IDP legislation: unsettled areas for a journalist to know
Three years since the start of the armed conflict in Donbass, Ukrainian IDP legislation has become no clearer. Covering IDP issues, journalists in the first place want to understand why certain problems IDPs are facing stay unresolved. Is it about violations of the law or about the law itself not meeting public demand?
A Forum for Editors has taken place in Kyiv аt the beginning of the year within the “Regional Voices: Strengthening Conflict Sensitive Coverage in Ukraine’s Regional Media” programme where Ukrainian editors discussed the challenges of covering IDP-related issues. Journalists often lack knowledge of law to be able to give a viable assessment of the situation and have a clear idea of what is going on. In one of forum’s sessions Taras Boikovych - a media lawyer and an expert for International Institute for Regional Media and Information – gave an insight into regulatory mechanisms that hinder the resolution of a number of issues IDPs are facing.
- Taras, could we give the general theme a bit of a structure? Let us start with property issues. Which issues regarding property rights are to be regulated by law?
- Article 11 of the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Citizens and on the Legal Regime on the Temporarily Occupied Territory of Ukraine”. Physical persons irrespective of acquiring IDP status reserve their real right, including right to real estate, including plots of land that are located in the temporarily occupied area, if the property has been acquired under the laws of Ukraine.
Implied is the fact that one can owe property on the occupied territory but be deprived of the right to use it. The problem can be resolved by introducing changes into the legislation, where it is stated that IDPs’ right to property is preserved and guaranteed, however, IDPs are exempted from the duty to maintain the property while the anti-terrorist operation is underway and in cases of incurred damage to the property or its demolition, its cost is to be reimbursed by either the aggressor-state or by the budget of Ukraine.
Another aspect not regulated by the law is paying utility fees to maintain property on the occupied territories. Why, how and whom to does the owner pay in utility fees in case the owner is not using the property located on the occupied territories? Public utility services of the so-called DPR and LPR are illegitimate, therefore, by transferring utility payments to the accounts of the latter, an IDP, in point of fact, is funding terrorism.
Point number three is property tax. The tax was introduced with changes to the Tax Law that came into effect on 1 July 2016. It is to be paid by physical persons before 30 September of anni currentis. The tax is imposed on apartment owners with total apartment space exceeding 60 square meters and detached house owners with net floor area exceeding 120 square meters. According to the Law of Ukraine the tax is imposed on all the citizens illegible, including those whose property stays on the uncontrolled territory. Internally displaced citizens can leave the tax unpaid in case their property is damaged.
You would agree that it is extremely difficult to prove the fact of damage inflicted due to the lack of the process at law, explaining how to do that. The inflicted damage is often registered by photographing. That is followed by a certificate issued by local authorities on request testifying to the fact that property has been damaged. The government-controlled territory of Ukraine does not acknowledge such confirmation certificates, since they are issued by illegitimate bodies. Our public authorities have no presence there. Therefore, the only possible option is to sue out the confirmation of damage inflicted to real estate. The procedure is complicated and has a number of peculiarities related to the disallowance by the state of documents issued on the temporarily occupied territories.
The fourth point is compensation for damaged and destroyed property. The schedule of publicly-funded reimbursement for damage inflicted to citizens by the terrorist attack has not yet been developed (Article 19 of the Law of Ukraine “On Terrorism Countering”).
In 2015 a resident of Sloviansk sued out a publicly-funded reimbursement of 387 thousand UAH of the cost of the house destroyed during the “anti-terrorist operation”. However, nobody knows what the judgment of the Supreme Court of Ukraine after cassation appeal will be and how the judgment is to be executed, if unamended.
According to information from the Ministry of Temporarily Occupied Territories and Internally Displaced Persons of Ukraine provided in a report of the Ministry of Social Policy for the second quarter of 2016, total funding of damaged real estate located on the territory of Donetsk and Luhansk regions, the real estate which needs foremost restoration, amounts to 5 803,456 mln UAH. In 2016 the funding of 277.012 mln UAH is envisaged. According to the report, to legislate the assessment mechanism for material and moral harm inflicted during military actions and temporary occupation of part of Ukraine’s territory, the Property Fund of Ukraine is developing a draft regulation to introduce a mechanism for estimation of material and moral harm inflicted during military actions and temporary occupation of part of Ukraine’s territory.
- Elections on the temporarily occupied territories is an issue of concern for many.
- What is Article 8 of the Law “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons” about? An IDP shall exercise their right to vote in Presidential Elections, elections to the Verkhovna Rada of Ukraine, local elections and referendums by changing the place of voting but without changing the voting address in accordance with Article 7(3) of the Law of Ukraine "On the State Register of Voters."
We are quoting here Article 8 of the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Citizens and on the Legal Regime on the Temporarily Occupied Territory of Ukraine”.
1. In Ukraine presidential elections, the elections of People’s Deputies of Ukraine and a national referendum, voting by the citizens of Ukraine on the temporarily occupied territory is not organized and is not performed.
2. The conditions for free expression of will in Ukraine presidential elections, the elections of people’s deputies of Ukraine and a national referendum shall be created for the citizens of Ukraine residing on the temporarily occupied territory on other territory of Ukraine.
3. Citizens of Ukraine residing on the temporarily occupied territory shall be entitled to vote at such election or national referendum by changing the place of voting without changing the voting address in accordance with Article 7(3) of the Law of Ukraine "On the State Register of Voters."
4. In the event of early termination of powers of the people’s deputy of Ukraine elected in a single-seat constituency, formed in the Autonomous Republic of Crimea or Sevastopol city, midterm parliamentary elections in Ukraine in this district are not conducted.
5. On the temporarily occupied territory the election of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local deputies, village, town and city mayors as well as local referendum are not conducted.
6. Bodies of the State Register of Voters, formed in the Autonomous Republic of Crimea and Sevastopol city, do not maintain the State Register of Voters. The procedure for access to records of voters, voting address of which belongs to the territory under jurisdiction of the State Register of Voters and updating of records are established by the Central Election Commission.
It is established in Article 7(3) of the Law of Ukraine "On the State Register of Voters" that based on a motivated request of a voter eligible to vote at a corresponding election or referendum a Body of State Register shall be entitled to temporarily (for the period of election) alter the voting location (the polling station) without changing the voting address.
With that, according to one law an IDP shall exercise the right to elect the President of Ukraine, Folk Deputies of Ukraine, vote in local elections and referendums. The other law, however, states that local government elections and a local referendum are not held on the temporarily occupied territory.
Hence are logical questions: which local elections exactly are implied in the Law “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons”? Does an IDP have the right to elect local authorities in a place of temporary residence or on the temporarily occupied territory? If, at a place of temporary residence, an IDP is eligible for electing local authorities on the temporarily occupied territories, then what is the mechanism of such elections? Points like those remain unclear.
- How legislated is the record keeping of IDPs?
- According to the Ministry of Social Policy as of 6 June 2016 1 785 740 IDPs has been registered in Ukraine: 1100 females and 700 thousand males. It should be noted that the data on number of IDPs originating from different sources differ considerably.
There is another example. According to Interdepartmental Coordination Headquarters on Guaranteeing Social Security of Citizens of Ukraine that Relocate from “Anti-Terrorist Operation” Regions and the Temporarily Occupied Territory (ICH) as of 7 June 2016 there was 760 thousand less IDPs registered than with the Ministry of Social Policy. According to ICH 1 026 177 people were relocated from the Temporarily Occupied Territory and “Anti-Terrorist Operation” regions to other regions. That includes 1 003 824 relocated residents of Donetsk and Luhansk regions and 22 353 people from the Crimean Autonomous Republic and 353 persons from Sevastopol City. Among them there are 169 756 children and 493 897 people with disabilities and the elderly.
It should be noted that there is certain dissimilarity in the methods of IDP registration between ICH and the Ministry of Social Policy. ICH registers individuals that turned for help in relocation and accommodation. The elicited information is then added to the register of citizens that relocate from the temporarily occupied territory and “Anti-Terrorist Operation” regions. In accordance with government decree No 509 “On Registering Internally Displaced Persons” as of 1 October 2014, the Ministry of Social Policy registers individuals that seek pensions or other types of benefits they are eligible for at their new place of residence. In reality the register of the Ministry of Social Policy includes not only IDPs but also those, who having renounced temporary accommodation, are actually living on the occupied territory, taking trips to the government-controlled territory in order to receive pensions or social benefits.
Since 3 October the Ministry of Social Policy has launched a consolidated information data base of IDPs. As of 21 November the Ministry of Social Policy has registered 664 726 IDPs from the “Anti-Terrorist Operation” regions and the annexed Crimea. On 1 December 2016 the Ministry of Temporarily Occupied Territories and IDPs claimed that the consolidated data base of IDPs does not meet their needs. At a press-conference Heorhii Tuka – Deputy Minister for the Temporarily Occupied Territories and IDPs – stated “There are a great number of issues that we need to be aware of. The current data base, unfortunately, is at odds with the criteria that we need and that the Ministry needs. That is not a rebuke to the Ministry of Social Policy. It is just that we have different tasks.” Tuka explained that the Ministry for the Temporarily Occupied Territories is interested in categorizing the people by sex, age, occupation, urban or rural residence and also about the advantages as to their future. (http://ua.censor.net.ua/n417360).
The question is: why has not a consolidated system for registration and control of IDPs been created yet to serve the needs of all state bodies? Such system is just not there. Even though it has been three years since the issue arose.
- Taras, as to state help and pensions, in particular. What are regulatory mechanisms for the benefits? Are there any legislative issues?
- According to Vladislav Mashkin, Deputy Chairman of the Pension Fund of Ukraine, 37 bln UAH has been spend in pension money since 2014. In the first quarter of 2014 the Government verified personal details of IDPs to identify violations in mechanisms of benefits allocation. According to Vice Prime Minister Petro Rozenko “since the start of the year (2016 – interpr.) the Security Service of Ukraine (SSU) has passed on around 450 thousand cases, where they were doubting the fact of residence on government controlled territory of Ukraine.” The state official acknowledged the possibility of inaccuracies. He stressed, however, that out of 450 thousand on the Security Service list around 80 thousand turned for benefits renewal.
According to figures from Information Office of the apparatus of Verkhovna Rada of Ukraine as of 2 December 2016, Mykhailo Chaplyha, the representative of Ukrainian Ombudsperson, pointed out that the issue of verification has not been legislated yet and that the actions of the Government can have extremely negative consequences, including threat to people’s lives. The issue has been raised as to the necessity of bringing the statutory documents of the Cabinet of Ministers of Ukraine in line with the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons”, about the unacceptability of pensions termination for the citizens of Ukraine residing on the temporarily occupied territory of Donbass and as to the unacceptability of applying the so-called “SSU lists” to internally displaced persons with pensions and other social benefits termination on the basis of those lists.
Andrii Reva – Head of the Ministry of Social Policy- stated that with IDP electronic register having been launched “accessible and comprehensive methods of control over internally displaced persons will emerge. Moreover, the State Border Service controls exits not only along the borders of Ukraine but also along the demarcation line. Thus, if information about an individual is needed, we can turn to the Boarder Service and they will inform us that the individual has crossed to the uncontrolled territory. The 60-days period comes into force straight away. Should the individual not be back during the 60 days, their IDP certificate is to be cancelled.” While maintaining the register, the Pension Fund will be exchanging data with the Boarder Service. The Boarder Service in their turn will inform the Pension Fund about the fact of a receiver of pension or other benefits exiting to the territory of Ukraine not controlled by the central government. If the person fails to go back to the territory controlled by the central government within the legal period, their IDP certificate becomes void.
Despite that, fundamental issues remain unresolved. Is it at all legal via verification procedures to deprive of pensions and social benefits those citizens of Ukraine that are living on temporarily occupied territory? What is verification about and who benefits from the process? How can it be controlled if a person residing on the temporarily occupied territory is the citizen of Ukraine and is qualifies for social benefits?
- What is the legal procedure for exit from and entry to the territory not controlled by the central government and for transporting the essentials? What issues have not been resolved?
- The procedure for entry to and exit from the temporarily occupied territory of Ukraine is set in the Resolution of the Cabinet of Ministers of Ukraine No 367 as of 4 June 2015. The representatives of Donbass SOS are justly calling upon the elimination of entry and exit issues, which could be achieved by:
- simplification of the procedure;
- abolition of the 50 kg per person luggage restriction for the citizens of Ukraine;
- establishing more checkpoints.
Since checkpoints were established, around 1.5 mln citizens of Ukraine and 300 thousand vehicles crossed the demarcation line according to a retreat session of the Committee on Human Rights, National Minorities and Interethnic Relations in the city of Kramatorsk on 13 April 2016. Therefore, there are issues with entry to and exit from the territory not controlled by the central government and legal procedures should be worked out for those issues to be resolved.
- Is IDP employment regulated legally?
- According to Article 7 of the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons” the re-registration of the unemployed is carried out by the State Employment Service by the place of actual residence of an individual. An internally displaced person that has not made herself/himself redundant (has not terminated other work arrangements) and cannot pursue work at the previous place, to acquire the status of an unemployed and receive the unemployment benefit and social services from Unemployment Trust Fund, can terminate labour relations by submitting a notarized written statement about the termination of work arrangements by the worker with a confirmation that the statement was sent to the employer by the worker in a registered letter (with a description of the enclosed statement). Should postal items no longer be received or sent on the territory of the administrative-territorial unit from which the internal displacement has taken place in connection with the circumstances set by Article 1 of the given Law, such a statement should be submitted to the corresponding regional, district or municipal employment centre by the place of residence of an IDP.
A registered IDP that has no prescribed documents shall be assigned the IDP status without the demands used for the regular procedure being applied. Before the documents and records about work periods, wage levels (income) and pension insurance record are received, such persons are assigned minimum unemployment aid prescribed by law in the event of unemployment.
- Why is the notarized statement? Why is the right to writing a statement in person in an employment centre not envisaged?
8 July 2015 the Government of Ukraine affirmed the Programme for Employment and Vocational Training of IDPs for 2015-2016, which envisages a series of top-priority steps for the state:
- creating temporary jobs for IDPs and inciting employers into using flexible work statuses.
- fostering the development of entrepreneurship among IDPs.
- organizing vocational training for IDPs in line with market requirements of corresponding regions.
- establishing social and economic conditions for the development of territories with dense IDP population and restoration of the affected regions, also resorting to labour potential of IDPs.
But the Programme is a declarative document, which does not oblige the state to concrete actions and funds allocation.
The bottom line is that we have the Labour Code as of 1971 and other stale laws about labour that are at odds with modernity, besides, with no regard to IDPs.
- Lack of accommodation is a thorny issue. As far as I understand, the state is not making the things easier, are not they?
- Let us consider Article 9 of the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons”, which states that an internally displaced person has the right to:
- safe conditions for life and health
- be provided with an opportunity of free temporary accommodation by bodies of state executive power, local authorities and physical and legal persons (with utility charges covered by the displaced individual) for the period of six months since registered. The period may be extended for families with many children, people with disabilities and the elderly.
State bodies, however, have not yet, developed the mechanism for passing accommodation for IDPs into the ownership of the latter.
There is also Article 17 of the Law of Ukraine “On Guaranteeing the Rights and Freedoms of Internally Displaced Persons”. The bodies of executive power and local authorities together with state banks and international humanitarian or charity aid programmes, if applicable, develop regional long-term soft lending programmes (including mortgages) for accommodation building or purchasing.
The Cabinet of Ministers of Ukraine in cooperation with the National Bank of Ukraine are developing legal mechanisms for bank loan interests return to those IDPs that due to the occupation or military actions faced the contingency of maim, disability or survivorship.
In case of allocation of targeted charity or international aid to IDPs for accommodation construction or purchase such funds are exempt from property tax and VAT.
The Ministry of Regional Development has improved the mechanism of long-term soft lending programmes targeted at individual building owners in rural areas. “We are expanding the range of opportunities for such lending programmes and will be able to enhance the construction of such accommodation by broadening the circle of loan users”, said Hennadii Zubko, Vice Prime Minister and Minister of Regional Development, Construction and Housing and Utilities of Ukraine. The Government affirmed the Resolution of the Cabinet of Ministers of Ukraine “On Introducing Changes into the Mechanism of Long-Term Loans Allocation to Individual Building Owners in Rural Areas”. “Citizens who were forcibly displaced from the temporarily occupies territories are eligible for such a loan. Combat veterans will be first priority loan recipients”, state official explained. According to Hennadii Zubko 2 972 such loans were provided.
Keeping in mind the figure of 1.8 mln registered IDPs in Ukraine as of 6 June 2016, with only 2 972 soft loans provided in 2015, the bottom line is that the soft mortgage programme for IDPs is not working!
- To round it all up, what is cooperation like between state authorities in terms of IDP assistance?
- Here is some statistics. According to latest update from regional and Kyiv municipal state administrations as of 30 June 2016 there have been registered 1492 orphan children and children deprived of parental care that relocated from the temporarily occupied territory (924 people – Donetsk region, 568 people – Luhansk region) and 646 children that relocated without any legal guardians by their side (421 people – Donetsk region, 225 people - Luhansk region) and are now residing in different regions of Ukraine. Out of 1492 people - general number of internally displaced orphaned children and children deprived of parental care - 1238 children (83 per cent) have a certificate to confirm their IDP status, and 1101 child (89 per cent) are receiving monthly targeted assistance to cover accommodation expenses. Out of 646 children – the general number of children that relocated unattended - 562 children (87 per cent) have a certificate to confirm their IDP status and 438 children (78 per cent) are receiving monthly targeted assistance to cover accommodation expenses according to the data of the Progress report on activities carried out in 2nd quarter of 2016 envisaged by the State comprehensive programme on assistance, social adaptation and reintegration of citizens of Ukraine that relocated from the temporarily occupied territory and “Anti-Terrorist Operation” regions to other regions of Ukraine before 2017.
The mechanism of execution and issuance of a certificate testifying to the fact that an IDP has been registered is established by the Resolution of the Cabinet of Ministers of Ukraine no 509 as of 1 October 2014. To receive the certificate an adult or an under age internally displaced person shall turn in person and a child of tender years, a disabled person or an incapacitated person shall act via their legal guardian, to submit a form approved by the Ministry of Social Policy of Ukraine, to a structural subdivision for social assistance in regional, district in the city of Kyiv state administrations, executive bodies of municipal and district (if established) councils (further referred to as designated bodies).
In accordance with the mechanism the application for a child of tender years who is an orphan or a child deprived of parental care to be registered is to be submitted on child’s behalf:
- in case of enrollment with a childcare centre, a healthcare facility or a social care organization with full state funding – by the head of such an institution;
- in case of being placed with a family of citizens in care, for adoption or with a foster home – by a representative in law (one of guardians, carers, adopting parents or foster parents).
An application for a child of tender years that relocated without a representative in law to be registered and issued an IDP certificate is to be submitted on child’s behalf by a relative (a grandmother, a grandfather, a great grandmother, a great grandfather, a brother or sister of age, an aunt or an uncle) or a stepfather, a stepmother hosting the child. In case a child of tender years relocated without a representative in law or one of the fore mentioned persons, the application is to be submitted on child’s behalf by children’s services representative at a place of stay of the child.
A logical question arises: why out of 1492 internally displaced orphaned children and children deprived of parental care only 83 per cent have an IDP certificate and only 89 per cent of them are receiving monthly targeted assistance? What are children’s services and other state bodies doing to address the problems of orphaned children – the latter being the most vulnerable segment of society?
In my opinion, missing are clear cut and time-bound mechanisms of professional engagement and cooperation between the bodies of the Ministry of Social Policy, State Migration Service, executive bodies of local governments, etc. For that reason, addressing the problems of IDPs, including the issues of orphaned children or children deprived of parental care, which must be on the priority list for the state, seems to be stretched out in time. Why three years on the state still has no system of effective cooperation between its bodies? The question is still open and worthy of media attention.
Another essential aspect is the lack of personal responsibility of officials at all levels for wrongful decisions or negligence. Only when personal responsibility is assigned for officials with their personal income at stake can we expect the effectiveness of their work to grow.
Taras Boikovych is one of co-founders of the Institute for Regional Media and Information (IRMI). Taras is a lawyer specializing in civil, administrative and media law. Since 2003 Taras has been involved in media training projects. He has been invited as an expert to a number of training projects for journalists and strategic communications professionals. His expert sessions touch upon information access and legal regulations of information activity.