The High Council of Justice member Dmytro Lukianov spoke regarding the problem of having foreign citizenship of a judge during the round table on “Collaboration as a challenge to the judicial system”, dedicated to search for mechanisms of appropriate response to manifestations of collaborationism in the judicial system.
Dmytro Lukianov noted about certain legal gap in national legislation in regard of procedure for responding to a judge’s foreign citizenship.
The full text of Dmytro Lukianov’s speech is offered for attention
To understand the essence of the problem, it should be understandable the constitutional and legal matter of this issue. Citizenship is a special political and legal relationship between a person and the state, manifested in their mutual rights and obligations. Thus, a citizen has a list of duties to the state of which he/she is a citizen: obey its authority, comply with the laws of the state, pay taxes, serve in the armed forces, etc. If a person becomes a citizen of two or more states, his/her duties to one state inevitably come into insuperable contradiction with duties to another. A classic example of such contradiction today is the defense of the state – one cannot simultaneously protect the territorial integrity, state sovereignty and national security of Ukraine and the russian federation.
It is important to remember that citizenship is a right, but not a duty of a person. The Ukrainian state recognizes the right of a citizen to change his/her citizenship in accordance with the Universal Declaration of Human Rights, but as a general rule, only on condition of renunciation of Ukrainian citizenship. The acquisition of foreign citizenship causes a change in the legal status of individual.
Legislation of the vast majority of states in the world proceeds from the non-recognition of dual (multiple) citizenship, since it creates significant political and legal problems in the practice of interstate relations (it should be reminded that it is common practice to justify aggression by caring for one's citizens on the territory of another state).
On May 6, 1963, the member states of the Council of Europe signed the Convention on the Reduction of Cases of Multiple Nationality, in which multiple citizenship and its legal consequences are considered as a negative conflict between the legislation of several states.
Given that citizenship is a political and legal relationship, each state creates its own mechanism for acquiring and terminating citizenship, reflecting the historical, social and cultural features of the formation of each nation. Ukraine is in the process of establishing its own doctrine of citizenship.
Currently, one of the problematic issues that have not been fully resolved is the problem of acquisition by Ukrainian judge of foreign citizenship. Article 4 of the Constitution determines that there shall be a single form of citizenship in Ukraine. The principle of single form of citizenship means, in particular, that a citizen of Ukraine cannot have the citizenship of another state. The requirement of Article 127 of the Constitution of Ukraine, according to which a citizen of Ukraine can be appointed to the position of a judge, means that he/she cannot have another citizenship and, accordingly, duties to another state.
Other articles of the Constitution are systematically connected with these requirements. Article 126 of the Constitution of Ukraine provides that authority of a judge shall be terminated, in particular, in the event of termination of the citizenship or acquisition by a judge of foreign state. However, the Constitution and legislation of Ukraine do not fully regulate the issue on the way of termination of judge’s powers, by whom and by what procedure.
A certain legal practice has developed, according to which a head of a court impose an order to remove from the staff of the court a judge who has acquired foreign citizenship. However, the complexity of this situation lies in, as a rule, the controversy of the existence of a legal fact of obtaining another citizenship. According to diplomatic practice, one state does not inform the citizenship of its citizens to another state, especially in a state at war with it. However, if the fact of citizenship is confirmed by other evidence beyond doubt, the head of the court may impose an order with reference to the relevant legal fact.
In my opinion, in order to completely eliminate this legal gap, it is advisable to assign such powers to the High Council of Justice. This can be done in two ways:
making amendments to the Law of Ukraine “On the High Council of Justice” on the power of the High Council of Justice to terminate an office of a judge in the event of acquiring citizenship of another state and establishing corresponding procedure;
making amendments to the Law of Ukraine “On the Judiciary and the Status of Judges”, Article 54 of which establishes incompatibility requirements for the position of a judge, namely, by supplementing this article with the requirement for the incompatibility of the position of a judge with the acquisition of foreign citizenship. The procedure of violating the rules of incompatibility is regulated by Article 126 of the Constitution of Ukraine, Article 121 of the Law of Ukraine “On the Judiciary and the Status of Judges” and Chapter 17 of the Rules of Procedure of the High Council of Justice.
It should be remembered that this problem can be solved by applying the procedure for terminating the citizenship of Ukraine, which will result in termination of powers of a judge, but this is the exclusive authority of the President of Ukraine.