Russian citizenship of officials and judges: why does the state lose in court?

The beginning of the year started with two high-profile cases. The court reinstated the controversial Supreme Court judge Bohdan Lvov, who was found to possess a Russian passport. However, there is still an appeal ahead, and a panel of judges has already been appointed in the Sixth Administrative Court of Appeal: Andriy Kuchma, Volodymyr Alimenko, and Lyudmyla Byelova.

As for the second high-profile case, the situation is worse. It concerns the former Minister of Justice Maryna Prylutska, who, according to the SBU, voluntarily obtained Russian citizenship in the occupied Crimea. The Supreme Court sent the case for reconsideration, thereby suspending the decision of the appeal.

What was the position of the Chief Justice of the Supreme Court in Lvov's case?

Mykhailo Zhernakov

Chairman of the Board of the DEJURE Foundation

The Chief Justice of the Supreme Court, Stanislav Kravchenko, on the eve of the hearing in the Lvov case, stated that the dismissal of his colleague was supposedly a private initiative of the former Chief Justice, Knyazev, and also questioned whether they would file an appeal if they lost. This appeared to be sabotage. After the media uproar, an appeal was finally filed, and the public should monitor to ensure that the courts do not cement the "standard" where Russian citizenship can only be proven with a passport or a certificate with a stamp from Russia stating that the person is its citizen. This is absurd and a direct threat to national security. We hope that the higher courts will prioritize national security and common sense over anyone's corrupt interests. And the state as a whole urgently needs to develop a mechanism that will help expedite the resolution of such issues.

Member of Parliament Roman Babiy (interfactional association “Smart Policy”), a member of the Committee on Legal Policy, explains why problems arise.

Why does the problem arise and how to solve it?

Roman Babiy

Interfactional Association "Smart Policy"

Previously, we obtained information about citizenship through diplomatic channels. However, diplomatic relations with the Russian Federation have long been severed. In practice, when considering such court cases, we have a "word against word" situation, and there are no classical substantial evidence of Russian citizenship available to the Security Service of Ukraine. In such a situation, courts may evaluate other evidence, but it is not always sufficient. Given the current situation with recent court cases, the problem indeed exists and is quite critical. Perhaps it would be worth changing the standards of proof in this category of cases. Urgent changes to existing legislation are needed, but lawmakers still need to work on developing the mechanism for verification.

The journalistic project “Schemes,” which exposed the Russian citizenship of Judge Lvov, emphasizes that the Security Service of Ukraine provided compelling evidence.

How did the Security Service of Ukraine (SBU) operate?

Natalia Sedletska

Chief Editor of "Schemes" ("Radio Free Europe/Radio Liberty")

There was information about when Lvov obtained citizenship and when he renewed his passport. In other words, detailed factual information was presented to the court, which corresponds to what was in our material. If Lvov wins on appeal, then all other judges with Russian citizenship will understand that there are no obstacles to renewing their positions while holding a Russian passport.

The case with Judge Lvov is not unique. For example, there is another judge, Valentina Simonenko (currently retired), and Judge Lyudmila Arestova of the Donetsk District Administrative Court, whom “Schemes” also found to have Russian citizenship. By the way, Arestova’s husband, lawyer Sergiy Vasilyev, was present at the court hearings in Lvov’s case and represents the interests of his wife, the judge.

The civic initiative “Golka” reached out to the Security Service of Ukraine for comment. And here, too, they say: legislative changes are necessary.

“The Security Service of Ukraine, as it was with Judge Bohdan Lvov, can deprive such individuals of access to state secrets. Also, the Service informs state bodies about potential or existing threats. After all, the central executive body responsible for implementing state policy in the field of citizenship is the State Migration Service of Ukraine. The position of the Security Service is unequivocal: the potential presence of Russian citizenship among judges and officials poses a threat to national security, especially in wartime conditions. At the same time, information gathered by operational or counterintelligence means possessed by the special service must be confirmed by diplomatic means. Therefore, the issue of foreign citizenship among officials and representatives of the judicial branch of power requires comprehensive solutions, including at the legislative level,” the SBU press service reports.

People’s Deputy Solomiya Bobrovska (“Holos”) agrees: having Russian citizenship is incompatible not only with the functions of a judge but also with any functions of the state or local self-government. However, she emphasizes that there are serious reservations if legislation is to be amended.

What problems might arise?

Solomiya Bobrovska

Member of Parliament, "Voice"

This creates corruption risks and leverage of influence by the special services over the judicial branch, which should inherently be independent. In any adversarial process, such as criminal proceedings, there must be evidentiary basis obtained in a manner prescribed by law. Special services are empowered to conduct pre-trial investigations, counterintelligence activities. All these processes must be balanced; otherwise, we will have judges who, under the threat of accusations of having a Russian passport, will make decisions demanded by the Security Service of Ukraine, and it's not certain that they will serve the interests of the state and society. Currently, part of the Security Service of Ukraine is known for successful operations against enemies, but as of March 2022, this structure, according to the Secretary of the National Security and Defense Council, had the most traitors.

Bobrovska believes that the problem in the judicial process arises not due to the absence of the original passport, and the presence of Russian citizenship can be proven by other means.

There is indeed another mechanism in the state to address this issue. For example, if the case of dual citizenship is political, it is resolved quite quickly. This applies to individuals like Viktor Medvedchuk, Taras Kozak, Andriy Derkach, and Rinat Kuzmin, whom the president deprived of Ukrainian citizenship because they were found to have citizenship of another country. Interestingly, less than a year before the full-scale war, MP Oleh Dunda (Servant of the People) requested a verification of MPs to see if they held dual citizenship. However, this was never fully pursued.

As for Judge Lvov, there is even a petition to the president that reached the required number of votes over a year ago. “I have been instructed by the Commission under the President of Ukraine on citizenship issues to study the issue raised in the electronic petition, to check the grounds for the termination of Bogdan Lvov’s Ukrainian citizenship and to make an appropriate decision based on the results of the consideration of the issues raised in the electronic petition,” reads the response from Volodymyr Zelensky to the petition.

A year has passed, and Lvov is still a citizen of Ukraine. Advisor to the head of the Presidential Office Mykhailo Podoliak currently does not comment on why the citizenship issue regarding Medvedchuk and Derkach was resolved at the level of the Presidential Office, but not in the case of Judge Lvov.