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13. FREEDOM OF MOVEMENT AND CHOICE OF PLACE OF RESIDENCE

   


[1]
    

      1. Overall review

      In general, the freedom of movement is granted by law and in practice. However, some elements of this freedom suffered undue restrictions imposed by the authorities in recent years. And 2012 failed to change the principal trend.

      As of August 1, 2012 the domicile registration of citizens and the issuance of passports now cover the terms of reference of the new institution––the State Migration Service (SMS)[2]. The passport offices at housing offices were closed down on September 1. However, the SMS has a much smaller staff, which immediately triggered long lines to SMS offices. As of January 1, 2013 the foreign passports will be issued by SMS units only irrespective of domicile registration which is rather a positive innovation.

      Also, on July 27, the MIA approved new rules for processing and issuing passports to the citizens of Ukraine[3].

     On August 5, 2012 the law on domicile registration of physical persons came into force: the Law "On Amendments to some laws of Ukraine on registration of primary and secondary residence of physical entities in Ukraine"[4]. It stipulates that the registration and crossing off the register are carried out in the same place and on the day of turning to the registration authority. It means that a person no longer needs to go, for example, to the old place of registration for cancellation of registration, but rather apply to the territorial division of SMS at the new place of residence, which will immediately issue cancellation of registration and new domicile registration. Another positive trait of this law is that now the domicile registration is not tied to the registration and crossing off the register of persons liable to military service and draftees. It was a very serious barrier during registration. In addition, the grounds for cancellation of registration are expanded significantly. If earlier it was an application or a court decision, now the crossing-off the register is also possible in the case of termination of grounds for the use of housing or legal grounds to stay in Ukraine for foreigners and stateless persons. For example, in the case of termination of the lease the registered person may be crossed off the register following the written request of the owner of housing. Previously, the court ruling was needed.

      However, the alleged drawback of this law includes cancellation of peculiarities of residential registration of homeless. In particular, until now they could register at the center of registration or center, where they had been granted asylum. Now they have no such right. It worsens the situation for people who own no habitation and who have no legal basis for the registration of residence. In practice, millions of citizens live under such conditions illegally renting accommodations and having no place to be registered. Moreover, it is legally impossible to rent accommodations with the possibility of future registration of residence, because the owners of such housing are unapt to tolerate it.

      Another significant legislative change consisted in the adoption of the Law "On the Unified state demographic register and documents confirming the citizenship of Ukraine, identity a person or her/his special status.” On September 6 it was adopted in the first reading, and already on October 2 it was adopted as a whole. However, the law was deprecated by different groups of the public[5], Ombudsman, etc. The President vetoed it, but on November 20 the Parliament re-adopted the law accounting for the President's proposals and on November 29 the president signed it. The law specifies that all documents establishing one's identity, including a passport, driving license, etc., should contain biometric data. All personal data collected during the issuance of these documents are stored in the Unified State Demographic Register that will be controlled by the State Migration Service of Ukraine. According to the requirements of this law, since January 1, 2013 the newly designed documents will be issued meeting the requirements of the law. In practice this means that within two months it will be necessary to place the work on a broad footing across the country for biometric-data-of-citizens readout. Moreover, now in order to obtain a passport, both domestic and foreign one, one will have to submit her/his biometric data, which will certainly create long lines across the country. Especially notable problems will emerge in remote areas and villages, as all citizens now have to personally apply for a passport in order to perform proper biometric data readout. It is easy to guess that it will create difficulties in the movement for citizens.

      This law, among other things, provides for the creation of an automated database of citizens that will contain the information about their registration. Leaving aside the issue of privacy protection, it should be noted that the chosen system will not meet the best standards in this area and is rather intended for uncontrolled personal data collection in a single register. In particular, the law does not even specify the list of needful information about a person to be collected, does not discriminate on the exchange of information among the authorities, does not determine the intended use of collected information etc. The law does not clearly define who, on what grounds, following what procedure and to what extent can access the data of the registry. The law combines in one database the functions of registration of physical entities and certification, which is not practiced in any European country, as it creates vast opportunities for abuse[6].

In 2012, there emerged the problem with foreigners coming to Ukraine for volunteering. Late in 2011, the new law "On Legal Status of Foreigners and Stateless Persons" was adopted[7]. According to this law, the State Migration Service began demanding from foreign volunteers coming for a long stay in the country to submit the letter "of a public body responsible for implementation of volunteer programs, or a volunteer organization." However, these legal requirements failed to take into consideration that Ukraine has no such responsible public agency and organizations of volunteers cannot be registered, because there are no regulations specifying which authority is responsible for their registration. Accordingly, the SMS refused to issue a permit to foreigners for permanent residence in Ukraine, and some were prohibited from entering our country[8].

      The negative trend of mass introduction of curfew for minors by local governments continued.

      No new decisions of the European Court of Human Rights on this issue were made. However, there remains the problem of significant time spent on criminal case investigations, which in the case of recognizance not to leave as a preventive measure constitutes a violation of the freedom of movement. Ukraine has not complied with the general arrangements of the European Court of Human Rights on this issue in the cases of Nikiforenko vs. Ukraine (application number 14613/03), Pokhalchuk vs. Ukraine (application number 7193/02), and Merit vs. Ukraine. The legislation was not amended and practice of investigative agencies remained unaffected. Although the newly adopted Criminal Procedure Code provides specifies new juridical regulations for this problem, but it is hard to say whether it will change the current investigation routine.

      It is worth noting that like in 2010-2011 the militia went on limiting the freedom of movement, so that the people could not get to Kyiv to participate in peaceful assemblies. The militia without explanations or on formal grounds blocked vehicles (buses and vans) carrying participants of peaceful assemblies from other cities. In such cases, the carriers were often threatened with license forfeit. In all cases the militia denied the illegality of their actions. In particular, these cases were often reported by the political party All-Ukrainian Union «Svoboda»[9]. Although there was a positive move by the MIA issuing Order no. 170 of February 14, 2012[10] annulling Order of MIA from May 11, 2010 no. 170 "On approval of the Instruction on the actions of agencies and units of the bodies of the Ministry of Internal Affairs intended to organize and maintain public order", which allowed militia officers to stop such columns going to participate in peaceful gatherings. The new order has not been adopted though. But despite the cancellation of the previous order and absence of a new one, as you can see, this practice is still there.

      There also remains the problem of incomplete transition from residence permits by registration upon notice: many procedures are inconsistent limiting the free choice of residence. The implementation of many social rights is tied down to the domicile registration, which is often the cause of failure to register a change of residence.

      The “Ukrzaliznytsia” significantly reduced the train operation, which, according to human rights activists and the public, seriously restricted the freedom of movement. Especially many complaints about train operation were tabled after the introduction of summer schedule for trains[11]. In response to these appeals of human rights activists and the public, several trains were restored.

      The reduction in the number of foreigners who have been denied entry to Ukraine, which takes place for the second consecutive year, deserves attention. Overall, for 9 months in 2012 the border guards denied entry into the country to 3,541 persons[12], which is significantly less than in the previous years and which can be noted as a positive trend (2008: 24 760 persons; 2009: over 17,000; 2010: over 15,000, for 9 months of 2011: 4981.)

      According to the State Border Service, in 1991-2011 they detained about 132,080 of illegal migrants, including:

      - 116.200 persons were detained for illegal crossing or attempted illegal crossing of the state border;

      - 15,830 people for violation of the rules of stay in Ukraine and other offenses;

      In addition, according to the State Border Service, for the same period, another 135,053 foreigners as "potential illegal migrants" were not allowed to enter Ukraine. The courts made decisions on deportation of almost 34,858 foreign offenders.

      There was also a significant drop in the number of illegal migrants apprehended, especially on the border on the EU (1999: 14 651 persons; 2011: 1828 persons)[13].

2. Freedom of movement: curfew for minors

      Since early 2009, the local governments began to massively ban minors’ stay unaccompanied on the streets and in public places.

      In 2012, the number of cases of actual introduction of curfews for children even increased.

      In particular, on June 6, 2012 the Kirovograd City Rada adopted a similar solution. The document bans the stay on the street of children under 14 from 10:00 pm to 6:00 am, children under 18––from 11:00 pm to 5:00 am unaccompanied by parents or adoptive parentis.

      On June 15, 2012 the Olexandrivska Village Rada of Olexandrivsky Region of Kirovograd Oblast decided to limit the stay of kids in public places by 9:00 pm in winter and 10:00 pm in summer, of minors by 10:00 pm[14].

      In November 2012, they planned to impose a curfew in Cherkasy[15].

      On the whole, there are no problems with the ban on minors stay at night unaccompanied at the entertainment establishments. However, while limiting their stay on the street they interfere with the freedom of movement, which is protected by the European Convention on Human Rights and the Constitution. Such interference should be carried out in accordance with the law. That is, the interference with human rights can be determined solely by the law, and not by the decisions of local governments. The restrictions on freedom of movement are allowed only in the manner specified by the law on the legal regime of the state of emergency. This law stipulates that such limitation can be implemented under certain conditions in a particular area and for a clearly defined period of time. In addition, such decision of a public body is a disproportionate restriction on the freedom of movement, because it is not limited in time and not necessarily protects the rights of the child, i.e. it is an unnecessary limitation in a democratic society. In this regard, the establishment without exception of permanent restrictions on minors’ stay on the streets is a violation of freedom of movement.

      The UHHRU with the help of the Foundation for Strategic Affairs tried to appeal against two local acts imposing curfew.

      In Chernihiv, the Resolution of Desniansky District Court of Chernihiv on June 10, 2010 the local decision was canceled. Up to now the appeal filed by local authorities has not been considered.

      In contrast the Simferopol local court rejected the claim on May 16, 2011. On October 24, 2011 its decision was upheld by the Court of Appeal. Until now the reversal of a case on appeal has not been considered, although the cassational proceedings were initiated by the Supreme Administrative Court in December 2011.     

      3. Recommendations

      1) Complete the reform of legislation on domicile registration, taking into account the positive international law practice[16] and the law of Ukraine on freedom of movement and choice of residence.

      2) In the field of domicile registration to abolish determined by law on freedom of movement and choice of residence the procedure of registration of temporary location (such a procedure is stipulated by law, but it is not used in practice);

      3) Consider broadening the grounds for registration of residence (such as it is made in the law on voters' register), as well as reviewing legislation to eliminate the dependence of the rights of residence. It is also necessary to abrogate provisions which stipulate that registration provides rights of possession or use of the dwelling. It is necessary to simplify the procedure for canceling registration in private homes at the request of the owner in the absence of existing leases of the premises. And it is also necessary to eliminate the interdependence of the fact of registration with the right of this home in the state and municipal housing funds. Without these steps it will be impossible to create a realistic system of registration, and millions of people actually will live not at the place of registration.

      4) Local self-government bodies shall revoke the decision on the curfew for minors as contrary to the Constitution and international law.

      5) It is necessary to amend the law "On administrative oversight" regarding possible restrictions on freedom of movement of persons released from institutions of confinement.

      6) The MIA must stop the practice of obstructing passage of buses and other vehicles that carry participants of peaceful meetings, and thereby to stop practicing illegal restrictions on their freedom of movement.

 

 

[1] Prepared by Volodymyr Yavorsky, Member of the Board UHHRU.

[2] See: http://dmsu.gov.ua/.

[3] See: http://zakon2.rada.gov.ua/laws/show/z1089-12.

[4]  See: http://zakon2.rada.gov.ua/laws/show/5088-17.

[5] See, e. g., Advocates urge the President to veto the Law of Ukraine "On the Unified State Register of population», http://helsinki.org.ua/index.php?id=1349453405.

[6] See in more details: Guidelines in the field of registration of the population, OSCE, 7 October 2009, http://www.osce.org/ru/odihr/39497?download=true.

[7] See: http://zakon2.rada.gov.ua/laws/show/3773-17

[8] See: EVS volunteers are forced to live in Donetsk illegally, http://eu.prostir.ua/view/254998.html; The volunteers leave against their will / / Newspaper "Kommersant Ukraine", no. 165 (1655), 18.10. 2012, http://www.kommersant.ua/doc/2046989.

[9] See, for example: Police has blocked the buses with Svoboda members on their way to Kyiv. Instead MIA isaccompanying columns of "bagmen", #39; March in Kyiv, http :/ / www.svoboda.org.ua/diyalnist/novyny/033542/.

[10] See text of the order here: http://zakon.nau.ua/doc/?uid=1041.50625.0.

[11] See, e.g., Bring back trains, http://www.mediaport.ua/articles/82853/vernite_poezda.

[12] Information from the State Border Service, http://www.dpsu.gov.ua/ua/activities/osd_results/osd_results_1.htm.

[13] Results of the State Border Service of Ukraine for 1991-2011, http://www.dpsu.gov.ua/upload/file/dpsu_1991_2011_% 281% 29.pdf.

[14] Olexandrivka: minors' stay curfew and restricted sales of alcohol, http://gre4ka.com.ua/society/komendantska-hodyna-3.html.

[15] "Teenagers ordered to keep to the rules of time and place», Http://mch.com.ua/nashi-novini/1549-pidlitkam-tut-ne-chas-i-ne-miscze.

[16] See, e.g., Guidelines in the field of registration of the population, OSCE, October 7,  2009, http://www.osce.org/ru/odihr/39497?download=true

 

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