Since 2014, a portion of Ukrainian territory has been occupied by the Russian Federation. As a result of the escalation of Russian invasion in 2022, the seized territory now encompasses the majority of the Zaporizhzhia and Kherson regions, as well as the regional capital, the city of Kherson. In its efforts to “legitimize” the unlawful occupation of a sovereign country’s territory, the occupying state actively imposes its “citizenship” on the population of the occupied areas, as our Association has frequently documented [1]; [2]; [3].

The goal of the occupiers is obviously to demonstrate the alleged “support” of the occupation by the population and “justify” it with the fake “protection of compatriots”. It is no less obvious that Ukraine must fight against “passport expansion”. At the same time, one should not forget about the state’s duty to contribute to the protection of its citizens in the occupied territories.

In the light of this, the position of the Ukraine’s Minister of Reintegration of Temporarily Occupied Territories Iryna Verschuk stated that “obtaining a passport of the occupiers…is a crime against our state…Basically, any receipt by the Ukrainian citizen (regardless of the motives) of the passport of the aggressor state should be considered a crime” [4].

Later, her Deputy Minister, Anatoly Stelmakh, clarified that the ministry is only discussing the criminalization of a few cases, including the issuance of “passports” to public officials, the promotion of “passporting”, and the creation of conditions for forced “passporting” [5].

Such statements have already caused criticism from the human rights community, which in turn stated that allegedly “Ukrainians who are under occupation and are forced to receive Russian passports are not criminals, but victims of crime” [6]. Human rights activists have already pointed out that Ukraine a priori does not recognize the legal activity of any authorities that may be created by the aggressor in the occupied territory, and the “voluntariness” of Ukrainian citizens obtaining Russian “passports” is, to say the least, questionable. As Oleksandra Matviychuk, the president of the board of the Center for Civil Liberties, pointed out, acquiring a Russian “passport” in the occupied regions is often a matter of survival, not an ideological viewpoint [5].

Nelly Yakovleva, the deputy head of the Committee of the Verkhovna Rada of Ukraine on Human Rights, Deoccupation and Reintegration of the Temporarily Occupied Territories, appealed for moderation, in her opinion, the existing rules of the legislation are sufficient. She feels that persons who get a Russian “passport” should be handled with understanding, and hence it is too early to penalize the receipt of such a “passport” [5].

This essay of our Association’s expert Oleksii Plotnikov will consider the discussion on the criminality of obtaining the Russian “passport” from the legal point of view.

According to Association’s expert, Boris Babin, “if we criminalize something or establish a mechanism, it must operate in some general legal field, and here the general issue of the legal regime arises” [5]. The Ukrainian legal regime is based on the rule of law. The fundamental principle of criminal law is nulla poena sine lege – there is no punishment without the law. In other words, if an act is not defined as punishable under the current criminal code, it cannot be considered a crime. Citizens of Ukraine, who acquire the citizenship of another state, or more specifically a passport from the occupying state, are not subject to special punishments under the current Ukrainian Criminal Code.

The existing legislation on Ukrainian citizenship likewise does not contain applicable prohibitions [7]. According to Article 25 of the Constitution of Ukraine, no one can be deprived of citizenship and the ability to change citizenship [8]. This circumstance has regularly sparked criticism. For example, in December 2021, the President of Ukraine suggested to limit the opportunities of foreign nationals to serve in official bodies and courts [9]. However, now the situation is as it is, and the acquisition of foreign citizenship is not a crime in itself.

Then, would it be illegal to acquire the citizenship of the aggressor state? This composition of a criminal offense is not present in the current Ukrainian Criminal Code. Obtaining a Russian “passport” can be interpreted as evidence of certain existing crimes, such as high treason.

According to Article 111 of the Criminal Code, high treason is an act willfully committed by a citizen of Ukraine in the detriment of sovereignty, territorial integrity and inviolability, defense capability, and state, economic or information security of Ukraine: joining the enemy at the time of martial law or armed conflict, espionage, assistance in subversive activities against Ukraine provided to a foreign state, a foreign organization or their representatives.

It is clear that obtaining the passport of the aggressor state is not equivalent to espionage, because according to Article 114 of the Criminal Code, espionage consists in the transfer or collection for the purpose of transfer to a foreign state, a foreign organization or their representatives, information that constitutes a state secret, if these actions are committed by a foreigner, or a stateless person, not a citizen of Ukraine.

Would obtaining a “passport” from the aggressor state constitute a switch to the opposing side? This appears to involve significantly more effort than merely obtaining a “document”. The scientific literature describes instances such as joining the adversary’s military and other formations, assisting agents of an enemy state, and establishing contact with the enemy to undermine Ukraine’s interests [10]. Similar viewpoints may be found in court practice [11]; [12], which is aware of several incidents of Ukrainian nationals serving in the armed forces or aggressor-controlled armed formations, but is unaware of any cases of treason in the form of earning citizenship of the aggressor state.

Obtaining a passport of a foreign state can also be considered in the light of collaboration activities, a criminal offense that appeared in Ukrainian legislation in March 2022 [13]. However, specific manifestations of collaboration are defined quite clearly and there is nothing related to citizenship among them. Collaborative activity can take the form of denying aggression, calling for cooperation with the aggressor, voluntarily occupying certain positions in government bodies formed by the aggressor state, carrying out propaganda in educational institutions, transferring material resources to the enemy and conducting economic activities in their interests, conducting political or information activities in the interests of aggressor state All these actions demonstrate not just passive acceptance of the occupation and its “realities”, but rather active support.

The absence of criminal proceedings and sentences against Ukrainian citizens with a Russian passport in the Autonomous Republic of Crimea and Sevastopol, as well as in the occupied areas of Donetsk and Luhansk regions speaks in favor of the fact that acquiring citizenship of an aggressor state was not determined as a crime by Ukrainian authorities. In 2020 alone, more than 400 thousand citizens of Ukraine received “documents” with a double-headed eagle, and it can be reasonably presumed that most of them are residents of the occupied territories [14]. The criminal prosecution of all these persons, as well as hundreds of thousands who became Russian citizens earlier, evidentially exceeds the capabilities of the Ukrainian law enforcement and judicial systems.

The longer the occupation lasts, the more citizens are compelled to interact with the occupying authorities in some capacity. Here we should mention the position of the former head of the Ukraine’s responsible Ministry Vadim Chernysh: “We are aware that many people in Crimea are forced to obtain a Russian “passport” in order to survive” [15].

Indeed, it is necessary to fight not with those who remained in the occupied territory, but with the very situation of occupation. The occupation led to discrimination and a direct threat to the health and life of citizens perceived by the occupying state as disloyal. For example, Yury Sobolevsky, First Deputy Chairman of the Kherson Regional Council, reports that “Russian passports are being imposed wherever possible. Up to the point that they require the relatives of the detainees to write appropriate statements “in exchange” for their freedom. All this is accompanied by the most powerful propaganda indoctrination of the population” [16].

The “payment” for disloyalty to the occupiers can be forced removal to Russia, some times – via occupied Crimea [17]. Therefore, in a situation of war and occupation, Ukrainian citizens who receive a Russian “passport” really look more like not criminals, but like victims of a crime.

Recall that Article 45 of the Hague Convention on the Laws and Customs of War on Land forbids to compel the inhabitants of occupied territory to swear allegiance to the hostile Power [18]. Article 47 of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 1949 prohibits depriving persons in occupied territories of their rights and conventional protection in connection with the occupation [19]. These provisions are violated by the Russian Federation as a state.

The Rome Statute of the International Criminal Court does not directly criminalize the imposition of the nationality of an occupying state as an international crime. At the same time, it contains a description of a whole series of crimes resulting from actions similar to those committed by the Russian occupation authorities. This may include such severe violations as torture, deprivation of property.

Further, mere suspicion of disloyalty casted by reluctance to take a Russian “passport” may result in other international crimes like deprivation of the right to fair trial, unlawful deportation, transfer or confinement, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party, outrages upon personal dignity, in particular humiliating and degrading treatment. There may be other types of crimes, the victims of which will be Ukrainians in the occupied territories.

The International Criminal Court is already considering the Ukrainian situation, in particular, regarding the commission of crimes against the population of the occupied territories. Law enforcement and judicial authorities of Ukraine are actively investigating such crimes. Therefore, the efforts of the state should be directed primarily to the persecution of those citizens of the aggressor state who are responsible for the occupation, support the occupation regime and exert unlawful pressure on Ukrainian citizens.

Of course, this does not exclude the persecution of real collaborators. However, we note that here, too, one should not equate mechanically an officer or civil servant who took an oath and betrayed Ukraine with simple citizen who are forced to cooperate with the occupier for reasons of survival. The degree of collaboration may vary, and the size of the inevitable criminal liability for it should be proportional to the certain specific circumstances.

In conclusion, we would like to quote the Regulations on the Ministry for the Reintegration of the Temporarily Occupied Territories of Ukraine, according to which the main task of this body is reintegration. It is understood as “ensuring the formation and implementation of state policy on the issues of the temporarily occupied territory and the protection of the rights of the population, the ultimate goal of which is their reintegration into a single legal, informational, socio-economic, cultural, educational space of Ukraine” [20].

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