2. Results
Article 15 of the Universal Declaration of Human Rights states that citizenship is one of the fundamental human rights, the realization of which gives a person with the status of a citizen the opportunity to have a full range of rights and freedoms, as well as to properly fulfill their duties enshrined in the relevant legislative acts of the state. In view of this, in all spheres of public life, a person is recognized as a subject of relevant rights, freedoms and obligations, which in their entirety determine his or her social position in the production and distribution of public goods, in the management of state and public affairs and in the system of social relations in general. At the same time, a person has a corresponding legal status, and citizenship is an important prerequisite for establishing this status.
Therefore, the institute of citizenship is crucial in solving the problem of correlation between the autonomy of a person as a subject of natural human rights and collective interests. Given the above, it should be noted that the most common definition of citizenship in foreign legal science is that of a special legal relationship between a person and the state, which gives rise to mutual rights and obligations for these subjects of legal relations.
In our opinion, this approach allows us to more fully define the essence and content of the institution of citizenship and its constitutional (most characteristic) features.
In legal literature, citizenship is defined as the political and legal affiliation of a person to a particular state, and a citizen of Ukraine is defined as a person who has acquired Ukrainian citizenship in accordance with the procedure provided for by the laws of Ukraine and international treaties of Ukraine.
The above definition implies that citizenship as a special relationship between the state and a person is based on the legal recognition by the state of that person as its citizen and the rights and obligations acquired in this regard.
Time has shown that the stability and security of society largely depend on how well the key issues of interaction between the individual and the state are regulated in the state.
The Constitution of Ukraine and the Law of Ukraine “On Citizenship of Ukraine” enshrine the basic principles of the institution of Ukrainian citizenship, which are:
1) the right of every person to citizenship;
2) the principle of preventing the occurrence of statelessness;
3) the principle of recognizing the right of a citizen to change and renounce citizenship;
4) the principle of inalienability of citizenship;
5) the principle of equality of citizens before the law regardless of the grounds, procedure and time of acquisition of citizenship;
6) the principle of single citizenship;
7) the principle of non-recognition of foreign citizenship of Ukrainian citizens;
8) the principle of state protection of Ukrainian citizens abroad;
9) the principle of inadmissibility of deportation and extradition of the citizens of Ukraine;
10) the principle of preservation of Ukrainian citizenship in case of marriage and divorce;
11) the principle of preservation of Ukrainian citizenship by persons residing outside the state;
12) the principle of the impossibility of automatic acquisition of Ukrainian citizenship by a foreigner or stateless person as a result of marriage with a citizen of Ukraine, or acquisition of Ukrainian citizenship by his/her spouse, and automatic termination of Ukrainian citizenship by one of the spouses as a result of termination of marriage or termination of Ukrainian citizenship by the other spouse.
For reference.
Article 4 of the Constitution of Ukraine enshrines the principle of single citizenship, the grounds for acquisition and termination of which are determined exclusively by law. Article 25 of the Basic Law of Ukraine prohibits deprivation of citizenship and the right to change citizenship. The same provision stipulates that a citizen of Ukraine cannot be expelled from Ukraine or extradited to another state, and guarantees care and protection of Ukrainian citizens outside Ukraine | [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
The principles of citizenship are extremely important for the legislative consolidation of the institution of citizenship and the practice of further application of the relevant legislative provisions. Unfortunately, the study has shown that at the current stage of development of our country, the practical implementation of these principles is not ensured at the proper level and requires significant improvement, which is likely due to the overall negative socio-political and economic situation in Ukraine.
Among the features of citizenship that characterize the existence of a bilateral relationship between a person and the state are:
1) the legal nature of this relationship;
2) its unlimitedness in space and time;
3) the maximum nature of mutual rights and obligations.
The legal nature of citizenship means that the participants in these legal relations (a person and the state) are bound by legal rights and obligations that are mutual. Thus, the institution of citizenship implies the existence of dualism in the correct sense of its content, because in their relationship the state and the citizen have both mutual rights and mutual obligations.
In our opinion, it is extremely important that citizenship is a specific manifestation of the sovereignty of the state, since it is the state, represented by the president, that is empowered to independently decide on granting citizenship to a person and to decide on its termination.
Therefore, the sovereignty of the state also extends to the citizen, who, as a result of such relations, is able to enjoy all rights and freedoms and at the same time is protected by the state both inside and outside the country.
Thus, citizenship grants a person all constitutional rights and freedoms and ensures his or her right to participate in the management of state affairs, since it is through the institute of citizenship that the persons who hold power in the state are determined. In view of this, a citizen, in turn, may demand proper protection of his or her rights and legitimate interests from unlawful encroachments by the state or state authorities (their officials).
A characteristic feature of the relationship between the state and its citizens is their relative permanence (stability) in space and time. Spatially, such stability is primarily manifested in the fact that the status of a citizen (single, indivisible and equal for all) is retained by a person not only during his/her stay in the territory of the state of which he/she is a citizen, but also in case of his/her travel abroad.
The permanence of citizenship over time is manifested in its continuity, i.e., in the fact that a person has the status of a citizen from the moment of acquisition of citizenship until the moment of its termination. At the same time, there is a legally defined potential possibility of termination of a person's relationship with the state of which he or she is a citizen. In other words, a person has the right to decide to renounce citizenship on the grounds and in the manner prescribed by national law, and the state has the right to terminate citizenship.
The maximal nature of mutual rights and obligations means that a citizen (national) has a wider range of rights and freedoms than a foreigner and stateless person (apatrid).
For reference.
According to Article 26 of the Constitution of Ukraine, foreigners and stateless persons legally staying in Ukraine have the same rights and freedoms and bear the same responsibilities as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine.
According to Article 36 of the Basic Law of Ukraine, citizens of Ukraine have the right to freedom of association in political parties and public organizations for the purpose of exercising and protecting their rights and freedoms and satisfying their political, economic, social, cultural and other interests, except for restrictions established by law in the interests of national security and public order, public health or protection of the rights and freedoms of others.
Article 38 of the Constitution of Ukraine also stipulates that only citizens of Ukraine have the right to participate in the management of public affairs, in national and local referendums, and to freely elect and be elected to state and local government bodies.
By granting broader rights to a citizen, the state may impose additional restrictions on him or her and even provide legal grounds for bringing to legal liability for violation of the restrictions it has established. Thus, Article 111 of the Criminal Code of Ukraine (hereinafter - the CC) provides for the liability of a citizen of Ukraine for high treason; Article 158-1 - for the illegal use of an election ballot, a ballot paper for voting at a referendum, voting by a voter or a referendum participant more than once; Article 160 - for bribery of a voter or a referendum participant.
In its turn, the state undertakes to comply with the rules established by it and to act within the limits defined by law. Thus, according to part 2 of Article 19 of the Constitution of Ukraine, state and local government bodies and their officials are obliged to act only on the basis, within the limits of their powers and in the manner provided for by the Constitution and laws of Ukraine.
Appropriate legal measures are established for violation of this constitutional provision. Thus, Ukrainian legislation provides for increased liability of a member of an election or referendum commission for the illegal use of an election ballot or a referendum ballot (Article 158-1(2) of the Criminal Code of Ukraine), as well as for bribery of a voter or a referendum participant (Article 160(4) of the Criminal Code of Ukraine).
Citizenship, like any other state legal phenomenon, combines the relevant content and form. The legal nature of this phenomenon is revealed by the state's legal regulation of the institute of citizenship. A characteristic feature of such legal regulation is the existence of a specific mechanism, the structural elements of which include the rules of law objectified by the State in the relevant legal acts.
It is extremely important to note that legal regulation of the institute of citizenship by means of normative legal acts regulates social relations in the field of acquisition and termination of citizenship, as well as in resolving other issues related to citizenship. These normative legal acts, properly regulated, form a certain system; they do not exist in isolation, but are in close interaction with other normative legal acts that regulate related legal relations.
The system of constitutional and legal norms regulating the issues of citizenship forms the institution of citizenship, the sources of which are:
1) The Constitution of Ukraine;
2) current international treaties of Ukraine on citizenship, ratified by the Verkhovna Rada of Ukraine;
3) laws of Ukraine;
4) bylaws regulating legal relations in this area.
The provisions of these legal acts set out the principles of citizenship and regulate the procedure for acquiring and terminating citizenship, as well as define the powers of state authorities and other organizations and institutions involved in citizenship issues.
The leading place in the legislation regulating the issues of Ukrainian citizenship, as well as all other institutions of national legislation, belongs to the Constitution of Ukraine. The constitutional provisions that directly enshrine the basic principles of Ukrainian citizenship are concentrated in Articles 4, 24, 25, 106 of the Basic Law of Ukraine.
Article 4 of the Constitution of Ukraine states that there is a single citizenship in Ukraine. This constitutional principle is specified in paragraph 1 of Article 2 of the Law of Ukraine “On Citizenship of Ukraine”, which provides that the implementation of the principle of single citizenship excludes the possibility of citizenship of administrative-territorial units of Ukraine.
In general, the word “sole” means:
1) one, without others. Only one;
2) constituting an internal unity; integral, indivisible
.
It should be noted that there are several approaches to the interpretation of the content of the principle of single citizenship in academic circles. Supporters of one of them believe that this principle excludes the existence of multiple citizenship in Ukraine. This means that citizens of Ukraine under no circumstances can have citizenship of another state
.
For reference.
Multiple citizenship, also called dual citizenship (bipatrism), is a legal status of a person in which he or she simultaneously holds citizenship of more than one state. Thus, a bipatrid is someone who holds two citizenships at the same time. However, in cases where a person holds more than two citizenships, the use of the term “bipatrid” is not entirely correct. Such persons are called polypatriots, and the phenomenon itself is called polypatrism . Supporters of the other approach distinguish two aspects of the constitutional principle of single citizenship in Ukraine:
1) internal
2) external
The first (internal) is due to the unitary form of the territorial structure of the State
and makes it impossible for the administrative-territorial units of Ukraine to have citizenship.
Instead, the second (external) aspect is the non-recognition of the legal consequences of multiple citizenship. According to its supporters, Ukrainian legislation does not prohibit multiple citizenship. It is ignored or not recognized
.
For reference.
In the legal literature and in practice, multiple citizenship (polypatriotism) is characterized mainly as a negative phenomenon that contains a number of contradictions and is a source of possible serious international conflicts. At the same time, as Y. Boyars notes, the enshrining in the legislation of many states (including Ukraine) of the so-called “principle of non-recognition of multiple citizenship” means only non-recognition of the legal consequences of polypatriotism | [6] | Boyars Y. R. Citizenship issues in international law. - Moscow: International Relations, 1986. - 157 p. |
[6]
When deciding on the interpretation of the content of the principle of single citizenship, in our opinion, the provisions of a number of legislative acts of Ukraine should be taken into account. For example, paragraph 6 of part two of Article 19 (Right to Civil Service) of the Law of Ukraine “On Civil Service” stipulates that a person who has the citizenship of another state cannot enter the civil service. In addition, one of the grounds for termination of civil service due to the loss of the right to civil service or its restriction (paragraph 2 of part one of Article 84) is the establishment of the fact that a civil servant has the citizenship of a foreign state or acquires the citizenship of a foreign state during civil service
.
According to paragraph 6 of part 1 of Article 51 (General conditions for dismissal of a prosecutor from office, termination of his/her powers in office) of the Law of Ukraine “On the Prosecutor's Office”, a prosecutor is dismissed from office in case of termination of Ukrainian citizenship or acquisition of citizenship of another state
.
Part one of Article 121 of the Law of Ukraine “On the Judicial System and Status of Judges” provides that the powers of a judge are terminated in case of termination of his or her citizenship in accordance with the Law of Ukraine “On Citizenship of Ukraine” or acquisition of citizenship of another state - from the date of termination of citizenship of Ukraine or acquisition of citizenship of another state.
In accordance with part two of this Article, the acquisition of citizenship of another state for the purposes of this Article shall be recognized as:
1) acquisition by a judge of the status of a citizen of another state as a result of actions taken by or on behalf of such judge on his/her behalf or with his/her consent to create the relevant legal consequences;
2) if the judge has obtained the status of a citizen of another state by virtue of law or otherwise without his/her consent, the judge's failure to take actions to deprive him/her of the status of a citizen of another state within ten days from the date when the judge became aware of obtaining such status
.
In view of the above, the legislator does not exclude the very possibility of residence in Ukraine of citizens who have citizenship (nationality) of another state, but restricts their exercise of the right to participate in the management of state affairs.
It seems that the issue of the correct interpretation of the content of the constitutional principle of single citizenship should be resolved by the Constitutional Court of Ukraine (hereinafter - the CCU), which has been considering a constitutional petition of 99 members of parliament of Ukraine on the official interpretation of Article 4 of the Constitution of Ukraine in terms of the provision that there is a single citizenship in Ukraine since December 20, 2021.
However, one should take into account how quickly the CCU will consider this constitutional petition.
For reference.
The CCU is considering:
1) constitutional petitions of the Supreme Court of Ukraine.
a) on compliance with the Constitution of Ukraine (constitutionality) of the provisions of paragraph 6 of part one, paragraphs 2, 13 of part two, part three of Article 3 of the Law of Ukraine “On Purification of Government” (dated 20.11.2014);
b) on the compliance with the provisions of part three of Article 22, part one of Article 38, Article 58, part two of Article 61, part one of Article 62, part one of Article 64 of the Constitution of Ukraine of part three of Article 1, paragraphs 7, 8, 9 of part one, paragraph 4 of part two of Article 3, paragraph 2 of the section “Final and Transitional Provisions” of the Law of Ukraine “On the Purification of Government” (as of 23.03.2015);
c) on the compliance (constitutionality) of part three of Article 4 of the Law of Ukraine “On the Purification of Government” with the provisions of Article 38, part two of Article 61, part one of Article 62 of the Constitution of Ukraine (as of December 28, 2015).
2) constitutional petition of 47 MPs of Ukraine regarding the compliance with the Constitution of Ukraine (constitutionality) of the provisions of parts three and six of Article 1, parts one, two, three, four, eight of Article 3, paragraph 2 of part five of Article 5, paragraph 2 of the Final and Transitional Provisions of the Law of Ukraine “On the Purification of Government” (dated January 20, 2015).
The CCU ruling consolidated the cases into one constitutional proceeding. The case is being considered at open sessions of the Court on April 16, 2015, October 22, 2015, October 23, 2015, March 22, 2016, and June 23, 2020” . We would like to remind you that the Law of Ukraine “On Lustration of Power” was adopted by the Verkhovna Rada of Ukraine on September 16, 2014, signed by the President of Ukraine on October 09, 2014, and entered into force on October 16, 2014.
This Law prohibits certain individuals from holding certain positions (being in service) (except for elected positions) in state authorities and local self-government bodies for ten years from the date of its entry into force.
It should be noted that on 10/16/2024, the above-mentioned ban expired, and the CCU has not yet made a decision in the case on the compliance of the provisions of this Law with the Constitution of Ukraine.
The need for an official interpretation is also due to the fact that from time to time the Verkhovna Rada of Ukraine considers draft laws whose decision depends on how the provision of Article 4 of the Constitution of Ukraine on the existence of a single citizenship in the state is interpreted.
Thus, during his tenure as President of Ukraine, V. Zelenskyy submitted several bills to the Verkhovna Rada of Ukraine that proposed to improve the legislative regulation of the issue of Ukrainian citizenship. These legislative initiatives include:
1) the draft Law “On Amendments to the Law of Ukraine ”On Citizenship“ regarding the grounds and procedure for acquiring and terminating Ukrainian citizenship” (Reg. No. 6368 of 02.12.2021);
2) Draft Law “On Amendments to Certain Laws of Ukraine on Ensuring the Realization of the Right to Acquire and Retain Ukrainian Citizenship” (Reg. No. 11469 of 07.08.2024).
The adoption of each of these draft laws will result in the introduction of multiple citizenship in Ukraine.
Draft Law No. 6368 was developed in connection with the decision of the National Security and Defense Council of Ukraine of February 26, 2021 “On Urgent Measures to Counter Threats to National Security in the Field of Citizenship”, enacted by the Decree of the President of Ukraine of March 4, 2021 No. 85 (paragraph 2 of the explanatory note). Its purpose, as stated in the explanatory note, is “...to update the provisions of the legislation in the field of citizenship, in particular the grounds and procedure for acquiring and terminating Ukrainian citizenship”
.
The draft, among other things, proposes the following novels:
1) to expand the grounds for acquiring Ukrainian citizenship by birth, by territorial origin;
2) to revise the grounds for the loss of Ukrainian citizenship. The draft law proposes to exclude such grounds for the loss of Ukrainian citizenship as the voluntary acquisition of citizenship of another state by an adult citizen of Ukraine;
3) to exclude the provision on the obligation of a person who has acquired Ukrainian citizenship and submitted a declaration of renunciation of foreign citizenship to return the passport of a foreign state to the authorized bodies of that state;
4) to define the categories of persons who, instead of submitting an obligation to renounce foreign citizenship, will have the right to submit a declaration of renunciation of foreign citizenship and recognition as a citizen of Ukraine only;
5) to clarify the grounds for revoking a decision to formalize the acquisition of Ukrainian citizenship;
6) provide for the inclusion of all data related to citizenship in the Unified State Demographic Register;
7) revise the powers of public authorities involved in resolving issues of Ukrainian citizenship, etc.
The analysis of the novelties proposed in the draft law gives grounds for the following conclusions. The institute of Ukrainian citizenship is a constitutional and legal institute by its legal nature. In view of this, the issue of regulating multiple citizenship should be resolved primarily in the constitutional and legal plane by amending the Basic Law of Ukraine.
In addition, it should be borne in mind that the Constitution of Ukraine grants Ukrainian citizens a number of civil rights that are directly related to the possession of Ukrainian citizenship. These include:
1) the right to freedom of association in political parties" (Article 36);
2) the right to participate in the management of public affairs, in national and local referendums, to freely elect and be elected to state and local government bodies (Article 38);
3) the right to assemble peacefully, without arms, and to hold meetings, rallies, marches and demonstrations" (Article 39), etc.
In its conclusion to the draft law, the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine (hereinafter - MSED) rightly notes that the idea of liberalizing the institution of multiple citizenship in Ukraine will lead to an expansion of the circle of persons who will be endowed with civil rights, including voting rights. At the same time, it should be borne in mind that such persons may permanently reside and be integrated into the life of a foreign state, but will enjoy political and civil rights in Ukraine.
At the same time, we should agree with the experts of the State Legal Expert Center, who note that the possibility of restricting the constitutional, in particular, the electoral rights of such citizens is not consistent with the above-mentioned provisions of the Constitution of Ukraine and European standards and approaches in this area of legal relations
.
Thus, the implementation of the novelties envisaged by Draft Law No. 6368 requires a rethinking of approaches to determining the scope of political rights of Ukrainian citizens who also have the citizenship of a foreign country and will require appropriate amendments to the Constitution of Ukraine.
It is also noteworthy that the Committee on Human Rights, De-occupation and Reintegration of the Temporarily Occupied Territories of Ukraine, National Minorities and International Relations of the Verkhovna Rada of Ukraine, which was designated as the main committee for the preparation and preliminary consideration of this draft law, in its opinion of January 21, 2022, decided to recommend that the Parliament adopt it as a basis after the first reading. However, the draft Law “On Amendments to the Law of Ukraine ‘On Citizenship of Ukraine’ Regarding the Grounds and Procedure for Acquiring and Terminating Citizenship of Ukraine” (Reg. No. 6368 of 02.12.2021), submitted by the President of Ukraine to the Verkhovna Rada of Ukraine and identified by the Head of State as urgent, has not yet been considered even in the first reading. In view of this, we can conclude that the draft law has lost its relevance and lacks genuine interest on the part of the President of Ukraine and members of the Parliament of Ukraine.
The purpose of the draft law No. 11469 is “...to update the legal regulation of Ukrainian citizenship in view of the need to ensure national security and national interests of Ukraine, to preserve the unity of the Ukrainian community, to reduce the negative consequences of the demographic crisis in Ukraine as a result of the armed aggression of the Russian Federation against Ukraine.”
.
The draft law also aims to simplify the procedure for acquiring Ukrainian citizenship and improve the regulation of the legal status of foreigners and stateless persons who, in accordance with the procedure established by the legislation of Ukraine, are performing/have performed military service under contract in the Armed Forces of Ukraine, the State Special Transport Service, the National Guard of Ukraine or are one of the spouses of such a person or a child of such a person.
The draft law provides for:
1) to enshrine at the legislative level the permissible cases of multiple citizenship (nationality);
2) defining the peculiarities of acquiring Ukrainian citizenship and restoration of Ukrainian citizenship for certain categories of foreigners, in particular, under a simplified procedure;
3) clarifying the conditions for acquiring Ukrainian citizenship by birth, by territorial origin, as well as the conditions for admission to Ukrainian citizenship;
4) revision of the grounds for the loss of Ukrainian citizenship, which are:
a) voluntary acquisition by a citizen of Ukraine of the citizenship of a state recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state, or citizenship (nationality) of a state included in the list of states whose citizens (nationals) acquire Ukrainian citizenship under a simplified procedure, if at the time of such acquisition he or she has reached the age of majority;
b) use of a foreigner's passport on the territory of Ukraine by an adult citizen of Ukraine who has citizenship (nationality) of a foreign state, which results in threats to national security and/or national interests of Ukraine;
c) acquisition of Ukrainian citizenship by a person as a result of submission of false information, forged documents, concealment by a person of any material fact, in the presence of which a decision on admission to Ukrainian citizenship could not be made in respect of the person, deception or failure to fulfill the obligation undertaken by the person in the obligation to terminate foreign citizenship, or in the declaration of renunciation of foreign citizenship and recognition of oneself as a citizen of Ukraine only, or failure to fulfill the obligation to pass examinations on the fundamentals of the Constitution of Ukraine, history of Ukraine and the level of proficiency in the state language;
d) establishment of the fact that a person has performed military service under a contract in a state recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state;
e) the entry into force of a court verdict of guilty against persons convicted in Ukraine of a crime against the foundations of national security of Ukraine, against peace, security of humanity and international law and order, for committing a terrorist act, facilitating a terrorist act, public calls for committing a terrorist act, creating a terrorist group or terrorist organization, financing terrorism, creating a criminal organization, managing such an organization or its structural parts, creating a criminal community, etc.
f) participation in armed aggression against Ukraine as part of the armed forces of a state recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state, or which is in an armed conflict (war) with Ukraine or contributed to the commission of armed aggression against Ukraine;
5) regulation of the issue as for the possibility of submitting an expired passport document by foreigners and stateless persons who, in accordance with the procedure established by law, are performing or have performed military service under contract in the Armed Forces of Ukraine, the National Guard of Ukraine, and other military formations established in accordance with the laws of Ukraine, to obtain a temporary residence permit;
6) regulation of the legal status of foreigners and stateless persons who, during the martial law imposed in Ukraine, provide or have provided small arms, tactical, medical, radio, explosive and other assistance to units of the Armed Forces of Ukraine, the National Guard of Ukraine, other military formations formed in accordance with the laws of Ukraine, special purpose law enforcement agencies, as well as territorial defense units, volunteer formations of territorial communities, being directly in the areas of combat.
An analysis of the provisions of draft law No. 11469 leads to the conclusion that the goal declared in the explanatory note is not realized in the text of the document. First and foremost, it is about updating the legal regulation of Ukrainian citizenship in view of the need to ensure national security and national interests of Ukraine.
In the context of globalization and intensification of migration processes, illegal interference of unfriendly countries in electoral processes, full-scale invasion into Ukraine by russian federation, granting foreign citizens Ukrainian citizenship will mean granting them access to the management of public affairs (including voting rights), which will pose a real threat to Ukraine's national security (emphasis added by the authors - V.T., A.T., V.T., S.D., O.D.).
The means chosen by the drafters of the bill do not seem to be able to ensure the achievement of such a goal as preserving the unity of the Ukrainian community. Instead, the implementation of the legislative initiatives enshrined in the document may lead to the stratification of society and increased distrust of the authorities.
The text of the explanatory note to the draft law No. 11469 suggests that it was developed to “...reduce the negative consequences of the demographic crisis in Ukraine as a result of the armed aggression of the Russian Federation against Ukraine.”
It seems that the achievement of such an ambitious goal should provide for appropriate measures that are not included in the draft law No. 11469. In addition, it is difficult to understand from the text of the explanatory note what exactly the consequences of the demographic crisis are. Moreover, the draft law No. 11469 does not contain any provisions that would indicate that the drafters are trying to solve this problem. Is it the increasing number of people who will receive Ukrainian citizenship that will really act as a solution to reduce the negative consequences of the demographic crisis in Ukraine inflicted by Russia's armed aggression against Ukraine?
In this regard, the multifaceted instruction “Make love!” comes to mind, which from billboards at every intersection called on young Ukrainians to perform great feats on the battlefield against the demographic crisis
. However, the implementation of this guideline seems more realistic in terms of the goal set by the drafters of Bill No. 11469.
It seems appropriate to draw attention to the fact that Article 8 of the Basic Law of Ukraine states that the principle of the rule of law is recognized and operates in Ukraine. The Constitution of Ukraine has the highest legal force. Laws and other legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it. The provisions of the Constitution of Ukraine are norms of direct effect
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
However, an analysis of the provisions of draft law No. 11469 may indicate that its drafters ignored these and other constitutional provisions.
Article 17(1) of the Basic Law of Ukraine stipulates that the protection of Ukraine's sovereignty and territorial integrity, ensuring its economic and information security are the most important functions of the state and the business of the entire Ukrainian people
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
According to Article 24 of the Constitution of Ukraine, citizens have equal constitutional rights and freedoms and are equal before the law. There can be no privileges or restrictions based on race, skin color, political, religious or other beliefs, gender, ethnic or social origin, property status, place of residence, language or other characteristics
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
At the same time, part one of Article 65 of the Constitution of Ukraine stipulates that the defense of the Motherland, independence and territorial integrity of Ukraine, and the respect for its state symbols are the duty of Ukrainian citizens
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
However, the drafters of the bill ignored these constitutional provisions as well. Therefore, newly admitted polypatriots will have privileges compared to other Ukrainian citizens. They will either choose in which country to fulfill their military duty, or, having already served in the country where they live, they will watch others fulfill this duty.
To this we consider it appropriate to add that on September 20, 2006, the Verkhovna Rada of Ukraine, when adopting the Law of Ukraine “On Ratification of the European Convention on Nationality”, stated that in accordance with Article 25, paragraph 1 of the Convention, Ukraine excludes Chapter VII from the scope of the Convention
.
For reference.
Chapter VII Military duty in cases of multiple citizenship, Article 21 Performance of military duty
1) Persons who hold the nationality of two or more States Parties shall perform their military duty in relation to only one of these States Parties.
2) The procedure for the application of paragraph 1 may be determined by special agreements between any of the States Parties.
3) Except to the extent that a special agreement already concluded or which may be concluded provides otherwise, the following provisions shall apply to persons holding the nationality of two or more States Parties.
a) Any such person shall be liable for military service in respect of the State Party in whose territory he or she is habitually resident. However, such persons may, until they have attained the age of 19 years, perform military duty as volunteers in respect of any other State Party of which they are also nationals for a total effective period of at least equal to the period of active military service established in the first State Party;
b) Persons who are habitually resident in the territory of a State Party of which they are not nationals or in a State other than a State Party may perform military service in the territory of any State Party of which they are nationals;
c) Persons who, in accordance with the rules set forth in subparagraphs (a) and (b), perform their military duty in respect of one State Party in accordance with the laws of that State Party shall be deemed to have performed their military duty in respect of any other State Party or any other States Parties of which they are also nationals;
d) Persons who, before the entry into force of the present Convention between States Parties of which they are nationals, have fulfilled their military duty in respect of one of those States Parties in accordance with the laws of that State Party shall be deemed to have fulfilled that duty in respect of any other State Party or any other States Parties of which they are also nationals;
e) Persons who, pursuant to subparagraph (a), have performed active military service in respect of one of the States Parties of which they are nationals and who have subsequently chosen the territory of another State Party of which they are nationals as their place of permanent residence may be registered as liable for military service in the reserve only in respect of that latter State Party;
f) The application of this article shall in no way prejudice the nationality of the persons concerned;
g)
In the event of a declaration of mobilization by any of the States Parties, the obligations arising from the present article shall not be binding on that State Party .
However, there is no mention of this in the text of Draft Law No. 11469. Although, logically, and in accordance with part eight of Article 90 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine, if amendments to other laws are required to implement the provisions of the submitted draft law after its adoption, such amendments should be set out in the ”Transitional Provisions" section of this draft law or in a separate draft law simultaneously introduced by its initiator
.
Part one of Article 68 of the Basic Law of Ukraine stipulates that everyone is obliged to strictly observe the Constitution of Ukraine and the laws of Ukraine, not to infringe on the rights and freedoms, honor and dignity of other people. Pursuant to Article 67(1) of the Constitution of Ukraine, everyone is obliged to pay taxes and fees in the manner and in the amounts established by law. This affects the state of local budgets, as well as the socio-economic development of the state and the welfare of its citizens
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
However, the drafters of draft law No. 11469 turned a blind eye in this case, pretending that such constitutional provisions do not exist, or exist, but apply only to those who are currently “pulling the cart.” So here, too, they do not notice the discriminatory nature of their proposed legislative initiatives. The document does not contain any proposals to amend the tax legislation of Ukraine in terms of taxation of activities carried out by polypatriots after they obtain Ukrainian citizenship.
In addition, it is unclear how the “newly minted” citizens of Ukraine will fulfill their constitutional obligation under part two of Article 67 of the Constitution of Ukraine, which stipulates that all citizens shall annually submit to the tax inspectorates at their place of residence declarations of their property status and income for the previous year in accordance with the procedure established by law.
In view of the above, we believe that the proposed approach is discriminatory towards persons who are currently citizens of Ukraine.
Even the naked eye can see that the drafters of draft law No. 11469 propose to regulate the issue of the procedure for acquiring multiple citizenship exclusively unilaterally (emphasis added by authors - V.T., A.T., V.T., S.D., O.D.). The point is that anyone can become a citizen of Ukraine, except for citizens of a state recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state. At the same time, the draft law does not provide for procedures for citizens of Ukraine to acquire citizenship (nationality) of other states.
Such a one-sided approach to solving the problems of polypatriotism seems to be at least erroneous and discriminatory towards Ukrainian citizens.
The drafters of these bills ignored the prohibitions on participation in the management of public affairs by persons with multiple citizenship established by the Constitution of Ukraine (Articles 81, 126, 149-1), the laws of Ukraine “On Civil Service” (Articles 14, 84), “On the Judiciary and the Status of Judges” (Articles 97, 121), etc.
It should be noted that these prohibitions are fragmented. In addition, Ukrainian legislation does not provide for effective mechanisms for the implementation of these prohibitions, as well as other measures of influence by the state. For example, Article 81 of the Constitution of Ukraine provides for termination of citizenship among the grounds for early termination of the powers of a Member of Parliament of Ukraine. At the same time, this provision does not provide for such consequences in connection with the existence or acquisition of foreign citizenship (as, for example, in the Laws of Ukraine “On Civil Service” and “On the Judiciary and Status of Judges”). And the grounds for early termination of the powers of the President of Ukraine (Article 108) do not contain such a provision at all.
Similarly, Ukrainian legislation does not define this ground for termination of powers of the Prime Minister of Ukraine and members of the Cabinet of Ministers of Ukraine.
For some unknown reason, the drafters of Draft Law No. 11469 ignored the existence of these problems and did not propose the introduction of effective mechanisms to overcome them. They also did not take into account the fact that not all Ukrainians abroad will be able to take advantage of its provisions, as the possibility of obtaining multiple citizenship for Ukrainian migrants is also determined by the specifics of the legislation of the host state.
In this regard, T. Panchenko rightly notes that among Ukrainian migrants living in Germany, only those Ukrainians who were born and raised in Germany and wish to retain both citizenships after reaching the age of majority will be eligible for dual citizenship. All others will still have to renounce their Ukrainian citizenship. For this purpose, German law defines a procedure that requires a positive decision from the German Federal Office for Foreigners to guarantee the granting of German citizenship. Next, the renunciation of Ukrainian citizenship should take place, which consists in the provision by a citizen of Ukraine of an obligation to hand over his/her Ukrainian passport to the diplomatic mission of his/her country in Germany
| [17] | Panchenko T. V. Dual citizenship in the context of opportunities and prospects of Ukrainian migrants // The Journal of V.N. Karazin Kharkiv National University. Issues of Political Science. Kharkiv, 2022. https://doi.org/10.26565/2220-8089-2021-40-05 |
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The State Economic Research Institute (hereinafter – GEOU) expressed its critical remarks on the text of draft law No. 11469. The scientific and expert opinion states, in particular, that in accordance with international law, the regulation of multiple citizenship is a matter of discretionary power of the state and is accordingly established by the state at its own discretion. Article 15 of the European Convention on Nationality, 1997 (hereinafter - the European Convention), to which Ukraine is also a party, states that each state has the right to regulate in its internal law the following issues.
a) whether its citizens who acquire or have the citizenship of another state retain or lose their citizenship;
b) whether the acquisition or retention of its citizenship is connected with the renunciation or loss of another citizenship.
According to the experts of the GEOU, after the full-scale invasion launched by rf, Ukraine found itself in a situation where the introduction of multiple citizenship is likely to become a factor that will create additional threats to the national security of the state.
It is believed that draft law No. 11469 should provide for appropriate amendments to the legislative acts regulating the following issues
1) military service by polypatriots;
2) taxation of activities carried out by poly-patriots;
3) ensuring diplomatic protection of such persons;
4) loyalty of such persons to the states of their citizenship;
5) the exercise by such persons of the right to vote and the possible use by neighboring countries of the possibility of granting their citizenship to Ukrainian citizens as a tool for bringing certain territories into their sphere of political influence (as discussed above in this conclusion);
6) reducing the state's defense capability, in particular, by evading military service and criminal or other prosecution by polypatriots;
7) the influx of so-called “economic refugees” (persons seeking refugee status in another country solely for economic reasons, and not for reasons of religious, political or other discrimination) to Ukraine, who, having acquired Ukrainian citizenship while retaining the citizenship of their country of origin, will enjoy all the privileges of Ukrainian citizenship (the right to education, the right to work, the right to property, including land, the right to vote, etc.).
It should also be borne in mind that multiple citizenship is a fairly common phenomenon that has existed and will continue to exist regardless of the attitude of a particular state. Its prohibition, according to J. Kunz, is not a rule of positive international law, but only contains a postulate of the relevant legal policy. That is, there is no international legal prohibition of multiple citizenship. States are free to choose a legal policy to support or prohibit multiple citizenship.
Quite interesting are the conclusions of R. Bedriy, who, based on a study of the legislative acts of the CIS and Baltic countries in the field of regulation of multiple citizenship, proposed to divide these countries into four groups.
The first group includes states whose legislation (primarily constitutions) explicitly allows multiple citizenship (Russia, Moldova, Lithuania, Tajikistan).
The second group is formed by states whose constitutions, on the contrary, explicitly prohibit the possibility of multiple citizenship (Armenia, Georgia, Kazakhstan).
The third group includes countries that do not recognize multiple citizenship, although their legislation does not explicitly prohibit it. This prohibition follows from the content of certain legal norms (Ukraine, Estonia and Latvia).
The
fourth group is formed by countries whose constitutions do not address the issue of dual citizenship at all, which is positively resolved at the level of relevant laws (Turkmenistan, Belarus)
.
The presence of multiple citizenship creates significant problems in resolving issues regarding
1) military service by polypatriots;
2) ensuring diplomatic protection of a polypatriots;
3) loyalty of a polypatriot to the states of his/her citizenship;
4) realization of the right to vote by a polypatriot.
These problems are addressed both at the domestic and international legal levels. It should be borne in mind that the phenomenon of polypatriotism has a pronounced tendency to expand, which under certain conditions can cause serious problems for states.
We note that multiple citizenship is a way of influencing the policy of a country or region with a compact community (emphasis added - V.T., A.T., V.T., S.D., O.D.). A large number of citizens who hold passports of another state demand that the central government adjust its views to the interests of this group of people (for example, Hungarians in Romania or Ukrainians in Canada). Ukraine should benefit from this possibility. However, it should be recognized that our state is not yet ready to implement such experience, as it has already faced a precedent when rf used a similar pretext and created significant problems for Ukraine, “saving its citizens from Ukrainian nationalists on our territory.”
Assessing the possible positive and negative consequences of legislative consolidation of multiple citizenship in Ukraine, experts note that the desire of Ukrainian citizens permanently residing here to acquire citizenship of another state is largely due to the desire to obtain better protection of human and civil rights, more progressive conditions for economic development, a more comfortable living environment, etc. Therefore, the overall improvement of living conditions in the country will not only stop the massive outflow of the most productive part of the population abroad, but will also eliminate the need to acquire another citizenship.
In addition, multiple citizenship seems to be able to significantly improve the dialogue between Ukrainians abroad and Ukraine, but in the current situation it may become a factor that threatens national security
.
Among the possible negative consequences of the introduction of multiple citizenship, experts name the threat of possible indirect interference in Ukraine's internal affairs by foreign states. However, in their opinion, this drawback can be eliminated by restricting the right of persons with multiple citizenship to hold positions in state and local government bodies.
The main reasons for the emergence of multiple citizenship include:
1) territorial changes
2) population migration
3) differences in state legislation on the procedure for acquiring and losing citizenship.
The reasons for the existence and spread of the institution of polypatriotism can be divided into two groups:
1) objective - those that do not depend on the will of the person who becomes a polypatriot;
2) subjective - caused by a person's desire to acquire citizenship of several states.
In Ukraine, the formation and development of the institution of polypatriotism is due to both objective and subjective reasons and is directly related to the process of gaining and strengthening the independence of the state.
For reference. The Declaration of State Sovereignty of Ukraine of July 16, 1990, defined the foundations of state policy in the field of citizenship, the key provision of which was the definition of the institution of citizenship of the Ukrainian SSR as an independent one. The Declaration stipulated that the Ukrainian SSR guarantees every citizen the right to retain the citizenship of the USSR (in fact, multiple citizenship is allowed)
| [20] | Declaration “On the State Sovereignty of Ukraine”, adopted by the Verkhovna Rada of the Ukrainian SSR on July 16, 1990 // Vidomosti Verkhovna Rada Ukrayiny. - 1990. - No. 31. - P. 429. |
[20]
. This provision provided for the existence of “pseudo-multiple” citizenship and existed for a short period before the final collapse of the USSR.
The Law of Ukraine “On Citizenship of Ukraine” as amended on October 8, 1991, allowed for the possibility of multiple citizenship on the basis of international agreements. However, the Constitution in force at the time did not mention this principle at all
| [21] | The Law of Ukraine “On Citizenship of Ukraine” of October 8, 1991 // Bulletin of the Verkhovna Rada of Ukraine. - 1991. - No. 50. - P. 701. |
[21]
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In 1991, Article 31 of the Constitution of Ukraine was amended to provide for the possibility of acquiring multiple citizenship. However, this principle was not developed in the practice of Ukraine's relations with other countries. On the contrary, in an effort to avoid political speculation around the issue of dual citizenship, Ukraine focused on reaching bilateral agreements with other countries, primarily with CIS member states, on preventing cases of dual citizenship. Thus, at the time of the entry into force of the norm on the possibility of multiple citizenship, on December 15, 1996, the Agreement between Ukraine and the Republic of Uzbekistan on the Prevention of Cases of Dual Citizenship was concluded
| [22] | Scientific and Practical Commentary on the Law of Ukraine “On Citizenship of Ukraine.” - K., 2002. - 251 р. ISBN: 966-96086-6-Х. |
[22]
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The Constitution of Ukraine of June 28, 1996, enshrined the principle of the existence of a single citizenship in Ukraine
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
, which was embodied in the Law of Ukraine “On Citizenship of Ukraine” as amended on April 16, 1997. According to this principle, a foreigner could acquire Ukrainian citizenship only upon termination of his/her previous citizenship, and Ukraine did not recognize a citizen of Ukraine as also having foreign citizenship. With the voluntary acquisition of citizenship of another state, a person lost Ukrainian citizenship after the President of Ukraine made a corresponding decision. Until such a decision is made, a Ukrainian citizen enjoys all the rights and has all the obligations provided for by the law for Ukrainian citizens.
Of particular interest are the statistical data published on the official website of the State Migration Service of Ukraine, which we have compiled into a table for convenience (
Table 1).According to the Ukrainian national news agency Ukrinform, from February 24, 2022, to September 2024, 928 people applied to foreign diplomatic missions of Ukraine with petitions to renounce Ukrainian citizenship, of which only 40 were granted by the President of Ukraine. Most applications were submitted to the Consulate General in Munich - 190, the Consulate General in Düsseldorf - 167, and the Embassy of Ukraine in Austria - 99
.
Between the beginning of 2022 and September 2024, a total of 280 people were granted Ukrainian citizenship by the Decree of the President of Ukraine.
As you can see, since the beginning of the full-scale invasion of rf, the number of persons granted Ukrainian citizenship by the Decree of the President of Ukraine is 7 times higher than the number of persons whose citizenship of Ukraine was terminated by the Decree of the President of Ukraine. At the same time, the Head of State has granted only slightly more than 4 percent of applications for renunciation of citizenship for unknown reasons. Ukraine.
According to Ukrainian diplomatic missions abroad, as of May 2024, about 7.6 million Ukrainian citizens were outside Ukraine due to russia's armed aggression against Ukraine
. In this regard, there are risks that, once abroad, our citizens will integrate in the countries that have granted them asylum and gradually lose contact with Ukraine, including through the acquisition of foreign citizenship.
However, this problem does not concern the drafters of Draft Law No. 11469 a lot, as their attention is focused on creating favorable conditions for foreigners to obtain Ukrainian citizenship. However, they should have focused primarily on encouraging Ukrainian citizens who left abroad due to the full-scale invasion of Russia to return home. So a logical question arises: what are the motives of the drafters of this bill?
Given the socio-political situation in Ukraine, as well as the national security challenges faced by our country in connection with the full-scale invasion of rf, we believe that the introduction of polypatriotism (multiple citizenship) requires an extremely balanced approach, because, as the European Court of Human Rights has noted, “the issue of access to citizenship is in the matrix of the European Convention for the Protection of Human Rights and Fundamental Freedoms as part of a person's social identity and belongs to his or her private life.”
It seems appropriate to pay attention to the following. Pursuant to Article 25(1) of the Constitution of Ukraine, a citizen of Ukraine may not be deprived of citizenship and the right to change citizenship. This means that a person (foreigner or stateless person (stateless person)) may apply to the President of Ukraine with a petition for Ukrainian citizenship.
It should be noted that the provision in Article 25 of the Basic Law of Ukraine prohibiting the deprivation of citizenship only partially reproduces the provisions contained in international legal documents ratified by the Verkhovna Rada of Ukraine. For example, Article 15 of the Universal Declaration of Human Rights states that “...no one shall be deprived of his or her nationality arbitrarily (italics added - V.T., A.T., V.T., S.D., O.D.)”
. A similar provision is contained in Article 4 of the European Convention on Nationality, which also prohibits arbitrary deprivation of nationality (our italics - V.T., A.T., V.T., S.D., O.D.)
.
Thus, it can be concluded that the above-mentioned international legal documents do not contain an absolute prohibition on deprivation of citizenship. They only indicate that deprivation of citizenship should be carried out in the presence of appropriate grounds provided for by national legislation. At the same time, Article 1 of the European Convention on Nationality states that the domestic law of the Member States shall be consistent with the principles and rules relating to the nationality of natural persons established by this document
.
According to Article 25, part 2 of the Constitution of Ukraine, a citizen of Ukraine cannot be expelled from Ukraine or extradited to another state, as he or she is under the exclusive jurisdiction of his or her own state. This provision is in line with the provisions of Article 33(2) of the Constitution of Ukraine, which stipulates that a citizen of Ukraine may not be deprived of the right to return to Ukraine at any time
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
Article 38 of the Constitution of Ukraine states that citizens have the right to participate in the management of public affairs, in national and local referendums, to freely elect and be elected to state and local government bodies. As we can see, the Basic Law of Ukraine stipulates that only citizens of our country have the right to participate in the management of state affairs. This right stems from the principle of people's sovereignty enshrined in Article 5, part 2 of the Constitution of Ukraine, which establishes that the bearer of sovereignty and the sole source of power in Ukraine is the people, who exercise power directly and through state and local governments
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
In this regard, the CCU in its decision of October 5, 2005, No. 6-rp/2005 (the case on the exercise of power by the people) noted that the power of the people is primary, unified and inalienable and is exercised by the people through free expression of their will through elections, referendums and other forms of direct democracy in the manner prescribed by the Constitution and laws of Ukraine, through state authorities and local self-government bodies.
In general, citizen participation in the management of public affairs is the exercise of a subjective right guaranteed by the Constitution, which is manifested in the legitimate public activity of a citizen, aimed at influencing the adoption and implementation of decisions of state importance, as well as control over their implementation directly or through representatives in the bodies of all branches of state power.
An analysis of the provisions of Article 38 of the Constitution of Ukraine gives rise to the conclusion that the right to participate in the management of public affairs implies the possibility:
1) to participate in national and local referendums;
2) to freely elect and be elected to state and local self-government bodies;
3) equal access to civil service and service in local self-government bodies
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
[2]
.
The main (determining) condition for participation in any elections to government and local self-government bodies is Ukrainian citizenship. It should be noted that citizenship is a unique and extremely important functional mechanism for granting access to members of state-organized society to participate in the management of public affairs. It is the factor that determines the legal relationship between a person and the state, provides the state with a real opportunity to control the composition of the population, and can significantly affect the stability of the state.
As noted above, Article 15 of the Universal Declaration of Human Rights states that citizenship is one of the fundamental human rights, the meaning of which is that a person can enjoy a full range of rights only if he or she has it. Thus, citizenship confers on a person all constitutional rights and freedoms and ensures his or her right to participate in the management of public affairs, since it is through the institution of citizenship that persons who are the holders of power in the state are determined. At the same time, the institution of citizenship is crucial in solving the problem of correlation between the autonomy of a person as a subject of natural human rights and collective interests
.
The absence of Ukrainian citizenship does not allow a person to participate in the management of public affairs (to participate in all-Ukrainian and local referendums, to freely elect and be elected to state and local government bodies). Thus, the institution of citizenship can be viewed as the main element of the mechanism for granting a person access to the full range of political rights that can be enjoyed only by a citizen of Ukraine.
The Constitution of Ukraine also provides for cases when the laws of Ukraine may establish restrictions on these constitutional rights. For example, Article 78(3) of the Basic Law of Ukraine states that a citizen who has an unexpunged and outstanding conviction for an intentional crime is prohibited from being elected to the Verkhovna Rada of Ukraine unless this conviction is expunged and expunged in accordance with the procedure established by law. In this way, the national legislator has established a constitutional and legal restriction on passive suffrage, i.e. the right to be elected to the Parliament
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
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At the same time, the Constitution of Ukraine does not contain any restrictions on the exercise of a person's voting rights (passive and active) in local elections. However, part 2 of Article 9 of the Law of Ukraine “On Local Elections” states that a citizen of Ukraine with a conviction for a grave or especially grave crime, a crime against the electoral rights of citizens or a corruption crime cannot be elected as a deputy, village, town or city mayor, unless this conviction is not expunged or removed in accordance with the procedure established by law
| [2] | The Constitution of Ukraine. Adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 // Bulletin of the Verkhovna Rada of Ukraine. - 1996. - No. 30. - P. 141. |
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Thus, these restrictions do not apply in cases where:
1) the person is only under investigation for committing a grave or especially grave crime, a crime against the electoral rights of citizens or a corruption crime;
2) a court verdict of guilty against a person for committing a grave or especially grave crime, a crime against the electoral rights of citizens or a corruption crime has not entered into force.
However, the commission of any other crime that does not belong to this group of crimes is not a ground for depriving a person of the right to be elected in local elections. In addition, a person's stay in a temporary detention facility or in a pre-trial detention center does not deprive him/her of the possibility to exercise the right to vote (active and passive), but only complicates participation in local elections to a certain extent.
It seems that the institution of citizenship in conjunction with criminal law institutions (conviction, amnesty, pardon) should be used to the maximum extent possible to prevent the participation in the management of public affairs of Ukrainian citizens who actively participated in the development of the separatist conflict in eastern Ukraine and/or provided all possible assistance to the occupation authorities during the full-scale invasion into Ukraine by the Russian Federeation.
In view of the above, we consider it necessary to conclude that the mechanisms currently in place in Ukraine to prevent the participation of persons whose activities pose a threat to national values and vital interests of the Ukrainian people and the Ukrainian state in the management of public affairs require a conceptual review and substantial modernization.
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