Russian passports for officials and judges: why does the state lose in the courts?

In the case of Medvedchuk, the case was quickly resolved, but with the citizenship of Judge Lvov - not...

The beginning of the year began with two high-profile cases. The court reinstated the controversial Supreme Court judge Bogdan Lvov, who was found to have a Russian passport.

But here there is still an appeal ahead and three judges have already been appointed to the Sixth Administrative Court of Appeal: Andrei Kuchma, Vladimir Alimenko and Lyudmila Belova.

But in the second high-profile case the situation is worse. We are talking about ex-official of the Ministry of Justice Marina Prilutskaya, who, according to the SBU, voluntarily received Russian citizenship in occupied Crimea. The Supreme Court sent the case back for retrial and thereby stayed the appeal decision.

“The Chairman of the Supreme Court Stanislav Kravchenko, on the eve of the hearing in the case of Bogdan Lvov, said that the dismissal of his colleague was allegedly a private initiative of the former Chairman of the Supreme Court Knyazev and also questioned whether they would file an appeal if they lost. It looked like sabotage. After a resonance in the media, an appeal was finally sent and the public must ensure that the courts do not cement the “standard” when citizenship of the Russian Federation can be proven only by having a passport or a certificate with a stamp from the Russian Federation that this person is its citizen. This is absurd and a direct threat to national security. We hope that the higher courts will put national security and common sense above someone's corrupt interests. And the state as a whole will urgently develop a mechanism that will help speed up the resolution of such issues,” notes Mikhail Zhernakov, Chairman of the Board of the Dejure Foundation.

People's Deputy Roman Babiy (inter-factional association "Smart Politics"), a member of the committee on legal policy, explains why problems arise: “Previously, we received information about citizenship through diplomatic channels. But diplomatic ties with the Russian Federation have long been severed. In fact, when considering such court cases, we have a “word against word” situation; the SBU does not have classic strong evidence of Russian citizenship. In such a situation, courts can evaluate other evidence, but they are not always enough. Considering the situation with recent court cases, the problem really exists and it is quite critical. Perhaps it would be worth changing the standards of evidence in this category of cases. Urgent changes to the current legislation are needed, but legislators still need to work on developing the verification mechanism itself.”

The journalistic project “Schemes”, which exposed the Russian citizenship of Judge Lvov, notes that the SBU provided convincing evidence. “There was information about when Lvov received citizenship and when he renewed his passport. That is, detailed factual information was brought to the court, which corresponds to what was in our material,” notes Natalya Sedletskaya, editor-in-chief of Schemes (Radio Liberty). And he adds that if Lvov wins in cassation, then all other judges with Russian citizenship will understand that there are no obstacles to being reinstated in office, having a Russian passport.

The case with Judge Lvov is not unique. So, there is another judge Valentina Simonenko (now retired) and a judge of the Donetsk District Administrative Court Lyudmila Arestova, who were also found by Schemes to have Russian citizenship. By the way, Arestova’s husband, lawyer Sergei Vasiliev, was present at the court hearings in Lvov’s case, and he also represents the interests of his wife, a judge.

The public initiative "Igla" contacted the Security Service of Ukraine for comment. And here they also say: legislative changes are necessary.

“The SBU, as it did with judge Bogdan Lvov, can deprive such persons of access to state secrets. The Service also informs government authorities about a potential or existing threat. After all, the central executive body implementing state policy in the field of citizenship is the State Migration Service of Ukraine. The position of the SBU is clear: the potential possession of Russian citizenship by judges and officials is a threat to national security, especially in times of war. At the same time, information collected by operational or counterintelligence means available to the intelligence service must be confirmed diplomatically. Therefore, the issue of foreign citizenship among officials and representatives of the judicial branch of government requires a comprehensive solution, including at the legislative level,” the SBU press service reports.

People's Deputy Solomiya Bobrovskaya ("Voice") agrees: having Russian citizenship is incompatible not only with performing the functions of a judge, but also with any functions of the state or local government. But at the same time, he emphasizes that there are serious caveats if the legislation is changed: “This creates corruption risks and leverage of the intelligence service over the judicial branch of government, which a priori should be independent. In any adversarial process, like a criminal one, there must be an evidence base that is obtained in the manner prescribed by law. The intelligence services are empowered to carry out pre-trial investigations and counterintelligence activities. All these processes must be balanced, otherwise we will get judges who, under pain of being accused of having a Russian passport, will make the decisions that the SBU requires and it is not a fact that they will meet the interests of the state and society. Now this part of the SBU is famous for its successful operations against enemies, but as of March 2022, it was in this structure, according to the Secretary of the National Security and Defense Council, that there were the most traitors.”

Bobrovskaya is convinced that in the legal process the problem does not arise due to the lack of an original passport, and the presence of Russian citizenship can be proven in other ways.

The state actually has another mechanism to resolve this issue. So, if the case with dual citizenship was political, then it was resolved quite quickly. We are talking about Viktor Medvedchuk, Taras Kozak, Andrey Derkach, Rinat Kuzmin, whom the president deprived of Ukrainian citizenship because they were found to have citizenship of another country. And, by the way, less than a year before the full-scale war, people’s deputy Oleg Dunda (“Servant of the People”) asked that people’s deputies be checked to see if they had a second citizenship. But until it came to a full-scale Tuesday, this was never done.

As for Judge Lvov, there is even a petition to the president, which received the required number of votes more than a year ago. “I have instructed the Commission under the President of Ukraine on Citizenship Issues to study the issue raised in the electronic petition, check whether there are grounds for terminating Bogdan Lvov’s citizenship of Ukraine and, based on the results of the consideration, make an appropriate decision. The author of the electronic petition will be informed about the results of consideration of the issues raised,” says Vladimir Zelensky in his response to the petition.

A year has passed, and Lvov is still a citizen of Ukraine. Advisor to the Head of the Office of the President, Mikhail Podolyak, has not yet commented on why, in the case of Medvedchuk and Derkach, the citizenship case at the Bankova level was resolved, but regarding the citizenship of Judge Lvov, it was not.