ENHANCING THE NATIONAL LEGAL FRAMEWORK IN UKRAINE FOR PROTECTING THE HUMAN RIGHTS OF INTERNALLY DISPLACED PERSONS Council of Europe Project "Strengthening the Human Rights Protection of Internally Displaced Persons in Ukraine" Under the Framework of the Council of Europe Action Plan for Ukraine 2015-2017 2016 About this study This study was prepared as part of the Council of Europe Project “Strengthening the Human Rights Protection of Internally Displaced Persons in Ukraine”. Erin Mooney, an international expert on internal displacement, led and coordinated the research team, drafted the introductory and international framework sections and edited the study. Ukrainian legal experts Yevgen Gerasymenko, Olga Morkova, and Sergiy Zayets drafted the analysis of national legislation while the analysis of Council of Europe standards was drafted by Barbara McCallin as well as researchers and experts from the Advocacy Centre on Council of Europe Standards (ACCESS): Filip Chráska, Evgenia Giakoumopoulou and Costas Paraskevas. Antonina Vykhrest, Ghanna Khrystova and Theodora Kristofori of the Council of Europe finalized the report for publication. Note on the period of analysis covered by this study (December 2015 – May 2016) This study was prepared from December 2015 through May 2016. During this time, the Ukrainian legal and regulatory framework underwent some significant changes, both through the adoption of new legislation as well as amendments to existing laws and by-laws. This included changes directly affecting the human rights of internally displaced persons. On 8 June 2016, after the study had been sent for consultation, finalized and translated, the Cabinet of Ministers of Ukraine (CMU) adopted two resolutions that raised extensive concerns from IDPs, civil society and the international community. These are CMU Resolution No. 352 “On Amendments to the Cabinet of Ministers of Ukraine on 1 October 2014 Number 509” and CMU Resolution No. 365 “On some issues of social benefits for internally displaced persons,” amending CMU Resolution No. 637. These resolutions are not addressed in this study as they fall outside its timeframe. While the new resolutions introduce certain constructive provisions – for example no longer requiring the stamp of the State Migration Service on IDP certificates – other provisions and verification measures raise serious questions as to their conformity with Council of Europe standards, including the European Convention on Human Rights. While the specific details of the new resolutions are not included, this publication should help in scrutinizing these problematic resolutions against the backdrop of international standards. This, indeed, is the purpose of the study as such: to give a comprehensive overview of international standards on IDP-related issues and provide a clear methodology for evaluating ongoing changes in domestic law. In the near future, it remains the task of the Council of Europe and other international actors to support the Ukrainian authorities in upholding their human rights obligations. This includes making the necessary and relevant changes to the abovementioned resolutions so that they are fully in compliance with international standards. English edition: The opinions expressed in this work are the responsibility of the authors and do not all necessarily reflect the official policy of the Council of Europe. All requests concerning the reproduction or translation of all or part of this document should be addressed to the Council of Europe Project “Strengthening the Human Rights Protection of Internally Displaced Persons in Ukraine” ([email protected]) Cover photo: Anastasia Vlasova ©Council of Europe Project “Strengthening the Human Rights Protection of Internally Displaced Persons in Ukraine”, June 2016 Enhancing the Legal Framework of Ukraine on Protecting the Human Rights of IDPs 2 CONTENTS Executive Summary Acronyms Introduction Minimum Essential Elements of State Regulation: Overview of International and European Standards and Analysis and Recommendations for Ukraine 1. Definition of internally displaced persons 2. Protection against arbitrary displacement 3. Non-discrimination 4. Data collection (including IDP registration) 5. Recognition, issuance and replacement of civil documentation 6. Movement-related rights 7. Family life 8. Basic shelter and adequate housing 9. Access to food 10. Access to adequate water and sanitation 11. Health 12. Employment and social protection 13. Education 14. Electoral rights 15. Property and possessions 16. National focal point institution for addressing internal displacement 17. Allocation of adequate resources 18. Awareness raising and training 19. National human rights institution engaged on internal displacement Issues 20. Consultation with and participation of internally displaced persons 21. Cooperation with humanitarian partners Annex 1: Selection of Council of Europe standards relevant to the rights of IDPs Annex 2: List of key national legal acts relevant to the protection of IDPs in Ukraine Enhancing the Legal Framework of Ukraine on Protecting the Human Rights of IDPs 3 EXECUTIVE SUMMARY The annexation of Crimea in March 2014 and the armed conflict that began in eastern Ukraine in April 2014 have resulted in mass displacement both within Ukraine and across borders. As of June 2016, there are close to 1.8 million internally displaced persons (IDPs) registered in Ukraine. IDPs face specific and significant challenges as a result of their displacement, for instance regarding IDP registration, loss of civil documentation, freedom of movement, access to adequate shelter, protection of property rights, livelihoods, voting rights, durable solutions, and access to information. Protecting, assisting, and finding solutions for IDPs are, according to international law, primarily the responsibility of the Government. As the Council of Europe Commissioner for Human Rights has emphasized, “the Ukrainian authorities must take the lead in this process and demonstrate their resolve in ensuring that IDPs receive all the protection they are entitled to under international law.” The Government of Ukraine recognizes its responsibility towards IDPs and increasingly has discharged this responsibility, in a number of ways. One critically important benchmark of national responsibility for addressing internal displacement is ensuring a national normative framework that protects the rights of IDPs. In Ukraine, certain important legislative initiatives have been undertaken, most notably with the adoption and subsequent amendment of a Law on ensuring the rights and freedoms of internally displaced persons. These legislative initiatives are important steps, which are to be commended. At the same time, there is recognition, including by the Government, of the need to further enhance the normative framework to better protect IDPs’ rights and address the specific concerns they experience. This study reviews the national legislative and regulatory framework in Ukraine relevant to the human rights of IDPs and assesses its compatibility with international and regional, i.e. Council of Europe, standards. Based on this analysis, the study identifies a number of gaps and grey areas in national legislation in Ukraine which require corrective legislative, administrative, or other regulatory measures in order to enhance and ensure the protection of IDPs’ rights. An overarching challenge is inconsistency among national pieces of legislation, which frustrates the implementation of otherwise adequate norms. In other cases, even when relevant national legislative norms are in line with international and regional standards, a lack of adequate resources (financial and human), and in some cases even of political will, undermines their implementation. Each of the 21 thematic chapters in this study sets forth recommendations for enhancing the national legal framework for ensuring the protection of the rights of IDPs. The complete set of recommendations contained in this study should be given due consideration, in particular by the Government and Parliamentarians. More immediately, the Government is encouraged to take into account and urgently implement the key recommendations highlighted below, which can be grouped into three main sets of recommendations: A. Develop and enact necessary legislation to enable implementation of existing legislation: • Implement the Law on ensuring the rights and freedoms of internally displaced persons and all other legislation relevant for the protection of the rights of IDPs, including by drafting and enacting all necessary by-laws, regulations, and other required companion legislation to allow implementation of the IDP Law and other relevant legislation for the protection of IDPs’ rights; • Harmonize legislation by revising relevant national laws and by-laws to reflect and be in alignment with the revised Law on ensuring the rights and freedoms of internally displaced persons; Enhancing the Legal Framework of Ukraine on Protecting the Human Rights of IDPs 4 • Draft and enact the legal mandate of the newly established Ministry of Temporarily Occupied Territories and Internally Displaced Persons not only to assist but also protect and support durable solutions to displacement as well as coordinate with civil society and international actors, and ensure that this entity is equipped with adequate financial and human resources; B. Urgent legislative reform to ensure IDPs can enjoy their human rights: • Delink, in legislation and