08 Juni 2020

“Passport Trade”: A Vicious Cycle of Nonsense in the Netherlands

“How can you justify the fact that your work was translated into Russian? This goes against the claim that you engage in academic work. Is Russian not the language of billionaires interested in getting another citizenship?” Following the persistent repetition of this question by a four-person independent investigation committee installed by my home University, my lawyer, seeing that I have no words – indeed, am unable to speak – asks for a break and leads me out of the room. We sit on the steps in front of the beautiful Academy building. This is Groningen, January 2020, I am a Dutch professor of European Constitutional Law and Citizenship here and Russian is my mother tongue.

The goal of the investigation was to establish my role in the “controversial passport trade” of the Maltese government in reaction to accusations leveled by Dutch television and politicians in a persistent media attack (see “Journalism” below). In a convoluted report of almost 100 pages with annexes (analysed in my Naschrift) the independent investigation committee finally concluded that “Prof. Kochenov gave no advice concerning whether some individuals could obtain Maltese passports. The legal advice he gave dealt exclusively with the elements of the Maltese legal system and the Individual Investor Programme in relation to EU law.” Moreover, “there is no evidence that Prof. Kochenov’s academic work was influenced by the honorariums he received.”

I stand fully exonerated from the allegations of “the passport trade.” 

“Passport Trade”

There is one problem with this finding however: the “passport trade” does not exist outside of the clandestine Pacific markets or the criminal circles faking official documents. By contrast, acquiring residence and/or citizenship in strict compliance with national and European law in exchange for investment is something quite different. While the absolute majority of EU governments promote the latter, not a single government in the EU has ever officially engaged in the former. There is an abyss separating legal work on investment migration and criminal “passport trade”. The finding by the independent investigation committee, which did not include a single expert on citizenship, naturalization, or residence law, is thus entirely meaningless, even before you begin to work back through its tortuous reasoning. It was bound to be so unless someone is actually accused of corruption or acquiring travel documents by illegal means. The latter was not the case here. By blurring the lines between clandestine criminal operations and best practice in naturalization law, “passport trade” has been persistently used by Dutch politicians and journalists, opposed to investment migration and dual citizenship. In other words: a Professor was blamed for sharing his expertise in citizenship in Union law, which some local politicians in the Netherlands misunderstand and happen to dislike. Fully legal mainstream practice was, quite absurdly, presented as criminal.

As opposed to “passport trade”, investment migration – which is achieved through the acquisition of citizenship by investment (CBI) or residence by investment (RBI, often eventually leading to citizenship) – is a completely legal practice, which is widespread in the European Union (EU). In a world where states themselves decide on who their citizens are (1930 Hague Convention, Art. 1), cashing in on rich foreigners coming from the countries issuing low-quality citizenships is an attractive prospect. It is not surprising that the rich are more than ready to pay a lot of money for a more dignified, more useful and often less-abusive status, given the role which citizenship plays in our lives, as Milanovic, inter many alia, shows in his work. Citizenship is an effective legal tool of harsh arbitrary punishment and exclusion – and the particular mode of its acquisition cannot possibly alter its essence. 

According to the 2019 Report of the European Commission, in the EU alone direct citizenship by investment is available in Bulgaria, Cyprus, Malta and potentially other Member States. As for residence, Bulgaria, Cyprus, the Czech Republic, Estonia, Greece, Spain, France, Croatia, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania and Slovakia offer (permanent) residence statuses for investment, which are often convertible into the citizenship of those Member States. In short, investment migration is practiced by the absolute majority of the EU’s Member States. Notwithstanding that the “political Commission” got the law wrong in the same Report (which, consequently, resulted in no legal change in investment migration landscape in the EU), a bare summary of the facts is there: “Fortress Europe”, next to the US, Canada, the UK, Turkey and the Caribbean, is a world-leading example of this type of marketised sovereignty (though others abound, from Jordan to Vanuatu and Moldova). Given the randomness of citizenship distribution, which I described in detail in a little MIT Press monograph (translated into Russian, as well as that other language of the global plutocracy – Italian), opposing any particular route to naturalisation would be pure hypocrisy, just as is citizenship itself. And there are, of course, enough hypocrites.

What political opponents of particular types of naturalisation cannot ignore – even if they are not (very good) lawyers – is that investment naturalisation and residence falls squarely within the realm of what is legal worldwide and in the EU. From Hans Ulrich Jessurun d’Olivera to Jo Shaw and Daniel Sarmiento the consensus is well articulated. In the EU it is confirmed unequivocally by the case-law of the Court of Justice, from Micheletti and Zhu & Chen to Tjebbes: if a Member State wants an investment migration programme, it can have one: the division of competences is crystal-clear. Even those in the European Parliament who dislike the practice are clear about where the competence lies (at point 6).

When the newly-elected Maltese government was selectively attacked in 2014 by (then) Vice President Reding and the European Parliament for its plans to join the dozen other Member States in the investment migration business, I was honoured to provide them with legal advice at their invitation. EU Citizenship and Federalism is my core expertise and fending off misrepresentations of the law by politicians is what lawyers do. Both issues motivating my engagement were totally uncontroversial. Member States may decide who their citizens are, a position unsurprisingly defended by the Dutch government (question 12). Without the people there can be no statehood in fact, as Jessurun d’Oliveira reminds, and while citizens can obviously not be obliged to reside in their country of citizenship – a position equally held by the Dutch government (question 9) – residence is almost never necessary to become or remain a citizen. Since 2014 Malta has earned almost a billion euros, which is neither a fortune nor an insignificant amount for a micro-state, and in return a number of investors got what Yossi Harpaz calls a ‘compensatory citizenship’ in the EU, making up for the deficiency of the low quality legal status they acquired randomly by birth.

Malta is among the recent entrants into a fast growing investment migration industry: dozens of states in Europe capitalise on the huge discrepancies in the quality of citizenships offered around the world combined with the sealed borders of the “West”. The added value of this activity is difficult to overestimate. It offers a financial boost to states (amounting, according to the IMF, to more than a quarter of GDP in some Caribbean nations). It allows individuals – the losers of the “birthright lottery” – to get a citizenship associated with at least some rights or even a change of residence.

“The Passport Professor”

The popularity of investment migration world-wide is on the rise: it is a multi-billion-dollar industry with hundreds of players large and small the goings on of which are monitored by the Daily Investment Migration Insider. The industry’s self-regulatory body is the Investment Migration Council (IMC), which I co-founded in 2014. It is a non-for-profit association, which focuses on the best practices investment migration applicable to governments and stakeholders. The IMC has a strong research component. While chairing the association, I founded the IMC Research Papers series, responsible for the better understanding of the processes underlying contemporary citizenship and naturalisation. The core point of my scholarship has been that citizenships are not equal and are extremely important in all aspects of our lives. It led, inter alia, to the publication of the Quality of Nationality Index (latest edition with Bloomsbury/Hart, 2020) and numerous other engagements. This is what your “passport professor” does – the title rooted in the colourful passport pictures in my books, which Nieuwsuur and some Dutch politicians tried to abuse to question my integrity.

I came of age during the “wild 90s” in Russia, when television news was mostly trashy journalism consisting uniquely of political hit-jobs. It was certainly amusing to become the subject of this art form on prime time national television in the Netherlands, my adoptive country of citizenship. My strategy for dealing with the impossibly absurd “passport sales” accusations has been not to engage, which is why this blog post is the only piece I have written on the matter. “Passport trade” is deviant and criminal. The Maltese naturalisation and residence policy is nothing of the kind: it is completely legal and mainstream as any other national naturalization programme operated by any EU Member State. But politically engaged journalism can create its own reality. So I may have been wrong in not engaging with national television, which omits its homework on even the most basic facts when pushing a narrative, just as I baulked at having to offer a serious defence of the value of the Russian language before that independent investigation committee. Is it not obvious that sharing global research in the country of origin is an important part of scholarly work? I thought: those who have read Leo Tolstoy will smile; those who have a vaguest idea of EU law or citizenship will simply switch off the television. I have since learnt that Count Tolstoy might as well not have labored his long life, for the good it would have done those independent investigators, and that the television remains on sometimes, however atrocious.

“Journalism”

Last autumn the Dutch national television news progamme Nieuwsuur teamed up with several national politicians who dislike investment migration in other countries, but who do not want deprive their own country of its residence by investment option, in order to attack Malta with flagrant disregard for facts or law – Maltese, or European. The first film Nieuwsuur broadcast was on “passport sales” in Malta. Having interviewed a couple of local anti-citizenship-by-investment activists and no one from the government or the investment citizenship world, the journalist knocked on the doors of the new citizens, not finding them home. It is a basic principle of citizenship as a global legal status that no citizen can ever be obliged to reside in the country of nationality (as acknowledged by the Dutch cabinet (question 9)), but this journalist nonetheless felt free to frame the failure of the new Maltese citizens to respond when they absurdly knocked on their doors as “news”. The journalist selectively read the relevant Maltese law in force since 2014, understanding that investment is necessary, but failing to mention due diligence checks and that residence is not required, just as is the case with the absolute majority of all the other investment migration programmes in the EU. The Maltese government was accused of legally making money for its people.

The second film was about an unspecified but presumably shady role for the Dutch “passport professor” – me – in the “passport trade”. It used an interview where I explained that the law on EU citizenship, investments, and the division of competences between the Union and the Member States is quite clear, in order to indirectly accuse me of advising one of the 21 EU governments engaged in this practice, and of doing research into this growing field, as well as chairing a relevant professional association. It is like accusing a professor of procurement law of accepting the honour of chairing the procurement law association while writing on procurement.

This would have been an amusing incident – akin to the reporting on my work by Breitbart or BizPac Review. Indeed, only one Dutch national outlet covered it professionally so far. But there was a trick. As it turned out, the attack against my work and against EU law on citizenship as such, reflected the political aspirations of Mr Omtzigt – a Dutch MP – and several of his colleagues eager to politicise the issue of investment migration by branding it as the “passport trade”, in an attempt to make it sound illegal, if not criminal. While the media nation-wide paid virtually no attention, Mr Omtzigt remained persistent. Indeed, Mr Omtzigt felt it appropriate to use his position as a Dutch parliamentarian to try to question Maltese law by way of several rounds of parliamentary questions about the work of a Dutch Professor of European Constitutional Law, addressed to Dutch ministers in full knowledge of the fact that his questions are moot, given that naturalisations in Malta are no more a matter for Dutch ministers than Dutch naturalisations are a matter for the Maltese.

Mr Omtzigt’s dedication to the rule of law is commendable, but his complete misunderstanding of EU citizenship law led to parliamentary questions about my work in the “passport trade” resulting in theatrical political attack against scholarly independence, my scientific track-record, as well as the current state of the law as it is accepted by all the Member States of the EU, including the current Dutch cabinet. As a result, for several months “the Passport Professor” emerged as a staple of parliamentary questions in the Netherlands. 

Considering the above, it might be clear why such flattering parliamentary attention to a humble citizen, (especially a naturalised one, especially in the absence of the subject for which such attention is being granted) unquestionably felt like bullying from my point of view. I can think of no other law professor in Europe subjected to this type of intense “questioning” by the members of a national Parliament for doing his job: speaking at conferences, publishing books, and giving impeccable legal advice, which resulted in no court cases lost.

Of course I fully realise that this is how politics works, however absurd and dirty – and kudos for the persistence! The reasons for asking these useless questions can be completely understood from the journalism surrounding them – and here, even knowing that the Dutch NOS is hardly your BBC, one could expect a somewhat better job. Mr Omtzigt found an ally in Nieuwsuur, ready to report pruriently on an imagined “passport trade”, thus giving preference to advancing particular political aspirations over the law and over the facts. Nieuwsuur used my willingness to summarise the law in a prior interview and my general prominence in the field of EU citizenship as a pretext to give public airtime to the Quichotic tilting of Mr Omtzigt and his friends against a particular type of naturalization in a foreign country.

Nieuwsuur and Mr Omtzigt hijacked the “passport professor” title to create an overall evil framing of my expertise as an allusion to potentially criminal “passport trade” to their mutual benefit, and establishing a vicious cycle of nonsense. Mr Omtzigt would purportedly rely on the television report to ask his parliamentary questions about non-existent Maltese “passport trade” by the “passport professor”, and Nieuwsuur would then report on the questions asked. Answers would come – and Nieuwsuur would report on them too. This produced a classic example of a journalist-MP dog and pony show (which even won a local prize) trying to make news and law and failing at both: in response to their more than 10 acts until now, including films on prime-time television, only two national newspapers have reacted (none of the two leading ones) and EU law has not changed. 

The parliamentary questions about Prof. Kochenov received the most amusing coverage, including news stories alluding to spying, corruption and all kinds of shady business, but never mentioning which law was being broken, such as “What Is the Role of the Dutch Professor in Questionable Passport Trade”, or “The Parliament Is Worried about the Investigation into the ‘Passport Professor’ Kochenov” reporting on the questions asked by MPs about the University “promoting a questionable research project of Kochenov”, i.e. retweeting global media coverage of my work was “Passport Trade: Disappointment with the Groningen Professor Grows in the Hague”. Then came discussion of corruption and spying in the context of reporting on the questions asked by MPs regarding a conference talk I have given, reporting on a new book now published by Bloomsbury in Oxford. The answers were discussed in ‘Cabinet Understands Little Concerning Groningen Professor’s Trip to a Passport Conference’. In fact – who is the Minister to understand my work? Is the Minister a citizenship scholar? What role does the Minister play in setting a professor’s research agenda or conferencing schedule? The absurdity of the parliamentary questions was thus only matched by the outright stupidity of their reporting: “the professor of citizenship talked at a conference about citizenship about a recent book on citizenship”, all amplified by their constancy and persistency.

Ironically, the law which Mr Omtzigt is politically alarmed about, is not his to change, no matter how much public attention he would summon: a Dutch national politician is nowhere nearly able to alter EU rules on competence over naturalisations, especially ones supported by his own government (question 12) – and investment migration in Europe is flourishing. The Maltese can change the law at any point and it is their right – not Omtzigt’s or the EU’s. The political attack I experienced was thus not only unmerited but also devoid of any purpose: the division of competences in the EU, on which I gave scientific advice, remains the same.

Being trolled on prime time national television is a token of recognition almost as satisfying as having a cookie named after me in the Groningen café where I meet with graduate students, or the well-deserved “passport professor” title. What else can one expect, when researching ‘The Dark Side of Citizenship’? And the independent investigation committee appointed to hunt the Snark full-time for months is a glorious study on the human condition, especially so when the ghost of the Snark is feared to haunt the language of Pushkin. The question remains, however, is Russian really less academic than Dutch?  

They sought it with thimbles, they sought it with care;
They pursued it with forks and hope;
They threatened its life with a railway-share;
They charmed it with smiles and soap.

A previous version of this post did not contain the information about the above-mentioned journalism prize, VB


SUGGESTED CITATION  Kochenov, Dimitry Vladimirovich: “Passport Trade”: A Vicious Cycle of Nonsense in the Netherlands, VerfBlog, 2020/6/08, https://verfassungsblog.de/passport-trade-a-vicious-cycle-of-nonsense-in-the-netherlands/, DOI: 10.17176/20200609-013155-0.

23 Comments

  1. Prof. Dr. Jacques Ziller Do 11 Jun 2020 at 08:38 - Reply

    Dear Dimitry,
    I fully support you in this absolutely Kafkaian story. I am more than willing, to write also to the members of the „independent investigation committe“ whom you mention at the beginning, to make them realise that their behaviour reminds me only too much of the way universities were managed in the Soviet Union. And I’m willing to write the letter in Dutch, English, French, German, Portuguese, Spanish and Russian (for the latter with some help of French colleagues who have a better mastery of that language).

  2. Aleksandra Gliszczyńska Do 11 Jun 2020 at 14:16 - Reply

    Dear Dimitry, you have my support.

  3. Dr. Ulad Belavusau Fr 12 Jun 2020 at 13:18 - Reply

    This is an unprecedented attack on academic speech and freedom of research in the Netherlands. Courage to Dimitry and congrats on winning the first bureaucratic battle. The nature of this propaganda movie on the Dutch TV and the follow-up – fully agreeing with Prof. Ziller here – „Kafkaian“ saga is worth of a novel.

  4. Luuk Mulder Mo 15 Jun 2020 at 20:13 - Reply

    In this blog professor Dimitry Kochenov argues he is the victim of an intricate conspiracy between politicians and the media, more specifically Nieuwsuur, my employer. The sole aim of this conspiracy: to damage him and his reputation.

    Triumphantly proclaiming he stands fully exonerated from the allegations of “the passport trade” one would almost get the impression that Kochenov successfully fended of these supposed attacks. But if you take a close look at the facts you will get a different image; Kochenov received an official warning from his employer Groningen University for a number of reasons.

    Nieuwsuur reported on Malta’s passport programme, or the Individual Investors Programme as the Maltese government calls it. In our reporting we showed how it has caused concern for national security in both Finland and the Netherlands and we showed how professor Kochenov was involved in the creation and subsistence of the IIP. We also discussed Kochenov’s broader involvement in the world of investment migration. Prof. Kochenov was given ample room for a rebuttal.

    The report can be seen here in a special YouTube edit:
    https://www.youtube.com/watch?v=-D-ZTYBPagw

    Our broadcast led to parliamentary questions about prof Kochenov’s role in the Maltese programme. The questions came from four different MP’s ranging from the Christian Democrats to the Socialist Party. In the meantime, the university of Groningen ordered an independent investigation into Kochenov’s activities. In response to the parliamentary question the minister of education indicated that she would have the education inspectorate monitor the investigation. She also expressed her concern about the Maltese passport programme writing: “such a programme can enable persons with bad intentions, under which criminals but also foreign intelligence officers, to travel freely within the EU. This could have consequences for national security, especially because the Netherlands is an interesting target for espionage and unwanted interference from other countries.”

    Of course, Nieuwsuur reported on these questions in parliament, and on the response of the responsible minister. Of course, they reference our reporting. That is how an open and democratic parliamentary system functions. Claiming this is a conspiracy is an indication of a fundamental misunderstanding of how Dutch democracy works.

    Kochenov’s involvement in the “passport trade” was never subject of investigation as he claims. No one alleged professor Kochenov was single handedly selling passports. What was investigated however, was whether or not professor Kochenov’s academic work conflicts with his consultancy work and whether or not Kochenov was transparent with his employer about the extensive list of activities outside the university. In his blog there is no mention of the many, for professor Kochenov less convenient findings. Such as the fact that the report concludes there is a conflict of interest when it comes to Kochenov’s academic and consultancy work. Or that his behaviour has damaged the reputation of the University of Groningen. Or that there was proof of illegitimate payments into prof Kochenov’s personal bank account.

    The full report can be found here:
    https://www.rug.nl/about-ug/latest-news/news/archief2020/bijlagen/onderzoeksrapport-kochenov-def.pdf

    Kochenov’s reply here:
    https://www.rug.nl/about-ug/latest-news/news/archief2020/bijlagen/naschrift-kochenov-eindrapport.pdf

    And then there is the investigative committee’s very insightful response to that reply. It recounts how Kochenov supplied incomplete, redacted information and threatened legal action when the committee easily managed to decipher the blacked-out parts. The information was very valuable according to the committee, but it wasn’t used because of Kochenovs threads. So we still don’t know the whole story. The response can be found here:
    https://www.rug.nl/about-ug/latest-news/news/archief2020/bijlagen/reactie-onderzoekscommissie-naschrift-kochenov.pdf

    One last thing: Kochenov mentions we did not interview any representatives from the Maltese government, nor anyone from the investment migration world. This is true. But the way Kochenov’s frames it makes it look like this was done on purpose, to create a one-sided image. This isn’t true. For months we tried to get interviews with Maltese officials and other big players in the world of investment migration. None of the was willing to make time for us.

    Kochenov makes a valid reproach here, but he is putting the blame on Nieuwsuur where it would be more suitable to blame his companions in the investment migration world. Their secretiveness is telling.

  5. Jan Komárek Mo 15 Jun 2020 at 21:44 - Reply

    Dear Dimitry,
    I have read your blogpost and as a fellow European academic, still have some questions I would like you to answer:

    No matter what you reply to the findings of the committee set up at your university, which concern (as it seems from the information available to us) mostly allegations concerning how its reputation could suffer from your involvement in the investment migration business, I would like to express my concern about your changing roles – between an academic/Professor at a respectable university in some contexts – and a business person/lobbyist in others and your apparent lack of reflection over this.

    While I do not think that any expertise can be “neutral” or “objective” (especially in a field like law), I think we should strive at being as neutral and objective as possible – and at least reveal factors that may make our judgment partisan or influenced by other factors than our knowledge (or the beliefs of our knowledge). That is why – I hope – we work at universities, to enjoy independence from all other influences (yes, this is changing under the present circumstances, when we need to be entrepreneurial and show “social impact” – but I hope even this ideology has its limits).

    It seems obvious to me that if someone gets substantive sums for the use of their expertise while being involved in business structures that concern the field of their expertise, they should – at the absolute minimum – be absolutely transparent about it. So, can you please explain to us the precise nature of your involvement with the Investment Migratinon Council? This reportage (at 26:50 – https://www.youtube.com/watch?v=-D-ZTYBPagw&feature=youtu.be&t=1606) claims that you got paid 36.000 EUR for your legal advise. You refuse to comment on your fees to the journalist, but really, is it not a concern for us, your fellow academics, even more so if the same reportage shows that besides the Investment Migration Council there has been a company set up (IMC Limited Company), where you are one of the two board members? Do you really provide governments with your independent expertise – and do you still act as a professor under such circumstances, or as a lobbyist and business person?

    Moreover, it is one thing to present the International Migration Council, which you co-founded with the people from the industry and then chaired, as a non-profit organization – but that surely does not automatically mean that you do not get any profit from activities related to the Council, does it?

    From this article (https://nos.nl/nieuwsuur/artikel/2336629-paspoorthandel-groningse-hoogleraar-schuldig-aan-belangenverstrengeling.html) it does not seem that the report has fully exonerated you, as it seems that you have not reported your ancillary activity to the University as its rules require – as they do at many universities, including my own – UCPH, or the previous one – the LSE.

    The confusion of your roles (and possible bias in what you say about citizenship, when you appear in the academic role) than materializes in several contexts (as also shown in that reportage), but I have my own concerns too, based on reading your very blog post above:

    When you say that “What political opponents of particular types of naturalisation cannot ignore – even if they are not (very good) lawyers – is that investment naturalisation and residence falls squarely within the realm of what is legal worldwide and in the EU. From Hans Ulrich Jessurun d’Olivera to Jo Shaw and Daniel Sarmiento the consensus is well articulated”. I have checked both Shaw and Sarmiento (since I know their work from other contexts) and I have realized that what you actually want to say was that “the EU does not have competence to regulate citizenship of its Member States”, which is quite different from saying “in EU law it is legal (and legitimate) to do business with the EU citizenship”. There are people who may agree with the competence issue, but still do not find it legitimate that some governments can put EU citizenship on sale. That was also why there was the COM’s initiative etc. It would also help if you were more precise: according to the Commission’s finding (https://ec.europa.eu/info/sites/info/files/com_2019_12_final_report.pdf) – which you agree to (https://verfassungsblog.de/investor-citizenship-and-residence-the-eu-commissions-incompetent-case-for-blood-and-soil/)– it is only three member states which sell citizenship rather than permanent residence. I hope you agree there is a whole world of different in the symbolic (and yes, ideological) value between the two.

    When you argue that “Citizenship is a hypocritical scam that preserves and reinforces global inequality” (https://www.nbcnews.com/think/opinion/citizenship-hypocritical-scam-preserves-reinforces-global-inequality-ncna1143431), would not it be fair to state that besides being “a professor of EU constitutional law at the University of Groningen, the Netherlands. He has held visiting appointments and fellowships, including at Princeton University (LAPA), the College of Europe (Natolin), the Universty of Turin, NYU Law School (Emile Noël Fellow), and the Institute for Global Studies (Basel)”, as the biographical note states, you have also had roles in the industry which depends precisely on hollowing out of the notions (ideologies) of citizenship that make political community and social solidarity possible and turn it into a commodity?

    It can be the sign of present times that academics want to do even more money – and most of the time they are rewarded by universities for doing “outreach” – so long as it does not threaten their good business name (hence Prof. Ziller’s reference to the Soviet times is so inapt and misleading; it is not the totalitarian practices of the communist regime at play here, but a result the process of turning universities into profit-making entities, which may discipline its members, if they harm their business), but still, there is academic community that may have questions on you.

    Thank you,
    Jan Komárek (Professor of European law, University of Copenhagen).

    PS: Finally, to the editors of this blog: would it not be fair to ask the University of Groningen to comment on all this, so that we may have a chance to hear the other side of this story?

  6. Prof. Dr. Dr. Aurelia Colombi Ciacchi, Professor of Law and Governance, University of Groningen Mi 17 Jun 2020 at 08:07 - Reply

    Useful to know: The report of the investigation committee is one thing; the final conclusions drawn by the University of Groningen in this case -after having read both the committee’s report and Dimitry’s reply thereto – is a different thing. The University of Groningen’s final statement and official press release does discharge Dimitry from all accusations, with the only exception of procedural irregularities. I am copying and pasting here the final conclusions and official press release of the University of Groningen in this case:

    „The investigation into the additional activities of Prof. Kochenov, which was initiated by the Board of the University of Groningen in November 2019, has been finalized. The investigators have concluded that the professor of European Constitutional Law and Citizenship was not involved in the alleged ‘Maltese passport trade’. However, Kochenov, his manager and the Faculty Board have failed to comply with the approval procedure for additional activities set out in the applicable regulations. The Board will issue a warning to Kochenov and improve its internal procedure for reporting additional activities.

    In September 2019, it was suggested in the media that Prof. Kochenov, professor of European Constitutional Law and Citizenship at the Faculty of Law, was involved in the alleged passport trade on Malta. These media reports resulted in questions in Parliament addressed to the Minister of Education, Culture and Science, which in turn led the Board of the University to initiate an independent external investigation into the professor’s additional activities. This investigation was conducted by the research bureau Berenschot, independently led by H.J. Van Keulen.

    The main conclusions as concerns Prof. Kochenov were as follows:

    According to the investigators, Prof. Kochenov was not involved in any passport trade: he did not issue advice on individual cases and was not involved in the question whether individuals qualified for Maltese passports. His advice concerned components of the Malta Individual Investor Programme, partly in relation to EU regulations in the field of citizenship.
    The investigators have not found indications that Kochenov’s academic independence and objectivity were affected as a result of payments made to him or for any other reasons.
    In addition, no mention of Prof. Kochenov has been found in the Paradise Papers. The company on whose board he sat was listed, for the simple reason that all Maltese companies are listed in these papers.
    In addition to these conclusions, the investigators note that Prof. Kochenov and his manager have failed to comply with the approval procedure for additional activities set out in the applicable regulations, and the Faculty Board was hesitant to interfere. The investigation report shows that several aspects of additional activities performed by academic staff require clarification.

    The Board of the University will take the appropriate measures. Prof. Kochenov will be issued a warning, and the internal information provision and procedures for requesting permission to perform additional activities and receive additional income will be improved.“

    Here you can find the official press release (in English) and the links to further documents:

    https://www.rug.nl/about-ug/latest-news/news/archief2020/nieuwsberichten/uitkomst-onderzoek-nevenwerkzaamheden-rug-hoogleraar-europees-constitutioneel-recht-en-burgersch

    • Luuk Mulder Mi 17 Jun 2020 at 12:20 - Reply

      Dear professor Colombo Giacchi,

      I’m afraid your observations only touch the surface of what is happening here. As I wrote before, and as you could have read yourself in the report, the question whether or not Kochenov was involved in the passport trade was never the subject of investigation as such. That is just spin from the University of Groningen to distance themselves from this controversial business which Kochenov has associated them with,

      To say Kochenov has been discharged from all accusations seems rather paradoxal, why would the university issue an official warning if no irregularities were found?

      The investigation uncovered several irregularities, from illegitimate payments to a conflict of interest between his academic and consultancy work. It also states Kochenovs behaviour has damaged the reputation of the university. According to the report Kochenov violated Dutch academical codes of conduct by not asking for permission for, and not being transparent about his ancillary activities’

      Then why is the university spinning this story the way it does? The exoneration of involvement of the passport trade is a decoy. If you look at page 4 of the report you will find the research questions. Involvement in the passport trade is not one of them. The university itself doesn’t necessarily play an exemplary role in this story either. The investigators our quite damning about the University’s handling of Kochenovs many activities outside its walls. According to the investigators there was lack of supervision and vigor when it came to this subject, whilst there were concerns, also within the university.

      The university is trying to sweep its own driveway clean, as the Dutch saying goes, trying to drift the focus from the inconvenient findings about the way it has handled this issue. The fact that they cherry pick in a press statement does not discharge anyone from looking at the facts. They are still damming for Kochenov.

      In her letter to parliament the responsible minister Van Engelshoven writes that she would find it justified to claim all illegitimate payments from Kochenov. The university says this is impossible because of legal reasons, yet the minister persist that claiming the illegitimate payments would be the just thing to do. Also for the signal its sends.

      One last thing. Kochenov is mentioned in the paradise papers. One google entry will take you here:

      https://offshoreleaks.icij.org/nodes/56100008

      That this fact keeps being discredited is incredible. That it keeps on being repeated in places like this even more so.

  7. Prof. Dr. Dr. Aurelia Colombi Ciacchi, Professor of Law and Governance, University of Groningen Mi 17 Jun 2020 at 13:35 - Reply

    Dear Mr Mulder,

    I have read the report very carefully. On the contrary, you do not seem to have read my comment carefully, otherwise you would have spelled my family name correctly (it is „Colombi Ciacchi“ and not Colombo Giacchi).

    In my previous comment I wrote: „The University of Groningen’s final statement and official press release does discharge Dimitry from all accusations, with the only exception of procedural irregularities.“ This sentence proves that I am not denying that procedural irregularities were found. And of course it was because of these procedural irregularities that Kochenov was issued a warning.

    Some politicians may wish that the University of Groningen claims money from Kochenov, but if there is no legal basis for such a claim, of course the University cannot claim any sum from him. Luckily the Netherlands is a country governed by the rule of law!

  8. Luuk Mulder Fr 19 Jun 2020 at 10:04 - Reply

    Dear prof. Colombi Ciacchi

    Sorry for misspelling your name. I assure you it was a sloppy mistake and meant no disrespect. My sincerest apologies.

    It is interesting to see you prefer to focus on procedural irregularities while there are in fact much bigger, ethical questions at stake here. These ethical questions have raised political concern. It is difficult for me to comprehend that these ethical questions do not seem to bother you.

    In your reply you do not address my point that university’s spin of the report is not grounded in the actual content of the report. I will cite the research questions below and you will see there is no mention of the words Malta, passport, or passport trade.

    1.Welke nevenwerkzaamheden heeft de heer Kochenov wanneer (gehad)? Zijn deze conform de (toen) geldende regelingen gemeld en openbaar gemaakt en is er toestemming voor gegeven? Welke bedragen heeft hij ontvangen dan wel welke andere(financiële) transacties hebben plaatsgevonden? Hoe zijn deze bedragen opgebouwd (bijvoorbeeld onkostenvergoeding, beloning voor de geleverde prestaties)? Zijn deze werkzaamheden in de tijd van de RUG of in eigen tijd verricht? Heeft hij voor de uitoefening van zijn nevenwerkzaamheden gebruik gemaakt van faciliteiten van de RUG? Heeft hij hierbij andere medewerkers van de RUG ingezet en hoe is dat verlopen?

    2.In hoeverre voldoen de huidige procedures bij de RUG voor het vragen/verlenen van toestemming voor het verrichten van nevenwerkzaamheden?

    3.Is er bij de uitoefening van de nevenwerkzaamheden en/of nevenbelangen sprake geweest van (de schijn van) belangenverstrengeling? Is hij bijvoorbeeld eenduidig en consistent geweest in de presentatie naar buiten toe? Zijn er aanwijzingen dat de heer Kochenov bij de uitoefening van de nevenwerkzaamheden en/of nevenbelangen zich heeft laten beïnvloeden in zijn academische werk waardoor hij de academische onafhankelijkheid en objectiviteit heeft geschaad?

    4.Welke nevenbelangen heeft de heer Kochenov wanneer (gehad) en zo ja voldoen deze aan de geldende regelgeving? In hoeverre voldoen de huidige procedures bij de RUG voor het vragen/verlenen van toestemming voor nevenbelangen?

    The university is free to write what it wants in its press releases, and you are free to quote from those press releases. But the fact remains that University’s assertion is not grounded in the facts that are presented in the report. Other media-outlets have also come to that conclusion:

    https://www.rtvnoord.nl/nieuws/711318/Tik-op-de-vingers-voor-paspoortprofessor-Kochenov

    https://www.dvhn.nl/groningen
    /Paspoortprofessor-RUG-schuldig-aan-belangenverstrengeling.-Groningse-hoogleraar-schaadt-reputatie-universiteit-25740107.html

  9. Let’s return to the real issue.
    I was truly appalled by the framing of the public broadcaster’s first broadcasts in terms of ‘the Russian professor who is engaged in the shady trading of passports’. There can be no doubt about the entirely inappropriate framing of the matter. Clearly, the journalists had no idea about the subject-matter of nationality and residence in return for investment – they presumably didn’t realise it exists in the Netherlands as well. Residence for an investor leads to facilitation for permanent residence with a right not to be in the country most of the time (as is ordinarily required) and subsequently the right to apply for Dutch nationality, all this with exemption from citizenship-exams. But it was a nice juicy story. Shame on the public broadcaster not to mention the Dutch legislation for investors.
    But that is only half the story, or less. The other part of the story concerns academic integrity. I daresay that that is the real issue. This may not be very interesting for journalists. It is for us academics, though.
    And Jan Komarek has articulated very well all of the issues that are relevant in the context of academic integrity, in particular the hiding of non-academic side-jobs related to an academic interest, that may easily raise issues of collusion and conflicts of interest in times of academic entrepreneurialism.
    I would add that academic integrity is also at stake by presenting only half of the story to the public on a platform for academics, effectively withholding from the public eye what should really concern us. I do not understand why Verfassungsblog lends itself to this exercise in academic dishonesty.

    • Maximilian Steinbeis Fr 19 Jun 2020 at 17:49 - Reply

      Thanks, Leonard. Frankly, I am not sure what you are referring to when you suggest that Verfassungsblog is „withholding“ anything „from the public eye“, let alone engaging in „academic dishonesty“. I gave Dimitry the opportunity to present his side of the story after he had been exposed to the sort of publicity with which you seem to take issue, too. Now, if you find „half of the story“ is missing you are more than welcome to add it and substantiate your allusions about „collusions and conflicts of interests“. My role is to provide the forum for this sort of academic discourse. Your role is to make use of it.

  10. Leonard Besselink Mo 22 Jun 2020 at 20:45 - Reply

    Dear Max, read Jan Komarek’s contribution to the trail, which is about the other half (or more) of the story, or the report of Groningen university as a starter. They raise big the issues of academic integrity, that should not remain concealed. They should not be wiped under the carpet so as to lead to the kind of response as from the first commentator in the trail, who might well feel misled by Dimitry’s publishing the one half of his story, true as his being manhandled in the press is indeed. The other dirtier parts of the story might have led him to a more qualified judgement. A pity that it was not raised from the start. The high moral ground so often taken on Verfassungsblog, and rightly so, might not be fully justified in this particular case.

    • Maximilian Steinbeis Mo 22 Jun 2020 at 23:25 - Reply

      I must say, I find your response rather disappointing, Leonard. This debate is taking place very much in the open, and I think Jan’s comment is testament to that. I resent your allegation about „wiping under the carpet“ and „concealing“ stuff, just because I gave a friend who was quote-unquote manhandled on prime-time TV the opportunity to share his side of the story undisturbed. And, truth be told, your sermonizing of „academic integrity“ and „high moral ground“ sounds slightly hollow to my non-academic ears given the fact that you yourself apparently can’t be bothered to elaborate on those „dirtier parts of the story“ you keep so artfully alluding to, hiding behind Jan’s back all the while. If you want to discuss academic standards and integrity, what’s keeping you?

  11. Marija Bartl Di 23 Jun 2020 at 09:55 - Reply

    Dear all,

    let me add to the other side of the story, which Jan Komarek and Leonard Besselink have mentioned. Academic Integrity. Two points. First, while we may disagree with Dimitry Kochenov’s anarcho-libertarian ‘politics’ in general, which for instance does not take into account the distributive dimension of the whole business of investment citizenship (why should the rich – and the rich only – have a chance to escape the burden of their ‘low quality citizenships’?!), I wonder whether this public persecution is a right way to challenge it. Anyone who has read anything from Kochenov could not miss that he genuinely holds a deep contempt for the state and the institution of citizenship. The undermining of such institution through investment citizenship seems then like an entirely fitting way as to how to make his views ‘socially relevant’: indeed, as mentioned above, an aspect of academic performance that Dutch academics need to strive and show for in the applications for any research funding.

    Second, the economic profits made. I am not sure if the colleagues from EU law know how many colleagues in eg private law, commercial law, commercial arbitration, and investment law engage with similar “side activities”, whether or not disclosed one-by-one to their institutions (the university seems to acknowledge that Kochenov is clearly not the only one to have been less than fully transparent in this respect). This happens often with both far larger economic gains and at time on matters that have far great regressive (re)distributive impacts – often on countries of the Global South. Unless we are going to take issue with such consulting more broadly, to single out one colleague seems just arbitrary to me.

    Best, Marija

  12. Dr. Suryapratim Roy Di 23 Jun 2020 at 14:07 - Reply

    After Nieuwsuur ran its show on Dimitry and how shadowy millionaires enter Europe through Malta, an ex-colleague from the University of Groningen sent me the Youtube clip. By way of habit, I read the comments under the clip before I watched it. Some of them (roughly translated from Dutch) were: ‘Can we send all the squatters in Netherlands to Malta.’ ‘Perfect cover for the professor to play nerd in order to increase the influence of Russians in business services in Europe.’

    Within academic circles where reputation is our only currency, this video was doing the rounds. While legal scholars routinely earn from practising law as well as consultancy, earnings from consulting on Malta’s sale of passports was enough for a politician to compel the university to look into it. If Dimitry had received wrongful remuneration, or engaged in unethical activities, that would certainly be an internal matter for the university. I can attest to the fact that I was not the only one being asked to re-evaluate Dimitry’s integrity based on TV journalism.

    Anyone who has worked with Dimitry will know that nothing matters to him more than scholarship. He is happiest fine-tuning drafts in cafes, and sending emails in the middle of the night on Adorno. It so happens that his scholarship takes aim at what the privileged west holds dear – the sanctity of passports, and solidarity among the (usually white, usually male, usually Christian, usually holder of a good passport) privileged. Thus, when in Citizenship (MIT Press, 2019) he writes that citizenship is a ‘tool of unquestioned exclusion’, it comes as no surprise that Breitbart would go after him. It was only a matter of time before a Dutch politician would get offended; after all, one of Dimitry’s most insightful papers is a critique of Dutch naturalisation policies. It was opportune when a TV program on the sale of passports found a naturalised Russian opining that there is nothing intrinsically unethical or illegal about the idea. The subject matter is indeed so very divisive that the committee investigating into the matter found it politically sensitive enough to warn against engagement with the topic. Further, it warned against attending a conference associated with the law firm Henley & Partners that advises on the sale of passports. I wonder if they considered that Hart Publishing has released the Quality of Nationality Index developed by Dimitry and Christopher Kälin of Henley & Partners. Or that academics and law firms might actually keep out shadowy millionaires through due diligence and nuanced inquiry into the legality of investment migration. I wonder if before enjoying the momentary pleasure of verbalising an intuition that commodifying citizenship must be wrong, one might consult a host of reputed migration scholars who have both critiqued and defended investment migration in general, and specific programmes in practice. I am currently completing my own paper on the subject – I honestly find it hard to speak to most European legal scholars about it. Once I speak with a third-country national, she usually understands the trauma passport control can bring, and asks more pointed (if difficult) questions on whether investment migration schemes discriminate.

    Notwithstanding, scholars in comments above have rightly suggested that academics may sometimes collude with politicians or business, and this may compromise their integrity. There are usually clear rules in place in universities to keep a check on such activities. In any inquiry, however, there should be some version of innocent till proven guilty, or at least innocent after being exonerated. To my mind, this is what lacks integrity: Going digging for ‘dirtier parts of the story’ when the political-populist influence is writ large, or alleging bias because a view on hollowing out of citizenship may seem unpalatable to one’s privileged situation.

  13. Martijn van den Brink Di 23 Jun 2020 at 14:51 - Reply

    Dear all,

    Several people have asked me for my thoughts on this issue, no doubt because I have worked with Dimitry for some time on various issues including the topic of investor migration. We have worked together despite holding different views on the concept of citizenship and the practice of investor migration. Even when my views contradicted his, I was encouraged to pursue my own thoughts, and treated fairly and with respect (not unimportant when we’re discussing someone’s academic integrity).

    In my view, it should be possible to disagree with people on issues, even vehemently so, without thinking that they should be singled out by the national media and subjected to a targeted campaign, or that they act unethically by providing legal advice on these issues. Regarding his academic integrity, Marija Bartl has rightly pointed out in an earlier comment that many colleagues offer legal consultation to all sorts of actors. If we think that providing legal advice is incompatible with principles of academic integrity, we need a wider discussion regarding the side-jobs of academics, not target one person in specific.

    All the best,

    Martijn

  14. Justin Borg-Barthet Di 23 Jun 2020 at 15:23 - Reply

    Misinformation concerning the Maltese „passport trade“ appears to have grown arms and legs. Please see this thread for some actual facts to correct the alternative ones: https://threadreaderapp.com/thread/1270625314444541952.html

  15. Jan Komárek Di 23 Jun 2020 at 17:03 - Reply

    Years in the blogosphere have taught me to wait with my response at least for one day. But this time, I find it really difficult.

    To start with: I suppose most people in European academic sphere would have never known about Dimitry’s case if he did not post his post on this blog. So it is him, not the people who find his attitude to the matter deeply dissatisfying, who have created this debate. (Btw, it is nice to hear from Max that he considers Verfassungsblog a sort of platform for everyone who comes – or friends only? -, as if there was no editorial policy or decisions – but that is an issue for another time).

    I happened to know about the case from before from a colleague who had sent me the link to the reportage. Contrary to one of the commentators, I did not read the comments under the video (one of the rules of staying sane on general social media). But I watched Dimitry’s reactions to some of the questions. His refusals to say anything about the income he makes from the investment migration business troubled me, but that time I did not want to make quick judgments. His lack of reflection in the post above has made me do it, I am afraid.

    Martin is right: we need to have a serious discussion about the role of academics in politics and private business. But please, can you distinguish between providing consultancy (to governments or private actors) and setting up companies to promote the kind of business you happen to do research on? These were the questions raised by the journalist which troubled me -and still do, especially in the light of what some people seem to deem „normal“ in the comments above.

    Yes, in academia reputation is one of the currencies (not „the only currency“ – Bourdieu would tell you more on this). But our social authority derives from societal beliefs about our impartiality and the interest in pursuing knowledge as our primary goal (that is why all sorts of political activism in academia, or attempts to make „social impact“ will eventually turn against people who actually want to do exactly that and think that being an academic brings some limitations to where you can make your money or how you want to promote the kind of politics you like). That is why I find it troubling if someone, who is involved in business makes contributions to the public debate and does not reveal their actual stakes. IN some way such people are free-riding on the backs of those who try to keep the reputation of the academic sphere as a place where knowledge matters, and not „influence“, „click-bites“ or … money.

    I think I believe in the above independently from what I think about the commodification of citizenship and the kind of „justice“ private business may bring there.

    • Maximilian Steinbeis Di 23 Jun 2020 at 17:11 - Reply

      „Btw, it is nice to hear from Max that he considers Verfassungsblog a sort of platform for everyone who comes – or friends only? -, as if there was no editorial policy or decisions“

      I don’t know where you heard that, Jan, but it wasn’t from me, and it’s obviously false. Let’s not twist one another’s words, shall we?

  16. Jan Komárek Di 23 Jun 2020 at 17:28 - Reply

    Dear Max,
    you are right, I should have kept my comments about how this debate has been opened at your blog for another occasion, so that we can keep focused on what really matters here.
    Jan

  17. Professor Dr. Paul Kalinichenko,Professor of Integration and European Law, Kutafin Moscow State Law University Di 23 Jun 2020 at 22:43 - Reply

    You have my full support, Dimitry. Has the University offered apologies for the absurd Russophobia at least? This is a stain on the Dutch academia. Keep on publishing in Russian and never mind the haters.

  18. Suryapratim Roy Mi 24 Jun 2020 at 13:06 - Reply

    Hi all,

    I do not wish to drag this out longer than required (though I do believe in waiting for a day to mull over concerns before giving in to a quick reaction). My earlier comment was motivated by four concerns: (1) having worked with Dimitry, I can vouch for his professional integrity, (2) there is veiled (in this case not so veiled) alienation in Europe in relation to academic freedom, especially when one touches a little close to the bone by querying whether a privileged passport has no intrinsic worth, (3) I share Jan’s concerns that academic freedom is under threat. Unlike Jan, I think what is happening in this case is the populist-political shaping of academic life. In countries like Hungary, Poland and India, it is less subtle. But the effect is no less violent in Dimitry’s case. Finally, (4) I worry on trial by television, youtube and the blogosphere.

    Marija and Martijn have supported (1) above, and I touched on (2) and (3) in my earlier comment. Importantly, Gareth Davies has discussed these issues more eloquently than I possibly could here. In this post, I wish to speak to the relationship between (2), (3) and (4).

    Jan mentions that people in the European academic sphere may not have come across this issue if Dimitry had not posted this piece. However, he mentions right after: ‘I happened to know about the case from before from a colleague who had sent me the link to the reportage.’ This makes it evident that people in the European academic sphere were hearing about the issue – and forming a judgment – based on a youtube video that was doing the rounds. As I mentioned in my earlier comment, this is precisely what I was privy to as well – I was being asked to re-evaluate my opinion on Dimitry’s integrity based on a youtube clip. As I also mentioned, I was not the only one (and clearly Jan had been sent the link as well). What we have here is that while the University of Groningen was being strong-armed by a politician and a TV show to investigate Dimitry solely because their agendas could be carried out at the university, a simultaneous trial was being performed in the dark in the academic space. This is trial by academics smearing a man’s name by circulating videos. Further, in this case, what has been happening here is double jeopardy: we are now digging for ‚dirtier parts of the story‘ after the University of Groningen has made its internal decision. For all our talents, legal scholars are not tribunals. Even if we might be active on the blogosphere and curate articles from Shiftnews, I don’t think that should be the basis of reopening an issue on which we are not competent to pass judgment. A little bit of humility before smearing a man’s name might do us some good.

    It pains me to say that the institution that appears to have succumbed most to populist pressure is the university. Though the findings exonerate Dimitry, it may be asked – why did the university release the reports of an internal inquiry? To go back a step, would the inquiry have happened were it not for pressure from politicians and the passive joys of television? As Gareth says: ‘its [the university’s] academic reputation has been damaged by its failure to defend Kochenov more actively. The university authorities did not seem to be aware of their responsibility to protect professors who research difficult subjects, take inconvenient views, and are attacked for doing so. On the other hand, their non-confrontational approach may well have kept the peace with local politicians, journalists and some academics, for whom an outspoken and successful foreign colleague is an unwelcome disturbance.’

    After all, academia is a competitive and ideological place, and very often performative (to rephrase Judith Butler, this is performativity’s political magic. Without getting too distracted, this was in the context of Butler’s critique of Bourdieu). It does make me wonder whether youtube and politician-sponsored witch-hunts provide the opportunity to take down academics who are different.

    Yours,

    Surya

  19. Jo Shaw Mi 24 Jun 2020 at 14:05 - Reply

    A very interesting debate. I have nothing substantive to offer, except to remark that a disclosure statement was only added to DK’s previous blog about the European Commission’s investment citizenship report *after* I raised this with Verfassungsblog. https://verfassungsblog.de/investor-citizenship-and-residence-the-eu-commissions-incompetent-case-for-blood-and-soil/

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