Under Article 4 of the Constitution Ukraine has a single citizenship which is one of the principal foundations for building a sovereign and independent democratic state. Ukraine accepted the widespread position in the civilized world that citizenship is not simply a legal interrelationship of a person and the state, but an inalienable human right a state is bound to recognize and respect.

The Ukrainian Constitution and laws embraced the international legal standards on citizenship secured in such international instruments of a universal and specific nature as the United Nations Charter, Universal Declaration of Human Rights, International Covenant on Civil And Political Rights of December 16, 1996, International Convention on the Elimination of All Forms of Radical Discrimination of March 7, 1996, Convention on the Elimination of All Forms of Discrimination Against Women of December 18, 1979, Convention on the Rights of the Child of November 20, 1989 and the European Convention on Citizenship of November 7, 1997, Convention on Certain Questions relating to the Conflicts of Nationality Laws of 12 April 1930, Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality of 6 May1963, European Convention on Nationality of 6 November 1997.

The Ukrainian Constitution stipulates that exclusively Ukrainian laws determine the acquisition and termination of Ukrainian citizenship. This constitutional provision is exercised in accordance with the Law On Ukrainian Citizenship adopted on October 8, 1991.

On April 16, 1997 the Ukrainian Parliament adopted a new wording of this law in order to bring it into conformity with the Ukrainian Constitution, improve the mechanism of exercising the right to citizenship, and take into greater account the provisions of international legal instruments on citizenship and the practice of their application.

Under this law affiliation to Ukrainian citizenship follows from the “zero option,” by which persons are Ukrainian citizenship if they permanently resided in Ukraine at the time the law came into force, held no citizenship of other states, and did not object to acquiring Ukrainian citizens.

A number of problems of citizens arose when quite a few people remained without Ukrainian citizen after the disintegration of the Soviet Union. Since November 13, 1991 bodies of internal affairs recognized as Ukrainian citizens over 180,000 persons on the basis of their applications. However, the number of applications pending consideration is still substantial. In 1998, 46,000 persons were recognized as Ukrainian citizens and in 1999 the number was over 87,000 persons.

But the analysis of the petitions addressed to the Commissioner for Human Rights shows that violations of human rights do occur when questions of citizenship are settled. At times bodies of internal affairs assume a formal and unfriendly attitude when considering application by people who want to acquire Ukrainian citizenship. A case in point is the petition Mrs. O.Belik from Borodianka raion, Kyiv oblast, addressed to the Commissioner for Human Rights. Originally born in Ukraine, Mrs. Belik resided in Russia from 1988 to 1994, but did not hold Russian citizenship. Upon the intercession of the Commissioner the rights of the applicant were restored and the Chief Directorate of the Ministry of Internal Affairs (MIA) in Kyiv oblast accepted her documents for acquiring Ukrainian citizenship.

A typical violation of human rights by state bodies is when people are groundlessly compelled to seek confirmation of their citizenship. For example, the manager of the passport desk of Moskovsky district department of Kharkiv’s City Directorate of Internal Affairs, in response to the application by Mr. Y.Fedorov (Kharkiv), inferred on January 19, 1999 that the applicant was illegally issued a Ukrainian passport in 1996. For this reason Mr. Fedorov had to confirm his Ukrainian citizenship, and only after such confirmation the question of issuing him a residence permit could be settled. An inquiry of the Commissioner proved that following the declaration of Ukraine’s independence, the applicant served in the armed forces of Ukraine. The passport registration and migration department of the Ministry of Defense in Kharkiv oblast confirmed that Mr. Fedorov was a Ukrainian citizen and for this reason he was called up for military service. The refusal to be issued a residence permit deprived the applicant from receiving his pension, thereby violating his rights. Due to the efforts of the Commissioner the rights of Mr. Fedorov were restored.

The Commissioner for Human Rights received an appeal from the Bolshakovs, husband and wife, whose right to Ukrainian citizenship were infringed. Both natives of Ukraine, the Bolshakovs returned to their homeland from Murmansk oblast in the Russian Federation in 1991. The next year an entry was made in their passport on recognizing them as Ukrainian citizens. When they applied to have their passports exchanged in 1999, the employees of the passport migration service under the bodies of internal affairs annulled the 1992 entry on Ukrainian citizenship recognition and demanded that the spouses confirm their secession from Russian citizenship. Lacking the resources to pay for such documents, the Bolshakovs found themselves aliens in their homeland. The Commissioner’s investigation proved that the bodies of internal affairs violated in this case the requirements of the Ukrainian Constitution and the Law On Ukrainian Citizenship. In 1992 the Bolshakovs were legally recognized Ukrainian citizens. This recognition was formalized in accordance with the President’s Directive No.60 of April 18, 1992 by the bodies of internal affairs making an established entry in the passports of the spouses.

The annulment of affiliation to Ukrainian citizenship by decision of the passport body is a violation of the Ukrainian Constitution that prohibits deprivation of Ukrainian citizenship. If a person gained Ukrainian citizenship by submitting false information or forged documents, the bodies of internal affairs, as the Law On Ukrainian Citizenship prescribes, may not decide on this question independently, but must file a petition for the consideration of the President on the loss of Ukrainian citizenship by such persons. In this and in many other similar cases the bodies of internal affairs infringed the constitutional rights of citizens.

Mrs. V.Koval from Balta, Odessa oblast, cited a similar experience in her letter to the Commissioner. In 1992 her son and his wife (both of them born in Ukraine) returned with their child to Balta from the Russian Federation. Although an entry “Ukrainian citizen” was made in their passports at that time, it was demanded of them seven years later that they prove their Ukrainian citizenship.

Mrs. H.Samoiuk from Rivne oblast had a “Ukrainian citizen” entry in her passport since 1992. Eventually, as a citizen of this country, she was issued a foreign passport for travel abroad. For all that, employees of the passport department in the oblast, in violation of the requirements of operative legislation, demanded that she submit a document from the embassy of a foreign state to confirm that she did not hold citizenship of that state. The Commissioner was informed about similar irregularities in the letters from V.Boyeva (Kyiv oblast), O.Teheza (Sumy oblast), T.Kolomiychuk (Ivano- Frankivsk oblast), L.Dvlatova (Kirovograd), I.Brodetsky (Kherson) and from many others.

In the actions of individual employees of the passport department in Poltava oblast the Commissioner for Human Rights revealed gross violations of the procedure for recognizing affiliation to Ukrainian citizenship and its termination. In 1999 they annulled “Ukrainian citizen” entries of seven years ago in the passports of persons who as Ukrainian citizens resided in the country all these years, took part in elections, worked as civil servants, and were issued certificates for privatizing their apartments and land plots.

After summarizing all these facts, the Commissioner for Human Rights addressed a letter to the Ministry of Internal Affairs with the proposal to promptly take exhaustive measures on restoring the rights of citizens who in 1992 and 1993 were granted Ukrainian citizenship in compliance with the above-mentioned directive of the President. The rights of these citizens were eventually restored.

The Commissioner for Human Rights has also been receiving many petitions concerning the application of simplified procedure for seceding from foreign citizenship. According to the Law On Ukrainian Citizenship, a person who was born in Ukraine, returned to his homeland, and wants to be granted citizenship has the right to do so by recognition of affiliation to Ukrainian citizenship through bodies of internal affairs. Along with an application on recognition of affiliation, the person must also submit a document on the absence or termination of citizenship of another country. Secession from foreign citizenship must be confirmed by a document on the absence of termination of citizenship of another country issued by an authorized body or a notarized declaration on the absence of or secession from foreign citizenship.

As the petitions addressed to the Commissioner for Human Rights show, the absence of documents confirming secession from foreign citizenship is among the essential obstacles in the way of settling the problem of naturalization and recognition of affiliation to Ukrainian citizenship. A document confirming the absence or secession from foreign citizenship is issued only by competent bodies of a state whose citizen is the applicant in conformity with the laws of that state. In Ukraine the issuance of such a document is within the exclusive competence of diplomatic missions of foreign states.

Under existing procedure the embassy of a country whose citizen applies for secession from its citizenship charges a consular fee that with different embassies ranges from US $5 to US $200. For example, the diplomatic missions of Russia charge US $85 and of Moldova US $203. For persons with a low income such a document becomes unaffordable. The resultant dissatisfaction makes people address petitions to the Ukrainian President, the Commissioner for Human Rights, MPs and the mass media to help them gain citizenship without such a document.

Article 34 of the Law On Ukrainian Citizenship provides for the possibility of confirming secession from foreign citizenship by submitting a notarized declaration. However, the 1998 Instruction of the Ministry of Internal Affairs On the Procedure for Accepting, Considering and Processing of Petitions, Applications and Other Documents on Issues of Ukrainian Citizenship at the Bodies of Internal Affairs of Ukraine practically deprived citizens of the opportunity to secede from foreign citizenship by means of submitting a declaration to this effect. The procedure devised by the ministerial instruction does recognize such a declaration and for this reason it becomes unacceptable to the majority of applicants who lack the resources to pay for the document on secession. This fact was confirmed by citizens’ petitions that the Commissioner for Human Rights has been receiving these past few years.

The Procedure for Accepting, Considering and Processing of Applications, Petitions, and Other Documents on Issues of Ukrainian Citizenship at the Ministry of Foreign Affairs of Ukraine, Diplomatic Missions and Consular Offices of Ukraine Abroad approved by the Ministry of Foreign Affairs in 1998 also lacks a list of definite circumstances recognized as valid reasons for rejecting declarations on secession from foreign citizenship.

Apart from the Law On Ukrainian Citizenship, provisions on citizenship are also incorporated in the laws On Legal Succession of Ukraine of 1991, On Refugees of 1993, On the Legal Status of Foreigners of 1994 and in other standard acts, specifically in Presidential Edicts, Cabinet of Ministers resolutions and other acts of the executive.

The manner the issues on citizenship are regulated in these acts is not in complete accord with Article 4 and Item 2, Article 92 of the Ukrainian Constitution, since exclusively Ukrainian laws can govern these issues. For instance, in the Presidential Edict On the Citizenship and Registration of Natural Persons Service the powers of the latter, referred to the competence of the Ministry of Internal Affairs under the law on citizenship, were delegated to the Ministry of Justice in compliance with Ukraine’s obligations to the Council of Europe. This should have been done in keeping with the Constitution by introducing respective amendments to the Law On Ukrainian Citizenship. Besides, the said Presidential Edict has not been enforced to this day.

Notably, all citizens, irrespective of the grounds and procedure of naturalization, have equal constitutional rights and freedoms and are equal before the law. This important provision of the Law On Ukrainian Citizenship relative to equality of citizenship is consistent with the standards of international law. In particular, the European Convention on Citizenship declares that each state-signatory shall be guided by the principle of non-discrimination of its citizens regardless of them being citizens by birth or having gained citizenship on other grounds. Precisely this principle was adopted as the underlying foundation of Ukraine’s national legislation. This requirement is also topical in connection with the naturalization of deported persons.

Since April 1997 the procedure for deportees gaining Ukrainian citizenship has been fundamentally simplified. In consequence 70,126 deportees were granted Ukrainian citizenship in 1999 alone. Due to the coordinated efforts of the Ukrainian government and international agencies, specifically the office of the UN High Commissioner for Refugees, the problem of repatriates was settled by June 1999 and they received the opportunity to become naturalized. The simplified procedure of naturalization has made it possible to deal with the obstacles that existed in the deportees’ exercise of their civic, political, economic, social and cultural rights.

In September 1998 an agreement was reached between Ukraine and the Republic of Uzbekistan on cooperation in settling the problem of citizenship of deportees and their descendants. Under the agreement they were exempted from paying statutory fees and customs duties for confirming the fact of affiliation to citizenship of the Republic of Uzbekistan. The materialization of the agreement’s basic principles will make it possible for the repatriates (over 70% from among the earlier deported who returned from Uzbekistan and reside in the Autonomous Republic of Crimea) to become naturalized in the immediate future. In the period from 1991 to 1998, 8,585 persons confirmed their affiliation to Ukrainian citizenship, and 18,000 cases of secession from Uzbek citizenship and granting Ukrainian citizenship are under consideration to date.

The following figures speak of the acuteness and topicality of the issues related to citizenship: in 1998 the Ukrainian President allowed 1,105 appeals for naturalization and 1,205 appeals for secession from Ukrainian citizenship; in 1997 Ukrainian citizenship was granted to 1,734 persons and terminated for 928 persons.

An essential guarantee of the right to citizenship and its state protection is the requirement of Article 25 of the Constitution stipulating that a Ukrainian citizen shall not be deprived of citizenship and of the right to change citizenship. This provision is basically consistent with Article 15 of the Universal Declaration of Human Rights. Its purpose is to render impossible any repressive or other actions of bodies of state authority in infringing on human rights related to citizenship.

The Commissioner for Human Rights follows from the principle that Ukrainian citizens shall not be expelled from Ukraine or surrendered to another state, as secured in the Ukrainian Constitution. This provision is also provided for in Article 9 of the Law On Ukrainian Citizenship. The prohibition of expulsion of Ukrainian citizens beyond the borders of their state completely accords with the requirements of Article 3 of Protocol No.4 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, under which “no one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.” This provision is closely bound with the requirement of Article 33 of the Ukrainian Constitution: “A citizen may not be deprived of the right to return to Ukraine at any time.”

It is important that the bodies of the executive have in place an elaborately devised procedure for considering applications on citizenship issues. The Commissioner is receiving quite a few petitions with justified complaints about delays in the consideration of such cases.

Freedom of movement. According to Article 33 of the Constitution, everyone who is legally present on the territory of Ukraine is guaranteed freedom of movement, free choice of place of residence, and the right to freely leave the territory of Ukraine, with the exception of restrictions established by law. A Ukrainian citizen may not be deprived of the right to return to Ukraine at any time.

Since the right to freedom of movement is an essential element of human and civil rights as well as a condition for professional and cultural development, a respective policy is pursued in Ukraine to ensure the development of this freedom. Its legislative regulation promotes the maintenance of monitoring of migration processes (see Table 4.8).

According to the International Covenant on Civil and Political Rights and Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, the exercise of the right to freedom of movement, free choice of residence within the territory of any state and the right to leave any state, including one’s own, shall not be subject to any restrictions other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, prevention of crime, protection of health or morals, or for protection of the rights and freedoms of others. Under Article 64 of the Constitution and the Law On a State of Emergency of June 26, 1999 liberty of movement shall be restricted only under conditions of martial law and only on the territory in which the emergency has been introduced.

Table 4.8. Inter-state migration of Ukraine’s population in 1991-1995 (persons)

The Law On the Legal Status of Foreigners of February 4, 1994 justifies restrictions of liberty of movement and choice of residence by foreigners in cases as are necessary for Ukraine’s safety, protection of health and public order, protection of the rights and legitimate interests of the citizens and other persons residing in this country. Relative to these issues the said law is consistent with international legal standards. But at the same time a practice is still retained in Ukraine when issues of liberty of movement are regulated by bylaws of the President and the Cabinet of Ministers. This is true, for one, as regards the Presidential Directive “On Measures to Ensure Law and Order and Normalize the Sanitary Situation in the City of Kyiv” of October 28, 1993 as amended by Presidential Edict of January 27, 1999 by which the city state administration, by agreement with respective central bodies of the executive, is charged with taking measures to regulate migration by setting limits to residence permits and establishing procedures for issuing residence permits and registering persons arriving in Kyiv; Presidential Edict On the Special Economic Zone of Transcarpathia of December 9, 1999, which clashes with Item 2, Article 92 of the Constitution by empowering the Cabinet of Ministers to establish a special procedure for crossing the Ukrainian border by foreigners and stateless persons heading for the special economic zone as well as a special procedure of entry into the special economic zone and exit from it by Ukrainian citizens, foreigners and stateless person; and the Cabinet of Ministers Resolution On the Border Regime of July 27, 1998 that approves the Regulation on the Border Regime governing the rules of entry, temporary stay and movement in the border zones by Ukrainian citizens and other persons.

According to the Law On Refugees, persons who gained refugee status are granted the right to choose their temporary place of residence out of the list of inhabited localities offered them by the migration service and the permission of movement throughout Ukraine on condition of compliance with the rules established for foreigners.

As mentioned earlier, bylaws and ministerial standard acts are the basic documents that restrict free choice of place of residence and liberty of movement in the country by its citizens and other persons. This is true above all as regards residence permits as one of the aspects of the system of internal passports. The constitutionally recognized right to liberty of movement and free choice of place of residence is in practice limited by the state by means of establishing permission for residence (permanent or temporary permits).

In itself the system of residence permits does not necessarily restrict the choice of place of residence. Bodies of the executive are empowered by law only to register the result of a person’s free choice of place of residence. The Commissioner for Human Rights emphasizes that the availability or absence of a residence permit may not be the reason for the restriction or a condition for the exercise of other rights and freedoms. Therefore, registration may not be of a permissive nature and serve as the reason for restricting the right to choice of place of residence. In contradiction to Article 57 and Article 117 of the Constitution the acts of the Ministry of Internal Affairs governing the system of residence permits have neither been registered nor published to this day, thereby generating difficulties in appealing to a court of law against the decisions, actions or administrative dereliction of bodies of state authority, bodies of self-government, officials and officers. In order to consider a case in a court of law, there must be a valid reason for a lawsuit and a definition of criteria to render a judgment on the plea. The lack of definite evidence included (standard acts not made public) makes it impossible for a court of law to render a substantiated judgment. In consequence, the right to compensation for inflicted damages, as provided for by Article 56 of the Constitution, is violated, since the natural person is unable to prove in a court session that a decision of bodies of internal affairs, specifically relative to a residence permit, was unlawful.

Small wonder the Commissioner for Human Rights has been receiving numerous complaints about officials delaying the issuance of residence permits to citizens. Thus, Mr. S.Malovichko from Kherson oblast complained about the red tape involving a residence permit for his brother who is a citizen of the Russian Federation. With the assistance of the Commissioner this problem was settled positively. Mr. D.Yurchenko was given exhaustive advice on the formalities he must go through to receive a residence permit in Kyiv.

Apart from the aforementioned, the Commissioner believes that the practice of issuing residence permits entails a number of violations of constitutional civil and human rights. For instance, a residence permit grants access to certain rights and privileges (e.g. social security, health care, specific social welfare benefits) on the basis of choice of residence and for this reason it is undoubtedly discriminatory. Also, there is no area of Ukrainian law, in which the practical execution and the application of its provisions are not bound up with a residence permit (civil law relations, administrative law relations, judicature, electoral right, etc.). Therefore, the current practice of residence permits actually plays a greater role for a citizen’s legal personality than his/her citizenship, because it provides the opportunity to receive necessary information for registering the movement of people, keeping track of their addresses, and confirming their domicile in the country.

In some cases bodies of the Ministry of Internal Affairs put up artificial barriers to the freedom of movement. The Commissioner received a letter from Mrs. K (Vinnytsia oblast), who complained that she was denied a Ukrainian passport to leave for permanent residence in Belarus. The bodies of the MIA kept postponing the consideration of her application and demanded that she, a grown-up woman, submit for travel abroad the consent of her father who had left his family a long time ago and whose whereabouts were unknown. The problem was settled positively only after the intervention of the Commissioner for Human Rights.

Also, the Commissioner received a petition from Mrs. T.Sypliak from Ivano-Frankivsk oblast who complained that the employees of the state road traffic inspectorate demanded for no valid reason that she surrender the number plate of her car, since, as they argued, she was leaving Ivano-Frankivsk for domicile in Kalush in the same oblast. To support their point, the SRTI referred to Item 45 of the “Rules of State Registration and Recording of Cars” approved by Cabinet of Ministers Resolution No.873 of October 21, 1993. Under the Rules every car owner leaving the oblast for residence elsewhere must surrender the number plate when the vehicle is struck off the oblast registration list.

As Y.Dagayeav, Chief of the Ukrainian SRTI under the MIA, informed, the current practice that went against the grain of standard acts has been done away with.

The Ukrainian Parliament took a constructive step by adopting amendments to the Code of Labor Laws concerning the requirement of a residence permit for concluding a labor contract. To bring national legislation into conformity with Article 2 of Protocol 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Law of June 29, 1997 introduced amendments to Article 200 of the Code of Administrative Offenses. Under the new contractual stipulation of employment administrative liability for employment without a residence permit has been done away with. However, the legal rules of Article 199 of the said Code have been retained to this day and stipulate administrative liability for residence without a permit.