1970s Soviet restrictions on emigration

[Kim Lane Scheppele]

Message
I just got back from Moscow (where I do research on contemporary Russian constitutional law -- and yes, I was there for the theater siege), so let me answer off the top of my head what my understanding of Soviet emigration policy was.

There was no law banning exit per se in the Soviet period; instead the law required that anyone wanting to leave get both a foreign passport and an exit visa, both of which were routinely denied for bureaucratic reasons.  One did not have access to a foreign passport as a matter of right.   And there was always the possibility of state retaliation against those who merely applied to leave, even if their requests were summarily denied.  In the 1970s, under international pressure, Jews were allowed to leave the Soviet Union, and so anyone whose domestic passport listed them as Jewish (a "nationality" not a religion, by the way) could apply for foreign passports and exit visas with some reasonable chance of success.   Not surprisingly, since only Jews were allowed to leave in large numbers, there was a rush of people wanting to change their nationality on their domestic passports to "Jewish" in order to qualify for the foreign passports.  (This is one reason why it is so hard to figure out what percentage of the Russian population was and is "really" Jewish.)

In current Russian law, one can get a passport as a matter of right (though delays and bureaucratic tangles still make it hard for some people to realize this right), but the Russian government still requires exit visas for anyone in possession of national security and state secrets.   Such people cannot leave the country unless they quit their security-sensitive jobs and wait for five years, absent special permission.   

In the last year, the Russian government finally dropped "nationality" on domestic passports, so that the official basis for discriminating on the basis of nationality has also disappeared.   But there is a substantial domestic lobby that wants to reintroduce "nationality" on passports precisely so that local officials can tell who is who.  (Some of this is clearly motivated by anti-Semitism but part of the motivation consists of a desire to see who is Chechen or otherwise not "really" Russian in an era of heightened nationalism and fear.)    

Also, as I can attest from personal experience, local officials out in the provinces have not learned the new rules.  Pointing out that federal law has changed so that one can get visas and passports as a matter of right mostly gets one branded as a troublemaker on whom bureaucratic problems descend thereafter.  Things are changing there and many changes have been very dramatic, but not everything has changed at once.

-kls

PS:  Apropos of our material witness discussion, the Russian Constitutional Court held a few months ago that no one can be detained by the government for longer than 48 hours unless criminal charges are filed against the detainee.  Russia does not, to my knowledge, have a material witness statute.  That same court, on another topic, also held that no death penalty can be given unless such penalty has been determined by an independent jury.  Russian constitutional law is increasingly interesting - and increasingly effective in practice.  Often it is precisely the soviet-era abuses that motivate them to do differently now.  

  
Kim Lane Scheppele
Professor of Law and Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA 19104
Phone:  215-898-7674   Fax 215-573-2025
Email:  kimlane at law.upenn.edu
  ----- Original Message ----- 
  From: Volokh, Eugene 
  To: CONLAWPROF at listserv.ucla.edu 
  Sent: Monday, November 04, 2002 10:23 AM
  Subject: 1970s Soviet restrictions on emigration


      As I recall, those Jews who were refused exit were indeed generally refused exit on the grounds that they had vital military and national secrets, though I believe that others were refused for some other reasons, such as their family members refusing to give them permission to leave.  But it's important to remember that ordinary Russians *were barred from leaving, period*.  If you weren't Jewish, Armenian, or possibly the member of a few other ethnic groups (I've heard Gypsies and Volga Deutsch listed in that category, though I'm not sure about it), *you couldn't leave*.  It's not that every Russian was claimed to have vital military and national secrets -- the Soviet Union just didn't recognize a right to emigration.
   
      As I mentioned, it's hard to figure out how U.S. constitutional law would deal with this, since there's (thankfully) been no occasion to test it; the U.S. has never imposed wholesale restrictions on emigration -- and the few restrictions that have been imposed (e.g., I assume that people who are out on bail aren't allowed to leave the country) seem so different that they don't really shed much light on the more general constitutional rule.  But I do know that the 1970s Soviet emigration restrictions were primarily *not* justified on the factual grounds that Mark describes.
   
      Eugene
   
  -----Original Message-----
  From: Mark Graber [mailto:MGRABER at GVPT.UMD.EDU] 
  Sent: Monday, November 04, 2002 6:48 AM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Re: Comparisons to the 1970s Soviet Union


    First, apologies to all.  I can never tell the two lists apart.
     
    Second, I really do not have specific examples.  What I have is a vague memory that I would love assistance with.  Namely, my memory is that the Soviet Union advanced various factual justifications for their claims.  One vague memory was that leaving Jews had vital military and national secrets.  So, I could use some help.  What were the reasons the Soviet Union gave?  Assume you believe them on the facts?  Would the present administration and their supporters believe those facts warranted restrictions of civil liberties?
     
    Mark A. Graber


    >>> VOLOKH at MAIL.LAW.UCLA.EDU 11/04/02 09:41AM >>>

        Can I ask Mark to be a bit more specific on this?  One chief complaint about Soviet human rights in the 1970s was the punishment of people for expressing anti-Soviet views; that would be clearly unconstitutional under U.S. constitutional law.  Another was the suppression of religious activity in a wide variety of coercive ways; also clearly unconstitutional.  A third was the refusal to allow people to leave the country -- I don't think there's a clear constitutional doctrine on this in the U.S., but this is because excepting extraordinary circumstances, the U.S. has always been much more interested in controlling who gets in rather than who leaves.
     
        If Mark has some specific examples in mind, I'd be interested in hearing them.
     
        (Note that Mark is referring to a thread on the RELIGIONLAW list, which asks whether it would be constitutional to bury terrorists who are Muslims in pigskin -- as some in Russia today are suggesting should be done -- on the theory that this may deter future Muslim terrorism; I mention this simply to make clear what the post below refers to, and not to bring the thread back to this list.)
     
        Eugene
      -----Original Message-----
      From: Mark Graber [mailto:MGRABER at GVPT.UMD.EDU] 
      Sent: Monday, November 04, 2002 5:43 AM
      To: CONLAWPROF at listserv.ucla.edu
      Subject: Buried in Pigskin


      As I read the "buried in pigskin" thread, the following thought occurred.  Suppose you believed that factual justifications proffered by the Soviet Union during the 1970s for what we thought were individual rights violations. How many of them under present administrative rationale would clearly be unconstitutional?  Is the most important difference between the United States and the former Soviet Union that we tend to think justifications for rights violations in the latter entirely pretextual?
       
      Mark A. Graber
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