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III. SECURING CONSTITUTIONAL RIGHT TO APPEAL TO THE UKRAINIAN 
PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

3.3. EXERCISING THE RIGHT TO APPEAL TO THE COMMISSIONER BY ALIENS AND STATELESS PERSONS

The Ukrainian Constitution (Article 26) guarantees that foreigners and stateless persons who are in Ukraine on legal grounds shall enjoy the same rights and freedoms and also bear the same duties as Ukrainian citizens, with the exceptions established by the Constitution, laws or international treaties of Ukraine.

Thereby foreigners and stateless persons are guaranteed the opportunity to protect rights and freedoms by appealing to respective competent bodies, such as courts, the Commissioner for Human Rights, relevant international judicial institutions or bodies of international organizations, of which Ukraine is a member or participant (Article 55 of the Ukrainian Constitution).

This constitutional principle is fully reflected in the Law On the Ukrainian Parliament Commissioner for Human Rights that, apart from Ukrainian citizens, provides for foreigners and stateless persons the opportunity to appeal to the Commissioner on any infringements of their human rights and freedoms.

Appeals from foreigners increased in 1999 as compared with 1998: 76 foreigners and stateless persons filed appeals to the Office of the Commissioner – 21 in 1998 and 55 in 199.

In the opinion of the Commissioner this is explained by the growing number of violations in relation to foreigners and stateless persons as well as by their growing awareness of the possibility to appeal to the Commissioner for the protection of their rights and freedoms.

Citizens of the Russian Federation, the Republic of Belarus and the Republic of Moldova (see Table 3.13) accounted for the largest number of such appellants. These countries share identical problems, in the legal sphere included, after the disintegration of the Soviet Union. Quite a few of their citizens came to Ukraine for different reasons. Notably, the number of appeals from Russian citizens grew considerably after the conclusion of the bilateral Agreement on Cooperation Between the Ukrainian Parliament Commissioner for Human Rights and the Commissioner for Human Rights in the Russian Federation of March 22, 1999 that insured the legal protection of the citizens of both countries.

Table 3.13. Number of appeals to the Commissioner for Human Rights from foreign citizens

Most of the violations referred to in the appeals are similar to those expressed by Ukrainian citizens. However, there are some distinctions.

Judging from the analysis of the appeals, almost every second complaint by foreign citizens concerns violations of civic rights and human freedoms and, above all, rights to a fair trial in criminal and civil cases, violated rights during pretrial investigation, freedom of movement, freedom from unlawful expulsion from Ukraine and the like. Now and then inadmissible procedures were applied during pretrial investigation as, for instance, the case with the Belarus citizen V.Zenkovich; some law enforcement employees degrade the dignity of foreigners because of their national origin, especially citizens from Afghanistan, Georgia, Moldova and other CIS countries.

Relevantly, the Law On the Legal Status of Foreigners of February 4, 1994 does not properly govern the legal relations that arise in the exercise by foreigners and stateless persons of their rights and duties. Thus, the law stipulates that the procedure for issuing permission to immigration as well as documents for permanent or temporary residence and some other issues related to the immigration of foreigners is determined by the law on immigration, but in real fact such a law has not yet been adopted.

Neither does the Law On the Legal Status of Foreigners take into account all the international legal standards as enshrined, for instance, in Protocol No.7 to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Under these rules an alien who is to be expelled from the country should be given the opportunity to submit reasons against his expulsion, have his case reviewed, and be represented for these purposes before the competent authority or a person (persons) designated by that authority. An alien may be expelled before the exercise of these rights, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security. Insofar as the latter standard is concerned, the Commissioner for Human Rights holds that the Law On the Legal Status of Foreigners should be amended.

Besides, as stipulated by Article 26 of the Ukrainian Constitution, exclusively the Constitution and laws of Ukraine govern exceptions concerning the exercise of rights by foreigners and stateless persons. Contrary to this rule the CMU Resolution On the Rules of Entry of Foreigners into Ukraine, their Departure from Ukraine and Transit through its Territory of December 25, 1995 sets restrictions to the movement of foreigners across Ukraine’s territory, which is inconsistent with the laws of Ukraine.

A substantial part of the violations of rights of foreign citizens is related to their acquisition of Ukrainian citizenship or refugee status, which is treated in greater detail in Chapter IV of the Report.

As to foreigners serving prison sentences in Ukraine, their appeals center on the insurance of their rights and freedoms, specifically the right to health care. By appeal of the Commissioner for Human Rights a Russian citizen undergoing a sentence in Ukraine was released by court because he suffered from a grave case of tuberculosis.

In this respect the following example is revealing. Fernando Jose Belioso, Ambassador Extraordinary and Plenipotentiary of the Kingdom of Spain to Ukraine, addressed the Commissioner to facilitate his visit of a Spanish citizen in the investigation ward of the Security Service of Ukraine. Despite his diplomatic status, the ambassador had difficulties in exercising his right to visit a citizen of his country. After the Commissioner took appropriate measures, the problem was settled positively. Jointly with the Spanish ambassador, the Commissioner visited the investigation ward to meet the Spanish citizen. A number of other problems were settled in the process; in particular the arrestee was permitted to receive newspapers and literature in Spanish and see his relatives whose arrival was also agreed upon.

A substantial number of appeals, especially from citizens of the Russian Federation and Kazakhstan, focused on acquiring the status of victims of political persecution and related issues. Many citizens of these countries, who are Germans by origin, were expelled from Ukraine to the Russian Federation and Kazakhstan for what was then called special settlement. As a rule, they were also deprived of their property. For example, citizens of the Republic of Belarus I.Bartle and the Russian Federation I.Volik raised these issues in their appeals. The rehabilitation of this category of persons is not governed by operative legislation. To this end Ukrainian legislation has to be amended. The need to do so was emphasized by the Commissioner for Human Rights in an appeal to the chairman of the parliamentary committee on human rights and ethnic relations.

Among violations of economic rights of foreigners the most widespread is the violated right to recovery of cash and other savings in the banking and insurance institutions of the former Soviet Union. A lot of citizens of the CIS countries cannot receive these savings in Ukraine because there are no real state mechanisms of their redemption. The savings cannot be remitted beyond Ukraine as well, because the sums of the charged indemnities are recorded on the extra-budgetary accounts of the Savings Bank of Ukraine and have no real value relative to the proceeds from the State Budget for payment of the indemnities.

The Commissioner received a series of appeals of citizens complaining against the violation of their rights of ownership by Ukraine’s customs officials, in particular seizure of cash and other valuables. While inquiring into to case of Mrs.M. from the Russian Federation, the Commissioner confirmed the fact that representatives of Ukraine’s customs bodies unlawfully confiscated the gold jewelry of the applicant. The Halytsky district court of Lviv ruled to return the confiscated items to their lawful owner.

Of all the appeals those of foreigners complaining about their violated social rights are negligible, because the range of issues related to social welfare is rather small as far as foreigners as subjects of legal relations are concerned. One such issue is the right to receive pensions and other social welfare payments. In an appeal to the Commissioner Mrs.L.Matiushenkova from the Russian Federation complained that the compensation for her occupational injury was being delayed. After the inquiry into her case, the public prosecutor of Kyiv restored her rights and she received all the money that was due her.

Mrs.A.Alkhovka and Mr.Petrenko, citizens of the Russian Federation, appealed to the Commissioner to have their rights to housing protected. Since both of them were Russian citizens, a court in Zaporizhia confiscated in 1999 their apartments which they had reserved since 1987 when they began working in Russia’s Far North. This was an obvious case of discrimination against foreign applicants. Regrettably, such facts are not rare and the Commissioner for Human Rights has made it a point to study them carefully.

But most of the appeals of foreigners do not comply with the formal requirements of the Law On the Ukrainian Parliament Commissioner for Human Rights, since they exceed the statutory period for submitting appeals – one year after the fact of violations of human rights or freedoms was revealed or when it concerns civil law matters, including family relations, inheritance and the like. Besides, quite a few applicants filed their appeals without having taken all available legal remedies, such as statutory appeals and reconsideration of judgments by judicial review.

A monitoring of the appeals, including those of MPs as well as foreigners and stateless persons, gives reason to conclude that an ever growing number of people exercise this unique right granted them under Article 55 of the Ukrainian Constitution to restore their infringed rights and freedoms. During the period under review, more than 80,000 persons addressed the Commissioner for Human Rights. Their appeals became the basis for an all-round analysis of compliance with civic, political, personal, economic, social and cultural rights and freedoms in Ukraine in accordance with international standards. Compliance with the said rights is treated in greater detail in the following chapters of the Report.

Following from the actual practice of considering the appeals, the Commissioner is well aware of the problems that have to be settled. To raise the efficiency of consideration, the Commissioner has introduced a system of permanent monitoring, statistical accounting and reporting. To this end a new structure within the Secretariat was set up to have the appeals processed by specialists of definite areas of law in accordance with the duties that relevant departments and sections are charged with. Despite all the attending problems, primarily financial and organizational, the Secretariat of the Commissioner for Human Rights introduced in 1999 software to record such appeals. With the assistance of international institutions, the OSCE in the first place, a project was launched to set up a single computer network for processing appeals. It is hoped that the effected measures will considerably improve the work with appeals and contribute a more effective protection of human rights and freedoms in Ukraine.

Translated by Anatole Bilenko

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