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08.10.21

Natalia was only 39. In early 2021 she was diagnosed with cancer, yet due to the lack of identity documents, she could not receive vital treatment: she could have neither undergo chemotherapy nor surgery.

Undocumented persons and even people who have applied for the Stateless Determination Procedure (SDP) are not entitled to free medical treatment under the medical guarantee program. Natalia was hospitalized several times in critical conditions, but she did not receive proper treatment, despite the fact that in August 2021, with the help of a lawyer from the CF “Right to Protection” (R2P), she applied for an SDP.

In the spring, Volodymyr Kohan died at the age of 69. This happened before the SDP was established. The lawyer of the R2P has been assisting the man in obtaining Ukrainian citizenship since 2018, but it has not been possible to confirm his citizenship – the legal connection with the Ukrainian state has been lost. The man suffered for many years due to vision loss and other diseases. He did not receive treatment due to a lack of a passport, as well as did not have money to be able to undergo treatment. The man made an appointment to apply for the Stateless Determination Procedure, but unfortunately, he was never able to obtain this document…

Recently, a 59-year-old woman, a beneficiary of the Fund, died. For more than 20 years, she struggled and waited for the introduction of the Stateless Determination Procedure to be adopted, all that while living without any documents, because no country recognized her as a citizen. For a long time, the woman suffered from diabetes, but could not receive medical care and proper examination due to a lack of identity documents. In May 2021, the woman already had the necessary package of documents to apply for an SDP but was never able to apply for the long-awaited procedure.

Due to the lack of citizenship, thousands of people living in Ukraine also do not have identity documents.

Since April 2021, Ukraine has introduced the Stateless Determination Procedure (SDP). Finally, undocumented persons got a chance to change their lives for the better and live without any obstacles.

According to the survey, conducted by the CF “Right to Protection” (R2P) in 2020, 17% of undocumented and/or stateless persons have serious chronic diseases or disabilities. These people are not entitled to free treatment, free examinations, disability, vaccinations, or any other free medical services under the medical guarantee program.

Stateless Children in Ukraine. Why and How? Як в Україні народжуються діти без громадянства?

 Why can’t stateless applicants be treated free of charge?

Only citizens of Ukraine, foreigners, and stateless persons permanently residing in Ukraine, as well as the refugees and persons in need of complementary protection, can receive free medical care within the framework of the medical guarantee program.

This applies to the following types of medical care:

  •  emergency care;
  •  primary care;
  •  secondary (specialized) medical care;
  •  tertiary (highly specialized) medical care;
  •  palliative care;
  •  medical rehabilitation;
  •  medical care for children under 16;
  •  medical care in connection with pregnancy and childbirth.

Persons with uncertain legal status and/or citizenship, without any identity documents, do not have access to free medical care. Such people can count only on emergency medical care with the subsequent reimbursement of the cost of the provided services. The same applies to people who have applied for an SDP, as well as to the officially recognized stateless persons without a temporary residence permit.

According to the results of the study referred to in the report “Socio-economic rights of a person recognized as stateless in Ukraine and a person who has applied to be recognized as stateless under the statelessness determination procedure”, the R2P concluded that Article 4 of the Law of Ukraine “On the state financial guarantees of medical care” should be amended in order to ensure full costs coverage of the necessary medical services, care, and medicines provided to the persons who are officially recognized as stateless and to those who have applied for the Stateless Determination Procedure (SDP).

In the context of the implementation of an SDP, it should be noted that the Human Rights Strategy aims to ensure that persons who have applied for the Procedure have the right to work, health care, and social protection. The implementation of this task is impossible without making the required changes in the legislation on financial guarantees of medical care. However, the relevant measures proposed by the public, unfortunately, were not included in the Action Plan of the National Strategy for Human Rights for 2021-2023.

Under the 1954 Convention relating to the Status of Stateless Persons, the Contracting States shall provide the stateless persons with the same status as nationals within their territories. This includes the same rights in the following areas: social protection, employment, job rights, occupational diseases, maternity, illness, disability, age of retirement, death, unemployment, family responsibilities, and other cases that, in accordance with domestic laws or other regulations, fall within the scope of the social security system.

Charitable Fund “Right to Protection” (R2P) has repeatedly expressed its position on the vulnerability of the undocumented persons who have difficulty proving citizenship or whose citizenship is uncertain. In particular, we have informed the Ministry of Health of Ukraine and the National Health Service of Ukraine about the status of these categories of persons and asked for an appropriate dialogue on that matter. Yet, the issue of legislative provision of access to medical services for these groups still remains unresolved.

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«For years the undocumented and stateless persons have been suffering due to a complete lack of access to the medical services. A person is not entitled to free medical care even after filling the Stateless Determination Procedure application and even after being recognized as such and until the moment of obtaining a permanent residence permit. For Ukraine in order to comply with its international obligations, lawmakers need to review legislation on financial health care guarantees and provide people with adequate protection.»

notes Kseniia Karahiaur, legal analyst at R2P.

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07.10.21

At the meetings of the Committee of Ministers of the Council of Europe (hereinafter – the CoE), held on September 14-16, 2021 in Strasbourg, the issue of implementation of our state decisions in the groups of cases was considered once again (“Yuriy Mykolayovych Ivanov v. Ukraine” (application № 40450/04); Zhovner v. Ukraine” (application no. 56848/00); “Burmych and Others v. Ukraine” (application no. 46852/13).

Based on the results of the review of the Committee of Ministers of the Council of Europe (hereinafter – the Committee), a decision was made, the main points of which can be summarized as follows:

  • The Government of Ukraine was reminded of its obligation to fully address the multifaceted problem of non-compliance or delays in the execution of national court decisions, as well as Ukraine’s obligation to comply with the European Court of Human Rights under Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, the Committee noted that currently, the Government is far from properly fulfilling this obligation;
  • The Committee noted Ukraine’s implementation of individual measures in 18 cases from the Zhovner / Ivanov group, and removed these cases from control by a relevant resolution; at the same time, the Government of Ukraine must provide information on the implementation of the other 31 decisions from this group;
  • The Committee expressed concern about the lack of progress in the implementation of the Action Plan and National Strategy (hereinafter – the National Strategy) for Resolving the Problem of Non-Enforcement of the Court Decisions which must be implemented by the state body, state enterprise, institution, or organization until 2022. These actions do not require the necessary budget allocations to implement and enforce the solution.
  • The Committee noted that reforming the institution of private performers does not solve the problems of enforcing national court decisions.
  • The Committee expressed interest in the constitutional submission of the Supreme Court to the Constitutional Court of Ukraine (approved by the Resolution of the Plenum of the Supreme Court of 18 September 2020) to review the constitutionality of moratorium laws and their compliance with the rule of law.
  • The Committee has called on the Government to finally establish a data accounting system that reflects the enforcement of national court rulings against the state.
  • The need to implement the package of legislative and institutional reforms set out in the National Strategy and Action Plan, as well as to provide sufficient budget allocations was also noted by the Committee.
  • The Committee instructed the Secretariat to prepare a detailed memorandum for the next hearing of the case on financial and budgetary allocations to ensure the automatic execution of decisions and on moratorium issues that impede the execution of decisions not in favor of the state-owned enterprises.

Also, given the urgent need to resolve the urgent issue, the Committee of Ministers of the CoE called on the Government of Ukraine to provide information on these issues by January 1, 2022, in particular on the progress in implementing the necessary reform package and decided to continue consideration of these groups at the March 2022 meeting. The Committee also instructed the Secretariat to prepare a draft interim resolution for consideration at the meeting if the Government of Ukraine will not show any progress, in particular in the implementation of the National Strategy and Action Plan.

Thus, following Rule 16 of the Committee of Ministers Procedure, in the process of monitoring the implementation of a resolution or amicable settlement, the Committee of Ministers may adopt interim resolutions, including information on the implementation process or, if necessary, concerns and/or proposals for the implementation.

In this context, the CoE has already issued 8 interim resolutions. The last one was issued in October 2020, which states that Ukraine has not fulfilled its obligations and has not made progress in implementing the decisions of the ECtHR by the deadline, in particular in the case of Burmych and Others v. Ukraine (more information about this is available here).

There are concerns that in March 2022, Ukraine will again face a negative interim resolution. The government will not have time to radically change the situation in the legal and institutional spheres in such a short time.

However, significant changes can be achieved in at least one aspect. In the coming months, the Law of Ukraine “On the State Budget for 2022” will be considered, and the amount of funds allocated to cover debts by decisions of national courts, including in the social sphere, will be important. At the same time, given the pandemic and the economic crisis it is contributing to, it would be too bold to predict significant budget allocations for such purposes.

Given the above, the CF “Right to Protection” (R2P) calls on the Government of Ukraine to take decisive and coordinated actions to address the systemic problem of non-compliance with national court decisions and will welcome all effective steps taken by the state in this direction.

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Yaroslava Zvolinska,

Strategic Lawyer 

CF “Right to Protection” (R2P)


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04.10.21

Because of the restrictions on crossing the ‘contact line’ through the Entry-Exit Checkpoints (EECPs), thousands of people have been deprived of their basic needs: pensions and social benefits, birth and death certificates, ability to visit and communicating with family members, access to their own property or to their permanent residence at all.

As a result, many residents of the Non-Government Controlled Areas (NGCA) decide to go to Government-Controlled Areas (GCA) through the Russian Federation and cross the Russian-Ukrainian International Border Crossing Points (IBCP) in Milove and Hoptivka. This trip necessarily takes much longer than crossing the ‘contact line’, and incurs additional expenses, for transportation, and, in many cases, the payment of a fine for illegally crossing the border.

contact line звіт

The team of the CF “Right to Protection” (R2P) jointly with the UNHCR prepared a note “Going around the contact line. Information on movements of NGCA residents through the Russian Federation”.

This note is based on information collected by R2P at the two IBCP, SBGS statistic and observation, during monitoring visits from June till August 2021.

Note is available for viewing and download

In English and in Ukrainian.

UNHCR and the NGO Right to Protection (R2P) are grateful for the generous support provided by donors, including the European Union’s Civil Protection and Humanitarian Aid Operations (ECHO); the Govern-
ments of Canada, Denmark, Estonia, Finland, France, Germany, Italy, Japan, Republic of Korea, Lithuania, Luxembourg, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom (DFID), the United States of America (PRM) as well as private citizens who are contributing funds through different UNHCR private associations such as España con ACNUR of Spain and the UNO Flüchtlingshilfe of Germany.

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01.10.21

This report provides the results of observation at all seven Entry-Exit Checkpoints (EECPs) and the survey conducted at two of them (Novotroitske EECP in Donetska Oblast and Stanytsia Luhanska EECP in Luhanska Oblast) in the first half of 2021. Additionally, the report also contains some preliminary observations at International-Border Checkpoints (IBCPs) from April to June of 2021.

HIGHLIGHTS:

  • The flow of crossing people continued to decline in 2021. According to the State Border Guard Service (SBGS) statistics, there were 6,589,000 crossings in the first half of 2019 and 2,656,000 crossings in the corresponding period of 2020, while only 274,000 crossings have taken place in the first half of 2021.
  • In the first half of 2019 and 2020 receiving state benefits and other cash-related issues were the most commonly cited reasons given for NGCA residents to cross the contact line, whereas in 2021 visiting relatives was their most common reason listed. Before the introduction of quarantine restrictions, long lines were a major concern at all EECPs. When crossings were allowed through two EECPs, possible issues with permits were most commonly cited by respondents in 2021 as reasons for their concern.
  • In the first half of 2021, UNHCR supported services facilitating the crossing of the EECPs. For example, at least 6,500 people were provided with help from R2P monitors with installing and running the mobile phone application Vdoma, and about 1,200 people were assisted by R2P in getting permissions for crossing from the Coordination Group. Also, 29,918 vulnerable elderly persons were provided with transport support at Stanytsia Luhanska EECP by NGO Proliska’s electric vehicle.
  • In line with R2P advocacy, on 22 March 2021, amendments were made to Resolution #1236 on COVID‑19 measures that greatly facilitated the crossing procedure for foreigners. Foreigners who have permanent residence in Ukraine are no longer required to have insurance when crossing the contact line to GCA.
  • R2P monitors reported one fatality at zero checkpoint of Stanytsia Luhanska EECP in 2021. The primary cause of death was related to heart problems.
  • Сrossing the contact line remained possible only through two EECPs: Novotroitske in Donetska Oblast and Stanytsia Luhanska in Luhanska Oblast (see the table in section 8. Observations at EECPs)
  • More – in the full Report below.

Mid-Year Report is available in

Ukrainian and English

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The survey is a part of the monitoring of violations of rights of the conflict-affected population including internally displaced persons (IDPs) within the framework of the project “Advocacy, Protection and Legal Assistance to the Internally Displaced Population of Ukraine” implemented by Charitable Foundation (CF) “Right to Protection” (R2P) in partnership with and with the financial support of the United Nations High Commissioner for Refugees (UNHCR). The objective of the survey is to explore the motivations and concerns of the civilians travelling between the non-government-controlled areas (NGCA) and the government-controlled areas (GCA), as well as the conditions and risks associated with crossing the contact line through EECPs during the quarantine period. More statistical data are available on the 2021 Eastern Ukraine Checkpoint Monitoring Online Dashboard.

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22.09.21

Today we present the report ‘Crossing the contact line’ for August 2021, prepared by the CF “Right to Protection” (R2P). The report is based on data collected during the monitoring of the situation on EECPs.

More statistical data is available on the Online Dashboard.

  • As in the previous months, crossing the contact line remained possible only through two out of the seven Exit-Entry Crossing Checkpoints (EECPs): Novotroitske in Donetska Oblast and Stanytsia Luhanska in Luhanska Oblast. Numbers of people crossing remained much lower than in the pre-COVID times. According to the data from the Joint Forces Operation Command and monitoring specialists of the R2P, in August about 70000 people crossed the contact line, around the same as in July. The other five EECPs have remained closed from the NGCA side since July 2020. Armed groups claim that this is being done due to the COVID-19 restrictions.
‘Crossing the contact line’, August, 2021 (REPORT) Перетин лінії розмежування через КПВВ, серпень–2021 (ЗВІТ)
  • Resolution 787 came into force on 5 August 2021. According to it, travelers entering Ukraine are generally required to self-isolate for ten days with the exception in certain cases. The installation of the smartphone GEO-tracking app “Vdoma” has become a mandatory requirement again for the first time since May 2020. Those who cannot install the Vdoma app are subject to observation in a state-run facility. If a person crossing from NGCA has been invited to receive a COVID-19 vaccine in Ukraine, self-isolation is not necessary.
  • In August, 9029 vulnerable elderly persons were transported across the Stanytsia Luhanska EECP by an electric vehicle provided by the NGO Proliska.
‘Crossing the contact line’, August, 2021 (REPORT) Перетин лінії розмежування через КПВВ, серпень–2021 (ЗВІТ)
  • In August 2021, 1139 persons (51%) who entered Government-Controlled Areas (GCA) via Novotroitske EECP took antigen tests for COVID-19, while at Stanytsia Luhanska EECP it was 2289 persons who were tested (8% of those who entered GCA). Meanwhile, in Donetska Oblast, 109 people were referred to the observation facility, because they had no mobile phone and thus could not download the “Vdoma” app. There were no observation facilities in Luhanska Oblast.
  • Since Resolution 787 was adopted, people that were placed in the observation facility in Hostre settlement have faced difficult conditions. Since August 6, 2021, R2P Team had started monitoring the situation and conditions, there was no food in the facility until the 18-th of August. The problem was resolved thanks to the NGO “Proliska” intervention. Moreover, PCR tests were available only on Tuesdays, so that people sometimes had to wait for up to a week to be tested.
  • The total number of crossings in August 2021 was 90860. Almost 94% of a­­­­­­­­­ll people crossing the contact line in August did it through the Stanytsia Luhanska EECP. In Donetska Oblast, 2612 people received authorization to cross the contact line in the GCA direction and 3205 to the NGCA, respectively. In the Luhanska Oblast, 42375 people crossed the contact line to the GCA and 42668 to the NGCA.
‘Crossing the contact line’, August, 2021 (REPORT) Перетин лінії розмежування через КПВВ, серпень–2021 (ЗВІТ)

The report is based on the results of a survey, regularly conducted by the specialists of the Charitable Fund “Right to Protection” (R2P) at the five (currently – two) EECPs in the Government-Controlled Areas (GCA) and administered regularly since June 2017. The survey is a part of the monitoring of violations of the rights of a conflict-affected population within the framework of the project “Advocacy, Protection and Legal Assistance to the Internally Displaced Population” implemented by the R2P with the support of UNHCR. The purpose of a survey is to explore the reasons and concerns of those traveling from the NGCA to the GCA, as well as conditions and risks associated with crossing the ‘contact line’ through EECPs. The information collected in the survey helps identify protection needs, gaps, and trends, and provides an evidentiary basis for the advocacy efforts.

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The report is available in

English

Ukrainian

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20.09.21

Analysis is also available as a .pdf

NGO COALITION ANALYSIS

ANALYSIS

of the Draft Law of Ukraine “On the Principles of the State Policy of Transition Period”

On 9 August the Verkhovna Rada of Ukraine registered the Draft Law “On the Principles of the State Policy of Transition Period” (Reg. 5844) [1] (hereinafter – the Draft Law), which was initiated by the Cabinet of Ministers of Ukraine. According to the explanatory note, the Draft Law is designed to properly regulate the state policy of transition period, a set of measures to counter the armed aggression of the Russian Federation against Ukraine, restore the territorial integrity of Ukraine within the internationally recognized state border and ensure state sovereignty of Ukraine, restore the operations of central and local government authorities in the temporarily occupied territories, eliminate the consequences of the armed aggression of the Russian Federation against Ukraine, reintegrate the temporarily occupied (deoccupied) territories and their residents, build sustainable peace, and prevent the recurrence of the occupation.

As this Draft Law was initiated by the Government of Ukraine, there is every reason to believe that it expresses the Government’s position on resolving issues related to eliminating the negative consequences of the armed conflict.

The coalition of organizations concerned with the protection of the rights of victims of the armed conflict submitted comments at all stages of public consultations on the text of the Draft Law organized by its legal drafter, the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine. These comments were partially taken into account during the preparation of the Draft Law. At the same time, the Draft Law contains a number of provisions that can create dangers and gaps in the existing legislation, and therefore it needs significant revision. Adoption of the Draft Law may lead to negative consequences, in particular, the emergence of legislative conflicts, inconsistency with the Constitution of Ukraine and international obligations, as well as to contradictory interpretation and, consequently, to different ways of law enforcement and violation of the principle of legal certainty. The Draft Law has the character of a political declaration rather than of a normative


[1]  On 31 August, two alternative draft laws were registered in the Verkhovna Rada of Ukraine, the draft law on Principles of Reintegration of Temporarily Uncontrolled Territories of Ukraine (Reg. 5844-1) and the draft law on the Principles of the State Policy of Transition Period” (Reg. 5844-2).


legal act with clear norms of legal regulation, which calls into question the possibility of fulfilling its provisions in case of adoption.

Below is a detailed analysis of the main comments to the text of the Draft Law.

1. Some proposals for the introduction of new terms in the legislation need to be revised and substantially refined in order not to violate the principle of legal certainty and to prevent misinterpretation and incorrect law enforcement.

Article 1 of the Draft Law contains a number of definitions that are novel for Ukrainian legislation (in particular, “transition period”, “conflict period”, “post-conflict period”, “temporary occupation”, “convalidation”, “contact line”, “territorial communities on the contact line”, “deoccupied territories”, etc.). However, some of these novelties are incorrectly defined, which leads to contradictions with the norms of international law, as well as with the provisions of national law. In addition, the scope of some concepts, which are presented quite broadly in the definitions, is significantly narrowed in the text of the Draft Law.

Thus, it is doubtful whether it is reasonable to distinguish the concepts of “transition period”, “conflict period”, “post-conflict period”. Analyzing the definition of these concepts, it should be noted that the terms “conflict period” and “post-conflict period” are in fact components of the term “transition period”. The latter shall mean “the period of time during which the State implements its policy to counter the armed aggression of the Russian Federation against Ukraine, restore the territorial integrity of Ukraine within its internationally recognized borders, and ensure the state sovereignty of Ukraine, restore the operations of central and local government authorities in the temporarily occupied territories as well as eliminate the consequences of the Russian aggression against Ukraine, reintegrate the temporarily occupied (deoccupied) territories and their residents, build sustainable peace, and prevent further occupation.” The definition of “conflict” and “post-conflict” periods is characterized by the fact that the first covers the time when active hostilities are carried out to restore territorial integrity, and the second covers the time when the reintegration of deoccupied territories and the restoration of constitutional order there take place. Although the general concept of the state policy of transition period and the text of this Draft Law is built on this division of the transition period into “conflict” and “post-conflict”, it is impractical to separate two fundamentally similar terms.

In addition, it should be noted that Article 1 of the Law of Ukraine “On Mobilization Training and Mobilization” defines a “special period” that begins “from the moment the mobilization decision is announced (except for the target one) or entrusted to the implementing entities regarding covert mobilization or from the moment the martial law is introduced in Ukraine or in some of its localities and covers the time of mobilization, wartime and the partial reconstruction period after the end of hostilities.” Thus, as can be seen, the definition of the “conflict” and “post-conflict” periods already partially coincides with the definition of the “special period”, which may cause misinterpretation of the relevant legislation and incorrect law enforcement.

The Draft Law contains the concept of “transitional justice”, which is defined as “a set of measures specified in this Law and other laws to eliminate the consequences of violations of the rule of law, human and civil rights and freedoms caused by the armed aggression of the Russian Federation against Ukraine, including measures to restore the rights and freedoms, compensate for damages, ensure justice and reconciliation, and prevent further occupation.” Firstly, the challenge lies in the fact that the concept of “transitional justice” is translated into Ukrainian in two different ways: “perekhidna yustytsiia” and “perekhidne pravosuddia”. The first is used solely in this Darft Law and the second is a stable expression which is already contained in the Ukrainian legislation. In particular, this concept is found in a number of strategic documents, namely Strategy of Deoccupation and Reintegration of the Temporarily Occupied Territory of the Autonomous Republic of Crimea and the City of Sevastopol, approved by the Decree of the President of Ukraine № 117/2021 of 24 March 2021, National Human Rights Strategy approved by the Decree of the President of Ukraine № 119/2021 of 24 March 2021 and others). Thus, the authors of the Draft Law actually propose to introduce a new concept that will exist in the legislation of Ukraine simultaneously with another concept that is identical in content.   Secondly, in Section II of the Draft Law “Certain Aspects of Transitional Justice”, which discloses the content of the relevant parts of transitional justice, its content is significantly narrowed compared to the definition contained in Article 1 of the Draft Law. Although the authors of the Draft Law note that this is a description of its separate aspects, it is unclear where all the aspects of transitional justice are described and what is the relationship between transitional justice and the transition period (conflict and post-conflict periods). For example, according to the definition contained in Article 1 of the Draft Law, the issue of compensation for damage caused by the armed conflict is part of transitional justice. At the same time, the issue of compensation for the damage caused by the conflict is mainly disclosed in Article 3 “Aggressor State, Occupying Power” (this article is not included to the Section on Transitional Justice). Furthermore, building a succession pool, by definition, is a measure within one of the four elements of transitional justice, namely “non-recurrence of the armed conflict.” At the same time, the authors of the Draft Law consider building a succession pool for service in the deoccupied territories to be a measure of the conflict period.

The appropriateness of introducing such concepts as “contact line” and “territorial communities on the contact line” (paragraphs 10, 11 of Part 1 of Article 1 of the Draft Law) also raises significant doubts. This proposal contains several components. First, a new term “contact line” is introduced. Today, Ukrainian legislation uses the following terminology: “demarcation line“, “settlements on the line of contact“, “administrative border with the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol“, “border of the temporarily occupied territories“. At the same time, the term “contact line” used in this Draft Law is a translation loan word from the English “contact line” or “line of contact” and it is not found in Ukrainian legislation. Given this, in the event of the adoption of this Draft Law, it will be necessary to completely replace the terminology of bylaws in order to comply with its provisions. Secondly, the very proposal to create a definition of territorial communities on the contact line is wrong, because the status of territorial communities on the line of demarcation does not change their status as territorial communities. They remain territorial communities, and their list can be created by a separate legal act and this process does not require a legal definition of this concept.

Instead, some important definitions are missing in the Draft Law (for example, there is no definition of “national dialogue”, “dialogue processes”, “victims of the armed aggression”, etc.).

2. The Draft Law provides for the expansion of the powers of the President of Ukraine in an unconstitutional manner.

A number of articles of the Draft Law establish specific powers of the President of Ukraine, namely:

  • authorization of members of the Parliament of Ukraine, local councilors, local government authorities, and their officials to make contacts and interact with the Russian Federation, its central and local government authorities, occupying forces and occupation administrations, and their officials regarding the elimination of the consequences of the armed aggression of the Russian Federation against Ukraine (Part 8 of Article 5 of the Draft Law);
  • setting a date marking the restoration of the territorial integrity of Ukraine (Part 6 of Article 6).

It should be noted that the exhaustive list of the powers of the President of Ukraine is contained in the Constitution of Ukraine, as indicated in paragraph 31 of Part 1 of Article 106. In turn, this Article does not contain any of the above-mentioned powers of the President of Ukraine. The Constitution of Ukraine has the highest legal force according to its Article 8, and the laws of Ukraine must comply with it. Therefore, the powers of the President of Ukraine cannot be extended by laws, i.e. the acts of lower legal force compared to the Constitution of Ukraine.

In the field of national security and defence, Article 106 of the Constitution of Ukraine defines the President of Ukraine as the one who ensures the independence of the State and national security (Article 106 Part 1 para. 1) and the Supreme Commander-in-Chief of the Armed Forces of Ukraine (Article 106 Part 1 para. 17). Acting in this capacity, the President of Ukraine exercises the following powers:

  • submits the proposal to the Verkhovna Rada of Ukraine regarding the appointment of the Minister of Defence of Ukraine (Article 106 Part 1 para. 10);
  • appoints and dismisses the high command of the Armed Forces of Ukraine and other military formations; administers the national security and defence of the State (Article 106 Part 1 para. 17);
  • is the Head of the National Security and Defence Council of Ukraine (Article 106 Part 1 para. 18);
  • submits to the Verkhovna Rada of Ukraine a declaration of a state of war and in the event of armed aggression against Ukraine adopts a decision on the use of the Armed Forces of Ukraine and other military formations established in compliance with laws of Ukraine  (Article 106 Part 1 para. 19);
  • adopts, in accordance with the law, a decision on general or partial mobilization and the introduction of martial law in Ukraine or in its particular territories, in the event of a threat of aggression, or danger to the independence of Ukraine (Article 106 Part 1 para. 20).

As can be seen from this list, the powers of the President of Ukraine are to appoint and dismiss officials, as well as to declare a state of war, martial law, mobilization. The powers proposed in the text of this Draft Law go beyond the exhaustive list of powers established by Article 106 of the Constitution of Ukraine, and therefore there is a risk of recognizing such provisions of the Draft Law, if adopted as law, unconstitutional. It should be noted that the text of the Draft Law in this regard does not differ significantly from its previous version. Controversial norms of the previous version, which were available for public discussion, were left unchanged or incorporated into other articles of the Draft Law.  The example is the powers of the President of Ukraine to determine the contact line and the list of temporarily occupied areas, territories of territorial communities and their parts, the list of territorial communities on the contact line, which was transferred from Article 1 of the previous version to Article 4 of the registered Draft Law.

In addition, some of the provisions proposed by the Draft Law on the powers of the President of Ukraine clearly indicate the sphere of the administrative-territorial organization (Articles 4 and 6 of the Draft Law), which may contradict Article 106 of the Constitution of Ukraine. Because whatever is connected with this sphere does not belong to the powers of the President of Ukraine. Instead, the sphere of the administrative-territorial organization is administered by the Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine. Thus, proposals to grant the President of Ukraine certain powers in the sphere of the administrative-territorial organization are not inherent to the presidency in accordance with the Constitution of Ukraine.

Another innovation is Part 8 of Article 5 of the Draft Law which states that  “members of the Parliament of Ukraine, local councilors, local government authorities, and their officials may not make contacts and interact with the Russian Federation, its central and local government authorities, occupying forces and occupation administrations, and their officials regarding the elimination of the consequences of the armed aggression of the Russian Federation against Ukraine unless authorized by the President of Ukraine.” The wording of this norm clearly indicates the range of issues for the solution of which it is allowed to make contacts with the Russian Federation only with the authorization of the President of Ukraine. These are issues related to the elimination of the consequences of armed aggression. It should be noted that such a right of the President, on the one hand, may follow from his authority as the head of the State to represent the State in international relations, administer the foreign political activity of the State, conduct negotiations and conclude international treaties (Article 106 Part 1 para. 3). In this case, it makes no sense to record this power separately in the law, as the norms of the Constitution of Ukraine are the norms of direct action. On the other hand, based on the nature of the armed conflict (and the Draft Law is aimed at eliminating the consequences of the latter) and the logic of things, such a right should provide for the empowerment of certain persons to represent the State exclusively in the peace negotiation process for the purpose of concluding a peace treaty. However, as already mentioned, this is part of the understanding of the powers of the President of Ukraine as the head of the State, provided for in paragraph 3 of Part 1 of Article 106 of the Constitution of Ukraine. Nevertheless, Part 8 of Article 5 of the Draft Law contains a very broad wording without its detailing and without instructions in particular on the peace negotiation process. It should be noted that the issues related to the elimination of the consequences of the armed aggression of the Russian Federation against Ukraine are much broader and the peace process is only a component of them. Therefore, it is worth clarifying this norm.

3. The components of transitional justice are described in fragments and do not constitute a holistic system

The Draft Law contains Section II, devoted to certain elements of transitional justice (Articles 9-14 of the Draft Law). Based on the wording of the provisions of these articles, the elements that will receive their legislative regulation are the prosecution of persons guilty of gross violations of international human rights law and international humanitarian law; the search for the truth and the safeguarding the right to the truth. At the same time, other elements of transitional justice, in particular compensation and reparation, building a succession pool, are contained in other sections of this Draft Law, which already indicates a breach of the internal structure of this text and some internal inconsistency.

It is necessary to point out the fragmentary approaches to the elements of transitional justice. The issue of liability in this context can generally be divided into two areas: criminal liability for crimes against humanity and war crimes and restrictions on holding offices, including elected ones (lustration). The Draft Law covers both topics. However, Article 9, which provides for the prosecution of perpetrators of war crimes and crimes against humanity, deals only with amnesty and the principles of exemption from criminal liability, although the transitional justice component itself is much broader and covers more than just these issues. Similarly, Article 10 of the Draft Law, which de facto concerns lustration, defines only certain principles. In addition, the same methodological error was made in the text of this Draft Law as in previous editions, i.e. nothing is said about the current Law of Ukraine “On Purification of Power”, which also establishes the principles of lustration and appropriate mechanisms. Part 2 of Article 10 of the Draft Law only states that the grounds and procedure for applying restrictions on holding offices are determined by law, however, without mentioning the existing law. In addition, the Final and Transitional Provisions again do not indicate whether the Law of Ukraine “On Purification of Power” will be amended or adopted in the new version. Given this, there is a risk that in the event of the adoption of a special law on restrictions on the right to hold office, in Ukraine there may be two laws concerning lustration.

Another element of transitional justice mentioned in the Draft Law is the search for the truth and safeguarding the right to the truth, as stated in Article 12 of the Draft Law. However, a more detailed analysis of this provision suggests that it is not about the right to the truth in the sense of transitional justice, but about the right to information, which is much narrower in content and can only be one of the components of the right to the truth. This element of transitional justice is closely linked to prosecution, and the right to the truth includes the right of victims of the armed conflict and society to know, inter alia, the progress of a criminal investigation. In addition, this component of transitional justice involves the establishment of non-judicial truth-seeking mechanisms that complement the national judicial system to better investigate cases of gross human rights violations [2]. However, the Draft Law is limited in this respect and contains only one article, Article 12, which is general and essentially substitutes concepts, i.e. the right to the truth is replaced by the right to information that does not correspond to the content of this element of transitional justice.


[2] A/HRC/RES/12/12 – https://undocs.org/A/HRC/RES/12/12


Given that, this Section requires careful study and meticulous analysis in terms of compliance with international instruments on transitional justice, which set out in detail the main purpose of transitional justice, its principles and objectives, and possibly refinement in terms of proper implementation of the elements of transitional justice. It should be noted that in accordance with the Resolution of the Human Rights Council of the UN General Assembly (A/HRC/RES/12/11/2009), States are encouraged to take into account the specifics of the context when developing public transition policies in order to prevent the recurrence of human rights violations and to ensure social cohesion, public education, process control and openness at the national and local levels. In addition, all necessary mechanisms, both judicial and extrajudicial, including prosecution, reparations, truth-seeking, institutional reforms, oversight of officials, or a combination of these tools, need to be put in place [3].


[3] A/HRC/RES/12/11 – https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/G09/165/92/PDF/G0916592.pdf?OpenElement


4. The issues of convalidation are very limited, and there is no even minimal description of how convalidation will take place, what are its general principles and mechanisms.

The Draft Law defines the term “convalidation”. However, apart from mentioning that the procedure for convalidation of transactions in the temporarily occupied territories will be defined in a separate law, there is no general understanding of the framework and principles of convalidation in this Daft Law. Therefore, parliamentarians are invited to support the very introduction of the convalidation procedure in the future without providing an explanation of how and by whom this procedure can be conducted.

At the same time, the section on convalidation is devoted to the state registration of civil status acts and the recognition of acquired qualifications, results and periods of study in the temporarily occupied territories. The issue of using information from documents issued in the temporarily occupied territories has been the subject of discussion for more than a year. Thus, there is still no administrative extrajudicial procedure for registering births and deaths in such territories, despite a direct indication in the Law [4] on the need to develop such a procedure. And although the Draft Law mentions this problem, no solutions are offered.

In addition, attention should be paid to the threat posed in Part 3 of Article 13 of the Draft Law. Thus, academic certificates issued in the temporarily occupied territories shall not be recognized. To obtain documents on basic secondary and complete general secondary education, certification of recognition of learning outcomes and periods of study in the temporarily occupied territories is carried out in the manner prescribed by the central executive body in the field of education and science. At the same time, the Draft Law does not mention the procedure for certification for the recognition of qualifications, results and periods of study in the higher education system obtained in the temporarily occupied territories. It follows from the logic of the Article that documents on higher education in the occupied territories are not recognized. However, currently, there is a well-established practice, according to which the certification of recognition of results and periods of study in higher educational institutions is carried out in accordance with the Order of the Ministry of Education and Science of Ukraine №537 dated 19.05.2016  “On approval of the Procedure for certification to determine qualifications and periods of study in the higher education system obtained in the temporarily occupied territory of Ukraine after February 20, 2014, registered with the Ministry of Justice of Ukraine on May 30, 2016, under № 793/28923.” Thus, the Draft Law proposes to stop this practice without giving any reasons for such a decision.


[4] Law of Ukraine “On Peculiarities of State Policy to Ensure State Sovereignty of Ukraine in the Temporarily Occupied Territories in Donetsk and Luhansk Oblasts”


practice, according to which the certification of recognition of results and periods of study in higher educational institutions is carried out in accordance with the Order of the Ministry of Education and Science of Ukraine №537 dated 19.05.2016  “On approval of the Procedure for certification to determine qualifications and periods of study in the higher education system obtained in the temporarily occupied territory of Ukraine after February 20, 2014, registered with the Ministry of Justice of Ukraine on May 30, 2016, under № 793/28923.” Thus, the Draft Law proposes to stop this practice without giving any reasons for such a decision.

One of the main components of transitional justice, among other things, is the establishment of relations with the residents of the occupied territories and their reintegration. During the seven years of occupation in these territories, a large number of educational documents have been obtained, and former graduates continue to work and live in these territories. The requirement to validate school knowledge and the lack of mechanisms to validate qualifications in university education will lead to significant difficulties in employing young people in the occupied territories and, as a result, to enormous unemployment and even greater economic decline. Such a position of the Government of Ukraine on the future of the residents of the occupied territories may lead to an increase in the number of entrants to Russian higher education institutions [5].

Thus, the certification requirement should be limited and applied to certain subjects and disciplines studied in the occupied territories. In addition, it should be possible to obtain knowledge and skills, access to which is currently limited or absent (for example, refresher courses with optional disciplines in Ukrainian language and literature, history of Ukraine, etc.).

In addition, it should be noted that the provisions of Article 13 of the Draft Law for some reason cover only the issues of convalidation of transactions, state registration of civil status acts and the issue of non-recognition of educational documents. At the same time, many other documents have been issued in the temporarily occupied territories that are not included exclusively in these groups of documents (for example, medical documents, court decisions, etc.). 


[5] This issue is acute due to the practices of imposing Russian citizenship in the occupied territories and significant restrictions on freedom of movement across the line of demarcation and the administrative border with Crimea, which occurs from 2020.



5. The reference in the text of the Draft Law to laws that do not yet exist violates the principle of legal certainty.

The text of the Draft Law contains many references to laws that should establish separate procedures provided by this Draft Law. For example, Article 9 states that the specifics of amnesty and exemption from criminal liability of persons who have committed criminal offences in connection with the temporary occupation are determined by law. Article 10 states that the grounds and procedure for applying restrictions on the right to be elected in local elections and to hold office are determined by law. Article 36 of the Draft Law mentions the Law of Ukraine “On the Legal Consequences of Activities Related to the Temporary Occupation”, which is also referred to in the Final and Transitional Provisions as one to be adopted.

Moreover, paragraph 3 of Section VII of the Final and Transitional Provisions contains the requirement to recognize as invalid the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine “On the Principles of the State Policy of Transition Period”, “a number of laws of Ukraine, in particular, the relevant Law, which regulates the implementation of the rights and freedoms of residents of the occupied territory of Crimea (Law of Ukraine” On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”). At the same time, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine “On the Principles of the State Policy of Transition Period” does not yet exist, its draft has not been developed.

Despite the mentions of these laws, they have not yet been adopted or at least developed and submitted to the Verkhovna Rada of Ukraine. However, it seems that according to the logic of the drafters, together with the Draft Law 5844, all these non-existent legislative initiatives should form a system and create a certain area of ​​Ukrainian legislation on the policy of transition period. Indeed, the Draft Law “On the Principles of the State Policy of Transition Period” is rather a political declaration and proposes certain very general directions of the actions of the State in the context of the armed conflict and in the elimination of its consequences. In essence, it is a general law, and other laws are special and should be aimed at implementing its provisions. In this case, they must be adopted simultaneously or one after the other in an extremely short time. However, it currently appears that only one Draft Law (5844) has been drafted. However, the adoption of this Draft Law alone without the adoption of other laws aimed at developing its norms and creating full-fledged mechanisms for its implementation will turn this Draft Law into a purely declarative one, and its norms will not be able to be implemented in practice.

6. The Draft Law contains imperative prescriptions for phenomena and processes on which there should be a wide public discussion and dialogues, in particular, with the residents of the currently occupied territories of Ukraine.

Thus, Article 22 of the Draft Law contains the main elements of commemorating the victims of the armed aggression of the Russian Federation against Ukraine. In addition to the fact that, as noted above, the Draft Law does not specify who can be considered victims of the armed conflict, this article defines the forms of commemoration (museum of resistance to Russian aggression against Ukraine, memorial site to commemorate victims of the armed aggression against Ukraine) and places of the establishment of museums and memorial sites (Kyiv, as well as Donetsk, Luhansk, Sevastopol and Simferopol after their deoccupation). It is not clear how the places and forms of commemoration were determined, given that these issues are very sensitive in a polarized society in a state of an ongoing armed conflict, and a broad discussion of such commemorations of the victims of the armed conflict is crucial to peace-building.

7. Revoking of normative legal acts regulating the legal status of the Autonomous Republic of Crimea and the city of Sevastopol.

The Draft Law defines the Autonomous Republic of Crimea and the city of Sevastopol as a temporarily occupied territory, which is an integral part of the territory of Ukraine, to which the Constitution and laws of Ukraine apply. At the same time, Section VII of the Final and Transitional Provisions revokes a number of Laws of Ukraine and Resolutions of the Verkhovna Rada of Ukraine on the legal status of the Autonomous Republic of Crimea and the city of Sevastopol.

Crimea as an administrative-territorial unit has a special status of autonomy with its historical aspects and difficulties. The causal link between the status of Crimea as a part of Ukraine and the chain of establishment and activity of the authorities in Crimea has been traced by the Resolutions of the Verkhovna Rada since 1991. Therefore, the justification of the need to revoke a number of regulations, which in fact reflect the history of the Autonomous Republic of Crimea and the city of Sevastopol as full-fledged administrative-territorial units of Ukraine, is not clear.

It is important to note that the normative legal acts proposed to be revoked in the Draft Law regulate the order of activity of authorities, citizenship, the status of the Autonomous Republic of Crimea and the city of Sevastopol, etc. All these are only outlined in the Constitution of Ukraine and the Constitution of the Autonomous Republic of Crimea.

Conclusion

The development of the Draft Law “On the Principles of the State Policy of Transition Period” is an important step to continue the broad public debate on issues related to eliminating the consequences of the aggression of the Russian Federation against Ukraine, deoccupation and reintegration of the temporarily occupied territories of Ukraine.

At the same time, the Draft Law contains rather controversial provisions, some of which may worsen the situation with the realization of the rights and freedoms of victims of the conflict, compared to the current situation. Such issues include the proposal of the authors of the Draft Law to recognize as invalid a number of legislative acts relating to the status of the Autonomous Republic of Crimea and the city of Sevastopol. In addition, the new concepts introduced by the Draft Law need to be clarified, revised and substantially refined in order not to violate the principle of legal certainty and prevent misinterpretation and incorrect law enforcement.

Thus, the Draft Law “On the Principles of the State Police of Transition Period” needs refinement with the involvement of experts from national and international organizations, as well as relevant public authorities.

The Analysis was prepared by the experts of non-governmental human rights and charitable organizations:

NGO “Donbass SOS”, http://www.donbasssos.org   

NGO “Krym SOS”, http://krymsos.com/  

CF “Right to Protection” (R2P), https://www.r2p.org.ua  

CF “Vostok-SOS”, http://vostok-sos.org/  

NGO “Civil holding “GROUP OF INFLUENCE”, https://www.vplyv.org.ua/

CF “Stabilization Support Services”, http://radnyk.orghttps://sss-ua.org

NGO “ZMINA. Human Rights Centre”, https://zmina.ua/

NGO “Crimean Human Rights Group”, https://crimeahrg.org/uk/

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25.08.21

Today we present the report ‘Crossing the contact line’ for July 2021, prepared by the CF “Right to Protection” (R2P). The report is based on data collected during the monitoring of the situation on EECPs. More statistical data is available on the Eastern Ukraine Checkpoint Monitoring Online Dashboard: https://www.unhcr.org/ua/en/eecp-monitoring-2021

  • This month, crossing the contact line remained possible only through two EECPs out of seven: Novotroitske in Donetska Oblast and Stanytsia Luhanska in Luhanska Oblast, at a level considerably below the pre-COVID period. The other EECPs remained closed on the NGCA as a measure to restrict the spread of COVID-19. The numbers of people crossing them in July 2021 were about eight per cent of the pre-COVID-19 levels, which in 2019 often exceeded 1 million per month. In July, 80,588 people crossed the contact line.
Перетин лінії розмежування через КПВВ, липень–2021 (ЗВІТ)
  • Ukraine entered the green zone in terms of the number of COVID-19 cases. In this regard, the mandatory requirement for travellers crossing the EECP to install the smart phone GEO-tracing app Vdoma was lifted on 17 June.
  • On 26 July, a bus with over 20 people arrived from NGCA to Novotroitske EECP at the end of the working day. The travellers would have been stranded at the border all night. However, after R2P intervention, and by the order of JFO headquarters, the work of EECP was extended and people were able to pass through. In addition, the transportation to Volnovakha was arranged.
Перетин лінії розмежування через КПВВ, липень–2021 (ЗВІТ)
  • Since 28 July, people have had the opportunity to get vaccinated against COVID-19 directly at Stanytsia-Luhanska EECP. The vaccination center is open on Wednesdays and Fridays, from 9 am. to 12 am.
  • During July, 11,380 vulnerable elderly persons were transported across the Stanytsia Luhanska EECP by an electric vehicle provided by the NGO Proliska.
R2P LOGO ENGLISH

The report is available in

English

Ukrainian

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19.08.21

CF “Right to Protection” (R2P) in partnership with the International Law Committee of the Ukrainian National Bar Association reviewed the current case laws of the Supreme Court of Ukraine for the period from 2018 to 2021 in favor of the asylum seekers in disputes over their recognition as refugees and persons in need of complementary protection. The legal review was conducted by Olena Kalashnyk, a lawyer at the R2P, and Vitaliy Vlasyuk, a lawyer and Chairman of the UNBA International Law Committee.

Due to wars and armed conflicts in different parts of the world, a significant number of people are forced to flee and seek protection in other countries. Now the world community’s attention is focused on asylum seekers from Afghanistan, Syria, Somalia, etc.

After all, when a person in his/her country of origin faces significant difficulties due to religious beliefs, political views, belonging to a certain social group, or due to his/her ethnicity, life in their home countries becomes impossible. That is why people are forced to seek safety elsewhere, where their lives will not be in danger.

Overview of the practice of the Supreme Court in disputes concerning the recognition of persons as refugees or in need of the complementary protection (2018-2021) Огляд практики Верховного Суду у спорах щодо визнання осіб біженцями або такими, що потребують додаткового захисту (за період з 2018 по 2021)

«In Ukraine, an asylum seeker who applied to the State Migration Service for recognition as a refugee and was refused becomes left in a very stressful situation. The person then needs to appeal such a refusal in court and prove that he/she has certain grounds for obtaining a particular status.  Sometimes a person’s life depends solely on a court decision.

With this in mind, we have prepared a review of the current Supreme Court legal practice, which should facilitate the work of lawyers, the Migration Service, and the court in resolving disputes over the recognition of persons as refugees or in need of complementary protection. I hope that the legal court decisions included in the collection will help save many lives and contribute to the fair settlement of disputes between asylum seekers and the Migration Service,»

– said Olena Kalashnyk, a lawyer at the CF “Right to Protection” (R2P).

The overview is available for download (in Ukrainian).

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