war crimes in Ukraine

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The Saakashvili case: politicians kill the law (updated)

Yevgeniy Zakharov
A great deal has been said by many about the stripping of Mikheil Saakashvi’s Ukrainian citizenship by the decree of President Petro Poroshenko on July 25 and his scandal-filled return to Ukraine on September 10. Nonetheless, I would like to draw attention to certain details which have not been discussed and which seem important.

A great deal has been said by many about the stripping of Mikheil Saakashvi’s Ukrainian citizenship by the decree of President Petro Poroshenko on July 25 and his scandal-filled return to Ukraine on September 10.  Nonetheless, I would like to draw attention to certain details which have not been discussed and which seem important.

The norm in Article 25 § 1  of Ukraine’s Constitution which states that “A citizen of Ukraine shall not be deprived of citizenship and of the right to change citizenship” means that both taking on Ukrainian citizenship and renouncing Ukrainian citizenship is a matter of choice and the individual’s own initiative. No other interpretation of this norm is surely acceptable from the point of view of rule of law and its constitutional principles.  The norm in Article 106 § 26 of the Constitution on the powers of the President – that he or she “adopts decisions on the acceptance for citizenship of Ukraine and the termination of citizenship of Ukraine, and on the granting of asylum in Ukraine” means that the President as guarantor of human rights and freedoms is obliged to support an individual in obtaining citizenship or renouncing it, no more. Arbitrary stripping of citizenship against the individual’s will is in most cases an infringement of Ukraine’s Constitution.

Furthermore, it is well-known that Saakashvili had only one citizenship – Ukrainian. Yet Article 19 of the Law on Citizenship directly prohibits any deprivation of citizenship in cases where such an action will turn the person into a stateless person.  For this reason the adoption of the decree, I am convinced, demonstrates political arbitrary will, a deliberate infringement by the President of the country’s Constitution and relevant Law on Citizenship (in its 2001 version) in the use of his powers. One can with full justification expect that if the European Court of Human Rights reviews this situation, it will qualify the actions of the Ukrainian state as inhuman treatment in the sense of Article 3 of the 1950 European Convention.

In a word, the stripping of Saakashvili’s citizenship is a flagrant breach of human rights, “loss of political favour” and typical political persecution. However, galling it is to say this, bur from the moral style and ethical outline, it is very reminiscent of political persecution in the USSR when human rights activists were stripped of their citizenship while outside the country – such as Petro Grigorenko; Lev Kopelev; Raisa Orlova, Yukhim Etkind and others.

And how can one not recall that stripping a person of their citizenship as a form of criminal-political repression was officially recognized in the USSR virtually up till the end of the 1960s (see, for example, the relevant articles of the Fundamental Principles of Criminal Legislation of the USSR and allied republics of 1924). However our democratic state should move fully away from such typical rudiments and prejudices of the Soviet past, and not follow them, even unconsciously!

Where next? Saakashvili says that he will fight for the return of his citizenship. What are his prospects.  I imagine for the moment that he has none. As for the indirect consequences, these could be quite paradoxical.

If what Ukrainian and foreign media are saying is right, then he was stripped of his citizenship because he didn’t mention in the relevant documents that there were criminal charges against him in Georgia.  That is, he supposedly consciously gave incorrect information about himself. Saakashvili himself asserts that even the signature under that document is not his.

In short, the reason given for stripping him of his Ukrainian citizenship seems absurd – it would seem that absolutely everybody then knew that criminal proceedings had been initiated against Saakashvili in Georgia, and viewed that as political persecution by his opponents who had won. And now they’ve woken up and claim that he deliberately gave false information!  This obvious hypocrisy by the Ukrainian official establishment is outrageous! Furthermore, if Saakashvili did not sign the forms envisaged by legislation, i.e. did not fill out the correct documents, then how should we now think about the quality of the work of the State Migration Service and Commission on Citizenship Issues under the President which bear full responsibility for the quality of the preparatory procedures?  The question is, of course, rhetorical.

However it is precisely because the documents for receiving citizenship were not put together properly that an administrative court will not be able to cancel the President’s decree and reinstate Saakashvili’s Ukrainian citizenship, because it was presented unlawfully.  Thus, one unlawful action leads another unlawful action, then that to yet another one, with a chain of unlawful situations dragging the situation into a dead end, all ways out of which seem unlawful.

On September 10 Saakashvili’s supporters burst through the Shehyny checkpoint on the Ukrainian-Polish border and formed a corridor to lead Saakashvili onto Ukrainian territory.  The border guards and police had received orders not to apply force.  This was preceded by Saakashvili’s attempt to cross the border on the Przemyśl – Kyiv Intercity train. However, its departure was delayed by several hours with Ukrainian railways later explaining that there was a person onboard who had no grounds for entering Ukraine.

Saakashvili ended up in Ukraine, having illegally crossed the border.  A court issued a ruling ordering him to pay a fine of 3,400 UAH.  The politician has said that he will appeal against that ruling.  He also asserted that the border guards had stolen his Ukrainian passport when he was crossing the border, although they were obliged to remove the passport as invalid.

In my opinion, Saakashvili’s hopes of reinstating his citizenship though the court are minimal and it is natural to expect that he will turn to international bodies.  What are his chances of getting his citizenship reinstated within the context of international law?

At first glance he has reasonable prospects.  The decree stripping him of his citizenship was clearly politically motivated.  It violated the Constitution and Law on Citizenship, turning Saakashvili into a stateless person. International law views the stripping of citizenship as an exception from the general rule that nobody should be deprived of their citizenship.  [Such cases] should have a legitimate foundation, based on the law, and be commensurate with this aim.  Receiving citizenship through deceit, conscious presentation of false information or false documents constitutes such grounds.  However the ignoring of criminal proceedings initiated against Saakashvili in Georgia when he was handed citizenship and reference to that as the grounds for stripping him of his citizenship because he had concealed information about those proceedings are a serious argument against the proportionality of those actions. Furthermore, the political motives for stripping him of citizenship also a priori work against proportionality. For the same reasons it is difficult, without loss of face, to justify the need for Saakashvili’s extradition to Georgia in response to a new request from the Georgian Prosecutor General.

At the same time we do not know whether Georgia has provided new and previously unknown information about the criminal cases against Saakashvili.  One should not therefore draw precipitous conclusions and await an explanation justifying the proportionality of the deprivation of his citizenship from state lawyers, with this taking into consideration the seriousness of the crimes with which he is charged.

Thus President Poroshenko has with his own hands artificially created a situation where a half-forgotten and disgraced Georgian politician has gained political weight in Ukraine and is now an active political player, fighting for power and harshly criticizing the President. Poroshenko has created a trap, set it up and fallen into it with a flourish.

This is the problem with our politicians and here Poroshenko and Saakashvili are similar like twins. They are governed by political expediency and ignore the law as soon as it prevents them from acting the way they want. It seemed that if Saakashvili was our friend and ally, that we can make him the head of a regional administration.  For that we quickly organize his citizenship although there are some kind of formal bans on that. Having turned into an opponent and begun to get in the way, let’s recall those same bans and strip him of his citizenship, although the Constitution and legislation clearly prohibit doing anything of the sort.

Only all new historical experience shows that a political regime which violates human rights ever more and more is doomed to a sad and ignominious fiasco. I would therefore sincerely wish for Petro Poroshenko that he does not meet the fate of his political brother – Mikheil Saakashvili. And the prerequisite for this is the duty to in deed, and not just in words, respect and observe human rights in accordance with the principles of the Constitution and law as a whole.



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