Usmanov v. Russia: a confusing turn in the right direction?

By Louise Reyntjens (Leuven Centre for Public Law, KULeuven)

On the 22^nd of December 2020, the Strasbourg Court delivered its latest judgment in its case law on citizenship deprivation, a sensitive issue the Court is increasingly confronted with. Ever since the “European war on terror” has been declared, governments have rediscovered citizenship deprivation as a counterterrorism measure; a most cunning tool to shape national societies and exclude the “unwanted”, i.e. (convicted/suspected) terrorists. Over the past couple of years, those cases have started to find their way to the Strasbourg Court, with many fundamental rights questions surrounding them. Most of the judgments delivered on this particular issue were rather disappointing and failed to offer much protection to the individual(s) involved. The judgment of Usmanov v. Russia on the other hand, is indicative of a careful turnaround in this regard. It does however also cause some confusion in how the Court handles cases of deprivation, warranting further clarification (perhaps ideally by the Grand Chamber?).

The judgment – a brief overview

In the December case of Usmanov v. Russia, the Court was faced with an applicant who saw his Russian citizenship annulled, ten years after he had settled in Russia with his family and had obtained citizenship there. As a consequence of his citizenship loss, his identity documents were annulled as well, leaving him exposed to various difficulties. Russian citizens had to prove their identity unusually often, e.g. when carrying out everyday tasks, such as buying train tickets, but also when trying to provide in their more crucial needs, such as finding employment or receiving medical care. Failure to possess a valid identity document was also punishable by a fine. Perhaps the most significant consequence was the fact that the annulment of the applicant’s citizenship had been a precondition for his removal from Russia and the imposition of an entry ban. Because of the far-reaching consequences following from the Russian government’s annulment decision, the Court firstly found that the annulment had interfered with the applicant’s private and family life, as guaranteed by Article 8 of the Convention.

In a second step, the Court went on to consider whether that interference also actually constituted a violation of the Convention. To assess this, “the Court had to examine the lawfulness of the impugned measure, accompanying procedural guarantees and the manner in which the domestic authorities had acted.” (§65)In other words, it had to examine whether the Russian authorities’ decision had been taken in an arbitrary manner. The annulment had a legal basis in domestic legislation, the Court found. However, the Court was not satisfied that this legal basis was sufficiently clear, nor by the procedural safeguards accompanying the measure. It therefore found that the revocation decision had indeed violated Article 8 of the Convention.

The judgment of Usmanov v. Russia constitutes an important development in the Court’s case law on citizenship deprivation. Not because of its facts, as these are rather typical in deprivation cases, but because of two specific elements. First, in Usmanov, we witness a shift in approach in how the Court came to reach its conclusion that Article 8 had been violated. Second, unlike previous judgments on citizenship deprivation, the Usmanov Court for the first time demonstrated a “holistic” understanding of “citizenship”, by including in its evaluation under Article 8 the various practical and legal consequences the applicant suffered from being stripped of his citizenship.

From confusion concerning a “consequence-based” approach…

Before diving into the first element, the Court’s shift in approach, it is necessary to briefly sketch the framework in which the Court operated pre-Usmanov.  Although the Court’s majority seems to be of the opinion that its judgement is following pre-established principles (see §53 of the judgment), a shift is nonetheless noticeable. This shift was in fact also pointed out by judges Lemmens and Ravarani in their separate opinions to the judgement. In the Court’s previous case law on citizenship deprivation, with Ramadan v. Malta as the representative case, the Court always applied a “two-step” test to evaluate whether or not a deprivation decision had violated Article 8. To do so, it considered i) the consequences of the decision and ii) whether that decision had been taken in an arbitrary manner. In Usmanov on the other hand, that first element, the examination of the consequences, was pushed to a different stage. It has become the test, not for the Court’s examination of a violation of the Convention, but for the preceding question, whether the government’s decision had amounted to an interference with Article 8. If the Court decides that Article 8 has indeed been interfered with based on the consequences of the revocation, only then does it consider whether that decision had been arbitrary to rule on its compatibility with the Convention.

In their separate opinion in the Usmanov judgments, judges Lemmens and Ravarani rightly notedthat the existence of various approaches to the question howthe Court evaluates decisions on citizenship deprivation under Article 8 is a source of legal uncertainty. “In a sensitive area of growing importance”, such as that of citizenship deprivation, “there is a need for a more coherent approach, in line with the generally applicable principles relating to Article 8”, according to these judges (§9 of the separate opinion). To remedy the uncertainty, they suggest the following approach. “The first question is whether Article 8 of the Convention is applicable” (§10), for which they agree with the majority’s “consequence-based” approach. The judges fail to notice or point out, however, the difference between the question regarding  applicability of the Convention and the question regarding an interference, the former preceding the latter. Leaving this aside for the purposes of this post, the two judges subsequently went on to argue that, to decide whether that interference had also violated the Convention, the Court should simply follow the classic three-step test. It should examine the legal basis of the decision, the aim invoked by the government and the proportionality of the decision to that aim. There is no reason to apply a sui generis test in the form of an “arbitrariness” assessment. Besides, the question as to the presence of arbitrariness will receive its place in any case under the general test, being absorbed (partially) by the legal basis-test and the proportionality-test, where the Court also contemplates the measure’s procedural safeguards.

Both the majority in Usmanov, as well as the minority agree however on one thing, the “consequence-based” approach. The consequences of deprivation should be examined as part of the evaluation of the interference with the applicant’s Convention rights, rather than including them into the examination of whether or not that interference has also violated the Convention. By extension, the “consequence-based” approach allows room for the Court to perform only a “procedural review” of the measure’s proportionality. Because, by removingthe consequences from the consideration of the “violation stage”, the Court seems to have removed as well the need to balance those consequences against the reasons invoked by the government to annul an individual’s citizenship. Instead, the Court “outsources” this exercise entirely to the domestic authorities, limiting itself to the question whether the latter has performed this exercise in a satisfactory manner. Some authors argue that the Strasbourg Court increasingly interprets the “proportionality” test – generally the most contentious step in the Court’s analysis – in an (almost) exclusively procedural manner requirement, voided from any actual balancing exercise. The Usmanov judgment seems to lay in line with this “procedural interpretation” of proportionality. Such a procedural interpretation of proportionality does however not necessarily entail a lesser degree of protection for the individual involved, because it still requires that a balancing exercise happens, either by the national authorities, or, in their absence, by the Strasbourg Court. What could however encompass a lesser degree of individual rights’ protection is the question what exactly should be included in that balancing exercise. For this, Usmanov actually offers more clarity, as opposed to the confusion it caused with regard to the previous element. Thereby, we come to the second reason why the judgment of Usmanov matters for the evolution of this case law.

…To a careful sign in favour of fuller protection for citizenship

For the first time, the majority of the Court has shown a holistic or more realistic approach to “citizenship” in cases concerning citizenship deprivation. Before, the only consequences of deprivation that the Court considered were expulsion and statelessness (disregarding for a moment the question in which stage, interference or violation, the Court examined them). Indeed, when an individual loses their citizenship, they lose their protection against expulsion, as the latter only applies to nationals. Individuals subjected to deprivation also potentially become stateless, if they do not possess a second nationality to fall back upon. However, pre-Usmanov (see e.g. Ramadan or Said Abdul Mubarak v. Denmark), what the court failed to consider was the fact that citizenship is the gateway for many other rights and freedoms. It also affects, for example, individuals’ access to political participation, to social rights, to their ability to move freely in and outside their country, etc. In this regard, Usmanov reveals a more realistic approach of the social reality of citizenship, by considering for example, the impact on the applicant’s everyday life: “The Court found that Russian citizens had to prove their identity unusually often in their everyday life, even when performing such mundane tasks as exchanging currency or buying train tickets.” (§60) Likewise, it also considered the impact on “more crucial needs, such as finding employment or receiving medical care.”

Although the Court did not really dig deeply into the various ways the applicant’s private and family life is impacted by his citizenship annulment – it said little more than these few sentences – the evolution is still a positive one. It shows that the Court finally has some regard for the importance of citizenship in all its facets. In this sense, the Usmanov judgment is cautiously revolutionary and is proof of a turnaround in the Court’s stance on citizenship. Whichconsequences are taken into account when evaluating the measure of citizenship deprivation is indeed a crucial question, because it is also an indication of which interests should be balanced against the government’s decision to deprive someone of their citizenship (regardless of the entity balancing them, national or supranational). Had the Usmanov Court ruled that the impact of the Russian authorities’ decision on the applicant’s social security access was irrelevant, this would give leeway to national authorities to disregard that particular consequence of citizenship loss as well when e.g. drafting their legislation on the topic. The scope of the assessment thus has very real consequences.

Strangely, the “Usmanov-turnaround” was already noticeable, or rather in place, elsewhere long before this judgment came out last month. In the Court’s case law on statelessness, another particular citizenship issue, we could already witness a more realistic interpretation of “citizenship” by the Court. In Kuric and others v. Slovenia, for example, a case of 2012, the Court was confronted with former citizens of the Socialist Federal Republic of Yugoslavia (SFRY). After the dissolution of Yugoslavia, the applicants became stateless, because the State they were once nationals of had ceased to exist. They later had their records removed from the civil registry of Slovenia. The Court noted that “owing to the “erasure”, they experienced a number of adverse consequences, such as the destruction of identity documents, loss of job opportunities, loss of health insurance, the impossibility of renewing identity documents or driving licences, and difficulties in regulating pension rights.” (§356) (See also Hoti v. Croatia and Sudita Keita v. Hungary)The discrepancy between this case law and the case law on citizenship deprivationwas difficult to explain, as they both concerned the same core issue. Now, with Usmanov, the Court seems to have brought its case law on deprivation more in line with its other line of case law on statelessness.

Usmanov: an outlier or representative for future case law?

What remains uncertain however is whether Usmanov is indeed the beginning of a new strand of case law in citizenship deprivation cases or whether the judgment is merely an outlier. We will have to wait and see what the future cases on the issue dictate. Besides, even though the evolution with regard to the Court’s “holistic” view to citizenship might be a positive one, the confusion with regard to its approach to deprivation cases remains, for which Usmanov was less clarifying, on the contrary even. Perhaps one of the future cases will end up with the Grand Chamber, dictating with more certainty what exactly constitutes the Court’s approach towards citizenship deprivation and what should be considered in which stage.