Information on Ukrainian documents issue for children born in DPR and LPR
Children, who live in the DPR and LPR, face difficulties in obtaining the following documents:
- birth certificate
- travel documents for children under the age of 16
- passport for children older than 16
- power of attorney from parents
In addition to these issues, children are affected by restricted access for their parents to various kinds of documents, such as:
- registration of marriages and divorces
- registration of real property
- death registration
Experts estimate that only 38% of children, born in the DPR and LPR, have been registered in Ukraine.
For instance, during first nine months of 2016, 14140 birth facts were registered by organs of registration of civil acts of the DPR and LPR. Of them, only 5328 children received a birth certificate of a Ukrainian model, and 8820 children don’t have any documents issued by the Ukrainian government.
All children regardless of place of residence should have equal access to documents in accordance with the national legislation and the “Convention on the Rights of the Child”. The responsibility of the Government of Ukraine must extend to all children, including those born in the Donetsk People’s Republic and Lugansk People’s Republic.
Birth registration is vital for protection against abuse, exploitation (e.g., child labor, and the marriage of minors) and violence, and it is essential for family reunification when a child is separated from his/her parents or legal guardians, especially during and after emergency situations.
The procedure of a Ukrainian birth certificate issue for children born in the territory of the DPR and LPR
In accordance with the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”, any document or decision made by authorities, including medical certificates of birth and confirmation by medical advisory commissions, are considered invalid and shall not create the civil legal effects. As a consequence, no registration done in the DPR and LPR is recognized by any official body in Ukraine.
There are two alternative solutions for birth registration procedure for children born in the territory of the Donetsk People’s Republic or the Lugansk People’s Republic:
- A medical advisory committee that can document the fact of birth and the identity of the parents if it meets within a 30-day period after birth.
To date, the procedure for creating the commission and the regulations on the commission have not been approved by the Ministry of Health of Ukraine.
- Court decision.
In addition, some parents of children born in the territory of the Donetsk People’s Republic and the Lugansk People’s Republic can engage “intermediaries” who, for a relatively high payment, would perform the registration. These individuals are specialists working for a particular company and/or are lawyers. Thus, parents who have enough financial resources can pay for these services and receive a Ukrainian birth certificate. However, this situation creates risks of inappropriate conduct of cases and fraud.
Children over the age of 16 are eligible for a Ukrainian passport. However, children living in the DPR and the LPR face the same problems when applying for a passport, as parents of children claiming birth certificates. In particular, they often face red tape, heavy expenses and risks to their lives and safety while crossing checkpoints (which are often shelled).
Children under 16 can get a passport of a citizen of the DPR or LPR, but it cannot be used for travel, except for trips to the Russian Federation.
Requirements for travel documents apply to all children under the age of 16 if they cross the international border or the line of contact with Ukraine.
Information on the position of the Ukrainian side on the number of pension and social payment recipients, who are residents of the Donetsk People’s Republic and the Lugansk People’s Republic.
At a meeting of the humanitarian subgroup in Minsk, held on November 9, 2016, the Ukrainian side, when discussing the issue “internally displaced persons and refugees”, reported that before the summer of 2014 1 million 50 thousand people left the territory of the Donetsk People’s Republic and the Lugansk People’s Republic, of which:
– 143 thousand people have never applied for pensions and social payments;
– 140 thousand people are currently undergoing verification;
– about 500 thousand receive pensions and social payments.
According to DPR representatives, the figure of 500 thousand people receiving pensions and social payments in the territory of Ukraine is overstated and actually amounts to about 200 thousand people.
Analysis of documents of international organizations regarding the obligations of the Ukrainian government to provide pensions and social payments to residents of the Donetsk People’s Republic
On October 12, 2016, the Parliamentary Assembly of the Council of Europe adopted Resolution No. 2133, paragraph 16.3 of which obliges the Ukrainian government “to simplify, to the extent possible, the daily lives of residents of uncontrolled territories and persons displaced from these areas by simplifying administrative procedures to receive pension and social payments”.
The Office of the UN High Commissioner for Human Rights in its quarterly reports on the human rights situation in Ukraine constantly pays attention to social payments to Donbass residents. As early as 2016, in its 16 Report, OHCHR stated that ” The suspension of social and pension payments to IDPs until verification of their residential address takes place is an ongoing concern. This continues to have a negative impact on IDPs’ access to social entitlements.” In the same document, the Office of the United Nations High Commissioner calls for payments to be made without linking pensions and social benefits to a registration of residence and registration of IDP status.
On June 8, 2016, the Cabinet of Ministers of Ukraine adopted Resolution No. 365 on social payments to internally displaced persons. The resolution provided that the structural social protection bodies should carry out checks of the place of residence of IDPs and draw up acts of inspection of living conditions of IDPs’ families.
According to the data included in the Unified State Register of Judicial Decisions of Ukraine on December 14, 2017, the District Administrative Court of Kiev declared unlawful and decided to repeal the government Resolution of June 8, 2016 No. 365 on making social payments to internally displaced persons. The Resolution also noted that the government decision was taken outside the powers of the defendant and with violations of all the procedures stipulated by the legislation, which should precede its adoption. On January 30, 2018, the Supreme Court of Ukraine formulated the following legal position in its resolution: “The courts correctly indicate the priority of applying the Article 49 of the Law of Ukraine “On Compulsory State Pension Insurance”, and therefore the allegations on the necessity to apply the provisions of the Resolution of the Cabinet of Ministers [referring to the CMU Decree No.365] are groundless”. The Supreme Court stressed that the payment of pensions can be terminated only based on an exhaustive list of reasons provided for in the law, which legal power is higher than one of the Resolution.
In the 21st UN Report, the authors welcomed this decision of the Court and expressed the hope that “this will lead to a change in the policy in order to ensure equal access of all Ukrainian pensioners to pensions.”
Paragraph 117 of the Report says: “OHCHR reiterates that the current system, which links the right to pension with IDP registration, has led to a significant reduction in the number of people from territory controlled by Republics receiving pensions. While 1,278,000 pensioners were registered in this territory in August 2014, 956,000 persons were receiving pensions as of January 2016, and only 504,900 people as of November 2017. While some pensioners residing in territory controlled by the Republics may receive financial assistance from the Republics, this does not replace their right to a pension, which is both a form of property and a type of social insurance provided exclusively by the State.