The applicant, X, a Russian national left Ukraine on 26 February 2022 and applied for international protection in Estonia, upon arrival on 4 April 2022. The applicant based his request on grounds related to the war in Ukraine, his long-term residence in Ukraine and a risk of persecution in Russia on account of his anti-war views and actions.

The Police and Boader Guard (PPA) rejected the application and reasoned that the applicant is not known to the Russian authorities as a pro-opposition activist or anti-war activist known on social media. The applicant has lived in Ukraine for a long time and went to the Russian embassy to apply for a passport. Also, according to PPA, the applicant’s Instagram account does not have direct critical posts against the Russian authorities, thus the applicant was considered not to need additional protection. It is not enough that the applicant condemns Russia’s actions. The PPA stated that he applicant is 31 years old, has no more serious health problems, is not criminally convicted or wanted in Russia, and is not at risk of unjustified criminal punishment in Russia. According to the PPA, by issuing a passport, Russia has shown that the applicant is under diplomatic protection from that country.

X appealed against the negative decision before the Tallinn Administrative Court which by decision of 4 January 2023 allowed the appeal and annulled the PPA’s decision of 11 August 2022, ordering the re-assessment of the case. The administrative court noted that the PPA did not accept the evidence submitted by the applicant. The applicant fears persecution based on the following facts: he moved to Ukraine as a child and considers himself a Ukrainian; he is an applicant for Ukrainian citizenship and holds a long-term resident’s residence permit in Ukraine; he  provides financial support to the Ukrainian army and relief organisations which constitute treason under the Criminal Code of the Russian Federation and which may be punishable by imprisonment of up to 20 years; his Instagram account has more than 1,000 followers and often contains statements criticising Russian authorities, which under Russian law are discredited by the army and for which 16351 people have been detained as of 25 June 2022.

The administrative court reasoned that the applicant fears persecution in Russia because of political sentiment and membership of a social group. The applicant has been living in Ukraine since 1998, considers himself Ukrainian and applied for Ukrainian citizenship in 2019. The applicant considers the Russian authorities to be potential perpetrators of persecution. The PPA has identified only political convictions as a basis for persecution, but could be inferred from the applicant’s statements as a whole that he considers himself to belong to a particular social group: a Russian citizen living in Ukraine for a long time, financing Ukrainian relief organisations, is an opponent of Russia in the war in Ukraine, and he has started a procedure to renounce Russian citizenship and acquire Ukrainian citizenship. However, according to the PPA, the facts put forward by the applicant do not indicate that the authorities in Russia are interested in him, since the applicant has applied for a passport at the Russian embassy in Ukraine. The administrative court of Tallinn stated that the PPA failed to examine the application in view of the applicant’s statements and available country of origin information , including from EUAA, June 2022, COI Russia.

The PPA appealed on points of law before the Circuit Court of Tallinn and requested the annulment of the administrative court decision. The Circuit Court noted that the applicant submitted new pieces of evidence during the appeal proceedings which are relevant and necessary for the correct assessment of the case. The applicant reiterated the facts and his fears of persecution based on political conviction and membership of a particular social group.

The Circuit Court rejected the appeal of the PPB and stated that the administrative court correctly explained that the applicant cannot be expected to conceal or change his political views in the event of his return to Russia. The PPA therefore had to assess the consequences for the applicant if it continued to carry out the same activities in Russia as before, including by expressing in social media positions supporting Ukraine and criticising Russia, and continuing to provide financial assistance to the Ukrainian armies and relief organisations. The Circuit Court consulted the EUAA Practical Guide on Political Opinion, 16 December 2022. 

The Circuit Court noted that, in addition, since 1 December 2022, Russia has enacted a law according to which anyone who is under the so-called external influence or receives financial support from a foreign country may be considered a foreign agent.

The Circuit Court stated that in its appeal, the PPA referred to the EUAA report of 15 December 2022 entitled ‘The Russian Federation – Political Opposition’, according to which the FSB monitors the most famous politicians, but does not systematically follow journalists, bloggers and activists that are so well known. If the state is publicly and regularly criticised, including on social media, then the critic may still be sued and that will be enough to punish the person. The Circuit Court agreed with the PPA that it cannot be inferred from this report that people with the applicant’s profile would face persecution if returned to Russia. At the same time, this report primarily concerns the treatment of well-known dissidents, journalists critical of state power and human rights activists and the applicant is not among the groups described in the report, even if he continues to share posts on his Instagram account from time to time, as can be seen from the evidence presented to the court. The court further mentioned that this report does not specifically mention groups with a ‘Ukraine background’, thus it cannot be used for the assessment of the case. The Circuit Court added that in its appeal, the PPA did not further analyse the country-of-origin information relating to financial support to the Ukrainian army and aid organisations and the increased spread of the culture of appeal after the start of the war in Ukraine and the risks associated with it for people who returned to Russia after the start of the war, who publicly support Ukraine in the war.

In view of the above considerations, the Circuit Court rejected the PPA’s appeal and confirmed the judgment of the administrative court.