Actual Dimension of Program Acts’ Implementation on Crimea Reintegration

Docent Lynnyk Tetiana

Currently, it is considered expedient and socially demanded to study the effectiveness of the implementation of programmatic legal means of countering the temporary occupation of the Crimea by the aggressor and, accordingly, ensuring the deoccupation and reintegration of the peninsula.

To carry out such an analysis, it remains important to evaluate the relevant regulatory framework, in particular approved program documents, for the sake of a consistent comparative analysis of the effectiveness of the implementation of approved acts, research of existing administrative and judicial practice in this area.

The development of Ukrainian legislation on the issues of temporarily occupied territories during the first years of the occupation of Crimea was primarily reactive in nature, and the corresponding approaches of the lawmaker, although they had certain features of programming, did not differ in constant consistency.

For example, the Law of Ukraine “On the Creation of the Free Economic Zone “Crimea” and on the Peculiarities of Carrying Out Economic Activities in the Temporarily Occupied Territory of Ukraine” dated August 12, 2014 No. 1636-VII with a number of subsequent amendments, which was criticized by experts for a long time, was repealed by the Law of Ukraine dated July 1, 2021 No. 1618-IX [5].

The current basic law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” dated April 15, 2014 No. 1207-VII was amended by 26 laws of Ukraine [7] and in its own final provisions attributed to the Cabinet of Ministers of Ukraine (hereinafter – CMU), among other things, to establish a special central body of executive power on matters of the temporarily occupied territory (hereinafter – TOT) of Ukraine.

This program prescription of the law was implemented by the CMU for a long time in various forms, first by the CMU Resolution No. 595 of August 19, 2015 with subsequent changes, the position of the Government Commissioner for the Autonomous Republic of Crimea and the City of Sevastopol (hereinafter – Crimea) was introduced, and later by the CMU resolution of September 24, 2015 No. 736, the State Service of Ukraine for the Crimea was formed, but these documents were canceled in 2016, and the corresponding state bodies were liquidated [1].

Instead of these bodies, by the resolution of the CMU dated June 8, 2016 No. 376, the Ministry of Internally Displaced Persons and TOT (MinTOT) was established, which subsequently repeatedly underwent changes in name and functioning, mergers and separations with other ministries, and its the provision underwent numerous changes [1]. In particular, this has led to the fact that since 2020, the issues of legal succession of this ministry, including the issues of the reintegration of the Crimea, have become the subject of judicial review in the order of administrative proceedings, for example in case 420/7376/20 [19].

At the same time, the specified ministry, in accordance with the relevant powers established in the Regulation on its activities, carries out strategic planning of socio-economic, infrastructural, humanitarian and cultural restoration and development of the TOT, as well as its adjacent territories, based on the needs and interests of the citizens of Ukraine [1].

In this regard, it is worth mentioning the plan of measures aimed at implementing some of the principles of the state’s internal policy regarding the TOT of Crimea, approved by the prescript of the CMU of March 28, 2018 No. 218-r and canceled in 2021 [9]. After all, this document was developed by the specified ministry, which, among other things, had the function of coordinating its implementation.

In particular, the prescript of the CMU dated March 28, 2018 No. 218-r indicated that ministries, other central and local executive bodies are assigned to ensure the implementation of the plan of measures and to submit quarterly by the 15th of the following month to the MinTOT the information on the state of implementation of the plan of measures in the form established by this ministry, which in the future had to report annually to the CMU [9].

The Ministry of Reintegration of TOT (Ministry of Reintegration) received a similar function in relation to the Strategy for the Development of the Crimean Tatar Language for 2022-2032, approved literally on the eve of the large-scale Russian aggression by the order of the CMU of February 23, 2022 No. 224-r [17]. Together with this Strategy, the same prescript of the CMU approved the operational plan for its implementation, and the executive authorities responsible for the implementation of this plan were assigned to ensure reporting to the Ministry of Reintegration in a form similar to the mechanism that was previously established by the CMU’s prescript of 2018 No. 218- p.

Also, in the prescript of the CMU of 2022 No. 224, the Ministry of Reintegration was assigned not only to submit annually to the CMU information on the state of implementation of the operational plan, but also every three years from the date of approval of this order, as well as after the deoccupation of the AR Crimee “to conduct an analysis of the effectiveness of the implementation of the operational plan with the aim of making proposals for its renewal in accordance with the established procedure of the CMU” [17].

Among other things, in this document, approved a day before the large-scale Russian invasion, the attitude of the CMU to the time limits of the deoccupation of the Crimea is considered remarkable.

At the same time, planning for the deoccupation and reintegration of the Crimea was also carried out by other central bodies of the executive power, as evidenced, among other things, by the current Information Reintegration Strategy of the Crimea, approved by the prescript of the CMU dated December 27, 2018 No. 1100 [16], where the Ministry of Reintegration is not the coordinator of its implementation, but the Ministry of Information Development of Ukraine.

At the same time, the decision of the National Security and Defense Council of Ukraine (hereinafter – NSDCU) dated March 11, 2021 and the Decree of the President of Ukraine No. 117/2021 dated March 24, 2021 approved the Strategy for the Deoccupation and Reintegration of the Crimea [15]. After that, a plan of measures for the implementation of this Strategy was approved by CMU prescript No. 1171 dated September 29, 2021 [8], and in the following, already under the conditions of large-scale Russian aggression, by CMU prescript No. 288-r dated April 4, 2023 the plan of measures for the implementation of the Strategy was amended, it was presented in a new edition [6].

It should be noted that the very wording of the Strategy has not yet been changed in the manner provided for by the law from 2021, while if for the 2021 plan of the CMU the obvious basis for approval was the very fact of the Strategy’s approval, then the prerequisites and grounds for approving the 2018 plan and changes to the plan 2021, carried out in 2023, are not defined in these documents. At the same time, the new edition of the 2023 plan [6], as well as the edition of the 2021 plan [8] provides for a mechanism of control over its implementation, with the participation of the Ministry of Reintegration, similar to the 2018 plan.

Currently, there are no publicly available documents on reporting on the implementation of the canceled 2018 plan and on the implementation of the 2021 edition of the plan, replaced by a new one in 2023, nor are there any published documents on the evaluation of the effectiveness of the implementation of these legal program acts. Currently, the key issue of the implementation of the 2023 plan remains its objective partial adjustment with the text of the Strategy, which has not undergone any changes since 2021.

At the same time, it is obvious that the preparation of changes to the Strategy does not belong to the competence of the CMU or relevant ministries, but primarily to the bodies of the presidential power, such as the Office of the President of Ukraine and the Mission of the President of Ukraine in the AR of Crimea (hereinafter – Mission), as well as to the functional apparatus of the NSDCU. These bodies also have experience in program regulation regarding the Crimea, in particular, these are Separate Measures aimed at the deoccupation and reintegration of the Crimea, approved by the decree of the President of Ukraine dated February 26, 2021 No. 78/2021 [13].

By this decree, in addition to the formation of the Organizing Committee for the preparation and holding of the founding Summit of the Crimean Platform in Ukraine, the Secretary of the NSDCU was assigned the task of preparing a draft Strategy for the Deoccupation and Reintegration of the Crimea, and the government was also instructed to take a number of measures to support the Crimean Tatar language, including the development and approval of the corresponding Strategy within six months , which was in the following year, was indeed approved by the CMU, but a year later.

Special attention should also be paid to the Decree of the President of Ukraine dated August 15, 2022 No. 579/2022, which was approved already under the conditions of large-scale Russian aggression, which established the Advisory Council on the deoccupation and reintegration of the Crimea. The tasks of the Advisory Council included preparation, taking into account the provisions of the Strategy of deoccupation and reintegration of the Crimea, and making proposals regarding the priorities of activities, including within the framework of the Crimean Platform, on the issues of deoccupation, reintegration and restoration of the territorial integrity of Ukraine, as well as participation in the development of a position of Ukraine on the key areas of activity of the Crimean Platform and preparation of proposals for improving legislation on issues related to the deoccupation and reintegration of the Crimea [11].

Thus, the key body outside the NSDCU and the CMU, which should take care of the implementation of the Strategy, was determined to be this Advisory Council, which, according to Decree No. 579/2022, in the process of fulfilling the tasks assigned to it, should interact with other advisory and other auxiliary bodies and services formed by the President of Ukraine, as well as with the Mission and the National Institute of Strategic Studies, in which the Permanent Representative of the President of Ukraine in the AR of Crimea (hereinafter – the Representative) was appointed as the Secretary of the Advisory Council, and the President of Ukraine as its Chairman.

According to Clause 9 of the specified decree, the main organizational form of the work of the Advisory Council is the meeting, which is held in case of need, but not less than twice a year, at the same time, as of the end of April 2023, there is no information about the holding of the meetings of the Advisory Council in open sources, just like as well as information on the approval of its composition, a significant part of which must be delegated, in particular from the expert network of the Crimean Platform, representative bodies of indigenous peoples [12], etc. Since the Secretary of the Consultative Council is the Representative, it is logical to investigate the functionality of the Mission in the development and implementation of program documents regarding the Crimea [11].

It is worth adding that by the decree of the President of Ukraine No. 16 of January 20, 2016, the Mission was assigned to intensify, in cooperation with the central bodies of executive power and local self-government bodies, work on participation in the development of strategic programs for the return of TOT under the general jurisdiction of Ukraine [2].

This decree was canceled in effect, in the version of 2021, by decree No. 758/2019 of October 17, 2019, which assigned the Mission, in cooperation with central and local bodies of executive power, other state bodies, local self-government bodies, to take measures to further intensify work on the development strategic program documents on issues of TOT de-occupation and reintegration, restoration of human and citizen rights and freedoms violated as a result of occupation [3].

Obviously, as part of the implementation of these prescriptions, the Decree of the President of Ukraine dated April 13, 2021 No. 160/2021 approved the Strategy for the Mission’s activities, the Mission was assigned to ensure the implementation of the Strategy, and the CMU – to ensure the interaction of the central bodies of executive power and Mission in promoting the implementation of the specified Strategy [14] .

In this context, it is worth mentioning the previous experience of approval and implementation by the Mission of program acts on the deoccupation and reintegration of Crimea. In particular, by order of the Representative dated June 20, 2018 No. 17, the Plan of urgent measures to counter Russian aggression from the Crimea, to protect the interests of the state, citizens of Ukraine and Ukrainian legal entities in Crimea for 2018-2019 was approved as a document developed by the Mission, approved by its Expert Council on April 11, 2018 and supported on June 19, 2018 by the high-level working group formed by the order of the Mission of March 19, 2018 No. 8 on the proposals of the central executive authorities [10].

The document indicated that he was approved for the performance of the tasks provided for by the law of Ukraine “On the Mission of the President of Ukraine in the AR of Crimea” and the decree of the President of Ukraine of 2016 No. 16/2016: The plan was sent to the President of Ukraine through his Administration and to bodies, institutions and organizations, within the scope of whose authority is to facilitate its implementation, while control over the implementation of the Plan was entrusted to the Representative [10].

In the future, from 2020, within the framework of administrative case 420/3863/20, based on the lawsuit, statements and complaints of a number of former officials of the Mission and civil tructures, the court considered the responsibility of the Mission for non-implementation of the Plan, while although the claims were rejected, the court in this case was established the need for the Mission to fulfill the provisions of this plan, but it was noted that in order to challenge the relevant inaction of the body for the deoccupation and reintegration of the Crimea, the applicant had to prove the damage he suffered from such non-fulfilment [4].

The administrative court indicated that the plaintiff did not specify what the actions and inactions of the Mission were, which led to the violation of his rights, due to the non-fulfillment or improper implementation of order No. 17 and the approved Plan, and the plaintiff did not specify what actions the court must oblige the defendant to comply with the specified order No. 17 and the approved Plan as of the time of filing the stated claim in 2020. At the same time, the court emphasized, the adopted order No. 17, and the corresponding plan approved by it, has not been canceled by anyone, is effective and therefore is mandatory for the employees of the Mission [4].

Therefore, the indicated experience of the judicial analysis of program documents on the deoccupation and reintegration of the Crimea indicates the possibility of raising relevant issues regarding the improper execution or non-execution of such documents in the next one as well. This allows us to agree with the opinion [19] that the state of implementation of the measures of the plan approved by the CMU in 2023 on the relevant dates, as obligations of the Government of Ukraine, may become the subject not only of public control and assessment, but also, accordingly, the object of legal response, including procedural.

It is noteworthy that, in addition to the above-quoted ruling of the Fifth Administrative Court of Appeal dated May 12, 2021 in case 420/3863/20, the experts of the ARC refer to the position of the Supreme Court in the ruling dated April 13, 2023 in case 420/8381/20 regarding inaction the State Fisheries Agency of Ukraine on the issues of the interdepartmental agreement with Russia regarding fishing in the Sea of Azov, and indicate that relevant demands to the authorities of Ukraine in terms of response to the occupation of the Crimea can be put forward by persons who suffered both from the occupation itself and from the failure to take specific actions on deoccupation determined by the state bodies within their powers.

We should agree with the experts that it is particularly important to establish which specific authority according to the plan was determined to be the main, responsible executor of its specific measure, especially if there are a number of co-executors [19].

Therefore, at the moment, systematic measures are being taken in Ukraine for the program regulation of the processes of deoccupation and reintegration of Crimea. The Ministry of Reintegration and the Mission should be considered key structures involved in the relevant processes, both at the level of development of relevant program acts and in the form of their implementation. Currently, the key issue of the relevant activity remains the introduction of changes to the Strategy for the deoccupation and reintegration of Crimea, the correction of the new version of the Strategy with the action plan for its implementation and the functioning of the Advisory Council on deoccupation and reintegration of the Crimea.

At the same time, the implementation of currently valid program documents on the de-occupation of the Crimea may be subject not only to public control, but also to court proceedings within the framework of administrative proceedings. The question of the effectiveness of public control over the implementation of plans for the deoccupation and reintegration of Crimea should become the basis for new scientific research.

Sources:

1. https://zakon.rada.gov.ua/laws/show/376-2016-%D0%BF#Text
2. https://zakon.rada.gov.ua/laws/show/16/2016/ed20191017
3. https://zakon.rada.gov.ua/laws/show/758/2019/ed20210817#Text
4. https://reyestr.court.gov.ua/Review/96931850
5. Офіційний вісник України. 2021. № 68. Ст. 4252.
6. Офіційний вісник України. 2023. № 39. Ст. 2077.
7. https://zakon.rada.gov.ua/laws/show/1207-18#Text
8. Офіційний вісник України. 2021. № 80. Ст. 5063.
9. https://zakon.rada.gov.ua/laws/show/218-2018-%D1%80#Text
10. https://zakon.rada.gov.ua/laws/show/v0017755-18#Text
11. Офіційний вісник України. 2022. № 66. Ст. 3959.
12. Офіційний вісник України. 2021. № 60. Ст. 3733.
13. Офіційний вісник України. 2021. № 19. Ст. 735.
14. Офіційний вісник України. 2021. № 32. Ст. 1846.
15. Офіційний вісник України. 2021. № 26. Ст. 1255.
16. Офіційний вісник України. 2019. № 12. Ст. 424.
17. Офіційний вісник України. 2022. № 26. Ст. 1443.
18. https://reyestr.court.gov.ua/Review/98044939
19. https://arcrimea.org/uk/analytics_ua/2023/04/20/uryadovyj-plan-reintegracziyi-krymu-mizhnarodnyj-vymir/