A visit to a territorial office of the FMS can turn into a prolonged nightmare with passport confiscation, deprivation of civil rights, and months of anxiety \/\/Photo RIA Novosti<\/em><\/p>
A visit to a territorial office of the FMS for a routine matter – such as exchanging a passport or obtaining citizenship for a child – can turn into a prolonged nightmare with passport confiscation, deprivation of civil rights, and months of anxiety. What should you do if you become another victim of this campaign? Where to turn? And how legal is all this at all? These and other questions were answered for a correspondent of Lenta.ru by human rights activist Lyudmila Zhirova from the city of Tarusa, who has extensive experience defending citizens' interests in court, including on issues of Russian citizenship.<\/p>
– Lyudmila Andreyevna, which categories of Russians, in your experience, fall into the "risk zone" and may encounter difficulties when applying to the FMS for document processing? <\/strong><\/p>
– After analyzing hundreds of cases related to passport confiscation, it can be said that practically the entire population of the country – mainly former citizens of the USSR – is in the "risk zone". Any Russian citizen may unexpectedly learn that their passport was "issued without justification" or "in violation of the established procedure", or simply receive a resolution such as "as a result of the inspection, it has been determined that you are not a citizen of the Russian Federation".<\/p>
Anyone who applies to the passport office at their place of residence for an age-related passport exchange, obtaining a foreign passport, obtaining citizenship for children, as well as upon surname change, damage, or loss of a passport, the FMS may declare them a "non-citizen" and require them to undergo the procedure of acquiring citizenship again or prove that it was acquired legally. Even pensioners with an indefinite passport of a citizen of the Russian Federation issued at age 45 fall under this "steamroller", because they too can lose or damage their passport. The citizenship of elderly people also comes into question if their children, who applied regarding their own documents or their grandchildren's documents, obtained their citizenship based on their parents' citizenship.<\/p>
In such cases, all family members become "suspects", and lengthy checks into the legality of acquiring or obtaining Russian citizenship, i.e., the "validity" of passport issuance, begin. As a result, those who applied to the FMS and their children become "non-citizens" of Russia, and their Russian citizen passports are confiscated.<\/p>
– And what is the most common reason for initiating a check? <\/strong><\/p>
– From experience, I can say that those who were not born in Russia (RSFSR) have the highest chance of attracting the attention of the FMS. And if they were born, they did not have permanent registration in Russia as of February 6, 1992 – the date of entry into force of the law "On Citizenship of the Russian Federation" of November 18, 1991, which became effective on February 6, 1992.<\/p>
According to this law, all those born on the territory of Russia (RSFSR, Russian Empire), children of Russians regardless of their place of birth, as well as all citizens of the former USSR who permanently resided on the territory of Russia as of February 6, 1992, were recognized as citizens of Russia. These people did not need to obtain, or rather, acquire citizenship; the state recognized its existence "automatically" and in the 1990s it was simply formalized.<\/p>
Only one condition for acquiring citizenship by adult persons through recognition made it into the bylaws and instructions – by date of residence. Information about those who acquired citizenship, rather than those who already had it by recognition or by birth, was transferred to the database of the Ministry of Foreign Affairs or the FMS. If there is now no information about the acquisition of Russian citizenship in it, then "suspects" are required either to present a document of permanent registration in Russia as of February 6, 1992, or to establish the fact of permanent residence as of that date in court.<\/p>
Furthermore, FMS employees claim that recognition of citizenship by birth applies only to persons born after the entry into force of the 1991 law. Thus, if the FMS has doubts that a person was registered in Russia as of that date, a check begins with all the ensuing consequences.<\/p>
– What are these "consequences"? <\/strong><\/p>
– In fact, it is the deprivation of all civil rights. Because the existing passport is either confiscated or they refuse to exchange it, and no other documents are issued at all. Neither a residence permit nor a temporary residence permit is issued in exchange, so the person is left without an identity document. The newly minted "non-citizen" is deprived of all constitutional rights and freedoms, including vital ones: the right to receive a pension, benefits, and freedom of movement. Practice shows that people can remain in this situation for months and even years.<\/p>
– Is there a statute of limitations for citizenship cases? After all, it is now very difficult to find evidence of what happened almost twenty years ago? <\/strong><\/p>
– The first law on citizenship of the Russian Federation of 1991 stated that "cancellation of a decision on admission to citizenship of the Russian Federation is possible within five years after admission." Accordingly, all cases on the issuance of Russian citizen passports upon acquisition or formalization of citizenship could be destroyed after five years. This includes USSR passports with "propiskas", inserts, and other documents.<\/p>
In some places, folders with cases on acquiring citizenship through registration or in the general procedure (for the latter, a decision by the president or the commission under the president on citizenship matters was issued) have been preserved, but cases on formalizing citizenship by recognition (by virtue of residence in Russia as of February 6, 1992) or by birth were never opened at all, that's the thing! In the preserved inserts and in Form 1P (this is the standard passport application form, kept in passport offices for 85 years), only the basis for issuing the passport is indicated.<\/p>
Now the FMS calls these grounds into question, believing that the person had no permanent registration or that the citizenship of the parents was supposedly incorrectly determined, and consequently, the person does not have Russian citizenship. But these grounds existed and still exist, or there were other, also legal ones. Sometimes it is simply a clerical error or an inspector's mistake, for example, the number of a law article or its part is indicated incorrectly.
Under the current Law «On Citizenship» No. 62-FZ of May 31, 2002, such a statute of limitations is not established, that is, the cancellation of a decision on citizenship can apparently occur at any time, even decades after its registration or adoption.
However, it makes sense to remind all law enforcers and «suspected» citizens of Article 5 of the 2002 law, according to which citizens of the Russian Federation are «persons who have citizenship of the Russian Federation as of the date this Federal Law comes into force».
And also about Article 42, which states that «documents issued in accordance with previously effective legislation on citizenship of the Russian Federation retain legal force if they are properly executed and are considered valid as of the date this Federal Law comes into force».
– What is the procedure for canceling a decision on citizenship? Is it possible to deprive someone of citizenship under our laws? And what is the difference between registration and acquisition of citizenship?
– The procedure for deprivation of citizenship is not provided by law; no state body has the right to do so. A citizen can renounce Russian citizenship voluntarily. The law provides for the possibility to cancel a decision on citizenship (this could be a decision on admission to citizenship or renunciation of it, a decision on recognition, or on existence of citizenship) «if it is established that this decision was made on the basis of forged documents or deliberately false information provided by the applicant» (this is a quote from Article 22 of the current law).
At the same time, the law clearly defines that «the fact of using forged documents or providing deliberately false information is established in court proceedings».
– So, is declaring someone a «non-citizen» without a court decision illegal?
– Yes. The decision or conclusion on canceling a decision on citizenship must cite a court decision (or verdict) that establishes the fact specified in Article 22 – use of forged documents or provision of false information about oneself.
Further. Registration and acquisition of citizenship are two different procedures. If, for example, a person has citizenship by birth, i.e., «by right of blood,» the FMS bodies are obliged to simply issue documents to them. And one should apply to the FMS bodies with an application not to be admitted to citizenship, but to register the existing one.
The old citizenship law (of 1991) provided that citizens of the former Soviet Union who permanently resided (note: not «registered,» but resided) in Russia as of February 6, 1992, are recognized as citizens of the Russian Federation (under Article 13, part 1). Also recognized as citizens of Russia were persons born on the territory of the RSFSR (Article 13, part 2), as well as their children, if at least one of the parents resided on the territory of the RSFSR at the date of their birth.
Here, by the way, the «permanent registration» that existed in the USSR may have positive (but not decisive!) significance, since childbirth could have occurred not at the place of permanent residence, but on the road, or while visiting relatives outside the territory of the RSFSR.
Moreover, children of Russians, regardless of their place of birth, are citizens of Russia by «right of blood» at the moment of birth. This provision was clarified by the Constitutional Court of the Russian Federation in its rulings No. 118-O of April 21, 2005 and No. 235-O of May 24, 2005, referring to the still valid Resolution of the Constitutional Court of the Russian Federation No. 12-P of May 16, 1995. Moreover, the citizenship of minor children depends on the citizenship of the parents and changes in accordance with the citizenship of the parents, but after the age of 14 – only with the consent of the children themselves, and upon reaching adulthood, it is lost or changed only by their own will.
If there are no grounds for recognizing the existence of citizenship, it can be acquired in a general or simplified procedure – depending on the circumstances – by application to the authorized body.
– Is a citizen obliged to prove the legality of obtaining or registering citizenship if he has had a passport of a citizen of the Russian Federation for many years?
– No, he is not obliged. He has the right, when applying to the FMS department, to receive a new passport within the established period, register children, obtain Russian citizenship for them, and so on. However, FMS departments, if they have grounds to doubt the validity of the passport (as a document) or the existence of citizenship, have the right to conduct appropriate checks. But these checks cannot be carried out in violation of the deadlines for processing documents and in violation of the relevant regulations.
If the FMS believes that during the registration (or acquisition) of citizenship there was a forgery or falsification of documents, then this must be proven in court before making a decision «on the absence of citizenship,» let alone «consider,» as inspectors of FMS departments write in their conclusions, that «the passport should be confiscated and destroyed».
– Let's finally figure out the «registration» and «residence» as of February 6, 1992. What was meant in the law?
– The law means precisely residence on the territory of the Russian Federation, and it can be confirmed in various ways. But let me remind you once again, we are not obliged to prove anything if we have a legally issued passport of a citizen of the Russian Federation. If a citizen has a passport of the Russian Federation, when it needs to be replaced or when registering citizenship for children, officials have no right to require establishing the fact of residence, let alone the right to confiscate the passport.
When applying many years ago for Russian citizenship by recognition (under part 1 of Article 13 of the 1991 Law "On Citizenship"), it was possible to submit, besides registration information, other evidence of residence – documents on employment, study, medical treatment, birth and upbringing of children in Russia (including school certificates) and so on. In the absence or insufficiency of documents, it was possible to establish the fact of permanent residence in court with the involvement of witnesses.
– In your opinion, is what is happening related to the imperfection of the laws or is it the arbitrariness of a particular agency?
– I have no doubt about the perfection of our law "On Citizenship" (both the old and the current one). The 1991 law states that a decision to grant citizenship can be revoked only within five years, but only if the person submitted forged documents or knowingly false information about themselves. At the same time, this revocation does not apply to the spouse and children who acquired citizenship together with him if they were not aware of the unlawful actions of the parents.
The current law specifies the same grounds for revocation, but the time limit for revocation is not directly indicated. However, there are Articles 5 and 42, which I mentioned above. But they are simply ignored, despite the fact that the norms of Article 22 of the law are also reflected in the subordinate act – the Regulation on the Procedure for Considering Citizenship Issues (paragraphs 51-55). But the FMS found a 'good' argument: 'since there was no decision on granting citizenship, there is nothing to revoke!'.
Yes, in the case of recognition under Article 13 and by birth (Articles 14 and 15), a decision on acquisition, or rather on admission to citizenship, was not required, because citizenship was simply formalized. There were also inspector errors and clerical mistakes: for example, in the insert, instead of Article 13, Article 18 was indicated (and that is an acquisition that indeed did not occur).
But, as I believe, and as indicated in one of the court decisions, the person authorized to issue a passport in the presence of citizenship by law made a corresponding decision, which can be revoked only under the circumstances specified in Article 22 (forgery, false information, and the citizen's fault). The citizen, after all, did not violate any laws, received the passport from the inspector's hands, and performed all the prescribed procedures.
Here we need to outline the background of the issue, perhaps unknown to the general public. In 2003, after an internal inspection by the Ministry of Internal Affairs of the RF, it 'suddenly' turned out that in some passport and visa services there was collusion between employees and 'intermediaries', abuse of official position, and issuance of Russian passports to foreign citizens, even those wanted. Several criminal cases were opened against employees of passport and visa services. And the seizure of passports from Russian citizens began by order of the then head of the Ministry of Internal Affairs of Russia, Boris Gryzlov, dated March 6, 2003, No. 1/1487. And after order No. 1/2074 of March 22, 2004, signed by Minister Rashid Nurgaliyev, it acquired the character of an 'epidemic'. Let me remind you that on the eve of the preparation of a new law on citizenship (2001-2002), in almost all passport and visa services, the corridors were filled with queues of people who arrived on the territory of the RF in the late 80s – early 90s with USSR passports, in order to have time to obtain citizenship under a simplified procedure – through registration.
But the processing of citizenship documents was 'slowed down' by officials allegedly in anticipation of the new law. Instead, through the 'back door', officials profited from citizens' ignorance of procedural matters. Near the passport desk of the district police department or directly on its premises, there were groups 'assisting foreign citizens'. They accelerated or bypassed the procedure, sometimes providing fictitious registration at a place of residence as of February 6, 1992 on the territory of the RF.
At the same time, almost all former citizens of the USSR had legal grounds to submit documents for acquiring citizenship in a simplified procedure under Article 18 of the then current law 'On Citizenship', or to formalize citizenship by birth, or by recognition – based on residence as of February 6, 1992 on the territory of the RF, and, of course, to acquire RF citizenship under the general procedure.
However, as a result, the campaign to check the official activities of bureaucrats turned against us, the citizens. Criminal cases against officials were usually closed due to the statute of limitations; some got off with a small fine or amnesty, that is, a mere scare. Many were simply retired due to age. But citizens with 'erroneously' issued passports began to be 'watched' through local police departments, banks, registration chambers, passports were confiscated 'on the spot', without the legally required procedure for stripping citizenship status, without even issuing any other identity document in exchange for the confiscated passport.
Read the continuation of the interview: Where were you on February 6, 1992?