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10. Freedom of movement and choice of place of residence

[1]

1.    General overview

Generally speaking the freedom of movement and free choice of place of residence is respected in Ukraine. Some problems, however, can be identified in this area.

Everyone can move freely around the country and choose one’s place of residence. The problems arise at the times of large peaceful gatherings, because in the course of these events the authorities try to restrict citizens’ participation in the meetings. Traditionally, different means are used: the transportation companies are threatened with revocation of their licenses if they bring participants to the meetings; the vehicles are stopped by the traffic and road units under false pretexts to impede their further progress etc. At the times of mass protests the most severe measures are used. Specifically, in late November and December during Euro-Maidan actions many instances of hampering the protesters’ progress were registered. 

The banning of restrictions concerning servicemen’s travels abroad is among positive developments. On November 5, 2013 the Supreme Rada of Ukraine introduced changes to the Article 6 of the Law of Ukraine “On the procedure of exit from and entry to Ukraine for the Ukrainian citizens” which lifted the restrictions for the citizens of the draft age as far as their right to go abroad was concerned. Earlier that clause caused serious problems[2].

The European Court for Human Rights on January 10, 2013 passed a decision on the case “Zarotchentsev vs. Ukraine”, (file # 39327/06[3]), in which it found the violation of the Article 2,  Protocol # 4 of the Convention of Human Rights (the freedom of movement). The Court classified the restriction of the petitioner’s freedom of movement as a disproportionate measure. He had been under the obligation not to leave the country for the investigation and consideration of his criminal case for approximately 9 years and 6 months. Earlier the court had passed many decisions of the similar nature.

Over the recent years the number of the aliens denied entry to Ukraine has decreased several times: in 2011 it amounted to 6 365, in 2010 – to 17 336, in 2009 – to 19 773, and in 2008 – 24 774. However, several denials for political reasons were registered this year as well.

Namely, on July 5, 2013 entry to Ukraine was denied a Russian national journalist Yu.Barabash. No substantial reasons for denial were offered. Prior to the incident he had been living in Ukraine for prolonged periods of time. The journalist believes that the sanctions were triggered by his critical statements against the authorities.[4]

On November 11, 2013 in Lviv airport the customs officials did not allow Norbert Neuhaus, ex vice mayor of a German city of Trier and the author of the book “Values of Christian Democracy” crossing the Ukrainian border, without giving any reason for their actions.  Neuhaus came to Ukraine to take part in the training seminar. No substantiation was provided, but the members of the “Democratic alliance” opposition party, that invited Neuhaus, claimed that this denial was strictly politically motivated.[5]

The Russian opposition activist B.Nemtsov was not allowed to join Euro-Maidan on December 12. Neither grounds nor the term of banning have been given[6]. On December 13 Raik Opitz was prohibited from entering Ukraine for his alleged links with “funding of a terrorist organization and intelligence operations”. He was denied entry to Ukraine for 5 years. He had a permit for temporary residence in Ukraine valid till August 15,  2014 (issued on August 15, 2013), as well as an ID issued by the National Union of the Journalists of Ukraine on August 29 this year).[7] On December 21 entry to Ukraine was denied a well-known Georgian businessman Georgiy Kikvadze, a senior executive of the Ukrainian agricultural company “Terra”. Earlier he worked in Ukraine dealing with investments. He is known to have openly supported Maidan. The border control officer referred to the decisions of the National Security Service of Ukraine as the grounds for the banning. Mass media have also informed that Kikvadze was on the list including   36 businessmen and professor from various universities. The list was comprised by  the people’s deputy O.Tsaryov, who requested that NSS of Ukraine bans entry to Ukraine to these individuals as they represent a threat to the national security.[8]

Most severe restrictions of the freedom of movement for the persons under administrative arrest still represent a serious problem. The said persons need investigator’s approval for any trip outside their place of residence. The investigator can deny it without any explanation. It amounts to additional penalties imposed on a person. Even neighboring Belarus or Russia does not use such strict measures.  

2.    Personal registration and identification system

In late 2012 the Law “On the uniform national demographic register and documents confirming Ukrainian citizenship, identifying a person or his/her special status” came in force. In fact it has been disregarded for the entire year of 2013. The governmental bodies kept issuing all the ID papers, including passports, in the old format and under the old procedure in defiance of the said law.  In November 2013 the government allocated another 295.1 million UAH to set up the uniform national demographic register, so that overall amount of more than 700 million UAH (over 85 million USD) was spent in the course of the year. The State Migration Service announced that all the stages of the uniform national demographic register implementation could be completed by the end of 2016.

Let us remind that the main advocate of this law, former people’s deputy and currently Deputy Head of the State Migration Service V.Hrytsak stated that after the law is passed Ukraine would be able to issue biometric passport as early as January 1, 2013[9].

The system of public registration so far has not been reformed. Some portion of population lives without registration or not at the place of registration. In fact efficient and accurate database registering the citizens is non-existent.   

The issuance of passports needed to go abroad remains one of the most crucial problems. Lack of precisely defined procedure spelled out by the law, alongside with the routine corruption inherent to the process[10] make hostages of the citizens who either have to pay more than legal fees for their passports or fail to get them on time.

In early 2012 the “Democratic alliance” political party launched a campaign “STOP arbitrary operation in the passport offices”[11].  The campaign targeted bribes paid for the issuance of a passport to travel abroad. As of today, the factual and legal fee for obtaining such a passport constitutes 170 UAH. The migration service in different regions imposes its own fees and additional papers not stipulated by the law. As a result the total fees for a passport increase to 300- 800 UAH. The campaign proved very successful, but was fiercely opposed by the officials and corrupt bureaucrats. Some bodies of power took the side of the public.  

Thus, the Antimonopoly Committee of Ukraine recommended to the State Migration Service of Ukraine using the measures eliminating unwarranted payments for the passports to travel abroad. The Committee carried out its own investigation, which showed that in 2013 petitioners in the migration offices were served not by the migration service officials, but by the state company “Document”. The receipts covered payments for the state company consultations, insurance and other non-obligatory payments.  These actions can be qualified as violation of the Article 16 of the Law of Ukraine “On protection of economic competition”.[12]

The prosecutor’s office also took into account requests coming from public at large. Specifically, in February 2013 the prosecutor’s office in Volyn’ oblast’ made public the information on illegal fees imposed by the migration service:   

In particular, applicants approaching the oblast’ Department of the State Migration Service are given the list of bank accounts to pay allegedly obligatory fees for the passport needed for travels abroad. The list contains, among other fees, payments not stipulated by the law, i.e. 100 UAH for information services provided by Volyn’ branch of “Document” company and 75 UAH for “VUSO” insurance company services. These fees are paid by the citizens under pressure from the migration service officials promoting economic operation of the said companies. Besides, the oblast’ officials accept payments right on site, and not through the banks. To put an end to the violations and hold those in charge responsible respective prosecutor’s office petition was submitted to the head of the Volyn’ oblast’ Department of the State Migration Service”.[13]

In August 2013 the prosecutor’s office of Odessa oblast’ completed the inspection carried out following the information posted in mass media concerning the legality of fees established for the travel passports by the Chief Directorate of the State Migration Service of Ukraine. The inspection revealed that the migration service officials demanded fees not envisaged by the law. The law, in particular, unambiguously specifies the fee of   170 UAH for the issuance of the passport, while the citizens were obliged to pay between 300 and 800 UAH. On this factual basis the charges were lodged with the Uniform register of the pretrial inquest and criminal investigation was started in accordance with p.1, Article 364 of the Criminal Code of Ukraine (abuse of power or office).[14]

The Ombudsman, however, took the side of the State Migration Service of Ukraine.[15]

The court practices varied as well. The campaign activists condemned the denials of passport issuance on the grounds of refusal to pay additional fees in court.  Zaporizhzhya circuit administrative court, for one, refuted one of such appeals by its decision on August 01, 2012. This decision was invalidated on February 5, 2013 by the ruling of Dnipropetrovsk court of appeals,[16] which obliged the migration service to issue the passport. On June 5, 2013 the Highest Administrative Court of Ukraine[17] supported the appeal court decision and obliged the migration service to accept the documents submitted for the issuance of the passport without additional fees. At the same time another applicant filed a similar complaint. On July 23, 2012 Zaporizhzhya circuit administrative court once again denied satisfaction of the complaint. On February19, 2013 Dnipropetrovsk court of appeals cancelled this decision and satisfied the complaint. However, on September 17, 2013 the Highest Administrative Court of Ukraine composed of other judges ruled to the contrary[18], cancelling the decision of the court of appeals and denied the satisfaction of the complaint. The decision was a real surprise, as it was passed on absolutely identical petitions, under the same circumstances and with the application of the same legal provisions. The Highest Administrative Court of Ukraine, nevertheless, arrived at totally different conclusions. This fact proves the lack of strictly defined regulations concerning passport issuance, opening the door to corruption and abuse. 

However, on December 2013 the Supreme Court of Ukraine[19] put the final stop in the matter. Considering the aforementioned decision of the Highest Administrative Court of Ukraine of June 5, 2013, it ruled that the decision should remain in force. The Supreme Court of Ukraine supported the plaintiff’s claim and agreed that the documents should be accepted and considered without additional fees. I.e. the plaintiff had to pay just the official fee of 170 UAH. All the other dues are illegal. Under Article 2442 of the Code of Administrative justice all the bodies of power and courts must bring their practices into compliance with this decision.

Another problem is related to the fact that there is no national program addressing the needs of persons without IDs. The situation in the border regions of Odessa oblast’, where many stateless persons reside using only their birth certificate as ID, is typical in this context. Providing free legal services to the public over the years 2011 – 2012, together with the bodies of justice, the Legal Centers have to deal predominantly with persons of Moldavian ethnicity residing in the border regions of Odessa oblast’. These persons come out with requests for legalization and obtaining of the valid IDs (over 100 petitions came from Kotovsky and Krasnooknyansky raions only). The majority of these people came to Ukraine in early 1990-s, have had their children and grandchildren here.[20] Here is one the stories:

In 2011, during a field trip organized by Odessa oblast’ “Committee of the Ukrainian Voters” Legal Center to the village of Stavrovo, Krasnooknyansky raion, three village residents, sisters Lyudmila (born in  1974),  Olena (born in 1971) and Tetyana  (born in 1987) applied for free legal assistance. The three women came from Modovva and have resided in Ukraine for about 20 years. However, they are not citizens of Ukraine, or of any other state. The only documents the sisters have are their birth certificates issued under the soviet regime in the Moldavian SSR. But the main concern for the women is the undocumented status of their children.  The absence of the parentsdocuments gives grounds to deny the issuance of respective documents to the children. Between the three of them, the sisters have eight children, at the age between   2 and 14 years. The oldest children will finish secondary school in 2013 and need to get the secondary education certificate. The lawyers from the Legal Center of Odessa branch of the CUV helped the sisters to get a residence permit in Ukraine by the end of 2012. In January 2013 the Legal Center lawyers came to Stavrovo once more to provide full Ukrainian citizenship for the sisters. This event will be followed by the next complicated stage, i.e. obtaining the relevant documents for all the kids, the oldest of whom are already graduating.[21]

The Roma people also face problems related to their IDs.

3.    Identification and registration of the homeless people

Lack of efficient measures for counteracting homelessness remains a serious problem. The law passed last year considerably complicated the registration procedure for the homeless. As of today there is no official statistics as to the number of the homeless, although the international organizations have more than once stressed the need to have these data available. The registration allows for quicker integration of the homeless, as the opportunity to get an ID presents itself, and, therefore the homeless can have access to the social services and exercise their social and economic rights. For example, an unregistered person cannot register in an employment center and look for job with the help of the state.

According to expert evaluations, as of 2012 about 100 thousand children live and work in the streets.[22] The data of the UN UNICEF Children’s Fund published in 2011 the number of homeless children between 10 and 18 years in Ukraine amounts to approximately 150-160 thousand, although official statistics sustains that the number is about 12 thousand. Two thirds of the teenage respondents are not registered in any governmental agency. Two thirds of the children-respondents live in the streets without any permanent place of residence. 27% of the children live in the railroad stations, 19% - with the friends or acquaintances, 18% - in the abandoned buildings, 10% - with the people they hardly know,  8% - in the sewage canals and 1% – in the orphanages.[23]

The total number o the homeless is not known.

On March 13 the Government passed a Resolution # 162 “On approving main measures for counteracting homelessness till the year 2017”[24].

The Ministry of social policy sustains that the number of the respective institutions/facilities[25] has increased, constituting by 01.07.2013 187 (01.01.2013 – 108) units offering social services to the homeless and the ex-cons including:

·      99 (01.01.2013 – 90) communal institutions/facilities;

·      19 (01.01.2013 – 18) institutions/facilities set up by the non-governmental organizations;  

·      49 (01.01.2013 – 46) NGOs  offering various services ( catering, social patrols, humanitarian aid etc.) to the targeted categories.

The following entities operate within the aforementioned institutions/facilities or independently: 

·      85 (01.01.2013 – 75) homeless registration centers (branches), including  81 (01.01.2013 – 71) communal with two 2 local branches (Kyiv, Odessa oblast’);

·      21 (01.01.2013 – 19) shelters (facilities) for overnight stay, including  19 (01.01.2013 – 18) communal , with 1 branch (Donetsk oblast’);

·      13 (01.01.2013 – 13) homeless reintegration centers including 7 (01.01.2013 – 7) communal;

·      2 (01.01.2013 – 1) social hotels (branches), including 1 communal;

·      14 (01.01.2013 – 14) centers (branches) for the social adaptation of persons released from prison, including 3 (01.01.2013 – 3) communal;

·      12 (01.01.2013 – 12) communal specialized hostels (special facilities) for the senior citizens and disabled released from prison.

The data provided earlier, however, differ from those made public. Thus, on January 1, 2011 the ministry confirmed the operation of 135 (not 108 as stated above) entities providing social services to the homeless and persons released from prison. Other indicators also differ. E. g., 21 shelters offered an overnight stay (this number remained the same in 2013), 17 homeless reintegration centers (currently they are 13, although the official data sustained there were only 7).[26] This discrepancy gives solid ground for doubts as to the accuracy of the official figures. The data are obviously manipulated with to show an increase in the area, although no one knows what the reality is. Relatively insignificant number of the facilities at the nation-wide scale is also a reason for concern.

The essence of the matter is that all the facilities are supported either by the local budgets or private funds. Hence, the network development fully depends on the local authorities, while the ministry and the state in fact do not participate in the process. That is why these institutions are spread all over the country disproportionately. Sometimes they can be found in oblast’ centers only, which decidedly is not enough. Naturally a homeless person would not travel one hundred or more kilometers an oblast’ center; so many homeless are left without governmental assistance and      the number of the homeless is increasing.

Over the first six months of 2013 the facilities for the homeless and persons released from prisons have granted services to 13.7 thousand clients. Specifically,

Ø The homeless registration centers provided services to 8.7 thousand clients, including assistance in recovery of the documents to more than 1.1 thousand persons, domicile registration– to 5.1 thousand persons ;

Ø Temporary shelters helped 4.2 thousand persons offering them 477 thousand social services;

Ø Institutions for the persons released from prison provided 461.5 thousand social services to 841 persons.  

According to the data provided by the State Migration Service over the first six months of 2013 the centers/facilities have registered the domicile of 3.3 thousand homeless, including 169 persons released from prison; the place of stay of  3.1 thousand homeless. Besides, 619 persons were issued Ukrainian passports.

4. Recommendations

1)           Finalizing the legal reform aimed at the registration of the place of residence, with due consideration to the best international practices[27] and Law of Ukraine on the freedom and movement and free choice of place of residence.

2)           Cancelling the procedure for temporary registration (this procedure is defined by the law on the freedom of movement and free choice of place of residence, but not applied in practical operation).   

3)           Considering the broadening of grounds for domicile registration (similar to provisions concerning the voters’ register). Banning of the legal provisions stipulating the right to possess or use housing facilities on the basis of registration. Facilitating the procedure of waving the registration of private housing owners (at their request) if the valid contracts on lease are not in place. Severing the ties between the registration and the right to given premises in the public and communal housing. Viable registration system does not seem feasible without these measures, so that thousands of residents will be in fact living under addresses different from those registered.

4)           Banning the curfew for minors introduced by the local authorities in defiance of Constitution, legislation and international law.  

5)           Introducing changes into the law “On administrative supervision” concerning restrictions of freedom of movement for the persons released from prison.

6)           Putting an end to the Ministry of Interior practices of obstructing transportation of the peaceful gatherings’ participants to the venues, thus illegally restricting their freedom of movement.  

7)           Devising national program aimed at reducing the number of people without IDs, specifically, the Roma and residents of border regions and stateless persons. The program should stipulate a simplified procedure for obtaining an ID.

 

[1] Prepared by V.Yavorsky, member of UHHRU board.

[2] See, e.g. Military commissariat and constitutional right to the freedom of movement. www.irs.in.ua.

[3] hudoc.echr.coe.int.

[4] Russian national Barabash was denied entry to Ukraine for his criticism of Yanukovych’s regime.  uainfo.org.

[5] German ideologist of Christian democracy was banned from entering Ukraine www.dem-alliance.org. Text of decision available here: https://www.facebook.com/photo.php?fbid=10152013480339510&set=pcb.10152013524599510&type=1&theater.

[6] gazeta.ua.

[7] NSS of Ukraine denied entry to a German journalist and benefactor. // UP, December 13, 2013, 13:55, www.pravda.com.ua.

[8] Businessmen and academics denied entry to Ukraine // FT, December 22, 2013 4:04 pm, #axzz2oIMm7UAX/

[9] “Documentary proof”  //”Kommersant Ukrainy” newspaper  

188 (1678), 20.11.2012

 www.kommersant.ua

[10] See, e.g. friendshipwith EDAPS worth billions// UP, March 13, 2013, www.epravda.com.ua; EDAPS patented “Ukraina” // real-economy.com.ua; Passport war // UP, June 26, 2013 , www.epravda.com.ua; “Family” pushed EDAPS put of passport business // UP, July 24,  2013, 09:00, www.epravda.com.ua;

[11] See https://www.facebook.com/STOPsvavilly?fref=ts.

[12] ACU provided recommendations to the State Migration Service of Ukraine, 29.08.2013, www.amc.gov.ua; press-conference on violations of the law  on economic competition protection www.amc.gov.ua

[13] www.vol.gp.gov.ua.

[14] www.od.gp.gov.ua.

[15] See. www.ombudsman.gov.ua; see also commentary by Ombudsman staff member M. Chaplyha https://www.facebook.com/m.chaplyga/posts/152509871575513?comment_id=332446&notif_t=comment_mention, also campaign activists. Democratic Alliance: Ombudsman defends passport mafia. dem-alliance.org.

[16] reyestr.court.gov.ua.

[17] reyestr.court.gov.ua. Also see analysis of the court decision here:   jurliga.ligazakon.ua.

[18] reyestr.court.gov.ua.

[19] See court’s decision: dem-alliance.org.

[20] See in more detail here: “The issues of the Moldavians'  legalization in the border regions of Odessa oblast’ – monitoring results” Odessa branch of the Committee of Ukrainian voters  pravo.prostir.ua;  national program is proposed to address the legalization of the Ukrainian citizens of Moldavian ethnicity  www.irf.ua.

[21]“Stateless persons: decades of illegal existence” www.irf.ua.

[22] New UN report on “street children” www.unicef.org.

[23] UNICEF found in Ukraine 10 times more homeless teenagers than the official data claim, tyzhden.ua.

[24] zakon2.rada.gov.ua.

[25]www.mlsp.gov.ua.

[26]www.mlsp.gov.ua

[27] See, e.g. Governing principles of the public registration, OSCE, October 7, 2009, www.osce.org