Human rights in Ukraine – 2006. XXI. The main human rights violations linked with human trafficking
1. Human trafficking as human rights abuse
Trafficking in human beings is viewed as violation of human rights which countries must take responsibility for. This is actively declared both at international and domestic level. Practical implementation of this approach, however, is proving difficult.
A crucial stage in affirming this concept was the World Conference on Human Rights in Vienna, 1993, when violence against women was first official recognized as a violation of human rights. It is from the position of human rights protection that a number of international documents have been drawn up over recent years on combating human trafficking. These include the Hague Ministerial Declaration on European guidelines for effective measures for prevent and combat trafficking in women for the purpose of sexual exploitation (1997), the UN Convention against Transnational Organized Crime (2000); including its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, the Brussels declaration on preventing and combating trafficking in human beings (2002), the Council of Europe Convention on Action against Trafficking in Human Beings CETS No.:197 (2005 р.) and others which stress that human trafficking is a violation of human rights.
Problems arise in moving from declarative provisions to formulating a policy of “positive action” based on raising and strengthening the status of the individual in society, their rights, which excludes the very possibility of buying or selling people.
The following basic rights are violated in cases of human trafficking:
The right to life, liberty and security of person: unwarranted detention or arrest mean that they were carried out with violations of current legislation; the period of detention is not indicated, or specific charges are not laid, and sometimes such detention can end in the death of the detainee.
Freedom from slavery, this including forced labour without payment or debt bondage.
The right of freedom from torture, cruel or inhuman treatment: victims of human trafficking are very often subjected to physical or psychological coercion, rape and torture. During detention they are sometimes treated in a degrading manner.
Equality before the law: the attitude of judges and other representatives of the judiciary to victims of human trafficking is very often dependent on their gender, race, nationality, origin, and whether or not they have legal status. It quite often happens that charges are laid not against the human traffickers, but against their victims.
Freedom of movement and of residence: these rights are violated when a person has their passport, visa etc taken away or imprisoned.
The right to work and to form and join trade unions: people sold into labour are unable to either create or belong to trade unions and can do nothing to improve their working conditions.
The right to a decent standard of living: victims of human trafficking are very often deprived of proper nourishment and forced to live in bad conditions, and they can be refused medical care. They also risk infection where there is a ban on using condoms.
The right to rest: it is a violation of human rights to force a person to work more than a certain number of hours a day and without a day off. This is very often infringed in the case of women employed for housework.
Freedom to marry: womens rights are violated when they do not enjoy equal rights with their husband, or when they are forced to marry against their will.
Human trafficking is in itself a violation of human rights however it is also the result of violations of other human rights. For example, data from civic organizations indicate that a majority of women victims of human trafficking regularly suffered from domestic violence. Factors for the spread of human trafficking can also be interpreted through a complex of human rights abuse.
2. An overview
The problem of human trafficking manifests itself to varying degrees in different regions of Ukraine. The situation is especially difficult in the West – the Rivne, Ternopil, Chernivtsi, Volyn, Transcarpathian and Lviv regions where there may be several members of a single family registered at employment centres. In the Ivano-Frankivsk region alone, out of a population of 1,460 thousand, 250 thousand are working abroad. According to unofficial figures, between 150 and 350 people from the Lviv region are working abroad, and the situation is no better in other western regions.
It should be noted that the attempts of potential labour migrants to find work abroad has led to criminal gangs organizing travel documents and in fact sending them abroad to be sold into exploitation.
From 1998 – 2006, according to figures from the Ministry of Internal Affairs [MIA], more than 1660 crimes covered by Article 149 of the Criminal Code (human trafficking) were identified. This number, furthermore, has been increasing each year (1998 – 2; 1999 – 11; 2000 – 42, 2001 – 89; 2002 – 169; 2003. – 289, 2004. – 262, 2005 – 415, 2006 – 37).
The statistics for cases reaching the court are of interest. The MIAs figures show that in 2002 out of 169 registered cases 139 resulted in court proceedings; in 2003 226 out of 289; in 2004 260 out of 269; in 2005 only 357 out of 415 and in 2006 317 out of 376. According to the State Judicial Administration the number of criminal proceedings under Article 149 (124-1) of the Criminal Code examined by appellate and local courts over the years 2002-2006 were 36, 62, 74, 96 and 99 respectively. 86 people were convicted of human trafficking offences in 2006.
Information received both directly from trafficking victims and from civic organizations working with victims and providing various types of assistance suggest a high level of corruption in the courts hampering objective judgments. This means that the uncovering by MIA officers of a crime does not yet mean that the perpetrators will be punished.
At the end of 2006 information was received for the first time from victims about a possible link between a police unit and traffickers.
Trafficking in “live commodities” as an asocial and criminal phenomenon tends to adapt to new conditions, changing its form and methods depending on the economic and social situation in any given country and in the world as a whole. This means that over time: criminal gangs change their approach, their methods and the ways they recruit people, while vulnerable groups also change. The following changes can be highlighted: men are becoming victims of trafficking; there are less woman over 35, and more young women from 15 – 19 being taken away for work in the sex industry. As well as victims becoming younger, there is also a trend towards child slavery and information is emerging of cases of child human trafficking. The criminals are more demanding with regard to the “qualities of the commodity”. The number of victims exploited not in the sex industry, but for housework, at semi-legal or illegal workshops and factors (victims between 30 and 50). Traffickers are finding new places for recruiting victims (increasingly in rural areas), and the recruitment is becoming more camouflaged and secret. The recruiters are taking on more work: they find the people; organize their documents; take them across borders and pass them over to the buyer abroad, receiving their money immediately. Previously the recruiters only found people and organized papers, while the rest was done by other criminals, however the recruiters sometimes did not receive the money theyd been promised. Trafficking within the country is also spreading, aimed at drawing children into the porn business or prostitution, including commissioned by foreign nationals. The types of trafficking and ways of transporting people abroad are changing, and the scale of the problem is ever increasing.
From analyzing the appeals reaching La Strada – Ukraine in 2006, one can note an increase in cases linked with childrens rights. This includes attempts by people from other countries to adopt Ukrainian children; illegal attempts by one parent to take a child abroad, etc.
Of particular concern is the spread of a new form of sexual exploitation – sex tourism, especially where this involves children. Child sex tourism is “the commercial sexual use of children by people who come from their own country to another, usually less developed, country to engage in sexual activity with children.”.
Back in spring 2005 Ukraine removed visa requirements for people from the European Union, Canada, USA and some others. In so doing, it demonstrated to the world its openness to democratic transformations, as well as to the European community and readiness for European integration.
It must be said from the outset that the opening of borders and removal of visa restrictions, is not a cause of child sex exploitation, sex tourism and the use of foreign children in prostitution and pornography, however it has been a factor in the escalation of these ills. A lot depends on the image which is created about a country, the circulation of advertisements for erotic and sexual services in the mass media and tourist publications.
Anonymity, the availability of children, the sense of all being possible and of being a rich man from a civilized country compared with poor citizens of “Third world” countries, being removed from their own country, from moral, social and legal restrictions which in their normal life govern their actions, etc, are the factors at play around sex tourism. Furthermore, experience shows that such tourists very often excuse their own behaviour by claiming that they are actually helping children when they pay them money. No thought is given here to how the money is earned and what consequences this might have for each child.
Sex tourism is a crime which carries fairly hefty punishments in many countries. It is, however, also a crime which is extremely difficult to prove, with a high level of latency. The seriousness of the problem also lies in the fact that the victims of such sex tourism are very often underage or even children. Bearing in mind the large number of orphans, neglected children and street kids in Ukraine, as well as the attraction for children in earning some money, a significant increase in this kind of crime can be expected.
According to MIA figures, there have, in fact, already been cases identified of sexual tourism involving people from France, Sweden, the USA and some other countries. The contact is first established via the Internet and the children are found by Ukrainian nationals who are often themselves underage and from unfavourable family conditions. The difficulty of providing this crime is even greater than in proving crimes linked with human trafficking. It is virtually impossible since, for example, pornographic materials are stored in digital format which can be destroyed in a matter of seconds, thus eliminating material evidence and leaving the perpetrators untouched. Victims very seldom give testimony.
In the present Criminal Code two articles for combating sexual tourism may generally be applied: 156 “Corruption of minors” and 301 “Import, production or sale and circulation of pornographic items”. However only the crimes outlined in paragraph 3 of Article 301 and paragraph 2 of Article 156 are classified as serious. Article 149 on human trafficking has not been applied in combating this crime.
Unlike other countries of Central and Eastern Europe, attention is not given in Ukraine to specific features of trafficking in human beings and children, for example, among the Roma people.
3. Violations of a range of human rights in Ukraine as a cause of human trafficking
Among the external and internal factors leading to the spread of human trafficking in post-Soviet countries, certain trends can be observed.
The following are traditionally highlighted as contributing factors: unemployment; the low standard of living; lack of legal awareness among the public; an unrealistic notion of how easy life is in Western countries; the lack of real information on the issue; the sexualization of life; sex ads; globalization of the economy active international trade migration, as well as the possibility now for Ukrainian nationals to travel, etc.
The difficult economic situation is first among factors, with the feminization of poverty encouraging women to seek any earnings often without taking possible adverse consequences into consideration. Researchers from various countries have noted that in this situation women are more likely to agree to work which does not match their level of education and qualifications, whereas men in similar situations hesitate. There is a growing number of families where women are the main breadwinners, bearing the burden of responsibility for the entire family.
However, whereas 5-8 years ago, the main factor was unemployment, these days both women themselves and specialists stress that it is not so much unemployment which causes poverty, as extremely low wages, with these not exceeding the poverty line even for well-qualified work (doctors, medical personnel, teachers, among whom an absolute majority are women). This leads to both poverty and a sense that there is no way out. A unique phenomenon can be observed in the massive reduction in the standard of living of the part of the population which by world standards is considered the middle class. All of this pushes Ukrainian nationals to seek work abroad. At the same time the most accessible way of earning money abroad for women is the sex industry, moreover its illegal variety. Direct conversations with women who want to go abroad to work, and with those who have returned from such trips, suggest that a contributory factor in the spread of human trafficking remains the fact that Ukrainians are ill-informed about possibilities for employment abroad, as well as about the consequences of being there illegally.
Ineffective political and economic transformation in the country, corruption among officials, the declarative nature of social policy, the deepening divide between those at the top and an absolute majority of the population and the fact that the romantic dreams of the first years of independence were not fulfilled, have all led to one other factor, namely a lack of belief in the possibility of positive changes in the country. The most terrible part is that young people do not see a future for themselves and the possibility for self-fulfilment in Ukrainian society. Nor do parents see a future for their children. Higher education is no guarantee of a normal level of life. Going abroad is seen not only as a way of resolving temporary financial problems of the family, but as also a strategic move in life for the young generation. Clearly information campaigns cannot in this case be viewed as a method combating the ill – major changes are needed in the governance of social and political processes in society.
The situation is exacerbated by the fact that the process of migration swiftly takes on criminal aspects since there are too few legal possibilities for travelling abroad to work to cater for all those wishing to. Specialists ever more frequently name the growing criminalization of society as one of the factors encouraging the spread of human trafficking.
There have also been certain changes in the group of legal factors. A law was passed against human trafficking, but there is as yet no truly functional system for protecting victims from the traffickers in “live commodities” in Ukraine, nor is there a law on social protection of Ukrainian nationals abroad.
The causes of human trafficking must also be sought among external factors, including the opening of the borders which simplifies tourism and looking for work; the internationalization of the shadow economy; the formation of international criminal organizations; an increasing divide between rich and poor countries; legislation in many countries which is lenient with regard to prostitution; the globalization of the economy and of migration. It is quite clear that it is difficult and virtually impossible to eliminate these global factors. They must, however, be studied, understood, in order to take them into account in anti-trafficking measures.
An important factor which formed and emerged at the beginning of the new century is the presence of a so-called social network abroad. According to research carried out by the ILO, the majority of migrants, both those doing well, and victims of human trafficking, have a relative or close friend abroad who helps inform them about chances of finding work abroad, and considerably eases the process of leaving. The greatest risk of becoming a victim of human trafficking is faced by people who go to far off countries in order to find illegal work via intermediaries who take on the financing of the trip – organizing passport and visa, and buying tickets. These extra payments provide an additional factor preventing people from changing their mind and not going if doubts have arisen regarding their safety. They also become the reason why migrants cannot leave their jobs when they want to since they would have to return the money.
Human trafficking and illegal migration
Specialists and representatives of civic organizations are increasingly critical of attempts to equate human trafficking with illegal migration. Such an approach leads to the “simplest” counter-measures – strict visa restrictions at the border and criminalization of illegal migration. Ukrainian nationals have already experienced the negative consequences of this approach being applied by countries of the European Union who are creating a new “iron curtain” distancing themselves from so-called “third” States.
This kind of policy makes it difficult to exercise the right of freedom of movement. Having broken free of the prohibitions which prevailed in Soviet times, Ukrainians have ended up in a trap created by “democratic countries”.
A huge number of people who ring the La Strada – Ukraine help line allege corruption in foreign embassies in Ukraine making it almost impossible to receive visas. The following specific complaints can be highlighted: people approaching a particular embassy sometimes encounter overt suggestions from consulate staff to pay a certain amount in order “to speed up” the visa process. Almost all those who have stood in endless queues outside an embassy have received offers from certain individuals to ease the procedure for obtaining a visa and save time if they pay a fair sum. Unfortunately many of our fellow citizens are forced to take up such offers because the process for obtaining a visa takes so outrageously long. So where is the justice, and should those do who dont have Euros to spare on increasing their chances at the embassy?
Often people planning to go abroad turn to various agencies (go-between firms helping people find jobs, tourist agencies, etc), and entrust them with the entire process of getting documents and a visa. However by no means all of them realize that their documents quite often do not even reach the embassy and that there are “experts” who can themselves put rejections in the passport. It should be remembered that as a rule a person seeking a visa has to personally come to the embassy for an interview. However it often happens that employees of such firms do manage to get visas for their clients. Then the question should be asked of how they achieve this. This is clearly not cheap for those who approach the agency.
Generally Ukrainian nationals go abroad for work and look for any possibility of getting there. This is confirmed by studies and an analysis of phone calls to the national help line on avoiding human trafficking attached to La Strada – Ukraine (75% of phone calls are about going abroad in order to work). The methods of recruitment for such “work” are varied while at the same time traditional for this sphere.
They may in the first instance be advertisements for jobs abroad. They are published in all newspapers offering work to Ukrainian nationals.
A concept analysis of newspapers showed that each issue publishes on average between 10 and 20 “dodgy” ads, mainly with invitations to young and attractive women. Here are the most typical examples which give food for thought: “Work in the best European clubs for young women from 18 – 30. All expenses paid by the firm. Monthly wages starting at 1500 US dollars”. After that theres an address where the job interviews will take place. Or this ad: “Work. All construction professions, labourers (factory workers), agricultural work, drivers, domestic workers and nannies. Canada, Cyprus, France, Israel, Spain, Iraq, Ireland, Kazakhstan, Namibia, Portugal, Russia, South Africa, South Korea, United Arab Emirates, United Kingdom and the USA. Men and women aged from 18-55. Quick arrangement of documents and visas”. And some other advertisements in the same newspaper.
Statistics for calls made between January and December 2006
Total number - 4720
66% – consultations regarding work or holidays abroad
2 % – consultations about studying abroad;
2 % – looking for ways of returning to Ukraine;
2 % – inquiries about people having disappeared while abroad
1 % – questions about going abroad to live
2 % – phone calls from people who have returned to Ukraine, or from their relatives
2 % – consultations on marrying foreign nationals
2 % – consultations on divorcing foreign nationals and issues over getting children back
0 % (2 calls) – consultations over court proceedings in human trafficking cases
21 % – others, including::
- Organizational questions regarding helping victims;
- La Strada consultations to journalists
- La Strada consultations to employment centres;
- Interviews given to media outlets;
- Applications for seminars, lectures, training seminars;
- Calls beyond the competence of the organization.
4. Definition of human trafficking
By ratifying in 2004 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), Ukraine recognized a broad definition of human trafficking which does not only include trafficking in women for the purpose of sexual exploitation, as was the case in the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949).
Human trafficking is defined as: « the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs»
The adoption of an international definition of human trafficking is a major step forward in organizing adequate anti-trafficking measures. It makes it possible to lay the legal foundations for overcoming long-standing stereotypes in society which have equated human trafficking with prostitution. The general theoretical discussions around this definition and the phenomenon involved have enormously helped formulate strategic policy aimed at elimination and avoidance of particular types of trafficking. An unclear definition leads to vagueness in interpretation with different things being understood by the same term, leading to lack of standardization, or similar to lack of any action.
For example, almost every article in the media on the subject of human trafficking is to this day accompanied by photographs of women sex workers. The very names of the articles speak for themselves, for example: “A woman isnt a commodity”, “Girls on call”, “Credulous Ukrainian women become sex commodities”, or “Im a sex slave”, etc.
As a result of this stereotype there was general stigmatization of human trafficking victims as being people involved in the sex industry (without even considering whether this had been through coercion or voluntary). This further complicated the process of providing victims with assistance. It also made trafficking victims afraid of cooperating with the law enforcement agencies, with them refusing to give testimony out of fear of prosecution for having engaged in prostitution. This, incidentally, is made great use of by human traffickers who blackmail their victims, by claiming that cooperation with the police will get the victims behind bars while “well buy our way out”.
In addition, victims were invariably seen as being only women. As a result men who had suffered from the crime were stigmatized, or simply not recognized as being victims, this leading to further violation of their rights where various types of assistance were needed, rehabilitation and reintegration programmes, etc.
Research into human trafficking involving men in Ukraine was carried out in 2006 by the International Organization for Migration however the results have yet to be made available.
5. Improving Ukrainian legislation
Ukraines ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime [the Protocol] brought with it the need to introduce amendments to current legislation, in particular Articles 149 and 303. Legislation for combating human trafficking had the following flaws:
- the Article gave one of the elements of the crime being that a person had been taken with or without his/her consent across Ukraines border. This made it impossible to initiate criminal proceedings in cases of human trafficking committed in Ukraine;
- the formulation of the crime was not specific enough, with there being no criminalization of the act of buying a person;
- the norm did not add deception as a qualifying feature;
- the definition of human trafficking lacked such elements of the crime as recruitment, transfer and transportation of a person.
On 12 January 2006, therefore, the Verkhovna Rada adopted the Law “On amendments to the Criminal Code of Ukraine on increasing liability for human trafficking or engaging people in prostitution”. This introduces new versions of Articles 149 and 303 of the Criminal Code.
In brief, the following points should be highlighted with regard to the new version of Article 149:
1) it has brought the definition and understanding of human trafficking closer to that given in Article 3 of the Protocol;
2) the part of the definition regarding a persons being taken with or without his/her consent across Ukraines border has been removed, which now makes it possible to initiate criminal proceedings over cases of human trafficking committed in Ukraine;
3) recruitment, transportation, transfer, harbouring or receipt of a person have been added as denoting human trafficking;
4) explanation of such elements of the crime as “exploitation” and “vulnerability”;
5) liability is differentiated for trafficking in small or underage children;
6) the explanatory note stipulates that “Liability for recruitment, transportation, harbouring, transfer or receipt of a small child or minor under this article shall be imposed regardless of whether such actions were committed with the use of deception, blackmail or the vulnerability of the said persons, or with the use of the threat or use of force, through abuse of office, or by a person on whom the victim was financially or otherwise dependent”
The new version of Article 149 demonstrates that Ukraine has complied with its international commitments regarding criminalization of human trafficking, and domestic legislation has become more in line with international. While the new norm somewhat deviates from traditional rules for formulating norms of the Criminal Code, it is more complete and workable than that which it replaced.
With regard to Article 303 of the Criminal Code, it should be noted that this new version decriminalizes prostitution. Liability for engaging in prostitution is thus only imposed by the Code of Administrative Offences (Article 181-1), i.e. liability is administrative, not criminal. At present in Ukraine there is criminal liability only for “Drawing a person into prostitution or coercing the person into prostitution with the use of deception, blackmail or the vulnerable state of the person, or by means of the threat or use of force, or the exploitation of the prostitution of others”. The norm envisages greater liability if these actions are in respect to a minor, and even greater where a small child is involved. Furthermore, the explanatory note clearly states that: “Liability for engaging a small child or minor in prostitution, or coercing them into prostitution under this article shall be imposed regardless of whether such actions were committed with the use of deception, blackmail or the vulnerability of the said persons, or with the use of the threat or use of force, through abuse of office, or by a person on whom the victim was financially or otherwise dependent”
6. Government policy and coordination of anti-trafficking measures
During 2006 the text was being agreed within profile groups and departments of a draft Government anti-trafficking programme. In April 2006 a Government Strategy for such a programme was approved, however the actual programme did not actually reach approval stage despite the fact that the strategy is for the years 2006-2010. It was approved by a Cabinet of Ministers Resolution from 7 March 2007 in a much reduced form.
As a result, the Ukrainian Government did not provide a report on its activities in combating human trafficking for that year. In general, access to information concerning plans and results of implementation of government policy in this area is becoming problematical. Government bodies do not avail themselves of modern methods of disseminating information such as the Internet.
An analysis of the organizational and administrative measures envisaged by the Government anti-trafficking programme for 2006–2010 makes it possible to predict both positive results and certain problems which are already becoming clear. Among the problem areas we would point out the coordination and management of the implementation of programme measures; the financing of these measures; adherence to human rights principles when carrying the measures out; the lack of enough qualified specialists who can deal with implementation, financing, as well as monitoring how well the programme is implemented, etc.
It is worth considering this in more detail. We are not dealing here with coordination of the measures. The previous programme placed this responsibility on an inter-departmental Coordination Council created (in accordance with item 1 of the Comprehensive Programme) attached to the Cabinet of Ministers and under the management of the Deputy Prime Minister on Humanitarian Issues. The inter-departmental group was made up of top figures (at the level of deputy ministers and heads of departments) of the profile ministries and departments. International and nongovernmental organizations were invited in an observer capacity. Permanent regional commissions were also formed for coordinating efforts and exchanging information on anti-trafficking measures. It would have been sensible to continue the activities of these institutions during the period of implementation of the programme. However this remains optional, at the discretion of the Government.
Another problem lies in the funding of the Comprehensive Programme measures. As was the case with the previous programme, special government funding has not been allocated for its fulfilment. Instead financing is supposed to come from the ministries with this requiring internal redistribution of ministry budgets and presents a fair number of difficulties. Bearing in mind that the priority for the Ministry for Family, Youth and Sport is the last direction in which most of the funds are allocated, it would be useless to hope for a great deal of attention from the ministry to fulfilling the programme and allocating sufficient funds from their own budgets.
Here one can cite an address given by the Minister for Family, Youth and Sport at a briefing after the signing of the Resolution of the Cabinet of Ministers affirming the Government anti-trafficking programme for 2006–2010. On 7 March 2007 he said that this was the first such programme in Ukraine, whereas it is in fact the fourth.
Scrutinizing the programme, one sees that the government is shifting responsibility for many measures onto nongovernmental and international organizations. They are involved in carrying out 11 items out of the 30. The role of nongovernmental organizations in implementing the anti-trafficking programme is vital, and is even stressed in a separate item of the programme which states that the Programmes tasks include “cooperation with civic and international organizations and funds carrying out anti-trafficking work”. Nongovernmental organizations, according to the programme are to play a role in implementing the following measures:
1) Analyzing legislative acts on anti-trafficking issues and where necessary submitting proposals to the Cabinet of Ministers on amendments to them;
2) Monitoring domestic legislation with regard to its compliance with international norms on combating human trafficking and, should this be required, proposing amendments to the Cabinet of Ministers;
3) Creating and ensuring the functioning of working expert groups within the permanent regional commissions on exchange of information on combating human trafficking and coordinating anti-trafficking efforts;
4) Organizing training seminars for civic servants on combating trafficking in children and on eliminating the worst forms of child labour;
5) Ensuring training and educational work among diplomatic service personnel on anti-trafficking issues, building international cooperation in this area, as well as in providing support and protection for victims of such crimes;
6) Making a series of theme-related television and radio programmes, introducing in electronic and printed media outlets separate sections for placing information about jobs in demand on the domestic employment market, as well as about the consequences of illegally going abroad to find work;.
7) Providing Ukrainian nationals who have fallen victim to human traffickers with legal assistance in returning home;
8) Assisting Ukrainian trafficking victims in seeking work and vocational training;
9) Carrying out monitoring and assessment of the work of rehabilitation centres for trafficking victims and centres of socio-psychological rehabilitation for children;
10) Ensuring coverage in the media of anti-trafficking measures and of help provided to victims of such crimes;
11) Running an annual competition among media outlets and nongovernmental organizations on creating social advertising aimed at combating human trafficking and providing services to trafficking victims;
At the same time nongovernmental organizations themselves run up against a number of significant problems. This involves in the first instance legislative provisions for their activities, financing, help from government structures and bodies of local self-government, as well as funding for NGO programmes.
Ukraines Budget Code contains fairly discriminatory provisions allowing for funding from the State budget of only some organizations. For example, pursuant to Article 87.9 of the Code, the following may receive State support: civic organizations with nationwide status for the disabled or War veterans; government programmes and measures related to children, youth, women and the family; government support for youth civic organizations in carrying out programmes on a national scale, and measures related to children, youth, women and the family. This is thus an infringement of the rights of citizens who have formed various civic organizations registered in accordance with the Civil Code and the Law on citizens associations.
The provision on social commissioning has yet to be drawn up. This means that civic organizations involved in implementing important government programmes are not funded from the State budget.
A major shortcoming in work on combating human trafficking is coordination and monitoring of such work. This has been repeatedly pointed out in studies and assessment of practical experience. It is for this reason that civic and international organizations have begun lobbying for the creation of an office of National Coordinator or that of Rapporteur on combating human trafficking in Ukraine. At present there is debate as to which office would be better. The OSCE Project Co-ordinator in Ukraine has devoted particular attention and effort to creating the office of National Coordinator, yet to date no office has been formed.
Protection for victims and reintegration
Representatives of both nongovernmental organizations and government bodies see a major problem in the lack of any mechanism for returning trafficking victims from abroad. Furthermore, those who return often have serious problems with their health and this must be taken into consideration in further communication and work with them. There is psychological damage which law enforcement personnel should also bear in mind when investigating the case.
Victims mainly receive help from international and nongovernmental organizations. In 2006, for example, the International Organization for Migration [IOM] assisted 937 people. The destination countries where most of the trafficking victims returned from were Russia, Turkey, Poland, the United Arab Emirates, Italy and others. The most common forms of exploitation were in the sex industry (596) and labour exploitation. (319).
Victims of human trafficking, their relatives or friends also approach the La Strada – Ukraine Centre, as do victims of domestic or other forms of violence. In 2006 199 people were provided with social assistance (135 women and 64 men).
In terms of types of assistance, most often humanitarian aid was needed (basic necessities, clothing, medicine, food, etc) ((27%). We also provided consultations (21%); helped look for people who had disappeared abroad (12%), gave psychological assistance and support (10%), etc. in almost every case a person needs different types of assistance and the involvement of different structures.
The work of Ukrainian diplomatic institutions
As far as Ukrainian diplomatic offices abroad are concerned, the normative provisions for such embassy activity are adequate however the work is not happening. According to experts, the attitude people have to embassies and their lack of confidence that they will get any assistance needs to change. There need to be at least two people in each embassy who deal with this area, and their powers should be broadened, especially as regards repatriation and making this possible. There must also be coordination of activities between representatives of Ukrainian foreign representations and law enforcement agencies in a given country. The Ukrainian foreign representations should hold leaflets and information with addresses, telephone numbers, and a list of the services that nongovernmental and international organizations both in the other country and in Ukraine can provide to help. This will help Ukrainian nationals know who to turn to, and the embassy personnel to know where to refer them. To achieve this, mechanisms for cooperation between embassy and consulate staff on the one hand, and nongovernmental organizations on the other need to be established. These NGOs carry out a huge range of types of work on trafficking prevention and helping victims and are de factor important players in implementing policy, yet they are often treated in a superior manner and as secondary parties in the process. Relations and cooperation between government and nongovernmental organization are generally based on personal contacts and are not backed up by the relevant legal provisions.
We thus see that within the country, despite there being the necessary legal provisions, the administrative and organizational level of work in combating human trafficking is suffering. There is virtually no coordination of the work of various government institutions and nongovernmental and international organizations. There are problems in Internal Affairs bodies with poor staffing and material and financial resources, and changes are needed in MIA and State governance. One of the steps in overcoming such problems would be to draft and adopt a comprehensive anti-trafficking law. The opportunities and importance of such work has on many occasions been the subject of discussion at various conferences and many experts have supported such a law. The work has, however, not moved beyond words.
Ukraines international legal cooperation on combating human trafficking
In 2005 Ukraine signed the European Convention on Action against Trafficking in Human Beings however by the end of 2006 this had still not been ratified. One reason for this was the fact that ratification of the Convention will require substantial review of Ukrainian legislation since the Convention envisages, among other things, the imposition of criminal and administrative liability for legal entities.
This approach is not presently used in the Ukrainian legal system. For example, according to current legislation, in particular criminal, the perpetrator of a crime is a physical legal accountable person who committed the offence at an age at which, according to the Criminal Code, he or she bears criminal liability. This means that only physical persons can be perpetrators of a crime, and not legal entities. In the case of criminal acts committed within the work of a legal entity, liability is held by the individual who actually committed these acts. Ukrainian legislators may not, therefore, impose criminal liability on a legal entity for human trafficking or concomitant crimes since this runs counter to Ukrainian criminal law principles. These principles were, admittedly, formulated back in Soviet times and they fail to meet modern demands.
Administrative liability for human trafficking elicits ambivalent opinions since current administrative legislation in Ukraine does not provide a general definition for perpetrator of an administrative offence and does not even use such a term. In the Code of Administrative Offences [CAO] the term “osoba” [“person”] is used, without clear indication as to whether a physical person is meant or a legal entity [yurydychna osoba]. Outside the framework of the CAO there is a fairly large number of norms which impose liability on legal entities for committing unlawful behaviour. Although such actions have not been added by the legislators to the list of administrative offences, and liability for them is not titled administrative, they have many features in common.
The Convention ratification documents are with the Ministry of Justice and have yet to be submitted for review to the Verkhovna Rada.
The Council of Europes Convention follows to a large extent the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime however it takes into consideration specific features of its region and refines some provisions.
The sphere of the Conventions application, for example is broadened with it covering all forms of human trafficking, national or international, whether or not linked with organized crime. It initiates a mechanism for identifying victims of human trafficking, has provisions on the need to criminalize the use of services of a victim of human trafficking and conduct relating to travel or identity documents, and sets down provisions on coordinating efforts in combating human trafficking and preparing a mechanism for monitoring implementation of the Convention.
Among other important documents we would mention the process of preparation for ratification of the European Convention on the Legal Status of Migrant Workers. Its ratification will end the final cycle towards Ukraine becoming a Contracting Party. This will in turn make it possible at the legislative level to fix human rights guarantees for Ukrainian nationals abroad and will help to resolve problems linked with labour migration.
During 2006 Ukraine signed the following international agreements which have bearing on the issue of human trafficking:
· Memorandum on cooperation between the Prosecutor General of Ukraine and the Prosecutor General of the Federal Republic of Brazil on fighting trans-national crime;
· Protocol between the Administration of the State Border Guard Service of Ukraine and the Border Guard Service of the Republic of Moldova on exchange of information from 21.11.2006;
· Agreement between the Cabinet of Ministers of Ukraine and the Government of Denmark on technical and financial cooperation from 09.11.2006;
· Protocol on introducing amendments to the Administrative Accord on applying the Agreement between Ukraine and the Czech Republic on social provisions, from 19.10.2006;
· Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Bulgaria on cooperation with regard to border issues from 25.09.2006;
· Memorandum on cooperation between the Prosecutor General of Ukraine and the Prosecutor General of Montenegro on combating trans-national crime and laundering of the proceeds of criminal activity, from 21.08.2006;
· Protocol between the Cabinet of Ministers of Ukraine and the Government of Romania on introducing amendments and additions to the Agreement between the Cabinet of Ministers of Ukraine and the Government of Romania on conditions for bilateral travel, signed in Kyiv on 19.12.2003 from 04.07.2006;
· Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on procedure for crossing the State border between Ukraine and Russia by residents of border districts of Ukraine and the Russian Federation;
· Protocol No. 2 to the Memorandum of mutual understanding between the Government of Ukraine and the Government of the United States of America on assistance in law enforcement issues from 20.03.2006;
· Memorandum on cooperation between the Prosecutor General of Ukraine and the Prosecutor General of the Republic of Serbia on combating trans-national crime and laundering of the proceeds of criminal activity, from 01.03.2006;
· Memorandum of mutual understanding between the State Committee of Ukraine on Financial Monitoring and the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) on cooperation in combating the legalization (laundering) of the proceeds of criminal activity and financing of terrorism from 24.02.2006;
· ; The Ministry of Internal Affairs took part in drawing up and signing a decision of the council of CIS member states on creating a database of people who have committee human trafficking offences;
· On 25 November 2005 an Agreement was signed in Moscow on cooperation between the members states of the CIS in combating trafficking in human beings, human organs or human tissue. The agreement was signed by Armenia, Azerbaijan, Belarus, Georgia, Kyrgyzstan, Moldova, Russia, Tajikistan and Ukraine and came into force in 2006.
· On 27 November 2006 Agreements were initialled in Helsinki with the European Union on readmission and liberalization of visa requirements. The agreements are scheduled to be signed on 18 June 2007 at the EU-Ukraine summit. The agreement on liberalization of visa requirements will come into effect after being ratified by the countries parliaments. The document envisages that decisions on whether or not to issue a visa will be taken within 10 days and a reduction in the number of documents needed. In addition, the agreement allows for liberalized criteria in issuing multiple entry visas for many groups of people, for example, close relatives of EU citizens, lorry drivers, businesspeople, students, journalists and members of official delegations.
As of the end of 2006 the Ukrainian government had concluded bilateral work agreements with the governments of Armenia, Azerbaijan, Belarus, Latvia, Libya, Lithuania, Moldova, Poland, Portugal, the Russian Federation, Slovakia and Vietnam. It should, however, be noted that the agreements are of a purely declarative nature since applications are not presented from the foreign statements regarding workers (they need to specify the number, specialization, etc). furthermore, some of these countries (for example, Belarus, Moldova and the Russian Federation) have problems similar to those in Ukraine – a high level of unemployment and poorly developed economy which places in question the need for Ukrainian workers on their territory. However in this direction, the efforts of the Ukrainian side encounter certain resistance from foreign partners.
Programmes of international and civic organizations
Ukraine continues to work with international organizations and other governments in the area of international technical assistance in combating human trafficking. In this sphere the following organizations are actively working in Ukraine: the International Organization for Migration, the ILO International Programme for the Elimination of Child Labour, the International Womens Human Rights Centre La Strada – Ukraine, the Organization for Security and Cooperation in Europe and the British Council. Assistance in implementing programmes are also provided by democratic countries such as Canada, Finland, France, Greece, Italy, the Netherlands, Norway, Sweden, Switzerland, the USA and others, both through their diplomatic missions, and via civic and international organizations. We name here some of the programmes carried out in 2006.
1. The La Strada – Ukraine Centre, together with the OSCE Project Co-ordinator in Ukraine and the IOM Mission in Ukraine, were designated national partners for implementing the Danish Programme against Human Trafficking in the countries of Eastern and South-Eastern Europe for 2006-2008 which is supported by the Danish Ministry of Foreign Affairs; „Reinforcing the efforts of governmental and civic organizations in response to the increasing need to prevent human trafficking” and “Reinforcing action on preventing human trafficking” with the support of the Finnish Embassy in Ukraine (July 2006 – May 2007) and the Norwegian Church Organization (August – December 2006). As part of these projects, the following received support: a group of educators; a National help line on human trafficking issues; preparation and publication of information and handbook material.
2. Another programme: “Capacity building of local action committees on prevent trafficking in children, involvement of the committees in monitoring child labour and promoting reintegration of victims of human trafficking in two pilot regions of Ukraine – the Donetsk and Kherson regions” (November 2005 – December 2006). The project had the support of the International Programme for the Elimination of Child Labour and was aimed at creating a system for monitoring child labour and implementing this at both regional and national level.
3. „Development of a national system for assisting child victims of human trafficking and sexual exploitation” (January 2005 – August 2006), supported by the Italian Ministry of Foreign Affairs, the International Organization for the Eradication of Commercial Sexual Exploitation of Children (ЕСРАТ), the UN Interregional Crime and Justice Research Institute (UNICRI). This project is made up of many parts including the analysis of current legislation, preparation of a team of trainers, development of a training course, running multidisciplinary roundtables and training seminars in Ukrainians regions, etc.
4. A joint project on combating human trafficking in countries of South Eastern and Eastern Europe with the support of the KEPAD Organization (Greece) involving preparing a study on the human trafficking situation and existing legislation in the countries taking part in the project (“Ariadna” Network)..
5.”Support for combating human trafficking” – the DOEN Foundations (Netherlands).
6. “Organizing social assistance for victims of human trafficking” (May – September 2006). The project was supported by the Swiss religious organization COM and was aimed at organizing and providing medical, psychological, legal, humanitarian and other forms of assistance to victims.
More than 60 civic organizations in Ukraine provide assistance to victims of human trafficking, however they do not have adequate funding for their activities.
We should also mention the most important publications in 2006 aimed at disseminating information among various professional groups and training specialists for measures to prevent human trafficking. They included: the handbook “Preventing human trafficking and the exploitation of children” (in Ukrainian and Russian); a training video with the same title and also in Ukrainian and Russian; a workbook for school students “Know and defend your rights”; a handbook “Basis principles for countering child labour in Ukraine”; an information and analytical collection “Combating human trafficking: the legislative acts of other countries”; the study “The problems experienced by children of labour migrants: an analysis”; “How to organize telephone help lines on preventing human trafficking”; a theoretical and practical publication “Combating trafficking in children and the commercial sexual exploitation of children (main provisions of international and domestic legislation”) for specialists working to protect childrens rights (Ukrainian and English); a handbook for running training seminars “Preventing trafficking in children and commercial sexual exploitation”.
An important event was the Regional Forum of Nongovernmental Organizations “Prevention of human trafficking for safe migration. The role of nongovernmental organizations in exercising public control and providing assistance”, which took place in Kyiv from 26-27 September 2006. This regional forum is an annual event organized by the international association “La Strada” to share experience, raise the level of expertise and develop joint strategies for the work of nongovernmental organizations in countries of origin, transit and destination. The forum was attended by 56 people from 29 countries, as well as 28 representatives of Ukrainian nongovernmental organizations and government structures. The participants signed a statement regarding the need for government bodies to consolidate efforts on combating human trafficking.
2006 also saw the involvement of renowned artists in preventive campaigns against human trafficking. For example, from 20 June to 31 August television channels broadcast 2 video clips with the well-known Ukrainian singer, winner of Eurovision 2004, Ruslana. The video clips were sponsored by the OSCE and addressed the issue of human trafficking. They gave the phone number for the National Help Line on preventing human trafficking. During the period when the clip was shown, the help line 8 800 500 22 50 received 1013 calls from people who had found out about it from the clip. The advertising campaign was run by the popular group Okean Elzy”
7. Conclusions and recommendations
There is still no law in Ukraine on social protection for Ukrainian nationals abroad. Norms in current legislation against swindlers are not applied enough. There is virtually no functioning system for protecting witnesses, nor is there any legal protection against arbitrary behaviour by the authorities, bureaucratic red tape and non-payment of wages. At the same time, it is extremely difficult to prove the crime of “human trafficking”, and therefore to punish the perpetrators.
The failure to safeguard peoples right to protection from crime is demonstrated by the following::
· Staff of MIA agencies lack skills for working on human trafficking cases;
· Insufficient attention is given to training MIA staff on behaviour and action needed in human trafficking situations (this applies both to initial training and to higher educational institutes).
· The responsibility for human trafficking situations is shifted onto the victims;
· There is no coordination between the work of different law enforcement agencies;
· Difficulties in the examination of such cases in court;
· Lack of sufficient information about the governments activities in this area;
· Insufficient legal information on human trafficking issues;
A major problem is the stigmatization of human trafficking victims in society.
Regarding assistance to victims of human trafficking, the following problems can be highlighted:
- The government is failing to fulfil Ukraines international commitments even as far as the minimum standards for assisting victims of trafficking are concerned.
- It is effectively impossible to receive assistance, short- or long-term shelter where needed, medical or socio-psychological assistance. Some of the reasons for this are:
the lack of an extended system of institutions for victims of trafficking;
the possibility, pursuant to the Standard provision on centres of socio-psychological assistance approved by a Cabinet of Ministers Resolutions, of only providing assistance to people under 35 which is in breach of the Constitution, the Law “On prevention of violence in the family” and the principles of human rights protection. Refinement is needed not only of the Law “On prevention of violence in the family”, but also of a whole range of other laws and normative legal documents;
the lack of social housing and of the possibility to live separately;
the need to have registration in order to get into a shelter (for example, in Kyiv). In Chernihiv we learned that there is no such requirement however when the shelters and centres are financed by the local authorities, prosecutors offices, or Control and Audit Department can demand registration in order to get help. This also violates peoples right to receive assistance, making this dependent on place (city, region) of residence and not on the needs of the person.
1) Ratify the European Convention on Action against Trafficking in Human Beings and introduce amendments to legislative acts bringing them into line with this Convention;
2) In order to step up anti-trafficking measures within Ukraine, introduce amendments to the Criminal Code, criminalizing the buying of sexual services from children and adults;
3) Development a system of compensation for victims of human trafficking;
4) In order to develop effective strategy on countering human trafficking, combine legal measures and law enforcement activities with measures aimed at prevention and coordination, as well as at helping victims;
5) Develop and introduce indicators for estimating the prevalence of human trafficking in the country and keep statistical records of victims;
6) Introduce amendments to the Criminal Code by imposing liability for using the services of children engaging in prostitution and for preparing for ones own use, storing and using child pornography;
7) Revive a nationwide coordinating structure on anti-trafficking measures;
8) Create the office of National Coordinator on combating human trafficking, taking into consideration the experience of countries which have already introduced such an institution;
9) Consolidate cooperation and coordination of the efforts of both the government and civic sector on human trafficking issues, at local, regional, national and international levels;
10) Revitalize the work of permanent regional commissions on prevention of human trafficking (at the regional level);
11) Prepare a mechanism for providing regular information to the public about measures taken by the government on combating human trafficking, as well as their results and their real impact on the situation;
12) Develop a national system for providing assistance to victims, involving the government and nongovernmental organizations both at local and national level in order to ensure proper identification and referral of victims and that they receive the help they need;
13) Establish and introduce a system for returning Ukrainian nationals from abroad at the States expense;
14) Run awareness raising campaigns about human trafficking;
15) Support the work of help lines in order to warn potential migrants of the risks they may encounter going abroad;
16) Prepare criteria for identifying human trafficking victims in order to ensure they receive victim status;
17) Make changes to the procedure for questioning of a victims and the latters testimony in court by using videoed evidence;
18) Draw up and add to the curriculum for postgraduate studies of educational workers, personnel of social services and of the law enforcement agencies a special course on preventing ill-treatment, sexual exploitation of children, human trafficking and other forms of violence;
19) Run training courses, seminars and conferences on human trafficking issues for representatives of governmental and nongovernmental organizations, including for people working in the tourist industry;
20) Carry out sociological research to ascertain how aware the public are about human trafficking issues.
 By K.B. Levchenko, O.A. Kalashnyk and M.V. Yevsyukova, International Womens Human Rights Centre “La Strada – Ukraine”
 Domestic violence is not only a human rights violation. It has also been recognized as a factor pushing women into the clutches of human traffickers. Staff of the Womens Consultation Centre, an NGO which runs a help line for potential trafficking victims in Dnipropetrovsk told Amnesty International that around 50% of women trafficking victims whom they have helped had suffered from violence at home before falling victim to traffickers. (from an AI report “Domestic violence: accusing the victim” http://www.helsinki.org.ua/index.php?id=1164375558). The International Womens Human Rights Centre “La Strada – Ukraine” received so many appeals regarding domestic violence on its National help line for combating human trafficking that it was forced in 2004 to open a separate help line with a different number exclusively on issues regarding prevention of violence and protection of childrens rights. More detail can be found about this issue in the section “Main human rights problems in cases of domestic violence”..
 From information in a response from the First Deputy Head of the State Judicial Administration to a deputy appeal from National Deputy K.B. Levchenko (№ 133-07-03/3 from 06.02.2007).
 Questions and answers about the commercial sexual exploitation of children – ECPAT information pamphlet – Bangkok, 2001, p. 6.
 301 § 3 imposes liability for the same import, production etc of pornographic items if done repeatedly, by an organized gang, as well as where minors have been forced into taking part in producing such material; 156 § 2 imposes liability for corrupting a small child, or where a parent or person replacing them is guilty. (translator)
 It is worth mentioning that the given Protocol is based on “Human Rights Standards for the Treatment of Trafficked Persons”, drawn up by nongovernmental organizations – the Global Alliance against Traffic in Women”; the Foundation against Trafficking in Women [the Netherlands] and the International Human Rights Law Group (USA). They are aimed at promoting respect for the human rights of individuals who have been victims of trafficking, including those who have been subjected to involuntary labour and/or slavery-like practices. They set out the rights of trafficked persons to legal defence, humanitarian aid and compensation for material and moral damages, as well as to rehabilitation. The standards provide a stimulus for turning to the authorities and appearing as witness. The document is essentially an appeal to all nations to guarantee victims:
- freedom from persecution;
- confidential medical and psychological assistance;
- qualified interpreters during the investigation and court proceedings, or at public hearings;
- free legal aid;
- that their past will not be used against them, their family or friends (i.e. the accused must not be able to make use of the fact that the woman worked in the sex industry);
- confidential tests for AIDS only with the consent of the individual in accordance with the World Health Organization regulations, taking into account international consultations regarding AIDS and human rights provisions (quoted by K.B. Levchenko in “Human trafficking” and “Trafficking in women” Problems in formulating terminology and contemporary documents – Visnyk, Department of the MIA, Kharkiv 2000, No. 11 .
 “Human trafficking” and “Trafficking in women” Problems in formulating terminology and contemporary documents – Visnyk, Department of the MIA, Kharkiv 2000, No. 11.
 According to information from the national help line on avoiding human trafficking attached to La Strada – Ukraine
 The first government anti-trafficking programme adopted in 1999 (Cabinet of Ministers Resolution No. 1768 from 25 September 1999) was titled “Programme for trafficking in women and children”. Projects run by civic organizations at that time were also based exclusively on prevention of trafficking in women. For example, La Strada – Ukraine had a programme on “Prevention of trafficking in women in countries of Central and Eastern Europe”. It was only in 2000 that La Strada moved away from confining its scope to only women.
 The research was organized within the framework of the Danish Programme against Human Trafficking.
 This refers to the Comprehensive programme for combating human trafficking for 2006 – 20010 (on the Cabinet of Ministers Resolution No. 766 from 5 June 2002).
 BBC Monitoring, source: UNIA№ news agency, Kiev, 7 Mar 07. «UKRAINE ADOPTS ANTI-HUMA№ TRAFFICKING PROGRAMME: The Cabinet of Ministers of Ukraine has adopted a state programme for combating human trafficking until 2010. Family, Youth and Sports Minister Viktor Korzh said this at a news conference today. "The programme designed to be implemented by 2010 provides for awareness campaigns and events to be carried out in cooperation with NGOs, foreign missions and the Interpol," he said. He said Ukraine has not had a state programme for combating human trafficking before. "To date, this problem has gained momentum, therefore it should be addressed at the government level," he said. He added that the destiny of thousands of Ukrainian children adopted by foreigners remains unknown. "Diplomatic and consular offices cannot trace these children," he said. Korzh said that the programme provides for broader cooperation between the Foreign Ministry and the Interior Ministry and for the creation of social rehabilitation centres for people who fell victim to human trafficking.