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Human rights in Ukraine – 2004. XII. THE RIGHT TO FREEDOM OF MOVEMENT AND FREEDOM TO CHOOSE ONE’S PLACE OF RESIDENCE

13.10.2006

1. General Overview

During the Soviet period, there was a permission-based system of registration of citizens («propiska»), where the State executive bodies at their own discretion decided whether or not to allow a person to live permanently at any address.

On November 14, 2001 the Constitutional Court of Ukraine ruled that the permission-based procedure for the choice of a place of residence was in conflict with the Constitution of Ukraine. However this procedure basically continued in practice as a new procedure for registering citizens had not been adopted.

A new Law «On Freedom of Movement and Freedom to Choose Place of Residence in Ukraine» (hereafter «the Law») came into force on 1 January, 2004. It was only on 28 July that the Cabinet of Ministers approved new application forms and registration coupons, meaning that for half a year registration had been tacitly carried out largely according to the old procedure.

On 26 May 2004, the Ministry of Internal Affairs (MIA) in its Order № 571 «On the organization of registration and cancellation of registration» approved procedure for processing documents and control over the registration of where individuals are resident or staying in Ukraine. Later, following limits on the practice of using absent ballet papers, the Ministry of Internal Affairs was accused of having issued detachable passport enclosures in huge quantities to enable registration in another city and voting there. As a result of these activities of the MIA, the General Prosecutor issued a protest about this order, and the MIA temporarily suspended it.

The Law «On Freedom of Movement and Freedom to Choose Place of Residence in Ukraine» has many advantages in that it does abolish the permission-based system of registration of individuals, however it also establishes the opportunity for imposing strict control over the movement of people around the country. Thus we have a kind of «controlled» freedom, an incompatible product of a post-totalitarian state.

And as practice demonstrates, the Law has not liberated this procedure from the administrative bureaucratic self-will which to a large extent retains the permission-based elements in the system.

In implementing the ruling of the Constitutional Court of Ukraine, the Law replaces the «propiska» (permit) with place of residence registration using relatively simple procedure.

In order to register one’s place of residence, the following documents should be submitted:

1) a written application; young people between 15 and 18 submit the application in person. If there are good reasons for a person not being able to apply to the authority in person, his/ her registration may be carried out on the application of another person acting on the basis of duly certified Power of Attorney;

2) passport documentation; where a person is under the age of 16, a birth certificate or certificate of citizenship of Ukraine shall be submitted. A foreign national or stateless person shall also submit his/ her certificate of permanent or temporary residence;

3) Receipt of payment of state duty or a document on state duty exemption;

4) Two copies of the previous registration cancellation slip.

The authorities are not allowed to demand any other documents, however in practice, they often do.. In particular, it is logical for practical purposes to require the written consent of the owner of the residence where the given person is to be registered (a contract, application, etc). This is stated indirectly in the regulation on the application model, that the grounds for registration should be indicated, which, in turn of course, should be supported with documents.

Other logistical difficulties also arise, for example, with individuals who do not have documents. In order to receive documents, they need to apply to the relevant State executive body determined by their place of residence, yet in order to get an official place of residence, which requires documentary confirmation, they need to present their personal documents, and we have a vicious circle. There are certain ways around this however they are difficult, because they require proper legal aid. In such situations, one can apply to the court to establish the legal fact of residence at a particular place. Yet, again an individual without personal documents does not have the right to submit an application to the court, since the applicant is then not identified. However even this can be overcome in the same court process by establishing the individual’s identity through court procedure. Then try to imagine that all of this procedure has to be coped with by a homeless person. It sounds absurd, yet at the same time it negates all hope of reinstating the rights of the homeless.

A Draft Law[1] has been tabled in parliament by L. Chernovetsky, which is aimed at simplifying the registration procedure for individuals without documents. In particular, the State Deputy suggests that documents should be submitted according to where the person is staying. However, such a suggestion would be difficult to put into practice. This is due to the fact that the person still needs to prove the legality of his/her being in this place, and the necessary agreement, for example, on renting accommodation, cannot be drawn up without the person’s ID.

The place of residence, according to the Law, is considered to be the place where the citizen has generally lived for more than 6 months. If someone lives in another place for more than 6 months, he/she needs to change the place of registration. On arriving at a new place of residence, one must register oneself within 10 days.

One can therefore state that the Law has conceptually changed the right to choose one’s place of residence into an obligation to register, the non-compliance with which is punishable. Administrative responsibility in the form of a fine is established for living somewhere without registration. In accordance with the Law, the police can stop you on the street and check you, and if you are unable to prove that you have been in the different city less time than the Law dictates, you will be fined, and then try to establish your innocence in court.

The Law also introduces certain new concepts for Ukrainians: together with registration of one’s permanent place of residence, registration has been introduced for staying at a place temporarily from one to six months. Such registration is carried out within 7 days of the date of arrival in this new place (a business trip, holiday, hospital stay, tourist trip and others, if they last for more than one month).

The law on freedom of movement is not particularly clear in outlining the obligation to register one’s temporary address. In particular, the Law establishes that «individuals spending more than one month outside the boundaries of the administrative-territorial unit their residence is registered in, and who have unfulfilled property commitments imposed through administrative procedure or by court ruling, or who have been called to do military service, or who are taking part in a court process in any capacity are obliged to register their temporary address».

Registration is carried out by special State executive bodies dealing with registration within the system of the Ministry of Internal Affairs. However statements have already been made by executive bodies about passing these functions on to the Ministry of Justice of Ukraine, as the Council of Europe requires.

A significant shortcoming of legislation is the linking of the possibility of registration to the property (residence) of an individual which is extremely ill-considered in a country where a third of the population have very real housing problems. This means that these people will simply not be able to obtain registration, or will not obtain it at the address where they actually live. Moreover, individuals living in rented accommodation in the overwhelming majority of cases are also not registered at this place of residence. This is because it does not pay for either parties: the owner faces tax obligations, certain problems with the possibility of engaging in business activities, and potential problems if the need should arise to evict a tenant within any time period without providing the latter with alternative accommodation (which is in principle counter to the spirit of the Soviet housing code), while the tenant has no wish to pay extra because of the owner’s tax bill, nor to have unnecessary problems with processing documents.

Other problem connected with this Law arises if you are living in State (municipal) accommodation or property belonging to a State department. You decide to visit your grandmother for the summer for two or three months, need to change your registration which, in accordance with legislation, automatically leads to your losing the said accommodation.

Then Article 7 of this law states that an individual’s registration shall be cancelled as a result of a court ruling depriving the person of the right of ownership to the residence or the right to use it, although in no other article is registration linked in any way to housing and property rights.

Experts comment that this Law has also not defined in detail the transition from the «propiska» system to registration, which leads to negative social and economic consequences.

In particular, it declares, that the provision of rights cannot depend on one’s place of residence, yet in practice all social, pension, medical and communal services are linked to the place of registration and no mechanism has been developed to change this.

In the administrative practice of State executive powers, one encounters cases where people’s job applications are turned down due to lack of registration. This happens, for example, in the Ministry of Foreign Affairs which turns down candidates on the grounds that they are not registered in Kyiv. This is naturally done verbally to make it impossible to appeal such decisions.

Most experts also consider that registration at the same time of one’s place of residence and the place where one is staying makes no sense. Such a provision effectively introduces double registration of individuals, which in turn limits the right of the individual to freedom of movement and free choice of place of residence.

To sum up, the new law which came into force last year makes life difficult for those who do not have documents, or their own home. It also clearly provides great scope for abuse, especially from the patrol service of the police. A significant number of associated problems remain unresolved, in particular, those connected with social services which are closely linked with registration.

Furthermore, an automated system has yet to be created in Ukraine for keeping records on registration which reflects negatively on the effectiveness of the actions of the authorities and the exercising of the rights of the individuals. For example, during the elections one problem was caused by the numerous mistakes in voter lists, when hundreds of citizens were put on the lists according to no longer current information about place of residence.

A negative aspect of administrative practice is the need to basically always carry one’s passport or other ID. One’s passport is needed for carrying out a lot of everyday activities, including gaining access to all buildings of State executive bodies.

It is also very common for law enforcement bodies to detain individuals purely because they do not have any identification with them. Legislation gives law enforcement officers the right to detain any person for several hours or even some days until they have ascertained the person’s identity. This right is often taken advantage of by law enforcement officers who engage in blackmail, extortion of bribes or other misuse of their official position.

In order to travel abroad, all Ukrainian citizens must have a foreign passport[2]. As a general rule, it takes three months to get this passport, and involves a lot of bureaucratic red-tape. This length of time is a scarcely justified restriction on the right of a person to freedom of movement, including travel abroad. The cost, moreover, of the entire procedure (counting all fees for receiving all the documents which need to be submitted) is approximately 50 Euros, which is the equivalent to 1.3 of the minimal monthly wage. As a result, a large number of the poorer part of the population, in particular, the retired or disabled cannot get a passport, making it impossible to freely travel out of the country.

There are categories of people prohibited from going abroad for reasons of national security. They voluntarily sign an undertaking to not leave the country as a condition for receiving access to certain information containing State secrets. This practice arouses well-justified reservations, as it is not set out by law and it does not achieve the aim of protecting information given the existence of the Internet and other forms of information technology which lessen the significance of state borders. These restrictions are clearly a relic of the Soviet era and should be abolished.

2. The right to freedom of movement during the Presidential elections

During the election campaign, law enforcement bodies, in particular patrol officers of the Ministry of Internal Affairs and of State Automobile Inspection (SAI) frequently created pretexts for obstructing people’s movement, in order to limit their right to take part in civic public protest actions or meetings with representatives of the opposition. The traffic flow was restricted by simply blocking roads, frequently stopping and checking drivers of buses and cars with subsequent fines being imposed on fabricated grounds, or with the number plates of the vehicles being removed. As a result of such aggressive actions, drivers of public transport and buses refused to travel in the required direction.

Cases were also recorded of unwarranted refusals to sell people train tickets to Kyiv during the first days of the Orange Revolution. The trains were half empty while hundreds of people could not receive the capital.

The following examples of such violation of the right to freedom of movement were typical.

Back on 9 August 2004, students from Sumy set off on a march to Kyiv and were stopped and dispersed by special units of the MIA. The authorities and law enforcement officers claimed that the students did not have the right to cross the territory of the Romen district of the Sumy region in accordance with a ruling of the Romen City Council.[3]

In the evening of 15 October, four mini-vans carrying a large group of students planning to take part in the Student Viche in Kyiv, were not allowed to leave Odessa. The number plates were removed, and the drivers had their licences taken away. Similar pressure was imposed on all transport enterprises of the city. The same situation was seen in Mikolayiv and in Kherson.

In Mikolayiv, on 22 October, a large group of students planning to go to the capital to take part in the Student Viche encountered resistance from law enforcements bodies when trying to get on the train to Kyiv: they were searched, their documents were checked and many were detained.[4]

Presidential Candidate Viktor Yushchenko’s headquarters informed, that the State authorities were preventing the participants of the action «The Power of the People against Falsifications» from getting to Kyiv. The head of the Kyiv headquarters, Yevhen Zhovtyak, told of police officers in the Kyiv region going around people’s houses and threatening to take away their driving licenses. He also asserted that on 22 October, there had been an instruction to almost all vehicular transport companies in the Kyiv region to remove the number plates off all scheduled coaches and public transport minivans which were planning to go to the capital the next day. In Zgurtivka (in the Kyiv region) the police also went around houses and threatened, that if they did go to Kyiv on 23 October, their driving licenses would be taken away.

The head of the Chernihiv Yushchenko headquarters, Vladislav Atroshenko, said that on 23 October, all scheduled routes to Kyiv from the Chernihiv region had been cancelled.

Law enforcement bodies of the Cherkasy region blocked exits in order to stop the coaches of a delegation from Kamyanka leaving the city. As a result, city residents were forced to block the railway. It was only after this that the scheduled coaches were permitted to leave. There were also cases where number plates were removed under various pretexts from coaches leaving from other districts of the Cherkasy region for Kyiv. In Cherkasy, law enforcement officers refused to let a mini-van carrying journalists leave for Kyiv. As a result the journalists had to make their way in cars. The press-service of the Yushchenko headquarters informed that in Uman law enforcement officers had even resorted to puncturing the tyres of delegation coaches.

On 22 October at 22.00 the exits in all directions from Ivano-Frankivsk were blocked. The roads were obstructed by trucks with punctured tyres, simulating road accidents. The police present explained only that the drivers had supposedly gone off to look for a way of repairing the tyres. As a result, the roads were so blocked that only a car could get through, and then under the supervision of the police.

On 23 October, a delegation from Rivne was stopped by SAI officers on the 51st km of the Zhytomyr motorway. According to the press-service of the Yushchenko headquarters, while the inspection of documents was under way, the tyres of the coaches were punctured.[5]

In Ternopil on 23 October, the SAI stopped coaches as a result of which only forty people, instead of the original 200, were actually able to get to Kyiv, and those went to the capital by train. Four of the coaches were taken away by officers of the SAI the day before the planned departure for a motor inspection and were returned to the depot to fix minor faults. The coordinator of the youth coalition of «Our Ukraine», Igor Hirchak, is convinced that the SAI officers only looked for technical niggles in order to stop the students from leaving the city. Four of the best coaches had in fact been provided for the students’ long journey, and these were already setting off on scheduled journeys the next morning without any objections from the SAI[6]

Similar obstacles were on a large scale against those trying to reach Kyiv between 21 and 23 November in order to take part in protest actions against the rigging of the election results from the second round.

The motor rally «Train of Friendship» was repeatedly blocked from 15 – 24 in Odessa, the Crimea and Donetsk.

None of the cases we are aware of was investigated by the law enforcement bodies and those responsible were therefore not found and brought to justice. At the same time, one should note that the absolute majority of these violations were carried out by law enforcement officers of the Ministry of Internal Affairs of Ukraine, not without the knowledge of its top officials, but rather on their orders.

Recommendations:

1. To bring to completion an automated record system of registration of citizens, using the best models using in other countries;

2. To guarantee protection of personal data related to registration and movement of individuals;

3. In compliance with the Opinion of the Parliamentary Assembly of the Council of Europe (#190) on the entry of Ukraine to the Council of Europe, powers of registration of citizens, foreign nationals and stateless individuals should be passed to the Ministry of Justice of Ukraine;

4. To conclude the process of reform of legislation as regards registration, taking into account positive international experience and the Law of Ukraine on freedom of movement and freedom to choose one’s place of residence;

5. To abolish the practice of restricting travel abroad for people having access to state secrets;

6. To introduce amendments to legislation aimed at introducing procedure for guaranteeing the rights of the homeless and people without documents.



[1] Draft Law on the introduction of amendments to the Law of Ukraine «On freedom of movement and freedom to choose one’s place of residence» (№5357) by L. Chernovetskyj, passed in its first hearing, as a basis, by parliament on 11 January 2005.

[2] In Ukraine, as in other post-Soviet countries, people have an «internal passport» and (perhaps) a «foreign» passport for travelling abroad (translator’s note).

[3] see the website of Civic Radio in the Internet http://radio.org.ua/reports http/?eid=&id_numb=20951

[4] Information Agency Hot Line in the Internet http://hotline.net.ua/content/view/2962/37.

[5] Internet-resource Ukrayinska Pravda (Ukrainian Truth) http://www2.pravda.com.ua/archive/2004/october/23/2.shtml.

[6] Студенти стали невиїзні // Газета «Аргумент», № 43 (154) / «Students under city arrest» // The newspaper «Argument», № 43 (154), 27 October 2004 (an approximate translation of the title since the word in the original refers to the Soviet reality of having no chance to travel. (translator’s note)

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