26. OBSERVANCE OF THE FOREIGNERS’ RIGHTS
1. General overview
The human rights’ activists expected that changes for the better would occur over the year 2012, as for the first time in history favorable conditions for the development and implementation of conceptually innovative, more humane model of “foreign nationals – authorities” relationship have been created in Ukraine.
This process was called to life by three factors:
– EURO -2012 championship held in Ukraine;
– final delegating of authority with respect to immigration process control to the State Migration Service of Ukraine, which, despite all the errors committed in the course of its setting up and ensuring its legal support, is essentially more civilized power body than the Ministry of Interior, and, therefore, a body less prone to applying penal measures against the immigrants;
– introduction in late 2011 of cardinal changes into the normative-legislative acts of Ukraine regulating the immigration relations, and, first of all, passing the laws of Ukraine “On Legal Status of Foreigners and Stateless Persons” and “On Refugees and Persons in Need of Additional or Temporary Protection”.
Due to the aforementioned factors the pressure exerted on the immigrants by the law-enforcement bodies in 2012 had to – and, generally, did - decrease substantially, as demonstrated by the results of the analysis of the State Migration Service operation, operation of the Ministry of Interior and the State Border Control Service of Ukraine.
According to the data collected by the aforementioned agencies, for the 9 months of 2012 as compared to the same period of the past year, the number of illegal migrants deported from Ukraine on the initiative of the law-enforcement bodies decreased more than 4 times (in 2011– 10.756 persons, in 2012 – about 2.500 persons), on the border control initiative – almost twice (in 2011 – 1000 persons, in 2012 – 585 persons).
The number of the immigrants brought to administrative liability by the militia for the violation of the regulations of their stay in Ukraine under Article 203 of the Code of Administrative Infringements of Ukraine also decreased significantly, almost 1.5 times– from 40.729 persons in 2011 to 28.868 persons in 2012.
The number of foreigners banned from crossing the state border decreased from 11.817 to 10.054 persons.
Characteristically, this mitigation in law-enforcers’ attitude towards immigrants did not contribute to the aggravation of migration, criminal, or sanitary/epidemiological situation in Ukraine, i.e. to the increase in threats which are permanently used by the power bodies to intimidate the citizens and justify the need to use drastic and cardinal measures against immigrants.
While the number of the foreigners who visited Ukraine over the 9 months of 2012 has increased by over one million persons (6%) as compared to the same period in the last year (2012 – 19.913.121, 2011 – 18.828.993 foreigners )
– the number of crimes perpetrated by foreigners decreased by 4%, from 2.989 cases in 2011 to 2.874 cases in 2012;
– the average number of inmates in the detention centers for the illegal immigrants under the State Migration Service of Ukraine, did not exceed 26%, those held in the centers of border control agencies constituted 30-45% of the total capacity depending on the region;
– only 99 illegal immigrants, i.e. twice less than over the respective period in the last year, have been admitted to Ukraine on EU special representatives’ request in compliance with the treaty on readmission signed with the European community– 179 persons.
Obviously these statistical data by no means should be regarded as the consequence of unsatisfactory operation of the State Migration Service of Ukraine. First of all, they reflect more serious attitude of its leaders with regards to the immigrants’ rights, and, possibly, the rejection of artificially increased figures, related to counteracting illegal migration, typical of militia operation, when the “efficiency” of work was achieved by using flaws and gaps in the immigration law to present foreigners as criminals, deprive them of the right to effective appeal against the militia actions, faking the documents etc. Is the current liberalization a sign of the intent to build a conceptually innovative and efficient model of “foreign nationals – state” relationship, or just a temporary step aimed at beautifying Ukrainian image for EURO-2012? The priorities of activities chosen by the State Migration Service of Ukraine and the results of its operation in 2013 will provide the answer to this question.
2.EURO-2012
The steadfast attention of the international community to the foreign fans’ reception in Ukraine at the time of the European football championship, inevitably had to – and did – affect the general attitude of the law-enforcement bodies to the foreigners– for the time of the championship militia had to mitigate their traditional severe methods of dealing with immigrants and temporarily suspend active “pressing” of foreign nationals.
One can argue that due to these modifications in the law-enforcement bodies’ operation the numerous pessimistic forecasts and media warnings of the type “Ukrainian militia poses a threat for the foreign nationals” never came true.
The monitoring revealed no massive violations of the rights of foreigners at the time of EURO-2012, which brings us to the conclusion that the Ministry of Interior succeeded in combining the large-scale operations aimed at safeguarding public order with the due observance of the rights of foreigners. National law-enforcers proved that they can be not only tolerant, polite and even courteous to the foreign guests, but also that they know how to avoid potential conflicts, abstain from bribe-taking and corruption or made-up foreigners’ accusations of non-committed crimes in order to hold them administratively liable for the said transgressions.
The Ukrainian militia demonstrated that with the good will of the Ministry of Interior high officials, the law-enforcement body can within the short term dramatically change their operatives’ attitude to the foreigners and transform the militia from “immigrants’ heads’ hunters” to “the state representatives ready to help”.
Numerous notifications published in press-media conveying the message that the “Ukrainian militia was strictly forbidden to stop foreigners for the time of EURO-2012, while the Ukrainian citizens did not enjoy the same privilege” testify to the fact that law-enforcement bodies were concerned only about favorably impressing the foreign guests and creating the positive image.
“Ukrainian militiamen were strictly forbidden to stop foreigners for the time of EURO-2012,”[2]
“Amnesty International informs that the Ukrainian militia received an order to let foreigners be for the time of EURO-2012; specifically, Max Tucker’s article posted on the site of Amnesty International addresses the issue[3].
Tucker reminds about the AI warning of the threat posed by the Ukrainian militia, issued prior to the tournament.” We detailed numerous cases where police electrocuted, suffocated or savagely beat their victims in order to extort money, extract a confession, or simply because of the detainee’s ethnicity or sexual orientation,”- he wrote.
"In the event, Euro 2012 fans were spared such treatment. So how did the Ukrainian authorities manage to bring this brutal, ill-equipped and underfunded force into line to effectively police a major sporting event? The answer, of course, is they didn’t.According to militia sources, the officers received an order to avoid physical contacts with the European fans, i.e.”Don’t touch them” – a human rights protection organization informs.
"The foreign fans were largely ignored by militia at the time of the tournament. Ukrainians reporting public order offences (urinating, vandalism, verbal abuse) were asked “who is doing it, Ukrainians or foreigners?” If the answer was “foreigners” the police refused to turn up. Fans brawling outside the Olympic stadium in Kyiv were surrounded by police, but not dispersed – the officers simply waited for the fight to end.” –writes Tucker.
The author of the article notes that if a severe instruction from above sufficed to keep militia on a leash far from foreign fans, much more drastic measures would be needed to free Ukrainians from abuse of those who should protect them.
Let’s remind that, according to the official data Ukraine was visited by 1.8 million of foreign guests. With so many tourists, especially taken into account the passionate nature of football fans and their love of drinking, one could have feared an outburst in the violations of public law and order. The Ukrainian law-enforcement bodies, however, have compiled only 15 administrative protocols against the foreign fans for the whole duration of the championship”.
Obviously, no orders or instructions are capable of changing the militiamen mentality right away; therefore, the cases of traditional “non-European” treatment of the foreigners by Ukrainian militia were registered in various regions of Ukraine – unexplained stopping of people in public places, unjustified ID checks, extortion of money under the threat of detention. These cases were numerous.[4].
3. The State Migration Service of Ukraine
The State Migration Service of Ukraine in 2012 failed to meet the expectations, first of all, due to the complicated and unjustifiably lengthy process of its setting up in various regions of the country. The territorial branches of the service in charge of citizenship, immigration and registration of the physical persons under the Ministry of Interior of Ukraine, which preceded the State Migration Service of Ukraine in dealing with foreign nationals, were finally liquidated in October, and for the whole year of 2012 three agencies operated in Ukraine simultaneously, i.e. the State Migration Service, migration control militia and the service for citizenship, immigration and registration of the physical persons. All of them performed similar functions and tasks, which led to contradictions, conflicts, confusion and even certain destabilization of their activity.
The State Migration Service of Ukraine failed to enter an active phase of operation, so that many foreign nationals, physical and legal entities inviting them to Ukraine stated that the red-tape in the state migration bodies’ formation led to numerous problems and misunderstandings, which made positive developments and conceptual innovations null and void. The foreign nationals mostly suffered from bureaucratic red-tape while applying for various types of documents to the State Migration Service of Ukraine, i.e. obtaining citizenship, immigration permits and temporary residential permits etc.
Apparently, no new power institution can ensure efficient and full-fledge operation at once, especially in the area of the immigration processes management due to the need of adjusting it with current legislative and regulatory basis, well-grounded choice of highly qualified staff, coping with material and technical support issues etc. However, the unprecedentedly lengthy procedure of delegating respective functions and competences to the State Migration Service of Ukraine was caused, first of all, by the fact that the appearance of a “new player” in the immigration area met with the covert but substantial opposition on behalf of the managers of the structures vested with authority to deal with foreigners and get the funding needed for the purpose.
4. Obtaining the refugee status
Statistical data offered by the State Migration Service of Ukraine do not prove that the coming of the Law of Ukraine “On Refugees and Persons in Need of Additional or Temporary Protection” in force facilitated the procedure for the immigrants seeking protection in Ukraine.
While the number of the foreigners who filed petitions with SMS has increased almost twice (for 9 months of 2012 – 1.558 persons, while for the similar period of 2011 – 890 persons), the number of foreigners who actually received protection in Ukraine significantly diminished -– for 9 months of 2012 only 48 immigrants got the refugee status, status, 50 – the status of persons in need of additional protection, while for the same period last year the refugee status was granted to 133 people.
On the other hand, this situation may be caused by SMS un-readiness to provide full-scope and timely consideration of the petitions of immigrants seeking protection in Ukraine.
Analyzing the specific characteristics of the relations between the law-enforcement bodies and immigrants in 2012 we cannot omit a typical case, which become widely known not only in Ukraine, but also in the whole world – the kidnapping of the citizen of Russian Federation opposition activist L.Razvozhayev, who was seeking the refugee status in Ukraine, by the Russian security forces on 19.10.2012.
“KODNAPPING OF RUSSIAN OPPOSITION ACTIVIST: UKRAINE IS DEPENDENT”[5]
“Razvozhayev approached the Office of the UNHCR. From there he was directed to a HIAS partner company
“On Friday Razvozhayev was registered by this organization in Kyiv so that he could be given the needed help” – informed O.Makovska, PR consultant of UNHCR for Belarus, Moldova and Ukraine.
"He left the office at lunch time and never came back, leaving his belongings in the office. The lawyers were concerned and informed the Office of the UNHCR, then tried to get in touch [with their client], but there was no connection; so they reported missing person to militia” – told Makovska.
The organization staff heard screams from the streets, but on stepping out, they only noticed a black car without license plate. Razvozhayev was nowhere to be found.
On Sunday it became known that he was back to Moscow. At the closed hearing in Basmanny court he was convicted to two months’ incarceration as preventive measure.
When exiting the court building and on the way to the pretrial detention center the opposition activist managed to cry out to the reporters “Tell them I’ve been tortured and threatened with death. They tortured me for two days. I was kidnapped in Ukraine”.
The Ministry of Interior’s response to the event was unexpected – in fact the militia authorities recognized the right of foreign special services to kidnap people from the territory of Ukraine.
“Pre-investigation verification has been conducted by the MIU between October 19 and 29; I can foresee, however, that no criminal proceedings on the person’s kidnapping will be instigated. Probably the petition on opening criminal case will be rejected…had it been the criminals kidnapping a person, than the criminal proceedings would have been instigated beyond any doubt. But as the kidnapping was committed by the law-enforcers from another country, I don’t think they hadn’t shred their plans in advance” – said MIU speaker V.Polsihchuk. – It was not a case of criminals or terrorists kidnapping a person, but an operation of the law-enforcers from another country in the Ukrainian territory”. [6]
Apparently such position of the law-enforcers caused uproar and protest among public at large.
“The official reaction is identical to the response to a Palestinian engineer’s kidnapped from Ukraine - then the crime was never investigated. Earlier there was another case concerning the disappearance of asylum seeker from Uzbekistan Khamidullo Turgunov. Only in the second half of 2012 the notifications of illegal extradition from Ukrainian territory of asylum seekers from Russia and Uzbekistan were made public.
Looks like Ukraine is not only incapable of guaranteeing foreign nationals’ safety during their stay in the country, but also is an active accomplice to their rights’ violations.
We are upset with lack of adequate reaction of Ukrainian power structures to the incident. The scarce commentary offered by the several public agencies representatives (from the MFA, MI and DBC) and the silence of all the rest demonstrate either the bewilderment or infinite cynicism. In any case the state bureaucrats obviously do not consider the gross violation of human rights and freedoms a matter deserving their serious attention” – that’s how the actions of power and the law-enforcers were characterized by “Center Social Action” NGO.[7]
It can be added that open and even demonstrative inertia of the law-enforcers in investigating the facts of special services’ kidnapping of foreign nationals from Ukrainian territory shows that the power bodies in their attitude towards foreigners are guided not by the norms of national and international law, but, first of all, by political interests and relations which exist with the country of the immigrant’s citizenship or origin.
5. Normative and legal acts
In 2012 the legal regulation of the order of the immigrants’ entry and stay in the territory of Ukraine involved no collisions or drastic changes in the immigration policy, characteristic of the last year. The novelties referred predominantly to adjusting the current normative and legal acts to the new version of the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons”, which came in force in December 2011.
The Ministry of Interior of Ukraine updated the normative and legal departmental documents to a certain extent, by devising a number of orders and registering them with the Ministry of Justice, specifically
– the MIU Order №363 of 25.04.2012 “On approving the procedure for the consideration of petitions from the foreigners and stateless persons concerning the extending the term of their stay in Ukrainian territory”;
– joint MIU, ADBC and SS of Ukraine Order №353/271/150 of 23.04.2012 “ On approving the instruction on forced return and forced removal of foreigners and stateless persons from Ukraine”
– joint MIU, ADBC and MOH of Ukraine Order №336/268/254 of 17.04.2012
“On providing common and medical services to the foreigners and stateless persons held in the centers of temporary stay for the foreigners and stateless persons staying in Ukraine illegally and in the centers of temporary detention and special facilities”;
– the MIU Order №321 of 13.04.2012 “On approving Instruction for registration of the place of residence and whereabouts of physical persons in Ukraine by the State Migration Service of Ukraine”;
– the MIU Order№142 of 20.02.2012 “On approving the By-laws for the department of migration control militia under the MIU”.
The MIU Order №84 of 02.02.2012, registered with Ministry of Justice “On approving the standards for administrative services granted by the the State Migration Service of Ukraine departments” deserves special attention. It stipulated a number of standards for administrative services to be offered to the foreigners and stateless persons, including
– Standard for administrative service of issuing the immigration permit to the foreigners and stateless persons;
– Standard for administrative service of issuing a permit for permanent or temporary residence;
– Standard for administrative service of issuing an invitation to the physical persons without visa documents needed by foreigners and stateless persons to enter Ukraine;
– Standard for administrative service of issuing an invitation to the legal entities without visa documents needed by foreigners and stateless persons to enter Ukraine;
– Standard for administrative service of extending the term of stay in the territory of Ukraine for the foreigners and stateless persons .
The devising of these Standards with specific description of SMS staff duties and regulation of the issuance of various documents to the immigrants ensures certain transparency of the documents’ issuance procedure, facilitates the control over the officials’ actions and the appeal procedure if these actions are illegal.
However, the MIU active involvement in bringing the normative and legal documents into compliance with the legislative novelties lasted only till mid-2012. Further on this activity was suspended, and probably that was the main cause of legal collisions and obvious non-compliance of certain MIU Orders with more humane essence of the Ukrainian laws.
The “Instruction on procedure for MI departments of Ukraine for banning foreigners and stateless persons from entering Ukraine”, approved by MIU order №410 of 07.07.2011 and registered by the Ministry of Justice of Ukraine as entry №934/19672 on 29.07.2011 is an example of such order. This document is based on the Law of Ukraine “On Legal Status of Foreigners and Stateless Persons” (version of 05.04.2011), which is no longer in force, but, according to the Supreme Rada data, has never been invalidated by the MIU, and, therefore, technically remains in force, (http://zakon1.rada.gov.ua/laws/show/z0934-11), despite the openly repressive nature of its provisions, i.e. possibility to ban a foreigner from entering Ukraine for 10 years, lack of mechanism which would allow foreigners to appeal the decision etc.
The aforementioned orders were prepared by the MIU in compliance with the respective laws and resolutions by the CMU, that’s why they contain the same faults, mainly, the right of immigration officials to resolve the matters at their own discretion, based on subjective judgment with respect to an immigrant, his/her actions; to make decisions which restrict the foreigners’ rights and freedoms. Whether deliberately, or by simple omission, the law-makers contributed to the spreading of corruption among SMS officials, by failing to specify in detail the principles of use of restrictive and coercive measures against the immigrants (rejection of extending the term of stay or issuing the temporary residence permit, banning entry to Ukraine, forced return or removal of an immigrant etc.) The vague language of the normative and legal acts restricting the immigrants’ rights as well as the existence of the norm under which the foreigners’ rights can be restricted and coercive methods used against them not on account of the committed felony, but on the basis of assumption of alleged attempt to commit a transgression so far remain the major flaws of the national immigration law.
6. Conclusions and recommendations
In 2012 certain positive tendencies in the law-enforcement bodies’ treatment of the foreigners staying in Ukraine were registered – traditional and infamous ( from human rights standpoint) rigid course of action envisaging strict control and target use of force and penal practices with respect to foreigners has been replaced by somewhat milder and more liberal one. However, it is too early to pass any judgment on cardinal changes in the immigration policies of Ukraine, as the positive steps might have been temporary and brought to life mainly by EURO-2012 held in Ukraine, when a need to embellish the image of Ukraine in the eyes of European community became vital.
That is why it is better to abstain from assessing the operation of the State Migration Service of Ukraine as the instrument of implementation of the state immigration policy, as the priorities of the said operation remain unclear to public and its main focus in the future – humanitarian-social or penalizing-coercive is hard to predict. The State Migration Service of Ukraine, despite its significant potential, failed to launch serious operation in 2012, concentrating mainly on resolving its internal organizational issues.
Meanwhile, the role of the State Migration Service of Ukraine as seen by the authorities, and, in many cases, the stand of its leaders will define the observance of the immigrants’ rights in Ukraine, as, even the amended immigration law leaves room for the abuse of authority by SMS officials and restriction of immigrants’ rights.
It must also be said that as long as the State Migration Service of Ukraine remains under the auspices of the MIU, it inherits all the negative attributes of the former migration agencies of militia – non-transparent modes of receiving profit from the commercial entities of MIU, high corruption rate among employees, formal and bureaucratic treatment of the immigrants’ problems, safeguarding of corporate interests instead of the rights and lawful interests of people.
[1] Prepared by V.Batchayev, AUMOHR
[2] http://rbc.ua/
[3] http://livewire.amnesty.org/
[4] See. http://pravda.com.ua/, http://unian.net/, http://gazeta.ua/, http://ua.korrespondent.net/, http://5.ua/newsline/184/0/93581/ and other examples
[5] http://pravda.com.ua/articles/2012/10/23/6975186/
[6] http://unn.com.ua
[7] http://noborders.org.ua/