Articles for author: Dimitry Vladimirovich Kochenov

EU Citizenship’s New Essentialism

The Court of Justice of the European Union ruled that the Maltese citizenship by investment violates EU law. The Court thereby hints – for the first time – that EU citizenship bond is not only legal in nature. Citizenship has suddenly become a legal but also some other connection between a person and the state. In other words, the law is not enough to make one a citizen, as any such citizenship might fall short of ‘solidarity and good faith’ test at the EU level. This newly-invented extra-legal rule put thousands of Europeans in limbo. This blog will locate some key steps marking this development and offer a possible presentation of the recent decades of EU law in three broad steps, to show how we got where we are.

5. Mai 2025

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How the EU Death Machine Works

Since 2015, more than 27.500 innocent people died or ‘went missing’ in the Mediterranean. They drowned by themselves thanks to villain smugglers, the Council submits; accountability for the death toll is a complex matter, the Court of Justice finds; besides the geopolitical times are complex – the Commission is right. But what an accident: mare nostrum, a great thoroughfare, turned itself into a racialized grave. Yet, these deaths at EU borders, just as mass abuse and kidnappings by EU-funded and equipped thugs in Libya do not happen by chance. The EU-Belarus border is another locus of torture and violence. All this is a successful implementation of well-designed lawless policies by the Union in collusion with the Member States. In this post, we map key legal techniques deployed by the designers of the EU’s death machine.

27. Februar 2024

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Constitutional Identity vs. Human Rights

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In two recent Latvian cases concerning the Russian-speaking minority decided respectively in September and November 2023, the ECtHR made clear that protection of constitutional identity has now been elevated to a legitimate aim for a differential treatment under the Convention. This post explores how the protection of constitutional identity has been deployed to enable a collective punishment by association with a former occupier, and how the ECtHR’s reasoning has effectively endorsed such a punishment, which is unbefitting of a liberal democratic system the ECHR aspires to represent. Until the three cases were decided, no liberal European democracy could argue without losing face that suppressing a large proportion of its population was its constitutional identity – one of the goals of its statehood. Today, this claim is seemingly kosher, marking a U-turn in the understanding of what the European human rights protection system is for minorities in Europe.

21. Dezember 2023

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Ignoring Human Life in Belgium

Two kilometers from Manneken-Pis in beautiful Brussels is the seat of the Belgian Constitutional Court, which has recently condoned the torture of an innocent citizen putting the very right to life on the line in a blunt attack against the overwhelming political consensus, as well as popular and academic support to save Olivier Vandecasteele’s life. Today, all eyes are on the court, as it will get a chance to correct the injustice of its own making.

15. Februar 2023

Putinism is Contagious

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As Moscow’s invasion of Ukraine continues, EU Member States are contemplating new sanctions, including Schengen visa bans for Russian citizens. The underlying rationale is the WWI ‘enemy alien’ logic, where all Russian civilians are enemy aliens, and must be treated with suspicion. This populist construction of an ‘enemy alien’ is antithetical to the EU’s constitutional core, which also informs its visa and migration law. The populist retributive logic, to us, is a stress-test of the rule of law in the EU. It’s good news that, outside Estonia and Latvia, it seems to be holding strong in other Member States.

19. August 2022

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Take Down the Wall. And Make Russia Pay for It

EU law allows admitting Ukraine into the Union immediately. This is not only the moral imperative, it would also not require any Treaty revision and mark a return to the classical approach of the first EU accession: accession first, full taking on of the acquis later, with lengthy transitional periods. Ukraine will also require a super Marshall plan to ensure speedy reconstruction. This is doable: the seized – say confiscated – “Russian” money, a bit short of a trillion by now, will be enough, with the EU hopefully topping this amount.

21. März 2022

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Sanctions for Abramovich, but Schröder Goes Scot-Free

What is the role of citizenship – Russian and European – in the context of the deployment and operation of the sanctions? The question is far from trivial. Indeed, effective rights-focused judicial review of such measures is very weak, allowing the matters of foreign policy and perceived political expediency and retribution to override core constitutional principles and guarantees of the European legal systems at all levels. Let us start with history, to understand what is going on and give it a legal assessment.

11. März 2022

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Claiming “We are out but I am in” post-Brexit

It is not often that the European Court of Justice (ECJ) is presented with a case in which the law is so crystal clear, and so overwhelmingly contrary to the applicant’s claims, as in Préfet du Gers. The central question of the case is weather British nationals retain their EU citizenship and EU citizenship rights after Brexit. Given how straightforward the Treaties and the case-law are on this matter, it is unsurprising that AG Collins answered this question in the negative in a well-argued and straightforward Opinion.

25. Februar 2022

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Curing the Symptoms but not the Disease

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Traffic violations are not a proportionate justification to effectively deprive a person of her EU citizenship. This may sound obvious but in reality it was not, as the crucial Grand Chamber case of JY decided on January 18 demonstrates. This is a significant yet predictable addition to the edifice of EU citizenship post-Rottmann. Regrettably, the forward-looking judgment is myopic up to the point of an error of judgement as to the fundamental challenges at play in the factual constellation at hand.

20. Januar 2022

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The EU’s Face in Łukašenka’s Mirror

On the Polish-Belarusian border thirty-two Afghan citizens have been sitting quite literally between the Belarusian border guards on the one side and Polish border guards, army and police on the other for two weeks now. They sit there without access to water, food or medical aid. They sit there claiming their rights under EU and International law. Yet, they are not allowed to ask for asylum or establish any contact with the outside world. The tragic situation of those thirty-two hostages exemplifies both how devastating the consequences of rule-of-law backsliding might be and how closely linked the rule of law breakdown in Poland and the general denigration of EU values in the field of migration are.

26. August 2021

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