Publication

The open appeal concerning the court’s repeal of paragraph 1 of Decree No. 1035 of the Cabinet of Ministers of Ukraine

On June 14, 2017, the Kyiv Administrative Court of Appeal found unlawful and ineffective paragraph 1 of Decree No. 1035 of the Cabinet of Ministers of Ukraine of 16.12.2015 “On limitation of the supply of certain goods (works, services) from the temporarily occupied territory to another territory of Ukraine and/or from another territory of Ukraine to the temporarily occupied territory”.

We recall that the task of the repealed decree was to establish restrictions on business and trade with the occupied Crimean territory. However, the decree of the Government had not allowed citizens to bring their possessions, the majority of personal movable things, even ordinary household items through the checkpoints with Crimea for almost two years.

Decree No. 1035 deprived all Crimeans of the right to evacuate their property from the territory of Crimea. This has affected both IDPs and those who stayed in Crimea. Moreover, thousands of citizens were forced to stay in occupied Crimea because of the inability to move their property to a controlled territory of Ukraine.

By its decision, the Government allowed to transfer of only a limited list of food products and personal belongings, among which there was not enough vital things for life.

For example, it was allowed to carry binoculars, typewriter, pager, but practically nothing from modern home appliances.

The said decree contributed to breaking the ties between Crimea and the rest of Ukraine.

In order to eliminate these violations, human rights organizations have repeatedly submitted to the government institutions proposals for amending Decree No. 1035 of the Cabinet of Ministers of Ukraine of 16.12.2015.

In particular, on February 9, 2017, after another incident of refusal to internally displaced persons in possession of personal property, human rights defenders openly appealed to the Prime Minister of Ukraine regarding the violation of the rights of citizens of Ukraine by some provisions of Decree No. 1035 of the CMU of 16.12.2015. [1]

Human rights activists drew attention to the discriminatory content of paragraph 1 of Decree No. 1035 and called for measures to be taken to distinguish humanitarian issues from the context of the delivery of goods from/to the occupied territory.

Nevertheless, during this time, the Government has not taken any action to resolve this issue in an extrajudicial way by amending Decree No. 1035.

On March 1, 2017, the District Administrative Court of Kyiv found paragraph 1 of Decree No. 1035 is illegal. On June 14, 2017, the Administrative Court of Appeal of Kyiv rejected the Government’s complaint, and paragraph 1 of the Decree was finally abolished, declared invalid and not in line with the European Convention on Human Rights and Fundamental Freedoms, the Constitution of Ukraine and the Law of Ukraine ” On ensuring of rights and freedoms of internally displaced persons” [2].

Despite the appeal of the human rights defenders and the positive decision of the court, the Government has not yet aproved a decision to amend Decree No. 1035. At the same time, the CMU had a year (while litigation was under way) for the preparation and adoption of a decision to restrict the supply of goods to the temporarily occupied territory, in which economic and humanitarian issues were separated from each other.

The Law of Ukraine “On ensuring of rights and freedoms of internally displaced persons” established that Ukraine takes all possible measures to prevent the emergence of prerequisites for forced displacement of persons, protection, and observance of the rights and freedoms of internally displaced persons, to create conditions for voluntary return of such persons to the abandoned place of residence or integration into a new place of residence in Ukraine. In accordance with Article 9 of the said Law, internally displaced persons have the right to facilitate the transfer of their movable property.

At present, the media is spreading the false opinion that the court’s decision on the cancellation of Decree No. 1035 of the CMU is allegedly unreasonable and illegal and that it enables business entities to resume trade with the occupation authorities of annexed Crimea.

Thus, national legislation virtually eliminates any trade operations with the occupied territory of the Autonomous Republic of Crimea.

Taking into account the legality and validity of the decisions of the administrative courts regarding the repeal of paragraph 1 of Decree No. 1035, we urge the government structures to enforce the decisions of the legally valid courts and to prevent any obstacles to the transfer of personal belongings through checkpoints with Crimea.

We also urge the Cabinet of Ministers of Ukraine to adopt a regulatory legal act as soon as possible. It would regulate the issue of prohibition/restriction of the supply of goods, trade with occupied Crimea while differentiating between the legal relations related to the prohibition of the supply of goods from human rights to the disposal of their property, as this is required by national and international law.

Arkadiy Bushchenko, Executive Director of the Ukrainian Helsinki Human Rights Union

[1] / appeals / vidkryte-zvernennya-pravozahysnyh-ta-hromadskyh-orhanizatsij-prem-jer-minister-ukrajiny-schodo-porushennya-prav-hromadyan-ukrajiny-okremy

[2] /articles/sud-vyznav-postanovu-kabinetu-ministriv-scho-porushuje-prava-krymchan-nezakonnoyu/

Photo – the State Border Guard Service of Ukraine

 

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