Checkpoints in the Donbas continue to operate in limited mode. Apparently, occupation authorities are not going to change this. They minimized the traffic capacity of the checkpoint on their part in the spring of 2020, under the pretext of fighting the coronavirus. Despite a significant drop in the incidence of disease in the government-controlled territory, the occupiers continue to block the work of checkpoints.
For example, it is possible to leave the CADO only twice a week by the decision of the so-called "Interdepartmental Operational Headquarters" and subject to registration in the controlled territory of Ukraine.
As representative of CADO of Ukraine in the Minsk TCG Serhiy Harmash notes, the checkpoints in the Donbas are unlikely to work in the previous (pre-quarantine) regime.
"Checkpoints with CADO will never work in the previous regime, because this is a deliberate policy of Russia to isolate the occupied Donbas from Ukraine and integrate it with the Russian Federation. Even when the pandemic ends, I do not think that checkpoints will open", - he stated back in February this year. The situation with crossing the contact line has really only worsened since then…
Many residents of CADLO have found a way out of this situation and continue to travel to the controlled territory of Ukraine through Russia. Someone wants to leave the "republics" forever, someone goes for treatment, others - for social benefits, someone needs to visit relatives or buy medicines, others decided to get an education in a territory free of militants, and so on.
The problem is that trips across the Russian border are more expensive, take much longer and, most importantly - they were illegal until recently from the point of view of Ukrainian legislation.
Administrative liability is provided for such illegal border crossing in Ukraine in the form of a fine from 100 to 300 non-taxable minimum incomes of citizens ($65-205) in accordance with Article 204-2 of the Code of Administrative Offenses.
But at the end of June 2021, the Verkhovna Rada adopted a law that abolishes fines for the period of the quarantine.
It would seem that the problem has been resolved, but, according to OstroV, the border guards continue to fine the residents of CADLO for illegal border crossing.
Three months ago, the Ukrainian parliament adopted the long-awaited law No.5478, which abolishes fines for CADLO residents for traveling through Russia for the period of quarantine in Ukraine. The document, in fact, consists of one article:
"To establish that for the citizens of Ukraine who live in the temporarily occupied territories of Ukraine, for the period of quarantine, or for the period of blocking the activities of checkpoints of entry-exit, no measures are applied for administrative offenses related to violation of the procedure for entry into the temporarily occupied territory of Ukraine or leaving it, if such violations occurred for reasons of a humanitarian nature, determined by the Cabinet of Ministers of Ukraine".
Thus, this law does not apply to all residents of the occupied territories who enter their home country. The explanatory note to the document notes that the non-application of administrative measures should be carried out only in relation to certain categories of persons falling under the grounds of "humanitarian nature".
Such grounds are spelled out the decree of the Cabinet of Ministers of July 17, 2019 No. 815, which says that in the event of a temporary cessation of the operation of restricted area of the entry-exit checkpoints, the pass of persons is carried out in the presence of the following humanitarian grounds of humanitarian nature:
1) for the purpose of family reunification;
2) in case of serious illness, death of close relatives;
3) if it is necessary to provide medicines and medical products or undergo treatment in the presence of severe and/or chronic diseases (in particular, type one diabetes, cancer, the need for antiretroviral and anti-tuberculosis therapy);
4) in case of departure from the temporarily occupied territories of a person who has documents confirming the right to permanent or temporary residence in another state;
5) in case of crossing the line of demarcation by a child accompanied by one of the parents (adoptive parents), guardians, trustees or other legal representatives;
6) in the event of crossing the demarcation line by persons in order to visit an educational institution for education, undergoing vocational training, state final certification (in particular, in the form of external independent testing);
7) in the event of the person returning to his/her place of residence. The admission of persons is carried out once during the period of validity of the decision on the temporary suspension of the checkpoint's work;
8) for the purpose of accepting inheritance;
9) the presence of other cases when there is a reason to believe that the situation requires the person to immediately cross the demarcation line in any direction for humanitarian reasons or in order to prevent the emergence of a threat to the life and health of the person and/or violation of his/her rights (in particular, in the case of political persecution of a person in the temporarily occupied territories).
"The existence of grounds of humanitarian nature, if possible, should be documented", - the government decree says.
What does "if possible" mean and what documents are needed to confirm the humanitarian grounds is not explained. Moreover, it is not clear why the list of "humanitarian" reasons does not include such a reason for leaving as work in one's own country for the purpose of supporting the family… This, in fact, reduced the effect of the law to zero.
Why the law does not work
"Unfortunately, the adoption of the law did not remedy the situation as we would like. Border guards continue to ignore the adopted amendments to the law. Fines continue. Today we are sending two more lawsuits to the court to appeal against the fine. People were traveling from Horlivka through the Milove checkpoint on September 9, and they were fined", - head of the Eastern Human Rights Group Vira Yastrebova told OstroV.
The Eastern Human Rights Group is involved in appealing against such fines in courts. According to Vira Yastrebova, the number of appeals has not significantly decreased since the adoption of the law.
The fact that the practice of fines continues after the adoption of the law was reported by chairman of the Verkhovna Rada committee on human rights, de-occupation and reintegration of the temporarily occupied territories in the Donetsk and Luhansk oblasts and Crimea, national minorities and interethnic relations Dmytro Lubinets.
"The State Border Guard Service of Ukraine ignores the legislation of Ukraine and continues to impose fines on citizens of Ukraine entering and leaving the temporarily occupied territory. I emphasize that the majority of the parliament supported bill No.1583, so that on the eve of the university admissions process and on any other humanitarian issues, Ukrainians could cross the border without imposition of administrative fines, so that as many young people as possible came and entered Ukrainian higher educational institutions. I was sure that the problem no longer exists", - he wrote on Facebook.
According to D.Lubents, appeals that people are still being fined continue to come to the people's deputies.
The State Border Guard Service reported in response to OstroV's request that 127 cases of administrative offenses were filed in August 2021 (after the law came into force) and 21 – in the first half of September. For comparison: 4632 cases were processed in July, a month before the law came into force.
This suggests that the number of issued fines has significantly decreased, but did not stop completely.
The State Border Guard Service noted that the materials of cases on administrative offenses were drawn up for citizens who did not fall into the category of persons who committed an administrative offense under Article 204-2 of the Code of Administrative Offenses on the grounds of humanitarian nature.
"The presence of humanitarian grounds, if possible, should be documented", - the department told OstroV.
According to human rights activist Vira Yastrebova, the phrase "humanitarian reasons" is corrupt. It allows border guards to continue writing out protocols on administrative offense.
"What proof can a person provide if, for example, he/she is going to get a vaccine? Who defines these humanitarian goals? This is absurd. There is no clear algorithm for how this should work. This norm is a catastrophe waiting to happen", - she said to OstroV in a comment.
She believes that the actions of the border guards are similar to a conspiracy of individual officials of the State Border Guard Service.
"These actions negatively affect the reintegration processes and the perception of the official Ukrainian authorities. It looks like a conspiracy of certain officials of the border guard service and, in fact, ignoring the norms of the law. Despite the fact that we have a positive judicial practice of appealing against these decisions on fines, not everyone goes to appeal to court, and there are a lot of such people. After all, many people who come from the uncontrolled territories do not know the contacts of human rights organizations", - the head of the Eastern Human Rights Group said.
People's Deputy Dmytro Lubinets notes that humanitarian grounds do not require documentary confirmation, and their list is not exhaustive.
"A logical question arises, how does the State Border Guard Service determine whom to let through and whom not? What issues it considers humanitarian and what not? It is not clear! At the same time, I want to emphasize that the list of humanitarian grounds is not exhaustive, and humanitarian grounds DO NOT REQUIRE documentary confirmation. When we were developing the bill, we did it in full coordination with representatives of the Ministry of Internal Affairs, the State Border Guard Service, the Ministry for Reintegration of the Temporarily Occupied Territories and did specially not specify that the State Border Guard Service should check the grounds on which people cross the border", - the parliamentarian noted.
In this regard, the relevant committee of the Verkhovna Rada decided to urgently address the Prime Minister of Ukraine to intervene in the situation.
What happens at the border
According to OstroV, administrative protocols are issued mainly for young people who cannot document the reasons for their visit. According to eyewitnesses, elderly people are often not even asked in word about the reasons for the trip.
But there are also paradoxical cases. For example, on August 14, Ukrainian border guards issued a protocol in relation to an 18-year-old guy who was traveling from CADLO to issue a Ukrainian passport.
"We were approached by a guy who came from CADLO to Ukraine in order to issue a passport of a citizen of Ukraine. He is 18 years old, he only had a birth certificate (issued by Ukraine) with him. The squad of the Kharkiv border detachment, immediately, without explanation, took the guy to draw up a protocol under article 204-1 of the Code of Administrative Offenses. Of course, we will represent the interests of this guy in court", - the Eastern Human Rights Group reports.
Human rights activists recommend in such cases to seek for the cancellation of the border guards' decision through the courts. But not many are willing and able to go to Ukrainian courts. It is easier for the majority just to pay to the border guards, so as not to have problems…
Carriers from CADLO also make money on the fact that the law does not work. They continue to offer "no fines" border crossing and drawing up protocols. Separately, they warn that the trip requires either a humanitarian justification or a bribe.
In order not to draw up an administrative protocol, carriers want from $19 to $38 per person. For this money, they promise to independently resolve all issues with the border guards. Particularly enterprising carriers offer to "solve" the issue of installing the Vdoma application for self-isolation for an additional fee to. They demand another $8 to $19 for this.
The OstroV journalist contacted several carriers and found out that a trip from Donetsk to Kyiv through Russia costs an average of $95 to $114. You can find cheaper options, but they will be with a transfer.
"Look, we will try to settle the issue on our own at first. But if a principled border guard comes across, you will have to additionally pay $19 so that no protocol of violation is written out. The driver knows all this, do not worry, we drive like this every day. Sometimes without fine. As luck would have it", - one of the firms answered to the OstroV journalist.
In another conversation, we were immediately warned to prepare $19-38 for "unforeseen expense".
"If you do not want to suffer with tests, self-isolation and fines, then keep $19-38 at hand. They may be needed. We solve all issues unofficially, so you will not get into any databases, you will not pay any fines, do not worry. There even will be no need to communicate with the border guards, we will solve everything ourselves", - they answered to us.
In another place, we were asked for a long time about possible humanitarian reasons (registration/re-issue of documents, a call to work, family reunification, treatment, age 60+), and eventually, we were advised to go through the Nekhotiivka checkpoint, where they will solve the question with a fine for $38.
"$95 for a seat. I recommend to go through Milove, you can pass there without a fine (for humanitarian reasons) and without self-isolation. Through Nekhotiivka - $95 for a seat + $38 for the solving of the question with a fine + $19 for self-isolation", - they answered there.
Many people complain on social media that some carriers ask to pay a fine of $19 in advance.
"We were told that it does not matter what the reason for the trip is. If we want to get there quickly and comfortably, then we need to pay an additional $19, this money will be used to resolve the issue with a fine. This is chaos. We had to look for another carrier. We arrived calmly, said the reason in word, allegedly, the relatives got sick, and that is it", - Iryna K. wrote in one of the social networks.
"We were less fortunate. We also explained in words, but they demanded some documentary evidence from us. I had to call my son and ask him to send some documents. He sent a birth certificate, wrote аn acknowledgment by hand that he invited us to visit him and for treatment, then they let us through. They wrote out protocols for some people, we have seen such things. We went in early September", - Maria L. wrote.
A coalition of organizations dealing with the protection of the rights of persons affected by the armed conflict has created an information booklet on the crossing of the Russian border by the CADLO residents.
It notes that if, while crossing the state border of Ukraine, an employee of the border guard service reports that you have committed an offense under Art. 204-2 of the Administrative Code of Ukraine, then you need to politely explain to him all the circumstances by which you were forced to enter the government-controlled territory bypassing the checkpoint, and, if possible, provide supporting documents. Depending on the situation, this may be a medical certificate, an invitation from a university, a copy of a relative's certificate of disease, and so on.
If the border guards did draw up an administrative protocol, then you need to make sure that the circumstances and reasons that made you leave CADLO through the Russian Federation are entered there.
"Do not let an authorized person of the State Border Guard Service dictate an explanation to you", - human rights activists note.
Subsequently, the protocol can be challenged in a judicial procedure within 10 days.
Contacts of the Vostok SOS lawyers who can consult on these issues: +38 (068) 664 21 04, +38 (095) 374 82 70, +38 (066) 617 14 58, [email protected].
In addition, displaced persons can contact the free Centres for Legal Aid Provision.
If the fine was nevertheless issued, then the lawyers of the Eastern Human Rights Group non-governmental organization recommend applying to court and challenging the decision of the border guards. Human rights activists represent the interests of displaced persons in court free of charge. Contacts: +38 (096) 868 85 02, [email protected].
Vladyslav Bulatchik, OstroV
This article was prepared within the framework of Project partially funded by the European Union with the support of the Black Sea Trust for Regional Cooperation. The content does not necessarily reflect the views of the European Commission. The views and opinions it contains are solely those of the author.