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20.10.21

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

Only two of seven Exit-Entry Crossing Points (EECPs) remained open for crossing the contact line: Novotroitske in Donetska Oblast and Stanytsia Luhanska in Luhanska Oblast. COVID-19 measures continue to have an impact on the number of persons crossing the EECPs. In September less people crossed than in previous months. According to SBGS statistics, about 70,000 people crossed the contact line in September, while the figure was 91,000 for August. Anti-COVID-19 measures are cited by the de facto authorities as their reason to keep the other EECPs closed.

On 17 and 24 September, NGCA side of Novotroitske EECP was closed by the de facto authorities citing technical problems without any further explanations. Meanwhile, Novotroitske EECP on GCA side was open on those days. This closure prevented people crossing for purposes such as obtaining necessary medical treatment, visiting relatives or attending funerals of relatives on time. Such closures may in some cases lead to the deterioration of health of sick people and those who need special care.

In September, it has become possible to obtain a printable Covid-19 vaccination certificate at the Diya website. It means that people can get the certificate without visiting a medical facility even while being in the NGCA. However, a smartphone with Diya app or an electronic digital signature is needed.

During September, 10,159 vulnerable elderly persons were transported across the Stanytsia Luhanska EECP by an electric vehicle provided by the NGO Proliska.

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.

The report is available in

English

Ukrainian

05.10.21

Like the most of other people who lived in the Donetsk and Luhansk regions, Lydia was forced to leave her native Horlivka in 2014 due to the start of hostilities. Being hundreds of kilometers away from her home is not an easy challenge, especially for a person over 60.

For the first time, the woman settled in a modular town in Kryvyi Rih. Due to difficult living conditions (summer temperatures exceeded 38 degrees), the woman was forced to look for a new home again. That’s how she got acquainted with the local team of the CF “Right to Protection” (R2P).

In 2016, the monitoring specialist of the R2P Olena Pazenko helped Lydia move to a dormitory in Sofiyivka. The woman lived there for the next three years. But a modest pension which she received was not enough to pay the high cost of utilities. Lydia was forced to return to the modular town. Subsequently, the woman tried to find housing in the cities of Pokrov and Zhovti Vody, but all these attempts were in vain.

However, Lydia did not despair, and once our colleague offered to apply for temporary housing in a dormitory in Kryvyi Rih. The first floor of the building was reconstructed thanks to the efforts of the Ukrainian Social Investment Fund (USIF) and local authorities.

There is one week left before the opening of this compact residence place. The woman still had to collect a package of documents, while many other IDPs had already handed them in. At first, it seemed that there was nothing to hope for. However, with the help of our colleagues, all the necessary documents were collected and submitted within one day.

Маленькі громади з великим серцем. Історія Девладівської ОТГ

«IDP’s applications for temporary housing are being considered by a Commission with the use of a priority-based scoring system. Ms. Lydia received approval of the Commission and was settled in a 1-room apartment in an apartment-type dormitory. Therefore, we emphasize that every internally displaced person has the right to submit documents and stand in line for temporary housing, even if the number of people in the queue exceeds the number of apartments available,»,

– said Myroslava Sushchenko, the head of the Dnieper-Zaporizhia office of the R2P.

Our colleague Olena Pazenko warmly tells about the recent meeting with Lydia:

«Recently, during a monitoring visit to the compact residence place, we talked to Ms. Lydia about her impeccable Ukrainian language and it turned out that her daughters graduated from the Faculty of Ukrainian Philology, and Ms. Lydia’s older brother is a famous Ukrainian poet Leonid Talalai, whose works are studied in schools. Mrs. Lydia is a bright person and very modest! I am so glad that our efforts were not in vain, I am glad to see her eyes shining with happiness – such moments give hope that in the future every person who was forced to leave home will definitely find it!»

Today Lydia is finally happy and gets used to living in her new home.

We are sincerely glad that this story turned out to be a success. We wish Lydia to never feel any discomfort in her life again and to only feel warmth, coziness, joy, and happiness. We also thank the city authorities of Kryvyi Rih and the Ukrainian Social Investment Fund for their help in realizing Lydia’s dream.

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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

R2P LOGO ENGLISH

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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30.09.21

Our colleagues continue to provide legal assistance to the communities in eastern Ukraine within the framework of the project “Ensuring access to social services in local communities along the contact line”. Recently, they paid working visits to the east of Ukraine, met with the participants of our project, and presented the first developments and results of the joint work.

In the spring of this year we began active work with the amalgamated territorial communities (ATCs) which were formed during the decentralization reform in Ukraine. This is an absolutely new experience for Ukraine, which is, of course, accompanied by the emergence of many problems throughout the country, especially in the east, near the contact line. Therefore, we have started cooperation with five ATCs, three of which (Sartanska, Marinska and Svitlodarska) are from the Donetsk region, and two (Hirska and Nyzhnyoteplivska) from the Luhansk region.

Last week our colleagues proudly presented the Draft of the Community Social Passport and discussed the results of a comprehensive study which the R2P conducted in the summer. With the use of focus groups and questionnaires, we have collected the information on the actual state of affairs in the system of social services in the communities, learned about the needs of people living in abovementioned communities, and so on. Team of the R2P had analyzed the results and announced them during the meetings. In the future, this data will help to create and maintain a working social protection system in every amalgamated territorial community in Ukraine.

Олег Любімов

“These are just the first steps. Next, it is required to create a system of communal institutions which provide social services, as well as to organize the structural units within the Amalgamated Territorial Communities, which not only will be responsible for providing social services to the locals, but also will conduct full monitoring and evaluation of the quality of the already provided services”

– notes Oleg Lyubimov, Decentralization Coordinator at CF “Right to Protection” (R2P).

We already have some fruitful results of our common work with the communities. Thus, in addition to the developed community social passports in Hirske, our employees helped to add the recently formed municipal institution of the Hirske City Civil-Military Administration (CMA) to the register of social service providers. In Marinka, our colleagues provided methodological assistance in preparing a project application for participation in the UNHCR grant competition.

Допомога громадам. Як БФ «Право на захист» допомагає ОТГ створювати ефективну систему надання соціальних послуг Helping the communities. How R2P helps ATCs create an effective system for providing the social services

We have also discussed the reorganization of the Bakhmutsky Territorial Center for Social Services, which was transferred to the balance of the Svitlodar City CMA. In Nyzhnyoteplivska ATC, we have discussed the options for providing social services to the community residents both on the basis of inter-municipal cooperation and via creating its own municipal institution, the Center for Social Services.

Lawyers of the CF “Right to Protection” (R2P) also advised the management of the amalgamated territorial communities on the financial support of the system of social services. Colleagues spoke about the various subventions provided to the local budgets from the state to support the ATCs and their social services system.

Допомога громадам. Як БФ «Право на захист» допомагає ОТГ створювати ефективну систему надання соціальних послуг Helping the communities. How R2P helps ATCs create an effective system for providing the social services

There is still lots of work to be done. Yet we hope that this work will yield fruitful results.

The project “Ensuring access to social services in local communities along the contact line” is implemented by the CF “Right to Protection” (R2P) with the support of the United Nations High Commissioner for Refugees (UNHCR) in Ukraine.

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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.

R2P LOGO ENGLISH

The report is available in

English

Ukrainian

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22.09.21
  • Almost 8 years of hostilities in the Donbas;
  • Almost 1.5 million registered IDPs;
  • Thousands of destroyed buildings, housing, and property.

All these are the consequences. But today we already need to speak about the solutions, not the consequences. For many conflict-affected persons, the solution is a new home on free Ukrainian territory to replace what was lost during the evacuation from now Non-Government Controlled Areas (NGCA) or destroyed/badly damaged as a result of the hostilities. The housing may allow these people to start a new life from scratch and to recover from what they had to go through.

Therefore, it is not surprising that the most popular reason why IDPs turn to us for advice and counseling is housing. People are interested in buying their own housing at the expense of state and international donors, as well as to be provided with temporary housing by the local authorities.

Consultation: "All-Ukrainian housing programs for internally displaced persons (IDPs)" Консультація: «Всеукраїнські житлові програми для внутрішньо переміщених осіб»

That’s why our colleagues in the Donetsk region, jointly with the leadership of the Kostyantynivska amalgamated territorial community, held a legal consultation on the topic of all-Ukrainian housing programs for internally displaced persons (IDPs).

Lawyer Serhiy Shkramada, together with the regional monitors Natalia Shevchenko and Iryna Abramova, told the participants about the current housing programs.

IDPs who had visited the group consultation learned how to apply for the programs “Affordable Housing” and “Government of Germany (KFW) loans for IDP Housing” (including the application through the “Diia” portal), which documents are required and what are the conditions for participation in these programs. In particular, everyone was able to get answers to individual questions, such as pensions, targeted aid, etc.


The “Advocacy, Protection and Legal Assistance to the Internally Displaced Population” project is implemented with the support of the United Nations High Commissioner for Refugees (UNHCR).

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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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10.09.21

At R2P the advocacy activities are the core of our work. Yet, advocacy alone is inefficient if it is accessible only to some people and groups. So we decided to teach other active citizens how to properly organize the advocacy campaigns.

Recently in Dnipro, our colleagues Elina Shyshkina and Anastasia Odintsova shared their experiences and knowledge about the stages and components of the advocacy activities.

Правозахисниці Фонду провели тренінг з адвокації для активістів та представників громад

Representatives of the civil society organizations, Amalgamated Territorial Communities (ATCs) and from the local self-government bodies took part in the training. The choice of such stakeholders was not accidental, because they work directly with the internally displaced population and help them solve their problems.

Most of the participants themselves are internally displaced persons, so they are well aware of all the problems. According to the participants, the purpose of their participation in the training was to gain knowledge and information to be able to jointly solve the problems of migrants.

Research of Access to Administrative Services in ASCs

«It was important to give the participants an algorithm of actions, as well as show them real-life examples of successful advocacy campaigns, so they will know what should be taken into account when planning advocacy campaigns and activities. The training was organized in a mixed format and included both theoretical and practical perspectives so that participants will be able to better understand the essence and purpose of the advocacy,»

 – said Elina Shyshkina, Advocacy Coordinator of the Right to Defense Charitable Foundation.

The training was held within the program “Legal support to IDPs and local authorities” of the Project “Promotion of Social Infrastructure Development. USIF VI”, implemented by the Charitable Fund “Right to Protection” (R2P) jointly with the Ukrainian Social Investment Fund (USIF).

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