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Human rights in Ukraine – 2007. 11. Freedom of movement and place of residence

27.07.2008

[1]

The situation with freedom of movement did not change significantly in 2007. Problem areas remain the move from a system of “propiska” to registration, with a lot of procedure not yet agreed. Problems encountered by homeless people are still unresolved. For example, there has been no resolution on making it possible in all areas for them to register their main place of abode.

 

1.  Freedom of movement

Restrictions on freedom of movement can be established with regard to movement within the country, and with international movement (travel from or to Ukraine).

Due to the drawn-out nature of many criminal investigations which can sometimes drag on for many years, there has long been a problem with the use of signed undertakings not to abscond as a preventive measure. The person is unable to go outside the administrative territorial unit where s/he is registered. The longer such investigations last, the more difficult it becomes to justify the State’s interference in the individual’s freedom of movement.

In 2007 the Cabinet of Ministers cancelled[2]  the rules for buying named train tickets exclusively on the basis of passports or other identification documents. This step gives more freedom for movement to people and has also removed the possibility for the State to follow people’s movements.

Serious difficulties with movement were created by the problem with issuing passports. From May until November, it was virtually impossible to get a passport for travel abroad due to artificially created obstacles.[3]  Over 60 thousand people waited in line for such passports and could therefore not travel abroad, this seriously restricting their freedom of movement.

At the end of the year the situation to some extent normalized although issue of passports remains unacceptable, with it taking too long and requiring that people overcome a lot of bureaucratic procedures. It is also uncoordinated which leads to numerous abuses and corruption in this sphere.

Problems have remained with the issuing of a sailor’s identification document which substitutes a passport for this group of citizens. It is effectively the SBU that gives permission to issue such an identification document which does not comply with legislation and restricts the person’s rights.[4]

Conflict arises periodically over refusals by Ukraine to admit certain foreign nationals.

The most notorious of such cases was the ban on entry to Ukraine of Russian Federation State Duma Deputy Zatulin in 2006, which ended in 2007. Zatulin lodged a court appeal about this action by the SBU [Security Service]. The High Administrative Court in Ukraine [HACU] on 16 May 2007 issued a ruling which rejected Zatulin’s cassation appeal. However Zatulin in turn lodged an application with the European Court of Human Rights against Ukraine although it is hardly likely to succeed.

 

The Zatulin Case  (excerpts from the HACU Ruling

In September 2006 Mr Zatulin lodged a claim with the court against the SBU, the Central Department of the SBU in the Autonomous Republic of the Crimea, and the Head of the Central Department Mr O. He called for the decision of 3 June 2006 to ban Zatulin’s entry to Ukraine to be declared unlawful, for the instructions to the State Border Guard on preventing his entry to be revoked, and for a statement to be placed in official media outlets regarding the decision to revoke the ban on his entry into the country.

The said decision had been to prohibit him from entering Ukrainian territory for a year, beginning on 3 June 2008. it was made on the grounds that his speeches and statements in the mass media, at press conferences and rallies in Ukraine create conditions for unlawful actions connected with encroachments upon Ukraine’s territorial integrity and inviolability, incitement to national enmity and represent interference in Ukraine’s internal affairs.  Mr Zatulin claimed that such conclusions were far-fetched and drawn without justification by the respondents in violation of Ukraine’s legislation and international law.

The Shevchenkivsky District Court in Kyiv on 5 October 2006 rejected the claimant’s application, with this upheld on 30 November 2006 by the Kyiv Court of Appeal.

The courts established that the claimant had been prohibited from entering Ukraine for one year on the basis of Article 25 § 2.2 of the Law “On the legal status of foreign nationals and stateless persons” from which it follows that entry of foreign nationals into Ukraine may be prohibited in the interests of Ukraine’s security.  The respondents justified their conclusion on the grounds that the claimant, while in Ukraine, had held press conferences as well as spoken at rallies where he expressed his views regarding the fact that US armed forces were on Ukrainian territory, about Ukraine’s state policy in the Crimea, about the possibility of holding “Sea Breeze 2006” military exercises with the participation of NATO ships, and had given a negative assessment of the internal and external policy of the country’s leadership.  From the claimant’s addresses, the respondents had concluded that this was flagrant interference in Ukraine’s internal affairs which could create the preconditions for unlawful manifestations linked with the unlawful actions connected with encroachments upon Ukraine’s territorial integrity and inviolability, as well as to incitement to national enmity.

In their cassation appeal, Zatulin and his representative asked that the court ruling be revoked and that his claim be allowed.

Article 3 of the Law “On the fundamental principles of Ukraine’s national security” states that national security covers the person and citizen, their constitutional rights and freedoms; society – its spiritual, moral and ethical, cultural, historical, intellectual and material values; the information realm and natural environment and natural resources; the State – its constitutional order, sovereignty, territorial integrity and inviolability. In accordance with Article 7 of the Law, at the present stage the main real and potential threats to Ukraine’s national security, and social stability are the possibility of conflict arising in the area of inter-ethnic and inter-religious relations, radicalism and manifestations of extremism in the activities of associations of national minorities and religious communities, the threats of demonstrations of separatism in some regions of Ukraine.

In accordance with Article 25 § 2 of the Law “On the legal status of foreign nationals and stateless persons”, entry into the country may be refused to foreign nationals and stateless persons in the interests of national security or to protect public order.

Article 2 § 1 of the Law “On the Security Service of Ukraine”, the Security Service is vested within the limitations stipulated by legislation, with the authority to defend State sovereignty, the constitutional order, territorial integrity, and Ukraine’s economic, scientific and technical, and defence potential, the legitimate interests of the State and the rights of citizens from the reconnaissance or subversive activities of foreign security services, encroachments from organizations, groups, or individuals, as well as ensuring protection of State secrets.

…Thus the rulings of the first instance and appeal courts were correct in banning Zatulin’s entry to Ukraine, the respondents acted within the limits of their authority and in a manner allowed for by domestic and international legislation.

…Governed by Articles 223, 224 and 231 of the Code of Administrative Proceedings, the panel of judges rejected the cassation appeal brought by Zatulin and his representative.

 

The number of Ukrainian nationals travelling abroad, as well that of foreign nationals entering Ukraine increases each year.

 

Tourist movement[5] 

 

Number of Ukrainian nationals travelling abroad [6]

Number of foreign nationals who visited Ukraine in total[7]

Number of tourists served by the Ukrainian tourist industry in total[8]

From the total number of tourists:

foreign

Ukrainian tourists who travelled abroad

Domestic tourists

2000

13422320

6430940

2013998

377871

285353

1350774

2001

14849033

9174166

2175090

416186

271281

1487623

2002

14729444

10516665

2265317

417729

302632

1544956

2003

14794932

12513883

2856983

590641

344 332

1922010

2004

15487571

15629213

1890370

436311

441798

1012261

2005

16453704

17630760

1825649

326389

566942

932318

2006

16875256

18935775

2206498

299125

868228

1039145

2007

17334653

23122157

 

 

 

 

 

Entry of foreign nationals into Ukraine in 2007і[9]

 

 

Number of foreign nationals who entered Ukraine in total *

Of these, for the following reasons:

work-related, business or diplomatic

tourism

private

studies

employment

immigration

Cultural and sport exchange, religious, other

Total

23122157

908964

1444962

20563044

49481

7814

24032

123860

 

2.  Freedom of choice of place of residence

In general there is freedom of choice of place of residence in Ukraine however there are a number of shortcomings in the system of legal regulation which have remained from the days of “propiska” [“registration”][10].

  The problems are on two levels:

  -  The exercising of many rights and freedoms continues to depend on ones official place of registration;

  -  Citizens who do not have their own homes, and the number of such people is constantly rising, are not in most cases able to register at the place where they actually live due to an unwarrantedly narrow interpretation of the grounds for registration.

The first problem is effectively an indirect additional measure of compulsion by the authorities to obtain registration. Another form of such compulsion is the present administrative liability for residing somewhere without registration.

Clearly the State can have a system of registration in the interests of public order. However such registration should not entail the difficulties and inconveniences which people encounter at present.

The ability to exercise many rights and freedoms solely in accordance with ones place of residence clearly dates from serfdom and the Soviet system of “propiska”. It is solely on the basis of place of registration that the civil rights envisaged by the Laws of Ukraine “On State social standards and State social guarantees”, “On pensions”, “On education”, “On the fundamental principles of health care legislation in Ukraine”, “On protection of the population from infectious diseases”, “On employment of the population”, etc can be exercised. Citizens without a place of residence and registration cannot update documents, find work, or receive medical and social assistance

 

3.  The rights of the homeless

There remain problems with protecting the rights of the home. As already mentioned, without registration people are deprived of many rights. This significantly worsens the legal status of homeless people and effectively removes them from the system of State and social security.

The State has endeavoured to regulate this shortcoming by passing a number of legislative acts.[11]

These documents create registration centres for the homeless, night shelters and social rehabilitation centres.

However the practical implementation of these normative acts remains unsatisfactory.

For example, in Kyiv the homeless are provided with temporary registration for two months in the registration centres for the homeless, and then not allowed to extend the registration which has no logical or legal justification. This means that temporary registration is provided in order to get documents, yet the person then effectively returns to their previous situation due to the lack of registration and therefore exclusion from State social programmes.

Furthermore this legislation has only been implemented in some areas. According to government figures, at the present time only 44 social institutions for the homeless are functioning, with 13 of these not State-owned. However just these 44 centres have provided their services to 10 thousand people (approximately 227 people a year per centre)/[12]

There are also only 22 centres of social and psychological assistance which provide shelter, psychological, information, legal and medical assistance, food and give help in organizing documents to individuals and families with children in difficulty. This means that there are not even as many as there are regional centres.

Although progress is evident: according to government figures as of 1 January 2006 there were only 5 night shelters functioning  with places for only 168 people, where in 2005 1, 893 people stayed, and 8 places specially allocated where services were provided to the homeless with 220 places, and a turnover over 1, 762 people.[13]

In Kyiv, as part of a joint Ukrainian – Dutch project, a social adaptation centre was set up for homeless women with 80 places. However in 2007 it was decided to close this. The building is n an attractive location and was reconstructed using project funding. The Kyiv City State Administration has now decided to change the designated purpose of the building and obviously sell it for no small amount.

A Decision by the National Security and Defence Council on 18 January 2006 “On measures to improve the fight against infectious diseases”, brought into force through a Presidential Decree from 14 February 2006 № 132, instructions are given to the Ministry of Employment, the Ministries of Finance and of the Economy, the Council of Ministers of the Autonomous Republic of the Crimea, the regional, Kyiv and Sevastopol State administrations during 2006 to carry out measures to ensure the creation and functioning of institutions of social protection for homeless people. However the development of a network of such institutions is being hampered due to inadequate financing and the decisions of the authorities are not being implemented.  To carry out this work, according to the estimates of the local authorities 99 extra institutions are needed in the near future, of which 29 are registration centres for the homeless, 48 night shelters 19 reintegration centres and three social hotels, with a total number of 2, 107 places.[14]

Improvement is also needed to legislation on social protection for the homeless; the resolution of a number of problems in the prevention of homelessness; reintegration of the homeless; the work of social institutions for homeless families so that these can live together as a family; the formation of a social housing fund; training of social workers specializing in helping the homeless; treatment of such prevalent and especially dangerous illnesses among the homeless as tuberculosis, hepatitis, HIV/AIDS, venereal disease, skin complaints, alcoholism, drug dependence, and others.

 

4.  Recommendations

1  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.

2  Conclude the process of reform of legislation as regards registration, taking into account positive international experience and the Law “On freedom of movement and freedom to choose one’s place of residence”.

3  Abolish the procedure stipulated in the law on freedom of movement and free choice of place of residence for registration of a temporary place where one is staying (this procedure is set out in the law but not applied in practice);

4  Complete a computerized record system of registration of citizens, using the best models applied in other countries and observing international standards for safeguarding human rights. Such a system should be autonomous and not contain other personal data collected by other State authorities

5  Broaden the grounds for registration (as was done, for example, in the Law on the electoral register) and also review legislation in order to prevent the possibility of exercising ones rights being contingent on ones place of registration. The procedure for cancelling registration in private flats should also be simplified, and the inter-dependence of the fact of registration with the right to the given flat in the State and communal accommodation funds should be eliminated. Without these measures, it will be impossible to create a realistic system of registration.

6  Bring the activities of the MIA into compliance with legislation as regards issuing passports. This includes standardizing such procedure for the entire country and putting a stop to the unlawful demands imposed for additional documents (such as insurance policies, documents confirming the lack of a criminal record, documents giving an identification number, and papers confirming payment for supplementary services).

7  Improve the procedure for issuing sailors’ identification documents, taking into account the provisions of the Constitution of Ukraine on freedom of movement and clearly defined grounds for limiting trips abroad.

8  Abolish the practice of restricting travel abroad for people having access to state secrets

 



[1] By Volodymyr Yavorsky, UHHRU

[2] Cabinet of Ministers Resolution № 252 from 19 March 1997 “On the procedure for serving citizens on trains”; Article 2.2.2 of the Order of the Ministry of Transport № 297 from 28 July 1998 “On approving Rules for carrying passengers, baggage, freight and post by trains in Ukraine”

[3]  More on this in the section on the right to privacy.

[4]  More information can be found in the report “Human Rights in Ukraine – 2006”

[5] Website of the State Committee of Statistics  http://ukrstat.gov.ua/operativ/operativ2007/tyr/tyr_u/arh_vig.html

[6] Not including one-day visitors (according to figures from the Administration of the State Border Guard Service of Ukraine).

[7] Not including one-day visitors (according to figures from the Administration of the State Border Guard Service of Ukraine).

[8] According to the State Service for Tourism and Tourist Resorts

[9] According to figures from the Administration of the State Border Guard Service of Ukraine. Available at: http://ukrstat.gov.ua/operativ/operativ2007/tyr/tyr_u/arh_vig.html.

[10]  This was a permission-based system of registration, which the Constitutional Court in 2001 declared was in contravention of the Constitution of Ukraine (translator)

[11] See the Law  On the fundamental principles of social protection for the homeless and abandoned children” which came into force on 1 January 2006; Order of the Ministry of Employment and Social Policy of Ukraine “On approving standard provisions on institutions of social protection for homeless individuals and people released from places of confinement”, from 14 February 2006, No. 31";  Resolution No. 404 of the Cabinet of Ministers from 30 March 2006 “On approving a standard provision on a registration centre for the Homeless and Order No. 98 of the Ministry of Employment and Social Policy from 3 April 2006 N 98 “On approving standard provisions on social hotels”.

[12] Concept strategy for social protection of the homeless, approved by Instruction of the Cabinet of Ministers from 17 April 2008, № 639-

[13] Fifth Periodic Report concerning rights covered by Articles 1 – 5 of the International Covenant on Economic, Social and Cultural Rights E/C12/UKR/5 14 August 2006. Item 285.

[14]  Concept strategy for social protection of the homeless, approved by Instruction of the Cabinet of Ministers from 17 April 2008, № 639.

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