25. TRAFFICKING IN HUMAN BEINGS AS A VIOLATION OF HUMAN RIGHTS

[1]

The overall state of the situation. Statistics. New trends. Trafficking in human beings keeps a burning problem for Ukraine. During January 2000 – June 2012, 8,676 persons that suffered from trafficking in human beings, received assistance from the Agency of the International Organization for Migration in Ukraine (during January-June 2012 – 510 persons). During this period, the „La Strada – Ukraine» Center provided assistance to more than 1,500 persons (during January-June 2012 – 32 persons) that suffered from trafficking in human beings and violence. During January-June 2012, officers of the bodies of internal affairs discovered 109 crimes related to trafficking in human beings. At that, the very problem of trafficking in human beings undergoes changes, what created complications for finding victims and rendering them assistance, for conducting prevention work, as well as for effective investigation of such cases. According to the data of the International Organization for Migration in Ukraine, there is a certain decrease, in particular, in the number of victims that come back from the countries of the European Union (5.5% in January-June 2012, 18% in 2011, compared to 28% in 2010). Russia and Poland are becoming the most popular destination countries for Ukrainians. The cases of internal trafficking in human beings constitute tp to 8%; victims of these crimes are mostly children and young girls, who are being exploited in beggary and in commercial sex. In most cases Ukraine is becoming more of a destination country for trafficking in human beings – for the purpose of labor exploitation in agriculture and at construction. In 2010, 8 victims were found, in 2011 – 23, in January-June 2012 – 54. Of the foreign citizens that suffered from trafficking in human beings, 43% are citizens of Moldova. The number of cases of labor exploitation is growing. For instance, 83% persons that received assistance in January-June 2012 (more than 2/3 in 2011) suffered from trafficking in human beings with the purpose of labor exploitation, and 10% (25% in 2011) suffered from sexual exploitation[2].

According to the information of the Ministry of Social Policy, as of October 2012 the status of the person that suffered from trafficking in human beings was granted to 7 persons.

Information about detention of criminals engaged in the crime of trafficking in human beings and occurrences opened under article 149 of the Criminal Code of Ukraine is rarely covered by mass media. Moreover, information about such cases brought to court, results of court proceedings, sentences passed in these cases and those guilty be put to justice, etc. is virtually non-existent in the informational space. Lack of positive information does not promote the victims’ desire to cooperate with the law-enforcement agencies and creates distrust in the just resolution of such cases.

Beyond that, erosion of the institutions and structures that have to organize work on counteraction to trafficking in human beings, in particular, of the Ministry of Internal Affairs and of the Ministry of Social Policy, in 2010 – 2012 can lead to growing of negative trends in the next 2-3 years.

New regulatory acts. During the first half of 2012, the Cabinet of Ministers adopted a whole series of statutory instruments as implementation of the Law of Ukraine „On Counteraction to Trafficking in Human Beings»:

1. On the National Coordinator in the sphere of counteraction to trafficking in human beings (Decree of the Cabinet of Ministers of Ukraine as of January 18, 2012 No.29[3]).

2. On Approval of the State Targeted Social Program on counteraction to trafficking in human beings for the period till 2015 (Decree of the Cabinet of Ministers of Ukraine as of March 21, 2012, No. 350[4]).

3. On Approval of the Provision on formation and operation of the Unified State Register of crimes of trafficking in human beings (Decree of the Cabinet of Ministers of Ukraine as of April 18, 2012, No.303[5]).

4. On Approval of the Procedure of establishment of the status of the person that suffered from trafficking in human beings (Decree of the Cabinet of Ministers of Ukraine as of May 23, 2012, No.417[6]).

5. On Approval of the Procedure of payment of financial aid to persons that suffered from trafficking in human beings (Decree of the Cabinet of Ministers of Ukraine as of July 25, 2012, No. 660[7]).

6. Procedure of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings (Decree of the Cabinet of Ministers of Ukraine as of August 22, 2012, No.783[8]).

The adopted documents specify the provisions of the Law and determine the ways for its implementation. The major positive moments include: establishment of the status of the persons that suffered from trafficking in human beings makes it possible to receive assistance, including financial, from the state; different state structures’ responsibility for activities in the sphere of provision of assistance to the victims is determined; separate provisions cover provision to assistance to children and foreign citizens.

In a compliance with the adopted documents, the Ministry of Social Policy is authorized as the national coordinator in the sphere of counteraction to trafficking in human beings. But the corresponding changes were not reflected in the Provision on activities of the Ministry, which was approved by the Order of the President as of April 6, 2011, No. 389/2011, although since it was approved amendments to the Provision were made three times already[9].

The introduced National mechanism of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings covers only one direction of counteraction – protection of the victims and provision of assistance to them while such directions as prevention, combating, or coordination are left disregarded.

The documents mentioned above were adopted with significant delay, what shows that observance of the one-month time period determined in the Law is at least unrealistic.

Moreover, setting a one-month time period contradicts the Decree of the Cabinet of Ministers «On securing of public’s participation in formation and implementation of the governmental policy», in compliance with which the drafts of the regulatory acts have to be obligatorily brought to public discussion. The time period for such discussion must be at least one month. Obviously, it also takes time to prepare these documents, as well as to update them based on the results of the public discussion. As the practice shows, it takes about 4 to 6 months, which has to be necessarily reflected in the law.

In the Law of Ukraine «On country-wide program «National action plan on implementation of the UN Convention on the Rights of the Child till 2016» in the section on elimination of trafficking in children, sexual exploitation, and other forms of cruel treatment of children, the annual action plan mentions only conducting of prevention work against cruel treatment of children in families in complicated life circumstances. In 2011 and 2012, no money is allocated in the State budget for implementation of the objectives of the corresponding section of the Plan.

An obvious example of restriction of women’s rights under the guise of combating trafficking in human beings is the draft of the Law on making amendments to certain legislative acts of Ukraine (concerning limitations in application of assisted reproductive technologies) No. 8282[10], which is directed at counteraction to trafficking in human beings by means of limiting women’s rights despite the obligations Ukraine has undertaken in compliance with article 16 of the UN Convention on the Elimination of All Forms of Discrimination against Women[11]. On October 16, 2012, it was adopted by the Verkhovna Rada. Application of the practices of combating the crime of trafficking in human beings by means of limiting citizens’ rights is not a new, but still inadmissible situation for Ukraine[12]. The Special Commissioner in the issues of counteraction to trafficking in human beings, especially women and children, mentions this in almost every presentation and in reports as does each report of the GRETA monitoring group, which conducts monitoring of observance of the Council of Europe Convention on Action against Trafficking in Human Beings, and all directives of the European Union. This principle of work is also fundamental in the Law of Ukraine „On Counteraction to Trafficking in Human Beings». The provisions of the draft law No.8282 are repressive with a high degree of possible collateral, as it limits women’s reproductive rights after they reach a certain age.

Major problems of violation of rights of persons that suffer from trafficking in human beings. Article 17 of the Law of Ukraine „On Counteraction to Trafficking in Human Beings» determines that to secure observance of rights stipulated by the Law, persons that suffered from trafficking in human beings can be referred to one of the centers of social services for family, children and youth, the social service centers or the centers of social and psychological rehabilitation of children and shelters for children, in case when a victim is a minor. But, in compliance with the provisions of the specified institutions developed based on «Standard Provision on Center of social and psychological aid» (Decree of the Cabinet of Ministers of Ukraine as of May 12, 2004, No. 608), «Standard Provision on Center of social and psychological rehabilitation of children» (Decree of the Cabinet of Ministers of Ukraine as of January 28, 2004, No. 87) and «Standard Provision on Territorial Social Service Center (provision of social services) (Decree of the Cabinet of Ministers of Ukraine as of December 29, 2009, No. 1417), such category of persons like those who suffered from trafficking in human beings is not included in the list of persons that are entitled to receive services in these institutions. Besides, the monitoring results of institutions that render assistance those who suffered from domestic violence and trafficking in human beings conducted in June-October 2012 by the «La Strada-Ukraine» Center[13] prove there are actual problems with access to services for those who suffered from trafficking in human beings, and namely the limitation as to these persons’ age (up to 35 years of age), availability of registration at admitting to the centers of social and psychological assistance, etc. Besides, there are issues with identification of those who suffered from trafficking in human beings among the total number of clients (persons in difficult life circumstances) of the mentioned institutions. Experience of implementation of the referral mechanism for those suffered in the pilot oblasts[14] showed that as a result of trainings conducted and education of specialists that work in the mentioned institutions, the number of those identified as suffered from trafficking in human beings, is growing.

Another unresolved issue is concerning provision of assistance to victims of trafficking from other countries, satisfaction of their needs in protection and assistance during their stay in Ukraine.

There are no provisions on establishment of the rehabilitation and deliberation period for persons, concerning whom there are reasons to believe that they have suffered from trafficking in human beings, in the Law and in the corresponding statutory instruments, and this also leads to violation of the rights of the victims, especially citizen of other countries. It is considered expedient to include the mentioned provisions, as they are articulated in the key international documents, to the national regulations, taking into consideration the available experience of other countries where the rehabilitation and deliberation period has already become the established norm.

Despite the fact that the Law of Ukraine „On Counteraction to Trafficking in Human Beings» contains provisions concerning necessity to assess risks associated with the victim’s return to the country of origin (article 16 «Rights of the person that suffered from trafficking in human beings» and article 24 «Returning or retaining of the child that suffered from trafficking і children»), the regulatory documents that were adopted as a part of implementation of the law do not contain a clear procedure for conducting of assessment of such risks. Also, this procedure is not included in the provisions that guide the activities of the subjects that perform measures in the sphere of counteraction to trafficking in human beings.

There are complexities and violations during the process of compensation to the victims of the property, moral and physical harm they have suffered as a result of the committed crime of trafficking in human beings, as well. They include the investigators’ formal approach to explaining to the victims about their right to claim compensation; necessity to prove the fact of moral sufferings; remoteness of the expert centers and low number of attested court experts-psychologists; absence of the practice of international cooperation on protection of the property rights of citizens of Ukraine; the imperfect legislative mechanism for recovery of the compensation; inefficiency of article 1177 of the Civil Code of Ukraine concerning the state’s obligations to compensate losses to the victims, etc.[15].

The standards for rendering of services in the sphere of counteraction to trafficking in human beings, which have been developed and submitted to the Ministry of Social Policy by the group of experts-representatives of the state, non-governmental, and international organizations as early as in 2010, still have not been adopted.

International context. In the course of the Ukrainian state preparing for the second round of the Universal Periodical Review on human rights in the United Nations Human Rights Council, the non-governmental organizations of Ukraine prepared the topical reports. The questions of the state of counteraction to trafficking in human beings were included into the report of the Coalition of non-governmental organizations in the issues of promotion of the gender equality, counteraction to trafficking in human beings and domestic violence[16]. The international association «La Strada» together with the «La Strada – Ukraine» Center submitted a separate report in the issues of counteraction to trafficking in human beings[17]; the international organization ECPAT, to which the All-Ukrainian network against commercial sexual exploitation of children is a member, submitted the report on the issues of counteraction to commercial sexual exploitation of children, which included the topic of counteraction to trafficking in children[18].

In compliance with the Recommendations of the UN Committee on the Elimination of Discrimination against Women based on the results of consideration of the sixth and seventh consolidated report on implementation by the state of the UN Convention on the Elimination of Discrimination against Women, Ukraine had to present to the Committee its interim report on implementation of articles 31 (counteraction to trafficking in human beings) and 33 (representation of women). The „La Strada – Ukraine» Center, together with other NGOs, prepared the alternative report on the status of Ukraine’s implementation of article 31 and submitted it to the Committee[19]. The Final observations pointed out the policy’s negative aspects, and namely: (1) The core causes of trafficking in human beings are not being addressed, (2) Funding for shelters is still insufficient, (3) In general, the resources allocated for combating trafficking in human beings are inadequate, (4) The scope of international cooperation to bring the perpetuators to justice is insignificant. These observations are still valid, even after two years and a half. As of October 2012, both projects are yet to launch.

The four-year Council of Europe Action Plan for Ukraine (2011-2014) contains two projects related to the topic of counteraction to trafficking in human beings: Project 1.3.3 «Formation of a mechanism of prompt reaction to problems of persons in difficult living conditions, including prevention of domestic violence, combating human trafficking and gender discrimination through the creation of an All-Ukrainian smart line of prompt reaction» and Project 2.2.6 «Project to combat trafficking in human beings in Ukraine»[20]. As of October 2012, the projects have not been launched. But the delegation of the Council of Europe visited Ukraine to develop the project applications.

In June 2012, the European committee adopted the Strategy of elimination of trafficking in human beings for the period of 2012-2016. The International association «La Strada» greeted adoption of the Strategy and at the same time prepared the address to the European Commission, in which emphasized the necessity to put priority on the rights of victims over the issues of migration control, to expand opportunities for victims to receive compensation of the harm they suffered, to support activities of NGOs of different countries in this sphere[21].

In the spring of 2012, the UN Special Commissioner in the issues of counteraction to trafficking in human beings presented her annual report for the period from March 1, 2011, to February 29, 2012. It contains the recommendations to governments of the countries concerning improvement of activities on counteraction to trafficking in human beings[22].

In June 2012, the annual report on the activities concerning counteraction to trafficking in human beings by different states was presented. Ukraine was categorized as belonging to the second group, which means that the government takes measures to counteract trafficking in human beings, yet the efforts are insufficient. A separate paragraph is dedicated to recommendations for Ukraine concerning improvement of its activities in this sphere[23].

In 2012, Ukraine nominated 2 candidates for membership in the GRETA monitoring group, established to monitor implementation of the commitments taken by the states that participated in the Council of Europe Convention on Action against Trafficking in Human Beings. They were women who represented non-governmental organizations – Kateryna Levchenko, the President of the „La Strada – Ukraine” Center, and Elvira Mruchkovska, the head of the Association of citizens «Suchasnyk».

In the end of 2012, the GRETA monitoring group will start the process of assessment of implementation by Ukraine of the Council of Europe Convention on Action against Trafficking in Human Beings, which will continue in 2013. 

Weak institutional mechanism for prevention of trafficking in human beings. The course of the governmental policy and the commitments that Ukraine undertook in the sphere of counteraction to trafficking in human beings by signing a number of international and national documents, require strengthening of the activities in this sphere, as well as capacity building of the human resources of the authorized structures. Instead, we can observe weakening of the governmental mechanism for counteraction to this phenomenon. The new functions vested in the Ministry of Social Policy, in particular, concerning establishment of the status of a person that suffered from trafficking in human beings, the authority of the National Coordinator for the governmental policy in this sphere, and others, call for significant organizational and human resources support on both the central and regional levels. At the same time, according to the international standards, the structural subdivision that is responsible for counteraction to trafficking in human beings must be of the highest possible level to be able to effectively organize coordination and interaction between all involved structures and institutions.

In addition, the Department for combating cyber crime and trafficking in human beings in the Ministry of Internal Affairs was reduced to the Administration for combating trafficking in human beings and crimes against morals. In practice, all these changes cause difficulties in combating the crimes and distraction of officials to other activities, just as it was happening in 2005. 

Coordination of work in the sphere of combating trafficking in human beings, implementation of the gender policy, and counteraction to domestic violence were all performed through the Intersectoral coordination council in the issues of family, gender equality, demographic development and counteraction to trafficking in human beings, established in 2007. It was criticized for poor performance and, among other things, for lumping together too many issues and for lack of concrete response actions. The state programs on these mentioned issues expired in 2011-2012, so, in 2011-2012 this Council did not operate.

Initiatives of non-governmental and international organizations. Just like in the previous years, non-governmental and international organizations were active in implementation of the activities concerning prevention of trafficking in human beings and providing assistance to the victims of this crime.

The Center «La Strada – Ukraine» and the members of the National Trainers’ Network actively engaged in the prevention and educational activities in the sphere of counteraction to trafficking in human beings. Two hundred trainers from the Network were conducting events on concrete topics in 14 oblasts of Ukraine. During 6 months of 2012, they conducted 1,465 events for 44,111 participants (of them, 13,121 specialists and 30,990 persons from risk groups). 

In connection with Euro-2012, the soccer championship, which was held in Ukraine, several initiatives have been implemented focused on raising public awareness concerning the danger of trafficking in human beings and creating opportunities to get assistance in case of need: the national campaign «Red Card» (posters, billboards and city lights with well-known Ukrainian singers and athletes that providing the telephone number for the National hotline for the issues of counteraction to trafficking in human beings (Kyiv, Donetsk, Lviv, Kharkiv).

During the period when the matches of the final part of the European soccer championship were held in Ukraine, the “La Strada – Ukraine” Center extended the consulting hours for the National hotline for the issues of counteraction to trafficking in human beings and for the National hotline for prevention of violence in the family and protection of children’s rights, secured availability of English-speaking consultants, and extended the range of topics for consultations.

The OSCE projects coordinator in Ukraine was implementing the project «Extension of coverage of the National mechanism of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings in Ukraine». In cooperation with the Ministry of Social Policy, a number of activities were conducted with representatives of the oblast branches relating to implementation of the National mechanism of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings - in Chernivtsi, Khmelnytsky, Vinnytsia, Lugansk, Donetsk and Kharkiv oblasts. The work on identification and providing assistane to those who suffered from trafficking in human beings continued in the pilot regions of the National interaction mechanism. By the end of June 2012, in Donetsk and in Chernivtsi oblasts, representatives of the governmental entities, in cooperation with non-governmental organizations, conducted work with 528 individuals, 446 of which are still in the process of identification. All victims received medical, psychological, legal and other assistance, based on the results of needs assessment. The training for trainers was conducted in Lugansk, Chernivtsi, Kharkiv, Vinnytsia, Khmelnytsky and Donetsk oblasts, with the vision of creating regional teams of specialists from the entities working within the Interaction Mechanism.

In 2012, the mission of the International Organization for Migration continued its activities and implementation of its projects aimed at extension of coverage of the National mechanism of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings in the Autonomous Republic of Crimea, Dnipropetrovsk, Ternopil, Kherson and Lviv oblasts. Presently, based on the results of work in all five regions, the needs have been identified for the following steps:

• a need in methodological recommendations provided by the Ministry of Social Policy of Ukraine with detailed explanations concerning

- the procedure to establish the status of a person that suffered from trafficking in human beings,

- the national interaction mechanism,

- provision of material assistance for the victims

- identifying the specific local structures that are responsible for granting official certificates about the victim status;

• a need in the further in-depth training of the specialists in the entities within the interaction mechanism;
• a need to train new specialists in social work, who are presently being mass-recruited in each region to work as district inspectors;
• allocation of funds for the priority needs of the identified victims, for their transportation to the institutions that provide assistance, for work of additional specialists as needed, etc.

Recommendations contained in the report for 2011 are still valid for 2012. The status of their implementation is described in the table below.

Recommendations based on the results of the analysis of the situation in 2012.

               To the President of Ukraine:

1.         To make amendments to the Provisions on the Ministry of Social Policy of Ukraine as a coordinator in the sphere of counteraction to trafficking in human beings, in compliance with the adopted documents on counteraction to trafficking in human beings.

To the Cabinet of Ministers of Ukraine, central bodies of executive power:

2.            To make amendments in the Decree of the Cabinet of Ministers of Ukraine and to add activities in such directions as prevention of and counteraction to trafficking in human beings to the National mechanism of interaction between entities that perform measures in the sphere of counteraction to trafficking in human beings.

3.            To make corresponding amendments of the documents of the Cabinet of Ministers of Ukraine, in particular, the standard provisions on subjects of provision of assistance to persons that suffered from trafficking in human beings, and namely, centers of social and psychological aid, centers of social and psychological rehabilitation of children and social service centers so that to secure access to these services for persons that suffered from trafficking in human beings.

4.            To include into the regulatory documents provisions that would introduce and regulate establishment of the rehabilitation and deliberation period for persons, concerning whom there are reasons to believe that they have suffered from trafficking in human beings.

5.            To develop and approve the procedure for assessment of risks associated with the victims’ return to the country of origin.

6.            In 2013, to prepare and submit to the Group of Experts on Action against Trafficking in Human Beings (GRETA) information concerning the state of counteraction to trafficking in human beings in Ukraine.

   To the oblast state administrations:

7.            To develop regional programs on counteraction to trafficking in human beings, submit for approval to sessions of the regional councils and allocate necessary funding for their implementation.

   To international and donor organizations:

8.            To keep allocating resources for the programs for combating trafficking in human beings in Ukraine and providing assistance to the victims.

[1]  Was prepared by K.B. Levchenko, L.G. Kovalchuk, K.C. Cherepakha, O.K.Kalashnik, M.V. Yevsiukova, V.Mudryk. – The International Women’s Advocacy Center «La Strada – Ukraine». 

[2]  The data used was from the statistical and analytical materials of the Agency of the International Organization for Migration in Ukraine for the years 2010-2011 and the first half of 2012.

[3]  http://zakon2.rada.gov.ua/laws/show/29-2012-%D0%BF

[4] http://zakon2.rada.gov.ua/laws/show/350-2012-%D0%BF

[5]  http://zakon2.rada.gov.ua/laws/show/303-2012-%D0%BF

[6]  http://zakon1.rada.gov.ua/laws/show/417-2012-%D0%BF

[7] http://zakon2.rada.gov.ua/laws/show/660-2012-%D0%BF

[8]  http://zakon1.rada.gov.ua/laws/show/783-2012-%D0%BF

[9]  http://zakon2.rada.gov.ua/laws/show/389/2011

[10]  http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?pf3511=39973

[11]   On October 16, the Verkhovna Rada is planning to limit the women’s right to use the assisted reproductive technologies: http://facebook.com/lastradaukraine

[12]  In the international experience of combating trafficking in human beings, the strategies can be divided into the empowering and the repressive ones. The repressive strategies are the ones within which the measures implemented limit the human rights. For instance, strickter conditions of the visa regime, additional screenings for citizens at airports before leaving for abroad and so on in cases of external trafficking in human beings. The states adopt both the empowering and the repressive strategies. But all recommendations of international documents and institutions suggest it is necessary to give up the repressive strategies and introduce the empowering strategies. There is also the notion of collateral damage, which is used to describe the consequences from introduction of strategies that harm human rights, in particular, the risk groups and victims. Sometimes, under the guise of the «good intentions» of combating the trafficking in human beings the measures are introduced that contradict the concept of protection of human rights, for instance, the procedure of the so called «volunteer deportation». The UN, the Council of Europe, the Organization for Security and Cooperation in Europe and the European Union insist on necessity to stick to the advocacy approach in activities on combating of trafficking in human beings.

[13] More detailed information can be found in the section on violence against women and gender violence.

[14] Working materials of the pilot component of the project «Development of the national mechanism of referral in Ukraine». 

[15] «Реалізація права потерпілих від торгівлі людьми на компенсацію та відшкодування в Україні: аналіз ситуації», 2012.

[16]  http://la-strada.org.ua/ucp_mod_library_view_190.html

[17] http://la-strada.org.ua/ucp_mod_library_view_191.html

[18]  http://la-strada.org.ua/ucp_mod_library_view_192.html

[19]   http://la-strada.org.ua/ucp_mod_library_view_136.html

[20]  http://coe.kiev.ua/uk/DPAInf(2011)17E%20Action%20Plan%20Ukraine.pdf

[21] http://ec.europa.eu/

[22] http://ohchr.org/

[23] http://state.gov/documents/organization/192598.pdf