Esaminare le azioni dei tribunali amministrativi per mitigare i problemi di sfollamento interno derivanti da politiche governative inefficaci

Examining administrative court actions to mitigate issues of internal displacement resulting from ineffective government policies

29.10.2023

Olena Miliienko*

 

Examining administrative court actions to mitigate issues of internal displacement resulting from ineffective government policies**

 

Italian title:Esaminare le azioni dei tribunali amministrativi per mitigare i problemi di sfollamento interno derivanti da politiche governative inefficaci

DOI: 10.26350/18277942_000150

 

Sommario: 1. Introduction. 2. Materials and Methods. 3. Results. 4. Discussion. 5. Conclusions. 6. Acknowledgements.

 

1. Introduction

 

This paper is exploratory, it seeks to look at legislation that concerns internally displaced persons (IDPs) from 2014 in Ukraine to delineate specific cases of administrative courts about how this legislation has been successfully applied, and where issues with such application stand.

Internal displacement resulting from ineffective government policies (ID-IGP) is a significant issue in Ukraine. The country has faced political transitions, territorial conflicts, and socio-economic transformations, resulting in a vulnerable internally displaced population.

The main causes of internal displacement in Ukraine are armed conflicts, particularly in Donetsk and Luhansk, and occasionally ineffective government policies. Since 2014, these conflicts have compelled a significant portion of the population to flee their homes due to violence, infrastructure destruction, and deteriorating living conditions. Administrative courts in Ukraine have a crucial role in addressing ID-IGP challenges by resolving disputes related to government policies, decisions, and actions. These courts evaluate the legality and appropriateness of government measures affecting internally displaced persons (IDPs). Although the government has implemented policies to address IDP needs, their effectiveness and compliance with international standards are still subjects of academic inquiry and policy debate.

Due to Russia’s military invasion of Ukraine in 2014 and related military operations, the human rights situation across the country has become extremely difficult. The fighting and temporary occupation of the territories led to the mass resettlement of Ukrainians, and the same situation has developed with small and large businesses. During martial law, a number of human rights and freedoms may be restricted in accordance with the legislation of Ukraine. These include, for example, restrictions on the right to free movement and free choice of work, the possibility of interference in private life, and alienation of property.

However, there are rights that cannot be violated or restricted, even in war conditions. According to H. Voznyak et al.[1], first of all, these are the rights to life and physical integrity consolidated in the Constitution of Ukraine and international documents, in particular the Geneva Convention. In addition, the rights to equality and respect for human dignity, the right to citizenship, a fair trial, and housing cannot be violated.

The study of the protection of the rights of IDPs is extremely relevant in modern Ukraine. This is conditioned by the historical context studied by Y. Gerasymenko et al.[2] and the need to fulfil international obligations, the desire for European integration, and the existence of internal conflicts. The authors note the need for legislative regulation of the situation of persons who have been facing violations of the law for a long time in Ukraine. The study of this topic enables the understanding of the protection of the rights of persons in vulnerable situations, contributes to raising awareness of the norms and standards for the protection of human rights, and contributes to the construction of a just and legal society. The issue of relocation of enterprises was considered by T. Shmatkovska[3] who stated that it allows to establish business processes and contributes to the replenishment of regional budgets. V. Vlasova et al.[4] investigated the possibilities and risks of relocation in order for enterprises to continue working in the turbulent external environment.However, the problem is new and the government does not fully control the situation.

The relevance of studying the intervention of administrative courts in resolving issues of IDPs in Ukraine lies in the need to protect their rights, identify shortcomings in government policy, and find ways to solve them. The study of this issue will contribute to the reform of legislation, improving the competence of judges, ensuring access to legal assistance for IDPs and strengthening the democracy of the rule of law. This will help strengthen the protection of the rights of IDPs and improve their status in Ukrainian society.

One of the key findings of previous studies is that the government is often in conflict with international human rights standards, in particular, with regard to the protection of IDPs and access to fair trials. This is the conclusion reached by V. Teremetskyi et al.[5], analysing refugee trials in the practice of the Supreme Court of Ukraine and the European Court of Human Rights. The researchers also note that Ukrainian courts should apply international practice. Legislative practice in refugee affairs was investigated by A.L. Svyaschuk[6]. The researcher studied the periodization of changes in the legal status of refugees since the 21st century, and also described court cases of complaints about violations of refugee rights. Attention is also drawn to the imperfection of the legal and legislative regulation of Ukraine regarding the rights of IDPs, focusing on the implementation of international standards.

From the above, the purpose of the study was determined, which is to investigate the interference of administrative courts in resolving issues of internal displacement in the context of failed government policies, in particular, to assess the role of courts in protecting the rights of individuals and ensuring fair decisions in cases where government policies do not meet the needs of internally displaced persons.

To achieve this goal, such roadmap of the article and the following tasks are planned: make a literature and legislation review from 2014 till the current moment to analyse the government’s internal displacement policy and identify shortcomings; examine the role of administrative courts in resolving issues of internal displacement and their ability to ensure justice and protect the rights of internally displaced persons; analyse the cases of the administrative courts related to internal displacement, showing how some provisions were implemented by governmental authorities well from existing legislation, some less successful and how these differed across the regions of Ukraine; assess the impact of administrative court intervention on the adjustment of failed government policies in ensuring the protection of the rights of internally displaced persons; make recommendations for improving government policies in the field of internal displacement based on an analysis of the role of administrative courts.

This refined structure encapsulates the comprehensive scope of the study, situating it within a broader academic and policy discourse while pinpointing the specific research questions, objectives, and tasks that underpin this exploration.

 

2. Materials and Methods

 

In the course of the study on the intervention of administrative courts in resolving issues of internal displacement and its impact on the practice of these courts, the following methods of scientific knowledge were used: comparative legal, dogmatic, statistical, and literature review. The comparative legal method was used to analyse relevant regulations and legislation to determine the legal basis for internal displacement. Thus, trends and tendencies of internal displacement were evaluated, and the effectiveness of policies aimed at addressing these issues was determined. The comparative legal facilitated a detailed analysis of legislation and other legal acts regulating internal displacement in Ukraine. The analysis of legal acts considered the following laws: Law of Ukraine No. 51 “On Free Legal Aid”[7], Law of Ukraine No. 2254-IX “On Amendments to Certain Laws of Ukraine Regarding Priority Measures for Reforming the Sphere of Urban Development”[8], Law of Ukraine No. 1706-VII “On Ensuring the Rights and Freedoms of Internally Displaced Persons”[9], Law of Ukraine No. 389-VIII “On the Legal Regime of Martial Law”[10]. This method determined which legal norms provide for the intervention of administrative courts in resolving issues of internal displacement and assessed their effectiveness in the context of unsuccessful legal regulation actions.

The dogmatic and case study methods were used to analyse court decisions related to internal displacement issues adopted by administrative courts. The researchers reviewed these decisions in terms of their formal characteristics, including the legal argument, the problem solved, the rules applied. Through a formal analysis of court decisions, the researchers gained insight into how courts handled issues related to internal displacement, and assessed the consistency and effectiveness of court decisions in the context of failed government policies. Thus, a detailed analysis of specific cases of interference by administrative courts in resolving issues of internal displacement was carried out by the Fifth Administrative Court of Appeal, the Seventh Administrative Court of Appeal, and the Eighth Administrative Court of Appeal. This method provided for the deep study of specific situations and analysis of the role and impact of court decisions on them, as well as the assessment of the problems of government policy in IDP issues. The statistical method was used to investigate changes in 2014-2023 in the number of internally displaced persons and relocation of enterprises. Data on the movement of persons and businesses were collected and analysed using data provided by the Ministry of Social Policy, the Ministry of Economy, and the International Organisation for Migration. In addition, a literature review was conducted, which was based on a review of legislative acts, judicial decisions, and other documents related to the research topic, and the regulatory practice of Ukraine and the world was considered in a comparative aspect. This allowed summarising information and using previous scientific results to support arguments.

Each of these methods had an important place in the study. The comparative legal method provided a basic framework for understanding the legislative context. The dogmatic method provided insight into the practice of courts in resolving disputes related to internal displacement. Analysis of statistical data provided quantitative information and the ability to identify trends. The use of these methods in scientific research has provided a deep and comprehensive understanding of the intervention of administrative courts in solving internal displacement issues and allowed identifying problems associated with failed government policies.

 

3. Results

 

According to the Law of Ukraine No. 1706-VII “On Ensuring the Rights and Freedoms of Internally Displaced Persons”[11], the term “internally displaced person” means a citizen of Ukraine, a foreigner, or a stateless person who legally resides on the territory of Ukraine and has the right to remain there permanently, but was forced to leave their home to avoid the consequences of an armed conflict, temporary occupation, mass violence, human rights violations, or a natural or man-made emergency. According to the UN Refugee Agency, as of 2014, about 275,489 internally displaced persons from temporarily occupied territories (TOT) were registered in Ukraine[12]. As of August 29, 2016, the social protection departments of regional and Kyiv city state administrations registered 1,705,363 displaced persons or 1,381,914 families from the Donbas and Crimea[13]. As of September 13, 2018, the figure increased to 1 million 518 thousand people or 1 million 240 thousand families who were forced to leave their homes due to the armed aggression of the Russian Federation[14]. As of February 17, 2020, according to the unified information database on internally displaced persons, 1,441,446 displaced persons from the temporarily occupied territories of Donetsk and Luhansk and the Autonomous Republic of Crimea were registered[15]. In 2020, as a result of war and persecution, 3 million people became internally displaced[16]. Six months after the outbreak of the full-scale war in Ukraine, the number of IDPs reached 6.9 million as of August 23, 2022 (Figure 1).

Figure 1. Statistics on forced migration in Ukraine

Source: compiled by the authors based on the overview of the implementation of the enterprise relocation programme in Ukraine[17].

 

Thus, the problem of internally displaced persons in Ukraine has become relevant since the beginning of the Russian-Ukrainian war in 2014. Despite the adoption of laws that should regulate the rights and social protection of IDPs, the Ukrainian authorities do not provide sufficient conditions for their return and integration in new places of residence[18]. One of the biggest challenges is providing housing for IDPs, many of whom are forced to live in temporary shelters or seek housing on their own. In addition, government IDP placement programmes have been criticised for lack of coordination and effectiveness, resulting in many people not being able to get the help they need. Issues of providing temporary housing to internally displaced persons are regulated by a number of legislative acts, including Resolution of the Cabinet of Ministers of Ukraine No. 582 “On Approval of the Procedure for the Formation of Housing Funds for the Temporary Residence of Internally Displaced Persons and the Procedure for Providing Temporary Use of Living Spaces from the Housing Funds for the Temporary Residence of Internally Displaced Persons”[19].

This resolution is an important tool in regulating the issues of temporary residence of internally displaced persons in Ukraine. It defines the mechanism for establishing housing funds for this category of people and sets rules for the provision and use of residential premises. This contributes to the creation of a system that provides temporary housing for internally displaced persons in need of assistance and support[20]. The resolution is aimed at ensuring social protection of the vulnerable category of the population and contributes to solving problems related to the government’s temporary residence policy. However, many IDPs are forced to live in unsafe and unsecured housing conditions. The lack of housing funds for temporary residence and insufficient implementation of housing construction programmes are serious obstacles to solving this problem. Thus, according to the Resolution of the Cabinet of Ministers of Ukraine No. 332 “On Some Issues of Payment of Housing Allowance to Internally Displaced Persons”[21], there is still a problem with social benefits and compensation in Ukraine. Hence, changes are established regarding the procedure for registering and obtaining a certificate of IDP.

Therefore, it is necessary to develop a legislative solution that will regulate compensation issues at the legislative level. In addition, it is necessary to pay attention to the enforcement of court decisions and the payment of compensation to citizens or groups of citizens. In modern reality, the state faces restrictions on the simultaneous payment of the full amount of compensation[22].

The issue is also relevant regarding the relocation of enterprises. According to the Ministry of Economy[23], in 2022, 800 enterprises were relocated to safer regions of the country. Of these, 623 have already successfully resumed their work in a new location (Figure 2).

Figure 2. Dynamics of enterprise relocation: distribution by region

Source: compiled by the authors based onT. Berezhna[24].

According to IOM Ukraine[25], the Enterprise relocation programme[26], introduced by the government, achieved moderate success, as 60% of applications for state logistical support for relocation were approved. The Ministry of Economy actively promotes the process of relocating enterprises from the affected areas of military operations to safer areas. The process of moving enterprises is carried out in nine regions of Ukraine, in particular Zakarpattia, Ivano-Frankivsk, Lviv, Ternopil, Khmelnytskyi, Chernivtsi, Vinnytsia, Volyn, and Rivne Oblasts. The Enterprise relocation programme[27], which is open to any business, does not impose restrictions on movement. According to the National Institute for Strategic Studies[28], priority in reviewing applications depends on the ability of enterprises to independently dismantle and deliver cargo to the nearest railway station, the availability of necessary working conditions in the host regions, and the order of transportation. Defence enterprises and those that meet the priority needs of the population receive priority consideration (Table 1).

Table 1. Relocation of enterprises in Ukraine by region and industry as of 2022

Oblast

Number of relocated businesses

Main industries of relocated enterprises

Lviv

>130; >800 applications at the processing stage

food, light, chemical industry, construction, metalworking, trade

Chernivtsi

90; 10 enterprises in the process of transportation of equipment

IT, light, food, woodworking, manufacturing of plastic, electronic, and electrical products

Zakarpattia

>70

IT, communication equipment manufacturing, woodworking, light industry, construction

Khmelnytskyi

34; 260 applications at the processing stage

light industry, mechanical engineering, production of LED products, electrical equipment, parts for motor vehicles, structural insulated panels and house kits, hydraulic equipment, sale and repair of agricultural machinery and equipment, cranes and special equipment

Ivano-Frankivsk

≈30; 200 applications at the processing stage

IT, light, food processing, construction, mechanical engineering, metalworking

Ternopil

26; 141 applications at the processing stage

light industry

Rivne

21; 206 applications at the processing stage

IT, food, light, woodworking industry

Vinnytsia

8; 13 at different stages of transportation; 68 applications at the processing stage

production of industrial refrigeration and ventilation equipment, cutlery

Volyn

6 partially moved; 8 applications at the processing stage

light industry, chemical industry, metalworking, paper and cardboard production

Source: compiled by the authors based on the overview of the implementation of the enterprise relocation programme in Ukraine[29].

 

The development and implementation of support and financing programmes for relocating businesses is essential to reduce the financial burden and ensure a successful transition. According to the Enterprise relocation programme[30], companies that decide to relocate from dangerous regions can benefit from a government support package that includes the following features: selection of locations for enterprise facilities; assistance in organising transfer to a new location; support for resettlement and finding new employees; assistance in restoring logistics processes, providing raw materials and finding sales markets.

State support for the process of moving businesses operating in the country remains unknown or incomprehensible to many. However, since the beginning of the war, the Ministry of Economy of Ukraine has been implementing a programme to relocate Ukrainian enterprises located on the territory of military operations.

In accordance with the provisions of Article 14 of the Law of Ukraine No. 51 “On Free Legal Aid”[31], vulnerable social groups, including internally displaced persons, are entitled to free legal aid to address a variety of issues. This right is guaranteed and consolidated by Ukrainian legislation. According to the Centre for Free Legal Aid (FLA), during the year, which was marked by a full-scale war throughout Ukraine, there were 6,898 cases of internally displaced persons applied for free secondary legal assistance to lawyers working in the FLA system and to lawyers cooperating with the Centres for Free Secondary Legal Aid (FSLA)[32].

During the beginning of the full-scale invasion, internally displaced persons actively faced problems related to housing seekers, travelling abroad, and receiving social payments and humanitarian aid. However, over time, priority issues have become related to the collection of alimony, the establishment of facts that have legal significance, the payment of utilities, the dissolution of marriage ties, the preparation of applications to the Information[33]. The above-mentioned issues have become a priority in the context of the needs of internally displaced persons resulting from the conflict. Dnipropetrovsk Oblast became the leader in IDP appeals – more than 7 thousand appeals, 7.5 and 6 thousand were registered in the Lviv and Poltava oblasts, respectively.

Resolving the issues raised in such submissions is the exclusive prerogative of the legislative authorities of Ukraine[34]. Administrative courts in Ukraine may interfere in resolving internal displacement issues, in particular, when the rights of internally displaced persons are violated (Table 2).

Table 2. Interference of administrative courts in internal displacement issues in Ukraine

Question

Description

1

Granting of IDP status

The Administrative Court may consider complaints of internally displaced persons challenging the refusal to grant internally displaced person status.

2

Violation of IDP rights

The Administrative Court can consider claims of internally displaced persons who face violations of their rights, for example, in access to housing, education, or medical services.

3

Resolving of disputes over social services

The Administrative Court may consider complaints by IDPs about the refusal of the authorities to provide social services, such as assistance in finding housing, payment of benefits.

4

Complaints about the actions of the authorities

Internally displaced persons may appeal to the Administrative Court against actions of the authorities that violate their rights or illegally restrict their ability to move.

5

Compensation for damages

The Administrative Court may consider claims of internally displaced persons for damages caused as a result of conflicts or other circumstances.

6

Legal status of temporary premises

The Administrative Court may decide on the legalisation and recognition of the legal status of temporary premises where internally displaced persons live.

Source: compiled by the authors.

 

Court appeals are an important tool for IDPs who face denial or insufficient protection of their rights. They may apply to the court to appeal decisions or resolve disputes related to the status of IDPs, receiving social benefits, or other legal issues[35]. Thus, in the Resolution of the Fifth Administrative Court of Appeal No. 1540/4747/18[36] the panel of judges of the Fifth Administrative Court of Appeal considered the claim of PERSON_3 in the interests of minors PERSON_4 and PERSON_5 against the Department of Labour and Social Policy of the Odesa City Council (DLSP OCC) and a third person, the Department of social protection of the population (DSPP) in the Malynivskyi district of the DLSP OCC. The plaintiff asked to cancel the decision of the DSPP and obtain certificates of internally displaced persons (IDPs) for minors PERSON_4 and PERSON_5. The defendant (Department of Labour and Social Policy) in the response argued that the plaintiff did not have sufficient evidence to confirm his residence in the relevant territory from which the internal movement takes place. However, the trial court considered that such evidence was not necessary, since children born in the internal displacement zone in the territory controlled by Ukraine could not obtain such documents. The court of first instance satisfied the requirements of the claim, recognising that minors PERSON_4 and PERSON_5 have the right to receive IDP certificates in accordance with the relevant procedure. This decision was upheld by the judicial panel. The plaintiff justified his claims by stating that PERSON_4 and PERSON_5 are children born to an internally displaced person PERSON_3, and they have the right to receive a certificate of an internally displaced person in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 509 “On Accounting of Internally Displaced Persons”[37].

The defendant groundlessly claims that the applicants do not have evidence of residence in the territory of the administrative-territorial unit from which internal movement is carried out, since such documents are not issued to children born in the territory controlled by Ukraine. In addition, the need to provide such evidence applies only to cases of internal movement across the contact line with the occupied territory, and not to children born to an internally displaced person and entitled to receive a certificate in accordance with paragraph 6 of Resolution of the Cabinet of Ministers of Ukraine No. 509 “On Accounting of Internally Displaced Persons”[38]. The fact of the internal movement of the plaintiffs’ father from the occupied territory is confirmed by the certificate of registration of an internally displaced person No. 5137001895. The defendant does not recognise the claim, noting that PERSON_3 appealed to the Department of social protection of the population in the Malynivskyi district of Odesa city regarding the registration of his minor children on 14.08.2018. From the documents that were attached, it was established that the plaintiff moved to Odesa in February 2018, but the date of appeal to the Department of social protection of the population in the Malynivskyi district of Odesa city was not granted. The plaintiff also noted that according to Order No. 509, a certificate of an internally displaced person is provided in case of loss of identity documents, and not to confirm the place of residence in the territory. He challenged the defendant’s arguments about the need to present evidence of residence in a particular territory, pointing out that the defendant violates the plaintiffs’ right to receive a certificate in accordance with the clear requirements of Order No. 509. Based on these arguments, the plaintiff asked the court to satisfy his claim and oblige the defendant to issue a certificate of the internally displaced person to PERSON_3 and his children PERSON_4 and PERSON_5 in accordance with Order No. 509.

The court made a decision on the case and ordered the defendant to issue a certificate of the internally displaced person to PERSON_3 and his children PERSON_4 and PERSON_5 in accordance with Order No. 509, considering the plaintiff’s arguments regarding the legal basis for obtaining such a certificate. Cases like this one are of great importance and social significance. They relate to the protection of the rights of children and internally displaced persons who suffer as a result of conflicts, natural disasters, or other negative circumstances. Such trials also play a role in shaping legal practices and standards that protect the rights of children and internally displaced persons. They help set precedents on which similar cases can be based in the future, helping to strengthen the rule of law. Thus, these cases clearly demonstrate the need and importance of protecting the rights of minors and internally displaced persons, contributing to the strengthening of the legal system and the creation of a just and humane society.

According to the report of the division of generalisation of judicial practice of the Seventh Administrative Court of Appeal[39], the Law of Ukraine No. 2254-IX “On Amendments to Certain Laws of Ukraine Regarding Priority Measures for Reforming the Sphere of Urban Development”[40] introduces a new special urban development programme for the comprehensive restoration of settlements. This programme defines the main spatial and socio-economic measures for the construction of structures that are intended for the life of people who have lost their homes due to military operations, terrorist acts, sabotage, emergencies[41]. In addition, changes to Article 15 of the Law of Ukraine No. 389-VIII “On the Legal Regime of Martial Law”[42] provide for the need to move (evacuate) industrial enterprises of any form of ownership. It also defines the list of persons who are granted the right to lease a land plot of state or municipal property without holding land auctions, which is necessary for the placement of displaced enterprises from war zones.

In particular, Resolution of the Cabinet of Ministers of Ukraine No. 380 “On the Collection, Processing, and Accounting of Information on Damaged and Destroyed Immovable Property as a Result of Hospitality, Acts of Terrorism, Sabotage Caused by the Military Aggression of the Russian Federation”[43] approved the procedure for submitting an information message about damage and destruction of immovable property as a result of military operations. According to this procedure, owners of damaged or destroyed property can independently report such events through the unified state web portal of electronic services, the mobile application “Diia”, the centre for providing administrative services, or a notary. In addition, the Seventh Administrative Court of Appeal provides an explanation, according to which the evacuation of industrial enterprises of any form of ownership from war zones will be carried out by making a joint decision of the relevant regional state administrations[44]. This decision determines which production areas will remain, and where these enterprises will be moved. In addition, a list of persons who have the right to lease a land plot of state or municipal property without holding land auctions is compiled. This land plot is needed to accommodate the production facilities of enterprises that were evacuated from war zones. A list of enterprises that were moved from the war zone will also be compiled. Since the set of governmental functions responsible for regulating urban development and land use is aimed at ensuring the rational organisation of the territory, conflicts that may arise in connection with these types of activities and land use are subject to resolution by applying to administrative courts.

The relevance of IDPs appeals to administrative courts of appeal lies in the possibility of appealing against decisions or omissions of government bodies in the provision of social payments. This may relate to payments that were not provided or were provided incorrectly, the refusal to assign certain social benefits, or the establishment of unacceptable conditions for receiving them. An example is the Resolution of the Fifth Administrative Court of Appeal No. 420/14727/22[45] regarding the appeal of the Department of Labour and Social Policy of the Odesa City Council against the decision of the Odesa District Administrative Court of December 08, 2022, in the case of recognition of actions as illegal (this refers to the issue of payments to internally displaced persons and the actual status of such a person). The plaintiff filed a lawsuit with the Department of Labour and Social Policy of the Odesa City Council with a demand to recognise the actions of the body as illegal and oblige it to perform certain actions. According to the decision of the appellate instance, the plaintiff’s complaint was satisfied, since the decision of the court of first instance remained unchanged. That is, the court supported the plaintiff’s claims and recognised the Department’s actions as illegal. The court recognised the illegality of such a refusal. Since the plaintiff meets the criteria defined in the Resolution of the Cabinet of Ministers of Ukraine No. 332 “On Some Issues of Payment of Housing Allowance to Internally Displaced Persons”[46], namely, moved from the temporarily occupied territory and is registered in the administrative-territorial unit where assistance can be provided, the court recognised the right to receive a residence permit.

The plaintiff’s person applied to the court with a request to assign a residence permit as an internally displaced person. However, the department responsible for the case refused to assign assistance, referring to paragraphs 2 and 3 of the Resolution of the Cabinet of Ministers of Ukraine No. 332 “On Some Issues of Payment of Housing Allowance to Internally Displaced Persons”[47], according to which the residence allowance is not granted to persons who were registered as internally displaced persons before 24.02.2022 in regions not included in the list specified in Paragraph 1 of Section 2 of this Resolution. The plaintiff confirmed their status as an internally displaced person by presenting a certificate of registration. However, the Department ruled that the plaintiff was not eligible for a residence permit under the resolution of the Cabinet of Ministers of Ukraine No. 332 “On Some Issues of Payment of Housing Permission to Internally Displaced Persons”[48], since the plaintiff does not belong to the category of persons who moved from the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol or from the territory of an administrative-territorial unit where military operations are conducted, which is included in the list of administrative-territorial units, on the territory of which payers of a single contribution to mandatory state social insurance can be provided with assistance under the “eSupport” programme approved by the Order of the Cabinet of Ministers of Ukraine No. 204 “On Approval of the List of Administrative and Territorial Units, on the Territory of Which Assistance is Provided to Insured Persons Within the Framework of the “eSupport” Programme”[49].

Based on the considered grounds and norms of Order No. 332, the panel of judges concluded that the plaintiff is entitled to receive a residence permit under the “eSupport” programme, approved by order of the Cabinet of Ministers of Ukraine No. 204 from 06.03.2022 This procedure does not limit the receipt of residence benefits only to persons who have moved from the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol or from the territory of an administrative-territorial unit where military operations are being conducted. Therefore, considering the confirmation of the status of an internally displaced person by the plaintiff, the court assigned a residence permit in favour of the plaintiff. Thus, the court resolved the dispute in favour of the plaintiff and ordered the department to assign them a living allowance in accordance with the established rules and conditions of the “eSupport” programme.

Administrative courts of appeal have the competence to hear cases related to administrative matters, including disputes concerning compensation for damages. They can decide on compensation for damages caused by establishing the obligation to compensate for losses and determining their amount. Resolution of the Eighth Administrative Court of Appeal No. 140/17050/20[50], PERSON_1 and PERSON_2 filed an administrative lawsuit against the Executive Committee of the Lutsk City Council, the Department of social policy of the Lutsk City Council and the Commission for consideration of applications of internally displaced persons who defended the independence, sovereignty, and territorial integrity of Ukraine. By the decision of the Volyn District Administrative Court of March 04, 2021, the claim was fully satisfied. The court recognised the decision of the Commission on the appointment of monetary compensation, formed by the executive committee of the Lutsk City Council of 18.11.2020, as illegal and cancelled it. In addition, the Commission was obliged to make a decision on the appointment of monetary compensation to PERSON_1 and PERSON_3, as a member of his family, for obtaining appropriate residential premises for IDPs who participated in the defence of Ukraine. The Commission did not agree with this decision and filed an appeal, alleging a violation of the norms of substantive and procedural law. It asked to cancel the court decision and make a new decision that will dismiss the claim.

At the meeting of the Commission, it was established that PERSON_1 did not provide documents on actual residence and documents for his wife as a family member when registering for housing. At the same time, the decision of the public commission on housing issues was made without proper verification of documents confirming the composition of the family and registration of each family member. Thus, the Commission concluded that the documents submitted by PERSON_1 do not meet the requirements of the law and do not provide for an objective study of the issue, especially given the fact that the wife owns her own apartment, in which the whole family lives. Thus, the Commission argues its appeal by saying that the previous court decision was made in violation of substantive and procedural law. It asks to cancel this decision and make a new decision to dismiss the claim. This situation indicates that the issue of assigning compensation for losses to internally displaced persons is controversial. The court of appeal must carefully consider all the arguments of the parties, evaluate the evidence, and make an informed decision that considers the rights and interests of all parties. According to the decision of the court of first instance and evidence, PERSON_1 and his son PERSON_3 are internally displaced persons and are registered in the Unified information database on internally displaced persons. There are documents confirming this fact, in particular, certificates from 16.10.2014 N 0764/000021 and from 29.01.2020 N 764-5000261792. Moreover, PERSON_1 participated in military operations and measures to ensure national security and defence, in particular, in the Donetsk and Luhansk oblasts, which is confirmed by a certificate dated 28.01.2020 N 304/01/12/8-2020 and a copy of the certificate series NUMBER_1.

Since 06.04.2020 PERSON_1 is registered with the executive committee of the Lutsk City Council together with his son PERSON_2. The panel of judges agrees with the conclusion of the court of first instance that the refusal to award monetary compensation is in accordance with the law when a person has rights to real estate, the construction of which is not completed, or the right of ownership to residential premises that meet the norms of living space, located in settlements in the territory controlled by Ukraine. This does not apply to destroyed or uninhabitable residential premises due to Russian aggression, which is confirmed by an act of inspection of the technical condition (house, apartment), or such immovable property that was alienated within the last five years prior to the filing of an application for monetary compensation. Since PERSON_4 is not an internally displaced person, the application and other documents for calculating monetary compensation for them were not submitted. Thus, the court of first instance correctly established the circumstances of the case and made a decision in accordance with the norms of substantive and procedural law. It confirmed that PERSON_1 and his young son PERSON_3 are internally displaced persons who are registered in the Unified information database on internally displaced persons. In addition, PERSON_1 participated in military operations and measures to ensure national security and defence against Russian aggression in the Donetsk and Luhansk oblasts. These circumstances were confirmed by relevant documents, such as certificates. However, the application and other documents for calculating monetary compensation for PERSON_4, who is not an internally displaced person, were not submitted. The panel of judges considers that the appeal does not contain sufficient arguments to refute the conclusions of the court of first instance. Therefore, the court of appeal rejects the appeal and leaves the decision of the court of first instance unchanged.

Based on the above, mechanisms of cooperation between courts and other bodies resolve issues of internal displacement through the exchange of information, coordination of actions, and joint resolution of specific cases. Authorities such as government agencies, local governments, and law enforcement agencies cooperate with the courts to ensure that internal displacement issues are effectively addressed. The following measures can be taken to improve these cooperation mechanisms, such as a legislative reform: improvement of legislation related to internal displacement to clarify the role of courts and other bodies, and determine their powers and responsibilities; ensuring communication: establishing effective means of communication between courts and other bodies for the exchange of information, coordination of actions, and resolution of general issues; joint planning: development and implementation of joint action plans between courts and other bodies to effectively address internal displacement issues; application of information technologies: the use of modern information technologies to improve data exchange, electronic document management, and access to the necessary information; training and advanced training: provision of training and advanced training for judges, officials of government agencies, and other bodies dealing with internal displacement issues.

These measures can help improve mechanisms for cooperation between the courts and other bodies dealing with internal displacement issues. They will help to better resolve cases, reduce delays, and improve access to fair justice for those who depend on internal displacement policies.

 

4. Discussion

 

Issues of the rights and freedoms of refugees and migrants are always relevant and arouse considerable interest in society. Refugees and migrants are people who seek asylum, protection, and a better life due to political, economic, social, or humanitarian circumstances. Studies by O. Uhodnikova et al.[51] and S. Sakhanienko et al.[52] point to the problems of the relocation of persons from frontline areas and focus on finding freedom of movement and protecting these persons. The statistics provided are somewhat outdated, compared to this study, but there are important observations as of 2020, in the conditions of the pre-war state. In continuation of the search for safety and shelter in Ukraine, it is important to note the paper by O. Havryliuk[53]. All these studies show the geographical specifics of the movement of IDPs to the West, starting in 2014, which the authors of this study also noted, but narrowing the geographical aspect exclusively in Ukraine and expanding the statistics from 2014 to 2023.

The individual aspect has been considered by G. Uehling[54]. This paper discusses expanding the range of IDP subjects to better understand the rationality of their adaptation to life. A comparative analysis of interviews with IDPs from Crimea and the Donetsk Oblast shows that forced displacement is more diverse than previously thought. The author draws theoretical conclusions using government analysis approaches to study the logic or rationality used to explain forced migration. It is quite possible to agree with the statements that were made in the pre-war period. Now, in continuation of the above, new concepts of IDPs and relocation of enterprises are emerged with the outbreak of hostilities and require improvements in the protection of rights and rational implementation of programmes by the government have been studied. Adaptation to new conditions is also described by L. Alekseyenko et al.[55] and V. Teremetskyi et al.[56]. The researchers emphasise the importance of government policies on housing affordability for IDPs, and in legislative and judicial analysis argue for the protection of housing rights, which covers a number of aspects, including:

–          ensuring proper housing conditions;

–          support for people who are unable to meet their housing needs independently due to their financial situation, illness, or unemployment;

–          ensuring access to social housing for the homeless, internally displaced persons, and orphans;

–          creation of conditions for preventing homelessness;

–          ensuring the safety and reliable use of housing;

–          protection against forced eviction;

–          prevention of the critical conditions of housing and implementation of measures to overcome them;

–          measures to counter domestic violence if deprivation of housing is a form of economic domestic violence;

–          restoration of housing rights and compensation in case of their violation.

All these factors in total are important, and the authors of this study also pay attention, but in the legal aspect, to some of them related to housing provision. Already in the paradigm of martial law, this issue was also considered by J. George et al.[57]. The researchers separate the terms “housing” and “shelter” in the field of humanitarian assistance to IDPs. The difference between the concepts is a stable place of residence with “privacy” in the first case and the conditions and place of residence itself, as a temporary shelter for refugees, organised with the involvement of communities and individuals. The legislation under study does not clearly define the boundaries of these concepts.

The discussion of enterprise relocation is a fairly new and important topic that has gained significant importance in recent years. L. Shaulska and I. Scherb[58], V. Vlasova et al.[59] suggest that new technologies and growing globalisation create more opportunities for companies to view relocation as a strategic move. This is often conditioned by lower production costs, access to new markets, financial benefits, or political stability. In continuation of the above, T. Shmatkovska[60] notes that under martial law, the relocation of enterprises involves the transfer of production facilities, employees, and property to safe regions, ensuring the safety and continuity of business. Undoubtedly, this creates big challenges, since it is necessary to organise the evacuation of employees, ensure the safety of property and infrastructure, and ensure functioning in the new conditions. However, such relocation can open up new opportunities, ensure the safety and security of property, and ensure the continuity of production and provision of services. For successful relocation, it is important to conduct a detailed risk analysis, ensure cooperation with authorities and local structures, and ensure the safety and well-being of employees during the transition process. The relocation of businesses can also have major social and economic consequences for sending and receiving countries. This can lead to job losses, changes in the economic structure of the region, social tension, and other negative consequences. Therefore, the relocation of enterprises is a complex issue that requires careful analysis and a balance of interests of different parties. The authors considered topical issues of relocation in their paper, but the investigation of the topic showed that the programme is new and has many contradictions. This issue is considered reluctantly in the courts, and the effectiveness of the policy is 60%.

After evaluating the global trend, N. Zaun et al.[61] noted that the political climate and public opinion can influence decisions about granting refugee status, and this can have negative consequences for people who really need protection. Applying political pressure to independent courts could also undermine their ability to deliver fair and independent decisions. And the authors of this study agree that there is currently little data on the impact of differences in judicial independence, especially on lower-level court decisions, on political outcomes. Thus, after assessing refugee status in the 28 member states of the European Union during 2008-2018, the authors concluded that the relative independence of the courts has the greatest impact on the level of recognition of refugee status both at the first and last stage of the judicial process, especially when the pressure against immigrants is particularly high. Thus, this effect is observed not only in the context of appellate court decisions concerning asylum, but also in the first instance. It is worth adding that the studied Ukrainian judicial practice also showed certain restrictions. Thus, the courts are not able to interfere in government policy and must act in accordance with the current legislation, which is now imperfect in the new conditions of martial law.

According to the study by F. von Harbou[62], in recent decades, the European Union has formally “avoided” its obligations regarding the fundamental rights of refugees and other migrants. The researcher suggests that this was made possible by the perception of human rights as simple rules with limited application. However, this concept contradicts the broad understanding of human rights as individual rights to specific attitudes, as principles and values that exist in all branches of law. It was noted that the regulation of the rights of Ukrainian refugees in the European Union is insufficiently studied, and the legislation of Ukraine provides for influence only within the country. In other words, it is impossible to talk about the full protection of refugees abroad. It is worth noting that with respect to serious crimes such as crimes against humanity, genocide, torture, and war crimes committed on foreign territory against foreigners, national courts sometimes initiate proceedings against foreign citizens. L. Johns et al.[63] argue that immigrants can act as agents of global justice. When people cross borders, whether as economic migrants or refugees, they often put pressure on local authorities to launch criminal investigations and trials for crimes committed in the country they came from. Given the situation in Ukraine and considering such an approach, the following conclusions can be drawn. Ukraine has regulatory legislation aimed at ensuring equality and non-discrimination of immigrants. These principles are recognised as necessary for the protection of human rights and are considered in the context of Ukrainian legislation, in particular, migration and refugee legislation.

In contrast to the results of the study on Ukraine, L. Freier et al.[64] described the approach in America by which the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights determined that the principles of equality and non-discrimination require states to protect immigrants from any form of discrimination on grounds protected by the American Convention on Human Rights and to take special measures to protect vulnerable groups of immigrants. Recent immigration and refugee laws often provide broader protection, reflecting the process of regional migration liberalisation, and special protection provisions are more often included in bylaws, while non-discrimination provisions are more often included in laws. This shows that countries view special protection as a means of promoting positive discrimination in favour of disadvantaged groups. Ukraine also has its own specific features in protecting the rights of refugees and asylum seekers, which are comparable to international standards. Following the examination of MSS v. Belgium and Greece by the European Court of Human Rights, examined by E. Krivenko[65], E. Favi[66], the concept of vulnerability has become central to understanding the rights of refugees and asylum seekers. This concept should be considered in the context of equal human rights. In comparison with international standards, the Ukrainian approach to protecting the rights of refugees and asylum seekers may have its own characteristics.

First of all, it is necessary to recognise the importance of the concept of vulnerability and the principle of equality. The use of vulnerability language in the context of refugees and asylum seekers should encourage them to actively participate in processes related to their rights, rather than limit them as passive recipients of assistance. Ukraine should actively work on the formulation of policies and legislation relating to refugees and asylum seekers, considering the concept of vulnerability and the principle of equality. This will help to ensure more effective protection of rights and reduce the possibility of systemic discrimination from an intersectional standpoint. It was noted that Ukrainian legislation should include provisions that guarantee equal rights for all refugees and asylum seekers, regardless of their characteristics protected by international human rights conventions. It is important that Ukraine pays attention not only to formal legislation, but also to its implementation and practical measures to protect the rights of refugees and asylum seekers. Compliance with laws and the implementation of protection measures must be continuous and effective to ensure effective equality and non-discrimination.

 

5. Conclusions

 

As a result of the study, an analysis of statistical data of IDPs in Ukraine and the relocation of enterprises was carried out. The growth rate of registered internally displaced persons and businesses from 2014 to 2023 was established. The capabilities and adaptation of IDPs to new conditions were also analysed. The analysis of decisions of administrative courts of appeal in resolving issues of internal displacement was carried out. As a result of the study, the importance of administrative courts as a mechanism for ensuring legal protection and fair resolution of internal displacement issues was emphasised. It was found that judicial intervention can help improve government policies governing this area and force the government to comply with its obligations to protect the rights and well-being of affected individuals. There is a need to improve coordination and cooperation among various government bodies to ensure appropriate conditions and protect the rights of persons in need of internal displacement. In this way, court decisions can be a catalyst for changes in government policy and force the government to provide adequate protection and support to affected individuals. Therefore, it was recommended to improve cooperation between administrative courts, government bodies, and other stakeholders, provide adequate resources and support for administrative courts, and conduct systematic monitoring and evaluation of the effectiveness of administrative courts’ intervention in IDP matters. In addition, the issue of enterprise relocation has not been sufficiently studied. But in the practical absence of clear procedures and institutions, this issue requires further consideration, especially with regard to judicial practice. The study highlighted the need for further research in the field of administrative law and human rights aimed at expanding knowledge about the role of administrative courts in resolving issues of internal displacement, to consider in more detail the effectiveness of court decisions, their impact on practice and policy, and to investigate the relationship between administrative courts and other judicial bodies with competence in the field of internal displacement.

Based on the results of the study, it is proposed to focus on the development and improvement of mechanisms for cooperation between administrative courts, government agencies, and civil society, in particular, through dialogue, consultation, and exchange of information. This approach will help improve understanding of the problems of internal displacement and to develop more effective solutions. The findings highlight the need to improve government policies and develop effective internal displacement strategies. The government should consider the decisions of the administrative courts and ensure that the rights of victims are properly supported and protected. It is recommended to carry out systematic assessments of government policies on internal displacement and identify shortcomings and gaps in this area. Based on these assessments, specific measures should be developed and implemented to improve government strategies and programmes. It is proposed to conduct additional studies on the impact of administrative courts on government policies in the field of internal displacement. Analysis of court decisions and their impact can provide valuable conclusions for further improvement of legal regulation and practice. It emphasises the need for further cooperation between researchers, practitioners, and government agencies to exchange experience and develop best practices in addressing issues of internally displaced persons.

 

  1. Acknowledgements

 

My gratitude extends to the Researchers at Risk Fellowship of the British Academy, the Institute of Advanced Study of the University of Warwick and the Politics and International Studies Department of the University of Warwick for their support in undertaking my research. My appreciation also goes out to my esteemed supervisor – Prof. Maria Koinova (Professor in International Relations, Politics and International Studies Department of the University of Warwick) for her invaluable supervision, support and tutelage. I would like to express gratitude to colleagues and research team of the University of Warwick for their treasured support.

Abstract: Since Russia's armed aggression in eastern Ukraine in 2014, many people have become internally displaced, facing repeated violations of their rights, including the right to life, essential social services, medical care, education, and access to housing. Resolving these issues requires effective intervention by administrative courts to protect the rights of internally displaced persons. The purpose of the study was to reveal the mechanisms and effectiveness of administrative courts’ intervention in resolving internal displacement issues, and to identify problems and shortcomings of government policies that encourage internally displaced persons to apply to the court. To achieve this goal, the following methods were used: comparative legal, dogmatic, statistical methods, case study and literature review. It was found that administrative courts play an important role in resolving issues of internal displacement in case of possible shortcomings in government policy. They provide legal protection and support for those in need of internal displacement and can influence the improvement of government policies in this area. The study highlights the need to change government policies, systematically assess and develop effective internal displacement strategies. The study has practical implications for understanding the impact of administrative courts on internal displacement and government policies.

 

Key Words:internally displaced persons; relocation of enterprises; refugee rights; judicial practice; legislation.

 


*VasylStus Donetsk National University(omiliienko@ukr.net).

**Il contributo è stato sottoposto a double blind peer review.

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Olena Miliienko



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