Human rights in Ukraine – 2006. XIX. The Rights of the Child: Some Issues
The rights of the child are a category of human rights however children also need particular protection from the State as foreseen in both international documents and Ukraines legislation.
In briefly outlining the problem areas pertaining to observance of childrens rights in Ukraine where changes and solutions are needed, we would first of all note the declarative nature of Ukrainian legislation and the lack of a systematic approach to creating effective procedures for protecting the rights of the child.
Reports prepared by government officials supposedly on the rights of the child usually in fact present qualitative or quantitative indicators regarding charitable actions and the amount of social assistance. This problem was noted by the UN Committee on the Rights of the Child in its recommendations on Ukraines Second Periodic Report: “The Committee remains concerned, however, that the State youth policy covers social assistance, health care, education, alternative care and child protection and that it lacks a rights‑based approach and does not encompass all rights enshrined in the Convention”. Nor is the Presidents Decree “On priority measures for the protection of the rights of the child”. any exception to this. There were no significant moves with respect to protecting childrens rights in 2006 which the President had declared the Year of the Rights of the Child. We would simply note the ratification in 2006 of a number of international agreements relating to the rights of the child.. Some of these had been signed back in 2002-2003 and had long awaited ratification.
While proclaiming social guarantees for children, the government by no means always carries out basic tasks on ensuring minimum standards regarding childrens rights. For example, there are well-documented cases of infringements of procedural norms (mainly due to their shortcomings) on the questioning of minors by law enforcement officers, incidents involving violence or ill-treatment of children in educational institutions, children being illegally drawn into participating in political rallies and demonstrations and so forth.
The section on the rights of the child in Human Rights in Ukraine - 2005 concentrated on compliance of domestic legislation and practical implementation of this with general international standards. Attention was paid to only some of the problem areas linked with observance of childrens rights in 2005.
This focus was not by chance since at the time the report was being written there was no even remotely serious government report or other document regarding observance of childrens rights on which to base a civic assessment, and to agree or disagree, using information available to human rights organizations.
Unfortunately the situation remains the same now. Despite having declared this the year of the protection of childrens rights, 2006 brought no particularly positive moves on this front. Nor did the relevant authorities carry out monitoring and assessment at government level of the situation with childrens right and of progress as far as developing government strategy for ensuring observance of childrens rights in Ukraine.
We are therefore forced to again focus on certain most urgent issues and are unable to provide an assessment of positive actions taken by the government given the lack of a developed government strategy on safeguarding the rights of the child.
The right to life
Official figures from government bodies indicate a high level of child mortality. According to the President, “Ukraine continues to have a relatively high level of child mortality (11.5% of the overall number of deaths)”. The President was speaking at a meeting on protection of the rights of the child, on 13 March 2007. He believes that the solution to this problem lies first of all in health care. The Ministry for the Family, Youth and Sport also acknowledges “.a high level of infant and child mortality up to the age of 5 as compared with developed countries”.
Problems in the area of health care remain as acute as ever, and are not confined to certain areas or groups in society. These are problems at government level, linked with the failure to provide for the normal functioning of medical institutions, with the low level of accessible domestic medical supplies, in the lack of awareness among medical staff about human rights standards at least as regards fulfilling their own professional duties, etc. In 2004 MART [“Youth Alternative”] carried out monitoring in childrens medical establishments and childrens psychiatric hospitals. The main findings and recommendations from that study remain relevant today.
A childs right to preserve his or her identity
Present norms in legislation ensure that a child is registered at birth. Article 144 of the Family Code stipulates that it is the duty of parents to register the child at a State register office within one month of birth.
A child receives citizenship at birth. There is no problem with an adopted childs citizenship since the Law “On Ukrainian citizenship” names adoption as one of the grounds for being granted citizenship.
There is a problem in Ukraine with safeguarding the right to preserve ones identity in the case of adoption.
The norms of the Family Code on confidentiality of adoption run counter to Articles 7 and 8 of the UN Convention on the Rights of the Child. For example, Article 7 guarantees the child “as far as possible, the right to know and be cared for by his or her parents” and Article 8 envisages that “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference”.
In cases of adoption, the first and last names of a child may be changed even if the child already knows his or her name, as can records about place and date of birth. This not only restricts a childs right to preserve his or her identity, but also limits his or her right to contact with both parents and blood relatives (brothers, sisters, or grandparents).
There are no legal provisions in Ukrainian legislation guaranteeing adopted children the retention and later provision of information about their biological family; their real date and place of birth. In fact, disclosure of the fact of adoption is a criminal offence..
Freedom from humiliating treatment and punishment
In the section on childrens rights in Human Rights in Ukraine – 2005, we devoted considerable attention to the question of freedom from humiliating behaviour and punishment.. We pointed to the fact that normative acts existed but that their enforcement left a lot to be desired.
According to official figures from the Prosecutor General,: “.During 2005-2006 the courts recognized 9 thousand children (under 18) to be victims of crime. Services dealing with minors had almost 45 thousand unfavourable families with 94 thousand children on their precautionary register. However the register in police departments only had 2.5 thousand names of domestic violence offenders. As a result of brutal treatment from their parents, children have been forced to leave home, roam, beg and commit offences. In 2006 alone juveniles committed 10.5 thousand offences. 12 thousand children who had been on the street and begging were brought to juvenile shelters».
Prosecutors checks have established infringements of the Law “On prevention of violence in the family” by Internal Affairs agencies, offices for care and supervision, education and services dealing with minors. According to information from the Prosecutor General, the responsible government bodies are breaking the Laws “On social work with children and young people”, “On education”!, “On general secondary education”, “On the police”, and “On agencies and services dealing with minors and special institutions for minors”. Attention is drawn to the fact that in the vast majority of regions the bodies responsible “have not drawn up programmes of prevention of violence in the family; have not established their regions requirements with regard to specialized institutions for victims of violence; do not look into the reasons and conditions contributing to such negative forms of behaviour. Cooperation between these bodies is confined to sharing statistical information”. The Prosecutor General states that: “Police departments sometimes refuse to register appeals regarding violence in the family or institute criminal proceedings over cases where crimes have been committed against the life and health of minors. For example, the district inspector of the Oleksandriysky Police Station in the Kirovohrad region refused to launch criminal proceedings over a statement regarding torment and beating of underage S. Stryzhak by his father and cohabitant..
The same information confirms that over recent times there has been an increase in cases of ill-treatment and sexual abuse of children by some officers of the criminal police on juvenile affairs. “The Zaporizhya Regional Prosecutor launched criminal proceedings in April this year over the unlawful detention and rape by personnel of the criminal police on juvenile affairs of the Orikhivsky District Police Station of minor D. Zatsarny. The investigation is continuing. Staff of the Zavodsky District Police Station in the Dnipropetrovsk region used beatings and torture during the night to minor V. Halko detained on suspicion of theft. The teenager was hung up to the wall and they beat his head with a bottle inflicting physical pain and bodily injuries. The Prosecutor of the Dnipropetrovsk region on 19.06.2006 launched criminal proceedings over this under Article 365 § 2 of the Criminal Code”.
Analyzing the information provided by the Prosecutor General, including the excerpts given above, one should note that regrettably there is no analysis of the legislation itself and indication of its shortcomings. A deeper analysis of the situation which is partially presented in the information from the Prosecutor General indicates the inadequacies, and sometimes also the absurdity of the government system aimed at ensuring and protecting the rights of the child. The Prosecutor General records his work with the following figures: “prosecutors offices instituted over 1 thousand criminal proceedings; 2.5 thousand documents of prosecutors response were registered, with the results of their examination being administrative proceedings instituted against nearly 2 thousand officials to protect the rights of minors as well as over 2 thousand civil suits”. However these figures do not provide grounds for a qualitative assessment of the work of government bodies aimed at safeguarding the rights of the child. The judicial system needs an appropriate specialization. The office of the Human Rights Ombudsperson is virtually not involved in the system of childrens rights protection.
It should be mentioned that in combating the problem of violence against children, the Ministry for the Family, Children and Youth has proved quite open to cooperating with civic organizations. It works both with civic organizations and international agencies active in protecting the rights of the child. However awareness-raising or information measures remain isolated events and these are usually initiated by civic organizations. A proper system is lacking for carrying out regular educational and training work among professional groups working with children or in their interest, parents or those replacing them.
According to figures from the Prosecutor General, during 2005-2006 courts declared over 8 thousand minors victims of crimes. Yet amendments have still not been introduced to the Criminal Procedure Code [CPC] to ensure that a child witness speaks with those carrying out the investigation only in a safe environment and with a psychologist present. The present version of Article 168 of the CPC only sets out the compulsory presence of an educational worker, and then only for children under 14. Young people from 14 – 16 receive such assistance at the discretion of the investigator, while for those between 16 and 18 nothing is allowed for at all. According to the legislators, the presence of a doctor, parents or other legal representatives is to be provided only where needed, yet no even approximate criteria are provided for how this need is to be determined.
With regard to procedure for bringing charges and questioning a juvenile accused of a crime, this only stipulates the mandatory presence of a lawyer, while the involvement of others such as, for example, a psychologist, educational worker or the parents is possible only for those under the age of 16 or those officially recognized as mentally retarded, at the application of the lawyer. In practice also, where there are problems with providing a lawyer, the accused is questioned as a witness.
Minors direct participation in court hearings remains an issue since the Criminal Procedure Code does not envisage the possibility of their testimony given during the pre-trial investigation being taped and later used in court to avoid children having to appear themselves in court and repeat their evidence in the fraught atmosphere of a court examination, the latter having an adverse effect both on the childs mental state and on the quality of his or her testimony.
With regard to the questioning of an underage victim, Article 171 of the CPC (Summons and questioning of a victim) does not stipulate any particular guarantees at all for minors since it establishes virtually the same procedure as for the questioning of a victim, referring to Articles 166 (Procedure for summoning a witness for questioning) and 167 (Questioning a witness), saying nothing about the need to adhere to even those safeguards for underage persons envisaged by Article 168 (Questioning of an underage victim) of the Criminal Procedure Code.
These conclusions are not only the result of analysis of legislation. There have been cases, identified through monitoring and from peoples approaches, which demonstrate problems not merely in legislation, but in its practical implementation.
As an example we can cite the case of a 13-year-old boy which prompted an appeal to the public reception centre of one of the organizations in the Ukrainian Helsinki Human Rights Union. The young lad was questioned by police officers the day after a shop was broken into in a neighbouring village. The police officers breached the law in beginning to question the lad still in the school courtyard, one to one, effectively holding an interrogation with disregard for legally established procedure. During the questioning later in the presence of a teacher, the lad was informed that he was suspected of having burgled the shop. However the questioning took place as that of a witness, whereas a person accused of a crime must be questioned with a lawyer present. Another breach of the CPC in particular was the fact that no protocol was drawn up as a result of the questioning. It is interesting that the grounds for the questioning were that the law enforcement officers had found the name of the lad in a list of unfavourable families. The list was in the school and the police officers had taken it from the Deputy Head. They also took the boys fingerprints. The 13-year-old was asked to sign the sheet with the fingerprints.
Pursuant to Article 11 § 11 of the Law “On the police”, police officers have the right to take fingerprints, however only in respect of “… persons detained on suspicion of having committed a crime, for vagrancy, remanded in custody, charged with a crime …”. Yet the lad was even questioned according to procedure for questioning a witness.
The lack of special rehabilitation and care programmes for victims of violence, as well as those accused of violent offences, remains a problem.
In 2005 Ukraine signed the European Convention № 116 from 24 November 2003 on the Compensation of Victims of Violent Crimes. A government programme for child victims was created, however the Convention has not yet been ratified and the programme accordingly is not working.
Resolution of conflict and methods of upbringing in educational institutions will begin complying with childrens rights standards only on condition that a system is developed for training educational workers on both human rights in general, and on the rights of the child. There is at present no such system in either training colleges or in professional development institutes for educational workers. We would note that it is specifically a system for training personnel which is needed, this including developing a strategy and first training specialists to run such courses, as well as drawing up methodological material, and so forth.
2006 broke all records in terms of the number of reports in the mass media about cases of ill-treatment in educational institutions. The cases involved both brutal treatment by other school students, and by personnel of the institutions. This reflects the irresponsible attitude to their duties of education system structures in Ukraine. Ad hoc actions which, for example, the Minister of Education and Science spoke about at a press conference in Uzhhorod on 23 November 2006 are not creating a system to ensure the safety of school students while in an educational institution.
The issue of “status” punishments (those where minors can be punished for acts which an adult would not be held legally liable for and would not therefore face punishment for), which were mentioned in the recommendations to our report in 2005, had not previously been addressed in Ukraine and the area requires further study. However there are at least cases testifying to such “status” treatment to those under age in, for example, preventive upbringing and in combating child homelessness. In this context the conclusions drawn by the International Society for Human Rights – Ukrainian Section are of interest.. The Society considers that the procedure for Internal Affairs structures regarding children who have for one reason or another left home needs to be changed. For example, pursuant to Article 5 of the Law “On agencies and services dealing with minors and special institutions for minors” from 24 January 1995, the criminal police on juvenile affairs are obliged to return to their place of permanent residence, studies or send to special institutions for minors within eight days of locating a minor who has been abandoned, or has wandered off or left his or her family or school/childrens home”. The Society believes: “an abandoned infant or small child, who has wandered off must be located by the law enforcement authorities and placed in the appropriate childrens institution. It is another matter when we are dealing with young people between 12 and 16 who have deliberately, and possibly on many occasions left their family or school -institution, or who have been living outside social institutions for a fairly long time. These children need special study and psychological and educational influence”. Each individual cases needs to be studied, with the procedure being specific, based on the physical and psychological make up of the child and the level to which they are able to make their own decisions. However at present this procedure seems more like punishment.
In Human Rights in Ukraine – 2005” (the section on the rights of the child), we spoke of the tendency to send children from school – orphanages to psychiatric hospitals. In 2006 we observed additional cases confirming the existence of the problem, but also certain steps in response by government bodies.
For example, on 8 February 2007 Sevastopols Prosecutor Volodymyr Dereza informed that in 2006 around 60 orphans from childrens homes and school-orphanages had for a month been held illegally in the city psychiatric hospital. The Prosecutor stated that a criminal investigation had been launched into this. He said that it could be supposed that particular children did require such medical care, however expressed surprise that in the psychiatric hospital they had formally treated the young patients and stressed: “The doctors were obliged to immediately return those children who didnt need in-patient care”.
This case is thus yet another confirmation of what we warned of last year. The point here is that in the majority of cases these children need psychological assistance. Most school-orphanages are themselves unable to provide full psychological assistance, and send children for treatment to psychiatric hospitals. However as we stressed earlier, even in the best cases (if the educational staff do not make such actions a form of punishment, the doctors do not make any diagnosis), the child perceives this as punishment and experiences serious psychological trauma.
Another form of ill-treatment is the use of the worst forms of child labour which is prohibited under Article 32 of the UN Convention on the Rights of the Child. Figures on this are provided by the Foundation “Protection of the Rights of the Child” in their report.. This states, for example, that “…the study carried out by the State Committee of Statistics in cooperation with the ILO in 1999 and 2000 found 456 thousand children working. Of these, 87 thousand were children from the most vulnerable group, aged from 7 to 12. However the real figures may be higher than these official statistics since the methodology used involving selective statistic examinations only makes it possible to identify labour activity of those children living in families with parents or guardians. It is highly likely that children living in asocial families, those living by begging, living in school-orphanages, or children of illegal migrants were not included in the study”
Among the worst forms of child labour seen, the Organization names child prostitution, begging, children being drawn into criminal activities (stealing, drug pushing, etc), collecting glass and scrap metal, work at markets, with this normally involving loading work.
With regard to sexual exploitation and the sexual corruption of children, figures from government institutions and nongovernmental organizations are widely divergent. For example, the criminal police on juvenile affairs during the first six months of 2006 documented 8 crimes under Article 155 of the Criminal Code (sexual relations with a person under the age of sexual maturity) and 28 under Article 156 of the Criminal Code (corruption of a minor). The results of studies carried out by nongovernmental organizations suggest a much wider scale of the problem. For example, a 2005 survey undertaken by the Ukrainian Womens Consortium of specialists of school-orphanages showed that 34% of the specialists had come upon at least one cases of sexual coercion involving a child. In fact the problem is not typical only for closed childrens institutions, but also for general education schools. According to figures from the International Womens Human Rights Centre La Strada – Ukraine, every seventh adolescent suffers from sexual abuse by adults.
The right to respect for ones private and personal life
The private life of children in educational, medical or other institutions needs to be protected. The personnel of such institutions should show respect for the personal life of the children, with this being especially important where children are living in dormitory conditions.
This issue has thus far not received any attention from the government. Clearly, as with many other, this is not an issue for Ukraine alone. There is however no government programme which includes efforts to improve the situation as far as this right is concerned.
Ensuring a compulsory level of basis knowledge on the rights of the child for each specialist working with children would already be an important move towards improving the situation. This should be part of the both training programmes and professional development courses for those professional groups working with children and in childrens interest.
It is disturbing that outside individuals are able to receive information of a private nature via school documentation. Usually the school journals which can be read by students, parents and other teachers have a health page which contains medical diagnoses on students.
An individual approach to studies undoubtedly takes into consideration the state of health of each student, however there should be another way of keeping private information in school documents which can be accessed by other people.
The right to information and to know ones rights
The description in Human Right s in Ukraine – 2005 of the situation with access to information in educational and healthcare institutions regarding review of the issue of care and court proceedings remains current to this day.
The main features of public human rights education remain as they were outlined a year ago. The government declares that a system of legal education has been created in Ukraine from the first to the eleventh grade, for example in information to the list of questions from the UN Committee against Torture to Ukraines Fifth Periodic Report on its implementation of the Convention against Torture.. Firstly, however, human rights education is not entirely equivalent to legal education, and secondly the shortcomings in the content of the curriculum for the subject “The (Fundamentals of) Law” in the ninth grade have for some time now raised doubts. There are also certain aspects linked with the lack of a clear system of human rights education. Most importantly, if its introduction becomes mandatory, special training will be needed of teachers in order to teach the relevant subjects and prepare the necessary textbooks, and this takes time.
It is for this reason that in our recommendations we do not propose introducing compulsory subjects, but suggest creating the opportunity to prepare and choose alternative textbooks on civic education, human rights and the rights of the child – courses which could be envisaged as a variable part of the curriculum. The best opportunities also need to be created for choosing courses from the variable part since the school curriculum is so overloaded that there is usually no possibility of such choice. Bearing these recommendations in mind and with the active involvement of civic organizations in developing programmes, preparation of textbooks and specialists, as well as regular monitoring of this process, it would be possible to create a truly democratic model for human rights education in Ukraine.
The programmes for training and professional development of professional groups working with children or in their interest do not envisage compulsory basic knowledge about childrens rights.
According to Article 9 of the Law “On the protection of childhood”, the government shall promote “the publication and dissemination of childrens literature and textbooks by creating concessionary conditions for their publication.”
The situation in educational institutions is such that only around a third of students are assured textbooks. According to official data from the Central Control and Audit Department of Ukraine, the average percentage of textbooks reaching educational institutions is 67% of the number required. Some of these arrive in numbers which mean that one textbook needs to be shared by 3 or 4 school students. It is also typical for textbooks or the main consignment of them to reach the school library in the middle of the academic year, i.e. when the course has long been running and students have already had to buy the textbooks themselves. The most interesting thing in this sense is the fact that one can freely buy textbooks which state that they are not on free sale. As an example of this one can mention the textbook “The Foundations of Law” for the ninth grade edited by Zhuravsky. On page 2 which has the details about the publication, after the phrase about the textbook being recommended by the Ministry of Education and Science, there is a note: “Issued with State funds. Sale prohibited”. Yet the textbook seems quite at home on the shelves of bookshops. This all makes it possible to draw the following conclusions: firstly, there is clearly a situation with possible corrupt actions at various levels; secondly, such a situation demonstrates the lack of action by the controlling authorities who are generally more concerned with checking educational institutions than with directing their efforts at searching for the direct causes of the problem; thirdly; the overall pictures creates the impression that the “concessionary conditions” for publishing and disseminating textbooks declared by the government at legislative level do in fact exist, however not in the interests of the children, but to serve the corrupt interests of certain public officials.
Yet again this demonstrates the problem of the governments failure to implement the provisions of Article 42 of the UN Convention on the Rights of the Child which binds States Parties to “undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”. In Human Right s in Ukraine – 2005 we also cite the relevant norm of the Council of Europe Recommendations № 1286.
The problems with these provisions not being enforced are not only linked with the above-mentioned level of human rights education, but also with the disregard for Ukraines obligation to make widely available Ukraines periodic reports to the UN Committee on the Rights of the Child and the Committees recommendations in response. We are only aware of the Second Periodic Report in 2002 having been made public, however this was not made widely available. Yet according to Article 44.6: “States Parties shall make their reports widely available to the public in their own countries”. The Recommendations of the UN Committee on the Rights of the Child on Ukraines Periodic Reports are generally hard to find, and it is usually an unofficial translation that is in use. This is despite direct recommendations from the UN Committee on the Rights of the Child: “In light of article 44, paragraph 6, of the Convention, the Committee recommends that the second periodic report and the written replies submitted by the State party be made widely available to the public at large and that the publication of the report be considered, along with the relevant summary records and concluding observations adopted by the Committee. Such a document should be widely distributed in order to generate debate and awareness of the Convention and its implementation and monitoring within all levels of administration of the State party and the general public, including concerned non‑governmental organizations”.
The right to education
All of the problems highlighted, and the recommendations given in the section on childrens rights in Human Right s in Ukraine – 2005 remain current.
The results of a study carried out by a group of civic organizations in 2006 again drew attention to the large number of children not attending school. Within the framework of the study surveys were carried out and statistical data gathered. “The number of children who systematically or constantly do not attend school is an indicator of the failure to enforce Article 28 § 1.d of the UN Convention on the Rights of the Child. The figures are particularly high in the Kharkiv region where 65.8% of those surveyed said that they knew children who do not attend a kindergarten or school. In the North 33.5% gave this response, in the South – 27,8%. In the West, according to statistical data from the beginning of 2006, out of 86,492 children of preschool age, 59,492 for various reasons do not go to a preschool, while of 206,394 children of school age the number is only 11. This correlates with the results of the survey among the public. In the Volyn region 52% of the respondents said that they knew children who do not attend a preschool centre or school; 60% in the Chernivtsi region; and 76% in the Transcarpathian region. To compare the provision of the right of a child to be in a preschool centre or school even within the limits of one overall region it is worth noting that only 24% of those surveyed in the Ternopil region spoke of knowing of children who were not attending an educational institution.
According to the results of the survey: access to education is an issue for the public, especially in agricultural regions since as a rule on their territory there are mainly profile educational institutions for providing the region with the relevant specialists. We would add that the restricted access to preschool education in rural areas still remains.
There were no notable moves towards achieving equal access to education for children with mental health disorders. In Ukraine there are children who are entirely or partially deprived of access to education. This is confirmed by data from the National Assembly of People with Disabilities in Ukraine: “…At the present time in Ukraine there are a large number of children who dont receive any education at all. This especially applies to children with mental health or learning disorders, as well as those children who are looked after by the State in childrens homes or school-orphanages within the social protection system, which do not carry out educational activities or do not have the relevant specialists or teachers.
Education is also not envisaged for children with medium or severe learning disability. Even the standard for education is developed only up to the level of elementary school and only for children with light learning disabilities. Within the framework of implementation of the State standard for elementary general education for children with special needs curricula were issued for preparatory and first grades according to a new content and structure. At the present time the curricula for grades 2 – 4 have only been sent to the publishers. In 2006 only textbooks and course manuals for children with disabilities (92 titles) were added to the list of educational material for general schools and technical-vocational colleges.
Nor are children with hearing or sight impairments able to fully exercise their right to education since there are not enough textbooks and special literature printed, for example, in Braille, nor are there the technical means for helping children with sensory disorders receive a full education and learn to lead a free and autonomous life.
The issue is therefore how to provide students with disabilities with textbooks and other learning material. At the present time there are no exact figures about the level to which the need for domestic textbooks is being met in school-orphanages where 54.1 thousand children with disabilities study. The tuition is in Ukrainian, although most of the textbooks which date back to Soviet times are in Russian.
A particular place in the barrage of problems children, especially those with neuromuscular disorders, face, is occupied by the sheer difficulty of getting to educational institutions. Nor is the problem confined to education, but is the same with health care, housing and transport, sports and cultural premises, which leads to them being effectively isolated from society.
If the issue of ensuring the right of each child to an education is raised both by governmental agencies, and by civic organizations, the question of disabled childrens general development, including in the areas of culture and sport, and that of their recreational activities, is exclusively up to the family or individual civic organizations. The experience of some civic organizations shows that children with disabilities are able to take part in drama and dance clubs or sports centres. They can take part in competitions and find self-fulfilment in art or music. Children who have the opportunity to develop beyond the family circle and educational institutions are seen to have a reduced sense of inadequacy, psychological discomfort, and they later find it much easier to integrate into society. There is thus a need to direct the government system of supplementary (extra-curricular) education towards work with disabled children.”
It is important to note that the problem of social integration of children with special needs, for example, of equal access to education and the opportunity to attend general educational institutions, requires a clearly defined action plan. We need to train the appropriate specialists, develop and create the necessary material base, adapt educational premises for people with special needs, as well as learning programmes, and to prepare absolutely all members of the educational process for the changes to come.
The government is continuing to ignore the problem of organizing education in hospitals, etc.
Freedom of thought, conscience and religion
Greatest concern last year was aroused by the approach of government bodies to the introduction in school programmes of lessons on Christian ethics. This applies especially to the report that “… the President has instructed the Minister of Education and Science Stanislav Nikolayenko to monitor the introduction of the course “Christian Ethics” in all schools of the country…”.
The school in Ukraine is separate from the State. This principle is enshrined in Article 35 of the Constitution. There is nothing wrong with aiming to develop spiritual values in schools, however the manner in which this is done much be chosen with respect for religious freedom. A specific religion or the system of values of a particular religion should not be a school subject.
The right to freely express ones own views and to be listened to during any court or administrative examination affecting the child (in his or her own affairs)
On the basis of a study carried out in 2006, the “Protection of Childrens Rights” Foundation believes that “… the traditional attitude to children in society also quite often restricts respect for their views in the family, school and community. Childrens opinions are still given inadequate consideration when it comes to a number of legal and administrative decisions. This includes, for example, the most common situations – in determining who the child will live with if the parents divorce, adopting a religion or making a decision about an adoptive family, being in a childrens home or specialized school-orphanages. Innovations with involving children in the discussion of certain issues in their life at roundtables during parliamentary hearings and other measures somehow reflect a certain formality, the mere appearance of listening to childrens views, while generally they dont find the necessary attention and implementation.”
An area of particular concern is the protection of the property of children deprived of parental care. We therefore quote the following from the report by the Regional Charity “Resonance” entitled “Observance of the property rights of orphans in Ukraine”..
The Observance of the property rights of orphan and children deprived of parental care is one of the most difficult issues of social protection for this group of children. It is therefore particularly important to have clarity and an unequivocal treatment of the current normative legal base regulating this area.
Our analysis of the law highlighted the following shortcomings:
1. According to the Family Code and the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care”, the child retains the right of use to the accommodation in which he or she lived before being placed in a school-orphanage. That is, the child is entitled to the accommodation either on the basic of collective ownership, or as private owner. In addition, according to the Law “On protection of childhood” from 26 April 2001, the premises are retained in the childrens name for the entire period during which they are in state care, regardless of whether the property where the children have come from is now lived in by other members of the family.. At the same time, the Housing Code states that living premises are retained for the children if there are other members of the family living in the house or flat (or part of such). There is thus a contradiction, since it is not set down whether there must be somebody from the family of the child living in the accommodation to ensure that the property is retained in the childs name.
2. According to the Civil Code a person from the age of 14 to 18 is considered to be a minor, while under the “Rules of care and guardianship” – from 15 to 18.
3. The current “Rules on care and supervision” are not in keeping with the real situation at the present time and quite often clash with other laws and subordinate legislation.
4. In the present Housing Code the first priority for providing housing to orphans is not set out, nor is there an effective mechanism for providing social accommodation to young people finishing school-orphanages. The mechanisms for control and protection of childrens housing rights foreseen in the Housing Code are out of date and out of step with the contemporary structure of government organization and law in Ukraine. They are therefore ineffective and fail to work in practice. .
One of the main problems is the fact that many young people from school-orphanages do not have papers confirming their status as an orphan or child deprived of parental care. This is due to inadequate coordination of the actions of the authorities responsible for passing the childs documents to the orphanage, as well as objective difficulties of the orphanages lawyer in communicating with each of them. Another problem is ensuring that the documents are organized in full and in timely fashion. Current legislation does not envisage liability for not organizing these documents properly which in turn can make it impossible for the child to take possession of his or her property which does in fact belong to them. Such situations most often arise as the result of incorrect recording of passport details – a mistake in the last name, or in parents names.
A childs documents, passed to the school-orphanage, only set down the person who is responsible for keeping any property remaining after the death of the parents. Those responsible for maintaining any other property are not indicated. In Ukraine there are several levels of offices of care and supervision which causes difficulties when designating public officials responsible for keeping property held for children in institutional care. The law also does not provide a mechanism ensuring liability where an official does not fulfil his or her duties with regard to appointing a curator of the childs property.
The authorities do not take an active position as regards providing information about property belong to an orphan or child deprived of parental care. Information about such property in general emerges at the initiative of the children themselves. Efforts to inform the children about people who may be responsible for and manage the childrens property are not adequate.
In school-orphanages there is no effective apportioning of guardian duties between members of the administration, the lawyer and social worker. In the vast majority of cases no use is made of legal mechanisms to defend the interests of the children in these institutions as a result of the responsible individuals being unprepared, or the lack of a lawyer.
The main problem in maintaining the property of orphans is payment of communal charges. This problem is not addressed by Ukrainian legislation and there are accordingly no mechanisms to regulate it. The property held for children in care is not let out. The main abuse in managing orphans property is linked with keeping property that has not been privatized for the child.
In most school-orphanages all the students need to be provided with accommodation after graduating. According to the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care”, these young people are placed on the flat register after they turn 18. The overwhelming majority of students of school-orphanages finish school before reaching that age. Since the problems with provision of social housing in Ukraine have yet to be resolved, and the question of provision of housing for young people finishing school-orphanages is raised not long before they are to leave the institution, they are effectively forced to either continue their studies or find a job where hostel accommodation is provided. However this does not solve the problem, but simply puts it on hold. At present there is also no procedure for returning a young person to the home that they once shared with their parents: the young persons right to accommodation is fixed on the formal basis of the parents housing. This leads to the situation whereby a young person leaving the school-orphanage has accommodation fixed in his or her name, but no actual possibility of returning to it and living there. At the same time the very fact of this fixed accommodation deprives the young person leaving the school-orphanage of concessions for receiving accommodation without waiting in the queue. There have already been some reasonably successful attempts to introduce at government level mechanisms for providing social housing to young people finishing school-orphanages however there is still no mechanism for a systematic resolution of the problem. In cases where a child did not have accommodation and registration before entering the institution, it is impossible to determine which government body should deal with providing them with housing. There is no clear legislative answer to this problem.
At the present time there is no procedure for allocating temporary government assistance to young people leaving school-orphanages in cases where the parents are refusing to pay maintenance, or are not in a position to support the young person, as well as where the parents whereabouts are not known. There is no mechanism for providing social assistance to those young people who are not entitled to a pension due to the loss of the breadwinner, yet who are on full State support. No money can thus be saved in these young peoples personal accounts making the starting conditions when leaving institutional care unequal.
The main problem with observing the rights of these children in care to receive maintenance (from a parent) is not linked with the management of these funds, but with their formal organization. The lack of court claims for alimony leads to maintenance not being assigned by the courts. Enforcement of court rulings to extract maintenance payments from parents of children in care is inadequate.
The norm requiring proof that parents had worked for 5 years when assigned a pension due to the loss of the breadwinner causes considerable difficulties for school-orphanages in collecting the relevant documents. This prevents certain categories of children from receiving such payments and consequently leads to social inequality. The amount of the pension due to the loss of the breadwinner is at the moment one of the most burning issues. The problem is exacerbated where the breadwinner was bringing up several children, since then one pension is divided between the number of children involved. The size of this pension is significantly lower than other social payments.
Moreover, it costs money to open a personal account which the Budget does not allocate funds for.
Shortcomings in the mechanism for receiving financial assistance on leaving the school-orphanage and a statistical register of orphans and children deprived of parental care leads to some young people not receiving the money at all, or very late. There is no problem with receiving clothes, shoes and similar, or money to purchase these when leaving, with this being allocated on time. The amounts, however, differ radically between different regions. This is directly linked also with the lack of standardization of norms for a minimum level of payments in various normative legal acts. Both staff of the school-orphanages and young people finishing them pointed to the fact that the amounts of financial and material compensation do not match the real needs of the young people. We are therefore forced to conclude that current legislation and subordinate legislation are not regulating material assistance for orphans and children deprived of parental care when they come to leave institutional care.
Infringements of childrens property rights, in particular, their right to housing, are to some extent the result of failings in legislation on care and supervision. Legislation does not oblige offices of care and supervision to monitor whether parents or those replacing them buy other housing to replace that expropriated and to ensure that the childs right to it is formalized. Nor is there regular public control over the work of school-orphanages.
Virtually all norms pertaining to control and responsibility with respect to fulfilment by guardians (carers) of their duty to protect childrens property rights should be extended to cover legal entities acting as guardians or carers, i.e. the administration of school-orphanages, especially where the child has no other guardians. We can say that at the present time these institutions do not enforce the norm of “Rules of care and supervision” which requires guardians or carers to report to the offices of care and supervision about each child. The school-orphanages report on protection of the rights and interests of the children under their care differently, annually, as a response to a formal request for information or some other way. Yet statistical information, individual reports on each child are not provided. This is a significant shortcoming in the existing mechanisms for ensuring observance of childrens property rights. .
Agreements over operations involving childrens property require notarized confirmation after preliminary consent from offices of care and supervision. However the mechanism for such cooperation is inadequate and there have been cases where the offices unwarrantedly refuse to consent to expropriation of the property. On the other hand, if these bodies give consent for the expropriation of the childs property under certain conditions, the notaries are not obliged to ensure that these conditions are fulfilled since this is not envisaged by the “Instructions on the rules of procedure for carrying out notary tasks by Ukrainian notaries”. In the sale of housing where a part of this belongs to a child in a school-orphanage, there are no indicators devised to determine whether the interests of the child are being best served (for example, when instead of a flat in a city, the child is bought a building in a village).
The most accessible way for children in care to protect their property rights is by approaching the school-orphanages lawyer. There may be a number of reasons why there is no such person (such a post may not have been allowed for; the lack of prospects for growth and development in the case of young specialists), but this makes any protection of the childrens rights much more difficult. It is reasonably common to approach the courts for this protection. This is to be praised yet it cannot be the solution to systemic problems.
1) The authorities and other government agencies working in the interests of children should introduce a permanent mechanism for assessing observance of childrens rights in the country. At least the Human Rights Ombudsperson and the Ministry for the Family, Youth and Sport should provide annual reports on the situation with the rights of the child. The response from public organizations and the mass media to these reports and their widespread public debate could create the basis for constructive democratic dialogue aimed at improving the situation. There is regrettably no such dialogue at present due to the lack both of political will from the relevant government bodies, and to the lack, generally, of overt failure to fulfil their duties.
2) All specialists working with children need to have basic knowledge in the area of childrens rights. The system both of training and of professional development courses for professional groups working with children and in their interests should be based on this principle. For example, the staff of childrens hospitals, etc, should receive special training on legal standards when providing medical assistance and the specific aspects of working with child patients.
3) Ukrainian legislation needs to be brought into line with international standards with regard to ensuring the right of a child to protection of his or her own identify in the case of adoption. For example, the first and last names of a child may be changed, records on place and date of birth altered when a child is being adopted in the interests of the child involved, however the law must guarantee the opportunity to receive this information. The right of access to information, including to acts regarding civic state, does not in itself guarantee the possibility of finding biological parents, brothers and sisters. The individual details about a child may only be changed where there is a special need for this.
4) The practice of unlawfully placing children from childrens homes or school-orphanages in psychiatric hospitals must be stopped immediately, and an effective mechanism must be developed to enable the law enforcement agencies to react in such cases.
5) In all cases involving minors, regardless of their procedural status (whether they are victims or the accused) a lawyer must take part since these people are not capable, due to their age, of independently defending their interests. As a result, young victims often lose the opportunity of receiving proper compensation for the material and moral damages sustained.
6) Besides the general principles of equal rights and prohibition of discrimination, there need to be special mechanisms envisaged by legislation on protection from discrimination, especially as regards particularly vulnerable groups of children. .
7) Action must be taken to make it impossible to misuse for corrupt ends the “concessionary conditions” for publishing and distributing textbooks and other material for educational institutions.
8) Existing government reports to the UN Committee on the Rights of the Child must be immediately made available (an official translation should be made and published in official publications).
9) Broaden and improve procedural opportunities for children to take part in decision making in cases concerning their interests. This especially applies to court proceedings and criminal investigations.
10) Normative acts regarding the prohibition of corporal (physical) punishment should be made to work, and need to be accompanied by broad-ranging awareness-raising and information measures, and training sessions among professional groups working with children or in their interests, their parents or those replacing them.
11) Changes are needed in procedure for criminal investigation and court proceedings. The child should communicate with those running the investigation via a psychologist in a safe environment. The conditions should minimize the degree to which the child takes direct part in court proceedings or the investigation. To achieve this, it is important to use audio and video recordings, a “Venetian mirror” during questioning to avoid having to repeat testimony many times.
12) Rehabilitation and treatment programs for victims of violence, as well as the offenders themselves, should be developed or improved, and implemented. Any suspended sentences passed down should be directly contingent upon the offenders participation in treatment.
13) The resolution of situations of conflict and methods of upbringing in educational institutions must comply with standards for observing the rights of the child.
14) “Status” punishments, that is, those where minors can be punished for acts which an adult would not be held legally liable for and would not therefore face punishment for, should not exist either at the level of legislatively imposed norms, or in the practice of preventive upbringing measures.
15) A system should be created of specialized courts (juvenile justice). This will help improve the practical efficacy of the procedure for protecting the rights of the child, as well as the liability for the non-observance of these rights by those with responsibility.
16) Documentation in educational institutions which is not about an individual must not contain information about the state of health or medical diagnoses of any individual.
17) Children able to understand their circumstances need to be guaranteed access to information concerning them in school, childrens homes, at the doctor, or in the case of court proceedings.
18) More attention needs to be paid to teaching children about human rights and the rights of the child. Human rights education is an important component of civic education. Programs need to be developed for children of different ages, textbooks should be written and there needs to be the possibility of choice.
19) The government should pay particular attention to ensuring access to.education for children with impaired possibilities, with the maximum level of socialization for these children within general schools, and should provide individual tuition for those children needing it.
20) Children in hospitals and similar should have the opportunity to continue their education if their state of health allows.
21) Proper financing needs to be provided for educational institutions, with payment of salaries for educational staff and provision of the necessary materials in schools.
22) The public authorities should develop and introduce a separate program for children who have dropped out of school and do not wish to continue their studies.
Recommendations on observing the property rights of orphaned children in Ukraine
Documentary confirmation of status of an orphan or child deprived of parental care
1) Introduce an effective mechanism of control and liability for inadequate or careless processing of documents of orphans and children deprived of parental care. In this context it would be advisable to analyze practice in other countries and introduce procedure for administrative liability of public officials.
2) To create order with property documents of each child and to increase their awareness about the property, we would suggest supporting the practice of registration cards for children in institutional care and allow for each child to be able to see their own such card.
3) Review current legislation on controlling the safekeeping of orphaned childrens accommodation, increase the powers of the controlling bodies, create permanent commissions made up of deputies on exercising such control and establish and open list of named individuals responsible for keeping their property, and impose liability where this is not done appropriately. Resolve the problem of communal payments for the property while the children are in care.
4) Develop procedure for providing orphans with organized social accommodation, designate those responsible for assessing the accommodation conditions of children leaving care and create a database of children in school-orphanages indicating whether they need housing. This will also help the child while still in the institution to begin resolving the issue of accommodation and make it possible to exercise systematic control over the property of those children who have it.
5) Create a single register of housing which is owned by orphans and children deprived of parental care and which is not subject to expropriation or sale. Introduce effective mechanisms of control over the activities of notaries as regards operations with housing of children in school-orphanages.
6) Increase liability of public officials for failing to properly protect the property of children in school-orphanages.
7) Introduce amendments to legislation regarding the allocation of funds from local budgets to pay money owing on communal charges.
8) Supplement the Housing Code with articles enabling children to be placed on the register to receive a flat as first priority on the application of the school-orphanage, office of care and supervision, or a guardian, to allow for a mechanism to provide first priority loans to orphaned children via youth housing loans.
9) Introduce amendments to the Family Code to have courts designate those responsible for retaining housing and property of children in school-orphanages
10) Determine the procedure for placing children who did not have housing on being referred to an institution on the register for flats, and develop a mechanism for receiving housing from the local fund.
11) Improve the mechanism for letting accommodation of children in school-orphanages under the control of the authorities..
12) Introduce a mechanism for periodic assessment of the possibility of returning the child to the housing held in his or her name.
13) Establish a minimum pension due to the loss of the breadwinner, regardless of how long the parents had worked and the number of children in the family. Devise and implement a mechanism of social payments not only for orphans but for all children in school-orphanages.
14) Introduce amendments to the Family Code by adding provision on mandatory consideration by the court in the case of deprivation of parental rights of the question of maintenance and establishing a guardian for the property. The court should establish whether the child has property, appoint a guardian for the property, and address the issue of maintenance since in civil suits the claimants do not always mention maintenance for a child.
15) Implement via legislation a mechanism for saving in an orphans own account a certain “amount not to be blown”, a minimum cumulative variant of social security (for example, a deposit).
16) Begin a programme for the charge-free opening of savings accounts for children from school-orphanages in State-owned or private banking institutions, or introduce the practice of allocating funds for opening such accounts and clearly stipulate the source of the funding.
17) Agree an increase in the level of payments on leaving a school-orphanage and of pocket money (review this annually to bring the amounts into line with inflation.
18) Create a single nationwide register on receiving money and material assistance on leave school-orphanages. .
General suggestions for improving the rights situation as regards orphans being cared for in school-orphanages
19) Create a single structure dealing with the problems of orphaned children and stipulate at legislative level one body of care and supervision. Clearly delineate the powers of bodies dealing with orphans, and also set out the proper control over their activities.
20) In our opinion, the norm as to reporting on observance of the rights and interests of each child should be extended to the administration of school-orphanages, although the procedure for submitting reports can be simplified in comparison with that for individuals (physical persons) acting as guardians or carers.
21) Create a single social service for the socialization of orphans and children deprived of parental care.
22) Introduce a system of social accompaniment for a child for a certain period after they leave the school-orphanage. Introduce a government awareness-raising programme within the framework of socialization of children from such institutions.
23) Intensify the process of introducing juvenile justice in Ukraine.
24) Actively involve the public in debating and seeking ways to resolve the problems linked with orphans and children deprived of parental care being in institutional care.
25) Accelerate the process of phased reform of school-orphanages in accordance with the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care”
 Prepared by Serhiy Burov, Civic Organization MART [“Molodizna Alternatva” – “Youth Alternative”] (Chernihiv) and member of the UHHRU Board; Partners (organizations or individuals) who provided consultation and/or information included: Olena Volochai (“For Professional assistance”); Olena Hrabovska (“Resonance”); Mariya Yasenovska (“Civic Initiative”); Volodymyr Yavorsky (Ukrainian Helsinki Human Rights Union); Dmytro Groisman (Vinnytsa Human Rights Group); Larissa Baida (Childrens Cultural-Educational Centre), Yevheniya Pavlova (Foundation for the Protection of the Rights of the Child); Yury Lutsenko , (Foundation for the Protection of the Rights of the Child); Ruslana Burova and Oleksy Kinebas (MART)
 Consideration of reports submitted by States parties under article 44 of the Convention, CRC/C/15/Add.191 9 October 2002, D.12
 Presidential Decree “On priority measures for the protection of the rights of the child”, 11 July 2005 № 1086/2005.
 These were: the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and the Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations from 1973 (translator)
 According to a study carried out by MART in 2006.
 Information on adherence to legislation aimed at protecting the rights of minors who are suffering from criminal encroachments, violence in the family, being drawn into committing a crime and other unlawful activities // Letter from the Prosecutor General to the Prime Minister from 31.07.2006. N 07/3-90
 Information about implementation of legislation aimed at protecting the rights of minors who have suffered as the result of crimes, violence in the family, being drawn into criminal or other unlawful activities // Letter from the Prosecutor General of Ukraine to the Prime Minister from 31.07.2006. N 07/3-90
 Article 11 § 11 of the Law “On the police”
 Benjamin Babadzhanin, Projects Manager for the International Society for Human Rights – Ukrainian Section, excerpts from the report.
 These rather odd combinations are being used to distinguish between different forms of institutional care in Ukraine. The distinction is basically in age, with school – orphanages being for school-age children and young people. In Article 5 of the Law cited immediately above, children being returned to their place of studies would be in institutional care (translator)
 «Comprehensive monitoring of the childrens rights situation in Ukraine”. The All-Ukrainian Foundation “Protection of Childrens Rights”, Kyiv, 2006
 CAT/C/UKR/Q/5/Rev.1/Add.1, 24 April 2007..
 “The Foundations of Law”. Textbook for the nine grade of general schools / General Editor V.S. Zhuravsky // Academic Editor M.I. Melnyk, M.I. Khavronyuk – K. Yurydychna dumka, 2004 – 424 pages.
 At the end of 2004 a book was published: “Concluding comments and recommendations from the Convention bodies of the UN on Ukraines human rights reports”, under the general editorship of the Human Rights Ombudsperson. This covered such comments and recommendations fro the period from 1991 – 2004. On the inside cover it is stated that the official translation of the concluding comments and recommendations was done by the Legislation Institute of the Verkhovna Rada. This assertion would seem doubtful since official texts must be published in the legally stipulated publications (Editor)
 Consideration of reports submitted by States parties under article 44 of the Convention CRC/C/15/Add. 191, 2002. Section 10 Item 77
 «Comprehensive monitoring of the childrens rights situation in Ukraine”. The All-Ukrainian Foundation “Protection of Childrens Rights”, Kyiv, 2006
 “On the rights of disabled children in Ukraine”. The National Assembly of People with Disabilities in Ukraine”.
 ««Comprehensive monitoring of the childrens rights situation in Ukraine”. The All-Ukrainian Foundation “Protection of Childrens Rights”, Kyiv, 2006.
 “Observance of the property rights of orphans in Ukraine”: Report on monitoring carried out // compiled by O. Hrabovska, O. Kopanska – Lviv: TeRus, 2006 – 152 pages.
 “Observance of the property rights of orphans in Ukraine”: Report on monitoring carried out // compiled by O. Hrabovska, O. Kopanska – Lviv: TeRus, 2006 .