Procedure for provision of humanitarian assistance to residents of Donbas: analysis and proposals
17:36 / 04 Feb. 2015 / 1134
On the 30th of January, Cabinet of Ministers at an extraordinary meeting has approved a governmental regulation on the Procedure for provision of humanitarian assistance to residents of Donbas. This document was developed by the State Service for Emergency Situations pursuant to the Presidential Decree № 875/2014 of 14.11.2014.
Essence of the acting Procedure
The Procedure, approved by the Cabinet of Ministers, provides that humanitarian assistance for the population of Donetsk and Lugansk regions is to be provided through the relevant Regional State Administrations (RSAs).
That is, at first humanitarian assistance should go to the local RSAs and then it is distributed:
– On the territories controlled by Ukraine – between the district state administrations and local self-governing authorities.
– On the territories, which are not controlled by Ukraine – between healthcare institutions and other social institutions.
Recipient lists, indicating name, passport information and address of the actual residence of a person should be compiled when distributing the assistance. It is also envisaged that humanitarian assistance must be labeled with national symbols of Ukraine.
Involvement of representatives of non-governmental organizations and volunteers in distribution of assistance is envisaged, yet on the territory of ATO – only representatives of international organizations. However, their involvement is not mandatory, this issue is solved by the local authorities.
Schematically, distribution of humanitarian assistance in accordance with the Procedure is as follows:
Analysis of the acting Procedure
Experts of community initiative “Restoring Donbas”, having examined the document, came to the conclusion that not only it does not solve the problem of providing humanitarian assistance to the residents of the territories uncontrolled by Ukraine, but also creates additional complexity. The reason for this – is an understatement in the Procedure wording and loopholes in existing legislation. In this regard, a community initiative stands for the need to refine the document through its discussions with the public and volunteers working in the area of ATO.
In particular, the Procedure specifies that it regulates the mechanism of distribution and issuance of humanitarian and other assistance, provided through Donetsk and Lugansk Regional State Administrations. Whether the document concerns exclusively governmental assistance, or is it about the entire humanitarian assistance, regardless of its sources – is unknown.
In the event that the Procedure regulates only humanitarian assistance from the state, issues of provision of humanitarian assistance through international organizations, charitable organizations and volunteers of Ukraine remain unresolved.
If any humanitarian assistance for the people of the ATO area falls under the adopted Procedure, it further complicates the situation. In this case, all the assistance should come to the ATO area solely through Donetsk and Lugansk Regional State Administrations. Extra links in the chain of distribution of humanitarian assistance pose a threat to its bureaucratization and have apparent corruption risks. In addition, according to paragraph 8 of the approved Procedure, all humanitarian assistance, which will pass through RSAs, shall be marked as humanitarian assistance from Ukraine. So, for example, international assistance from the Red Cross and other international organizations will be distributed by the Regional State Administrations on behalf of Ukraine.
It will be impossible to implement any interpretation of the adopted Procedure in its current form due to a number of ill-conceived provisions:
1) The adopted Procedure suggests that direct assistance to the population – is a function of district state administrations. Distribution of assistance should be tailored to the needs of the population and based on the information from district state administrations. However, all state authorities of Ukraine were withdrawn from the territory of the ATO by Presidential Decree, which automatically raises the question of the adequateness of situation assessment by district administrations.
2) The Procedure does not define ways of delivery of assistance directly to the ATO area. The document only mentions the possibility of involvement of the International Committee of the Red Cross and other international organizations in provision of assistance.
3) Lists of recipients, indicating passport information, address and signature, must be maintained when providing the assistance. But it is unclear what those people, who have lost their passports, should do.
4) The Procedure does not contain a well-defined mechanism for provision of assistance to the population in the ATO area, as well as it does not contain a control mechanism over this process.
According to “Restoring Donbas” experts, an attempt to incorporate Regional State Administrations into the mechanism of provision of humanitarian assistance in the ATO area bears huge risks. Implementation of the Procedure may lead to numerous violations during the provision of assistance and book-cooking. In particular, it may happen that provision of assistance through local administrations will result in the resale of products in markets and convenience stores as commodities.
Proposals for refinement of the existing Procedure
In order to settle the issue of provision of humanitarian assistance in the ATO area, Community initiative “Restoring Donbas” proposes to adopt specific changes to the current legislation of Ukraine:
1. Provide Regional State Administration with an authority to acknowledge (declare) certain products and cargoes a humanitarian assistance. This applies to, above all, food, medicines and basic necessities for recipients.
2. Amend the Law of Ukraine “On humanitarian assistance” and to legally establish that not only a legal entity can be a recipient of humanitarian assistance but also a natural person, who is registered in the Register of ATO volunteers.
3. Complement the Tax Code of Ukraine with provisions that assistance, received by volunteers and persons, who have received it in the form of food, should not be taxed as income. Today such norm is applied only to medicines.
4. Introduce amendments to the Customs and Tax Codes of Ukraine and the Law of Ukraine “On humanitarian assistance,” which shall establish that the tax and customs clearance of humanitarian assistance can be carried out not only by the decision of the Ministry of Social Policy, but also by the decision of RSAs.
5. Introduce amendments to Law of Ukraine “On humanitarian assistance,” which shall establish that the Ministry of Social Policy and the Cabinet of Ministers of Ukraine, in case of carrying out an ATO, shall approve the simplified procedure of provision and distribution of humanitarian assistance.
6. Introduce changes to the Temporary procedure of crossing border of the ATO area, which shall provide that the transit of humanitarian assistance can be carried out based on a document recognizing a cargo to be a humanitarian assistance, not only from the Ministry of Social Policy, but also from the RSA.
7. Approve at the level of the Ministry of Social Policy or the Cabinet of Ministers a procedure of simplified provision of humanitarian assistance, administering recognition of a cargo to be a humanitarian assistance, formation of the assistance group, communication with the State Fiscal Service, preparation of assistance acceptance acts.
Such changes to the adopted Procedure are optimal, since they take into account the most common practices of provision of humanitarian assistance in the ATO area – assistance through volunteers and funds of citizens and charities. In addition, in this version, issues of provision of assistance are being solved namely by volunteers and international organizations with a sufficient level of trust in society. These changes also take into account that there are no government agencies in the ATO area, and assistance should be provided only to the affected civilian population.