Protection of rights of internally displaced persons
In 2014, Ukraine witnessed the most considerable internal displacement in Europe since the Second World War. According to the data of the United Nations High Commissioner for Refugees as of the end of December in 2014, over 610,000 internally displaced persons (IDP) were registered in Ukraine. However, the experts estimate that due to the fact that not everybody has been registered, a real amount of displaced persons exceeds one million.
The State turned out to be not ready for new challenges, so most of the problems associated with IDP lie on volunteers.
Map of refugees from East Ukraine and Crimea
According to the Guiding Principles on Internal Displacement, internally displaced persons are individuals or groups of people who have been forced to flee or to leave their homes or places of residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights, or natural or human-made disasters, and who have not crossed an internationally recognized state border.
In Ukraine internal displacement started since February 2014 as a result of occupation of the Autonomous Republic of Crimea and Sevastopol by the Russian Federation. Internal displacement is caused by the following factors:
1. Political repressions.
2. Abuse of human rights and fundamental freedoms.
3. Desire of people to continue living in Ukraine and non-recognition of annexation.
4. Economic consequences of annexation.
During the occupation and further annexation, persecution of the activists who supported the Euromaidan, spoke out against the annexation and disagreed with actions of the new Crimean government and Russian occupants began in Crimea. Some of them were arrested and accused of fictitious crimes. For example, Oleg Sentsov, a famous filmmaker, was arrested on the 11th of May on suspicion of terrorism and taken to Moscow. Most pro-Ukrainian activists were forced to escape political repressions to the mainland Ukraine.
In Crimea, involuntary disappearances, political murders and tortures of Crimean Tatars and Ukrainian activists were observed. Mostly, the Crimean Tatar Group representatives were persecuted. Following the Stalinism traditions, occupation authorities decided to force the Crimean Tatars to leave their historical homeland. Mustafa Djemilev, Refat Chubarov and a famous public activist Ismet Uksel, the leaders of the Crimean Tatars, were prohibited from entering Crimea. The building of the Mejlis of the Crimean Tatar was expropriated. Fabricated criminal and administrative cases were instituted against activists; unfair penalties were imposed on legal entities. Culture related organizations announce ban on public cultural events of the Crimean Tatars. Widespread discrimination and violation of the rights of the Crimean Tatars, conditions impossible for life and work in the Crimea — this is all about “latent” deportation of the Crimean Tatars organized by the occupation authorities.
In Crimea, the situation with the repressed freedom of convictions is even worse than in Russia. Few pro-Ukrainian media or those that tried to freely express their point of view, were liquidated; for example, a popular TV-channel “Chornomorka” was closed. All Ukrainian channels ceased broadcasting in the territory of the peninsula, and only Russian channels are on-line. Only one broadcasting company allowing free discussions was left — the Crimean Tatar ATR. However, it is also under constant pressure. Freedom of religion is also under pressure in Crimea. There were numerous actions against Muslims, the Orthodox Church of Kyiv Patriarchate and the Greek Catholic Church. There is a dramatic increase in acts of vandalism. Some churches were taken away from the Kyiv Patriarchate. The act of solidarity of the Crimean Tatars who permitted to conduct Orthodox service in the mosque has to be mentioned. The rights of Catholics and Protestants are also restricted. Priests of these churches are denied visas; their residence certificates are not extended.
Other civil freedoms and political rights are also violated by the new authorities. Freedom of meetings and association, freedom of movement are strictly limited, ownership rights are violated.
Thus, by the end of March 2014, the number of registered IDPs reached 3,600 persons, and the current number of the migrants from Crimea is more than 5,000 persons.
Since April 2014, due to massive unrests inspired by Russia, the first internally displaced persons from Donetsk and Luhansk appeared. During the escalation of armed conflict, IDPs flow from the area of the so-called anti-terrorist operation (ATO) was constantly increasing. Internal displacement from the ATO area has the following reasons:
1. Threat to life and health through indiscriminate firing (including heavy artillery).
2. Destruction of buildings as a result of shelling.
3. Massive abuse of human rights and fundamental freedoms.
4. Savage persecution of disagreeing people by rebels.
5. The catastrophic social and economic situation in uncontrolled territories of Ukraine, especially after the suspension of state funding of these areas and termination of payment of all state social benefits.
There is no other rule except rule of force in the territory controlled by rebels. All fundamental rights and freedoms are abused at every turn.
Violation of the right to life: the rebels shoot people without charge or trial. Sometimes the so-called “people’s courts” are organized without the right to defense , where the tortured victim is represented as a criminal, and people vote for the death penalty by show of hands. Civilians are being killed by shelling. The terrorists hiding behind civilians are shelling positions of the Ukrainian artillery located near residential buildings, schools, hospitals. In addition, there are the proved facts of shelling of residential areas by terrorists disguised as Ukrainian soldiers. Still, there is no conclusive evidence that people die from terrorist attacks only. We can only state the fact that the Ukrainian forces do not shoot at civilians deliberately, unlike the rebels.
We do not know the exact number of the people killed. According to the UN, about 6,000 people were killed during the conflict in the Eastern Ukraine. More than 1,700 people are missing. About 15 thousand are wounded. In fact, the number of the dead is much higher.
According to the SSU, about 500 Ukrainian soldiers and civilians are in the dungeons of terrorists. This number also appears to be lower than the real one. According to human rights organizations, the number of hostages is about 900. The state cannot afford to extend considerably a list of civilians because it will provoke terrorists to take more hostages for exchange and ransom payment. Hostages are subjected to terrible torture, after which many people lost their lives and many of them became disabled. Women hostages are not only tortured, but also raped; this is a routine practice of rebels.
Cases of torture, abductions and extortion by the Ukrainian forces are also fixed, but the government responds to these crimes, the prosecution initiated a number of criminal proceedings based on the facts.
Violation of the civil and political rights in the territories occupied by terrorists does not even have to be mentioned. A person may be killed or taken to the dungeon for Ukrainian symbols or any incautious word.
The situation in the field of social and economic rights is close to a humanitarian catastrophe. Many disputes have been triggered by the Decree of the President of Ukraine which in fact sets the economic blockade of the areas controlled by terrorists. The reason for adoption of this Decree is inability to carry out economic activities in these areas.
All this caused massive internal displacement and the flow of refugees to Russia and other countries.
In March 2014, the UN Secretary-General Mr. Ban Ki-moon said that Ukraine had to adopt immediately a law on the status of internally displaced persons so that the international community could provide humanitarian aid to Ukraine. The state did not hurry with the development of legislation on IDPs, but representatives of civil society understood that this problem was very urgent, internally displaced persons were in need of immediate assistance, and that their number would only grow and they would move not only from Crimea, but also from other regions of Ukraine, where a hybrid war of Russia against Ukraine already lasted at that time. At that time, the number has not yet reached hundreds of thousands of migrants from Donbas, but it was clear what Ukraine could expect. Therefore, the law about internally displaced persons had to be adopted immediately. That was admitted by several organizations, including IC “Maidan Monitoring” and Kharkiv Human Rights Group.
Kharkiv Human Rights Group (KHRG) has developed a draft law “On Forced Displaced Persons” which was published on the website of KHRG on April 15, 2014: http://www.khpg.org/index.php?id=1397592025. After that for two months this draft law was discussed with UNHCR, Office of the Commissioner for Human Rights, representatives of NGOs, volunteers and, of course, with the displaced people, as well as with politicians and people’s deputies. During the discussion the draft was improved. It was approved by international and national experts and drew attention of the civil society which demanded a prompt adoption of the law on forced displaced persons in the wording effective as of the moment. As a result, people’s deputy Sergii Sobolev developed his own draft on the basis of that one. It was submitted to the Verkhovna Rada under No. 4998 in cooperation with Volodymyr Aryev. Most of the provisions contained in the draft of KHRG were moved to the Sobolev’s draft, and even though assistance to migrants was significantly reduced, the Sobolev’s draft, in opinion of experts, was consistent with international standards and was improved in principle.
However, on June 18, when the representatives of the civil society and international organizations came to the meeting of the Verkhovna Rada Committee on Human Rights, National Minorities and Interethnic Relations, they were presented with absolutely different draft which everybody, including the representatives of the Presidential Administration, saw for the first time. The draft was quickly discussed without considering opinion of society and international organizations. The following day the draft “On Legal Status of Persons Forced to Leave the Residence as a Result of Temporary Occupation of the Autonomous Republic of Crimea and the City of Sevastopol and Circumstances of Antiterroristic Operations on the Territory of Ukraine” was submitted to the parliament under No. 4998-1. At the same day it was adopted as a whole with significant breach of parliamentary rules. Such haste can be explained by its extraordinary relevance, but, unfortunately, it generally does not solve the problems of forcedly displaced persons. Public discussion of the draft did not take place; the UNHCR recommendations on key provisions of the law were disregarded. The law contains a number of serious drawbacks.
The law applied to internally displaced persons from Crimea, the city of Sevastopol and ATO area only. It means that in case of forced migration, for example, as a result of the attack outside the ATO area, this law does not apply to migrants from the territory. In this sense, the law was short-sighted.
The memorandum states that adoption of the draft law does not require additional expenditures from the State Budget of Ukraine. It means that the legislators do not want to take care of the internally displaced persons and that they perhaps want international organizations, charities and the Ukrainian public to take care of them.
Art. 3, part 13 of the Law actually placed the burden of proof of resettlement circumstances on IDPs and violated the principle of presumption of innocence, as a person had to prove that he/she was not a criminal. The principle stated in this article would strongly complicate procedure for obtaining an internally displaced person card and would create “risks of corruption offenses” and the ground for massive denials in obtaining the card, because following this logic, the State Migration Service (SMS) has to request the Ministry of Internal Affairs and the Security Service of Ukraine to verify the identity of the person claiming the status of internally displaced person, which endangers the life, health and property of such persons, because the requests are forwarded to the relevant authorities in the territory where migrants came from and, therefore, could fall into the hands of terrorists.
According to this law, SMS had to take care of internally displaced persons. This reflects the philosophy of the law: it is more important for the state to keep records and monitor the migration of internally displaced people than to assist them. If the main purpose of the law is to help people who are in difficult social situation due to migration, then the Ministry of Social Policy should take care of them.
The drawbacks of the law and threats to human rights and fundamental freedoms go beyond the above mentioned arguments. In general, the adopted law http://www.khpg.org/index.php?id=1403431328 did not attain the aim of providing effective assistance to internally displaced persons.
Human rights organizations, IDP organizations and volunteers addressed the President to veto this law. Taking public opinion into consideration, the President vetoed the law on July 2, 2014. It should be mentioned that it was the first veto of Petro Poroshenko as the president.
As a result, a work group was formed in the Administration of the President of Ukraine to develop a new draft law, which group was composed of representatives of NGOs, as well as consultants from UNHCR and OSCE. The public in cooperation with authorities and international organizations produced a new draft within July that attained certain compromise between expectations of civil society and the abilities of the State.
After this the Administration of the President provoked a delay in submission of this draft to the Parliament where it was examined too long by various bodies. During this time another draft law was presented by Yurii Miroshnychenko, a former member of the Party of Regions, representative of V. Yanukovych in the Parliament. His draft had similar drawbacks with the law adopted by the VH on June 19; although it contained a number of positive provisions, but also had a terminology that did not meet international standards. The rules provide 14 days for presentation of an alternative draft law. Since the Administration of the President had no time to prepare a draft law to represent it to the Parliament on behalf of the President, this draft upon agreement with the development team was presented by a group of people’s deputies under No. 4490a-1. It was supported by the Parliament Committee for Human Rights and put on the agenda of September 16, 2014. The main speaker was Valerii Patskan.
Because of the passion provoked by the law “On Lustration”, the draft law on IDPs was not discussed on September 16. NGOs have organized a powerful advocacy campaign to support the draft. The situation was complicated by the fact that parliamentary elections were announced, the election campaign began and the Parliament decided to work only 2 days during the campaign, on September 16 and October 14.
Public organizations submitted petitions to Turchynov, the Head of the Verkhovna Rada, so that he would include the draft law in the agenda for a special session on October 7 and another session on October 14. International organizations also urged the Parliament to adopt this draft law immediately.
Markus Jaeger, Deputy Special Representative of the Secretary General of the Council of Europe, underlined the necessity to adopt the draft No. 4490а-1 as soon as possible. The representatives of other international organizations made similar statements. It was stressed that the law would assist in accumulating international assistance for Ukraine to resolve IDPs problems.
Jose Manuel Barroso, President of the European Commission, addressed the President of Ukraine Petro Poroshenko with a letter concerning necessity of the adoption of the Law on Rights and Freedoms of IDPs.
The opinion of the Government and people’s deputies concerning delay in legislative regulation of the rights of IDPs surprised representatives of international organizations and NGOs. Usually, the states faced with the problem of internal displacement try to declare the problem as loud as possible and even to exaggerate the number of IDPs, to adopt quickly a law and other regulations in order to get the assistance from international organizations as quick as possible. In Ukraine the situation is different: the authorities did not pay much attention to the issue, laws and regulations were not adopted, and the number of IDPs was downgraded.
Finally, due to the efforts of many organizations, public activists and certain people’s deputies, the Verkhovna Rada adopted the Law “On Provision of Rights and Freedoms of Internally Displaced Persons” at an extraordinary session, on the last working day of the Parliament, on October 20, 2014.
The Law adopted by the Verkhovna Rada was signed by the President only in a month, on November 19, 2014 and came into effect after its publication on November 22. The President failed to observe the term of 15 days provided by the Constitution, although he himself stressed the draft as a priority. The delay in signing of the law was caused by reluctance of the Ministry of Finance and the Ministry of Social Policy to execute the law as amended.
According to this law, registration shall be conducted through an application to the department of the Local State Administration of Social Security. At the same day a migrant shall be issued a certificate of internally displaced person. Unlike other draft laws, migrants do not have to prove anything (neither the specific reasons for the forced movement, nor that he/she is not a terrorist and criminal). A certificate shall be issued automatically when an identity verification document is presented. Along with an application, a declaration is filled in (on the model of security declarations at the entrance to some other country or obtaining visas) in which the migrant declares that he/she did not commit crimes, and describes his/her particular needs in any form. A certificate shall be valid for 6 months; its term may be extended at the request of the migrant.
Then the new residence registration is entered into the certificate in the State Migration Service. In this case, previous residence registration remains in the passport. Thus, migrants from Crimea and Eastern Ukraine will not be persecuted because of new registration in case of visiting the territories occupied and controlled by terrorists. This is especially important for migrants from Crimea who visit their small homeland.
After receiving this certificate, the migrant shall have the same rights as other citizens have. For the purposes of ensuring the rights of migrants to employment, pensions, compulsory state social insurance, social services, education and business, the law provides simplified procedures for benefits and pensions, social assistance, unemployment registration, employment, continuing education and registration or re-registration of companies, legal entities and individuals. The law also provides for target oriented assistance programs for migrants adopted by the Cabinet of Ministers of Ukraine.
The law contains provisions concerning other rights and interests of migrants, in particular, the provision of free temporary accommodation (subject to payment of utility costs) within six months of the date of registration of the internally displaced person; this term may be extended for large families, the disabled and the elderly; assistance in transportation of movable property; assistance in return to the previous domicile; free travel to return to their abandoned domicile by all kinds of public transport if the circumstances which caused such move stopped existing; right to receive loans for the purchase of land, acquisition and construction of housing; right to receive humanitarian and charitable assistance, etc.
Unlike the previous drafts, the adopted law is not mere a declaration. It provides for funding of migrants from special fund, and opened the way for international and domestic charitable and humanitarian assistance.
At the same time, the Law “On Provision of Rights and Freedoms of Internally Displaced Persons” still has a number of drawbacks. It is a compromise between expectations of civil society and government request. The Law does not cover the rights of foreign citizens and stateless persons, registration and delivery of social services relating to the registration of residence, which creates a number of serious inconveniences for IDPs and even restricts their rights because of imperfect administrative practice. Some provisions of the law written in the summer cannot be performed due to dynamic situation in the ATO area. For example, the provision on termination of employment by providing “notarized written statement on termination of employment by the employee with confirmation that this statement is sent by the said citizen to the employer by registered mail” is not applied because Ukrposhta ceased operating in the areas controlled by separatists.
Even before adoption of the Law on October 1, 2014 two CMU decrees for IDPs had been adopted: the Decree of CMU No. 505 “On Monthly Targeted Assistance to Persons who Move from Temporarily Occupied Territory of Ukraine and Districts of the Antiterrorist Operation to Cover Living Expenses, including Housing and Facilities” and the Decree of CMU No. 509 “On Account of Persons who Move from Temporarily Occupied Territories of Ukraine and Districts of the Antiterrorist Operation”.
According to the Decree No. 505 the Government allocated USD 510 million to the Ministry of Social Policy to provide monthly targeted assistance to IDPs. Financial aid is intended for a family and paid to one of its members, subject to a written agreement of optional form on cash benefits to this person from other family members in the following amounts: for disabled persons (pensioners, children, other disabled persons) — UAH 884 per person (family member); for persons with normal physical opportunities — UAH 442 per person (family member). However, a general amount of assistance for one family shall not exceed UAH 2,400. This provision resulted in discrimination of large families.
Targeted assistance to IDPs in the said amount certainly makes life of IDPs easier, but does not solve most problems, including the problem of housing. Housing rent in the cities where you can find a job is much more expensive.
According to the Decree No. 509 registration procedure is not clearly determined. The concept of “internally displaced persons” is undefined. In practice, IDPs faced many challenges during registration, as indicated by human rights organizations that provide legal assistance to IDPs:
1. Massive denials for IDPs due to improper indication of the territory of internal displacement. Migrants from certain areas of the antiterrorist operation (ATO), “settlements controlled by the Ukrainian government” (e.g. Debaltsevo, Popasna, Avdiyivka, Kurakhovo etc.) are denied a registration. This is despite the fact that in these and other towns, houses and infrastructure were destroyed due to extensive shelling.
2. Refusal of registration of internally displaced persons who do not have in the passport of the citizen of Ukraine the mark that at the time their registered place of residence is in the areas of ATO.
3. Requirements to give additional documents not provided by the Decrees of CMU No. 505 and No. 509, such as certificates of PVCs, confirming the residence, lease contract etc.
4. Additional obstacles in receiving targeted assistance. People are queuing to the Departments of Social Services waiting for cards indicating dates of registration. In December 2014, such cards were issued in the Regions of Kharkiv and Donetsk for March 2015.
5. In some Departments of Social Services persons who are married, but moved without family are denied in registration until the other spouse moves in, arguing that only a family is eligible to receive support.
6. The problem of determining the appropriate department of labor and social services authorized to keep records of internally displaced persons and provide targeted assistance to migrants.
7. Schedules of departments of social services are not unified, and it is almost impossible to learn in advance working hours of these departments, because this information is usually not available on the web-sites of local administrations. This causes a lot of inconvenience for migrants, especially in rural areas, when people have to travel tens of kilometers to the district center town to find out the information about procedure for targeted assistance.
After adoption of the Law the Government had to develop regulations within three months and to bring its regulations on IDPs in compliance with the law, but by the end of the year no document was issued.
On November 7, the Government adopted Decree No. 595 “Certain Issues of Financing of Budget Institutions, Social Benefits and Financial Support for Some Enterprises and Organizations of Donetsk and Luhansk Regions”. According to this Decree, benefits for persons who move from the temporarily occupied territory of Ukraine and districts of the antiterrorist operation, acceptance of applications for the transfer of pension cases, pensions, payment of funeral benefits, short-received pensions from persons whose place of residence is registered in the districts of antiterrorist operations shall be paid according to place of residence of such persons according to the procedure approved by the Decree of the Cabinet of Ministers of Ukraine dated October 01, 2014 No. 509, as evidenced by a certificate a copy of which is retained by the Pension Fund of Ukraine. This Decree complicates lives of IDPs who cannot receive pensions and other payments for months due to delay in registration of IDPs.
Attention should also be drawn to the discrimination of IDPs from Crimea and the city of Sevastopol due to the Decree No. 699, according to which Crimeans are recognized as non-residents and are deprived of possibility to use banking services on equal basis with citizens of Ukraine. This Decree is the result of the Law “On Creation of a Free Economic Zone “Crimea” and the Specific Features of Economic Activity in the Temporarily Occupied Territory of Ukraine” dated August 12, 2014.
But for the solidarity of the Ukrainian society and work of volunteers, the Ukrainian state would have failed to resolve the problem of such massive internal displacement, which would have led to a humanitarian disaster. Volunteerism, solidarity and mutual aid became widespread. According to the Fund “Democratic Initiatives” and KIIS, the army and the migrants received aid from 77% of the population of Ukraine.
After formation of the parliament coalition and appointment of a new Cabinet of Ministers, synergy in cooperation of central governmental bodies, including the Ministry of Social Policy and NGOs in the field of protection of rights of IDPs, is growing. Regular meetings of representatives of NGOs and central governmental bodies take place in the Ministry of Social Policy.
The biggest problems faced by IDPs are as follows:
1. Evacuation from the conflict zone. Lack of transport, including specialized one. Buses come under terrorist shelling; some buses are not allowed to leave the territories controlled by separatists.
2. Lack of capacity for transit temporary settlement. For example, station “Kharkiv” takes 300 people per day. Hotels for transit migrants provide rooms only for women with children under 14, 40–50 persons are accommodated in hostels at the expenses of volunteers, and other people are accommodated in luxury waiting rooms at the station.
3. Psychological injuries. Internally Displaced Persons are under stress due to shelling, destruction of houses, threatens to life and health, death of relatives.
4. Housing. Internally Displaced Persons are accommodated in a private sector. Most of them are invited by relatives, friends and volunteers. A great number of migrants stayed in the areas of close settlement, especially in summer sanatoriums not suitable for living in winter.
5. Employment. Many people cannot get an official job without documents.
6. Repayment of pensions and social benefits and financial aid from the state. Sometimes the lines to be registered in eastern Ukraine are stretching for several months. People do not have money and can only rely on charity and humanitarian assistance.
7. Medical assistance. Access of IDPs to free medical services is often associated with registration and registration of residence. There is also a problem of neglecting IDPs in the course of distribution by the state of vital medicines for patients who need them (e.g. hemodialysis).
8. Discrimination and hate language. Internally Displaced Persons are discriminated on the basis of residence. This is due to the drawbacks of the abovementioned regulations and enforcement practices. It often happens that collective guilt principle applies to IDPs; they are accused of collaboration with separatists by both locals and some politicians.
In general it can be concluded that the state does not duly perform its obligations regarding provision of the rights of IDPs, both in law and in practice.
1. For the Verkhovna Rada of Ukraine: To amend the Law “On Provision of the Rights and Freedoms of Internally Displaced Persons”. In particular, to clarify the concept of the internally displaced person and extend the list of persons entitled to such legal status by including stateless persons and foreign citizens who are legally entitled to live in Ukraine on an equal basis with the citizens of Ukraine; extension of the law to citizens of Ukraine who lived, but were not registered in the territory of internal displacement; to simplify procedure for accounting IDPs by extending the list of documents that may be filed for registration; to clarify the powers of governmental bodies concerning registration of residence of the internally displaced person. To amend legislative acts as provided for in the transitional provisions.
2. For the Cabinet of Ministers of Ukraine: To amend the Decrees of the CMU No.No. 505, 509 and 595, taking into consideration the proposals of human rights organizations. To remove discriminatory provisions, to remove the factor connecting benefits to registration of IDPs. To bring the Decrees in compliance with the Law “On Provision of Rights and Freedoms of Internally Displaced Persons”.
3. For the National Bank of Ukraine: To cancel Decree No. 699.
4. For the Ministry of Social Policy: To develop clear guidelines for local departments according to the Law, to unify administrative practice and to eliminate the reported violations of the rights of IDPs.
5. For the State Migration Service: To develop simplified procedures for registration of the place of residence/stay and to unify the work of its departments.
6. For other governmental bodies and bodies of local self-government: To develop regulations and procedures on ensuring the rights of IDPs in accordance with their powers and provisions of the Law.
 Prepared by Borys Zakharov, the Ukrainian Helsinki Human Rights Union.