In my practice, I often manage to solve the problem of resettlement to the Federal Republic of Germany by realizing my clients' claims to German citizenship. In a number of cases, applicants, without suspecting it themselves, along with the citizenship of their native country, also possess hidden German citizenship. The legal basis for asserting these claims was created by the decrees of the German occupation authorities of 1941-1943 on the naturalization of Germans of Ukraine and the regular naturalization of Russian Germans in the territory of Poland, Germany, and Austria in the period 1944-45.
To prove the fact of individual naturalization during the Second World War of the person concerned or one of his ancestors, it is necessary to present a naturalization certificate of those times or other reliable documents. In the absence of such, the system of evidence should be built with the help of reliable witnesses and other indirect factors. In a number of cases, providing proof fails for various reasons. Moreover, many Germans of Ukraine at the beginning of the war were deported to remote regions of the USSR and never came into contact with the German occupation authorities.
Orders on the establishment of the list of the German people of Ukraine. In these constellations, applicants can be helped by §1 of the Order on the establishment of the list of the German people of Ukraine (Verordnung ueber die Deutsche Volksliste in der Ukraine). According to this provision, Russian Germans residing on 21.06.1941 in the territory of the subsequent so-called "Reichskommissariat Ukraine" automatically acquired German citizenship collectively under this "list" decree.
German citizens became those persons who theoretically fulfilled the prerequisites for inclusion in the list. These persons do not need to prove the fact of individual naturalization or the actual inclusion of their name in the list. To claim German citizenship, they only need to prove the existence of prerequisites for inclusion in the list. The procedure for considering such an application should consist of verifying the applicant's or one of his ancestors' belonging to the German people, the fact of permanent residence (registration) in the zone of the subsequent "Reichskommissariat" on 21.06.1941, and the legal line of transmission of citizenship by inheritance.
The current state of the legal discussion on list citizenship. I must say that the topic of list citizenship is controversially discussed by lawyers, administrative and judicial bodies of the Federal Republic of Germany. Currently, the Higher Administrative Court of the city of Münster (Oberverwaltungsgericht Munster) is dealing with court proceedings of this kind as a court of second instance. It should be taken into account that the final assessment of the legal situation will have to be given by the Federal Administrative Court (Bundesverwaltungsgericht).
In the meantime, other administrative courts of the Federal Republic of Germany have to face the need to make specific decisions on complaints from the area of application of the Decree on the establishment of the list. The distribution of competences in German court proceedings leads to the fact that persons living in Bavaria must apply to the Bavarian courts, including in matters of list citizenship. The Bavarian Administrative Court (Bayerischer Verwaltungsgerichtshof) adheres to the opinion I favor on the significance of the list for the naturalization of Russian Germans and their descendants.
The guiding opinion of the highest Bavarian administrative judicial instance is binding for all lower courts of this federal state. Therefore, in the Bavarian court, the plaintiff only has to prove the existence of prerequisites for inclusion in the list. He will not be required to provide evidence of individual naturalization and other personal certificates and documents. This means that those who turn to the Bavarian justice system with a case on list citizenship will have very good chances of being granted German citizenship by decision of the competent court. This is the consistent opinion of the Bavarian justice system. In other states (with the certain exception of the state of Baden-Württemberg), other rules apply.
Temporary absence from the territory of the "Reichskommissariat Ukraine" on 21.06.1941 does not remove a Russian German from the operation of the list decree. In the court decision I cite, the administrative court of the city of Munich examined a particular case of the application of the list order. The key point of the Munich court's decision is that a temporary departure from the territory of the subsequent so-called "Reichskommissariat Ukraine" and absence on 21.06.1941 from the territory of this subsequent occupation administrative unit does not remove a Russian German from the operation of the list decree. Such temporary leaving of the territory could be service in the Red Army, study in large Russian cities, and other reasons of this kind. The court concluded that study or military service does not call into question the permanent residence of the said person on the territory of the "Reichskommissariat" on 21.06.1941.
This decision on a particular case of the application of the Order on the establishment of the list of the German people of Ukraine once again demonstrates the firm position of the Bavarian justice system in the sense of interpreting the order of the then German authorities on the citizenship of Germans of Ukraine favorably for Russian Germans. Knowing the usual procedural severity of the Bavarian authorities and justice in accepting late resettlers, one can rightly say that this position should become decisive in the proceedings of other judicial instances, and in the foreseeable future become a federal guiding judicial directive. I look to the future with optimism and count on a positive outcome of the legal question of list citizenship in the high judicial instances.
Thomas PUE,
German lawyer.