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Human rights in Ukraine 2009 – 2010. 24. Problems of the rights of the child in Ukraine

23.02.2011

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In 1991, Ukraine adhered to the Convention on the Rights of the Child, thereby pledging to implement at the national level and ensure the protection of the rights of the child.

National Action Plan to implement the UN Convention on the Rights of the Child

A positive event occurred on March 5, 2009: the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On National Program "National Action Plan to implement the UN Convention on the Rights of the Child’, which had been under consideration in the Verkhovna Rada since 2006. This National Plan is intended to combine state efforts to protect the rights of the child. It should optimize the integrated system of rights-of-the-child protection in Ukraine according to the UN Convention on the Rights of the Child and allow for the development objectives promoted by the UN Millennium Declaration and strategy of the Resulting document of the Special Session of UN General Assembly on Children “The World Fit for Children».

The main task in this area should include higher effectiveness of prevention and outreach to parents to prevent abuse of children, improved finding of children prone to sexual exploitation and other forms of cruel treatment, creation of the system of rehabilitation and reintegration of children, which suffered from trafficking, sexual exploitation and other forms of abuse; provisions for the system protecting children from abuse, and carrying out of prophylaxis.

The National Plan was adopted without the list of proper measures, which should be worked out annually; according to the Decree of Verkhovna Rada the ending date in 2009 would be June 5, 2009. It is a shaky decision, as the annual planning prevents introduction of long-term measures.

Monitoring of implementation of the Convention on the Rights of the Child

The Art. 44 stipulates that in compliance with the provisions of the Convention every 5 years the participant countries are expected to submit their progress report to the UN Committee on the Rights of the Child describing measures taken on their territory to promote and protect the rights of the child.

Ukraine has prepared the combined third and fourth periodic report, which will be considered by the UN Committee on the Rights of the Child during its 56th session held in Geneva from January 17 to February 4, 2011. By results of consideration of this report the Committee on the Rights of the Child will make concluding remarks about Ukraine. The experts on children’s rights think that there will be a lot of criticism taking into account the real state of affairs in Ukraine concerning the rights of the child and only partial implementation of previous concluding remarks.

In 2009 the NGOs of Ukraine published “The alternative report on implementation of the Convention on the Rights of the Child”2. It provides an overview of compliance with the whole complex of rights dealt with in the Convention. Its conclusions and recommendations are relevant for the late 2010 as well. According to the Alternative Report, the preliminary recommendations of the UN Committee on the Rights of the Child are taken into account only partially. This particularly applies to the general government policy approaches securing children’s rights. This policy does not consider the child as a subject of his/her rights, but as an object of protection only.

Accordingly, the Ukrainian legislation on the rights of the child remains declarative; moreover, not all children’s rights as defined by the Convention are legally guaranteed.

The state lacks a systems approach to ensuring that the opinion of children is taken into account at all levels of society. The principle of the best interests of the child as the basis of public policy holds only in the field of child protection and regulation of family relations. The government policy tends to combat discrimination of vulnerable and marginalized groups, particularly in access to education and healthcare.

Financing government programs and plans for children’s rights uses the leftover principle rather than providing fixed expenses in the budget for their implementation.

In Ukraine, there is still no ombudsman on children’s rights, no civil institutions carrying out comprehensive system monitoring of children’s rights, no publicizing its results.

There is a blow-up in the number of orphans and children deprived of parental care and cared for by foster families or some other kinds of families. The development of family upbringing and the 2005 Ukase of the President of Ukraine "On Priority Measures to Protect Children" contributed to the introduction of foster care funding from the State Budget of Ukraine. But there still exists a topical need of improvement of legal access to alternative forms of family placement of children.

Most articles of the Convention on the Rights of the Child are appropriately reflected in national legislation; though the practice remains but formal and fails to fulfill government’s obligation under the Convention.

For example, the definition of child in national legislation complies with the standards of the Convention, however, there still remain such unaccounted for Committee recommendations as difference in marriageable age between boys and girls, age reduction for early ambulation without parents’ consent, and determination of minimum age for initiation of sex relations. There also exists a serious problem of ensuring children’s rights to individuality protection in cases of adoption.

The alternative report provides another example. The measures and actions of the state intended to overcome the child and infant mortality are not effective. On the surface there are such problems as inadequate training of medical staff in rendering healthcare to the mother and child, understaffed rural medical institutions, lack of systems approach to tackling problems of logistics, and introduction of advanced technologies. Instead of real and concrete plans and error analysis for immediate correction, the state resorts to declarations and descriptive generalizations.

The child’s right to privacy is totally ignored: the national legislation contains no interpretation and, therefore, guarantees of protection of the privacy of the child. There is no general understanding of the concept of privacy of a child; the child is treated as an object external tutorial or educational work.

There is the habit of total violation of children’s right to privacy in the comprehensive secondary schools and residential schools (toilet cubicle with open doors, opening and inspection of correspondence and notes, public disclosure of personal information, nearly free access to registers and health records) due to complete lack of understanding of the rights of children and their value, and frequent attempts at one’s own discretion to determine and protect the interests of the child.

The children in Ukraine continue to suffer violence: the humiliation of child’s dignity often happens in comprehensive secondary schools, in family, in contacts with law enforcers, at children’s homes and family-type orphanages. There are no effective mechanisms to effectively identify and control incidents of violence as well as mechanisms backing existing legal norms prohibiting corporal punishment. The questioning of children (witnesses, victims and defendants in a crime) remains imperfect and traumatic for a child.

There is no mechanism of early detection of affected families and evaluation of child’s needs. The family situation is evaluated by the board of guardians practically based on a single document––i.e. the inspection report on housing and living conditions. Ukraine also failed to fulfill the Committee’s recommendations on financial assistance to vulnerable families with children. Though the principle of "money follows the child" is considered progressive, it does not support various families with children, covering only a small proportion of children who need help. The Committee’s recommendation to place children in child welfare institutions only temporarily and in extreme necessity is not fulfilled.

The current legislation does not provide for implementation of the Constitution of Ukraine concerning proper funding and creating conditions for free and adequate medical care. The consequences are clear: the health of children from 0 through 14 years is still unsatisfactory; there is a rise of venereal diseases and unhealthy habits among young people, HIV awareness remains superficial.

In Ukraine, HIV-positive mother is not advised to breast-feed; at the same time there are problems with underdelivery of surrogate breast-milk. The NGOs point that the rights of HIV-positive children are constantly violated in health care institutions.

We can conclude that the State has failed to ensure access to education for homeless children, children of migrants and refugees, eliminate discrimination in realization of the right to education of children with HIV / AIDS, provide for full access to preschool education in rural areas, and integrate all Roma children into the public education system. Over 20, 000 children of school age do not go to school.

There exists a serious problem of full realization of the right to education of children with mental disorders and children with disabilities (handicapped children). There is no mechanism for including these children into formal education system. The system of individual training is nearly out of work. There is a shortfall of textbooks and specialized literature for children with impaired vision and hearing.

They is no access to education for children supported by the state at children’s houses, boarding schools managed by social protection system which does not provide education and training and has no proper professionals and educators on its staff list. There were many cases registered when children of refugees did not go to school.

Very little attention is paid to training teachers in the rights of the child, training of specialists capable of working with children with developmental disabilities.

Therefore, the actions of the state to provide adequate children’s rights in Ukraine in accordance with the standards of the UN Convention on the Rights of the Child is insufficient, the degree of fulfillment of recommendations of the Committee on the Rights of the Child remains unsatisfactory.

Issues of protection of vulnerable children3

The analysis of information collected by Human Rights Center "Postup" and NGOs "Human Rights Protection of Children-of-Donbas Network” proves that Ukraine has no mechanisms of legal protection of vulnerable children. The legislation contains no regulations that allow considering such children as representatives of vulnerable groups that need special protection. The violation appeals of children at risk are not considered with due care and diligence. The refusal to take into account special needs of children from this group and lack of fixed law on effective legal measures intended to ensure special protection allow concluding that this group of children is discriminated.

The experts suggest that, if children are taken care of by legal representatives who are not motivated to restore children’s rights (managers of special institutions, distant relatives, demoralized relatives etc), the facts of violations are investigated formally and in most cases the rights of children cannot be restored. There are no mechanisms of departmental control of the quality of militia investigation and prosecution of violations of the rights of children at risk. It is especially evident, when the children’s rights are violated by law enforcers. The dependence of children and pressure on them by law enforcers significantly complicates attempts to restore the rights of children. Under the impact of pressure and threat of militia officers they do not dare to protest violation by law enforcers. The children often refuse to incriminate the law enforcers.

It is also necessary to pass a law on special procedural due process in cases of complaints about violations of the rights of the child by law enforcers. It is important to provide for opportunities of departmental and inter-agency as well as NGOs’ control. It is essential to avoid termination of investigation on the facts stated in such complaint, if the complainant waives claims and requests to withdraw an action. These and other recommendations were submitted by the group of Ukrainian, German and Polish experts as a part of the project “Action for Children at Risk."

The situation with homeless and neglected children4

In Ukraine, the phenomenon of child homelessness and neglect has been minimized. In recent years, the number of homeless and neglected children has been slipping down by 15-20% annually. Today the orphanages are only 60% full. The conditions have been created to reduce the network of orphanages and return of their premises to the preschool.

In recent years, there has been a positive downtrend in the number of child abandonment. During the period 2004-2008, the number of abandoned babies fell by 41.3% (2004––1549 newborns, 2005––1246, 2007––1027, 2009––909).

As a result, in 2009, for the first time since Ukraine’s independence, the number of orphans and children deprived of parental care dropped.

Risks:

1. The social protection of children slips down the list of priorities in Ukraine. The Ministry for Family, Youth and Sports states the shift of accents despite the fact that the rights of the child that has lost parental guidance is the basic function of this Ministry.

2. Anxiety-provoking is the information about 20% reductions in the number of personnel of oblast and regional state administrations. Typically, the term "at the discretion" of the regional top administrator means priority cuts of structures working in the field of social protection of children. Therefore, there is a great risk of losing gains in branch personnel policy, since in 2007, for the first time in history, they allocated USD23M from the State budget for staffing of regional (and only, rather than oblast) services for children. Actually, all positives of recent years were due to personnel support of state targets.

3. 2010 priority consists in the quality of creation and functioning of families with adopted child, foster care, and foster care children homes. This is a common task of local Services for Children and Social Services for Family, Children and Youth. The quantitative indicators were upping in 2006-2009. If they sack personnel, the task of working with children and families will become overwhelming.

4. The inhibition of reform of boarding schools for orphans and children deprived of parental care, what is underway for the last nine months due to recruiting of children from poor families to the boarding schools, results in higher social orphanhood.

5. Until now both orphans and children deprived of parental care need social backing.

 

Coordination of the rights-of-the-child activities. Children’s Ombudsman

There are both legal and systemic problems of ensuring children’s rights. And the first one is coordination in the field of child protection against the background of current administrative reform. What will be the executive agency effectively coordinating and organizing activities providing for child’s rights in Ukraine?

The children will never get the deserved recognition and attention, if they are not treated as a priority. The structure, working methods, information and style needed for effective dialogue with children are substantially different from those intended to protect the rights of adults.

Today in Ukraine the responsibility for children is shared by various ministries and departments with poor or nil cooperation.

Beside the executive body there must be an effective agency monitoring execution of children’s rights and providing for necessary urgent response. Therefore, there is a topical problem of implementation of the Institute of Children’s Ombudsman repeatedly recommended to Ukraine by the UN and Council of Europe. Ukraine should devise an effective mechanism for monitoring and ensuring children’s rights, which is now virtually absent. Obviously, the rights of the child are not a priority of the Commissioner of the Verkhovna Rada of Ukraine.

To provide effective monitoring and implementation of children’s rights the Ombudsman for Children should be capable of influence on the development of legislation, policies and practices ensuring their compliance with the rights of children; examine individual complaints concerning violations of the rights of the child, encourage enquiry and investigation into the cases dealt with, and by all possible means to promote awareness of adults and children about the rights of the child. But both current Commissioner for Human Rights and majority in Parliament are against the introduction of Children’s Ombudsman.

There is also a need to secure the rights of children and protect them against infringements by law enforcers. During recent years the issue of withdrawal of criminal militia for the rights of children from the criminal subordinate unit to the block of public security and discontinuation of their operational activities was repeatedly on the agenda; it might significantly improve the level of protection of children, permit advance identification and keeping of preventive records of the families, which had committed violence against children, examine causes of family problems and, if necessary, remove children from dangerous environment. However, instead of withdrawal from criminal unit and subordination to the public security militia, the MIA chiefs decided to liquidate this department and redistribute a part of its functions associated with a criminal bloc among different divisions; they will leave untouched prophylactic work only. Together with the declared axed jobs from the IAA, these steps look like destruction of this direction, contrary to logic and international obligations of Ukraine.

 

Problems of Introduction of Juvenile Justice

Back in 1991, ratifying the UN Convention on the Rights of the Child, Ukraine has assumed an obligation to establish juvenile justice at the national level. However, until now, this issue remains unsolved; moreover, its public aspect has worsened. While drafting reforms, nobody bothered to carry out explanatory work for population, which led to public opposition. Even the draft Concept of development of juvenile criminal justice in Ukraine, which was prepared by the Ministry of Justice of Ukraine, is not optimal, since it takes into account only the rights of those children, who are in conflict with the law, paying no attention to the interests of children, who are in contact with the law, i.e. those children, who suffer from law infringement.

Once and again the UN Committee on the Rights of the Child and the Committee of Ministers of the Council of Europe drew attention of Ukraine to the absence of national procedures friendly to children. It is necessary to conclude that current criminal procedure legislation does not take into account the interests of children, who have suffered from or witnessed crimes. The analysis of the current criminal procedure legislation of Ukraine indicates that legislators, using international legislative standards, often provide unprecedented protection and empowerment of perpetrators, while the victims of crimes, including children, are left without proper state aid and attention. The current Ukrainian legislation does not take into account the vulnerability of wronged children and has no procedures adapted to recognize their special needs. Based on the analysis of art. 171 CPC of Ukraine, even the most widespread pretrial investigatory procedure––interrogation of a minor victim––may be carried out like the interrogation of an adult.

In October and November, in the Verkhovna Rada of Ukraine, two bills were registered intended to improve current criminal procedure legislation in terms of the rights of children who had suffered from or witnessed crimes during the pretrial investigation and judicial scrutiny: No 7340 "On Amendments to the Criminal and Criminal Procedure Codes of Ukraine (concerning the interrogation of minor victims and witnesses)" and No. 7391 "On Amendments to the Criminal and Criminal Procedure Codes of Ukraine (on protection of children from trafficking and exploitation). It is very important that the Verkhovna Rada accelerates consideration of these bills.

However, certain political entities supported by the Russian Orthodox Church initiated the movement against the implementation of juvenile justice. They create special websites, provoke and hold street protests; they actively participate in various online forums and social networks.

 

State policy in the adoption and development of family-based care for orphans and children deprived of parental care5

The child’s right to a family has been written down in legislation and, above all, in the UN Convention on the Rights of the Child, Constitution of Ukraine, and Family Code of Ukraine etc. Only family education is in the best interests of the child. Despite the fact that over the past five years the number of orphans and children deprived of parental care remains significant, there is a considerable increase of the number of children adopted by Ukrainian citizens, taken to foster homes and family-type children’s homes.

The shift became possible due to changes in the government policy regarding upbringing of orphans and children deprived of parental care. In 2005, the President of Ukraine initiated several measures related to reform of custody and guardianship of children and intended to protect the rights of orphans and children deprived of parental care. The chain of executive command was created: regional, urban and oblast services for children. Their staff tripled. Major progress was achieved in the adoption of orphans and children deprived of parental care. Over past four years the annual number of adopted children has increased by almost 70%.

The one-time adoption relief at the rate of aid extended at first child birth was introduced on January 1, 2009. Also, one parent gets two-month paid leave. The family upbringing is becoming ever more popular. The new social institution took five years to appear in Ukraine: foster families and family-type children’s homes. In comparison with 2005, the total number of children covered by such care has increased 8 times, the annual number of children covered by family care increased 15 times. As of 01.01.2010, the foster families and family-type children’s homes provided for upbringing of 8119 children, 86% of them aged over 10 years.

The number of children fostered in foster families and family-type orphanages (at the end of the period)

The need for ratification of the Hague Convention on Protection of Children and Interstate Adoption6

Because of the rising adoption of children by the citizens of Ukraine, the annual interstate adoption of children is slipping down, as there remain no little (under 7 years) and healthy children, which are in greatest demand for adoption by foreigners. Concerning the interstate adoption in Ukraine the society is polarized: from categorical "yes" to categorical “no”. The same about politicians. The international community criticizes the organization of this process in Ukraine, because it failed to ratify the Hague Convention on these issues. Ukraine, annually providing about 2m children for foreign adoption, failed to accede to this Convention. Today in Ukraine foreign nonprofit organizations control adoption.

Meanwhile the Ukrainian legislation makes no provision of foreign adoption organizations at home and prohibits mediation at adoption (Family Code of Ukraine: art. 216, “Prohibition of mediation, business activity during adoption of children”, the Criminal Code of Ukraine: art. 169 “Illegal activities relating to the adoption (adoption)”. And Article 32 of Hague Convention provides that in case of adoption the intermediaries––lawyers, interpreters and other consulting services––may not receive unjustified award. So, the intermediary adoption service, settled in a special way in Ukraine, is prohibited. At the same time, art. 244 of the Civil Code of Ukraine "Proxying" entitles one party to represent the interests of another before third parties without limitations of activity. As there is no definition of the term "mediation" in legislation, it is impossible to classify the actions of certain entities as intermediary.

Although it is not regulated by the state, adoption mediation takes place in Ukraine. De facto, such services are provided, and ultimately could not be withheld, as all foreigners adopting children from Ukraine are citizens of the country-member of Hague Convention (except for Greece and the U.S., which signed the Convention but not yet ratified it) and are bound to adhere to its provisions. But Ukraine, allowing adoption of children to the country-member of Hague Convention, on the one hand, recognizes that the adoption by Hague "principle is in the interest of the child and ensures its rights and interests, and, on the other, refuses to unify adoption procedure in Ukraine with the procedure in countries whereto the children go from Ukraine.

To ensure that the interstate adoptions are taken away from the shadow structures, it is necessary, taking into account international experience, to introduce registration and authorization of organizations that are properly accredited in the host countries and government agencies of Ukraine, and bring their activities in Ukraine under state control.

One of the fundamental principles of the Hague Convention is that adoption is not a personal matter that can be left in the competence of the child’s relatives, his/her legal representatives or prospective adopters. This is a social and legal way to protect the child. Therefore, the responsibility for the international adoption must rest with the States involved who must ensure that adoption is equitable to the interest of the child and his/her basic rights. The paradox of Ukraine consists in the fact that in 1996 the legislative branch of government empowered the executive branch to carry out interstate adoption in Ukraine. For 14 years, the Cabinet of Ministers of Ukraine kept suggesting to improve these practices, implement new procedures meeting the child’s best interests and international standards. But four times the Verkhovna Rada of Ukraine voted against the ratification of the Hague Convention on Protection of Children and Cooperation in Interstate Adoption.

To ensure that interstate adoptions are taken away from shadow structures, it is necessary, taking into account international experience, to introduce a system of registration and licensing of organizations properly accredited in recipient countries and government agencies of Ukraine, and put their activities at home under control of the state.

Now Ukraine can reject interstate adoption (and put an end to ungrounded allegations about trafficking in children) by the way of working to develop national adoption; bringing up the number of children in foster families, family-type orphanages, guardianship; introducing the new financing mechanism of the needs of orphans on the principle "money follows the child" (the Bill is ready), which will stop "enslaving" of children by children’s residential institutions. The fewer orphans and children deprived of parental care (specifically those who may be adopted) stay at boarding schools, the more convincing will be the stand of Ukraine on the closure of interstate adoption for international community.

 

Orphans in Ukraine7

The legislation of Ukraine guarantees a range of benefits and aid to orphans and children deprived of parental care. Any state should strive to ensure decent conditions of their life. But despite the increase in the number of such children, many orphanages and boarding schools have poor material and technical resources, both living and working premises need repairing. The provision of the house clothing and footwear makes 60-70%. The administration has to satisfy material needs of children at the expense of sponsorship, which is very difficult to obtain.

There are also problems with job placement of graduating seniors. The issue of housing is a priority: they are put on the waiting list, but nobody knows, when a social dwelling will be available. There is a partial solution for the period of vocational and higher education training, which means a possibility to get a place in the dormitory, financial support in the form of grants and other benefits. The situation is more difficult for children going to work upon graduation. Both housing and job placement issues are legally defined, but in practice these guarantees remain on paper. In case of refusal of employment of young people within the established quota, the public employment service, in accordance with Article 5 of the Law of Ukraine "On Employment", may apply penalties for each such refusal to the tune of 50 times non-taxable minimum income.

The school, at its own expense, provides graduating orphans and children deprived of parental care with clothing and footwear, as well as one-time cash assistance amounting to twice the cost of living. The standards of clothing and footwear are approved by the Cabinet of Ministers of Ukraine. At the request of the graduates they can receive monetary compensation in the amount required to purchase clothing and footwear. The cash equivalent of the payment is determined in accordance with the Law of Ukraine "On minimum of subsistence." It is not enough.

 

Violation of the rights of children raised in large families8

So, early past fall the families formed by remarriage of a parent and joint upbringing of three or more children from previous marriages without their adoption started meeting with refusals to be registered as large families and to get appropriate certificate, under which benefits are provided to such families. The families that had already received this certificate had to return the documents. The agencies of the Ministry for Family, Youth and Sports found grounds for these actions in the letter of the Ministry of Justice of Ukraine No. 4254-0-26-10-21 from 25.05.2010. According to the above letter, the large family is considered as such, when it goes about three or more children (own and adopted children, children under tutelage or guardianship). Hence it follows that the families formed by remarriage of one parent and together bringing up three or more children from previous marriages without their adoption are no longer considered large families. However, the reference to the provisions of law mentioned in the letter does not lead to such conclusion. The Article 1 of the Law of Ukraine "On Protection of Childhood” maintains that the large families consist of parents (or parent) and three or more children. According to Article 3 of the Family Code of Ukraine the family consists of seven persons living together, run a household together, and have mutual rights and obligations. Family is founded on marriage, adoption, or on other grounds not prohibited by law and those that are not against public morality. Therefore, there is no reason to exclude from the category of large families those formed by remarriage of a parent and common upbringing of three or more children from previous marriages without their adoption.

In this regard, the Ukrainian Helsinki Human Rights Union issued an appeal to the Ministry of Justice of Ukraine in order to obtain clarification of legal position of this public authority. And the response read that the Ministry of Justice made no conclusions on the categories of families that do not belong to large families. And the Ministry for Family, Youth and Sports is to blame. It was also noted that the letters of the ministry were not normative legal instruments and were explanations only. So, in fact, the Ministry of Justice transferred the responsibility to another ministry, which had used its document as direct instruction and acted unlawfully depriving large families of benefits. It is noteworthy that some families deprived of benefits appealed to the court to protect their rights.

 

Statements on violations of the rights of the child

On March 11, 2009, in protest against violation of the rights of the child in the show of singer Alina Grosu, the letters were sent to the Minister of Ukraine for Family, Youth and Sports Yu. Pavlenko, Commissioner of the Verkhovna Rada of Ukraine on Human Rights N. Karpachova and Head of UNICEF Office in Ukraine Jeremy Hartley. The texts and answers were posted on the website of the Commissioner of La Strada - Ukraine: www.lastrada.org.ua/content/doc/letter to Karpachova.doc and www.lastrada.org.ua/content/doc/VR.doc.

On April 6, 2009, in protest against violation of the rights of the child in the advertising of VIANOR Co the letters were sent to the Ministry for Ukraine for Family, Youth and Sports, State Committee for television and radio broadcasting of Ukraine (www.lastrada.org.ua/read.cgi?lng=ua&Id=223). The reason for such complaints was the VIANOR tires advertised on Ukrainian TV. More than half of verbal and visual message of the TV advertising puts together kids’ imagery and adult wording, introduces children as manipulated artificial objects. The letter requested to stop broadcasting the ads and advise the chief executives of information and advertising agencies and media against such information and advertising products.

On May 15, 2009 the open letter supporting the closure of gambling biz in Ukraine and initiatives for placing such institutions outside the cities was published. The letter recommends the VRU to pass a law limiting gaming in Ukraine (www.lastrada.org.ua/readnews.cgi?lng=ua&Id=1649).

On October 10, 2009, in the wake of children rape scandal in the International Children Center Artek, the La Strada - Ukraine Center came out in opposition to disclosure of confidential information about abused children (www.lastrada.org.ua/readnews.cgi?lng=ua&Id=1743).

On May 18, 2009 the public organizations of Ukraine joined the annual World Day for the Prevention of Child Abuse initiated by the international Women’s World Summit Foundation (WWSF) (www.lastrada.org.ua/readnews.cgi?lng=ua&Id=1654).

 

Legislative initiatives in the field of child rights protection

In 2009, they went on working on previous projects intended to improve legislation on combating trafficking in persons, especially children, and propagation of child pornography on the Internet. The Verkhovna Rada of Ukraine prepared two bills to combat child pornography. On June 11, 2009 they adopted the Law of Ukraine No 1520-17 «On amendments to article 301 of the Criminal Code of Ukraine" (bill no. 3221) intended to amend the Criminal Code of Ukraine, which provide for making criminally liable for possession of works, images or other pornographic items meaning to sell them or distribute, that is one of the international legal obligations undertaken by Ukraine at ratification of the Optional Protocol to the Convention on the Rights of the Child Concerning Trafficking in Children, Child Prostitution and Child Pornography. Its pros and cons were carefully analyzed by experts.

The Bill no. 3271 was adopted in 2010. The main amendments include the introduction of the concept of "child pornography" to the Law of Ukraine "On protection of public morality"; amendments to Article 301 of the Criminal Code of Ukraine concerning fixation of responsibility for distribution of pornographic products made with participation of a child or using his/her image, providing access to such products with the help of telecoms as well as purchase, exchange and storage of such products in any form or in any way, etc.; making it incumbent upon telecom operators and providers, on the ground of court decision, to limit access of its subscribers to the resources carrying out distribution of child pornography.

In 2010, experts and working groups prepared and submitted to deputies of Verkhovna Rada of Ukraine a number of bills that directly or indirectly relate to protection of children from trafficking in children and human trafficking in general.

Bill 71329 “On amendments to the Law of Ukraine "On protection of public morality." The purpose and objectives of the Law are to define the legal framework of protection of public morality, creation of appropriate legal, economic and organizational conditions promoting rights to cyberspace free of materials that threaten physical, intellectual, moral and psychological state of population, transparent conditions for business entities dealing in sexual or erotic products, erotic show biz, separation of responsibility for the protection of public morality and improvement of state regulation, supervision and control in the area of public morality. The bill suggests to draw a new version of the Law of Ukraine "On protection of public morality” allowing for clarification of definitions and adding new definitions, stating principles for protection of public morality and public policy in the area of public morality, bringing the Law into compliance with international law, including the Convention on Human Rights and Fundamental Freedoms to ensure the right of everyone to freedom of expression, the Convention on Cybercrime; ensure the right to cyberspace free from materials threatening physical, intellectual, moral and psychological condition of humans; ban upload and distribution telecom networks of products which harm public morality; improving mechanisms to protect children from negative impact of products banned or restricted for circulation in Ukraine, and preventive and educational measures intended to protect public morality, introduce monitoring of protection of public morality; and get public involved in protection of public morality.

Bill 734010 "On Amendments to the Criminal and Criminal Procedure Codes of Ukraine (concerning the interrogation of minor victims and witnesses)." The Bill was drafted to improve current criminal procedure legislation of Ukraine regulating procedures of investigation of cases involving children, who are either victims or witnesses of crimes. The main objective is to improve legislation, which should be beneficial to the child and provide the least psychological injury to a child during the preliminary investigation and inquiry, and also at the trial. The bill also introduces into national legislation generally recognized standards set by international instruments for protection of children from any acts of violence.

The draft proposes changes to Article 49 of the Criminal Code of Ukraine, Articles 85-1, 85-2, 167, 171, 172, 206, 308, new versions of articles 168 and 307 of the Criminal Procedure Code of Ukraine, and proposes to amend this code with a new art. 167 - 1 concerning alleviation of procedures of juvenile interrogations and interviews with victims and witnesses of crimes during pretrial and trial in order to align it with European standards in protecting children’s rights. These changes include special procedure for criminal proceedings against juvenile witnesses and victims until they are 18, setting standards for the use of videotaped initial questioning of a juvenile victim and a witness rather than questioning him/her in future and the ability to attach to the proceedings of criminal case materials without direct participation of minors in trial; questioning of the child, if necessary, especially in child abuse cases, in the specially equipped room; presence of child’s attendant as his/her legal representative or, where appropriate, adult chosen by a child, if there is no motivated objection; compulsory participation in the interrogation of minors of a psychologist, not a pedagogue; carry out interrogation by the same persons; interrogate the child by a specially trained person; the determination of the number and length of interrogation of minors victims and witnesses; establish rules, according to which, in the case of nonage mental retardation, the victims of juvenile crime can not testify, stop pre-trial investigation in criminal cases and establish statute of limitation for perpetration etc.

Bill 739011 “On amendments to the Code of Ukraine on Administrative Infraction (about protection of children)" registered on November 19, 2010. The Bill has been drafted by the working group under the La Strada Ukraine Center. The Law is intended to improve the administrative legislation of Ukraine and bring it in line with international standards in combating child trafficking, child prostitution and child-pornography and ensure the best interests of child victims and witnesses of crimes. The Bill proposes the following changes to the Code of Ukraine on Administrative Offences: to cancel administrative responsibility of persons under 18 for prostitution amending art. 13 of CUAO.

To define the responsibility of parents or their alternates persons substituting them for evasion of their legal duty to ensure the safety of the child to prevent his/her involvement in prostitution, porno production and distribution, involvement in human trafficking by amending art. 184 of the CUAO. Public works should be made a significant punishment. The responsibility should be envisaged for disclosure of information about persons affected by trafficking, child porno, involvement in prostitution and other crimes against sexual freedom and sexual inviolability of the person through the introduction of the new art. 183-15 in CUAO.

Bill 7391 "On Amendments to the Criminal and Criminal Procedure Codes of Ukraine (concerning protection of child trafficking and exploitation)"12 registered on November 19, 2010. The Bill was drafted by the working group under La Strada Ukraine Center. The purpose of the Bill is to improve the criminal and criminal procedure legislation of Ukraine and bring it in line with international standards in combating child trafficking, sexual or labor exploitation, and ensure the best interests of minor victims of these crimes. The draft proposes the following amendments to the Criminal Code of Ukraine on the protection of children from trafficking and exploitation. Criminal legal prohibition of child labor exploitation is transferred to Article 172-1, which according to its content is named "child labor exploitation". So, the Article 150 of the Criminal Code of Ukraine "Exploitation of children" is stricken out. In addition to actions that were criminalized under Article 150 of the Criminal Code of Ukraine the new criminal law regulations stipulates the responsibility for employment of a child who has not attained the age at which employment is permitted by law, intended for profit or use of forced labor of a child of any age . The crime qualifications include the use of child labor at hard work and in jobs with hazardous environment. The amended Article 156 of the Criminal Code of Ukraine will permit to hold criminally liable not only for direct lewdness toward a person under the age of sixteen, but also the same committed with the help of telecom or other means of communication. Improvement of this rule is especially important in terms of punishment of adults who corrupt children and prepare them for cybersex.

The Article 301 has been brought into compliance with the Law of Ukraine "On protection of public morality" in terms of terminology agreement, particularly the art. 301 will now contain the concept of "pornographic products" as defined by the Law of Ukraine "On protection of public morality" replacing the concept "pornographic articles" which is not defined by Ukrainian legislation. The added aggravating circumstances include responsibility not only for forcing minors to participate in making of pornographic products, but also involving in it without use of force or coercion; getting minors involved or forced into making porno products. The separate article of the Criminal Code of Ukraine provides responsibility for the use of child prostitution. Articles 168 and 304 of the Criminal Procedure Code of Ukraine are being improved in accordance with the principle of development of child-friendly procedures. In particular, it is suggested to regulate the procedure of questioning a child witness to a crime, and child-victim of crime in Art. 168. This article introduces provisions on mandatory participation of a specialist in general and child psychology or pedagogue, parents or other legal representatives of a minor and, if necessary, a doctor. This should apply to all persons under 18 years of age. The time of interrogation will be limited now. Thus, the total duration of interrogation of a nonage witness or victim during the day should not exceed six hours. It is proposed that the re-examination of the child may occur in exceptional cases only.

 

Preparation for ratification of the Convention of the Council of Europe on Protection of Children from Sexual Exploitation and Sexual Abuse

In 2009, they appointed the working group to prepare ratification of the Convention of the Council of Europe on Protection of Children from Sexual Exploitation and Sexual Abuse. The working group included the representatives of the Ministry of Internal Affairs, Ministry of Foreign Affairs and the Ministry of Education and Science, Ministry of Family, Youth and Sports, Ministry of Public Health and the General Prosecutor’s Office (the order of the Ministry of Justice of Ukraine, September 8, 2009, #764 /7). However, the representatives of NGOs and independent experts were left out despite requests at various meetings, including the TRES Project "Protection of Women and Children in Ukraine" which was commissioned by the Council of Europe and supported by the European Commission during 2008 - 2010 and one of the tasks of which was preparation of ratification documents and legal expertise for ratification of the Convention #201 of the Council of Europe.

The Ministry of Justice of Ukraine has drafted the Bill "On amendments to some legislative acts of Ukraine in connection with the ratification of the CE Convention on Protection of Children from Sexual Exploitation and Sexual Abuse." Since the ratification of this Convention is topical for effective system of child protection against sexual exploitation and abuse, it is worthwhile to recommend to the Cabinet of Ministers to expedite consideration of the Bill by Verkhovna Rada of Ukraine together with correct translation of the said Convention, since at present the translation of the Convention does not meet the source.

On the basis of proposals of the working group the Ministry of Justice developed a draft Bill of Ukraine "On amendments to some legislative acts of Ukraine in connection with the ratification of the CE Convention on Protection of Children against sexual exploitation and sexual abuse." The objective of this project is to include into the legislation of Ukraine the provisions of this Convention. The project is intended to create legislative conditions for implementation of the Convention in Ukraine, including liability for crimes related to sexual exploitation of children, to resolve procedural peculiarities of the investigation of cases involving children––witnesses and victims of this dangerous phenomenon––and prevention of perpetration against children by those working in regular contact with them.

Since the ratification of the Convention #201 demands amending current legislation of Ukraine, the ratification bill provides for amendments concerning responsibility for crimes related to sexual exploitation of children, resolution of procedural peculiarities of the investigation of cases involving children––victims and witnesses this dangerous phenomenon––and prevention of illegal activities related to children by persons who are in constant contact with them to the Code of Criminal Procedure of Ukraine, Criminal Code of Ukraine, Law of Ukraine "On Protection of Childhood", Law of Ukraine "On protection of public morality”. By tradition the draft instrument reads that the implementation of the draft Act does not require additional budget spending, as will be financed at the expense of budget item for upkeep of government agencies in charge of implementation of proposed measures. In fact, funds are needed for creation of an aid system for children-victims of sexual exploitation, their rehabilitation and reintegration into society, creation and support of respective centers for social assistance and social rehabilitation of such children.

Besides, there sounded a repeated demand to change the name of the Convention, as its Ukrainian translation does not match the original. For example, the appropriate letter was sent to the MFA Contract Law Department. It read: "The members of the expert group consider the official translation by the Ministry of Foreign Affairs of Ukraine of the CE Convention (CED #201) titled "Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse", which is not accurate, because the title of the Convention in English includes the term «sexual abuse», which means that a child is pressurized, forced or tricked into (Russian: совращение) taking part in any kind of sexual activity. Meanwhile the official Ukrainian translation uses the term the etymology and strict legal meaning differs from the above, namely––"розбещення". The "розбещення" is rendered into English as «debauched actions», «corruption». We call your attention to the fact that the Convention contains a separate Article 22 «Розбещення дітей» (Corruption of children)13. The contents of this article reflects the corpus delicti, which in Ukrainian criminal legislation fully corresponds with corruption. Therefore the expert group insists on another version of Ukrainian translation of the title of the Convention, which corresponds to its spirit and essence, i.e. “Конвенція Ради Європи про захист дітей від сексуальної експлуатації та знущань сексуального характеру”. Clearly, the timely editing of the translation of the title of Convention will protect against eventual further errors and distortions in the process of improvement and application of relevant legislation of Ukraine on protection of children, who are the most vulnerable segment of population of our country."

 

Problems of prevention of trafficking in children and assistance to affected children

The issue of protection of children from trafficking, child prostitution, child porno and sexual violence is topical for Ukraine. According to the Ministry of Internal Affairs of Ukraine, only for 9 months of 2010 250 criminal cases were entered against human trafficking. 268 trafficking victims were brought home, including 31 nonage and 5 minor children. 356 crimes against sexual inviolability and freedom of children were detected. However, these figures do not reflect the real picture, as sexual exploitation and sexual abuse of children are latent phenomena. It may be also supported with information in the media.

Today Ukraine cannot efficiently respond to this flagrant violation of children’s rights, both at the legislative and practical level. The examination of the regulatory framework to determine the compatibility of Ukrainian legislation with the requirements of the Optional protocol on the trafficking in children, child prostitution and child pornography recently conducted by the La Strada Ukraine Centre supported by UNICEF in Ukraine found numerous flaws and omissions in current criminal legislation in this area. However, the problems are still there on practical level. Ukraine has no system of prevention of sexual violence and sexual exploitation of children and support system for the wronged children. Unfortunately, school curricula contain no courses on developing skills of children to counter risks of sexual abuse against them. Today, Odessa hosts the only one Ukrainian center for social and psychological rehabilitation of girls affected by sexual violence and exploitation. However, it is not backed the state; it is sponsored by NGOs and donors. And as it became known in November, in 2011 this center may cease functioning, as there will be no funding. The problem combines absence of centers and skilled personnel to provide professional assistance to the affected children.

While amending laws and improving protection of the rights of the child, it might be worthwhile not to forget about working with people. Today, Ukrainian society is too tolerant about the violation of the rights of the child. You must teach people to show zero tolerance to minimal violations of the rights of the child. Only then we can fulfill children’s rights in Ukraine and prevent violations of these rights.

 

Equipment of green rooms

In 2010, the La Strada-Ukraine together with the Kyiv Department of Ministry of Internal Affairs and criminal militia for children in Kyiv, as well as Kyiv Solomensky criminal police department for children equipped the room for psycho-social work with children affected by sexual exploitation or sexual abuse. Two more rooms, including one in Odesa, are on the waiting list. To make the project more efficient, they are working to develop guidelines for criminal militia pros on querying children affected by sexual exploitation or sexual abuse. The guidelines will be ready for publication in February 2011. The trainings have been started already.

 

E-hotline to control child porn on the Internet

The e-hotline intended to control child porn on the Internet was inaugurated at the La Strada Ukraine Center on November 19, 2009. It is intended to monitor (calls from the public) information about child porn on the Internet, especially on the servers of Ukrainian providers in order to respond in accordance with legislation of Ukraine and improve the system of protection of the rights of the child and combat crimes against children and, if possible, to block such content. The e-mails are directed to the password-protected address: [email protected]

The efficiency of the e-hotline (as of 11/30/2010).

 

 

Messages on child porn (total)

Info for 2010

Messages on adult porn

Other messages

Total messages

Messages on child porn (Ukrainian Internet)

Messages on child porn (Foreign Internet)

147

8

115

75

146

368

By placement of child porn on the Internet (common sites, porno sites, message boards, etc.) the messages can be classified as follows:

During the year the site had 3877 hotline users.

Activating businesses

The businesses and private sector became more active in protection of children, particularly from sexual exploitation in the net. The Coalition on Children’s Internet Safety, initiated by Microsoft in 2008, has increased its membership up to 26.

Code of Conduct

The Code is a social initiative of business and human rights community aimed at detecting and combating child sex tourism. Since 1998, over 900 tour operators, carriers, hotels and other companies have signed the Code and made a commitment to stick to six criteria: establish an ethical policy regarding commercial sexual exploitation of children; to train the personnel in the country of origin and travel destinations; to introduce a clause in contracts with suppliers, stating a common repudiation of commercial sexual exploitation of children; to provide information to travelers by means of catalogues, brochures, in-flight films, ticket-slips, home pages, etc; to provide information to local "key persons" at the destinations; to report annually on their efforts to protect children from sexual exploitation in tourism.

Any travel company––tour operators, hotels, travel agents, airlines, excursion offices, air carriers, sea carriers, etc––may sign the Code. The Code has been signed by 949 companies worldwide; they include hotel networks Accor, Regent, Park Inn, British Airways, Air France, travel agencies Lot Travel, FreeWay Brazil, Apollo (Sweden) and others. These companies are listed as socially responsible. The information about them is placed on the site of the Code of Conduct: www.theCode.org. In 2009, the La Strada Ukraine Center has joined the international campaign for implementation of Code of Conduct in travel and hotel business in order to combat child sex tourism and became a national partner of the international organization TheCode in Ukraine. Today in Ukraine there are no signatories to the Code yet.

 

Issues of assistance to minor victims of trafficking

The International Organization for Migration claims that from April 2009 to September 2010 they identified and registered 117 minor victims of trafficking within the reintegration aid program. The main destination country in the detected cases is the Russian Federation (55), while Ukraine is second on the list by the number of trafficking cases at home and in-coming trafficking (53). Five minor victims of trafficking returned home from Poland and one child from Israel. Three children were residents of Moldova and safely and voluntarily returned to their homeland. Of 117 identified victims 68% are girls and 32% of boys. In 28 cases the trafficking was prevented (26 girls and 2 boys were identified); in 32 cases those were instances of sexual exploitation and pornography; in 18 cases the forced labor was the target, in 33 cases begging, in 5 cases various forms of exploitation––forced labor and begging, and in one case a child was forced into criminal activity. The sources of referral of trafficking victims in this project are given below:

The sources of referral of minor victims of trafficking

Individuals

Social services / Local administration

NGO’s network

Other victims of trafficking

Printed matter

Law enforcement agencies

 

The following table illustrates the types of assistance provided to child victims of trafficking up to certain period14:

Type of assistance

Number of cases

Help for re-employment

22

Family support

79

Psychologist

35

Housing

18

Assistance in employment

23

Medical care

49

Transportation

67

Legal assistance

36

At this stage it is too early to draw any conclusions about the success of reintegration of victims, as they still draw on support. Between April 2009 and June 2010 the monitoring was conducted at homeless placement centers in four pilot oblasts (Zakarpatska, Luhansk, Kharkiv and Mykolayiv), as well as shelters for children in 5 oblasts (Chernivtsi, Zakarpattia, Luhansk, Kharkiv and Mykolayiv). The NGO experts interviewed 262 children, among whom 22 (8%) were identified as victims of trafficking. This information was brought to the Ministry of Internal Affairs to the criminal militia for nonage persons and children were referred for assistance in reintegration. Of 22 identified minor victims ten were involved in criminal activities related to trafficking and became witnesses or victims.

Since September 2010, due to significant changes in legislation regulating the work of criminal militia for nonage cases, the children aged 11 and more can be sent to homeless placement centers on court orders only. As a result, the number of children currently in homeless placement centers is much smaller compared with that a year ago; thence the poorer identification of child victims of trafficking in the homeless placement centers. On the other hand, the local shelters for children report increased number of children; therefore in the next quarter we will monitor not homeless placement centers, but transit shelters. In August 2010, the agreements were signed on inauguration of regional pilot projects on the mechanism of trial for the reintegration of child victims of trafficking.

 

Recommendations

1. To elaborate on inauguration of Child Ombudsman and to draft an appropriate bill.

2. To recommend the Bills of Ukraine, registration nos. 7390 and 7391, 7340.

3. To amend the legislation about education, particularly the laws of Ukraine "On Education" and "On General Secondary Education” with provisions for the mandatory notification about the rights of the child, training in the prevention of perpetrations against the child, their harmful effects, about risks of sexual exploitation and sexual abuse, as well as ways to protect themselves in a form appropriate to their age abilities.

4. To fix the definition of "child trafficking" in the Law of Ukraine "On combating human trafficking”.

5. To fix the definition of "child prostitution" in the Law of Ukraine "On protection of the childhood”.

6. To develop amendments to the Criminal Procedure Code of Ukraine: provisions for compulsory participation of a psychologist at all stages of trial involving a child; provisions for free legal assistance to children, who are recognized victims and witnesses, which are necessary to protect their rights; responsibility of pretrial investigators to reveal information about threats to the child, for which there is information that s/he became a crime victim, and ensure her/his protection, prior to recognition of the child a victim despite the availability or absence of statement or report informing about the threat of her/his safety from her/himself or from another person; immediate referral of materials containing information about a crime against a child to the investigator to decide upon institution of legal proceedings and for the period of examination to go about child’s security before trial; special section in the criminal procedure legislation of Ukraine, which will regulate procedural matters securing the best interest of the wronged child.

7. To draft a new Supreme Court ruling on application of legislation by courts about the responsibility for sexual crimes against children.

8. To ratify the Hague Convention on Protection of Children and Cooperation in Interstate Adoption.

9. To approve the concept of introduction of juvenile justice in Ukraine, paying considerable attention to the rights of the children, who became victims and witnesses of crimes.

10. To ratify the Convention on Protection of children against sexual exploitation and sexual abuse.

11. To rally nationwide awareness for Ukraine’s juvenile justice.

12. To develop a system of provisions and protection of the rights of the child; to develop a mechanism of interaction of different bodies and institutions to protect the child.

13. To set up specialized centers of social and psychological rehabilitation of child victims of sexual violence and sexual exploitation.

14. To charge the Ministry of Justice of Ukraine and the Ministry of Foreign Affairs of Ukraine with making correct translation of the European Convention no. 201 into Ukrainian.

15. To take into account all recommendations contained in the alternative report on implementation by Ukraine of the UN Convention on the Rights of the Child (pp. 69-78).

==========

1 Prepared by experts of the International Women’s Rights Center La Strada - Ukraine: Bochkor N., Yevsiukova M., Levchenko K. The authors used the materials of the Alternative report on implementation by Ukraine of the Convention on the Rights of the Child (2002-2008) prepared by Ukrainian NGOs; the report "Human Rights in the work of Ukrainian militia - 2010" prepared by the Association of Ukrainian monitors of human rights in law enforcement agencies; documents of All-Ukrainian NGO "Child Protection Service” and other.

2 Альтернативний звіт про реалізацію Україною положень Конвенції ООН про права дитини (2002-2008). – с. 6-11.

3 http://postup.lg.ua/news/za-zhorstoke-povodzhennya-z-ditmi-ukrayini-nalezhit-vidpovisti-pered-oon

4 Prepared on the basis of case studies by All-Ukrainian Public Organization “Child’s Protection Service”.

5 This section has been prepared by I. Savchuk, All-Ukrainian Public Organization “Child’s Protection Service”.

6 Prepared together with I. V. Savchuk, All-Ukrainian Public Organization “Child’s Protection Service”.

7 http://postup.lg.ua/news/problemi-prav-ditey-v-ukrayini

8 Maxym Shcherbatiuk, www.helsinki.org.ua

9 http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=38551

10 http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=38959

11 http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=39070

12 http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=39071

13 Here the authors agree with the translation.

14 Without regard for the victims of trafficking identified in June, as at the time they had not received any assistance. 

 

 

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