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Human rights in Ukraine – 2006. XI. The Right to freedom of movement and freedom to choose one’s place of residence

   

[1]

In general, protection by the State of freedom of movement and freedom to choose one’s place of residence complies with international standards, for example, Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. No significant changes took place in 2006, although there was some progress in guaranteeing freedom to choose one’s place of residence and in safeguarding the rights of the Homeless[2]

Freedom of movement

Restrictions on freedom of movement can be established with regard to:

a)  movement within Ukraine’s borders;

b)   international movement (travel from or to Ukraine).

The requirement of “Ukrzalisnytsa” [Ukrainian Railways], imposed on the basis of a Resolution of the Cabinet of Ministers[3] that travel documents (tickets) for rail transport be issued solely on the basis of documents providing a person’s identification continued to effectively hinder freedom of movement.  The tickets give the first and last names of the individual who is going to use the ticket, and the train conductor has the right to not let any other person than that indicated on the ticket onto the train.  This requirement was made a little less strict through the amendments introduced to the relevant Resolution of the Cabinet of Ministers which made it possible to buy tickets on the basis of copies of documents providing identification. At the beginning of 2006, the Ministry of Internal Affairs (MIA) tried to have additional passport information added to the tickets, however this initiative was not carried through.

Something of an obstacle for travelling abroad remains the existence of a separate passport[4] for travelling abroad given the lengthy period needed for obtaining one, the cost of the procedure and the shortcomings in the procedure for its issue.

In the first 10 months of 2006 territorial offices of the Service of Citizenship, Immigration and Individual Registration issued 758 thousand passports and 107 thousand travel documents for children. They also issued 23.5 thousand documents for citizens moving to live in another country, of these 4.8 thousand pensioners, 14.9 thousand other adults and 4 thousand children. 3,844 Ukrainian nationals returned permanently to Ukraine.[5]

  The procedure for issuing passports remains unacceptable.  Each city demands a different list of documents and in parallel payment is demanded for various types of services provided by State enterprises of the MIA. Although the MIA claims that such services are provided with the consent of the people involved, in fact without them, you can simply not get a passport, which makes them effectively compulsory.  MIA agencies continue to unlawfully demand that people present documents proving they have no criminal record. They sometimes also demand copies of their insurance policy. You will not get a passport without the documents regardless of court rulings which have declared such practice illegal.

On 11 March 2004 the Kyiv Court of Appeal examined an appeal brought by Y.P Androsenko against the ruling of the Darnytsky District Court in Kyiv on a suit filed  against the unlawful actions and inaction of officials from the Department of Citizenship and Individual Registration of the Darnytsa District in Kyiv. The latter had demanded that a “document on criminal records” be provided when applying for a passport, whereas this is not on the list of necessary documents approved by the Cabinet of Ministers

The Kyiv Court of Appeal revoked the Darnytsky District Court’s ruling of 10 December 2003, finding the actions of the said officials unlawful and ordering that Mr Androsenko be issued with a passport. The Court of Appeal therefore recognized that only those documents envisaged in legislation could be demanded for receiving a passport.

In order to simplify the procedure for getting a passport, the MIA had amendments drawn up which were then approved by Resolution No. 580 of the Cabinet of Ministers from 27 April 2006.  A person’s birth certificate was removed from the list of documents needed, and the category of people was stipulated who have the right to not provide a document from the Tax Office with an identification number. In fact, the requirement to provide such a document contravenes the Law «On the State register of individuals paying taxes” which prohibits using this identification number for any other purpose than for taxation.

  Human rights organizations pointed to considerable problems with the issue of passports during 2005 and 2006. Appeals were addressed to the MIA and its regional departments by the Ukrainian Helsinki Human Rights Union and the Vinnytsa Human Rights Group. The appeals identified difficulties in receiving a passport, when the MIA responses stated that all was being done in accordance with the law.[6]

Problems have remained with the issuing of a sailor’s identification document which substitutes a passport for this group of citizens. Current legislation stipulates that a sailor’s identification document is issued to a citizen of Ukraine by the captains of sea or river ports in Ukraine on the application of the sailor or the heads of the enterprises, institutions or organizations who have concluded a contract of employment with a sailor occupying any position on board a boat (with the exception of military vessels), registered on the territory of Ukraine or other states who are signatories to the 1958 Convention on sailors’ identification documents

  In order to obtain or to renew a sailor’s identification document the port captain submits to the relevant regional departments of the Security Service of Ukraine (SBU) a request for information regarding access, access to state secrets, as well as whether any criminal investigations have been launched against the individual who has applied for this identification document. This means that it is effectively the SBU that gives permission to issue a sailor’s identification document. Yet what connection with state secrets can the work of a sailor on a civilian vessel have? Such practice dates back to Soviet times when everything connected with work abroad was made secret. In our opinion, this relic of the Soviet system must be changed

  In general the procedure for issuing sailors’ identification documents for multiple trips abroad needs substantial revision.[7]

 

Distribution of migrants in terms of migration flow and where they settle[8]

 (people)

 

2006

2005

Number  of arrivals

Number of departures

Migration balance

Number  of arrivals

Number of departures

Migration balance

 

Town settlements and rural areas

In total

765882

751637

14245

763222

758639

4583

Including:

 

 

 

 

 

 

Movement within regions

440898

440898

х

439269

439269

х

Interregional movement

280757

280757

х

284373

284373

х

Inter-State migration

44227

29982

14245

39580

34997

4583

 Of these:

 

 

 

 

 

 

 between countries of the CIS

33976

21270

12706

33444

21866

11578

 between other countries

10251

8712

1539

6136

13131

–6995

 

 

 

 

 

 

 

 

Town settlements

In total

547922

499471

48451

556363

500669

55694

Including:

 

 

 

 

 

 

Movement within regions

295814

277450

18364

302390

272093

30297

Interregional movement

216809

198619

18190

223489

200955

22534

Inter-State migration

35299

23402

11897

30484

27621

2863

 Of these:

 

 

 

 

 

 

 between countries of the CIS

25444

16455

8989

24820

16741

8079

 between other countries

9855

6947

2908

5664

10880

–5216

 

 

 

 

 

 

 

 

Rural areas

In total

217960

252166

–34206

206859

257970

–51111

Including:

 

 

 

 

 

 

Movement within regions

145084

163448

–18364

136879

167176

–30297

Interregional movement

63948

82138

–18190

60884

83418

–22534

Inter-State migration

8928

6580

2348

9096

7376

1720

 Of these:

 

 

 

 

 

 

 between countries of the CIS

8532

4815

3717

8624

5125

3499

 between other countries

396

1765

–1369

472

2251

–1779

 

 (per thousand of the population)

 

2006

2005

Number  of arrivals

Number of departures

Migration balance

Number  of arrivals

Number of departures

Migration balance

 

Town settlements and rural areas

In total

16,4

16,1

0,3

16,2

16,1

0,1

Including:

 

 

 

 

 

 

Movement within regions

9,4

9,4

х

9,4

9,4

х

Interregional movement

6,0

6,0

х

6,0

6,0

х

Inter-State migration

1,0

0,7

0,3

0,8

0,7

0,1

 Of these:

 

 

 

 

 

 

 between countries of the CIS

0,8

0,5

0,3

0,7

0,5

0,2

 between other countries

0,2

0,2

0,0

0,1

0,2

–0,1

 

 

 

 

 

 

 

 

Town settlements

In total

17,2

15,7

1,5

17,5

15,7

1,8

Including:

 

 

 

 

 

 

Movement within regions

9,3

8,7

0,6

9,5

8,5

1,0

Interregional movement

6,8

6,3

0,5

7,0

6,3

0,7

Inter-State migration

1,1

0,7

0,4

1,0

0,9

0,1

 Of these:

 

 

 

 

 

 

 between countries of the CIS

0,8

0,5

0,3

0,8

0,5

0,3

 between other countries

0,3

0,2

0,1

0,2

0,4

–0,2

 

 

 

 

 

 

 

 

Rural areas

In total

14,6

16,9

–2,3

13,6

17,0

–3,4

Including:

 

 

 

 

 

 

Movement within regions

9,7

11,0

–1,3

9,0

11,0

–2,0

Interregional movement

4,3

5,5

–1,2

4,0

5,5

–1,5

Inter-State migration

0,6

0,4

0,2

0,6

0,5

0,1

 Of these:

 

 

 

 

 

 

 between countries of the CIS

0,6

0,3

0,3

0,6

0,4

0,2

 between other countries

0,0

0,1

–0,1

0,0

0,1

–0,1

 

According to figures from the Ukrainian State Border Guard Service and the State Committee of Statistics, in 2006 18,936,775 foreign nationals entered Ukraine. Their reasons for visiting Ukraine were as follows:

-  business, work-related or diplomatic  – 1 011 230  (foreign nationals)

-  tourism – 1,210,156

-  private -  16,552,159

-  study  - 45,262

-  employment – 4,623

-  immigration (permanent place of residence) – 15,778

-  cultural and sport exchange, religious, others – 96,567

Most foreign nationals came from Russia (over 6 million); Poland (4 million); Moldova (3 million); Belarus (over 2 million) and Hungary (over 1 million.).[9]

The SBU reported that in order to prevent the activity in Ukraine of international terrorist organizations, in 2006 34 foreign nationals had been refused permission to enter the country, since the SBU believed them to be linked with such organizations, while another two foreign nationals had been deported for the same reason. In all, over 4 thousand foreign nationals were prevented from entering Ukraine, this including 186 people who were alleged to have links with Al-Quaeda or the Taliban Movement[10]

This report is strangely at odds with the information regarding the deportation of 11 Uzbek nationals in February 2006. Then, on 28 February, the same Maryna Ostapenko, on behalf of the SBU, in a live interview on TV 5 stated that: “These citizens of Uzbekistan belonged to an organization which, according to a resolution of the UN Security Council in 2001 has been declared terrorist. While in Ukraine between May and August last year, these citizens of Uzbekistan espoused the radical ideas of this organization among Ukrainian citizens”[11]

It thus remains unclear why it is stated that only two people and not eleven foreign nationals were deported in connection with the fight against terrorism. Of course it is possible that the SBU changed the grounds for the deportation however this is not known.[12].

 

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”][13].

  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.

  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”. Despite the general declaration n Article 2 of the Law of Ukraine “On freedom of movement and freedom to choose one’s place of residence”, the given system is basically still in force.

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.

The problem is also that the legislators have neglected the actual social relations in Ukraine, narrowing the grounds for registration and dividing people into those who can register in their own flat, and those who cannot.  Millions of Ukrainian citizens have, furthermore, ended up in this second group. For example, this includes people who may have normal work and rent accommodation in one of the regional centres. The absolute majority of such rent arrangements are illegal according to Ukrainian legislation. It is not worthwhile for either of the parties involved to make such an arrangement legal. In the case of the person letting this is because:

s/he would have to pay tax on such agreements, have tax consultations and generally more dealings with the tax authorities;

s/he could lose the right to receive State subsidies on the payment of communal charges;

the registration of such agreements takes a certain amount of time due to substantial bureaucratic difficulties;

there can be problems forcibly evicting a tenant who was registered in the flat, this being undertaken only on the basis of a court order and consequently requiring additional time and expense.

  For the tenant official relations are undesirable since the above factors lead to a significant increase in rent. 

  In such situations the person lives, in terms of legislation, illegally. The legislators have simply ignored these people, classifying them as homeless people who really don’t have a place to live. Most often these people register where they can do so, and not where they actually live.

 

The choice of a place of residence for homeless people

One needs to also consider the problem of the homeless in connection with freedom of choice of place of residence.

The homeless are not only those who really are living out on the street. The vulnerable group in this respect includes people who don’t have registration, but who can at the moment still work and rent a flat, as well as those who do not have:

a fixed place of residence;

registration;

identification documents.

In 2006 the Ministry of Employment, together with local executive bodies, civic organizations experienced in working with the homeless, established a phased model to enable homeless people to return or reintegrate into society; It involved:

street work (social patrolling);

registration (a centre for being registered);

night shelters;

reintegration centres;

social hotels.

  According to the Law “On the fundamental principles of social protection for the homeless and abandoned children” which came into force on 1 January 2006, the process is continuing for creating a single State system to ensure that homeless adults receive social services. Pursuant to the Law, a number of normative legal acts were passed, and a network of institutions begun. During the year the following were drawn up and passed:

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 after being imprisoned”, from 14 February 2006, No. 31:

-  Standard provisions on a reintegration centre for the Homeless;

-  Standard provisions on night shelters;

-  Standard provisions on a social adaptation centre for individuals who have been released from imprisonment;

Resolution No. 404 of the Cabinet of Ministers from 30 March 2006 “On approving a standard provision on a registration centre for the Homeless;

Order No. 98 of the Ministry of Employment and Social Policy from 3 April 2006 “

Order № 114 of the Ministry of Employment and Social Policy from 7 April 2006 instructed its regional departments:

·  together with executive committees of cities with regional subordination and other cities where there is a problem with homelessness to ensure that registration centres for homeless people are created;

·  to provide practical assistance in organizing their work;

·  to begin registering homeless people and providing reports;

·  to provide information to the Ministry of Employment about measures either taken or planned to create registration centres on a quarterly basis before the sixth day of the month when the report is due.

Last year statistical standards were also introduced which make it possible to estimate the number of people registered as homeless and the actions taken by the government towards them.

:In accordance with the Laws “On freedom of movement and freedom to choose one’s place of residence” and “On the fundamental principles of social protection for the homeless and abandoned children”, MIA Order No. 600 “On approving Rules of Procedure for preparing and issuing Ukrainian citizens’ passports” from 15.06.2006. The Order was registered in the Ministry of Justice on 7 July 2006 as № 804/12678.

  In implementation of the Law “On the socially designated housing fund”, a draft Resolution of the Cabinet of Ministers was drawn up “On approving the Rules of procedure for reinstating documents for people living in adult temporary shelters”. The draft resolution was agreed with the interested central authorities and will in the near future be submitted for review to the Cabinet of Ministers.

 

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. 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.
  4. It would be expedient to consider broadening the grounds for registration (as was done, for example, in the Law on the electoral register) and also to review legislation in order to prevent being able to exercise ones rights depending 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.
  5. Guarantee protection of personal data related to registration and movement of individuals; in order to ensure confidentiality of movements and to eliminate the possibility of illegal surveillance over the movements of an individual. This applies in particular to the database of Ukrainian Railways as regards those in possession of travel documents (tickets), with the access to this database not regulated by legislation.
  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 from MIA enterprises).
  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] Prepared by Volodymyr Yavorsky, UHHRU Executive Director.

[2]  In view of the lack of change in legislation, a fuller understanding of the restrictions on freedom of movement and freedom to choose ones place of residence, see the relevant section of the Report: Human Rights in Ukraine – 2005”, available at: www.helsinki.org.ua.

[3] Resolution of the Cabinet of Ministers of Ukraine “On the rules and procedure for providing rail transport services to citizens” from 19 March 1997 No. 252 (with amendments from 12 September 2002, 8 October 2004). See also Article 2.2.2 of the Order of the Ministry of Transport of Ukraine from 28 July 1998 No. 297 “On approving the Rules for transporting passengers, luggage, freight and post by Ukrainian railways” (with amendments and supplements introduced by Orders of the Ministry of Transport of Ukraine from 21 December 1999 No. 611, from 22 February 2001 No. 109, from 21 November № 831, from 14 July 2003 № 530, and Order of the Ministry of Transport and Communications of Ukraine from 6 December 2004  № 1069)

[4]  Ukrainians have an internal ‘passport’ – a personal identification document, and, if they have specifically applied for one, a passport for travelling beyond Ukraine.  In the following text, “passport” is used where the Ukrainian specifies that this is for travelling abroad. (translator)

[5]  “The Passport Department assists citizens in exercising their right to freedom of movement and freedom to choose ones place of residence // Report on the MIA official website: http://www.kmu.gov.ua/mvs/control/uk.

[6]  More details are available in the article  “How people get passports in Ukraine” at: // сайт УГСПЛ: http://helsinki.org.ua/index.php?id=1155887755.

[7] See for example “The issuing of sailors’ identification documents in Ukraine”, I. Beznosenko “Yurydychny zhurnal” № 11, 2004 (in Ukrainian). Available at http://www.justinian.com.ua

[8] The demographic situation in Ukraine in 2006. Express – information from the State Committee of Statistics No. 30 from 15 February 2007. Available at the Committee’s website:: www.ukrstat.gov.ua.

[9]  Information on the site of the State Department of Statistics : www.ukrstat.gov.ua.

[10] “There are no terrorists in Ukraine!” // MIGnews.com.ua: http://www.mignews.com.ua/categ186/articles/246402.html.

[11]  See the Channel 5 website : http://5tv.com.ua/newsline/179/0/21846. (and in English: http://khpg.org/en/index.php?id=1141248265)

[12]  The deportation of the Uzbek nationals is discussed in more detail in the section of this Report on Refugees.

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

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