New procedure of crossing the border of ATO area strengthens the capacity of the human factor – “Restoring Donbas”
12:04 / 19 Jun. 2015 / 362
The essence of the new modifications in the procedure of crossing the border of ATO area (which are represented as a result of conjoint work of volunteers and Security Service of Ukraine) states that public opinion about key points wasn’t heard. Consequently, the procedure has become another bureaucratic document, which again requires serious improvements and changes. The lawyers of the community initiative “Restoring Donbas” made such conclusion based on their research.
According to experts, the new procedure has a number of positive innovations – the abolition of obtaining individual passes for personal transport, the ability to pass the checkpoint without any documents in case of the threat of life, regulation of the movement among the demarcation line by children under 16 years. However, at the same time this document limits citizens’ right to freedom of movement. In fact, it legalizes the blocking of Donbas uncontrolled territories and creates significant corruption risks.
The most significant innovation – is blocking of public transport, that can lead to the complete cessation of passenger services. The only exception, which is provided by Temporary procedure, are casual transport of certain groups of people. It can be exercised only with the approval of a coordination Centre. Moreover, it does not determined, in which cases it is allowed to transport. As a result, officials are actually have the right to use its discretion to decide, whether to permit to cross the demarcation line or not. Considering the fact, that transit across ATO borders cannot be completely stopped, this innovation is the biggest threat of the corruption.
In addition, the pitfalls contain provisions, which provide for the special cases of fast obtaining the pass. Under the new procedure, such permission could be get from the heads of coordination Centre and from coordination groups as long as you provide the documents, which confirm the death, illness or family funeral. This provision has acted before. It had demonstrated its ineffectiveness in emergency situations.
In addition, the new procedure informs that agreement about the urgent transportation can be both written and oral. There is still unclear process of appealing the oral denial. The possibility of an oral permission per se – is also a breeding ground for trespass.
Modifications in this procedure contains a number of conflicting provisions about on key issues. On the one hand, it provides that in the case of threat to life and health, permission for crossing the demarcation line is not required. However, a person can be denied if he/she is not able to confirm the purpose of transport. Thus, if the person cannot explain and prove the threat of his/her life and health, he can be refused. These provisions enable officials to allow entry even in the absence of relevant grounds, and prohibit it in case of their presence.
Finally, the problematic issue, which is outside the legal field, is an electronic system for applications for passes. Difficulties, which emerged during the test operation of the electronic system, raise doubts about the fact that they were automatically eliminated after the introduction of the new procedure. At the same time, according to the new procedure, it is still unclear what to do if a response with confirmation about the filing of documents did not come in the mail.
Community initiative “Restoring Donbas” offers to modify this procedure promptly, even before the full implementation of the new rules, in order to close the gaps and eliminate defects. In particular, the “Restoring Donbas” proposes to adopt the following changes:
1. It It is necessary to provide for the possibility of appealing against the actions
of officials in coordinating centers and focal groups in case of unanswered abandonment of the application for a pass.
2. The provision about the citizen’s transit in the case of threat to life and health
must be formulated more correctly. It is necessary to regulate the procedure of crossing the demarcation line in this case, and to identify responsible people for such movement in order to minimize the risks of corruption.
3. The transportation of the public transport cannot be prohibited, because it
essentially limits the citizen’s rights. The only reasonable, but not the best option – is to restrict such transportations by specific checkpoints.
4. It is necessary to exclude / concretize such ground for refusal of departure from
uncontrolled territories as a contradiction to the national interest or threatening of citizen’s rights. Such unclear provision allows to refuse almost in every case.
Only in the case of elimination of these key gaps and risks, a new procedure can be the basis for resolving the problems of pass-entry system in ATO area and for the further dialogue of the Security Service of Ukraine with the public.