Since the beginning of the occupation of part of the territory of Ukraine, the Rus- sian Federation (hereinafter – the RF) has used different approaches to the extension of its legislation to the occupied territories: either immediately illegally extended its legislation to this territory, as happened with the temporarily occupied territory (hereinafter – TOT) of the Autonomous Republic of Crimea and the city of Sevastopol in 2014; or, as in the sit- uation with the TOT of Donetsk and Luhansk regions, exercised control over these territo- ries through its occupation administrations without incorporating these territories in its territory. However, since September 2022, following the unlawful incorporation of parts of Donetsk, Zaporizhzhia, Luhansk and Kherson regions into the RF and the adoption of these provisions into the RF Constitution, all legislation of the aggressor country has been ap- plied equally to all TOT of Ukraine.
Russia’s violation of key norms of international humanitarian law (hereinafter – IHL) is the root of all subsequent problems. Despite the fact that war is a prohibited instru- ment of international relations, wars do take place. According to IHL, military occupation as a consequence of war must be a temporary factual situation. Occupation cannot lead to a transfer of sovereignty from the state whose territory is occupied to the occupying state1. For this reason, the occupying state is obliged to respect the legislation of the occupied state to the maximum extent possible. However, it seems that Russia did not initially consider the occupation of Ukrainian territories as temporary.
Therefore, all documents issued in the TOT of Ukraine – from child birth certificates to permits – are issued either in accordance with the legislation of the RF or in accord- ance with the “legislation” of the so-called DPR/LPR2. Ukraine recognises such actions of the occupying power as unlawful. According to Article 9 of the Law of Ukraine “On Ensur- ing the Rights and Freedoms and Legal Regime in the Temporarily Occupied Territory of Ukraine”, any act (decision, document) issued by illegal authorities and/or persons in the TOT of Ukraine is invalid and does not create legal consequences. The only exceptions are documents confirming the fact of birth, death, marriage or divorce of a person in the TOT of Ukraine, but even these documents (specifically, only a part of them – birth and death certificates) are subject to a judicial procedure that precedes the issuance of Ukrainian state-issued documents.
Civil status acts are just one example of the state’s approach to documents issued to Ukrainian citizens under the occupation. Over the years of occupation, millions of different documents have been issued in the TOT of Ukraine, which are recognised as invalid by the state of Ukraine. However, the question arises as to what consequences this invalidity will have in the context of the reintegration of the deoccupied territories? What are the possible approaches to taking into account information from documents issued by the occupation authorities? Should approaches differ depending on the nature and type of documents and the legal consequences they entail? What documents can be subject to an exclusively judicial procedure due to the significance of the legal consequences or other reasons? And what documents can be issued by administrative procedure?
The issue of recognition of documents issued by the occupying power has been considered in other contexts, in particular, in the Advisory Opinion of the International Court of Justice in the case of Legal Consequences for States of the Continuing Presence of South Africa in Namibia (1971). The Court enshrined the so-called “Namibian exceptions”3, which are referred to in their decisions by both the European Court of Human Rights (ECHR) and Ukrainian courts. According to the above-mentioned ICJ opinion, documents issued by the occupying authorities should be taken into account if their disregard entails serious violations or restrictions on the rights of citizens. Recognition of these facts does not lead to recognition of the occupying authorities and the documents issued by them. Instead, it helps to avoid situations of complete lawlessness for people living in the occupied territories and contributes to their protection in their own country and other countries of the world.
This analytical note is, in fact, the first attempt to define the list of documents issued by the occupation authorities, and the information from which can be used by the state authorities of Ukraine in a certain order to minimise the negative consequences of the occupation for a significant part of the population of Ukraine living under occupation. The document lists the key categories of documents issued by the occupation authorities in the TOT of Ukraine, which are critical for the exercise of the rights and freedoms of Ukrainian citizens, and for which it is possible to determine the mechanisms and procedures for taking them into account when issuing the relevant state-issued documents. This list is not exhaustive, but gives an idea of the scope of the problems faced by Ukrainian citizens living in the TOT of Ukraine and the tasks that the state faces.
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