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Human rights in Ukraine 2011. XII. FREEDOM OF MOVEMENT AND FREEDOM OF CHOICE OF RESIDENCE

22.03.2012

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1. Overview

Despite the fact that there exist the freedoms to travel and of choice of residence, the situation with observance of it turned for the worse in 2011.

The local self-government organs went on imposing negative trend of en-masse curfew for minors.

There remains a considerable problem of prolonged investigation of criminal cases which in the case of such preventive measure as “recognizance not to leave” often means a violation of the freedom to travel. Ukraine failed to fulfill general measures determined by the decisions of European Court of Human Rights in the cases of Nikiforenko vs. Ukraine (application No. 14613/03), Pohalchuk vs. Ukraine (application No. 7193/02) and Merit vs. Ukraine. These decisions caused no amendments to the legislation and had no impact on the investigative practice.

The new problem showed up in the decision of the European Court of Human Rights in the case Dzhaksyberhenov vs. Ukraine (application No. 12343/10) of June 20, 2011. The Court found a violation by Ukraine of the freedom to travel, which includes the right to leave any country at any time (Article 2 of Protocol No. 4 of the Convention for the Protection of Human Rights). In this case, the applicant was detained for extradition based on Article 98-2 CCP, but actually no proceedings were initiated against him in Ukraine. He was picked up for criminal charge instituted in Kazakhstan. According to the Prosecutor General’s Office he was not allowed to leave Ukraine on February 15, 2010; however, such actions of prosecution were not required by law, and therefore interference with the right was “unlawful.” Only on June 17, 2010 the legislation was amended, which allowed detaining a person in connection with criminal proceedings in another country.

There is a separate problem of unreasonable restrictions on the freedom of travel of persons released from prison and which were placed under administrative surveillance. We treated this issue in detail In our last report for 2009–2010.

There are problems with the issue of both internal and foreign passports, which restricts the freedom to travel.

The practice of issuing foreign passports remains unsatisfactory: it is too time-consuming, requires overcoming many bureaucratic procedures and is expensive and inaccessible to many citizens. The procedure of issuing passports remains uncoordinated, which generates a lot of abuse and corruption in this area. For example, there are numerous instances of solicitation of documents which are not required by law (for example, insurance policies) or paying for services which are not required by law (for example, the fee for a certificate of clean record).

There is also a problem of internal passports. The terms of issue of passports are often violated, which limits the rights of citizens, because without passports they cannot obtain registration and perform many other actions associated with this process. In part the militia explains this with the lack of passport forms. But quite often the problem lies elsewhere. There still exists the system of passport offices in the housing offices that have recently transformed into conventional businesses. By using this, these passport offices often refuse to issue a passport, replace a passport, to carry out residential registration or remove registration or issue various certificates because of arrears in utility payments to housing offices. Obviously, this practice is illegal, but this is a result of poor control of the passport offices by the MIA.

On September 23, 2011 the Parliament adopted the Law “On the documents that prove identity and citizenship of Ukraine.” The bill had been proposed by a group of people’s deputies in June and took two months to be approved. The Law provided for the introduction of 12 types of biometric documents.

However, on October 21 the President vetoed it and returned with his comments[2]. According to the President, the law could not be signed because:

—  It contains risks of violations of constitutional rights of the citizens and guarantees of these rights, universally recognized human rights, fundamental pillars of the democratic legal state, which is Ukraine;

—  Violates international commitments undertaken by Ukraine, is a step back on the way to the implementation of European and international standards on human rights, realization of the Action Plan for liberalization of the EU visa regime for Ukraine;

—  Does not ensure the security of citizens;

—  Leads to unjustified substantial increase of budget expenditures and is likely to affect the budget of each family;

—  The number of innovations proposed by the law does not meet the urgent needs of the present, is groundless and unacceptable.

In early November, Prime Minister Mykola Azarov said that “the Cabinet of Ministers is developing a bill. It is our obligation under the visa-free regime, and this bill will be adopted soon.”

It is worth noting the continuation of the 2010 practice of restriction of the freedom to travel by the militia, so that people could not participate in peaceful assemblies in Kyiv. There were no such restrictions since 2004. Without explanations or formal causes militia blocked vehicles (buses and minibuses), carrying members of peaceful assemblies from other cities. In such cases they often threatened carriers to take away their licenses. Militia in all cases denied the illegality of their actions. This is because according to the MIA Order of May 11, 2010 No. 170 such actions were legalized:

“2.7. If the requirements of citizens cannot be satisfied at the regional level, it is necessary to offer the event organizers to limit the trip (to the district center, regional center, the capital) of initiative group only to a specific executive body which is competent to meet the stated requirements.

To ensure immediate provision to the Interior Ministry, Central Office of Interior Ministry, Oblast Departments of the Ministry of Internal Affairs in oblasts whereto the travel is planned the information on:

—  date, time and place of departure;

—  route and destination place of arrival;

—  kind of transport;

—  basic requirements, the purpose of travel;

—  initiator (organizer) of the event;

—  declared (expected) number of people participating in the action;

—  wether the executive authorities (local self-governments) were informed about this.

To organize convoy and safety of transportation of the participants of mass events within relevant territorial jurisdictions. In case of violation of public order, to take legal precautionary measures and immediately inform the Ministry of Internal Affairs.”

This Order was not registered in the Ministry of Justice and the latter appealed to the Interior Ministry demanding to annul the order. However, it explains why Public Traffic Militia officers put columns of demonstrators to a stop and delay their departure collecting all necessary data and limiting the trip with initiative groups only.

There also remains the problem of incomplete transition from a system of “residence permit for a specific address” to registration: many procedures remain outstanding limiting the free choice of residence.

At the end of the year the Ukrazaliznytsia informed about a significant reduction in train traffic, which, in the view of human rights activists, seriously restricted the freedom to travel[3].

There are continuously emerging periodic conflicts because of the nonadmission of foreigners on the territory of Ukraine. In general, for nine months in 2011 the border guards denied entry into the country to 4,916 persons which is several times less than in the previous years and which may be noted as a positive trend (2008: 24,760 persons; 2009: over 17,000; 2010: over 15,000)[4].

2. Freedom to travel: curfew for minors

Since early 2009, the local self-government organs began to massively take decisions that prohibited children to stay unaccompanied on the streets and public places. In 2011, the trend of increasing local regulations on imposing curfew continued to go up.

In March 2011 the Executive Council of Izmail City Rada (Odesa Oblast) imposed restrictions for children under 16 years of age to stay in entertainment establishments, computer clubs and on the streets in the evening. According to the decision, during the schoolyear the children under 14 are permitted to appear in public places without parents up to 21.00, children from 14 to 16 years — up to 22.00, and during summer holidays — up to 22.00 and 23.00 respectively. However, in April this decision was reviewed and the ban on children in the street annulled.

In November, militia proposed to introduce a curfew in Ivano-Frankivsk[5].

In the Crimea this practice is the most widespread. In May, in Yalta, they decided that children under 16 can stay outside of their house from 22.00 to 06.00 only accompanied by adults. Earlier, the curfew had been introduced in Simferopol, Sevastopol and other cities.

According to these decisions, if the child is outside, s/he may be picked up by militia, which would bring her/him to the militia station, call their parents and make them accountable under Article 184 of the Code of Administrative Offences (failure of parents or persons substituting them to carry out responsibilities of parenting, which leads to imposing a penalty of three to five non-taxable minimal wages). The application of this article is quite controversial, because the duties of parents are determined by the Family Code and the latter does not describe the question of unattended children at night on the street. In fact, the new responsibility has been introduced into practice without amending the Code of Administrative Offences, which raises the question of clarity of the law establishing administrative responsibility.

On the whole, there are no problems to prohibit minors to stay at night without adults at the entertainment establishments. However, when limiting the stay on the street they interfere with the freedom to travel, which is protected by the European Convention on Human Rights and the Constitution.

Such intervention should be in accordance with law. That is, the intervention in human rights may be regulated by laws only, and not the decisions of local self-government.

In addition, such decision of the authority is a disproportionate restriction on freedom to travel, since it is not limited in time and do not necessarily lead to child protection, i. e., it is not a necessary limitation in a democratic society.

The restrictions on the freedom to travel are allowed only in the manner specified by law on the legal state of emergency. This law stipulates that such restriction may be introduced under certain conditions in a particular area and for a clearly defined period of time.

Therefore, the establishment of permanent limits without exception on minors’ stay on the streets is a violation of freedom to travel.

2.1. Appeal of the decision in Chernihiv

According to the Helsinki Human Rights Union, the local bodies have no authority to deprive children of the freedom to travel. Based on this belief, the UHHRU helped one person to appeal the decision of the Chernihiv Oblast Rada of December 24, 2009, which limited the minors’ freedom to travel.

On June 10, 2010 the Desniansky District Court of Chernihiv partly redressed this administrative claim; namely, it annulled items 1-3 of this decision, which had limited the freedom to travel. However, the decision on another part dealing with preventive measures remained in force. The UHHRU did not object to it. In July the Chernihiv Oblast Rada has lodged an appeal against this decision, which was not considered as of the end of 2011.

2.2. Appeal of decision in Simferopol

On March 31, 2010 Simferopol City Rada adopted a decision “On the implementation of legal and other acts of the Cabinet of Ministers of Ukraine, Verkhovna Rada and Council of Ministers of the Autonomous Republic of Crimea, Simferopol City Rada and its Executive Committee on the prevention of crimes, offenses and neglect among children and adolescents in Simferopol,” which established a curfew for minors. The UHHRU helped to lodge a complaint against this decision in court.

On May 16, 2011 the Zaliznychny District Court of Simferopol denied the satisfaction of this claim. The court did not respond to any argument of the plaintiff, and referred to the interests of the child. In general, the process seemed strange since it looked like the case of performance of parental duties by parents-plaintiffs, and not the legality of the defendant’s decision. Moreover, the judge instructed the third party — ”Child care service of the Simferopol City Rada” (a branch of the defendant) — to check the living conditions of the child. The officers of this department also visited the school and plaintiff’s neighbors and collected information about her son, mostly negative, and, as it may be seen in the decision, used it in court. Such pressure on the plaintiff failed to stop him, and he filed an appeal.

On October 24 the Sevastopol Appellate Administrative Court refused the plaintiff’s appeal. In this case the plaintiff was not even notified of the time and place of the consideration of the appeal; he learned of the decision by chance and was able to get it only on November 22. The Court of Appeal again gave no answer to any argument of the plaintiff. The plaintiff took the appeal to a higher court.

3. Recommendations

1. According to the conclusions of the Parliamentary Assembly of the Council of Europe No. 190 on Ukraine’s accession to the Council of Europe it is necessary to transfer the functions of registering citizens, foreigners and stateless persons on the territory of the state from the Ministry of Internal Affairs to the Ministry of Justice of Ukraine.

2. Complete the reform of legislation on registration of persons taking into account positive international experience and the Law of Ukraine on freedom to travel and free choice of residence.

3. With regard to registration of physical persons:

—  To annul the procedure of registration of temporary location (such procedure is prescribed by law, but it is not used in practice) specified by the law on freedom to travel and free choice of residence;

—  To finalize the automated system of registration of citizens using the best foreign experience and in compliance with international human rights standards. Such a system should be autonomous and should not include other personal data collected by other authorities;

—  To consider the expansion of the grounds for registration (for example, as it is done in the law on the register of voters), and revise legislation to eliminate the dependence of the rights on the place of registration. The provisions of legislation stipulating that registration gives right to the possession or use of residential premises should be annulled. It is necessary to simplify the procedure for cancellation of registration in private homes as well as eliminate the interdependence of the fact of registration and the right of residence in concrete home in public and municipal housing funds. The realistic system of registration without these measures is impossible.

4. The Ministry of Internal Affairs should ensure the timely issuance of internal passports.

5. The Ministry of Internal Affairs should enforce laws in the “passport offices” in housing offices.

6. The local authorities shall revoke the decision on the curfew for minors, as being contrary to the Constitution and international legislation.

7. It is necessary to amend the Criminal Procedure Code to limit the maximum term for the use of such preventive measure as “recognizance not to leave.”

8. It is necessary to amend the law “On administrative supervision” on the possible restriction of freedom to travel of deinstitutionalized persons.

9. The Ministry of Internal Affairs should stop obstructing the travel by bus and other vehicles carrying the participants of peaceful assemblies, and thus stop the illegal practice of limiting their freedom to travel. To annul the Order of the Ministry of Internal Affairs from May 11, 2010 No. 170 “On Approval of Instruction on the actions of organs and units of internal affairs concerning the organization and maintenance of public order.”

 

 

[1]  Prepared by Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union.

[2]  See: http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?pf3511=40391.

[3]  “The Ukrainian Helsinki Human Rights Union: the Ukrzaliznytsia is getting rid of socially-significant train routes”, 05.12.2011, http://helsinki.org.ua/index.php?id=1323091938.

[4]  The results of the operational activities of the State Border Service // The official site of the State Border Service, http://pvu.gov.ua/control/uk/publish/article?art_id=48708&cat_id=78111.

[5]  The hour of curfew for minors will come in Ivano-Frankivsk, “Правда.if.ua”, http://pravda.if.ua/print.php?id=13949.

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