number
of shortcomings in the
applicable legal framework, namely the Russian Citizenship Act and the
Regulation on the Examination of Issues Related to Citizenship of the
Russian Federation.
They argue, in particular, that the relevant provisions are not sufficiently
clear, as these provisions do not specify the nature of the information that, if
not adequately submitted in the application for citizenship, can be the basis
for revoking the citizenship thus granted (see paragraph 67 of the
judgment).
USMANOV v. RUSSIA JUDGMENT – SEPARATE OPINION
26
They also argue that under the applicable provisions the authorities were
not required to give a reasoned decision specifying all the factual grounds
on which it had been taken (see paragraph 68 of the judgment). On this
latter point, they refer to the Government’s statement that, “after it had been
established that the information submitted by the applicant was incomplete,
the authorities had no other choice but to annul
the decision granting him
Russian citizenship”, and they add that “it has not been shown that the
national courts had to consider” a number of relevant factors (see
paragraph 69 of the judgment).
14. To our regret, we are unable to follow our colleagues in their blunt
criticism of the legal framework, as though the
applicable rules did not
permit the competent authorities to apply them in a Convention-compliant
way.
The law is the law as interpreted by the courts. In this case, there was
clear case-law of the Constitutional Court on how the Russian Citizenship
Act was to be applied. On 21 April 2011 and 25 October 2016 –that is, well
before the decision was taken to revoke the applicant’s citizenship – the
Constitutional Court had interpreted section 22 of the Act in such a way that
it could be applied only “in cases where individuals did not satisfy the
conditions
required
for
obtaining
Russian
citizenship”
(see
paragraphs 37-38 of the judgment). This means that section 22 does not
offer a basis for a “blind”
revocation of citizenship, irrespective of the
concrete importance of the information that has been concealed from the
authorities.
Moreover, in a series of decisions, including
on an appeal by the
applicant himself, the Constitutional Court stated that “the competent
authorities should take into account surrounding circumstances, such as the
time elapsed since the decision granting Russian citizenship for their
decision to comply with the requirements of necessary and proportionate
interference with human rights” (decisions of 15 January, 12 and
28 February 2019, referred to in paragraph 39 of the judgment). This is a
clear application of some of the principles set out in this Court’s case-law,
and allows for a balancing of interests in each concrete case.
Admittedly,
the Constitutional Court made these statements after the decision to revoke
the applicant’s citizenship had been taken. However, since the statement
reflects principles taken from this Court’s pre-existing case-law, it should be
assumed that there had been nothing to prevent the competent authorities
from previously taking these principles into consideration in the applicant’s
case, and thus to apply the Russian Citizen Act in a Convention-compliant
way.
It is true that section 54 of the Regulation on the Examination of Issues
Related to Citizenship of the Russian Federation, as in force at the material
time, did not explicitly provide for an obligation to state the reasons for the
annulment of a decision on Russian citizenship (see paragraph 34 of the
USMANOV v. RUSSIA JUDGMENT – SEPARATE OPINION
27
judgment). It was only by a presidential decree of 17 June 2020 that such an
obligation was introduced in section 54. There is now an explicit obligation
to describe the circumstances which led to the
adoption of the annulment
decision (see paragraph 35 of the judgment). It seems to us, however, that
there was nothing to prevent the competent authorities in an individual case
from giving such reasons already, on the basis of the Russian Citizen Act as
interpreted by the Constitutional Court.
15. The violation of the applicant’s rights is not therefore to be situated
at the level of the legislature. The legal framework offered the competent
authorities, both within the administration and the judiciary, the opportunity
to refrain from revoking the applicant’s citizenship if there were no relevant
and sufficient reasons for doing so. We cannot agree with the Government’s
argument that the authorities had no other choice but to revoke the
applicant’s citizenship.
It can be argued that the competent authorities applied the provisions of
domestic law in a way that was incompatible with the Constitutional Court’s
interpretation of the Russian Citizens Act. The conclusion then would be
that the impugned measure lacked a legal basis in domestic law, and for that
reason (which is different from the one advanced by the majority) was not
“in accordance with the law”.
Alternatively, it is also possible to leave open the
question whether the
measure was in accordance with domestic law.
In any event, the domestic authorities adopted an “excessively
formalistic approach” (see paragraph 70 of the judgment), paying no
attention to any “surrounding circumstances” and thereby omitting any
balancing of rights and interests. In these circumstances, they did not justify
the proportionality of the impugned measure in the light of the aim pursued
(the protection
of national security, according to the Government; see
paragraph 48 of the judgment). It has therefore not been demonstrated that
the measure was “necessary in a democratic society”.
