However, assessing all these historical events, the actions of politicians, personal fates, and decisions of individual citizens of the former "great and mighty" is very difficult and contradictory. Therefore, I deliberately decided to abandon emotions and consider the matter strictly from the point of view of German legislation. Sometimes, in order to remain impartial, it is very useful to hide behind a veil of paragraphs.
According to some estimates, about a thousand former soldiers and officers of the Western Group of Forces (ZGV) of the Soviet Army live in Germany, who in 1990-91 arbitrarily left the location of their military unit and requested political asylum in the Federal Republic of Germany. For the most part, these applications were rejected by the competent German authorities. This does not mean that all deserters were returned to their homeland. They are protected from deportation and have the right to reside in the Federal Republic of Germany with the status of "tolerated" persons. This rule for Soviet deserters was created on the initiative of the federal Ministry of the Interior in agreement with the state ministries of internal affairs. For former deserters who are well integrated into the structures of the Federal Republic of Germany, the Office for Foreigners may issue more reliable titles for residence in Germany. Residence with a "tolerated" status does not give a former member of the ZGV reliable protection from deportation. At the discretion of local authorities, he may lose the right to reside in the Federal Republic of Germany.
From my point of view, the expulsion of Dmitry Olenin contradicts the agreement between the federation and the states on the treatment of deserters. It is obvious that due to the peculiarities of the case (flight from the territory of Poland), the Bavarian authorities do not extend to him the protective rules of the federal-state agreement. From their point of view, Olenin is a "simple" illegal immigrant. My opinion is unequivocal: Olenin must fall under all the protective rules of that agreement. The authorities are obliged to treat him not in the letter, but in the spirit of this regulation. If the Office for Foreigners wants to deport a not-too-desirable foreigner to his homeland, protection will have to be sought in a competent administrative court. In urgent cases, one should refer to §123 of the rules of procedure of the administrative court.
Regardless of disputes about the validity in Olenin's case of the agreement between the federation and the states, his expulsion to the territory of the former USSR is an inhumane act. You don't need to be a prophet to predict that his homeland will not meet him with fanfares. The former soldier of the Soviet Army faces many years of imprisonment, life on the street without means of subsistence, restriction of civil rights, and many other vicissitudes of fate. I consider such an act by the competent Bavarian authorities to be unlawful.
The argumentation in court could look as follows. Until the end of the 1980s, perhaps until the dissolution of the USSR, the flight of Soviet Army servicemen was very much welcomed by the authorities of Western countries. Deserters were first processed by intelligence services as a source of important information, and then used for anti-Soviet propaganda. Thus, Western states deliberately encouraged servicemen to commit military crimes. It should not be that state authorities first lure foreigners to flee to the West, obtain all the information they need from them, and then hand them over to the authorities of the country of origin. The German state has no right to act this way with people.
In Olenin's case, the situation developed in the most unfavorable way, and what, in fact, should not have happened, happened. It is difficult for me to judge whether all necessary measures were taken for Dmitry's legal protection. Also surprising is the persistence of the Bavarian authorities, who tried with all their might to expel the former soldier to his homeland. His previous offenses certainly played a negative role in the decision of the Office for Foreigners. Still, I believe that the court could have protected Olenin from deportation to his homeland.
I would like to clarify immediately. If a foreigner lacks a reliable title to reside in the Federal Republic of Germany, the Office for Foreigners has the right to deport him to his homeland or to a third country that agrees to accept him for residence. Many former citizens of the USSR have been living in the Federal Republic of Germany for more than a decade without reliable status. The question of their citizenship is also unclear. Most successor states of the USSR automatically assigned their citizenship to those who permanently resided on their territory on a certain reference date (1991-92). But what about tourists and soldiers who lingered? Should they be considered permanent residents or not?
A number of states in Central Asia and the Caucasus are not inclined to consider such long-term tourists as their citizens, especially if they do not belong to the titular nationality. If these tourists receive a certificate from their embassy that it does not consider them its citizens, they will become stateless persons, and their expulsion from the Federal Republic of Germany will be complicated.
It should be said that the German authorities do not put up with this situation and actively work with the former Soviet republics. If, for example, Russia agrees to accept a "stateless" former resident of Azerbaijan of Russian origin, such a "former Azerbaijani" may be deported to Russia. I consider such an action inadmissible. Representatives of the German Foreign Ministry should not act as traveling salesmen who run around the world and seek (for money) refuge for an unwanted foreigner. Such a foreigner cannot be deported to any country in the world that agrees to accept him, but is alien to him, where he will lead a miserable existence, having no social ties, work, housing, etc.
It is more problematic when the country of origin of the foreigner acts as the receiving state. Here, the laws of the country of origin apply. If Russia recognizes Irina as its citizen, for the German authorities this is sufficient grounds for deporting her to her homeland. German foreign nationals offices often contact the competent embassies themselves and obtain for the foreigner a passport and other entry documents from the country of origin.
Such a method of action by the authorities for foreigners is problematic, but I do not consider it illegal. Much, in my opinion, will depend on the legislation of the relevant republic of the former USSR. If the citizenship legislation of these countries provides for the acquisition of citizenship by former USSR citizens only upon personal application, then all actions of the authorities of both countries over the heads of the interested persons can be considered illegal. Those from the Baltic and partly Central Asian republics of non-indigenous nationality can sleep relatively peacefully: no one is waiting for them there. I do not consider this situation reliable and eternal. The German Foreign Ministry is actively working on the situation and is inclining these countries toward closer cooperation in the matter of the return of their natives.
Irina and Dmitry focus their defense on their lack of Russian citizenship. I do not consider this point decisive in the analysis of their cases. As already indicated above, it is sufficient if Russia agrees to accept for residence foreigners with unclarified citizenship. Room for argument in favor of the plaintiffs appears if Russia is not their homeland. Foreigners cannot simply be deported to a country that is foreign to them. The key point of Olenin's defense could be the work of the FRG special services with him and the extension to him of the agreement between the federation and the states on the treatment of deserters from the Soviet Army.
In Irina's case, I see a favorable prospect. Her husband recently won a reliable residence permit in Germany by court decision. He also has other prerequisites for family reunification (apartment and own income), so the spouses can submit a corresponding petition to the German embassy. They should also request from the foreigners authority a decision on limiting the period of the ban on Irina's re-entry into Germany (§8 Abs. 2 Auslaendergesetz).
I also familiarized myself with the response of the Consulate General of Russia in Munich addressed to the head of the correspondent office for the South of Germany, Mr. A. Fitz, regarding these two cases. The consulate's response did not completely satisfy me. In it, respected diplomatic advisers point in a somewhat vague form to the need to comply with laws. There can be no doubt about the correctness of this statement. Laws that are not enforced are not laws, but, as they say, 'soft-boiled boots,' and they are not worth the paper they are printed on.
But in the consulate's response, I was troubled by the lack of justification for the decision taken and the legislative basis for granting Russian citizenship to the two above-named persons or accepting them into Russia. The consulate could have written: 'The Russian law "On Citizenship" provides for the automatic granting of Russian citizenship to persons who meet the following prerequisites...', 'According to the law of...' etc. Then the consulate's response could be considered sober and businesslike. On the basis of such a full response, an independent specialist in the field of Russian citizenship legislation and state law could verify the legal basis for the Consulate General's actions and provide Irina and Dmitry with the necessary legal assistance.
Thomas PUE,
German lawyer.