Attachments
I. EXECUTIVE SUMMARY
1. This is the eighth report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the situation of human rights in Ukraine based on the work of the Human Rights Monitoring Mission in Ukraine (HRMMU). The report covers the period from 1 to 30 November 2014. It describes the continued deterioration of the human rights situation in the eastern regions of Ukraine and in Crimea. The total breakdown in law and order and the violence and fighting in the eastern regions, fuelled by the cross-border inflow of heavy and sophisticated weaponry as well as foreign fighters, including from the Russian Federation, has for the past eight months had a direct impact on all fundamental human rights – including the security, liberty and well-being – of individuals living there.
2. With the conflict in the east entering its ninth month, the situation is becoming extremely dire for the population, particularly older persons, children and people in institutional care, many of whom are on the brink of survival. Moreover, the impact of the conflict in the east on the rest of Ukraine is increasingly acute.
Situation in the east
3. The HRMMU observed early signs of the rapid deterioration of the security situation as of April 2014. Initially demands from protestors in the east were for a referendum on the federalisation of Ukraine and the recognition of the Russian language as a second State language. Groups of armed men – in a well-organized and coordinated fashion – unlawfully seized public buildings and police and security facilities in cities and towns across the Donetsk and Luhansk regions. As law and order increasingly broke down, so more human rights abuses, such as killings, torture, abduction for ransom and forced labour, started to be committed by members of armed groups, supported by increasing numbers of foreign fighters. On 14 April, the Government launched a security operation1 to re-establish control over those territories. By the end of April the self-proclaimed ‘Donetsk people’s republic’2 and the self-proclaimed ‘Luhansk people’s republic’3 were announced as having been established, which was furthered by the 11 May so-called ‘referendum’ on self-rule, contravening the constitution of Ukraine and international norms and standards.
4. Forced mobilization and threats of the use of the death penalty were additional means to intimidate and harass the population in the territory under the control of the armed groups. Increasingly as people left their homes, their property was seized. Efforts by the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ to develop their own systems of administration of justice (‘legislation’, ‘police’, ‘prosecutors’ and ‘courts’) did not improve the dire human rights situation on the territories under their control.
5. As the fighting intensified in the east, there have been increased reports of violations of international human rights law and international humanitarian law. This highlighted the need to ensure the protection of civilians. The use of indiscriminate shelling in residential areas has led to the killing of civilians, as well as the damage to property and infrastructure.
6. Over the months, allegations have come to the fore of mass graves, which have yet to be substantiated, as well as reports of the use of cluster munitions.
7. Despite the 5 September Minsk Protocol, which included a ceasefire as part of a 12-point peace plan, shelling and skirmishes have continued. This is largely the result of the non-implementation of key provisions of the Protocol by the armed groups, especially point 4 ‘ensure permanent monitoring of the Ukrainian-Russian border and its verification by the OSCE and a security zone at the frontier areas of Ukraine and Russia’; point 9 ‘early local elections in compliance with the law of Ukraine on interim self-governance in certain areas of Donetsk and Luhansk (the law on special status)’; and point 10 ‘withdrawal of illegal armed groups, military equipment as well as militants and mercenaries from the territory of Ukraine’.
8. By 30 November, the total number of casualties in the east had reached at least 4,364 killed and 10,064 wounded4. Over 1,000 bodies delivered to morgues in the conflict zone remained unidentified, and many sites where hostilities had taken place not yet been searched to recover all remains.
9. The efforts of the Government to safeguard the territorial integrity of Ukraine and restore law and order in the conflict zone have been accompanied by arbitrary detentions, torture, and enforced disappearances of people suspected of ‘separatism and terrorism’. Most of such human rights violations appear to have been perpetrated by certain voluntary battalions or by the Security Service of Ukraine (SBU). The procedural rights of people have not always been observed, with reports of ill-treatment and reports of reprisals upon release.
10. With the onset of winter and no let-up in the hostilities, the situation of approximately 5.25 million people living in the conflict and post-conflict affected areas is further deteriorating due to significant damage of the infrastructure, the breakdown of economic activities, and the disruption of social and medical services and social welfare benefits.
11. On 2 November, the armed groups organised ‘elections’, in violation of the legislation of Ukraine and the Minsk Protocol, in areas under their control.
12. Subsequently, the Government of Ukraine decided6 to temporarily relocate all State institutions and organisations present in areas controlled by the armed groups to Government-controlled areas. This implies the relocation of social, medical and educational institutions, the judiciary, penitentiary facilities, state enterprises and other entities, as well as banking services7. As of 1 December, all allocations from the State budget, (including for social payments) to areas not controlled by the Government ceased. To continue receiving social payments, residents of Donetsk and Luhansk regions under the control of the armed groups are required to register by 31 December, in territory under the control of the Government This was justified by the Government as necessary to prevent national budget funds falling into the hands of the armed groups who had taken control of social institutions, including local branches of the Pension Fund, as well as banks. However, pensions and other social payments will be redirected and may be received by beneficiaries and may be received in territory under the control of the Government8. For humanitarian reasons the Government continues to supply gas and electricity to the areas under control of armed groups without receiving any payment for it. The Decree also orders the reconstruction of damaged infrastructure for these utilities. These measures, and their implementation could have considerable consequences for the population in the eastern regions as the consequent institutional vacuum, lack of provision of public services and access to social payments is likely to create a severe protection gap, and to exacerbate economic and social vulnerabilities. Implementation of these measures needs to be considered, particularly their impact on the most vulnerable.
13. Locals who leave the conflict affected area are covered by a state program for IDPs. The capacities, however, of these registration points, which were already overwhelmed, were not prepared for the increased flow of IDPs generated by the Decision. The situation and fate of those who remain, either unable or unwilling to leave, is of serious concern, even if they are still legally under the protection of the State.
14. Many, particularly the most vulnerable, are on the brink of survival, facing continued hardship due to the conflict, and their condition may deteriorate with the onset of winter. This is further aggravated by the degradation of many public services, particularly specialised medical care, which has become more limited due to lack of staff and/or supplies. Treatment and care is at risk, particularly as some staff in public institutions have left their jobs. There are emerging but unconfirmed reports of people, particularly older persons, beginning to face starvation. Hospitals face shortages in staff and supplies, and as a result the standard of healthcare has deteriorated as medical staff are unable to maintain the pre-conflict standards of practice. Pharmacies are facing shortages, and many people are in need of basic medical supplies.
15. With the increasing needs in the conflict affected area, humanitarian assistance has continued to be provided by just a few international NGOs and heavily depends on the work of volunteers.
16. Over one million people have left the conflict affected region, either being displaced within Ukraine, or seeking refuge or other legal status in neighbouring countries. For those in internal displacement, their initial needs were predominantly met by volunteers and local authorities, who stepped in while the Government tried to find its way. Eventually the State Emergency Service took on much of the coordination of services. As of 30 November, there were 498,347 internally displaced persons (IDPs) in Ukraine, of which 450,000 had been registered by the Ministry of Social Policy. The new IDP law entered into force on 22 November.
Accountability
17. One year on since the start of the Maidan protests, there has been little progress regarding accountability for human rights violations committed in that context. In Odesa, the first criminal case on mass disorder in the city centre on 2 May was submitted to the Prymorskyi District Court of Odesa, which held its first session on 27 November while the pre-trial investigation into the killing of 48 people on 2 May is still ongoing.
18. In September, the SBU opened investigations into alleged crimes against ‘peace and security of mankind’, against the ‘Donetsk people’s republic’ and the ‘Luhansk people’s republic’, which reportedly relate to cases of torture and inhuman treatment of civilians and captured servicemen, forced labour and looting of natural resources.
19. Investigations into violations of human rights law and international humanitarian law are critical for ensuring accountability and progress towards a meaningful and genuine resolution of past violent incidents that have led to the loss of life. This will be critical in the east. It is the responsibility of the State to record allegations of violations of both human rights and humanitarian law committed during the conflict and at a time when it has control of the territory undertake prompt and full investigations.
20. Limited progress has been reported in the investigation initiated by the Ministry of Internal Affairs (MoIA), the Office of the Prosecutor General and the SBU into more than 300 cases of indiscriminate shelling of residential areas since the start of the year. In some cases armed groups started their own ‘investigations’ into indiscriminate shelling of the territories under their control, for instance in the shelling of a Donetsk school playground on 5 November. Legislative and other legal developments
21. Ukraine is in the process of elaborating a five year human rights strategy, to be submitted by the Cabinet of Ministers by 1 January 2015. This is welcome and follows a consultative process involving civil society and the Ombudsman’s office, supported by the United Nations system, through the HRMMU, and the Council of Europe.
22. Important steps were taken to improve the anti-corruption legal framework, in line with international recommendations. A National Council on Anti-Corruption Policy, involving a majority of civil society representatives, was established to coordinate anti-corruption policy and monitor its implementation, and a specialized national anti-corruption bureau will investigate crimes committed by high level public officials, including judges and prosecutors. The powers of the Prosecution not related to the criminal justice process, which used to be broad under previous legislation, were limited by law, a development which could strengthen fair trial guarantees. At the same time, some newly adopted legislation and its implementation raises human rights concerns. In particular, the dismissal of public officials under the lustration law adopted in October has started, with concerns that it may be applied in a discriminatory and arbitrary manner. The Government of Ukraine is cooperating with the Venice Commission of the Council of Europe regarding this law.
23. In dealing with the unravelling security situation in the east the Government decrees and legislation that have been adopted apply specifically to the conflict area. For example, an amendment to the law ‘on fighting terrorism’ extends the period within which a suspect arrested in the area of the security operation must be presented before a court from 60 hours to 30 days. An amendment to the Criminal Procedure Code9 has expanded the authority of the prosecutor in emergency situations or under martial law, allowing him to order searches of property and seizure of documents and other related activities in cases of suspected terrorist activity.
24. In the context of the situation in the east, the authorities adopted and later withdrew support from two laws drafted pursuant to the Minsk Protocol of 5 September. This decision, which applied to an amnesty law for ‘armed formations’ and a law providing for local self-government in parts of the Donetsk and Luhansk regions, followed the conduct of ‘elections’ in areas controlled by the armed groups on 2 November. These ‘elections’ did not follow Ukrainian legislation, a circumstance which the Ukrainian authorities deemed to be in violation of the Minsk Protocol. As a consequence of the ‘elections’ held in the East on 2 November, the Government adopted decisions, including a Presidential Decree on 14 November, instructing the temporary relocation of state institutions and enterprises (from areas controlled by armed groups. Through this Presidential Decree, it was announced that Ukraine would be requesting a derogation from the European Convention for the Protection of Human Rights and Fundamental Freedoms10 in areas no longer under its control. No derogation has yet been requested from the International Covenant on Civil and Political Rights but is also under consideration.
25. It should be noted that during Presidential and Parliamentary elections held in Ukraine, respectively in May and in October, and observed to have taken place in line with international standards, the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ denied those living in territories under their control the right to vote by either preventing or disrupting the electoral process.
26. Following the parliamentary elections held in October, a new Government was completed on 2 December. On 27 November, the two leading parties11 from the elections (and the core of the previous government), led by President Petro Poroshenko and Prime Minister Arsenii Yatseniuk, formed a broad parliamentary coalition ‘European Ukraine’, made up of five of the six largest parties and some non-aligned deputies. Mr. Yatseniuk was reappointed as Prime Minister. The coalition agreement defines future policies aimed at Euro-Atlantic integration, and includes broad spectrum of reforms and anti-corruption measures. Crimea
27. The situation in the Autonomous Republic of Crimea12 continued to be characterized by systemic human rights violations affecting mostly people who opposed the March ‘referendum’ and the application of Russian Federation laws, as well as the Crimean Tatar community13.
28. Although no new cases of enforced disappearances were reported in November, no progress has been made regarding the investigation of the cases of nine people who went missing since March and the death of three men.
29. Citizenship issues continued to be a concern. Following the March referendum, all Ukrainian citizens residing on the peninsula were automatically deemed by the ‘authorities’ in Crimea to have acquired Russian citizenship, while the Ukrainian authorities continued to consider them as Ukrainian citizens. A new quota applying to foreigners on the peninsula in 2015, giving entitlement to residence permits, risks leading to expulsions to those who do not obtain such permits.
30. All religious communities must seek registration in accordance with Russian legislation by 1 January 2015 in order to acquire legal status and to continue operating. This creates a hostile atmosphere hampering the exercise of freedom of conscience and religion in Crimea.
31. A recent trend has been the increasing violations of property rights. In particular, the illegal expropriation of the apartments of servicemen belonging the Ukrainian Ministry of Defence, which began to take place in November.