Rights of the internally displaced persons
Chapter is prepared by B. Zaharov, Ukrainian Helsinki Human Rights Union (UHHRU) featuring Halyna Bocheva.
In Ukraine, there was the largest internal displacement in Europe since the Second World War, as a result of aggression of the Russian Federation, annexation of the Crimea and war in the eastern Ukraine. Social protection offices have registered more than 1.6 million of internally displaced persons (IDPs). However, the figures of various authorities are different.
Thus, 1,661,002 displaced persons or 1,311,485 families of Donbas and Crimea have been registered according to structural divisions of the social protection offices of the Regional and Kyiv City Public Administrations as of December 21, 2015. 666,043 families have applied for granting the cash assistance, 623,712 of them have been granted such assistance. In total, 3.0 billion UAH were transferred to receivers.
According to the operational information of the Interdepartmental coordination headquarters concerning social security of citizens of Ukraine who move from areas of carrying out anti-terrorist operation and temporarily occupied territory, slightly less – 1 million 10 thousand 297 persons are moved to other regions as of December 26, 2015, including 988 thousand 655 persons – from Donetsk and Luhansk Regions (241 persons per day), 21 thousand 642 persons – from the Autonomous Republic of Crimea, 166 thousand 036 of whose are children and 496 thousand 813 – disabled and old people.
At the same time, only 905 thousand persons have asked the State Migration Service on a note of the place of residence registration in IDP certificate as of December 3.
Such contradictory data of different competent authorities indicate that the state does not still exercise the effective current control over the internal displacement and registration of IDPs. The unified register of IDPs with access for different competent authorities has not been created yet. Exchange of information between such authorities is still performed by transferring documents in paper form or electronically on the USB flash cards. In such a case, the procedure for exchanging data between different state authorities and local government authorities is not approved, that creates an additional danger to displaced persons considering the vulnerability of their personal data.
Inconsistency of data, which are collected by the state authorities, leads to the fact that the international organizations, providing assistance to IDPs, in particular UNHCR, do not know by what figures to be guided, when planning allocation of the assistance to Ukraine.
The return of part of the displaced persons back into the occupied territories after receipt of the certificate and recovery of pension and social payments is another reason for the discrepancy in figures.
The legislation on IDPs is undergoing transformation, which practically lies in taking back the rights of the displaced persons by the civil society. Thus, the special Law of Ukraine “On Ensuring of Rights and Freedoms of Internally Displaced Persons” came into force on November 22, 2014. The result of numerous discussions and agreements is that the international organizations and the Ukrainian human rights activists have recognized the Law as progressive and that it meets international standards for the protection of IDPs rights.
However, it still has a number of disadvantages, as it has become some kind of compromise between expectations of the civil society and the state position. The Law, for example, did not consider the rights of foreign citizens and stateless persons; registration and provision of social services are related to the residence registration, which creates a number of serious inconveniences for IDPs, and because of imperfect administrative practice – even restricts their rights. Some provisions of the law, adopted in the summer of 2014, cannot be executed through the dynamic changes of situation in the ATO area. Thus, the provision on the employment relationships termination by providing “the notarized written application on the employment termination by the employee, with confirmation of the fact that he has sent this statement to the employer by the registered mail” is not valid because “Ukrposhta” has stopped work in the territories, controlled by separatists.
Three resolutions of Cabinet of Ministers of Ukraine were adopted on October 1, 2014, before adoption of the Law:
- 505 “On provision of the monthly targeted assistance to the persons, who move from temporarily occupied territory of Ukraine and areas of anti-terrorist operation, to cover the living expenses, including for utilities and communal payments”;
- 509 “On registration of the persons, who moved from temporarily occupied territory of Ukraine and areas of anti-terrorist operation”;
- 531 “On implementation features of the rights for the compulsory state social insurance of certain categories of persons”.
After entry into force of the special Law, the Cabinet of Ministers should have developed the relevant regulations within three months and approved the issued resolutions with provisions of the special Law; however, it has not been made throughout 2015.
According to the Resolution No. 505, the cash assistance is granted to a family and paid to one of its members on condition of provision of written consent of any form about the cash assistance payment to this person from other family members in the following sizes: for disabled persons (pensioners, children, disabled people) – 884 UAH per one person (family member); for able-bodied persons – 442 UAH per one person (family member). However, the total amount of the assistance per family cannot exceed 2,400 UAH. This regulation has led to discrimination against the large families. Provision of the targeted assistance to IDPs in the specified size makes life easier for IDPs, but does not solve the majority of problems. Including the problems with housing, since the housing rent in the cities, where it is possible to find work is much more expensive.
Procedure for registration according to the Resolution No. 509 is not perfectly prescribed. The concept of “the internally displaced person” has remained uncertain. In practice, the IDPs have faced many problems during registration, as indicated by human rights organizations that provide legal assistance to IDPs:
- Mass refusals of IDPs because of the improper determination of the territory, from which the internal displacement occurs. The displaced persons from certain areas of ATO and settlements controlled by the Ukrainian authorities are denied in registration. This is despite the fact that there was artillery shelling, housing and infrastructure, etc. have been destroyed in these and other settlements.
- Refusal in registration of persons, who have no mark in the passport of the citizen of Ukraine, that currently the settlement in ATO area is their registered place of residence.
- Requirements for provision of the additional documents, not provided by the Resolutions No. 505 and No. 509 of the CMU – for example, the references from Housing and Utilities Administration, confirming the residence fact, the housing rent agreement, etc.
- Additional obstacles are in receiving the targeted assistance. The long queues lined up on the previous record for coupons, where registration date was specified, to the Departments of Social Welfare at the beginning of 2015. Such coupons were issued for March, 2015 in January, 2015 in the Kharkiv and Donetsk regions.
- Some Departments of Social Welfare refuse to register the persons, who are married, when only one family member has moved, until the second of spouses will move, motivating it by the fact that the assistance is allegedly allocated only for a family.
- One can fix the problems with determination of the relevant Department of Labor and Social Welfare, which is authorized to record the displaced persons and to arrange the targeted assistance to the displaced persons.
- Work schedules of the Departments of Social Welfare have not been unified, therefore, it is almost impossible to know in advance how these social welfare institutions work, because this information is usually not available on the websites of the local administrations. It causes many inconveniences for the displaced persons, especially in the rural areas, when it is necessary to go tens of kilometers to the district center to get information about procedure for obtaining the targeted assistance.
The Government adopted the Resolution No. 595 “Some Issues of Financing of Budgetary Institutions, Implementation of Social Payments to the Population and Provision of a Financial Support to the Separate Enterprises and Organizations of the Donetsk and Luhansk Regions” on November 7, 2014. According to this resolution, provision of social payments to persons, who move from the temporarily occupied territory of Ukraine and ATO areas, adoption of applications for the transfer of pension files, granting pensions, financial assistance for burial, the short-received pension from persons, whose residence is registered in the territories of the anti-terrorist operation, is carried out at place of registration of such persons, according to the Procedure, adopted by the resolution of the Cabinet of Ministers of Ukraine No. 509 dated October 01, 2014 that is confirmed by the reference, copy of which remains in offices of the Pension Fund of Ukraine. This resolution has considerably complicated life of the IDPs, who cannot receive pensions and other payments for months due to a delay of IDPs registration.
In addition to these shortcomings, there are also some discriminatory legislative acts that violate the rights of IDPs. They concern:
- Freedom of the displaced persons movement.
- Use of financial services, implementation of business and economic activity.
- Election rights of IDPs.
For example, the Cabinet of Ministers issued the discrimination Resolution No. 79 “Some Issues of Registration and Issuance of the Registration Certificate of the Person, who Moves from Temporarily Occupied Territory of Ukraine or the Area of Anti-Terrorist Operation” on March 4, 2014. It provides that the IDP certificate is invalid without stamp of the State Migration Service of Ukraine about the place of residence, as well as it establishes the checks within 2 months by officials of SMSU, police, social protection offices and local self-government on presence of the displaced persons at the registered place of residence. At the same time, in case of absence, IDP should notify the SMSU within only 10 days. This Resolution establishes the additional control of SMSU over the displaced persons and considerably limits their freedom.
We should also pay attention to the discrimination of IDPs from the Autonomous Republic of Crimea through the Resolution No. 699 of the National Bank dated November 3, 2014, under which the Crimean residents are recognized as nonresidents and are deprived of opportunity to use banking services on equal ground with other citizens of Ukraine, as well as the Resolution No. 810 of the National Bank dated December 14, 2014, which recognizes the IDPs from the Autonomous Republic of Crimea as residents, but refer this fact to the mark of SMSU in the IDP certificate on the place of residence registration. This resolution has turned out to be consequence of application and the narrowed interpretation of the Law of Ukraine “On Creation of “the Crimea” Free Economic Zone and On Peculiarities of Economic Activity in Temporarily Occupied Territory of Ukraine” dated August 12, 2014.
The Law “On the Local Elections” as of July 14, 2015, which has deprived the displaced persons of voting right on the local elections, became the other discrimination law. Three draft laws, which provide the displaced persons with the right to vote, were registered in the parliament, but they have not been considered. The draft law No. 2501a-1 “On Amendments to Some Legislative Acts on Ensuring the Voting Rights of the Internally Displaced Persons” was the most considered of them, which:
- provided that the citizen’s belonging to the territorial community is determined not only by the mark in the passport on the place of residence registration, but also by the IDP certificate;
- provided that the IDP certificate is the basis to change the election address;
- set the declarative principle to change the election address (no later than 15 days before the election);
- provided for the possibility of checking the data, indicated by IDPs;
- restricted the attempts of repeated change of IDPs election address.
But, unfortunately, this draft law has not been considered by Verkhovna Rada.
It is necessary to specify the positive legislative initiatives. Thus, the Parliament adopted the Law of Ukraine “On Amendments to Some Laws of Ukraine Concerning Strengthening of Social Protection of Internally Displaced Persons” on March 5, 2015, according to which the following is provided:
- compensation to the registered unemployed IDP for the actual transportation expenses on moving to another administrative and territorial unit of the place of employment;
- compensation for expenses of the employer on labor payment (not above the average level of salary in the region) for employment of the registered unemployed IDP on the terms of fixed-term employment contract lasting no more than 6 months, on condition of preserving employment securities of such person during the period, exceeding the payment duration twice;
- compensation for expenses of the employer, who employs the registered IDPs for a period of at least 12 months, for retraining and advanced training of such persons.
The expert group of the human rights organizations has developed two draft laws, aimed at elimination of disadvantages of legislation, as well as the corresponding changes in regulations. The group of People’s Deputies introduced these draft laws to Verkhovna Rada of Ukraine on February 18, 2015: No. 2166 “On Amendments to Some Laws of Ukraine Concerning Strengthening of the Guarantees of the Rights and Freedoms of the Internally Displaced Persons” and No. 2167 on amendments to the Law of Ukraine “On Ensuring Rights and Freedoms of Internally Displaced Persons” (about compensation for cost of damaged property).
If the draft law No. 2167 was not considered by the parliament due to the lack of budgetary funds for its implementation, then the draft law No. 2166 was included in the agenda of plenary sessions of VRU three times, has been ignored twice and only after the large-scale advocacy campaign the draft law has been adopted in first reading on May 19, 2015.
On June 17, 2015, the special-purpose Committee of VRU on Human Rights, National Minorities and Interethnic Relations decided to recommend Verkhovna Rada of Ukraine to adopt the draft law in second reading. However, despite appeals of the public to consider the draft law as soon as possible, it was not imposed nearly 5 months for second reading. Only at the end of October, it was succeeded to convince Verkhovna Rada of Ukraine to consider this legislative initiative in second reading and finally, the draft law No. 2166 was adopted in general and submitted to the President for signature.
However, the President of Ukraine returned the Law of Ukraine No. 2166 with his proposals on November 25. The position of the President has frankly surprised the public, authors of the law and deputies, because no comments or proposals have been submitted from the Presidential Administration and other executive authorities for the whole time of passing of the draft law.
Absence of authority in the Law, which would exercise control over the place of residence and movement of IDPs, as well as the uncertainty of the mechanism of such control, became the reason for the President’s veto. Again, the desire to control by old methods has outweighed the protection of IDPs rights. The Human Rights Committee prepared amendments to the Law No. 2166 on December 9, 2015, that were approved by the human rights organizations taking into account proposals of the President. These amendments left actually the Law essence without changes, putting the responsibility for control to the Ministry of Social Policy, which has already been the main responsible authority on ensuring the IDPs rights.
On the last sessional day of 2015, on December 24, about midnight, the Law No. 2166 was adopted and the President signed it already on January 6, 2016 that gives hope that in 2016 the situation with the IDPs rights will improve.
The adopted law No. 2166 can really be considered as the exemplary – it completely meets the international standards. Now foreign citizens and stateless persons, who reside permanently in the territory of Ukraine and have been living in the temporarily occupied territories, can become the internally displaced persons. In addition, this law is the first step toward departure from the Soviet rudiment – so-called “registration”. Now the citizens, who had been living in the temporarily occupied territories before occupation, but had not been registered there, can also become the internally displaced persons according to the expanded procedure.
Now, the IDP certificate will remain in force without limit of time and the displaced persons should not pass re-registration for prolongation of the certificate and be registered in the SMSU. This law also helps the internally displaced persons to be registered in the labor market and to find work.
Examination of the IDPs appeals to community receiving offices of the human rights organizations allows to state that at the beginning of 2015 during active military operations, the main problems for the displaced persons were:
- Evacuation from the conflict zone. There was not enough transport, including specialized one. Buses were under fires of terrorists, some buses were not let out from the territories under control of separatists.
- Lack of places for transit temporary settlement.
- Psychological trauma. The IDPs were often under stress because of shelling, destruction of housing, threats to life and health, death of relatives.
- Receiving the IDP certificate, restoration of pensions and social payments, as well as registration of financial assistance from the state. Queues to be registered lasted for several months in the eastern regions of Ukraine at the beginning of a year. People left without money and could only rely on the charitable and humanitarian assistance.
- IDPs access to free medical services is often unfairly associated with registration and the place of residence registration. There was also a problem, when IDPs were ignored at the state distribution of the vital medical preparations for patients, who needed them (for example, a hemodialysis).
Unresolved issues, remaining in the second half of 2015, were:
- Discrimination of IDPs due to the shortcomings of the abovementioned legislative and regulatory acts, as well as the administrative practice.
- Housing for the displaced persons.
Problems with housing and employment remain the most critical for the displaced persons. According to the data, published by “Vostok-SOS” Organization, only 7% of the IDPs live in the rooms provided by the state, another 33% live in homes of relatives and friends and 60% of the displaced persons rent houses at their own expense. At the same time, the rent has increased in the national currency by 20-30% within a year, and the amount of social payments for IDPs remained unchanged.
According to an analytical note of the State Employment Centre on provision of services to the internally displaced persons dated November 25, 2015, there are only 24% of the able-bodied persons among the displaced persons. 126 thousand of persons of working-age, that is 7.8%, have informed about the need for employment and 61.6 thousand of the internally displaced persons that makes only 3.8% of the total number of IDPs, have asked for the help in employment, when receiving the reference. The State Employment Centre promoted the employment of 17.2 thousand of such citizens that makes 1% of the total number of the displaced persons and 4.4% of the total number of the able-bodied IDPs.
According to analysts of the State Employment Centre, these data confirm conclusions that more than a half of displaced persons, who declare the need for employment during the corresponding registration at the social protection offices, are not ready to work under different circumstances. In our opinion, this points to the fact that there is a big black labor market for the displaced persons and the inefficient work of the state in the sphere of IDPs employment.
The return of displaced persons during the uneasy truce has come up in the second half of 2015. The State Emergency Service provides data that more than 121,000 people – from those, who had previously registered as IDPs, had returned to Donbass as of October 01, 2015. If to trust data of the Ministry of Foreign Affairs of the self-proclaimed DNR, the population of so-called “DNR” has increased during 2015 more than by half a million people, due to return of the displaced persons and refugees.
The main reasons for the return of displaced persons in the occupied territories, in our opinion, are:
- Truce, though it is uneasy and incomplete, but many displaced persons ran from the active military operations.
- The inability to find housing and to get a job in the territory under control of Ukraine, as well as some other problems with IDPs rights.
- Fear of the displaced persons to lose the property left in the occupied territories. In addition to the robberies, pillaging and chaotic capture of real estate in the occupied territories, the leadership of DNR declares constantly about the possibility of “nationalization” of real estate of the displaced persons. And the self-proclaimed LNR adopted even “the law”: “On Amendments to the Law of Luhansk People’s Republic “On Taxation System of Luhansk People’s Republic”, which involves the introduction of temporary administrations at the enterprises, which were left without owner or did not pass an obligatory re-registration in LNR. “Document” introduces the concept of “the ownerless property”, which is determined as “the property, which has no owner or which owner is unknown”. This “document”, actually, “legitimizes” the expropriation of property of the displaced persons in LPR during a year.
- The impossibility of departure of relatives from the occupied territories, who need help, is another reason for return of the displaced persons.
There are also other reasons for the return of IDPs on the occupied territories, in particular, ideological, but they do not affect the choice of basic mass of the displaced persons – to stay or return. If the majority of the listed reasons depend mainly on the external circumstances, then problems of arrangement of IDPs in the controlled territory, as well as a protection of their rights depend directly on the state policy of Ukraine.
At the same time, western experts note the high level of IDPs integration. Even the superficial glance of the foreigner, who travels throughout Ukraine, does not detect the country with 1.5 million internal refugees in it: the displaced persons seemed to dissolve in society and externally and in behavior do not differ from the rest of society, unlike the forced resettlement of such scales in other countries, where the large number of the displaced persons is evident. This is due to high degree of solidarity of the Ukrainian society, as well as because the most active and the most educated part of society of the occupied territories became the displaced persons in Ukraine, in its mass. It is confirmed also by data of the State Employment Service: persons with the higher education are more than 70% of unemployed IDPs; it is characteristic that the proportion of displaced persons with the higher education is prevailing in all regions.
Analyzing the legal practice of community receiving offices of the Ukrainian Helsinki Human Rights Union (UHHRU), we can state that specifics of questions, with which the displaced persons consulted, had been changing during the year. The specialized receiving offices of UHHRU have held 6137 consultations during 2015. The main issues were:
- Receiving the status of internally displaced person.
- Continuation of this status.
- Obtaining of targeted assistance for displaced persons.
- Registration of pensions, subsidies and other social payments for the displaced persons according to the place of residence after moving.
These issues made 40% of applications – and there were many problems with them in the first half of 2015. However, these problems are solved more effectively, since the state authorities have already developed the unified approach to solving similar questions in the administrative practice, therefore, the number of similar applications has declined in the second half 2015.
On the contrary, more applications concerning coming of IDPs into inheritance have been recorded by the end of the year. For this category of applications the UHHRU made requests to the Ministry of Justice that in case of receipt of precedent in court it was possible to create the standard claim. There is no unambiguous decision today for these difficult issues.
The Center of Strategic Affairs of UHHRU has accompanied the several resonant strategic cases during 2015, important for creation of precedents in the court practice.
One of the most important is the case on the claim of Ruslan Nechyporuk. Provision of the displaced person status to the person, who was not registered in Crimea at the time of the occupation, was the subject of the claim. Case concerned the student, who at the time of filing of application, has already moved to Kyiv, has been enrolled in Kyiv higher educational institution and his place of residence has been registered in the Kyiv hostel. There are many such cases throughout the country.
UHHRU filed this claim, motivating it with the fact that the place of residence registration in the occupied territory is the secondary basis for provision of the displaced person status. The main and determining thing in this case is the fact of moving, which the person can confirm not only by “registration”, but also by other documents. The fact of displacement of Ruslan Nechyporuk was definitely confirmed by orders to transfer the claimant from the Crimean higher education institution to Kyiv, providing the copies of the academic records, testimonies of witnesses. On this basis, the Court issued the decree on provision to Ruslan Nechyporuk of the IDP status and payment of targeted financial assistance to him from the state. Based on this decision, the explanations were jointly developed and submitted to the Ministry of Social Policy, which then should help to solve the similar cases.
There were few complaints on discrimination at the local level and hate speech concerning the displaced persons. Monitoring specifies the problems of children in kindergartens and schools, problems with transfer of property. There were several egregious examples, when the displaced persons were discharged from hospitals before the required deadline. The legal claims connected with honor and dignity protection, as well as with issues of the IDPs discrimination were not filed at the local level.
- Verkhovna Rada of Ukraine – to adopt the draft law No. 2167 on amendments to the Law of Ukraine “On Ensuring Rights and Freedoms of Internally Displaced Persons” (about compensation for cost of the damaged property). To adopt the draft law No. 2501a-1 “On Amendments to Some Legislative Acts on Ensuring the Voting Rights of Internally Displaced Persons” before the following local elections.
- The Cabinet of Ministers of Ukraine – to denounce the discrimination resolution No. 79 dated March 04, 2014. To introduce amendments to resolutions No. 505, No. 509, No. 595 of the CMU according to proposals of the human rights organizations. To remove the discrimination provisions, to remove a binding of social payments and pensions before IDPs registration. To bring resolutions into conformity with the Law of Ukraine “On Ensuring Rights and Freedoms of Internally Displaced Persons” and the Law No. 2166 “On Amendments to Some Laws of Ukraine Concerning Strengthening of the Guarantees of Rights and Freedoms of Internally Displaced Persons”. To unify the software of various executive authorities for data exchange automation.
- The National Bank of Ukraine – to denounce the departmental resolutions No. 699 and No. 810.
- The Ministry of Social Policy – to create the single protected electronic information database of the internally displaced persons, with the automated access of the competent state authorities. To develop the accurate instructions for departments of social protection according to the Law of Ukraine “On Ensuring Rights and Freedoms of Internally Displaced Persons” and the Law No. 2166 “On Amendments to Some Laws of Ukraine Concerning Strengthening of the Guarantees of Rights and Freedoms of Internally Displaced Persons”, to unify the administrative practice and to remedy the breach of IDPs rights specified in the report.
- Other authorities and local self-government – to develop regulations and procedures for providing the rights of IDPs in accordance with their powers and provisions of the Law of Ukraine “On Ensuring Rights and Freedoms of Internally Displaced Persons” and the Law of Ukraine “On Amendments to Some Laws of Ukraine Concerning Strengthening of the Guarantees of Rights and Freedoms of Internally Displaced Persons”. To unify the software of various executive authorities for data exchange automation.
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