The Facebook test of Romanian citizenship

Costica Dumbrava | Published in: EUDO Citizenship Blog, European University Institute

roflagthumbsThe next day after acquiring Romanian citizenship, Irina Tarasiuc – a singer from the Republic of Moldova – wrote on the social network Facebook: “For me the Romanian passport only stands for a visa, and not for citizenship. It is just an instrument for being mobile. I am Moldovan.” Tarasiuc acquired Romanian citizenship through a facilitated procedure that concerns former citizens (and descendants) who lost Romanian citizenship on reasons independent of their will. Her comment triggered a series of heated reactions on social media and in press; e.g. the Facebook group Irina Tarasiuc fara “viza”! [Irina Tarasiuc without “visa”!]. A number of formal requests to strip the singer of Romanian citizenship were submitted to the National Authority for Citizenship. As reported by the newspaper Gandul, the National Authority for Citizenship acknowledged these requests and began a formal procedure in this respect.

In this commentary I analyse this case in four steps: (I) I briefly explain relevant provisions of the Romanian Citizenship Law; (II) I provide a short comparative note on similar provisions in Europe; (III) I examine key European and EU law; and (IV) I conclude by discussing several contextual considerations.

I The Romanian citizenship law

The Romanian Citizenship Law provides for four general grounds for the non-voluntary loss of citizenship: (1) if a person commits grievous acts that are harmful to the interests or to the prestige of the state; (2) if a person takes service in the army of a country with which Romania has broken diplomatic relations or is at war; (3) if a person acquires citizenship by fraud; and (4) if a person supports a terrorist organisation and puts the national security at risk (Article 25 (1)). The law also provides that “any authority or person who is aware of any reason why Romanian citizenship should be withdrawn may notify the Commission [for Citizenship] in writing, with an obligation to provide the evidence available” (Article 32 (1)). Following such notice(s), the Commission establishes a hearing date, requests opinions from competent authorities regarding the fulfilment of legal requirements for withdrawal of citizenship and invites to the hearing the person(s) who submitted the notice and the person concerned. The person concerned should be summoned with at least 6 months before the hearing date. After the hearing, the Commission reports to the National Citizenship Authority with a proposal for the withdrawal of Romanian citizenship or the dismissal of the notice. The chairperson of the National Citizenship Authority takes note of the fulfilment of legal conditions and issues the order for the withdrawal of Romanian citizenship or the dismissal of the notice. The order can be appealed within 15 days from service before the administrative disputed claims section of the court of appeal that has jurisdiction over the domicile or residence of the applicant or, if the person resides abroad, before the Court of Appeal of Bucharest.

II Comparative note

In comparative view, European countries make use of a variety of grounds for the non-voluntary loss of citizenship. EUDO Citizenship established a comprehensive typology of provision of loss of citizenship based on 15 modes of loss of citizenship, of which only one mode concerns voluntary loss of citizenship or renunciation (see EUDO Citizenship Database on the Loss of Citizenship). Roughly half of the countries in Europe provide for the loss of citizenship on grounds of disloyalty or conduct seriously prejudicial to the vital interests of the state (see also EUDO Citizenship comparative report Loss of Citizenship. Trends and Regulations in Europe). Whereas some of these provisions are specific – e.g. if a person commits genocide, crimes against humanity, war crimes (as in Lithuania and the Netherlands), etc. – other provisions in this category remain vague and general – e.g. “failure in duty of fidelity and loyalty” (in Ireland), behaviour “harmful to vital interests of the country” (in Montenegro), actions “seriously prejudicial to vital interests of the country” (in the United Kingdom).

Provisions that make explicit references to damage to the prestige or reputation of the country exist also in: Cyprus – if a person has “shown disloyalty via words or deeds”, Malta – if a person has “shown by acts of words or deeds to be disloyal or disaffected towards the country”, and Switzerland – if a person “acts against national interest or reputation.” It must be noted that such vague provisions raise concerns about the discretionary power of authorities with regard to the implementation of the law.

III European and EU law

According to the Romanian law, a person can lose citizenship if he or she commits particularly grievous actions that are harmful to the interests or the prestige of the state. It follows that the loss of citizenship is triggered by particular “grievous actions” (fapte deosebit de grave), which affect negatively state interests or the prestige of the country. It is therefore not the seriousness of the damage brought to the interests or the prestige of the country that matters, but the seriousness of the actions leading to such damages. In this case, the question is whether the action of posting allegedly defamatory comments about Romanian citizenship on a social network constitutes a “grievous action”. If this cannot be treated as a “grievous action,” the question of whether its consequences are harmful for the interests or prestige of the country becomes irrelevant.

The European Convention on Nationality (ECN), which Romania ratified in 2005, allows State Parties to withdraw citizenship from persons on grounds of “conduct seriously prejudicial to the vital interest” of the state (Article 7(1)d). The Explanatory Report to the European Convention on Nationality specifies that such conduct should refer to “treason and other activities directed against the vital interests of the State concerned (for example work for a foreign secret service),” and excluding “criminal offences of a general nature, however serious they might be.” It is highly improbable that actions such as posting allegedly defamatory comments of a social network would amount to treason or actions directed against the vital interests of the state as provided by ECN. This disproportionality is apparent in the phrasing of the law, which enlists provisions regarding damages to the prestige of the country next to provisions concerning “links with terrorist groups” and actions “threatening national security.” It is worth mentioning that, as reported by the newspaper Adevarul, since 1990 only three persons were deprived of Romanian citizenship: one case on grounds of fraud in acquisition and two cases on grounds of national security. If deprived of citizenship, Tarasiuc would thus be the first person to lose Romanian citizenship on grounds of prejudicial actions damaging the prestige of the country.

One important aspect is that Trasiuc’s actions fall under the scope of freedom of expression, which is guaranteed by the Constitution of Romania (Article 30 (1)). It must be noted that the Constitution limits the freedom of expression by prohibiting “any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality (Article 30 (7), emphasis added). Interestingly, however, an amendment of the Criminal Code in 2006 scraped the provisions that incriminated the defamation of the country (former Article 236). Additional references to constitutional “sacred duty of fidelity towards the country” (Article 54 of the Constitution) have considerable symbolic connotations, but they can hardly be translated into unambiguous and enforceable legal provisions. In other words, even if Tarasiuc’s actions amount to defamation of the country, they would not constitute a criminal offence in Romania.

The Romanian provisions of non-voluntary loss of citizenship on grounds of actions that damage the national interests and the prestige of the country apply only to citizens who reside abroad. ECN allows State Parties to withdraw citizenship from citizens who reside abroad on grounds of lack of genuine link with the country, provided that they are not rendered stateless (Article 7(1)e). Whereas the Romanian law does not have explicit provisions for the loss of citizenship due to residence abroad, it restricts the scope of certain provisions regarding non-voluntary loss of citizenship to non-resident citizens (grounds (1) and (2), see above). ECN allows State Parties to withdraw citizenship from persons on grounds of actions “seriously prejudicial to the vital interest” of the state (Article 7(1)d). An important limitation in this case concerns the prohibition of statelessness. According to ECN, the only case in which a State Party could withdraw citizenship even if this results in statelessness is if a person acquires citizenship fraudulently. However, in Romania the withdrawal of citizenship on any of the four grounds provided by law can lead to statelessness (see EUDO Report on Protection Against Statelessness). The problem of statelessness does not appear in this specific case because the person concerned is a dual Romanian-Moldovan citizen.

There are, however, two problematic aspects that are relevant for this case. The first aspects concerns discrimination among citizens and the second one refers to EU citizenship. The Romanian provisions on non-voluntary loss of citizenship discriminate indirectly against certain categories of citizens because the citizenship law provides that citizens ‘by birth” cannot have their citizenship withdrawn (Article 25 (2)). Whereas ECN does not prohibit strictly differentiated treatment based on the mode of acquisition of citizenship, it recommends that State Parties “shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently” (Article 5(2)) (see also Explanatory Report to ECN, 45).

As a Romanian citizen, Tarasiuc is also a EU citizen. If Romania takes her away Romanian citizenship, it also strips her of EU citizenship because EU citizenship is contingent on the possession of a citizenship of a EU country. It must be noted that the European Union has no explicit competence with regard to the regulation of national citizenship and that, according to the Treaty on the Functioning of the European Union, the EU citizenship “shall be additional to and not replace national citizenship” (Article 20, ex Article 17 TEC). However, the European Court of Justice (ECJ) has gradually interpreted the EU citizenship in ways that transformed its content and its relationship with national citizenship. For example, in the Micheletti case (1992) the ECJ already argued that the power of each Member State “to lay down the conditions for the acquisition and loss of nationality” should be exercised “having due regard to Community law” (para 10). Most crucially, in the Rottman case (2010) the ECJ maintained that a situation in which national regulations affect the status and the rights of EU citizenship falls “by reason of its nature and its consequences, within the ambit of European Union law” (para 42). The Court further argued that “having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned” and that “it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person” (para 56). In view of this development, the withdrawal of the “fundamental status” of EU citizenship following trivial actions, such as posting a comment on a social network, seems highly disproportionate.

IV Contextual considerations

The heated debate around this case should be understood in view of the political and symbolic value of the Romanian policy of restoration of citizenship to former citizens and descendants. This policy is based on a mixed rationale that combines claims of delivering justice to persons who were stripped of Romanian citizenship against their will (e.g. by the communist regime) and nationalist arguments about the reconstitution of the pre-WW2 Greater Romania. Whereas Romania refrains from claiming the territories lost during the war – namely, Bessarabia (the Republic of Moldova), Northern Bukovina and Southern Bessarabia (parts of Ukraine) –, its citizenship law offers quick access to Romanian citizenship to former citizens and their descendants up to the 3rd degree who live in these historical territories (see CITSEE story Rolling back history: The Romanian policy of restoration of citizenship to former citizens). Romanian officials have repeatedly insisted that, unlike in other countries of the region (e.g. Hungary), Romania’s provisions on the re-acquisition of citizenship are not driven by ethnic or nationalist considerations, as they apply equally to former citizens regardless of their ethnicity. However, many have expressed frustrations about the broad scope of these provisions deploring the number of persons who re-acquire Romanian citizenship without being able to speak Romanian (e.g. Russian ethnics living in Moldova). It must be noted that, unlike in naturalisation, the procedure of re-acquisition does not provide for conditions regarding the command of language (this only existed between 2003 and 2009). But the expectation is that together with obtaining Romanian passports, those who re-acquire citizenship also reaffirm their national ties with the country. It is the betrayal of this expectation what caused the public outrage in the Tarasiuc case. It is important to note that Tarasiuc is known for her “moldovenist” attitudes and that she recently supported the campaign of Igor Dodon, the communist (and pro-Russia) candidate for Chisinau’s mayoral office.

Although certain former citizens may embrace citizenship for its symbolic value, it is no secret that Romanian citizenship is sought after for the opportunities provided by the possession of a EU passport. There is nothing surprising in Tarasiuc’s statement that associates the Romanian passport with “a visa” and “an instrument for being mobile.” It does, however, fall short of the two official justifications that underpin the Romanian policy of restoration of citizenship: the remedial justice rationale – which Romanian officials propagate abroad, including in order to appease the EU’s concerns about undermining common immigration policies (see Spiegel story) – and the national reintegration rationale that nationalists try to promote domestically. Interestingly, the harshest criticism against Tarasiuc’s attitude came from people from Moldova. As D. Galbur, a Moldovan blogger laments, “such statement seem to me almost criminal” since “for me obtaining Romanian citizenship meant reaching an ideal, which me and my family waited to attain since the end of the 1990s.”

One might worry that statements such as Tarasiuc’s would create a backlash in Romania that could jeopardise the process of the restoration of citizenship. Speaking on the case, Eugen Tomec, the leader of the Romanian Popular Movement Party (PMP) and a Romanian MP elected in the diaspora circumscription that includes Moldova, argued that Tarasiuc should be stripped of Romania citizenship because she proved “unworthy of being a citizen.” However, Tomec considered this an exceptional case that should not lead to derailing the Romanian policy on citizenship. On the contrary, the diaspora MP saw the episode as an opportunity to further speed up the process of restoration of citizenship. What is striking in this debate is the “un-sticky” quality (to recall Rainer Bauböck’s view on the sticky quality of democratic citizenship) of Romanian (re-acquired) citizenship. The easiness through which individuals can re-acquire citizenship matches with the easiness through which the state withdraws citizenship from individuals.

In the Tarasiuc case important legal obstacles will probably dissuade authorities from withdrawing Romanian citizenship on the ground of actions that damage the prestige of the country. The case could provide the spark to ignite a long overdue national-wide reflection on the purposes of citizenship and about its complex relationship with the nation and the polity. So far, however, such cool reflection has been pushed aside by one-sidedness, radicalism and cliché-nationalism.