In March of this year, CHRG carried out monitoring regarding the observance of the rights of citizens during the processing of documents in the territorial departments of the State of Ukraine and the centres of administrative services in Kherson.
It was found out that during registering of passports of a Ukrainian citizen to persons who have reached the age of 14 or 16 and residing in the temporarily occupied territory of the Autonomous Republic of Crimea, the registration data for the permanent residence are not entered in the passport data.
In particular, such violations were identified in the processing of documents by the Citizens Service Centre “Passport Service” “Document” Kherson.
At the request of the CHRG to the State Migration Service of Ukraine regarding the legality of such actions by the departments of the State Customs Service and the centres for the provision of administrative services, an unsubstantiated answer was received, signed by the deputy chairman of the DMSU Nikitina T.V.
Surprisingly, but it’s a fact: the information stated in the answer does not give an answer to the question of why when issuing passports of a Ukrainian citizen to persons who have reached the age of 14 or 16 years and who live in the temporarily occupied territory of the Autonomous Republic of Crimea, it does not include data on the place of residence of such persons.
At the same time, it follows directly from the answer that for today the fact of not including in the passport of a citizen of Ukraine who is living in the temporarily occupied territory of Ukraine the information about his place of residence is primarily due to the fact that certificates issued illegally by the authorities in the temporarily occupied territory and they are not recognized in Ukraine.
According to the DMSU, in this situation for entering into the passport of a Ukrainian citizen residing in the temporarily occupied territory of Ukraine information about the place of residence, information from the State Voter Register is required which can be used to record such information in the passport on the basis of Part 3 of Article 6 of the Law “On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory”. In the absence of such information, it is not possible to register residence in the temporarily occupied territory of Ukraine in accordance with the legislation of Ukraine.
This position of the DMSU contradicts not only the current legislation of Ukraine, but also international law regulating the regime of military occupation.
This conclusion is based on the analysis made by experts of the legal sector of the Crimean Human Rights Group in the framework that regulates the activities of the bodies of the State Registration Service for the issuance of a passport of a citizen of Ukraine and the registration of their place of residence:
Law of Ukraine as of 11.12.2003 No. 1382-IV “On the freedom of choosing the place of living in Ukraine”
Law of Ukraine dated 20.11.2012 No. 5492-VI “On the Unified State Demographic Registry and documents confirming the citizenship of Ukraine, certifying a person or its special status”;
Regulations on the State Migration Service of Ukraine / Approved by the Resolution of the Cabinet of Ministers of Ukraine dated 20 August, 2014 No. 360;
The procedure for the making of documents confirming the citizenship of Ukraine, certify the identity or its special status / Approved by the Resolution of the Cabinet of Ministers of Ukraine dated 4 June, 2014 No. 289;
Procedure for registration and issuance of a passport of a citizen of Ukraine, approved by the order of the Ministry of Internal Affairs of Ukraine No. 320 dated 13 April, 2012;
The rules of registration of a place of residence, approved by the decision of the Cabinet of Ministers of Ukraine dated 02.03.2016 № 207.
The procedure for registration of the place of residence and place of stay of individuals in Ukraine and samples of documents required for this, approved by the order of the Ministry of Internal Affairs of Ukraine dated 22 November, 2012 № 1077 (registered with the Ministry of Justice of Ukraine on 18 December, 2012 under No. 2109/22421)
Firstly, since local self-government bodies of Ukraine do not carry out activities in the temporarily occupied territory of Ukraine, the territorial bodies of the DMSU must apply the legislation of Ukraine that regulates the procedure for registering of a place of residence in the temporarily occupied territory of Ukraine and entering data about it into the passport of a citizen of Ukraine that was issued for the first time.
Acting exclusively in the legal field of Ukraine, the territorial bodies of the DMSU, in order to protect the constitutional rights of Ukrainian citizens permanently residing in the temporarily occupied territory of Crimea, are not only entitled, but also obliged:
To carry out its simultaneous registration at the place of residence, if there is an appropriate application;
To enter the data on registration of residence in the temporarily occupied territory of the Autonomous Republic of Crimea on the basis of various types of data on the registration of parents that are contained in their passport and other documents (extracts from the State Register of Voters, citizens’ explanations, medical documents, photographs, video recordings, etc. ) and coincide with the information stated in the certificates provided by the occupation authorities of Crimea, since the DMSU is both the administrator of the State Demographic Register and the body that implementing issuance of a passport of citizen of Ukraine.
Secondly, the territorial bodies of the DMSU have the right to determine the fact of the person’s residence in the temporarily occupied territory on the basis of certificates issued to citizens of Ukraine by illegally created bodies of the Republic of Crimea.
The conclusion of the DMSU on the impossibility of document prove of the place of residence of a person in the temporarily occupied territory of the Autonomous Republic of Crimea, including certificates issued by illegally created bodies of the Republic of Crimea, does not comply with the norms of international law regulating the military occupation regime, as well as the practice of the European Court of Human Rights.
Thus, according to the practice of the European Court of Human Rights, as well as the Advisory Opinion of the International Court of Justice (UN) in the Namibian case, all documents issued in the occupied territory cannot be invalidated, since this can damage the rights of the inhabitants of this territory. They can be used by states to protect the rights and interests of persons living in such territories.
Consequently, the information contained in the certificates issued by the illegally created occupation authorities can be used as an additional source of information confirming the place of residence of the underage in the presence of other evidence (for example, parents ‘statements, a stamp in the parents’ passport about registration of their residence, data on parents from State register of voters, explanations of citizens, etc.).
At the same time, considering the decisions of international courts, the use of acts of the occupation authorities by Ukraine in a limited context to protect the rights of its citizens-residents in the occupied territories does not mean that our country recognizes the legitimacy of the Russian occupation authority.
This position of the DMSU stipulates the unlawfulness of the actions of both the territorial bodies of the State Migration Service of Ukraine and the centres for the provision of administrative services for the fact of not filling the information about the place of residence of citizens of Ukraine who have reached the age of 14 or 16 years and who live in the temporarily occupied territory of the Autonomous Republic of Crimea.
Moreover, such actions essentially discriminate the specified category of citizens who have reached the age of 14 and 16, in relation to other citizens of Ukraine who receive a passport for the first time in the rest of Ukraine.
The absence of a residence in the passport of registration not only discriminates underage of Ukraine who stayed in the temporarily occupied territory, but also may become an obstacle to their rights (the right to education, free medical care, the use of banking services, etc.).
Taking into account this kind of circumstances, the civil organization Crimean Human Rights Group, in order to protect the constitutional rights of citizens residing in the temporarily occupied territory of Ukraine, filed an action with the district administrative court of Kyiv against the State Dispute Resolution Service, which specified the following requirements:
1) to recognize unlawful actions of the bodies of the State Migration Service of Ukraine to refuse to carry out registration of residence in the temporarily occupied territory of Ukraine and to enter data on registration of a place of residence in the temporarily occupied territory of Ukraine in the passport of a citizen of Ukraine of a person who has reached the age of 14 or 16;
2) when issuing a passport of a citizen of Ukraine for the first time to a person who has reached the age of 14 or 16, to oblige to register a place of residence in the temporarily occupied territory of Ukraine and to enter information on the registration of the place of residence in the passport of a citizen of Ukraine.
It is difficult to assume when the institution of “registration at the place of residence” will get a long-awaited democratic form that reflects not only the effective achievements of the most developed countries of Europe, but also takes into account the national peculiarities of the functioning of the social system of Ukraine in the conditions of an undeclared war with the Russian Federation.
In this regard, in order to promptly create additional guarantees for the observance of the constitutional rights of Ukrainian citizens residing in its temporarily occupied territory, it is proposed that the DMSU develop departmental methodological recommendations for registering the place of residence of citizens in the temporarily occupied territory of Ukraine that would comply with the norms of the national legislation of Ukraine and the international law regulating the regime of military occupation.
