Make a donation
Укр / Eng

Category: Analytics

12.04.21

We bring to your attention the summary of the Alternative Interim Report within the Universal Periodic Review (UPR) “State of Observance of the Rights of Refugees, Asylum Seekers and Stateless Persons in Ukraine“, prepared by a coalition of Non-Governmental Organizations (NGOs) concerned with the rights of the above-mentioned categories of persons: Charitable Fund “Right to Protection” (R2P),  Charitable Foundation “Rokada”, NGO “The Tenth of April” (“Desyate Kvitnya”) and The International Fund for Public Health and Environment “Carpathian Region” NEEKA. 

The report outlines the main systemic problems that lead to regular violations of the rights of refugees, asylum seekers, and stateless persons, as well as provides specific proposals to the Government on ways to address these problems.  

Such problems include the de facto impossibility of temporary employment for asylum seekers and the absence or limited access of asylum seekers and their children to free health services.

For example, the CF “Right to Protection” provided legal assistance to the families of Afghan citizens who were forced to flee the country to escape the war and as a result, found protection in Ukraine. There is a minor child in the family who needs medical care, but it is not possible to sign a declaration with the family doctor because parents must provide a valid identity document (the application for protection is not recognized as an identity document).

Seeing a certificate for the protection, one by one the employers closed the doors to him because Ukrainian law requires them to obtain a work permit and to pay him an official salary of at least 10 minimum Ukrainian wages. As a result, he entered the market unofficially. Such work rarely goes unnoticed: in a few months, one receives a fine for informal employment.

To address these issues, the NGO coalition recommends amending a number of laws, providing for the right of applicants to work without a special employment permit for foreigners, and for the Ministry of Health of Ukraine to develop and submit to the Verkhovna Rada a bill on the provision of medical services to children whose parents do not have identity documents.

The State has made some significant achievements in this direction over the past year, such as the creation of a legislative foundation for the introduction and operation of the procedure for recognition as a stateless person.  However, some of the issues identified in the report have not been addressed for many years and have been in the focus of past UPR reviews.

Among such problems is the unjustified detention of stateless persons for further identification and expulsion. For example, CF “Right to Protection” recently reported that a stateless person is threatened with detention. In this context, NGOs again recommend that detention be provided only as a last resort, when necessary and proportionate after all alternatives (starting with the least restrictive ones) have been exhausted.

The problem of the impossibility of identification related to imperfect legal regulation has become systemic: when checking citizenship, obtaining a passport of a citizen of Ukraine, obtaining a passport for the first time, establishing a person in court, etc. The second part of the report provides a list of legislative gaps and problems of law enforcement.

For example, a woman of the retirement age with a disability to whom the CF “Right to Protection” provided legal assistance is not able to work due to her health condition. Due to the lack of documents, the disability is not registered, she does not receive pensions or other payments, medical care is not available to her, she has no housing, and no relatives. The woman lives in an abandoned house without gas, electricity, water. Twice a week she goes to receive free food, packs it in a liter jar, and stretches it for a week.

From April 15, food will stop being distributed and so this woman will be left without any means for existence at all. Without the documents, she cannot receive any other assistance or payments from the state or volunteers. All of this is the consequence of the impossibility to identify her and provide the woman with a passport of a citizen of Ukraine. As it has been stated before, due to the lack of identity documents, the rights of such persons are repeatedly violated. 

In this regard, the coalition of NGOs – the authors of this report, recommend legislatively improve the rules of the procedure for establishing an identity of a person, including the procedure for issuing a passport of a citizen of Ukraine.

The alternative report itself is posted on the website of the Office of the UN High Commissioner for Human Rights and presented on December 15, 2020, during the public discussion of the draft state interim report on the status of implementation of recommendations received from the 3rd cycle of the UPR. 

What is the Universal Periodic Review (UPR)? Whose recommendations should the Government follow?

The UPR assesses the implementation of the human rights obligations by the States under the following instruments: 

(1) the Charter of the United Nations; 

(2) Universal Declaration of Human Rights;

(3) human rights instruments to which the State is a party (human rights treaties ratified by the State); 

(4) voluntary statements and commitments of States (including national human rights policies and/or implemented programs);  and, 

(5) international human rights instruments. The UPR is a mechanism of the UN Human Rights Council, which conducts regular reviews of the implementation of human rights commitments and responsibilities by 193 UN member states four times a year. The review is conducted by the UPR Working Group, which consists of 47 members of the Human Rights Council.

Taken from the Access Accountability Website

This review takes place through a three-hour interactive dialogue between the State concerned, the member countries of the Council, and the observer countries. During this discussion, any UN Member State may ask questions, express its conclusions, and/or make recommendations to the State concerned.

The last review of Ukraine’s compliance with its commitments took place in 2017, as a result of which various countries around the world provided 201 recommendations to the Government of Ukraine on overcoming certain challenges in the field of human rights. The government supported 171 of these recommendations, in other words, recognized the need to implement them. The other 30 were left without official support from Ukraine, but this does not mean that they will be ignored. 

For example, in 2012, Ukraine was recommended to ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, which the Government of Ukraine simply complied with without official support. In 2013 these documents were ratified.

Thus, the Government should report in 2023 (the next review of the state of human rights in Ukraine in the framework of the UPR) if it has implemented all the recommendations received in 2017 from the other states. A positive initiative was the interim reporting of Ukraine in 2020 on the progress already made, especially since such reporting is not mandatory. This report in particular did not overlook some issues regarding the rights of these categories in the Annex to the report.

Our report assesses the implementation of some of these recommendations, as well as an assessment of the observance of the rights of refugees, asylum seekers, and stateless persons in the country as a whole. We hope that, through and independently of the UPR mechanism, the situation of these vulnerable categories will be improved by addressing current and outdated challenges.


The infographics for this review are available in Ukrainian and English.

Also read:

06.04.21

In mid-March 2021, the European Court of Human Rights (ECtHR) ruled in case “TURDIKHOJAEV v. UKRAINE” (application no. 72510/12).  The Court found that Ukraine had violated Article 3 and parts one and five of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the prohibition of inhuman treatment and the right to liberty and security of person.

The case concerned a complaint of a citizen of Uzbekistan regarding his extradition detention in Ukraine after being recognized as a refugee by the Swedish government, as well as the conditions of his detention in the Kyiv Remand Prison inside the metal cell in the courtroom.

Uzbekistan Україна має виплатити 9000 євро громадянину з Узбекистану

The applicant was detained after arriving at Boryspil Airport in June 2012 as he was on the international wanted list at the request of Uzbekistan, and the Boryspil Court remanded him in custody for 30 days. Following his arrest, the applicant applied for refugee status.

In July 2012, Uzbekistan sent an extradition request, accusing this man of a membership in an extremist (fundamentalist) organization, distributing “subversive” literature, and attempting to overthrow the constitutional order in Uzbekistan. The Shevchenkivsky District Court applied an extradition arrest to the applicant for the duration of the extradition proceedings, but not more than 18 months.

In December 2012 the State Migration Service of Ukraine (SMSU) refused to recognize the applicant as a refugee. The court reviewed and extended the extradition arrest several times in 2012 and 2013. In January 2013 the Prosecutor General’s Office of Ukraine decided to extradite the applicant to Uzbekistan. In February 2013, the Shevchenko court upheld the decision.

In March 2013 the District Administrative Court upheld the SMSU decision to deny the applicant refugee status. When the extradition case was heard in the Court of Appeal, the applicant was kept in a metal cage, although he begged not to do so, as he had not committed any violent crime and should have been presumed innocent in accordance with the constitutional principle of the presumption of innocence.

In April 2013 the applicant was recognized as a refugee by the Swedish Government and was allowed to settle in Sweden. The Office of the United Nations High Commissioner for Refugees (UNHCR) immediately informed the Prosecutor General’s Office of Ukraine (PGOU) about this decision. The Swedish embassy in Ukraine also notified the PGOU about this fact. In accordance with the provisions of the Criminal Procedure Code of Ukraine, the recognition of the applicant as a refugee makes it impossible to extradite such a person.

However, the prosecutors did not pay attention to these circumstances and continued to defend their extradition decision, despite the fact that in mid-May 2013 they even received a copy of the decision to recognize the applicant as a refugee from the Swedish embassy.

At the end of May the Kyiv Administrative Court of Appeal upheld the SMSU decision to deny the applicant refugee status.

In early June 2013 the Kyiv City Court of Appeal quashed the Migration Service decision to extradite the applicant. The next day after the applicant’s decision he was released. Later, he moved to Sweden, where he lives to this day.

From the end of June 2012 to the beginning of June 2013 the applicant was held in the Kyiv remand prison in various cells: for 7 days he was held in a 31.6 square meters cell together with 28 other detainees, for 45 days in a 34 square meters cell with 30 cellmates, 5 months in a cell with an area of ​​39.2 square meters together with 22 people and another 5 months in a cell with an area of ​​53.3 square meters with 33 cellmates.  All these cells did not have ventilation, the conditions were unbearable. The applicant was defended in national courts by the ECtHR by the lawyers of the Charitable Fund “Right to Protection” (R2P).

Uzbekistan Україна має виплатити 9000 євро громадянину з Узбекистану

The ECtHR found a violation of Article 3 of the ECHR concerning the conditions of the applicant’s detention in a Kyiv pre-trial detention center and his placement in a metal cage during court hearings, a violation of Article 5 § 1 concerning the applicant’s extradition arrest until the moment of actual release (one and a half months), and violation of the fifth part of Article 5 regarding the lack of an effective legal mechanism for obtaining compensation for illegal detention at the national level.

The fair satisfaction awarded by the court in this case amounted to EUR 9,000, which the applicant shall receive from Ukraine within three months.

Although there have been no cases of recognized refugees detention for the purpose of extraditing since the events took place, violations of the rights of asylum seekers during the extradition procedure still exist. Thus, there is a conflict between the requirements of the Law of Ukraine “On Refugees and Persons in Need of Additional or Temporary Protection“, which requires a personal application for refugee status, while at the same time the law on detention does not allow to apply for such a status from the sites of imprisonment.

Also read:

02.04.21

For the 8-th year in a row the territories of Ukraine are occupied. Since then most internally displaced persons (IDPs) have been living in the new amalgamated territorial communities. These people have finally won the right to vote in local elections, but the state still treats them as the “temporary phenomenon” and continues to apply special rules and orders to them where the general ones must have long been applied.

This includes the restrictions on the choice of a bank to receive social and pension benefits (as of today, IDPs can receive above mentioned benefits only to the “Oschadbank” cards – ed.note), numerous checks on those who receive these benefits, and so on. It is time to acknowledge that the “temporality” of this situation has dragged on, so changes in legislation are needed to enable IDPs to integrate into the local communities.

Such changes should be provided by the recently registered Bill №4487 «On Amendments to the Law of Ukraine «On Ensuring the Rights and Freedoms of Internally Displaced Persons». After the Verkhovna Rada approval the Bill will deal with many issues, such as housing and IDP certificates, as well as and many other equally important issues.

But, in my opinion, one of the most important elements is the norm according to which the presence or absence of a certificate of registration of an internally displaced person cannot be a ground for restricting the exercise of the rights and freedoms provided by the Constitution, laws or international treaties of Ukraine with the exception of the cases when the IDP certificate guarantees additional benefits or guarantees, for example, receiving targeted assistance, free meals for children in educational institutions, annual rehabilitation, etc.

These changes should be the first step in resolving the problems of the internally displaced. Then, in order to comply with the adopted law, amendments to a number of bylaws must be also adopted. After all, it is necessary to finally give IDPs the right to choose the bank where they wish to receive benefits (“Oschadbank” is not the only state bank), it is necessary to cancel the resolution №365 and the so-called “home inspections”, which are not carried out now due to quarantine, but we know that after the end of the quarantine these restrictions may get back.

IDP Oschadbank card issue карта ощадбанка для ВПО
Oschadbank – the only bank which IDPs can use to receive their hard-earned pensions or social benefits

The state always talks about unifying approaches, but in fact does little to implement it, especially when it comes to the internally displaced persons. It is time to erase those artificial lines between “ours” and “theirs”, because we are all the People of Ukraine, the country to which the war came. It should unite us, not divide.

AUTHOR:

IDPs IDP Анастасія Одінцова: про менторський досвід, навчання інших та маленькі кроки для великих змін Anastasia Odintsova tells about her mentoring experience, teaching others and small steps for big changes

Anastasia Odintsova,

Advocacy Lawyer

Charitable Fund “Right to Protection” (R2P)

Read also:

01.04.21

Today we present the report “IDPs housing needs, intentions and opportunities. Dnipropetrovska, Zaporizka, and Kharkivska oblasts.”, prepared by the CF “Right to Protection”. Main goals of the report were to collect and systematize the housing needs of the internally displaced persons (IDPs) using the survey method, as well as to gather the monitoring data on residential buildings that can be reconstructed and further used as temporary or social housing for IDPs. Relevant recommendations and conclusions were also prepared.

Since the conflict outbreak, the State has launched six programmes to respond to the housing issue, which aim to provide both short-term and long-term solutions. Regarding the previously done analysis of existing programmes, we can presume that they cannot fully respond to the acute issue and that other solutions should be sought out and implemented.

To date, no comprehensive housing analyses have been conducted within Dnipropetrovska, Zaporizka, and Kharkivska oblasts where almost a fifth of all IDPs is registered (the biggest numbers after the conflict-affected Donetska and Luhanska oblasts, and Kyivska oblast and Kyiv). To address this, the Charitable Fund “Right to Protection” (R2P) monitored settlements in these oblasts with regard to available housing, and surveyed IDPs on their needs and awareness.

R2P representatives have conducted 444 monitoring visits to 282 settlements in Dnipropetrovska, Zaporizka, and Kharkivska oblasts. As a result, 898 objects were identified in 170 settlements of 68 raions of the three oblasts. The majority of objects are located in Dnipropetrovska Oblast.

Report IDPs Housing Needs, Intentions and Opportunities. Dnipropetrovska, Zaporizka and Kharkivska Oblasts

Read more about our survey in the report:

English

Ukrainian.

This publication has been produced with the assistance of the UN Refugee Agency (UNHCR). The contents of this publication are the sole responsibility of “Right to Protection” and can in no way be taken to reflect the views of UNHCR.

Also read:

17.03.21

The Interdepartmental Commission for Establishing the Injury or Other Damage to Health Received from Explosives, Ammunition and Military Weapons on the Territory of the Anti-Terrorist Operation* has been holding its meetings since December 2018. 

During this time, despite lots of obstacles and all sorts of incidents, this commission considered 148 applications, made 134 positive decisions and 12 refusals. Some of the applications were postponed due to the missing documents.

The obvious positive moment in terms of the effectiveness of this structure is the presence of the representatives of non-governmental organizations in the commission – those who on a daily basis take care of the issues of people, affected by an armed conflict in the east of Ukraine. 

Activists know very well not the factual but the “human” side of the issues. As a member of this commission, I approach the consideration of each case with full responsibility, because I understand that all of this is not about dry facts and stacks of papers, but about the lives and fates of Ukrainians.

I still remember one of the cases. The guardian appealed to the commission in favor of her granddaughter. An excerpt from the Unified Register of Pre-Trial Investigations (an extract) concerning the case stated: “during the shelling the bomb hit the school, citizen XXX was injured, 2 people died.” But then you read and understand that those two dead people were the girl’s mother and her brother… 

That is why the documents were submitted by the guardian. And at this moment you feel like you’re among the ruins of this school…

You realize how many lives and destinies this war has destroyed. The only thing you can do to help them now is to read these documents carefully and fight for each of those who asked for help.

I also remember another meeting of the commission when the application of a couple was considered. It was already clear that they would be refused as it was not possible to establish in which location the injury occurred**.

Following the monitoring of this situation, the media managed to find out that the couple was injured during the evacuation from the village where they lived. Illegal armed groups occupied the village, but gave the opportunity to leave to those who do not want to stay. The couple and several other people got into a car and headed towards the controlled area, but it turned out that this was not a gesture of goodwill, but a trap: the car was mined. An explosion occurred as the car approached the Ukrainian military checkpoint.

I said this during a meeting of the Interdepartmental commission, and after a lively discussion it was decided to provide a positive decision on this matter, as the territory of the military checkpoint although not being included in the list of Government-Controlled Area settlements, is actually controlled by Ukraine.  

In fact, a precedent was set in the consideration of the cases and identical cases now receive positive decisions as well. Of course, it would have been great if our citizens did not find themselves in such dangerous and horrible situations, but, unfortunately, occupation and military conflict always goes hand in hand with casualties and losses. It is the duty of the state to provide social protection to the victims of this conflict. This protection is provided today by the Interdepartmental Commission. If you have an injury or disability, received during an armed conflict you surely must submit documents and application to the commission. And we will do our duty – will be fighting for everyone of you!

Анастасія Одінцова: про менторський досвід, навчання інших та маленькі кроки для великих змін Anastasia Odintsova tells about her mentoring experience, teaching others and small steps for big changes

Anastasia Odintsova

Advocacy Lawyer

Right to Protection CF

List of the documents needed to be collected before an application is available following this link

*The Commission acts on the basis of the resolution of the Cabinet of Ministers № 306 from 04/25/2018 «Some issues concerning the establishment of the connection of a disability with the injuries or other damage to the health» 

**There is a discriminatory restriction on the territorial definition of this resolution. Until December 1, 2014 the status is granted if a wound was received in the area of Anti-Terrorist Operation, after December 1, 2014 only if the wound was received in the Government-Controlled Area or near the contact line.

UNHCR Ukraine

Also read:

16.03.21

Today R2P presents the report ‘Crossing the contact line’ for February 2021, prepared by the NGO ‘Right to Protection’. 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

HIGHLIGHTS:    

  • During the month, crossing the contact line remained possible only through two EECPs: Novotroitske in Donetska Oblast and Stanytsia Luhanska in Luhanska Oblast, at a level considerably below the pre-COVID period. The number of people crossing the contact line increased in February compared to January by 31 percent: 39,497 and 27,480 respectively.
  • At the end of February, it was still not possible to take free-of-charge rapid COVID-19 tests at Stanytsia Luhanska EECP, despite governmental instructions. PCR tests for COVID-19 could only be done at one’s own expense in three different private laboratories located at the EECP. At Novotroitske EECP, of those who crossed 518 (87%) people took advantage of the opportunity to pass a rapid test for COVID-19.
  • Visiting relatives remained the main reason for crossing in both directions, including for people crossing into GCA. NGCA residents also crossed EECPs for reasons of cash withdrawal, issues of pension or social payments, and documentation issues. In February 2020, visiting relatives was only the third widespread reason for crossing into GCA, after pension recovery and cash withdrawal.
  • R2P monitors facilitated 120 requests for crossing from GCA residents through the fast-track procedure. Also, R2P assisted about 800 persons with installing the “Vdoma” app.
  • During the month of February, 4,483 vulnerable elderly persons were provided with transport support at Stanytsia Luhanska EECP by the NGO “Proliska” e-vehicle.

The report is available in English and in Ukrainian. 

The report is based on the results of a survey conducted by R2P at the five EECPs to enter the NGCA and administered on a regular basis since June 2017. The survey is a part of the monitoring of violations of rights of conflict-affected populations within the framework of the project ‘Advocacy, Protection, and Legal Assistance to IDPs’ implemented by R2P, with the support of UNHCR. The purpose of the 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 line of contact through EECPs. The information collected in the survey helps identify protection needs, gaps, and trends, and provides an evidentiary basis for advocacy efforts.

Report ‘Crossing the contact line’, February 2021

Also read:

04.03.21

On February 26, 2021, Amendments to the Law of Ukraine “On Compensation to Citizens for Loss of a Part of an Income Due to Violation of the Terms of Their Payment” entered into force. Thanks to updates, the list of the types of income for which compensation will be paid is expanded, as well as the sources of compensation payment are changed.

In the previous version of the Law, incomes were considered to be money incomes of citizens, which are repeatedly received on the territory of Ukraine. The law did not have an exhaustive list of types of income, but was very concise: 1) pensions; 2) social benefits; 3) scholarships; 4) wages (cash security), etc.

In the amended version, the definition of income has not changed, but the list income types is now supplemented and exhaustive:

  • pensions or monthly lifetime allowance (including allowances, increases, supplementary pensions, targeted cash benefits, pensions for special services to Ukraine and other pension supplements established by law);
  • social benefits;
  • scholarships;
  • wages (cash security);
  • the amount of indexation of monetary income of citizens;
  • the amount of compensation for damage caused to an individual by injury or other damage to health;
  • amounts paid to persons entitled to compensation in case of loss of a breadwinner.

Sources of compensation have also changed. From now on, compensations are paid by the Social Insurance Fund of Ukraine (SIFU), formed after the merger of the Social Insurance Fund for Accidents at Work and Occupational Diseases and the Social Insurance Fund for Temporary Disability. The SIFU began operations on August 1, 2017.

Employers of all forms of ownership, as well as the Pension Fund of Ukraine, the SIFU, the Fund of Obligatory State Social Insurance of Ukraine in the event of unemployment, etc., are obliged to pay wages, pensions, social benefits, scholarships and other income on time and in full. But they usually forget or pretend to forget that this legal requirement obliges them to pay compensation for the loss of part of this income due to its late payment.

Compensation for the loss of an income due to late wage payment

Social benefits should mean assistance to families with children; state social assistance to children with disabilities from childhood and children with disabilities; unemployment benefits; financial assistance during training; retraining or advanced training of the unemployed; temporary disability benefits (including care for a sick child); maternity benefits; monthly amount of money in case of partial or complete disability; that compensates the relevant part of the lost earnings of the victim due to an accident at work or an occupational disease; child support; who has a disability from birth due to an injury at work or an occupational disease of her mother during pregnancy, etc.

So we urge you to know and defend your rights!

If you have any questions about the violation of your rights, call the hotline numbers of the Right to Protection CF. It is open Monday to Friday from 9:00 to 18:00:

UNHCR Ukraine – United Nations High Commissioner for Refugees in Ukraine

Read also:

26.02.21

On November 5, 2020, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada of Ukraine a draft law «On Amendments to Certain Laws of Ukraine Concerning the Regulation of Issues Related to Prisoners of War and Internees During a Special Period.»

Charitable Fund Right to Protection draws the attention of the subject of the legislative initiative and legislators to the fact that the provisions of this bill apply not only to prisoners of war, but also to foreign civilians who are on the territory of Ukraine, and therefore considers it necessary to provide analysis of the bill in this aspect.

The essence of the bill

The draft law was developed by the Ministry of Defense of Ukraine to ensure the implementation of Ukraine’s international obligations regarding the detention of prisoners of war and internees during a special period.

It implements changes and additions to the following laws of Ukraine: «On the Security Service of Ukraine»;  «On local self-government in Ukraine»;  «On local state administrations»;  «On the Armed Forces of Ukraine»;  «On the Defense of Ukraine»;  «On the Military Law Enforcement Service in the Armed Forces of Ukraine»;  «On the legal status of foreigners and stateless persons»;  «On the National Guard of Ukraine»;  «On the National Police».

According to the text of the draft, internees are persons who have been interned (forcibly settled in certain places by citizens of a state that threatens to attack or carry out aggression against Ukraine, who are on the territory of Ukraine, if it is absolutely necessary to ensure national security of Ukraine).

 «After the draft law №4327 was registered, our beneficiaries began to ask for explanations as to whether certain provisions of the bill violate their rights. In the process of analysis, we found that their fears are not unfounded, because the draft does not contain a clear internment procedure and possibility to appeal if such a decision wa made, »

– said Svitlana Butenko, senior lawyer for strategic litigation at Right to Protection CF.

Risks for refugees, persons in need of additional protection, asylum seekers

1. The Ministry of Defense states in the Explanatory Note to the draft law that the draft law does not contain provisions that could lead to  violation of the rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the European Convention), affect equal rights and opportunities for women and men, contain risks of committing corruption offenses and offenses related to corruption or create grounds for discrimination.

However, the Right to Protection CF considers it necessary to point out that certain provisions of this draft law that may violate the rights and freedoms guaranteed by the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms.

In particular, it violates the right to liberty and security of person, guaranteed by The Constitution of Ukraine and Article 5 of the European Convention; the right to privacy provided for in Article 32 of the Constitution of Ukraine and Article 8 of the European Convention; the right to freedom of movement provided for in Article 33 of the Constitution of Ukraine and Article 2 of Protocol № 4 to the European Convention, and also violates the guarantees established in Articles 35, 43 and 44 of the IV Geneva Convention.

In addition, the provisions of the draft do not comply with the principle of legal certainty, i.e. are not clear, accessible and predictable for law enforcers, which contradicts the European Convention on Human Rights in its interpretation by the European Court of Human Rights.

 2. The draft significantly expands the powers of the Security Service of Ukraine, the National Police of Ukraine and the Armed Forces of Ukraine to identify citizens who pose a threat to Ukraine’s national security or threaten to attack or carry out aggression against Ukraine, as well as to make decisions on their internment. 

The unlimitedness of these powers in time, space, and the application of a sufficiently broad wording to the range of persons to whom it may be applied poses a threat of arbitrariness. This position is shared by UNHCR, as stated in the Thematic Legislative Update for November 2020, prepared on the basis of a legal analysis of laws and public policies concerning refugees, asylum seekers, stateless persons, internally displaced persons and victims of conflict in Ukraine.

The draft does not define a clear procedure for deciding on the internment of a person. In particular, it does not stipulate that such a decision is made for each person individually.  This is contrary to Article 75 of the Additional Protocol to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, which prohibits collective punishment of persons under the authority of a party.

3. The draft does not provide a definition of persons who “pose a threat to the national security of Ukraine” and does not guarantee that a person is informed of the reasons for his or her internment, as expressly provided in Article 75 of Protocol I. This significantly limits ability to appeal for  such a person.

Failure to comply with the principle of legal certainty in the project may lead to the fact that the above exclusive powers of public authorities may be applied to an unlimited number of citizens of the Russian Federation who are in Ukraine, including refugees, persons in need of additional protection, asylum seekers.

The draft law does not contain any safeguards against the internment of civilians who are refugees or persons in need of additional protection or seekers of protection, which is directly contrary to the provisions of Article 44 of the Convention for the Protection of Civilian Persons in Time of War of 12 August  1949 (IV Geneva Convention).

Persons who may be interned under the requirements of this draft law, contrary to the safeguards and guarantees provided for in Article 35 and Article 43 of the IV Geneva Convention, are not protected by the right to leave the country at the beginning and during the armed conflict or by immediate judicial review (and subsequent  review at least twice a year).

At the same time, the draft proposes to supplement the grounds for banning the departure of foreigners or stateless persons from Ukraine, provided for in part two of Article 22 of the Law of Ukraine «On Legal Status of Foreigners and Stateless Persons» with the paragraph “on internment decision – until revocation of internment decision”.

 4. The draft law provides for amendments to Article 11 of the Law of Ukraine “On Defense of Ukraine”, according to which an internee has the right to appeal the decision on his / her internment in the manner prescribed by law.

Given that internment is a special procedure, the appeal of the decision should also have certain features, such as a reduced period of consideration of such cases and their appellate review, compared to other categories of cases.  

Therefore, the bill should contain relevant provisions on the procedure for appealing such a decision. However, those provisions are absent in the text of the draft law. Given this, such an approach may contradict the provisions of Articles 55 and 124 of the Constitution of Ukraine, which guarantees the right to appeal in court against decisions, actions or omissions of the authorities, as well as to extend the jurisdiction of the courts to any legal dispute.  

Despite the general rules on the right to appeal contained in the text of the bill, the law in this case should provide for an appropriate appeal procedure with its features if necessary, which in turn will guarantee the realization of the internee’s right to a fair trial.

However, the final and transitional provisions of the bill also do not contain relevant proposals for legislative changes. Therefore, even if the internee has the right to appeal, he or she will not be able to use it in the absence of the necessary simplified procedure.

The absence of relevant provisions in the text of the bill does not allow for judicial control over the decisions of public authorities – the General Staff of the Armed Forces of Ukraine and the Security Service of Ukraine, even if decisions are made in a special period. This contradicts Article 64 of the Constitution of Ukraine, the constitutional right of a person and a citizen to appeal provided for in Article 55 of the Constitution of Ukraine may not be restricted in a state of war or emergency.

Conclusion

Given the risks outlined above, the purpose of the project is to implement the Geneva Convention on the Protection of Civilian Persons in Time of War, which seeks to protect a certain group of persons and begins when, in the event of a conflict or occupation, a person finds himself under the authority of a party to the conflict or of an occupying State of which he or she is not a national. This purpose is not reached in this draft law.

In this regard, we empasize that the draft must be brought in line with Ukraine’s international obligations under the Geneva Convention concerning to the Protection of Civilian Persons in Time of War. Based on this, the Right to Protection CF provides the following recommendations for finalizing the draft law № 4327:

1. Refugees, persons in need of additional or temporary protection, asylum seekers should be excluded from the scope of regulation of this draft law.

2. The draft law should be supplemented by the guarantee to be able to freely leave the territory of Ukraine by the persons who are subject to internment at the beginning and during the armed conflict as an alternative to internment.

3. The draft law should be accompanied by a clear definition of «a person who poses a threat to the national security of Ukraine» and guarantee the individuality of the decision to intern persons and properly inform such a person about the reasons for his or her internment.

4. The draft law should be supplemented by the procedure of urgent judicial control on the legality of the application of internment of persons (to be performed at least once every six months) with the possibility of appeal.

UNHCR Ukraine – Aгентство ООН у справах біженців в Україні

Read also:

23.02.21

In December 2020, the Verkhovna Rada of Ukraine adopted in the second reading and as a whole the draft Law of Ukraine «On the State Budget of Ukraine for 2021». This law has already entered into force. 

So, what exactly changed in the context of protection of the rights of internally displaced persons (IDPs) and victims of an armed conflict? 

Here are the key differences:

  • Funding for the state program for the payment of monetary compensation to victims whose houses (apartments) were destroyed as a result of a military emergency caused by the armed aggression of the Russian Federation has been increased to UAH 114 million.
  • Subventions from the state budget to local budgets for the implementation of measures to support the territories affected by the armed conflict in eastern Ukraine have been increased to UAH 125 million.
  • A new state program has been introduced to ensure proper conditions for entry and exit of persons to the temporarily occupied territories of Ukraine – UAH 267 million.
  • A new state program has been introduced to ensure the reintegration of young people from the temporarily occupied territories of Donetsk and Luhansk oblasts, the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol – UAH 130 million (although such a program appeared only between the first and second readings).
  • There is no funding for the state program «Affordable Housing» (it was reduced by the April changes to the state budget for 2020 and will not be renewed in 2021).
  • There is no funding for subventions from the state budget to local budgets for the implementation of the project «Housing for Internally Displaced Persons».
  • There is no funding for a program to provide mortgage loans to internally displaced persons.

Full details – in the table.

UNHCR Ukraine – Aгентство ООН у справах біженців в Україні

Read more: