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Human Rights in Ukraine - 2005: X. The Right to freedom of movement & freedom to choose ones place of residence

27.06.2006   

Overall state protection 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. The situation in 2005 did not significantly change, although there was some progress in guaranteeing freedom to choose one’s place of residence and in safeguarding the rights of the homeless.

The Ministry of Justice of Ukraine drew up amendments to the Law of Ukraine “On freedom of movement and freedom to choose one’s place of residence” and on 19 September 2005 submitted these amendments to the Cabinet of Ministers of Ukraine to have them tabled as a draft law in parliament in the form of a legislative initiative. However the given draft law has still to be registered in the Verkhovna Rada, and its content is unknown.

1.  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).

Ukrainian legislation allows for the following restrictions on freedom of movement:

With regard to movement within Ukraine’s borders:

1) On areas where a state of emergency has been introduced,  restrictions on freedom of movement may be imposed on both citizens of Ukraine and others.

2) In cases where individuals are made to give a written undertaking not to leave the place as a preventive .measure, their movement will be restricted within the confines of a certain administrative-territorial area.

3) Where administrative surveillance is applied in the case of individuals released from places of deprivation of liberty, their freedom of movement may be restricted by court order.

4) In cases where it is necessary to safeguard national security, to protect health or public order, to defend the rights and legitimate interests of citizens or other individuals, limitations may be imposed on foreign nationals or stateless individuals in terms of the right to choose their place of residence or their freedom of movement.

5) Limitations on freedom of movement are also imposed in all cases of people being transit on Ukrainian territory.

6)  in other cases envisaged by the law.

  An effective hindrance to free movement is the requirement of the Ukrainian Railways, set down in accordance with a Resolution of the Cabinet of Ministers[1] that travel documents (tickets) for rail transport be issued solely on the basis of documents providing a person’s identification. The tickets give the name and surname 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 by 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.

  Moreover, we know of cases where law enforcement agencies have used information collected about the movements of individuals by train although this contravenes Ukrainian legislation. Ukrainian Railways therefore often refuses to provide the police with this information.  Handing out such information makes it possible for the law enforcement agencies to exercise uncontrolled surveillance over an individual which can be a violation of the latter’s right to freedom of movement together with the right to privacy. In fact such information should only be made available to law enforcement agencies on the basis of a court order and regarding a specific individual,  and with mandatory notification of the person in question so that he or she has the right to appeal such actions of the law enforcement agencies in court.

On travel from or to Ukraine

Ukrainian citizens may be temporarily stopped from leaving Ukraine in the following cases:

1)  the person is in possession of information which constitutes a state secret – until the end of the time period established by current legislation on state secrets;

2) there are unregulated alimony payments, contractual or other commitments which have not been honoured – until the commitments are met, or the dispute has been settled with the consent of the parties in cases foreseen by legislation, or if security has been provided as guarantee of the commitments if not otherwise stipulated by Ukraine’s international agreements;

3) criminal proceedings have been initiated against an individual – until the end of the court proceedings;

4) a person has been convicted of a crime – until the sentence has been served, or the punishment has been waived;

5) a person is failing to fulfil commitments imposed by a court ruling – under such time as these have been fulfilled; 

6) a person has knowingly provided untruthful information about him- or herself – until the reasons and the consequences of giving this untruthful information are ascertained;

7) a person is liable for military service – until the question of a postponement has been resolved;

8) a civil suit has been lodged against the individual – until proceedings into the case are concluded;

 9) a person has been designated by the court to be a particularly dangerous repeat offender and is under administrative surveillance by the police – until the criminal record  has been quashed (cancelled) or until the surveillance has been terminated;

10) in other cases envisaged by law.

Something of an obstacle for travelling abroad remains the existence of a separate passport[2] 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.

For example law enforcement agencies previously demanded that information be provided confirming the lack of a criminal record. Such documents were demanded in order to obtain a passport for travel abroad by employees of the departments of the Service for citizenship, immigration and registration of individuals. Without this document a passport was not issued, and therefore people began taking such cases to court, upholding their rights guaranteed by Articles 24 and 33 of the Constitution of Ukraine.

On 11 March 2004 the Appeal Court in Kyiv considered an appeal brought by Y. P. Androsenko against the ruling of the Darnytsky District Court in Kyiv on a claim lodged against the unlawful actions and inaction of officials from the department on issues on citizenship and the registration of individuals of the Darnytsa District in Kyiv.  The latter had demanded that in order to obtain a passport for travel abroad a “document on criminal records” be provided, whereas this was not on the list of documents approved by the Cabinet of Ministers of Ukraine which are needed when applying for this passport. The ruling of the Appeal Court in Kyiv reversed the ruling of the Darnytsky District Court in Kyiv from 10 December 2003, finding the actions of the officials from the department on issues on citizenship and the registration of individuals of the Darnytsa District in Kyiv illegal, and ordered them to issue Y. P. Androsenko a passport of a Ukrainian citizen for travel abroad. The Appeal Court thus acknowledged that for the issue of a passport for foreign travel only those documents stipulated in current legislation are required.

However problems have remained with the issuing of a sailor’s identification document which substitutes a passport for travelling abroad 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 a request for information to the relevant regional departments of the Security Service of Ukraine (SBU) regarding access, access to state secrets, as well as whether any criminal investigations have been launched against an individual who has applied for this identification document. Therefore effectively the SBU 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.[3]

Ukrainian citizens may not on any grounds whatsoever be restricted in the right to enter Ukraine.

In general the given restrictions comply with international standards. Questions arise only with regard to limitations on freedom of movement in connection with access to state secrets. The present provisions are an overt relic from Soviet days which have long lost their meaning since the end of the Cold War in an age of trans-border information technology, for example, the Internet, email, etc.

  The Police still often infringe the right to free movement within the country. For example, it is usual practice for officers on patrol duty when checking citizens’ documents without any grounds, to ask about the purpose of their visit to that city if the person is not registered in that area, and to even detain a person. One sometimes observes even more flagrant violations.

  For example, on 9 April 2005 at 5.10 in the morning around 200 police officers arrived on Dumska Square in Odessa where a tent city had been erected by supporters of ex-Mayor of Odessa, Bodelan[4]  and surrounded the tents. After this a group of people who, according to the tent city inhabitants, belonged to an organization supporting President Yushchenko and Mayor Hurvits, proceeded to destroy the tent city. Many of those taking part in the protest action were detained by the police. Those who lived outside Odessa were forced by the police officers to leave the city.

  One should add that with the Law of Ukraine from 5 October 2005 Ukraine ratified the European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe, concluded on 13 December 1957 in Paris.  This Agreement foresees a simplified system of travel to member-states if such a trip does not exceed three months.

Movement of population of Ukraine from January – December 2005[5]

1.  Absolute figures for the number of arrivals, departures, and migration growth from domestic and external migration

(individuals)

 

Within Ukraine

External migration

Number of arrivals

Number of departures

growth

Number of arrivals

Number of departures

growth

Ukraine

723642

723642

х

39580

34997

4583

The Autonomous Republic of the Crimea

32831

33396

-565

6381

3043

3338

Vinnytsa region

28858

31772

-2914

981

850

131

Volyn region

18237

18897

-660

469

901

-432

Dnipropetrovsk region

54493

52246

2247

2023

2188

-165

Donetsk region

61411

62742

-1331

4834

4702

132

Zhytomyr region

22078

25057

-2979

601

797

-196

Transcarpathian region

9080

10608

-1528

222

1027

-805

Zaporizhya region

25692

26865

-1173

1669

1697

-28

Ivano-Frankivsk region

15706

16376

-670

378

557

-179

Kyiv region

28569

28132

437

916

503

413

Kirovohrad region

12744

18112

-5368

330

483

-153

Luhansk region

35537

39271

-3734

1933

2910

-977

Lviv region

32650

33966

-1316

537

944

-407

Mykolaiv region

19191

19896

-705

1022

848

174

Odessa region

35060

34466

594

3704

1601

2103

Poltava region

29760

29676

84

726

803

-77

Rivne region

20362

21869

-1507

298

1069

-771

Sumy region

20134

22738

-2604

596

712

-116

Ternopil region

13843

15264

-1421

287

546

-259

Kharkiv region

52186

47817

4369

3050

2260

790

Kherson region

16509

19912

-3403

797

885

-88

Khmelnytsky region

22230

25188

-2958

609

621

-12

Cherkasy region

25857

27076

-1219

880

670

210

Chernivtsi region

11383

11434

-51

497

790

-293

Chernihiv region

18861

21323

-2462

602

796

-194

the city of Kyiv

55129

26400

28729

4050

2139

1911

the city of Sevastopol

5251

3143

2108

1188

655

533

 2.  Frequency of arrivals, departures and migration growth from domestic and external migration

(in thousands of people)

 

Within Ukraine

External migration

Number of arrivals

Number of departures

growth

Number of arrivals

Number of departures

growth

Ukraine

15,4

15,4

х

0,8

0,7

0,1

The Autonomous Republic of the Crimea

16,5

16,8

-0,3

3,2

1,5

1,7

Vinnytsa region

16,9

18,6

-1,7

0,6

0,5

0,1

Volyn region

17,5

18,1

-0,6

0,5

0,9

-0,4

Dnipropetrovsk region

15,7

15,1

0,6

0,6

0,6

-0,0

Donetsk region

13,2

13,5

-0,3

1,0

1,0

0,0

Zhytomyr region

16,5

18,7

-2,2

0,4

0,6

-0,2

Transcarpathian region

7,3

8,5

-1,2

0,2

0,8

-0,6

Zaporizhya region

13,8

14,4

-0,6

0,9

0,9

-0,0

Ivano-Frankivsk region

11,3

11,8

-0,5

0,3

0,4

-0,1

Kyiv region

16,1

15,8

0,3

0,5

0,3

0,2

Kirovohrad region

11,8

16,8

-5,0

0,4

0,5

-0,1

Luhansk region

14,7

16,2

-1,5

0,8

1,2

-0,4

Lviv region

12,6

13,1

-0,5

0,2

0,3

-0,1

Mykolaiv region

15,7

16,2

-0,5

0,8

0,7

0,1

Odessa region

14,5

14,3

0,2

1,6

0,7

0,9

Poltava region

19,0

19,0

0,0

0,5

0,5

-0,0

Rivne region

17,6

18,9

-1,3

0,2

0,9

-0,7

Sumy region

16,3

18,4

-2,1

0,5

0,6

-0,1

Ternopil region

12,4

13,7

-1,3

0,3

0,5

-0,2

Kharkiv region

18,3

16,8

1,5

1,1

0,8

0,3

Kherson region

14,6

17,6

-3,0

0,7

0,8

-0,1

Khmelnytsky region

16,1

18,3

-2,2

0,4

0,4

-0,0

Cherkasy region

19,2

20,1

-0,9

0,7

0,5

0,2

Chernivtsi region

12,5

12,6

-0,1

0,5

0,8

-0,3

Chernihiv region

16,0

18,1

-2,1

0,5

0,7

-0,2

the city of Kyiv

20,6

9,9

10,7

1,5

0,8

0,7

the city of Sevastopol

13,9

8,3

5,6

3,1

1,7

1,4

 

2.   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”][6].

  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 administration 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 expressed in 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”, “The basis of legislation of Ukraine on health care”, “On protection of the population from infectious diseases”, “On employment of the population”, etc are provided. Citizens without a place of residence and registration cannot update documents, find work, or receive medical and social assistance.

Andriy P., 19, brought up in a children’s home, has lived for some years “on the street” in the Shevchenkivsky district of Kyiv in a derelict building (the internal courtyard of the buildings on Ivan Franko Street 5-7). The single-storey building is in a cluttered and unsanitary condition. The place is well-known to the police. Andriy approached an employee of the International Society for Human Rights – Ukrainian Section (ISHR - US) with a request to help him get to a hospital.  The young man had obvious symptoms of being serious ill (he was extremely run down and had a temperature of around 40 degrees Celsius).  Andriy had already by himself twice approached the Kyiv regional clinical hospital.  In the presence of the person from the ISHR USВ and at night he was refused admission on the grounds that the young man needed to apply for medical assistance according to his place of registration in the Makarivsky district of the Kyiv region. It was only after a day and through the ambulance system that Andriy was admitted to a hospital for infectious diseases. He was diagnosed as having typhoid. The member of the ISHR US was asked to buy medicine and auxiliary medical means for Andriy P.[7]

The problem of the Homeless should also be considered in connection with the issue of freedom to choose ones place of residence. 

The Homeless are not only those people who are actually living on the street. This group at risk includes those citizens who do not have registration, but who are at present working and who may be renting accommodation, and also those who don’t have:

a fixed place of residence;

registration;

  identification documents.[8]

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.  Moreover millions of Ukrainian citizens have 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 extra relations 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 carried out by court order and consequently being connected with added loss of time and money.

  For the tenant official relations are undesirable due to the significant increase in rent as a result of the factors listed above.

  In such situation the person lives, according to the letter of the law, illegally. Furthermore the legislators have simply ignored these people, designating 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. For example, the ex-Prime Minister of Ukraine, Yulia Tymoshenko was last year registered in Dnipropetrovsk, although everybody knew that she was permanently resident in Kyiv.

 

THE CHOICE OF A PLACE OF RESIDENCE FOR HOMELESS PEOPLE

It is not possible to calculate the exact number of homeless people in Ukraine. The statistics for special institutions for the Homeless have only been kept for 2006.  One can indirectly determine the minimum number of homeless people by looking at statistics from the Ministry of Internal Affairs on people detained for vagrancy. mr of homeless people in Ukraine.

 

During 2003 23.6 thousand people suspected of vagrancy and begging were held in special institutions of the Ministry of Internal Affairs.  In 2004 the figure was 32.2 thousand, and for the first 6 months of 2005 – 8.7 thousand. On average around 17% of these people were not there for the first time.[9]

In 2005 Parliament finally paid some attention to the problem of homelessness. On 2 June 2005 the Verkhovna Rada of Ukraine adopted Law of Ukraine Act “On basic principles of social protection of homeless citizens and abandoned children”. This law was virtually entirely prepared by a working group created by the Charitable Foundation “The Way home”. The law came into effect on 1 January 2006.

The Law outlines the rights of homeless people, the procedure and system for their registration, a system of measures for preventing abandoned kids and homelessness, as well as for providing social services through specially created centres of social protection.

However the Cabinet of Ministers of Ukraine in violation of Point 3 of the Concluding Provisions of the Law have failed to draw up and pass the normative acts needed to implement the Law., despite the fact that this work was begun by the same working group which worked on the Law itself, from October 2005.

At the same time a draft law from L. Chernovetsky and registered back in 2004 as No. 5357 “On introducing amendments to Article 8 of the Law of Ukraine “On freedom of movement and freedom to choose one’s place of residence” was also intended to resolve this issue. The draft law envisaged amendments to the definitions of the concepts “place of residence” and “registration”, with the addition of a new factor “usual place of residence”. The draft law was accepted by Parliament in its first reading as a basis on 11 January 2005. On 22 September it was sent for a repeat second reading. Then on 15 December 2005 it was passed by Parliament as a whole into law. However the President used his power of veto against the law and sent it back to Parliament with his comments, pointing out that the given law runs counter to the previously passed law on the basic principles of social protection for homeless citizens. Therefore on 22 February 2006 the law was cancelled.

In 2004 the Charitable Foundation “The Way home”. carried out в study on the Homeless as target group in 2204. Research was undertaken in 20 cities of 16 regions of Ukraine.[10]

The results showed that homeless people normally fall into the group of people of working age, with those aged from 30 – 49 comprising 57%, and from 20-29 - 13%.

On the whole the homeless people surveyed had full secondary or professional-technical education (34.8%), while 11.1% had primary and 20% incomplete secondary education. It is noticeable that each fifth person had higher education (10,8% had graduated from a technical or other higher education institute with first or second level accreditation, and 9,5% - institutes with third or fourth level accreditation).

52,1% of those questioned had previously been manual workers, while 6,9% had been employed on the land. Other professions which suggest that a person has higher education were named: engineers (5.1%), economists (2.7%), lecturer, military serviceman (2.2% each),  civil servant (2.1%), doctor (1.7%).  1.8% of those surveyed had their own business. 12.5% did not have a profession. Most were employed in production (45.1%), in agriculture і (13.3%) and in the service industry (12.3%). Their places of employment were state-owned (59.8%), privately or collectively owned (18.7%). 7.1% of the respondents were not working.

Based on the answers of other respondents, one can observe a “peak” in the time when they stopped working: an unrelenting rise can be seen from 1989, reaching a peak from 1998 – 2000. During the following years and up to the present the number of those stopping work has been  fairly stable. It should be noted that the homeless are not dependents, living from the meets of friends and family. 51.3% of those surveyed never approach family or friends for money. Most of the homeless people also answered that they do not ask for any handouts (64.7%) and do not steal  (57.7%). It is difficult to speak about the level of income of homeless people with any real certainty since approximately a third of those surveyed did not answer this question. However, going by the answers that were given and by the results of group discussion, one can assume that the average earnings per day would be around 10 UH (8,5%), and per month – from 100 to 200 UH.  One needs to note however that among the answers given, the maximum amount was around 400 UH per day (1 answer) and 3000 per month (1 answer).

Most of those surveyed would like to change their way of life in the next year or two (66.9%). There were also optimistic figures showing that an extremely small percentage of those homeless were happy with their present position (5.6%). 4.4% do not consider it necessary to change anything in their life. However the number of pessimists was fairly high, with 21.4% considering that it was impossible to change anything.

 

3.   RECOMMENDATIONS

1.   To complete an automated record system of registration of citizens, using the best models applied in other countries and observing international standards for safeguarding human rights.

2.   To 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 on those buying travel documents (tickets) for the railways, with the access to this database not regulated by legislation.

 3.   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.

4.   To conclude the process of reform of legislation as regards registration, taking into account positive international experience and the Law of Ukraine “On freedom of movement and freedom to choose one’s place of residence”

5.   It would be expedient to consider broadening the grounds for registration, and also to review legislation in order to eliminate the situation where exercise of ones rights depends 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.

6.   The procedure for issuing sailors’ identification documents should be improved, taking into account the provisions of the Constitution of Ukraine on freedom of movement and clearly defined grounds for limiting trips abroad.

7.   To abolish the practice of restricting travel abroad for people having access to state secrets

8.   Throughout 2006 to pass all normative acts envisaged by the Law of Ukraine “On the basic principles of social protection for homeless citizens and abandoned children” in order to enable its proper implementation. This particularly concerns certain Provisions “On a centre for registering citizens without a fixed place of residence”, “On night shelters”, “On rehabilitation centres”, as well as a staff timetable and staff instructions for such institutions of social protection. Expenditure for their financing should be added as a separate item in the State Budget.



[1] 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).

[2]  Ukrainians have an internal ‘passport’ – a personal identification document, and – perhaps – a passport for travelling beyond Ukraine (translator’s note)

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

[4]  Ruslan Bodelan left Ukraine soon after the victory of the Orange Revolution and has been living in Russia.  He is wanted for questioning over charges involving abuse of his position  (translator’s note)

[5]  Figures from the State Committee of Statistics of Ukraine. Available at the official site of the Committee: http://ukrstat.gov.ua/operativ/operativ2005/ds/mr/mr_u/arh_mr2005.html.

[6]  There is more about the system of propiska in the 2004 report. This was a permission-based system of registration, which the Constitutional Court in 2001 declared was in contravention of the Constitution of Ukraine (translator’s note)

[7]  Report on the observance of rights of children in Ukraine. International Society for Human Rights. Ukrainian Section.  Kyiv, 2006.  

[8]   How to ensure the electoral rights of homeless citizens of Ukraine (guideline materials). Issue BF, The Way home”.  Odessa 2006, p. 3 Available on the website of the organization:www.homeless.org.ua.

[9]  MIA  Letter № 16/1К-С-409 from 26 September 2005 “On providing information” in response to a formal request for information.

[10] «The Ukrainian Homeless – who are they?». Available on the website: www.homeless.org.ua.

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