The document is drafted in the framework of the “Advocacy and legal assistance to internally displaced persons in Ukraine” Project implemented by Danish Refugee Council and Right to Protection with support from UNHCR
ANALYSIS OF THE STATUS OF EXECUTION OF LAWS ON THE STATE REGISTRATION OF ACTS OF CIVIL STATUS IN THE DONETSK AND LUHANSK OBLASTS September 18, 2015 prepared by Suleyman Mamutov, Legal analyst, Right to Protection Introduction “Advocacy and legal assistance to internally displaced persons in Ukraine” Project is a result of cooperation of Danish Refugee Council and ACF “Right to Protection”1 and supported by the Office of the United Nations High Commissioner for Refugees. The project implementation will enable better protection of internally displaced persons and other vulnerable populations in Ukraine. For better understanding of IDPs’ needs, the project teams monitor the situation with community protection in 16 regions of Ukraine, provide legal aid and conduct awareness raising and advocacy work. Problem statement In late July 2015 monitoring teams of the project “Advocacy and legal assistance to internally displaced persons in Ukraine” started receiving an increasing number of reports regarding refusals to register births / deaths by the departments of the state registration of civil status acts in cases when these births / deaths occurred in non-government controlled areas. This analysis aims at drawing attention to the problem of refusal of the state registration of civil status acts (births above all) on the territories of the Donetsk and Luhansk oblasts. Delays in addressing this issue can lead to substantial increase in the number of undocumented children who will eventually become de facto stateless persons. We should emphasize that undocumented persons trying to exercise their rights granted by the Constitution of Ukraine frequently face serious limitations, or simply unable to make use of a particular right. If children living in non-government controlled or occupied territory have no valid documents, they will be unable to move to the areas controlled by Ukraine. In turn, this inability to travel to the government-controlled areas significantly increases likelihood of violations of many other rights of these children, provided by the Ukrainian legislation and international law. On September 01, 2015 the legal analyst of the project and monitoring team of Luhansk oblast held meetings with the heads of the divisions for the state registration of civil status acts in the cities of Kreminna, Rubizhne, Syeverodonetsk and Lysychansk, as well as with the deputy
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All-Ukrainian Charitable Foundation “Right to Protection” (R2P) in partnership with HIAS is working to protect human rights and serves the interests of internally displaced persons (IDPs), refugees, asylum-seekers, stateless persons and other vulnerable populations.
director of the State Registration Department – the head of the division for the state registration of civil status acts at the Central Regional Department of Justice in Luhansk oblast. These interviews confirmed the existence of the problem with the state registration of civil status acts in cases when these acts occur in non-government controlled territories. Legal frameworks State registration of the acts of civil status is carried out on the basis of the Civil Code of Ukraine, the Family Code of Ukraine, the Law of Ukraine “On the State Registration of Civil Status Acts”, and the Ministry of Justice of Ukraine Order No. 52/5 “On Approving Rules of the State Registration of Civil Status Acts in Ukraine” as of October 18, 2000. Article 49 of the Civil Code of Ukraine determines that registration of the acts of civil status shall be carried out pursuant to the law. A natural person’s birth, origin, adoption, annulment and restoration of parental rights, marriage and divorce, change of name and death shall be subject to compulsory entry into the State Registry of Acts of civil status maintained by the justice authorities according to the procedure established by the Cabinet of Ministers of Ukraine. According to Article 144 of the Family Code of Ukraine, the parents shall register a child’s birth with the state authority for registration of civil status acts without delay but no later than one month after the child is born. Failure to comply with this requirement provides grounds for bringing them to account as prescribed by the law. A child’s birth is attested by the Birth Certificate; its standard form is approved by the Cabinet of Ministers of Ukraine. The Law of Ukraine “On the State Registration of Civil Status Acts” establishes that rules and procedures for the state registration of civil status acts, modifications of vital records, their restoration or annulment shall be approved by the Ministry of Justice of Ukraine. The Order of the Ministry of Justice of Ukraine No. 52/5 as of October 18, 2000 (as amended) establishes that in view of inability of the divisions of the state registration of civil status acts in Autonomous Republic of Crimea and in the city of Sevastopol to fulfill their powers and authority on temporarily occupied territories, including state registration of civil status acts, modification of vital records, their restoration and annulment upon application from the citizens of Ukraine living on temporarily occupied territories of Ukraine, these functions shall be performed by relevant state registration authorities outside these territories. Upon application of the citizens of Ukraine who moved from temporarily occupied territory of Ukraine, the state registration of civil status acts, modification of vital records, their restoration and annulment shall be carried out by the divisions of the state registration of civil status acts at the place of application. Mentioned Order also determines that The state registration of civil status acts requires documents that confirm facts (events) subject to the state registration, as well as the applicant’s passport or another document proving the applicant’s identity. 2
Grounds for the state registration of birth include: а) Medical birth certificate (form No. 103/о), approved by the Order of the Ministry of Health of Ukraine No. 545 as of August 8, 2006, which is issued by health facilities (maternities) irrespective of subordination or ownership. If a child was born outside the health facility, the state registration of birth shall be carried out on the basis of medical birth certificate or notice of medical supervision (form No. 103-1/о), approved by the Order of the Ministry of Health of Ukraine No. 545 as of August 8, 2006, and Conclusion confirming live birth outside health facility, according to form, presented in Annex 3 to the Procedure of Conforming Live Birth outside Health Facility, approved by the Cabinet of Ministers of Ukraine Resolution No.9 as of January 9, 2013;
Grounds for the state registration of death include:
а) Medical (doctor’s) certificate of death (form No. 106/о), approved by the Order of the Ministry of Health of Ukraine No. 545 as of August 8, 2006; b) Medical assistant certificate of death (form No. 106-1/о), approved by the Order of the Ministry of Health of Ukraine No. 545 as of August 8, 2006; c) Medical evidence of perinatal death; d) Court decision to declare a person dead; e) Court decision on determination of death of a person at a particular time; f) Notice from the State Archives or the Security Service of Ukraine (SBU) in case of the state registration of deaths of persons repressed by the decision of non-judicial or judicial authorities; g) Notice from the penitentiary or pre-trial detention facility sent along with the medical certificate of death.
Grounds for refusal of state registration of civil status acts:
A person may be refused the state registration of civil status acts: a) if such registration is inconsistent with the current legislation of Ukraine; b) if the state registration must be conducted in other state body of civil registration; c) if the state registration is requested by an incapable person or a person lacking necessary powers and authority. Upon request of a person who was denied the state registration of civil status act due to the presence of one or several grounds specified above, a body or authority of the state registration of civil status acts shall explain the reason for such denial in writing. Current situation with implementation Until a certain point in 2015 the practice and procedure of maintaining medical documentation certifying births and deaths in non-government controlled areas of the Donetsk and Luhansk oblasts were almost fully in line with the provisions of abovementioned Order of the Ministry of Health of Ukraine No. 545 “On Arranging Medical Documentation Certifying Births and Deaths”. Therefore, relevant bodies of the state registration of civil status acts in the government3
controlled areas have been registering acts of civil status (births and deaths) occurring in nongovernment controlled territories. In the recent months, the self-proclaimed DNR and LNR authorities started issuing medical documents (e.g. form No. 103/0) with DNR and LNR stamps and seals, which is not in line with the provisions of the Ministry of Health of Ukraine Order No. 545. As a result, such medical documentation is invalid under Ukrainian law and is not recognized by Ukrainian authorities. Therefore, bodies of the state registration of civil status acts in the government-controlled areas currently lack legal grounds to register relevant acts (births and deaths) that occurred in the areas beyond Ukraine’s control. Facts of denial of state registration of civil status acts (births and deaths) are confirmed by a sharp increase in the number of court cases (almost 200 since April 2015) in Donetsk and Luhansk oblasts related to establishing the facts of births or deaths.2 We found that in many cases persons who applied for a state registration of civil status acts received only verbal waiver and were reluctant to go to courts. Therefore, the actual number of such refusals is likely to be much higher, while at the same time the number of undocumented newborn children is increasing steadily. Despite the fact that the law establishes a judicial procedure to establish the facts of birth / death, we believe that many people find it very difficult to use this this legal remedy. Furthermore, consistent use of judicial protection instruments in such categories of cases is too cumbersome and lengthy, as opposed to administrative procedures. We believe that failure to take timely action in developing a new administrative procedure for the state registration of civil status acts that occurred in non-government controlled territories will significantly increase the number of undocumented children who will eventually become de facto stateless persons. Government response According to our information, the Ministry of Justice of Ukraine developed amendments to the Civil Procedural Code of Ukraine. The draft law was conveyed to the Cabinet of Ministers of Ukraine for the approval and its further submission to the Parliament. Mentioned amendments envisage express judicial procedure (relevant cases shall be considered by the court within 24 hours upon filing the lawsuit) for the establishment of the fact of birth/death that occurred on the non-government controlled territories. The draft law prescribes that the court judgment shall enter into force and be enforced immediately. Officials of the Ministry of Justice of Ukraine also informed us that the Government of Ukraine is unlikely to provide and support non-judicial procedure to solve the issue. International experience
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Source: http://www.reyestr.court.gov.ua/
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In its Advisory Opinion “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)”, the International Court of Justice stressed that “non-recognition [of the South Africa’s administration of the territory of Namibia] should not result in depriving the people of Namibia of any benefits… In particular, the illegality or invalidity of acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory”. Therefore, the International Court of Justice resolutely rejected the approach refusing any effect to unlawful de facto regimes. Conclusions of the International Court of Justice were reflected in the rulings of the European Court of Human Rights (ECHR). In the Case of Cyprus v. Turkey of May 10, 2001, the ECHR stated “It is to be noted that the International Court's Advisory Opinion, read in conjunction with the pleadings and the explanations given by some of that court's members, shows clearly that, in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled”. Recommendations Based on the analysis of the situation related to the implementation of the legislation on state registration of civil status acts in Donetsk and Luhansk oblasts, in order to prevent violations of fundamental civil and social rights of people, and aiming at the reduction of undocumented children who are citizens of Ukraine, we RECOMMEND: 1. Terminate the practice of denial of the state registration of civil status acts that occurred on non-government controlled territories of Ukraine. 2. Introduce a mechanism of “Namibia Exceptions”, originally developed to address similar problems, and supported by International Court of Justice and European Court of Human Rights.
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According to this mechanism, authorized bodies should recognize only information included in invalid document, ignoring the validity of the act itself, or the document, issued by illegitimate governments. 3. Provide guidelines to the departments of state registration according to which they could continue carrying out the state registration of civil status acts occurring in the areas beyond the government control and on occupied territories.
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