Publication

Human rights situation on the occupied territory of the Autonomous Republic of Crimea and Sevastopol

The chapter was prepared by Serhii Zaiets, attorney of the Ukrainian Helsinki Human Rights Union; Daria Svyrydova, lawyer of the Ukrainian Helsinki Human Rights Union; Roman Martynovskyi, attorney of the Regional Human Rights Center; Vitalii Nabukhotnyi, lawyer of the Regional Human Rights Center.

  1. Citizenship

In 2015, the Russian Federation (hereinafter referred to as Russia) proceeded the policy of forcing the population of Crimea to take Russian citizenship on grounds of the Federal Constitutional Law (hereinafter referred to as the FCL) of Russia No. 6 “On the accession of the Republic of Crimea to the Russian Federation and on forming new constituent entities – the Republic of Crimea and the city of federal importance Sevastopol within the Russian Federation”[1], according to Art. 4 of which all citizens of Ukraine, permanently residing and registered in Crimea and the city of Sevastopol at the time of adoption of this law, are recognized as citizens of the Russian Federation.

The citizens of Ukraine, who remained in the occupied territory, are forced to apply for receiving Russian passports, as the absence of them makes it impossible to exercise rights for education, employment, medical services, pension payments, as well as because of the need to pay considerable taxes on the disposition of property, etc.

The FCL of Russia No. 19 dated 29 December 14 “On amendments to Articles 1 and 12 of the Federal Constitutional Law “On the accession of the Republic of Crimea to the Russian Federation and on forming new constituent entities – the Republic of Crimea and the city of federal importance Sevastopol within the Russian Federation”[2], which entered into force in 2015, indeed establishing a system that forces Crimeans to recognize themselves as citizens of Crimea and “renounce” Ukrainian citizenship. According to this law, residents of Crimea had an opportunity to renounce their second “foreign citizenship” by submitting their application and passport of another country to Russian corresponding authorities. The rules of the law are formulated in such a way that, in the territory of Russia, the said persons are recognized as persons that do not have citizenship of another country. Ukraine and other countries consider this provision of the law as null and void, since it contradicts the rules of the International Humanitarian Law and International Human Rights Law. Pursuant to Ukrainian legislation, renunciation of citizenship may be initiated by a citizen only; and a loss of citizenship – by the state represented by the bodies, authorized under the laws of Ukraine. The purpose of such a violation by Russia is, primarily, legalization of public officials in Crimea, who continue to be citizens of Ukraine until today.

According to another Federal Law of Russia No. 142 “On amendments to Articles 6 and 30 of the Federal Law “On Russian Federation Citizenship” and certain legislative acts of the Russian Federation, citizens of Ukraine who compulsorily “received” Russian citizenship, since 2016 had to submit a notice on their “citizenship of another country”, Ukraine, to the authorities of the Federal Migration Service. This law establishes the possibility of criminal liability for suppression of facts of having the citizenship of another country[3] based on Art. 330-2 of the Criminal Code of Russia[4]. Late notification on having dual nationality faces administrative responsibility to a fine from 500 to 1000 Russian roubles. The so-called Crimean Department of the FMS explained that Crimeans, who automatically acquired citizenship of Russia in March 2014, shall not give notice on the presence of other citizenship[5]. At the same time, on the official website of the FMS, there was another notification with the explanation of the procedure and terms of notifying Crimeans of the presence of other nationality[6]. It is important that the Law still does not include any exceptions for the citizens residing in the occupied territory of Crimea and the city of Sevastopol; moreover, its provisions actually apply to internally displaced persons, who left the occupied territory, but still have Crimean registration. Such persons are at risk of being called to account in the event of visiting Crimea after 29 February 2016, the last notification date defined by the FL of Russia No. 142-FZ.

Under part 4 of Art. 5 of the Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”, mandatory automatic acquisition of Russian citizenship by citizens of Ukraine residing on the temporarily occupied territory is not recognized by Ukraine and does not have grounds for the loss of citizenship of Ukraine[7]. Despite these provisions of the Law, Ukrainian border guards proceeded with the practice of searching the citizens of Ukraine who cross the checkpoints from Crimea for passports issued by the Russian occupying authority. This is evidenced by the statements of human rights advocates and the report of the OSCE Special Monitoring Mission to Ukraine[8].

In addition, Ukrainian authorities continued to violate economic rights of citizens of Ukraine who had to receive Russian passports. In particular, paragraph 5 of Art. 12.3 of the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” states that, during the temporary occupation, collection of taxes and charges, unified social tax, application of payment transactions recorders in respect of the territories of the FEZ “Crimea” are effective in view of the fact that a resident individual shall provide a declaration on the absence of citizenship of the occupier country in order to gain the right for tax social benefit under Article 169 of the Tax Code of Ukraine. Thus, declaring non-recognition of compulsory conferment of Russian citizenship to residents of the occupied territory, Ukrainian authorities continue with discrimination based on the citizenship they do not recognize.

Recommendations:

– The President of Ukraine shall make a formal submission to the Constitutional Court of Ukraine concerning the compliance of certain provisions and the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” in general with the Constitution of Ukraine.

– the Verkhovna Rada of Ukraine shall make certain amendments to the Law of Ukraine dated August 12, 2014 No. 1636-VII “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” in order to abolish discriminatory provisions relating to persons who compulsorily received Russian passports.

– the Ministry of Foreign Affairs of Ukraine shall take all necessary steps to notify, through the diplomatic channels of the Ministry of Foreign Affairs, other countries and international organizations of the impossibility and illegality of automatic distribution of Russian citizenship to the people of the occupied territories of Crimea.

 

  1. War crimes resulting from the occupation of Crimea

On September 8, 2015, Verkhovna Rada of Ukraine, on the basis of paragraph 3 of Article 12 of the Roman Statute, adopted the Declaration on recognition of the jurisdiction of the International Criminal Court ad hoc. Thus, the Prosecutor of the ICC is authorized to identify, investigate and conduct a prosecution of the persons guilty of crimes, subject to the jurisdiction of the Court, including crimes, committed in the territory of the Crimean peninsula, starting from February 20, 2014 (official date of the commencement of the occupation of the said territories).

The following actions can be considered as war crimes and crimes against humanity in Crimea, in matter of the Roman Statute of the International Criminal Court:

War crimes:

– illegal, senseless and extensive destruction and appropriation of property, unnecessary for military purposes (Art. 8(2)(а)(iv)); destruction or capture of the enemy’s property, unless such destruction or capture are strongly dictated by the needs of war (Art. 8(2)(а)( xiii)). The proof of committing the above acts can be the nationalization by the occupier country of about 250 objects of public property and about 300 objects of private property, property of legal entities, who were unable or late to pass re-registration under the law of Russia, as well as the destruction of private property (see details in subsection Property Right).

– displacement, direct or indirect, by the occupier country of part of its own civil population to the occupied territory, or deportation or displacement of the population of the occupied territories or some its parts within or outside this territory (Art. 8(2)(b)(viii)).[9]

– coercive recruitment of protected persons to the armed forces of a hostile country (Art. 8(2)(a)(v)). The said actions can be evidenced by expansive nationalization of residents of the occupied territory, which means that they are immediately subject to general conscription. The proof of committing this crime is that the occupying authorities conduct a call-up campaign in the territory of the Autonomous Republic of Crimea and the city of Sevastopol.

– employment of civil persons or other protected persons to defense against hostilities of certain settlements, districts or armed forces (Art. 8(2)(b)(xxiii)). The commitment the above actions is evidenced by mass presence of the civil population when capturing and blocking military units of the Armed Forces of Ukraine on the territory of the AR of Crimea and the city of Sevastopol. Among civil persons, who were at the capture and blockage of the military units and acted as human shields, there were many wives and children of Ukrainian servicemen, manipulated by representatives of the occupier country, so that the Armed Forces of Ukraine could not resist the capture of the military units.

Crimes against humanity:

– enforced disappearance of people (Art. 7(1)(і)). Representatives of the Mejlis of the Crimean Tatar people, as well as human rights activists stated that during the occupation there were cases of complete disappearance of the representatives of the Crimean Tatar people and pro-Ukrainian activists in Crimea. New facts of the enforced disappearances were also registered in 2015. Thus, in Sevastopol a Crimean Tatar Mukhtar Arislanov disappeared. According to the witnesses, unknown people in police uniforms huddled him to a minibus and took him to an undisclosed location[10]. In December, two Crimean Tatar people disappeared in Kerch, their location is still unknown[11]. According to official announcements, the Prosecutor’s Office of the Autonomous Republic of Crimea conducts pre-trial investigation in almost 30 criminal proceedings based on the disappearance of citizens of Ukraine in the territory of the peninsula.

Recommendations for the government of Ukraine:

– To maintain an active cooperation with NGOs, human rights organizations and the Office of the Prosecutor of the International Criminal Court for the period of collecting information on military crimes, committed in the territory of Crimea.

– ensure implementation of a national “hybrid court” system.

– develop and implement witness and victim protection programs in cases of war crimes and crimes against humanity.

 

  1. Criminal and administrative prosecutions

In contrast to the internationally recognized attitude to the illegality of the so-called “referendum” on Crimea joining the Russian Federation and recognition of further annexation of the Crimean peninsula, the occupying authorities take consistent steps to demonstrate that people of Crimea “generally support” Crimea joining Russia. The consequence of this was a deliberate policy of Russia on the Crimean peninsula, aimed at ignoring, intimidating and political repression of part of the people, who disagree with the occupation of the peninsula, and suppression of any pro-Ukrainian sentiments in Crimea. Such a policy is predominantly aimed at pro-Ukrainian activists and representatives of the Crimean Tatar community and consists in regular searches, arrests, opening proceedings in criminal and administrative cases against the activists.

Some of the most resonant cases of political persecution of the citizens of Ukraine in the occupied Crimea were the so-called Akhtem Chyihoz and “February 26” cases, as well as the case of a Maidan activist Oleksandr Kostenko. Both cases involve serious human rights violations and are supported by the Strategic Litigation Center of the UHHRU.

Thus, following the results of the events that took place on February 26, 2014 in Simferopol (there were two mass events involving the conflict of interests of pro-Ukrainian and pro-Russian activists near the Verkhovna Rada of the Autonomous Republic of Crimea), the Investigating Committee of Russia commenced a criminal proceeding based on the organization and participation in mass riots (under part 1 and part 2 of Art. 22 of the Criminal Code of Russia. In total, 9 persons are held criminally liable in the “February 26” case. The case against 6 persons of them is under consideration of the so-called Supreme Court of Crimea (A. Chyihoz is accused of organization of mass riots[12], E. Kantemirov, M. Dehermendzhi, E. Emirvaliiev, A. Asanov, A. Yunusov), 2 of them (T. Yunusov, E. Nebiiev) are already charged with 2.5 and 3.5 year suspended sentences, yet one more is wanted[13].

The case clearly demonstrates numerous human rights violations and legal issues regarding the effect of the criminal procedural law over a distance and in reference to people (citizens of Ukraine have been prosecuted by the Russian Federation for the actions that took place in the territory of Ukraine prior to the occupation), in the matter of contravention of the principles of clarity and transparency of the indictment (the indictment made is confined to general phrases, void of references to the role of each of the accused in the crime committed), contravention of the principle of presumption of innocence (representatives of the occupying authorities regularly and publicly speaking of the guilt of the above-noted persons[14]) etc. These legal issues, together with a frankly selective approach of the occupying authorities of Crimea regarding the prosecution of the organizers and participants of the two street protests, including the fact that only the representatives of the Crimean Tatar people, who took part in the “pro-Ukraine” demonstration and called for saving territorial integrity of Ukraine, were on the wrong side of the bar, provides evidences of a politically based nature of the criminal prosecution of the accused in the “February 26” case.

In February 2015, a pro-Ukraine activist, citizen of Ukraine Oleksandr Kostenko was detained in Crimea, later put to torture, arrested, brought to account and sentenced to 4 years 2 months of imprisonment on the charge of causing trivial injury to a citizen of Ukraine (former officer of “Berkut”) at the territory of Ukraine (Maidan Nezalezhnosti, Kyiv) in February 2014 and keeping elements of the firearm[15]. The examination of this case brings us to the conclusion that the actual purpose of prosecuting Kostenko was an attempt of the occupying authority to create a “precedent” of a representative judicial case in order to intimidate pro-Ukraine activists (many of whom took part in the Euromaidan) and take revenge on the Maidan activists. The defense team of Kostenko prepared a reference to the European Court of Human Rights upon breaches of Articles 3, 5 and 7 and other violations of the European Convention on Human Rights[16].

There are other outrageous examples of prosecution of the citizens of Crimea. Thus, in late January 2015, in Sevastopol, four Crimean Muslims were detained and accused of violating Art. 205.5 of the Criminal Code of Russia (“Terrorist activity organization”). In particular, they were suspected of the membership in the Hizb ut-Tahrir organization[17]. Russian authorities imposed a pre-trial restraint in the form of arrest on all the accused (R. Vaitov, R, Zeitullaiev, N. Prymov and F. Saifullaiev), which remained unchanged throughout the year. It is interesting to note that the said organization was not previously prohibited by the legislation of Ukraine, and constant searches of the residents of Crimea in order to find the so-called forbidden literature, as well as intimidations of Muslims began with the application of the Russian legislation to the territory of the peninsula after the occupation.

On 17 July 2015, a resident of the Bakhchysarai Raion, imam of a mosque, member of the Mejlis Mustafa Yahiaiev was charged with a 2-year sentence under paragraph “а” of part 2 of Art.282 of the Criminal Code of Russia (incitement of hatred or enmity with force or its threat)[18]. The excuse for prosecuting the imam was a domestic conflict with colleagues at work, during which he expressed his opposition to Crimea joining Russia. The true reasons can be this person’s social activity, open pro-Ukraine position and membership in the Mejlis.

A resident of the Rozdolne Raion of Crimea Volodymyr Balukh also faced criminal prosecution; he is accused under Art.319 of the Criminal Code of Russia (public insult of a representative of authority in charge of his functions). Balukh himself says that the reason for law enforcement authorities having an interest in him is his active pro-Ukrainian position, as well as the fact that officials of the Federal Security Service have found that V. Balukh has flagged his house in solidarity with the Euromaidan movement.

The scale and consistent nature of criminal and administrative prosecutions of pro-Ukrainian citizens of Crimea are evidenced by the so-called “May 3” case[19], arrests and imposition of administrative sanctions against the activists on March 9, 2015[20], arrests and pressure on the activists and journalists of the TV channel “Inter”[21], numerous arrests[22] and pressure[23] on a pro-Ukrainian activist V. Shukurdzhyiev, harassment of a de facto last open Ukrainian community in Crimea, Ukrainian Orthodox Church of Kyiv Patriarchate[24], and other facts of pressure and repression by the occupying authority of any manifestations of pro-Ukraine position and resistance to the occupation of the peninsula.

 

  1. Freedom of expression

The main trends of violation of the freedom of speech in Crimea are the continuation of active employment by the occupying authority of the so-called chilling effect, restrictions and cancellation of guarantees of the journalists’ activity and regulation of the media status.

A major harm to the freedom of speech in Crimea consists in creating a threat of punishment or other negative consequences for undesirable expressions or publications, resulting in the formation of a self-censorship habit among Crimean mass media and journalists.

The example of the measures the Russian authorities in Crimea actively take is searches and interrogations of journalists. For instance, on March 13, 2015, an editor of the “Journalistic Investigations Center” resource Nataliia Kokorina was interrogated and detained; the house of another Crimean journalist Hanna Andriievska, where her parents live, was searched[25]. On November 2, 2015, the house of a journalist, former editor of the TV channel ATR, Lilia Budzhurova was searched[26]. Many other journalists on the peninsula found themselves in a similar situation. Such actions of the authorities make journalists think before they try to criticize the authorities, challenge the legality of the annexation of Crimea or bring up other unpopular in Crimea issues.

Another part of the chilling effect is criminalization of certain expressions. In particular, this concerns the so-called extremist issues, as well as discussions regarding the legality of Crimea joining the Russian Federation. Thus, the occupying authority of Crimea initiated a criminal case under article 280.1 of the Criminal Code of Russia (“Public calls for actions aimed at violation of the territorial integrity of the Russian Federation”[27]) against the journalist Hanna Andriievska, who immediately after the occupation moved onto the mainland of Ukraine. The opening of the case was attributable to the publication of the article “Volunteer battalion “Crimea” about Crimean volunteers involved in the ATO in Eastern Ukraine[28]

Under such circumstances, a large number of journalists who disagree with the Russian policy had to leave the territory of the peninsula. This process began immediately after the occupation and continued in 2015.

Despite the fact that the legislation of Russia provides some guarantees of freedom of expression, the scope of persons and activities, covered by the guarantee, is rather limited. Thus, for example, a web-site gains mass media status, unless being registered as such (Art. 8 of the Law of Russia “On the mass media”). According the media report[29] at the beginning of December 2015, the circulation of the Admiral Newspaper was withdrawn. Russian authorities mentioned the absence of the registration of the media as a reason for this withdrawal.

At the same time, journalist status with relevant guarantees is granted only to a person, who cooperates with the registered mass media. Thus, a great number of bloggers were deprived of journalist status due to the absence of this media as such.

The general tendency to the reduction of the representatives of free journalism in Crimea and encouragement of self-censorship leads to the distortion of information, silencing of specific issues, moderation of political discussions and monopolization of the information space by pro-government agents.

 

  1. Right to freedom of movement and freedom of residence

The international human rights law guarantees everyone, who legally stays in the territory of any country, the right to free movement and free choice of residence within this territory, as well as the right to leave any country, including its own country[30]. One of the most massive violations since the beginning of the occupation from Russia and Ukraine are systematic violations of the right to freedom of movement.

The impact of Russia on implementation of freedom of movement.

From the standpoint of the international law, the occupation of Crimea is illegal[31], therefore any references of Russian authorities to the necessity of ensuring this or that “social interest” by introducing additional restrictions of the right of movement cannot be recognized as “legal” according to Article 12 of the Covenant and Article 2 of Protocol No.4 to the ECHR. The same conclusion should be reached concerning the attempts of applying the rules, existent in the legislation of Russia, regarding the restriction of freedom of movement. Thus, the application of the rule on the restricted stay of foreigners in Russia to persons, who resided or stayed on legal grounds in the territory of Crimea and did not take Russian citizenship[32], including the application to them of the administrative fine for “violation of migration laws” and expulsion of Crimea, or a ban on entry to Crimea[33], shall be considered as violations of Art.12 of the Covenant and Art.2 of Protocol No. 4. The requirement to issue a residence permit by the said category of persons is itself the interference with the right to freedom of movement. Such a conclusion can be drawn from the analysis of the decision of the ECHR in the Tatishvili v. Russia case[34]. However, if administrative sanctions are applied to the person, who permanently resided in the territory of Crimea until its occupation and refused to issue a residence permit, due to the violation of the “migration law” of the occupier country, then such interference should, certainly, be recognized as a violation of human rights.

The refusal of Russian authorities to allow a citizen of Ukraine, who lost its passport during his/her stay in Crimea, to leave the territory of Crimea, is also a violation of the right to freedom of movement. The position of such a person is particularly vulnerable, since it cannot obtain any document certifying its identity and allowing leaving Crimea. This person also cannot give a power of attorney to another person to present its interests in the Consulate of Ukraine in Russia (Rostov-on Don) or in the Migration Service of the mainland Ukraine (since it cannot prove its identity before a notary). All these situations are not unique in Crimea. Thus, a number of Russian legislation and occupying authorities requirements to persons, residing or staying in the territory of the Autonomous Republic of Crimea and the city of Sevastopol, in the matters of the freedom of movement or freedom of residence, should be recognized as violations of the said right.

The impact of Ukraine on execution of the right to freedom of movement.

According to the Constitution of Ukraine (Art. 33), everyone staying in its territory on legal grounds, is guaranteed with: freedom of movement within the territory of Ukraine; right for free choice of permanent or temporary place of residence in its territory; right to freely leave the territory of Ukraine. These rights apply both to the citizens of Ukraine and foreigners or stateless persons. The latter two categories face a mandatory requirement – legality of staying in the territory of Ukraine. Restrictions of these rights may be applied only on legal grounds, and not on the basis of subordinate acts. Another right under Art.33, which is applicable only to the citizens of Ukraine and is absolute, is the right to return to Ukraine at any moment. The provisions of the corresponding articles of the Constitution of Ukraine, the Law of Ukraine “On freedom of movement and freedom of residence in Ukraine”, the Law of Ukraine “On the procedure of exit from Ukraine and entry to Ukraine of the citizens of Ukraine” and the Civil Code of Ukraine are inter-complemented.

Resolution dated June 4, 2015 No. 367 of the Cabinet of Ministers of Ukraine approved the Procedure of entry and exit into/from the temporarily occupied territory of Ukraine. This Procedure limits the right to freedom of movement of the citizens of Ukraine, as well as foreigners and stateless persons.

Article 10 of the Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine” (hereinafter referred to as the Law of Ukraine “On the occupied territories”) states that “the citizens of Ukraine have the right for free and safe entry/exit into/from the temporarily occupied territory through entry and exit control points upon presentation of a document that certifies their identity and confirms the citizenship of Ukraine”. A second part of this article provides that “the entry and exit of foreigners or stateless persons into/from the temporarily occupied territory are allowed only by special permits through entry and exit control points.

The entry and exit procedure for foreigners and stateless persons in the temporarily occupied territory is established by the Cabinet of Ministers of Ukraine[35]”.

Article 10 states that the Cabinet of Ministers of Ukraine is authorized by law only to establish the procedure of entry and exit of foreigners and stateless persons into/from the territory of Crimea. It should be noted that:

– the only limitation in the implementation of this right, prescribed by law, was the necessity for previous receipt by the said category of persons of special permits;

– the Cabinet of Ministers of Ukraine was not delegated the right to establish the entry and exit procedure for citizens of Ukraine.

Thus, having extended the effect of the Entry and exit procedure on citizens of Ukraine and including additional restrictions on the exit for foreigners and stateless persons, the Cabinet of Ministers of Ukraine went beyond its powers. The amendments, inserted by Resolution No. 722 dated September 16, 2015 to the Procedure, did not solve the existing problems.

In addition, “temporary” termination of air, rail and scheduled road services with Crimea from March to December 2014 causes doubt on the validity of the guarantee of “free and safe” movement to/from Crimea. From a legal perspective, it is a doubtful form of making a decision on the termination of transport connection, together with the used official occasion (“strengthening of control and security of civilians in view of a threat from subversive groups”)[36].

It is the rules of the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” that poses a lot of problems for the citizens of Ukraine, and foreigners and stateless persons.

For example, according to Art.7 of the Law, natural persons crossing the administrative border are subject to the provisions of Section XII of the Customs Code of Ukraine (peculiarities of transit and taxation of goods moved (sent) by citizens across the customs border of Ukraine) concerning the movement of currency values, which creates additional obstacles for the entry and exit of citizens into/from the occupied territory of Crimea and can be seen as an interference with the implementation of the right to freedom of movement.

Under interference with the right of freedom of movement and free choice of residence, it should be based on strict compliance with the rules of national legislation and adherence by the established principles of the international law. In its turn, restrictions on the right to free movement by the occupying authorities that does not comply with the provisions of Ukrainian legislation, should not be recognized as a violation of relevant articles of the Covenant and ECHR, since they cannot have a legitimate aim in respect of persons who stay in the occupied territory, which remains a sovereign territory of Ukraine.

A detailed analysis of facts and examples of specific violations of the right to freedom of movement and freedom of residence is contained in a thematic review of human rights in conditions of occupation “Crimea Beyond Rules”, issue No. 1, prepared by human rights advocates and independent experts[37].

Recommendations for the authorities:

– to revise the provisions of the Entry and exit procedure into/from the occupied territory of Ukraine, approved by Resolution of the Cabinet of Ministers of Ukraine No. 367 dated June 4, 2015 in order to bring them into conformity with the requirements of Article 33 of the Constitution of Ukraine, Article 2 of the Covenant and Article 2 of the Protocol No. 4 to the ECHR;

– to amend the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” in order to abolish the provisions that restrict the right of the citizens of Ukraine for a “free and safe entry into the temporarily occupied territory of Ukraine”.

 

  1. Property Right

Modern international law is there to defend the property right, which clearly follows from the provisions of certain international treaties (Art. 1 of the Covenant to the ECHR, Art. 46 of the Hague Convention with Respect to the Laws and Customs of War on Land, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War). The Russian Federation as an occupier country proceeds with large-scale violations of the right to property on the occupied territories of the Autonomous Republic of Crimea and the city of Sevastopol.

According to the data from official sources and based on the decisions of the occupying authorities, more than 330 companies, institutions and organizations of the state-owned property and the property of trade unions, as well as 280 privately owned companies have been nationalized. Massive nationalization of the property was accomplished on the occupied territories of the Crimean peninsula as early as in 2014. However, such illegal nationalization continued in 2015.

In particular, pursuant to the adopted on February 28, 2015 regulations of the so-called “government” of Sevastopol city “About some issues of property nationalization” No. 123-ПП and No. 118-ПП, the government obtained ownership of movable and immovable property, proprietary rights and intangible assets of 15 previously privately-owned companies. They are the companies, which until March 1, 2015 did not bring their constituent documents in line with the legislation of Russia, as well as did not apply for their registration in the Unified State Register of Legal Entities. They are, for example, PJSC Sevmorzavod and LLC Sevmorsudoremont. The “city also obtained ownership” of complex of buildings of Belbek Airport and other property.

In addition, the occupier country continues the destruction of property by demolishing the objects, recognized as unauthorized buildings, usually in an administrative procedure. According to formal statements of the occupier country, there are 450 such objects in Simferopol, 590 in Simferopol district, 338 in Sudak, 225 in Yalta and 36 in Yevpatoria. The local authorities take steps to pull down such buildings, as a rule, without a judicial order and in disregard of the rights of the owners. Such high-profile violation was the destruction by the occupier country by undermining of a 16-storey building in Kapitanska St. in Sevastopol, done on the basis of a judicial order with a reference to violations of permits, issued by Ukrainian authorities. Another example of property right violation can be the demolition of trade pavilions at the market in Kozlova St. in Simferopol, which happened on July 6, 2015. This all was done under conditions that excluded any possibility for the owners to take out their property. In total, about 360 trade pavilions were removed.

All legal entities, registered in the territory of the Autonomous Republic of Crimea and the city of Sevastopol, according to the legislation of Russia, were subject to mandatory re-registration. There were cases, when Russian authorities denied some legal entities re-registration under the pretense of formal non-compliance of the documents submitted. In the future, the property of such legal entities was nationalized.

In addition, because of the occupation of Crimea, there exist problems related to the difficulties with the evacuation of property from the occupied territory into the mainland Ukraine or vice versa – with the movement of property onto the peninsula; with judicial review of the legality of nationalization of state-owned or communal property; with the inability to get back the monetary deposit posted as a preventive measure in a criminal proceeding; with blocking bank accounts in Ukraine; with the extension of a ban on foreign ownership of property (for example, in relation to land or media resources); with the inability to finish the privatization started. It should be noted that the list of these examples of property right violations is not complete.[38]

Recommendations for the government:

– to take measures to create conditions and legal framework for the evacuation of the property of persons, who legally reside in Crimea from the occupied territory onto the mainland of Ukraine.

 

  1. DISCRIMINATION

Notwithstanding manifestations of discrimination in the territory of Crimea, which are “usual” for the society, in connection with the occupation of the peninsula, there is a new factor and sign of discrimination against residence and registration in Crimea. As a result of the occupation of the Crimean peninsula by the Russian Federation, all persons, who used to live on its territory, found themselves in a vulnerable position. Some citizens had to move onto the mainland of Ukraine, and the rest found themselves under the de facto jurisdiction of Russia. However, neither legislation of Ukraine, nor legislation of the Russian Federation was adapted to such a situation that resulted in systematic violations and suppression of rights of Crimeans compared to other citizens both from Russia and Ukraine.

An example would be the legislation of Russia on the status of foreigners. In general, foreigners have a special status due to lack of special ties with the country, where they want to go. Therefore, they are subject to restrictions regarding the period of stay, freedom of movement, etc. At the same time, because of the occupation, the Russian Federation extended its legislation on the citizens of Ukraine, who stayed in Crimea and did not travel/move into the territory of the Russian Federation. Therefore, ordinary restrictions on the stay of foreigners on the territory of Russia stopped corresponding to the circumstances, under which Crimeans found themselves. This situation applies to a broad range of issues, such as employment, medical and social services, etc.

For example, a citizen of Ukraine Sinaver Kadyrov, an ethnic Crimean Tatar, who permanently resided in Crimea, at the end of January 2015, was alienated from the territory of the Crimean peninsula after a 90-day period of stay. A citizen B., who lived on the territory of Sevastopol at the time of occupation, was dismissed from his job due to the absence of a passport of Russia with a reference to the explanation of the Ministry of Labor and Social Protection of the Russian Federation No. 16-4/008-1757 dated August 14, 2015. In accordance with this explanation, from January 1, 2015 to continue to work on the territory of the Crimean peninsula, citizens of Ukraine have to receive a patent, otherwise a labor agreement would be terminated on grounds of clauses 5-8 of part 1 of Art. 327.6 of the Labor Code of the Russian Federation. A citizen H., registered in Crimea, in December 2015, was dismissed from her job on grounds of Art.81 of the Labor Code of Russia due to the absence of a Russian passport. Such cases have become typical in 2015 and force resident of Crimea to take Russian passports.

Another citizen U. was dismissed from her job due to a de facto reorganization of the company. The actual reason for her dismissal was her having five children. It was not easy to formally employ her to work for a company, which is actually a successor of the reorganized institution, acting on the basis of the legislation of Ukraine.

There are systemic facts of denials of access to medical services to citizens of Ukraine who do not have Russian passports, even in cases of emergency. Thus, the representatives of the Kharkiv human rights group revealed the fact of denial of health care to a seriously ill citizen of Ukraine in Crimea, who preserved its Ukrainian nationality, due to the absence of Russian citizenship, with the result that the woman died[39].

It should also be noted that the Russian Federation lacks special legislation on prevention of domestic violence. Objections to the jurisdiction of Ukraine over the Crimean peninsula had a consequence that victims of domestic violence were void of special protection; even a non-perfect protection system acting in Ukraine was destroyed in Crimea since the application to this territory of the legislation of Russia.

At the same time, the attempts of the legislation of Ukraine to adapt to new realia of the occupation also led to the discrimination of the Crimeans. The Laws of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”, “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine”, “On ensuring the rights and freedoms for internally displaced persons” include a number of discriminatory provisions. To begin with, the Crimeans, who temporarily left the occupied territory of Crimea, continue to be victimized. This is encouraged by including them in a separate category of “internally displaced persons” registered as such in relevant state agencies. There is an effective resolution of the National Bank of Ukraine No. 699 dated November 3, 2014, according to which all Crimeans when using banking services were equal to non-residents[40]. In this context, it is essential to use the term “non-resident”, which itself deepens the level of victimization. Lawyers of the UHHRU and NGO RHRC[41] initiated a proceeding on the appeal of these provisions and recognition them as discriminatory. This case had some shifts, which, however, did not lead to the elimination of violations: on September 1, 2015 Kyiv Administrative Court of Appeal partially recognized the resolution of the NBU invalid, but on December 24, 2015 the Supreme Administrative Court overturned all decisions in the case and sent it for retrial[42]. Thus, the effect of the resolution of the NBU No. 699 dated November 3, 2014 and its discriminatory provisions were actually reestablished in their entirety.

Another example is the provisions of Art. 14 of the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine”[43], which called a moratorium on the payments of mortgage loans by the Crimeans, who temporarily left the occupied territory and moved to the mainland Ukraine. However, such guarantees are narrower than those introduced by the Law of Ukraine “About temporary measures for the period of the anti-terrorist operation” for residents of the occupied territories of Eastern Ukraine. In particular, this applies both to types of loans subjected to the moratorium, and place of residence of a person.

The citizens of Ukraine, who when staying in Crimea had to take a passport of a citizen of Russia, are not subject to the Law of Ukraine “On state guarantees of rebuilding savings of citizens of Ukraine” (see Article 8 of the Law of Ukraine “On the creation of the free economic zone “Crimea”).

Despite the declarative provision of Art.8 of the Law of Ukraine “On ensuring the rights and freedoms of internally displaced persons” on guarantees of the right to vote in local elections, the election that took place on October 25, 2015 showed that real mechanisms for implementation of this right of internally displaced persons are missing.

Recommendations for the Cabinet of Ministers:

– to actively contribute to the elimination of any discriminatory practices and conduct thorough examinations of the legislation on the possibility of discrimination against internally displaced persons.

– to enable the participation of internally displaced persons in elections in mainland Ukraine.

– to ensure internally displaced persons from Crimea along with other internally displaced persons the rights as to commitments on bank credits, use of other banking services and equal legal status in other fields.

– exclude from the Law of Ukraine “On the creation of the free economic zone “Crimea” and on the peculiarities of economic activity in the temporarily occupied territory of Ukraine” the provisions that limit the guarantees of general deposits protection.

 

  1. Documents of the civilian population in the occupied territories

The legal regime of the occupation poses consistent problems for the citizens of Ukraine residing in the territory of the Crimean peninsula concerning the documentary proof of personal status and other rights. The problem is the invalidation of the documents, issued by the agencies and/or persons, carrying out their activities on the occupied territory out of accordance with the legislation of Ukraine (Article 9 of the Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”[44]). Due to the lack of any state agencies of Ukraine on the territory of the AR of Crimea and Sevastopol, de facto all documents, issued in this territory after the occupation began, are invalid. There is no possibility of upgrading in the territory of Crimea of lost valid documents, issued by Ukrainian authorities.

This results in substantial violations of number of fundamental rights. For instance, the absence/loss of a passport makes it difficult or even impossible for a citizen of Ukraine to move to the mainland Ukraine, since according to Article 10 of the Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”, the citizens have the right to a free and safe exit from the temporarily occupied territory through entry and exit control points upon presentation of a document certifying their identity or proving the citizenship of Ukraine. According to the Administration of the State Border Guard Service of Ukraine, for 11 months in 2015, 55 persons were denied to move to the mainland Ukraine due to the invalidity of these documents.

Furthermore, the invalidity of documents is a prerequisite for violations of many personal non-property rights, such as right to a name, right to representative services, inheritance, etc. There are also difficulties with the confirmation of the facts of birth, death, family relations, general secondary education, labor relations, etc. Given that most of these rights and circumstances are ensured to a person by nature, are integral and not derived from the state, the situation puts the persons residing or staying in the temporarily occupied territory of Ukraine between wind and water.

So far, this situation remains legally unregulated. International standards contain only a small number of provisions that can be used to find a solution to the problem. Thus, the Advisory Opinion of the International Court of Justice [45] dated June 21, 1971 “Legal consequences for states on the continued presence of South Africa in Namibia”[46] provides that the invalidity of the documents issued in the occupied territories, cannot apply to the documents, the non-recognition of which can prejudice the rights of the residents of such territory.

Considering the statement of the fact of the occupation by the Russian Federation of the Autonomous Republic of Crimea and the city of Sevastopol, the position of the Ukrainian government in relation to the documents, issued by the occupier country on the occupied territory, seems to be illogical. On the one hand, Ukraine recognizes that the territory of the Autonomous Republic of Crimea and Sevastopol city is occupied by the Russian Federation, and thus, these territories are subject to the provisions of the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War[47]. Pursuant to Article 50 of this Convention, the occupier country shall take all necessary measures to facilitate the identification of children and registration of their family ties.

On the other hand, Ukraine does not fully recognize such documents and develops complicated mechanisms of establishing legal facts, which is a threat of violation or even complete deprivation of citizens residing or staying on the occupied territory of Crimea of their fundamental rights. The Decree of the Cabinet of Ministers of Ukraine dated November 23, 2015 No. 1393-р[48] approved the plan of actions to implement the National Human Rights Strategy for the period to 2020, according to which the state undertook a commitment on the development of an administrative procedure of civil registration of births, deaths and marriages, if they occurred on the temporarily occupied territory of Ukraine. So far this issue has not been resolved.

Recommendations for the government of Ukraine:

– to develop and implement a non-discriminatory mechanism to ensure the execution of integral rights of people, residing in the temporarily occupied territory of Ukraine.

– to develop, with the involvement of NGOs and international experts, an administrative procedure for civil registration of births, deaths and marriages, procedure for acceptance and consideration of data from the documents to change a name, place of residence, receive general secondary education, employment relations, if such acts occurred and the documents are issued in the occupied territory of Crimea.

 

[1] http://www.rg.ru/2014/03/22/krym-dok.html

[2] http://www.un.org.ua/images/stories/Report_15_April_2014_en.pdf

[3] http://www.rg.ru/2014/06/06/grajdanstvo-dok.html

[4] http://www.consultant.ru/popular/ukrf/10_45.html

[5] http://www.92fmsgov.ru/?page_id=10212

[6] http://www.82.fms.gov.ru/press/news/item/51894/

[7] http://zakon0.rada.gov.ua/laws/show/1207-18

[8] http://ua.krymr.com/content/article/26723730.html; http://www.osce.org/uk/ukraine-smm/172121?download=true

[9] See as an example “Crimea Beyond Rules”, http://crimeahumanrights.org/wp-content/uploads/2015/12/Crimea-Special_Edition.pdf

[10] http://www.sobytiya.info/news/15/55199

[11] http://investigator.org.ua/news/170005/

[12] http://precedent.in.ua/index.php?id=1454267808

[13] https://ovdinfo.org/story/delo-26-fevralya

[14] http://ru.krymr.com/content/news/27457627.html

[15] http://www.bbc.com/ukrainian/ukraine_in_russian/2015/05/150515_ru_s_kostenko_sentence

[16] http://www.pravda.com.ua/rus/news/2015/05/28/7069416/

[17] http://ru.krymr.com/content/news/27418588.html

[18] http://www.sova-center.ru/misuse/news/persecution/2015/07/d32453/

[19] https://zona.media/news/3-maya-tair/, http://ru.krymr.com/archive/newsru/20151207/16898/16898.html?id=27411289

[20] http://www.pravda.com.ua/rus/news/2015/03/9/7060920/

[21] http://www.telekritika.ua/profesija/2015-05-22/107383

[22] http://www.unn.com.ua/uk/news/1523831-rosiyski-prikordonniki-ne-pustili-v-krim-ukrayinskogo-aktivista, http://hromadskeradio.org/2015/08/12/v-krymu-advokata-iz-moskvy-zaderzhali-zasimf-popytku-sdelat-foto-s-flagom-u

[23] http://investigator.org.ua/news/168863/

[24] http://www.pravda.com.ua/inozmi/deutsche-welle/2015/04/30/7066310/

[25] http://dt.ua/UKRAINE/fsb-pislya-obshuku-zatrimala-krimsku-zhurnalistku-natalyu-kokorinu-166753_.html

[26] http://nmpu.org.ua/2015/11/sud-u-krymu-vidmovyvsya-zadovolnyty-pozov-budzhurovoji-proty-fsb/

[27] http://www.zakonrf.info/uk/280.1/

[28] http://investigator.org.ua/articles/150971/

[29]http://primechaniya.ru/home/news/9556/9812/

[30] P. 1, 2 of Art. 12 of the International Covenant on Civil and Political Rights, Art. 13 of the Universal Declaration of Human Rights, Art. 2 of Covenant 4 of European Convention on Human Rights.

[31] Resolution 68/262 of the UNGA dated March 17, 2014 (http://www.un.org/en/ga/search/view_doc.asp?symbol= A/RES/68/262&referer=/english/&Lang=R).

[32] This is about the application of provisions of the Federal Law of Russia dated July 25, 2002 No. 115- FZ “On the legal status of Foreign Citizens of the Russian Federation”, of the Federal Law dated July 18, 2006 No. 109-FZ “On the Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation” and the Resolution of the Government of the Russian Federation dated January 15, 2007 No. 9 “Concerning the Procedure of Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation”.

[33] Art. 18.8 of the Code of Administrative Offenses of the Russian Federation.

[34] Tatishvili v. Russia, No. 1509/02, decision dated 22.02.2007, part 45. The European Court repeats what it has already found, that the requirement to notify the bodies of internal affairs every time the applicants wanted to change their place of residence or visit their friends was an interference with their right to freedom of movement (see Ruling of the European Court in the Denizci and Others v. Cyprus case, complaints No. 25316-25321/94 and 27207/95, ECHR 2001-V, paragraphs 346-47 and 403-04 and Ruling of the European Court in the Bolat v. Russia case dated October 5, 2006, complaint No. 14139/03, paragraph 65.

[35] http://zakon4.rada.gov.ua/laws/show/367-2015-%D0%BF/paran8#n8

[36] http://korrespondent.net/ukraine/3461420-sylovyky-obiasnyly-prekraschenye-transportnoho-soobschenyia-s-krymom

 

[37] http://crimeahumanrights.org/wp-content/uploads/2015/11/Crimea_Beyond_Rules_RU._Issue_1.pdf

[38] See as an example “Crimea Beyond Rules”, issue No. 42 “Property Right”, http://crimeahumanrights.org/wp-content/uploads/2015/11/Crimea_Beyond_Rules_RU._Issue_2.pdf

[39] http://www.sobytiya.info/news/15/58355

[40]  http://www.bank.gov.ua/doccatalog/document?id=11719725

[41] http://rchr.org.ua/index.php/uk/

[42] http://legalspace.org/ua/napryamki/zakhist-prav-krimchan/item/6179-vasu-rozhliane-kasatsiiu-natsbanku-na-rishennia-iake-skasovuie-status-nerezydentiv-dlia-krymchan

http://ukr.lb.ua/news/2015/12/24/324349_vishchiy_adminsud_znovu_zrobiv_krimchan.html

[43] http://zakon4.rada.gov.ua/laws/show/1636-18

[44] http://zakon3.rada.gov.ua/laws/show/1207-18

[45] The International Court is a principle judicial agency of the United Nations. More on link: http://www.icj-cij.org/homepage/ru/

[46]  Legal consequences for states of the continued presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion dated June 21, 1971

[47] http://zakon5.rada.gov.ua/laws/show/995_154

[48] http://www.kmu.gov.ua/control/uk/cardnpd?docid=248740679

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