MINELRES: Estonia: Retired military officers and their family members deprived of permanent residence permits

[MINELRES moderator]

Original sender: Julija Kovalenko <julia@lichr.ee> 



"The Estonian Parliament deprived residing in Estonia retired military
officers and members of their families of receiving permanent resident
permit"


On December 17, 2003 the Parliament of Estonia amended art.12 of the Law
on Aliens which now forbids issuing permanent residence permits to the
retired officers of the foreign armies and members of their families
residing in Estonia. This amendment should be of a great concern as
depriving this category of people of the right to receive permanent
residence permits violates the Constitution of the Estonian Republic as
well as international obligation in the area of human rights taken by
the state.

Article 2 (1) of the Agreement on Matters Related to the Social
Guarantees for Military Pensioners of the Russian Federation  on the
Territory of the Republic of Estonia guarantees military pensioners,
members of their families and those who had lost their breadwinners
residence permits in Estonia provided that they apply in person and
excluding those whom the Government of Estonia refuses as a remedy for
the state security.

At the same time there is no notion of what type of the residence
permit: temporary or permanent is being guaranteed.  Art 2 (1) of the
Russian Federal Law on the legal status of the foreign citizens on the
territory of the Russian Federation interprets the definition of the
residence permit as understood in the national legislation and is as
follows: "residence permit is a document issued to a citizen of a
foreign country or a person without a citizenship of any country in
order to confirm his right to permanent residence on the territory of
the Russian Federation". The conception of the temporary residence
permit is not recognized by the Russian legislation at all. Instead of
it "authorization for the temporary stay" is used (art 2 (1) of the
Russian Federal Law on the legal status of the foreign citizens on the
territory of the Russian Federation).

Therefore here we have misinterpretation of the definition for the
"residence permit" in the Estonian legislation where it is always
followed by the adjective "temporary" or "permanent" and Russian where
it exists in its pure form.

According to the art. 13 of the Agreement "all the factions related to
the interpretation and application of the current Agreement should be
negotiated by the diplomats".   Hence, having adopted the amendments to
the art. 12 of the Law on Aliens the Parliament will violate the
international agreement and complicate already difficult relations with
Russia. At the same time art. 123 (2) of the Estonian Constitution
provides that "In case Estonian national legislation is in conflict with
the international agreements ratified by the Parliament the
international regulations should apply".

Art. 11 of the Estonian Constitution says that "rights and freedoms can
be restricted only in cases provided in the Constitution. These
restrictions should be required for the democratic society and should
not distort the essence of the rights and freedoms limited". In the case
under discussion there does not exit such a public benefit that would be
endangered by residing in Estonia military pensioners and members of
their families.
Hence the restriction of the rights belonging to this category of people
is not motivated, secondly, is discriminatory on the basis of social
origin (former belonging to the military forces of the foreign state)
and having a marital status with such a person.

In the present issue there are no grounds to talk about a threat to the
security of the state from the side of this category of aliens as in
most of the cases military pensioners are elderly people, having tight
relations with the Estonian Republic and being loyal to its political
system. Moreover collective violation of rights is prohibited by the
international law.
I.e the threat to the security of the state should be proved in every
separate case. The amendments under the discussion will enable officials
to refuse in issuing permanent residence permits even without reference
to threat to the security. Belonging to the group of persons referred to
in the art. 12 (4) p. 7 and 14 Law on Aliens will automatically become a
ground for refuse. As a matter of a fact at carrying out the decision
such circumstances as having Estonia as a place of birth or long-time
residence on its territory etc. are not considered.

Therefore we are convinced that the amendments discussed violate art. 12
of the Estonian Republic Constitution and art. 2 and 26 of the ratified
by Estonia International Covenant on Civil and Political Rights from
which follows that the national legislation of the ICCPR member-states
should not carry discriminative provisions;

Besides the above said the Law on Aliens in its current edition place
the spouses of the military pensioners into unequal position and is
discriminatory on the grounds of gender. Proceeding from the named
paragraph the spouses of the former military servants are not considered
as separate subjects of law and their legal status depends on the legal
status of their husbands. For example in case a spouse would like to
receive a residence permit the result will depend on weather her husband
being related to the service in the foreign military forces will be
found eligible to one.
When this paragraph is used the absurd situations will occur, for
instance a woman marrying a former military servant will immediately
loose all her rights provided in the art. 20 of the Law on Aliens. Hence
the prevalent situation is in conflict with the following articles:

-	Art. 3 of the ICCPR which states: "The States Parties to the present
Covenant undertake to ensure the equal right of men and women to the
enjoyment of all civil and political rights set forth in the present
Covenant".
-	Art 17 of the ICCPR states that "No one shall be subjected to
arbitrary or unlawful interference with his privacy and family life". It
is however obvious that new amendments "punish" first of all those women
who had happened to marry former military servants. We can not call it
other than interference into the private and family life. For instance
in order to receive permanent residence permit the wife who was born on
the territory of Estonia has to divorce her husband who is a former
military servant.
- 	Art. 1 of the ratified by Estonia Convention on the Elimination of
all Forms of Discrimination Against Women that says: "For the purposes
of the present Convention the term "discrimination against women" shall
mean any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their
marital status, on the basis of equality of men and women, of human
rights and fundamental freedoms in the political, social, economical,
cultural, civil or any other field". In our case, however the enjoyment
of rights depends first of all from the marital status.

Proceeding from the above said art. 12 of the Act on amendments to the
Law on Aliens is unticonstitutional, violates international agreements
and fundamental human rights in respect for the former military servants
and members of their families. 


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