The budget items targeted at IDPs and the right of foreign citizens and stateless persons to obtain an IDP status, which meets the Guiding Principles on Internal Displacement, were the last important innovations completed under the previous government. All further important changes were implemented under the new government, which was appointed on April 14, and triggered a broad debate among human rights activists, experts and politicians.
The only innovation that did not raise any questions was the need to create a Ministry responsible for the temporarily occupied territories and internally displaced persons by merging the State Agency for Donbass Recovery and the State Service for Crimea and Sevastopol Annexed by Russia. However, as it often happens, there was a debate about the scope of the new ministry’s powers. The obstacles appeared primarily due to the unwillingness of the Ministry of Social Policy to delegate its functions. Thus, by now, it is yet unknown what the final version of the Regulations of the Ministry’s functioning will look like. Although the Regulations were passed on June 8, they are already scheduled for revision based on suggestions by the Ministry of Foreign Affairs, the Ministry of Social Policy and the Ministry of Justice.
The new ministry is recognized as the chief agency in the system of central government bodies that formulates and implements the government policy regarding the temporarily occupied territories and uncontrolled territories in Donetsk and Luhansk regions. At the same time, it is not recognized as the chief government body in the IDP-related issues. Apparently, this is a forced compromise because of the position of the Ministry of Social Policy. Therefore, of the four goals of the Ministry of Internally Displaced Persons, which are listed in the Regulations, only one is directly related to IDPs, namely the goal of protecting their rights and freedoms and creating conditions for their return. The other three goals are about the reintegration of the temporarily occupied territories.
Among the important powers that allow to realize the goal of protecting IDPs is the right to collect and analyze the information required to solve the problems of the social protection of IDPs. However, the new Ministry cannot directly solve the problem of social protection, it only has the right to “facilitate” the social welfare of IDPs. Currently, social security is among the powers of the Ministry of Social Policy and the Ministry of Regional Development, Construction and Housing.
The Ministry of IDPs can develop some suggestions about the measures to ensure that the IDPs’ rights are protected and submit them to the Cabinet of Ministers’ consideration. It has the right to develop government programs for IDP-related issues and take steps to implement them in the part about the socio-economic and cultural development of IDPs and the protection of their constitutional rights and interests.
The Ministry can use the relevant databases run by government agencies, including the Unified Database on IDPs. The changes introduced in December into the Law “On guaranteeing the rights and freedoms of internally displaced persons” name the Ministry of Social Policy of Ukraine responsible for updating and maintaining the Unified Database on IDPs. However, the procedures for creating and maintaining this database are still not detailed. The preliminary deadline for completing all the procedures and launching the database into full industrial exploitation is the end of July 2016.
It is extremely important that the Ministry of IDPs has the right to establish its territorial branches when it has funding for them. However, the number of employees in the territorial branches is limited to 9 officials, while the ministry’s staff will include 105 public servants.
When the university admission campaign started, the task of ensuring the right to the access to education appeared on the agenda. In order to confirm the constitutional right of the people who live on the temporarily occupied territories to receive education at all levels, from pre-school daycare to higher education, the parliament passed two laws, No. 1038-19 and No. 4350. The former was about the temporarily occupied territories, and the latter about the ATO zone. The differentiated approach is caused by the paradoxical situation in Ukraine. De facto the Donbas area and the Autonomous Republic of Crimea are recognized as temporarily occupied territories. However, the eastern regions were assigned this status by a parliament’s decree, and Crimea by a law. Furthermore, the eastern regions also have the additional status as the ATO zone.
In case of the problem of access to education, the government also decided to differentiate its approach to Donbas and Crimea and developed different mechanisms for them. It is a quite contested and unfounded decision. First, if the government provides preferential treatment to people coming from the ATO zone, then not only the university applicants from the territories where the military operations take place will benefit from this treatment, but also the applicants from Mariupol, from Izum district of Kharkiv region and many other small towns included into the ATO zone, where there are no or have never been any military operations. Second, the government has limited the list of the universities that will be accessible for them without the External Independent Evaluation. In addition, these universities are different for the Crimeans and the applicants who come from the ATO zone. This decision suggests that the Ministry of Education did not have the student’s interests in mind while it was deciding, but served the interests of the higher education institutions, which needed money. Thus, the applicants from Crimea can be accepted via entrance exams to 12 HEIs where a special quota of 20 percent will be assigned to them. And the applicants from the ATO zone can be accepted to 16 evacuated HEIs which currently offer education of questionable quality. The mechanism is designed, basically, to assign the applicants to specific HEIs. And if any of them wants to study in some other HEI, not included in the list offered to them, they’ll have to take the EIE exams.
As for the details of the legislature about this issue, the law No. 1038-19 has introduced some changes into the Law “On protecting the rights and freedoms of citizens and the legal regime in the occupied territory of Ukraine,” which guarantees access to social services, employment and the right to education. However, the basis of the government policy in ensuring these people’s right to education is the fact that the state does not recognize the education certificates issued on the temporarily occupied territory of Ukraine; nevertheless, the government has designed a mechanism to realize their right to education. They were given the right to take the final state examinations at high schools in other regions of Ukraine and to receive certificates about completing their secondary education.
In order to meet the requirements of this law, the Ministry of Education has issued a decree No. 560 of May 24, 2016 “On the procedure of admission to obtaining higher and professional-technical education for the persons who live in the temporarily occupied territory of Ukraine,” which regulates the procedural issues. The decree states that educational centers will be created on the basis of the 12 HEIs that received the quotas to accept applicants from Crimea in Kyiv, Dnipropetrovsk, Zaporizhzhia, Lviv, Mykolaiv, Kharkiv and Kherson. The centers will function between July 1 and September 20. They are supposed to facilitate the final state examination in Ukrainian Language and Ukrainian History, since these applicants are exempt from the exams in other subjects. Another key task of the centers is to organize the entrance exams to these HEIs.
The graduates of the high schools located on the temporarily occupied territories have to submit a request to an authorized secondary education institution (SEI) to receive their secondary education certificates, stating that they finished 9 or 11 grades. In order to obtain these certificates, their knowledge of school subjects must be evaluated. The procedure is contingent, and the decision is made by a SEI official based on the evidence provided by the person who submits the request: notes, copies of test papers, etc. However, the applicant has to pass the final state examination in Ukrainian Language and Ukrainian History. The average grade of their education certificate will be calculated as the average of the results of the final state examination.
After the applicant successfully passes the examination, the SEI orders the education certificate for the applicant, and until it is issued, provides him or her with a free-style reference note that can serve as a basis for his or her admission to entrance exams and to higher and professional-technical education institutions.
However, if the high school graduate wishes to apply to a HEI which is not included in the “preferential treatment list”, he or she will have to take the EIE exams. To facilitate this, the Ministry of Education appointed an additional exam session on July 4 to 12. However, those willing to take these exams were supposed to notify the regional evaluation centers about this decision before June 20.
High school graduates from the ATO zone have somewhat different opportunities to receive education. The Law No. 4350 gave them the right to apply to HEIs located in those areas of Luhansk and Donetsk regions which are under government control, or to HEIs evacuated from the ATO zone or temporarily occupied areas (16 HEIs in total). The high school graduates will be able to get accepted to these HEIs based on both their EIE results and their entrance exam results.
The admission procedure is detailed by the Ministry of Education in the Decree No. 697 of June 21, 2016 “On the approval of the Procedure of admission to receiving higher and professional-technical education for the residents of the territory where the anti-terrorist operation is conducted (for the period of the operation)”.
At the locations of the evacuated HEIs in Ukraine, a network of educational centers has been created, where students can sit their yearly exams, pass the final state examination in Ukrainian Language and Ukrainian History, and receive the government-issued education certificate. The next stage is to pass entrance examinations in the subjects determined by the Admission Rules of HEIs. The examinations are organized by HEIs until September 20, and in case of state-funded places until July 27.
The government has introduced changes to the Decree No. 509, which regulates the procedure of registration of IDPs.
The changes were introduced in two waves: On September 14, the government prohibited to provide the addresses of central or local government offices or any other premises where the IDPs do not actually live as their de facto place of residence. Until this amendment, it was a widespread practice to “live” at the addresses of public welfare offices. The holders of such certificates will have to re-register by July 20, 2016, otherwise their certificates will become invalid. As an exception, in cases of reasonably justified need, the deadline for re-registration can be extended for 60 days.
On June 8, the new sample IDP certificate was designed, which looks like an A4 sheet of paper signed and sealed by an authorized official. The certificate is issued free of charge and immediately if the registration in an applicant’s passport is in the corresponding territory, or within 15 workdays if the residence is confirmed not by a registration stamp but with evidence. The list of possible evidence is not exhaustive, it can include documents, photo and video recordings, everything that is acceptable as evidence for establishing a fact in civil law and has legal significance. These can be certificates of ownership, education certificates, reference notes from an employer, etc.
An IDP certificate is issued to every person who applies for it, including young children. Special attention is paid to children’s cases: the government has regulated the procedure of giving the IDP status to young orphans, to children deprived of parental care, and has specified the list of documents they have to submit. The list has also been expanded. From now on, additional information should be submitted about vulnerable categories that require special attention: information about schooling and daycare, about legal representatives that accompany the child, information on disabilities and the need for technical and other means of rehabilitation. In addition, the government collects data about employment, education, profession, job position of all IDPs. In the long run, this should help to implement long-term solutions.
Another important moment was the confirmation of the right to the IDP status for people who served their time in prisons and are registered as residents of the temporarily occupied territories. Their right was confirmed during a lively discussion about transferring inmates to institutions located in the territories controlled by the government.
Discussions caused changes in the Decree No. 637 “Some issues with the provision of social payments to internally displaced persons.” The Decree was preceded by a publication of the information about certain violations in the sphere of social payments to IDPs, which, in the end, resulted in concrete statements by both law enforcement agencies and the Ministry of Social Policy.
The issue is that a certain number of internally displaced people actually permanently live in the occupied territories. That is, they are not IDPs, since, according to the law “On guaranteeing the rights and freedoms of internally displaced persons” IDPs have to leave or abandon their place of residence in those territories, even though this requirement does not prohibit them from visiting the temporary occupied territories. Until very recently, the law did not provide any clear explanation of the temporal limitations of such visits, until, in December 2015, the law was amended with clauses that clearly specified that a person cannot be absent from their indicated place of residence for more than 60 days.
In fact, the reason why the Ministry of Social Policy announced its intention to carry out verification and initiated changes to the Decree No. 637 was to determine the exact number of IDPs. It is important to mention that verification is not something new for IDPs. Verifications are carried out all the time, although usually by the Ministry of Finance. For example, during the summer of 2015, as a result of verifications, the Ministry blocked payments to 150,000 people, and this year it has blocked payments to 450,000 retired pensioners. These verifications are carried out all the time, and this year they were supposed to be much more intensive. This is confirmed not only by the Ministry of Finance’s announcements, but also by the changes introduced into the Decree No. 637 by the Cabinet of Ministers. The government decided that from July 1, 2016, all payments to the internally displaced will be paid only via the State Savings Bank (Oshchadbank) branches. Anyone who does not have an account in that bank had to open it before July 1, otherwise the payments were suspended. In addition, according to the decision made by the Pension Fund, from August 1, it is planned to exchange the bank cards owned by pensioners for new bank cards which simultaneously function as electronic pensioner IDs with three-year validity terms. At the same time, an additional verification option will be created: all the pensioners will have to pass physical identification in bank branches the first two times every six months, and later every 12 months.
By the amendments of the Decree No. 637, the Ministry of Social Policy de facto introduced the mechanism that would allow to carry out the verification independently, using the resources of local administration and local self-government. The key idea here is to authorize the structural units responsible for the social security of the population (de facto social inspectors), to give them the right to check the information about actual places of residence at least once every half a year, and to draw up reports about inspections of the living conditions of internally displaced families. If needed, additional intensified checks are allowed, to be carried out by the local departments of the Ministry of Interior, the Migration Service, the Security Service, the National Police, the State Financial Inspection, the State Audit Service, and the Pension Fund. The list of reasons for additional checks is exhaustive. They can be carried out:
- if there is information that an IDP has possibly changed his or her actual place of residence without notifying the authorities within 10 days;
- if there is information that an IDP has returned to the temporarily occupied territories;
- if the company State Savings Bank of Ukraine has announced that the spending transactions for an account were suspended because an IDP failed to pass physical identification (for example, if a person tried to open an account using a lost passport);
- if there are recommendations from the Ministry of Finance as a result of a verification of social payments, indicating specific reasons to stop providing the payments in question.
If checking the actual place of residence has a logical explanation, the inspection of the living conditions raises many questions. This kind of inspection is not a procedure particular to dealing with IDPs. Such inspections are carried out selectively for any citizens who claim to be eligible for some social payments, such as subsidies according to the Cabinet of Ministers’ Decree No. 848 “On simplifying the procedure of providing the population with subsidies to cover the costs of utility fees, buying the liquified gas, liquid and solid household fuel”. Thus, if needed, IDPs’ living conditions can be inspected based on other legislation. The mass check, however, is unjustified. It cannot be carried out to make a decision about assigning monthly targeted aid to IDPs, since this type of aid is not provided only in the cases when an IDP owns real estate or a bank account with a positive balance over 10 times of the subsistence wage. This information is checked by the Ministry of Social Policy by other means. Therefore, the necessity of the inspection of living conditions is questionable.
So far, it looks like just another way to waste human resources and create inconveniences for IDPs, since the protocol about the investigation of a family’s living conditions is supposed to be signed by all adult family members, which means that they need to be present at their place of residence. If an IDP is absent from their place of residence, they are twice notified that they are supposed to show up within three days for physical identification; meanwhile, a request to the State Border Service is sent to check whether the IDP has crossed the state border or the division line. The information about long-term absence (over 60 days) of a person at their place of residence is a sufficient reason for terminating social payments to them and canceling their IDP certificate. The decision about canceling the certificate is made by a structural unit responsible for social security. The decision about the termination of the payments is made by a committee for assigning (resuming) social payments to IDPs, created by local executive government bodies. If a person confirms that they do live at the indicated address and the payments were canceled wrongfully, they can be resumed only in two months. And if by that moment the committee has managed to cancel their IDP certificate, the payments can be resumed no sooner than in 6 months. The person is not compensated for the months when they did not receive payments, and not notified if the payments have been cancelled. Thus, the risk to lose a considerable part of the aid is quite high, and the solution is too complicated, involving numerous court hearings.
The Cabinet of Ministers’ Decree No. 637 authorized the committees for assigning social payments to the internally displaced (created by local executive government bodies) to resume or deny resuming the social payments to those IDPs whose certificates have been invalidated.
These same committees will, from now on, make decisions about paying pensions and stipends to IDPs, the aid to IDP families with children and other payments provided by the law. In order to receive social payments, an IDP has to have an open account in the State Savings Bank and to apply to a government agency that provides the relevant social payments (usually these are the local branches of the Pension Fund of Ukraine, the Social Security Fund, or Employment Centers) with an application form, a copy of their IDP certificate, an ID and documents which confirm that they are entitled to these social payments. The decision is made within 15 workdays.
On July 11, the report by the European Council’s Commissioner for Human Rights about his visit on March 21-25 to Kyiv, Dnipropetrovsk, and the uncontrolled areas of the Donetsk and Luhansk regions was published.
A part of the report was dedicated to the rights of IDPs. In general, the commissioner positively evaluated the framework legislative initiatives that allowed to launch the mechanisms for protecting the rights of IDPs basically from scratch, despite the lack of experience and resources. However, the report also contains critical comments. The principal one is about the mechanisms of verification. Before the Commissioner’s visit to Ukraine, in March 2016, payments to about 600,000 of IDPs were suspended without a warning. In some regions, the process was delayed because of the lack of coordination and information exchange between government agencies, depriving of payments those for whom the aid is the only means of subsistence.
The key Commissioner’s recommendations for improving the IDP policy are the following:
- The legislation should be reviewed to disconnect the entitlement to social payments from having the IDP status.
- The suspended targeted aid to IDPs should be fully resumed.
- The Commissioner does not deny the government the right to verify, but verification must be individual, meaning that payments cannot be suspended en masse, as it happened before.
- The algorithms for verifying and the suspending payments have to be clearly defined in legislation.
- All the legislative innovations must meet the standards for human rights protection.
- The newly created Ministry for the Temporarily Occupied Territories and the Internally Displaced Persons has to take over all the roles in the implementation of the government policy regarding IDPs. In the Commissioner’s opinion, currently these functions are too dispersed among various agencies.
In addition, the Commissioner expressed his opinion about paying pensions in the occupied territories. His position is that special mechanisms should be created to allow paying pensions to everyone who is entitled to them.
On May 6, the Appeal Court of Donetsk Region satisfied a complaint by a resident of Slovyansk whose home had been burnt as a result of shelling in June 2014, and decided that she should be paid a compensation of UAH 387,000. The size of the compensation was determined based on the mediated cost of building a housing unit in Donetsk region. This was the first decision of this kind since the beginning of the anti-terrorist operation in the east of Ukraine.
The key evidence in favor of making a positive decision was that it was confirmed that the apartment was damaged specifically during and as a result of the anti-terrorist operation. The Ukrainian Law “On fighting terrorism” provides that citizens should be compensated for the damage caused to them by a terrorist act from the Ukrainian State Budget.
Representatives of the Cabinet of Ministers of Ukraine objected to the lawsuit, claiming that the compensation should be provided by those who caused the damage. However, the court decided that the duty of compensation is on the government, regardless of whether it is to blame. In turn, the government gets the right to recover the sum of the compensation from the people who caused the damage, which is, however, unrealistic.
The practice of the European Court of Human Rights was also taken into account. The position of the ECHR is based on the assertion of the total responsibility of the state. In its decision on January 8, 2004, in the case of Ayder and Others v. Turkey, the European Court of Human Rights indicated that the state can be held responsible for compensating the damage to those who suffered from actions of undetermined persons or terrorists if the government admits its inability to maintain the public order and security or to protect people’s lives and property (Paragraph 70).
In the early March, the International Labor Organization (ILO) published the results of its study of the behavior of IDPs in the labor market, which was carried out in June 2015. It is the only all-Ukrainian research that allows to study the behavior of IDPs who have not registered in the State Employment Service (SES). Until then, only the data on the social and demographic characteristics of IDPs who used the SES services were available. As of March 2016, these made up only 40 percent of all the internally displaced who claimed that they seek employment. The ILO study is deeper, since, in addition to the data on sex, age, education and professional qualifications of IDPs, the researchers collected detailed information on the quality of their current jobs, the problems they faced while looking for a job, their intentions and expectations for the future.
The categories of employed, unemployed and economically inactive
According to the survey, about a third of IDPs did not ask the Employment Services for help with finding a job, because they were studying, have already retired, cared for small children or were disabled. Some IDPs (16 percent) did not address the SES centers because they had found jobs on their own or were transferred to a workplace in another part of Ukraine. Both those who found jobs on their own and those who are still looking for a job but do not ask the Employment Centers for help note that the vacancies offered by the SES are low-paid and do not correspond to their skills. On the other hand, the levels of economic inactivity and unemployment were much higher among IDPs than on average throughout Ukraine. The level of economic inactivity among IDPs was 46.8 percent, while on average throughout Ukraine it was 38 percent in the period of the survey.
It is important to understand how many people who currently do not plan to work can begin to work if the appropriate conditions are created. According to the ILO, 53 percent of the surveyed economically inactive people, including women with small children, students and people who did not look for a job because they had difficulties with the search (problems with papers, disappointment with their chances to find an appropriate job, etc.), may return to the labor market. Therefore, the ILO recommends to concentrate on the measures that would facilitate the move from inactivity to employment for youth and women.
The level of unemployment (the percentage of those IDPs who had no jobs, but were ready to get to work, among all the economically active IDPs) was 34.1 percent, compared to 9.6 percent on average throughout Ukraine in the 1st quarter of 2015 (by the ILO methodology). Most of the unemployed are women, people under 45, with a higher education degree, with slightly less work experience than the employed, and comparatively worse computer and internet skills.
The key economic sectors in which IDPs were employed before they got displaced were trade, industrial manufacturing, construction, transportation, and education. The fact that industrial workers are twice as likely to be unemployed than to be employed is evidence to the fact that their skills are highly specific and difficult to use at their new location. The survey also demonstrated that for IDPs, the key channels for job search are announcements on the Internet, in newspapers and in the streets. One in three IDP contacted employers directly, one in four looked for a job via relatives, friends and former colleagues, and only one in ten responded to vacancies from the State Employment Service’s database. Most of the unemployed looked for a full-time job, and one in five were interested in part-time jobs. The survey determined the average minimum wage that the IDPs would agree to, which is UAH 3,500, a relatively high wage. The relatively high demands can be explained by the need to rent an apartment and to replace the goods of long-term use, lost as a result of the forced displacement.
The two key problems faced by about 40 percent of IDPs during their job search are low wages and the discrepancy between the vacancies and their education and professional qualifications. However, only half of the surveyed expressed willingness to study in order to improve their skills. In addition, a third of the internally displaced pointed out that employers often do not want to employ them, thus discriminating IDPs in favor of the locals.
The level of employment among IDPs was 35.1 percent, while on average throughout Ukraine it was 56 percent. Almost one in three IDPs worked in trade and vehicle and car repairment, which basically corresponded to the structure of employment among IDPs before they were displaced. It is worth noting that, on average throughout Ukraine, the citizens do not work in this sector so often.
The construction sector is the second most popular among the employed IDPs. Although these sectors are capable of providing jobs to IDPs, employment both in trade and in construction is not always official and often does not provide long-term jobs. Quite often, IDPs agree to a job which requires less skill than they actually have. Most IDPs think that their current job is worse than before the displacement and would like to get another job, but only half of those who would like to change their job had been looking for a new one within two weeks before the survey.
In addition, 34 percent of all IDPs are employed in the shadow economy, compared to 16 percent on average throughout Ukraine, and even a higher education degree does not guarantee official employment. This means that IDPs are less protected in the labor market compared to the rest of the population.
A major part of the employers who participated in the in-depth interviews had some experience of employing IDPs. The great majority of employers who had employed IDPs had positive comments about this group of workers and indicated that they were often more hardworking and responsible than locals, since they were more dependent on their jobs. On the other hand, some employers from Western Ukraine admitted that they were prejudiced against IDPs and believed that IDPs were prone to criminal activities and were not very conscientious about their work duties. These employers also thought that not all IDPs were loyal to Ukrainian government and that they were often pro-Russian, which can cause tension in the team.
However, the main obstacle to hiring IDPs is still the bad economic situation that caused profits to fall and does not allow employers to expand their staff. But the problems with papers (the lack of residence registration or of the confirmation of employment history) are not the main obstacles to employment, according to employers. Although most of the employed IDPs do not plan to move within the next year, employers tend to argue that the uncertainty prevents them from hiring IDPs and training them at the workplace.
It is worth noting that most employers do not know anything about the advantages of hiring internally displaced persons or about government programs that could reduce the cost of cooperation with this population group for them.