3.6 SOME ASPECTS OF THE SITUATION OF NON-CITIZENS

The CBSS member states, especially new or restored democracies, are in a special situation in the sense that they encompass non-citizen populations of a varying size.

The respective member states deal with these problems in different ways. With regard to the important issue of citizenship, I refer to my study on "criteria and procedures for obtaining citizenship in the CBSS member states" of April 1996 (see chapter 2 of this report).

The situation of the non-citizen in general has been at fee core of national politics of many countries for several years. At the same time, it is a major issue in relations with neighbouring countries and the international community as a whole. Several international organisations have been involved in the assessment of the situation and in various efforts to assist and advise.

Non-citizens do not necessarily constitute a homogeneous group, and it is difficult to generalize about the "typical non-citizen". The non-citizen populations consist of different people with different problems, but whatever their individual background, there is every indication that the majority wish to remain in the country in which they reside and which they consider to be their homeland.

In the respective countries, the status of non-citizens is dependant on a wide range of laws, regulations and administrative procedures at the national as well as at the municipal level which unfortunately are not always characterized by clarity and are sometimes interpreted as unfair and discriminatory by non-citizens. It is a generally accepted principle that in accordance with the rule of law all individuals should have the possibility to know and understand their legal position and the ensuing rights and obligations. The legislation must consequently be elaborated in a transparent and precise way. Another aspect of this, is the fact that clarity in legislation, standards and administrative regulations is instrumental in ensuring that the administration does not deal with people in an arbitrary manner.

These observations about the importance of knowing one's legal position are of course of a general nature and applicable to all individuals (citizens or non-citizens). The non-citizen populations, however, have been and to a certain degree still are in a particularly vulnerable situation, since many essential questions relating to their possibilities of staying in the respective countries and to their future status remain to be solved. The degree of uncertainty among this group of people as to their position consequently poses a special problem, and information about Government policies is of crucial importance. In this connection information can be a motivating factor in the sense that it may prompt people to actively take part, cooperate and make choices, where this is necessary. Issues such as residence and work permits, family reunification, travel documents and application procedures in general are examples of areas of essential importance for the individual. Failure to elaborate clear and adequate legislation and to ensure that sufficient information reaches the non-citizen populations may result in serious misunderstandings, unnecessary confusion and tensions both within the society and in relations with other countries.

Estonia

During my two visits to Estonia, in April and December 1995 various aspects of the situation of the non-citizen, mostly Russian-speaking population were at the centre of discussions, and I have been following the developments with regard to obtaining residence and work permits since I took up my functions as Commissioner.

The implementation of the Estonian Law on Aliens of 1995 has not been without problems, and I have the impression that a considerable degree of confusion and uncertainty has been prevalent. Without going into details about the justification of various deadlines for submitting applications and possible negative consequences of failing to do so, suffice it here to mention that in my view the decision to allow applications also after the deadline of 12 July 1995 for those individuals who had not yet, for whatever reason, submitted their applications, was a prudent step under the prevailing circumstances.

In my official follow-up letter to the Minister for Foreign Affairs after the December 1995 visit, I indicated that it was indeed positive that the bulk of the more than 300.000 applications had actually undergone the first stage of processing in the sense that the initial evaluation had been made by the local offices of the Citizenship and Immigration Board (CIB).

I emphasized the paramount importance of the fact that the individuals concerned should have an orderly response to these applications and stressed that the possibility to legalize one's stay in a country and to know one's legal situation within a reasonable time is essential from a human rights perspective. In this context it is essential to comply with the obligation to decide upon the applications by 12 July 1996.

An issue very much linked to this, is the problem of identity and / or travel documents for non-citizens. I also voiced my concern about this, since no final decision seemed to have been taken on this important point at that time.
Furthermore, I supported the recommendations made by the UNDP to decentralise both the final decision of the bulk of the applications and the issuance of documents. In February 1996 the Minister for Foreign Affairs informed me of the Government's decision to issue aliens' passports to Estonia's non-citizen population. I welcomed this development which in my view was, under the circumstances, a constructive step towards solving some of the many problems these individuals encounter pending the solution of the question of their future citizenship. I expressed the hope that these important documents would be issued as soon as possible, and offered to assist with regard to ensuring recognition of the aliens' passports by the CBSS member states. I have subsequently corresponded directly with the Director of the CIB about this matter.

As mentioned above, I sincerely hope that the authorities will succeed in reaching a decision on all the applications for residence permits by 12 July 1996. I understand that assurances have been given to this effect, and that applicants will receive a letter from the CIB officially stating that a residence permit has been granted and inviting the person concerned to apply for an alien's passport in which the permit will be placed. The processing of applications for residence permits for the purpose of participating m the local elections in October 1996 is also of essential importance. I will continue to follow these issues closely.

In the course of my December 1995 visit, I spent a day in Narva where I witnessed some anxiety and uncertainty as to the consequences of the entering into force of the Law on Public Service. I was informed that 3000 non-citizen civil servants in Narva alone might be affected and thus made redundant on I February 1996, while other sources indicated that it would affect no more than approximately 20 people. I raised this issue with the Minister for Foreign Affairs in my official follow- up letter indicating that this was perhaps another example of how important it is that people are informed of their legal position to avoid misunderstandings and unnecessary uncertainty.

In his reply to my letter the Minister for Foreign Affairs informed me that my information according to which 3000 people would lose their jobs was a factual mistake, and that the requirement for civil servants to know the Estonian language is natural and necessary.

I subsequently learned that the target date for redundancy according to the law had been postponed to I February 1997, but that there seemed to be some doubt as to the interpretation of this most recent amendment. The question is whether the officials concerned will be able to comply with the requirements of the law by passing the required procedures for naturalisation before this date, or whether the amendment in fact only means that they are allowed to keep their jobs for one extra year, since they have not obtained citizenship before the original deadline. ..............

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I receive a number of individual communications about the important issue of family reunification. For more than a year now, I have been corresponding with the Minister for Foreign Affairs about the application procedures that spouses and close relatives of Estonian nationals have to go through in order to obtain residence and work permits.

I expressed my awareness of the fact that it is not an unusual or unreasonable practice to require aliens to submit their applications for residence permits at representations abroad. But the very special circumstances pertaining to Estonia's recent history must be taken into consideration. From the individual cases, I get fee impression that it is often coincidental that the complainants suddenly Wind themselves in this unfortunate situation where they are forced to travel abroad to submit their application with all the expenses and inconvenience that this entails, regardless of their individual situation and degree of attachment to the country.

I mentioned a few examples of the individual communications that we had corresponded about, but which had not yet found a solution. Regardless of the different individual circumstances the position of the CIB was that all complainants must apply from abroad.

The right to respect of family life is important and reference was made to the Universal Declaration of Human Rights art. 16, the Covenant of Civil and Political Rights art. 17 and the European Convention on Human Rights art. 8. Furthermore reference is made to commitments entered into in the context of various OSCE documents with regard to freedom of movement (e.g. the Vienna Concluding Document, 1989, pertaining to cooperation in humanitarian and other fields). It does not seem necessary that spouses of Estonian nationals or other close relatives, who are actually already in Estonia, should have to travel abroad to submit their applications. During my visit to Estonia in April 1995, I had a meeting with the Director General of the CIS, and we discussed my concerns. It was indicated that certain initiatives were contemplated to simplify the procedure for spouses. Subsequently the Minister for Foreign Affairs confirmed that it was indeed foreseen that the CIB would give priority to amending the seemingly unnecessary bureaucratic procedures.

During the course of my subsequent discussions and correspondence with the Director General of the CIB, I got the impression, however, that no change had taken place with regard to the practices of the institution in this matter.
Following my visit to Estonia in December 1995, I reiterated my concerns about this matter to the Minister for Foreign Affairs in a letter of January 1996.

I recommended to investigate whether it was not possible to introduce a more flexible practise in the CIB in such a way that individual humanitarian considerations might be taken into account to a higher extent in family reunification cases where the applicant is actually already in Estonia. If the applicant has a valid reason for applying, it seems formalistic to insist that he or she travels abroad to submit the application.

In February 1996, the Minister for Foreign Affairs informed me that certain changes had occurred in the procedures. According to the Government's decree No. 387 of 7 December 1995, spouses and minor children of Estonian citizens and non-citizen Estonian nationals were now allowed to apply from within Estonia, rather than from Estonian representations abroad. My understanding was that this also applied to persons who lost their permanent registration because they were temporarily abroad for study or work related reasons.

I naturally welcomed this development and expressed the hope that it would be possible for the authorities to take individual humanitarian considerations into account in family reunification cases regarding other close relatives than spouses and minor children.

It was my hope that this change would be instrumental In solving some of the individual complaints that I have received. In April 1996 one of the complainants, however, informed me that following the entry into force of the new decree, he had approached the authorities again in order to legalize his stay in the country where he lives with his Estonian wife and children. Apparently the decree contains a clause sating that the applicant must actually reside legally in Estonian at the time of the application.

If the new decree contains such a clause, it does not seem to solve any of the above-mentioned problems. The majority of family members who complain to me have no legal residence in Estonia. Many of them have lived there for most of their lives, but have lost their registration one way or the other. There are many different reasons for their difficult individual situation, but common for all of them is a wish to legalize their stay in Estonia and to be reunited wife their families. I voiced these concerns to the Minister for Foreign Affairs and asked for his comments in April 1996. The situation remains unclear, but I intend to continue to follow this matter closely.

Latvia

After my visits to Latvia in June 1995 and April 1996 it is my impression that issues such as how to obtain a travel document and the activities of the Citizenship and Immigration Department (CID) affect a large number of people and are viewed upon as matters of serious concern by the non-citizen population.

The issuance of non-citizens' passports was provided for in the law "On the Status of Former USSR Citizens Who Are Not Citizens of Latvia or of Any Other State", (the Status Law), adopted in April 1995. The Government concluded an agreement with a Canadian company in November 1995 to print a sufficient number of such non-citizen passports which were expected to be available for issuance in June 1996. As far as I understand, the CID has been and is still issuing temporary travel documents to non-citizens upon request. These documents are, however, not recognized by all countries, and the freedom of travel for non-citizens thus remains restricted to a certain extent.

During my visit in April 1996, I discussed this issue with several interlocutors. I was informed by the Director of the CID that there had been some delays and that issuance was expected to commence in September/October 1996. I advised the authorities to ensure that samples of the new passports are sent to the international community for official recognition as soon as possible to avoid any further delays in the use of these documents.

Following my return to Denmark, I learned that yet another delay is foreseen and that issuance will not begin until January 1997. I raised this issue with the Minister for Foreign Affairs in May 1996, indicating that in my opinion it is indeed unfortunate that the non-citizen residents will have to wait even longer to receive a travel document. I expressed the hope that the authorities would take every possible step to ensure that the application procedures will enable the recipients to benefit from the right to freedom of travel as soon as possible.

With regard to the issue of the manner in which the CID carries out its tasks and the problems which the administration of this institution has entailed, mention has already been made of certain aspects of this serious matter in chapter 3.3 (the rule of law). Suffice it here to mention that I have taken up the do's failure to implement properly and fairly laws, regulations and court decisions affecting non-citizens, especially with regard to individual communications concerning family reunification and residence permits.

As mentioned earlier, clarity in legislation and administrative regulations can be instrumental in ensuring that fee administration does not deal with people in an arbitrary manner. During the April 1996 visit I discussed this wife the Director of the CID, who indicated that a lack of coherence between different legislation and a certain degree of unclarity had been part of the explanation why the practices of the CID had been "overly formalistic".

The Director stated that a precedent had been established, and that the practise of the CID would be changed accordingly in the sense that a less formalistic approach would be adopted in the future with regard to similar cases. I also understood that the Minister of the Interior had asked the Director to draft amendments or new articles of a clarifying nature to the relevant legislation. I have asked to be kept informed about possible developments in this issue, and I will of course continue to follow the administration of the CID with regard to implementing the Status Law as well as guaranteeing the right to family reunification.

On several occasions I have received complaints with regard to alleged unreasonable job-discrimination. It has been somewhat difficult to obtain exact information about the situation. A special study on this issue, which seems to be especially topical with regard to Latvia is being prepared as part 2 of the rights of non-citizens residing legally in the member states (cf. chapter 2.6).