Case Watch: European Judges Skirt Nationality Question in Latvian Case

In a recent case decided by the European Court of Human Rights, Petropavlovskis v. Latvia, the court found that Latvia’s denial of citizenship—based mainly on the applicant’s political activities—had not violated the applicant’s rights of either freedom of expression or freedom of assembly.

The applicant, Mr. Petropavlovskis, is a “permanently resident non-citizen” of Latvia. This status was granted to him as a former citizen of the USSR, who, upon losing his Soviet nationality, did not acquire a new one. Mr. Petropavlovski has been politically active in Latvia for several years, arguing openly against Latvian school reforms, and in favor of keeping the practice of conducting education in Russian. He is also a member of the Party for Human Rights in United Latvia, and has openly expressed his desire to run for mayor of Riga.

In 2003, Mr. Petropavlovski applied to the naturalisation board for Latvian citizenship, but his application was struck out by the cabinet of ministers on the ground that Mr. Petropavlovski did not show—neither in actions nor words—sufficient loyalty to the Latvian state. Mr. Petrovavlovski appealed this decision, claiming that the refusal was politically motivated. During the course of the appeals, he gave a public interview in which he stated that, regardless of whether or not he would acquire citizenship; his case would serve to give attention to his political party and cause.

After pursuing appeals in three administrative courts, the case was finally rejected on the grounds that the decision of the cabinet of ministers to deny his application for naturalization was ultimately a political one, and hence not a matter for judicial review.

Mr. Petrovalovski lodged a complaint with the European Court of Human Rights arguing that he had been denied citizenship as a punitive measure for criticizing the state, in violation of his rights under Article 10 (right to freedom of expression) and Article 11 (freedom of assembly) of the European convention. This is interesting, because, as the applicant noted himself, his denial of citizenship also affected his ability to stand for election. The applicant did not, however, file a complaint under Article 3 of Protocol no. 1 of the convention, on the right to free elections. Had he done so, his case might have taken a different turn.

In the opinion of the court, issued on January 13, 2015, two main themes are struck upon. The first is that of the right to nationality. The court makes it very clear that the European convention, unlike the American convention and the Universal Declaration of Human Rights, does not provide for a right to nationality. In this respect, the court seems to only consider such a right where either, the arbitrary denial of citizenship interferes with another right under the convention, such as Article 8 (respect for private and family life), or in cases of arbitrary refusal to denounce nationality. The court remains unpersuaded by the applicant’s referral to case law of the Inter-American Court of Human Rights on this point, noting that the two conventions provide for vastly different rights.

The other main theme of this judgment is that of whether the refusal of citizenship has interfered with the applicant’s right to freedom of expression or freedom of assembly. Here, the court notes that nationality is not a prerequisite to express oneself in Latvia, evidenced clearly by the amount of media exposure the applicant received both before applying for citizenship, while his application was considered, and even after its ultimate refusal. As such, there was no proof that the applicant’s nationality had in any way affected his rights under Articles 10 and 11 of the convention. On these grounds, the court did not find a violation of the convention in the case.

This case has a third theme, albeit one that the court is careful to touch upon, made easier by the fact that the applicant did not make it part of his complaint. This third theme considers the difference between loyalty to the state versus loyalty to the government. As the court makes clear, it is up to states themselves to define the rules according to which they award nationality. Under these rules, the requirement of a certain bond between state and citizen, and a certain loyalty, is both common and legitimate.

There is, however, a difference between requiring loyalty to the state and loyalty to the government. The first is legitimate, the second is not. The case of Mr Petrovalovski seems border-line in this respect, and the European court does not really clarify who he has been disloyal to, the state or the government. By considering this case strictly under Articles 10 and 11, the court manages to narrowly avoid this subject—and does not clarify further. Had it been forced to do so, the case might have taken a very different turn, illustrating how important the framing of a complaint to the European Court of Human Rights can be for its outcome.