Prepared by:

– The All-Ukrainian Association of civic human rights organizations – the “Ukrainian Helsinki Human Rights Union”;

– the International Renaissance Foundation.

Assisted by the following NGOs:

–  The All-Ukrainian Civic Organization “Coalition for the Protection of the Rights of the Disabled and People with Learning Difficulties”

–  The All-Ukrainian Society of Doctors

–  The civic organization “For Professional Assistance” (Poltava region)

–  The Civic Organization “M’ART” [Youth Alternative], Chernihiv

–  The Confederation of Ukrainian Free Trade Unions

–  The International Alliance for Professional Support of Civic Initiatives (IAPS)

–  The International Women’s Human Rights Centre “La Strada – Ukraine”

–  The Kharkiv Human Rights Protection Group

–  The Lviv Regional Educational and Scientific Workers’ Trade Union

–  The National Assembly for the Disabled in Ukraine

–  The Odessa Human Rights Group “Veritas”

–  The Public Committee for the Protection of Constitutional Rights and Civil Liberties (Luhansk)

–  The West Ukrainian Centre “Women’s Perspectives” (Lviv)

Key sources of information:

1. Data from the State Committee of Statistics of the Ministry of Internal Affairs [MIA] or other executive bodies, as well as court statistics.
2. Information from civic human rights organizations
3. Data from centres for public opinion research
4. Data from sociological and crime studies.
5. Information gathered from the mass media.
6. „The State and the Citizen: Delivering on Promises”, Analysis of socio-economic policy carried out by the Blue Ribbon Commission in 2006

September 2007

Contents

Introduction……………………………………………………………………………………………………..3

I.  General comments on Ukraine’s Fifth Periodic Report concerning rights covered by Articles 1 – 5 of the International Covenant on Economic, Social and Cultural Rights……4

II.  Consideration article by article of Ukraine’s implementation of the rights covered by Articles 1 – 5 of the International Covenant on Economic, Social and Cultural Rights.

Article 2. Prohibition of discrimination………………………………………………………………5

Article 3. Equal rights for men and women

A.  General comments……………………………………………………………………….7

B.  Discrimination against women over labour rights………………………………….…9

Article 4. Limitation of the rights set out in the Covenant……………………………………..10

Article 6. The right to work…………………………………………………………………………..10

Article 7. Just and favourable conditions of work

A.  General comments……………………………………………………………………..12

B.  Remuneration………………………………………………………………………..…12

C.  Industrial injury at the workplace………………………………………………….….16

Article 8. Trade Unions……………………………………………………………………………….19

Article 9. The Right to Social Security……………………………………………………………..23

Article 10. Protection of the family, mother and child

A.  Domestic violence……………………………………………………………..……….28

B.  Human trafficking:

– Reasons why human trafficking is on the increase……………………………….31

– National Action Plan………………………………………………………………….32

– Protection and provision of assistance to victims…………………………………33

– Combating human trafficking and punishing the perpetrators………………..…34

C.  The use of child labour…………………………………………………………………35

D.  Information about neglected children…………………………………………………37

E.  Other aspects linked with the rights of the child…………………………………….37

Article 11. The right to an adequate standard of living…………………………………………38

Article 12. The right to the highest attainable standard of physical and mental health.

A.  General comments……………………………………………………………………..40

B.  Reform of the State health care system……………………………………………..41

C.  The accessibility and level of funding for medical establishments………………..42

D.  Reducing the number of stillbirths, infant and child mortality and ensuring the healthy development of the child……………………………………………..……44

E.  Prevention and treatment of epidemic, endemic, work-related and other illnesses, and combating them:

– Observing the rights of people living with HIV/AIDS and the spread of AIDS…45

– Other epidemics (tuberculosis and hepatitis B and C)………………………..….48

F.  Problems with prisoners’ right to health care……………………………………..…49

Article 13. The right to education……………………………………………………………………52

III.  Recommendations on improving the situation………………………………………………….57

Introduction

This report has been prepared by the Ukrainian Helsinki Human Rights Union and the International Renaissance Foundation, in cooperation with other Ukrainian nongovernmental organizations, in connection with the consideration by the UN Committee on Social, Economic and Cultural Rights of Ukraine’s Fifth Periodic Report on its implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights.

The material for this report was gathered between 2003 and 2007 while preparing the annual human rights organizations’ reports “Human Rights in Ukraine – 2004”; “Human Rights in Ukraine – 2005” and “Human Rights in Ukraine – 2006”. In the course of this we analyzed the level of implementation of recommendations made by the UN Committee on Economic, Social and Cultural Rights (hereafter the Committee) following their consideration of Ukraine’s previous periodic report. We also provide answers to the questions put by the Committee to the Ukrainian Government with respect to the Fifth Periodic Report.

We do not therefore give in this report a general review of Ukraine’s implementation of all provisions of the International Covenant on Economic, Social and Cultural Rights, but rather focus on the most problematical areas regarding implementation. We do also point to some progress as far as some of the rights enshrined in the International Covenant on Economic, Social and Cultural Rights are concerned. We also pay attention to problems with observance of rights which are inaccurately covered or in insufficient detail in the Government Report.

For more information please contact the Ukrainian Helsinki Human Rights Union.

I. General comments on Ukraine’s Fifth Periodic Report concerning rights covered by Articles 1 – 5 of the International Covenant on Economic, Social and Cultural Rights.

1.  One of the main problems in implementing the provisions of the International Covenant on Economic, Social and Cultural Rights is the declarative nature of Ukrainian legislation. The Constitution, laws, programmes and other normative acts contain many duties with respect to safeguarding particular rights, however either legislation does not provide the appropriate procedures for exercising these rights or their exercise is not supported by government funding.

2.  There is no division in Ukrainian legislation into norms safeguarding certain social, economic or cultural rights and those providing certain privileges in connection with particular services, position, etc. The difference in legal regulation is clear: norms ensuring the exercising of social or economic rights cannot be revoked or suspended. Privileges on the other hand can be changed and they are to a greater extent dependent on the will of the government.

3.  As a result of this in the laws on the State Budget adopted annually, dozens and sometimes hundreds of provisions in legislation for exercising economic and social rights are suspended. By this we mean that these budgetary laws suspend the legal force of certain norms of particular laws which guarantee the exercising of this or that right. In 2007 the Ukrainian Constitutional Court declared this practice of the Cabinet of Ministers and parliament to be in contravention of the Ukrainian Constitution. Yet this judgment from the Constitutional Court is not yet being enforced.

4.  Ukraine has not implemented, and has indeed not even begun implementing Items 34 and 35 of the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights. There remains to date no official translation into Ukrainian (the State language) of the Committee’s Concluding Observations and they have not been published in official publications. Information about the content of the Content has not been widely disseminated.

5.  Human rights organizations are disturbed by the fact that a considerable number of the Committee’s recommendations passed on to the Ukrainian Government have still not been implemented. There is no single State body ensuring that these recommendations are acted upon, nor has there been any legal act setting out a specific Action Plan for implementing the recommendations.

6.  Despite a considerable increase in funding for the office of the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine (the Human Rights Ombudsperson) over the last five years, the quality of its work has not improved. The Ombudsperson’s Secretariat does not have a general register for all complaints received, and there is no effective monitoring over how the substance of these complaints is dealt with. Most of the complaints addressed to the Ombudsperson are automatically sent on to those whom the complaints are about. For example, a complaint over non-allocation of a pension or against the actions of the Pension Fund is sent to the latter body or to the Ministry responsible for it. The Ombudsperson does not take other decisions with respect to such complaints. For this reason the role of the Ombudsperson in defending social, economic and cultural rights remains insignificant.

II. Consideration article by article of Ukraine’s implementation of the rights covered by Articles 1 – 5 of the International Covenant on Economic, Social and Cultural Rights.

Article 2. Prohibition of discrimination

7.  In Ukraine there is no official policy on countering discrimination following on from the task and action plans set by government authorities.

8.  There are no norms in Ukrainian legislation which establish a general prohibition of discrimination. Usually norms which are too general and unspecific are contained in different laws for particular fields. However in no legal act, barring the Law “On equal rights and opportunities for men and women”, is there a definition of direct and indirect discrimination, nor a mechanism for protection against discrimination. As a result of this, there are no court rulings which directly punish acts of discrimination. This means that where a person has been discriminated against, the protection mechanisms are ineffective due to shortcomings in the legislative base. There are effectively no other mechanisms either. For example, the provisions in the Criminal Code (Article 161) are worded in such a way as to be impossible to apply with this confirmed by official data on the lack of sentences handed down under this Article.

9.  Discrimination on various grounds is fairly widespread. People experience discrimination most often on the following grounds: their ethnic origin (for example, Roma and people from Africa and Asia), gender, their state of health (for example, people living with HIV or AIDS, tuberculosis, hepatitis, and the disabled), sexual orientation (for example, homosexuals) and with regard to their age.

10.  According to sociological research, discrimination is most often encountered in the labour sphere, medical services and receiving social services.

11.  The number of incidents of discrimination is constantly rising as a result of the lack of effective mechanisms of protection and the difficulties of punishing people for such behaviour.

12.  The public attitude to Roma remains negative, with sociological surveys showing that prejudice against them is more widespread than in relation to any other national minority. Studies into national tolerance applying the Bogardus scale carried out several times between 1992 and 2006 by the Institute of Sociology showed that the level of intolerance towards Roma was over 5 on this scale. The results suggest that in the mass perception, the Roma are not considered permanent residents of Ukraine.

13.  The Roma experience the highest degree of intolerance and suffer greatly from social discrimination. The level of unemployment among the Roma is, on average, the highest, their living conditions are worse than those of other ethnic groups. They experience more difficulty with access to education, medical services and the judicial system. School attendance figures for Roma children remain low.

14.  Ukrainian Roma face regular systemic discrimination in virtually all sectors, including but not necessarily limited to access to personal and other documents, education, housing, health care, employment and social services. Lack of personal documents (birth certificates) cause problems with enrolling children in kindergartens and schools, health care, and other social services. The following are some of the most typical examples:

·  On 6 October 2004 “Levoberezhnaya” a local newspaper in the town of Zolotonosha, Cherkasy region (oblast), published an article entitled, “The police warn to be on your guard against burglars”. The article advised people not to engage in conversations with any Roma whom they did not know personally. Earlier that year, on June 16, 2004, the same newspaper published an article titled, “Roma Invasions with Mournful Stories”, that advised the majority population not to let Roma into their homes, give them water, or show them the way if asked for directions. This was followed a week later on 22 June by an article which warned readers about Roma who produce fake vodka. The newspaper is not known to have published such advice about any other ethnic groups.

·  One general example is seen on page 81 of Osnovy Zdorovya (“Basic Health”), a 4th grade textbook recommended by the Ministry of Science and published in 2004. In it children around the age of 10 are taught what to do when “strangers” appear outside the door of their home. The picture accompanying the text reveals a white Ukrainian boy peering through the eyepiece in the door at a darker-skinned young girl who has her hands up pleading for something. Meanwhile, a large, menacing woman dressed in stereotypical ‘Gypsy’ clothing (headscarf, hoop earrings and flower-print dress) lurks in the shadows around the corner out of sight of the Ukrainian child. The text gives the following advice to children:

Do not open the door to people you don’t know.. Look at the child. What should the boy do? Why do you think so? If you see a woman or a child you do not know, don’t panic, call your neighbours, grandparents or your parents at work. Ask them for advice before opening the door. Call the police and speak loudly so that the people outside the door can hear you. If you have no phone, call for help from your neighbours out your window.^[1]

15.  Print and electronic media contribute to and reinforce anti-Roma racist stereotypes by associating Roma people with crime, drugs and general, unspecified “dangers”. Media in Ukraine publish material inciting racial discrimination, causing direct harms to minorities including Roma, and fostering pernicious stereotypes among the population at large. Journalists regularly warn the public of Roma and of the various dangers that they are associated with, often advising their readers to avoid, be wary of, or avoid outright any contact with Roma.

16.  We should also mention that there has been an increase in the number of cases of discrimination against people from the Caucuses. Asia and Africa. The US State Department’s Country Reports on Human Rights Practices in Ukraine for 2000, 2001, 2002 and 2003 speak of an increase in complaints over racial discrimination against people of Asian or African origin. Reports have also become more frequent of acts of violence against people from Africa, Asia and the Caucuses. Members of these groups claim that law enforcement officers constantly ignore, and sometimes even support acts of violence against them. People from these groups are especially discriminated against at work, when renting accommodations, as well as when exercising their right to education.

 

Article 3. Equal rights for men and women

A. General comments

17.  Women are systematically discriminated against on a wide scale on the labour market, especially in the private sector. We also agree with the Government that women are discriminated against in politics, representation in parliament, the management levels of State and private sector, as well as in decision-making at all levels of power.

18.  Women often hold less well-paid positions not connected with important decision-making. The lower level of pay for women’s work is linked with the fact that the rates established in areas where more women are employed are significantly lower than the rates in other areas. One should also bear in mind that women have greater difficulty reaching managerial positions which are considerably better paid. Women also often work part-time because they are looking after their child or children.

19.  Ukraine has legislation against sexual discrimination however it remains declarative due to the lack of effective control and mechanisms for its implementation, as well as of punishment for discrimination. Nor is there any government monitoring of implementation of this legislation.

20.  Item 55 of the Government’s Report contains the assertion that “we have non-discriminatory legislation”. Unfortunately, Ukraine’s legislation does not comply with the norms for international legislation with respect to ensuring gender equality. For example, the principles of equal treatment and prohibition of discrimination on the basis of gender need to be taken into account in order to bring paragraph 3 of the Article 24 of the Constitution into line with paragraphs one and two of the same Article, norms in international law on safeguarding gender equality and other norms of the Ukrainian Constitution (for example, those set out in Article 51). Paragraph 3 of the same Article 24 must also be brought into compliance with paragraph one of Article 43 of the Constitution, and provisions introduced for special positive measures and the limits of their application.

21.  Despite the adoption of a law on equal rights and opportunities, the principle of equal remuneration for work of equal value and the principle of transparency with regard to payment for labour have still to be set down in Ukrainian legislation. This is adversely affecting implementation of changes to fight present discrimination in this area.

22.  Legal liability must also be increased for discrimination when employing people and in the work place. This should include the introduction of administrative penalties in the form of fines for discrimination by employers (including for sexual harassment).

23.  There continues to be a problem with the existence of certain benefits which in fact turn out to restrict their rights. For example, benefits for solo mothers with children under the age of 14, or children with disabilities; mothers with children under the age of 6 are directly discriminatory since these benefits do not apply to fathers. This encourages women rather than men to look after the children, and restricts their rights and opportunities on the labour market. These benefits also significantly restrict the possibility of finding work.

24.  The effective lack of women in the political sphere and among deputes does not reflect a negative attitude in society to women’s opportunities in the political field or the level of the public’s enlightenment of gender issues. Despite the fact that women are fairly well-represented at the lower and middle levels of decision-making (as reflected in the statistics cited by the Report), they are virtually not represented at the higher levels of power. The main reasons for the absence of women in the highest positions in politics, especially in the Verkhovna Rada, we see as being linked with the high degree of corruption in the process of forming candidate lists for deputes, the effective distancing of women from positions of power in the country, which prevents them from equal competition with men in the struggle for power. One still also finds the situation where men are prepared to pay millions of dollars either for deputy immunity or for the possibility of lobbying their business interests in parliament. Deputies themselves often report this, explaining that they need to get back the money they invested. In this situation we think that it would be efficacious to introduce special positive measures, especifically gender quotas which would establish a minimum number of places in parliament for men and women.

25.  State programmes for ensuring gender equity (both previous ones, and the current programme for 2007) are, firstly, of a declarative nature, and secondly, do not envisage specific funding from the State Budget for their implementation. Nor do they impose liability for their non-implementation, or clear indicators (criteria for judging the level of implementation) with respect to the use of the funding.

26.  The financing for carrying out State programmes is in accordance with the article of the Budget “On the implementation by State bodies of centralized measures on issues concerning children, young people, women and the family” and “State support for civic organizations in implementing nationwide programmes and measures with respect to children, young people, women and the family”. According to the “List of priority social problems which civic organizations should aim to resolve in their programmes for 2006” (approved by Order of the Ministry from 13 February 2006 № 371), «the implementation of the principle of gender equality in all areas of social life” is only one of the sub-items of section 5 of the List “Strengthening of the family and promotion of an improvement in the demographic situation”. The implementation of gender equality has thus got lost somewhere among the other five groups of priorities which relate to policy on youth. This is particularly evident in conditions of extremely limited resources and clear priorities of the government set out in the State Budget where 26% of funding for NGO projects was allocated to finance one organization “Suzirya”. Among the 164 winning projects in the “Competition for projects devised by civic organizations with regard to children, women and the family in 2006” with a total of 12.1 million UAH from the State Budget, there was not one project on implementing gender equality in the area of decision-making, and only 4 projects worth 220 thousand UAH together which indirectly relate to women’s rights, gender equality and discrimination on grounds other than gender (the National Week “All different – all equal” in Ukraine (Ukraine XXI); “No to violence in the family” (Ukrainian Association of Future Lawyers); “Rural Woman through self-fulfilment” (Union of Agrarian Youth) and “Different, but equal” (the Ukrainian Association of Young Medical Workers).

27.  We consider ineffective the present situation where the responsibility for ensuring equal rights and opportunities is vested with the Ministry for Family, Youth and Sport. In most instances the Ministry deals with issues of youth and sport, and combating gender inequality is not one of its first priorities. For this reason we believe it would be better to create a special body at government level for combating discrimination.

28.  In our view the situation which has developed with regard to equal rights and opportunities for men and women, especially in the field of decision-making could be changed by developing and applying special temporary measures aimed at ensuring gender equality – positive actions. The application of such positive action is defined in Article 3 of the Law “On ensuring equal rights and opportunities for men and women” as one of the main directions of government policy for ensuring that men and women enjoy equal rights and opportunities. However since the law came into force, no steps have been taken at legislative level to stipulate the types of positive measures, the conditions under which they can be applied nor the mechanisms for applying them.

B. Discrimination against women over labour rights

29.  One form of discrimination which employers resort to comes in the very job advertisement where the preferred sex of the future employee is indicated. In practical terms these advertisements serve to support and entrench gender stereotypes. Most advertisements, including the vast majority advertising highly-paid and / or managerial positions are specifically aimed at men, not women. As a result advertisements which indicate the preferred sex of an employee (male) deprive women of a chance and turn down their efforts to find well-paid and prestigious work while they may well have the necessary education, experience and skills. According to data from the La Strada – Ukraine Centre, over 40% of job advertisements specify whether the future employee should be a man or a woman.

30.  Some employers stipulate the required family position women candidates must have in job advertisements. The unconcealed reluctance of employers, especially those in the private sector, to pay maternity leave and other legally required benefits have forced many women to find work in the State sector where the pay is lower, but where there is more certainty of receiving these benefits. .

31.  During the job interview some employers ask women directly about their plans to have children, about whether they have partners or boyfriends, whether they are planning to get married, etc. These are in fact personal decisions and employers are not entitled to seek to influence them.

„Veronica talked about how when she tries to find a job one of the first questions which a prospective employer asks is always about her marital status. “When the boss finds out that I’m unmarried and have a small child, they refuse even to continue the interview. Such questions are outrageous. Nobody’s interested in my degree, my qualifications, or my work aspirations”.

32.  It would seem that many Ukrainian employers are more inclined to employ women who already have older children, basing this preference on assumptions about women’s family commitments.

„Marina, who has been working in a State institution since her former employer went bankrupt in 1994 explained that when she lost her job, the State sector had seemed “more attractive” since “there they don’t fire you if you take time off during pregnancy or to have your baby and there are more social guarantees”. She noted that “a lot of young women enter the State sector for that reason”. For Tetyana the difference in this respect between State and private sector seems so great that you get the impression that each sector works according to different legislation.”

33.  Although many employers discriminate against young women when hiring people because of real or imagined family commitments, older women also suffer considerable discrimination on the labour market. Age restrictions are another significant aspect of job advertisements which continue to adversely affect women on the labour market. Most employers are looking for younger women employees up to thirty or forty.

34.  Therefore older women run up against a double problem: they are not offered many positions, including well-paid managerial posts due to gender restrictions, while at the same time they are not deemed suitable for many vacancies for women due to age restrictions. However not all young women can get jobs available for women because of discrimination over their family status. The result is discrimination at both ends of the age spectrum. There is a small “window” where women are treated as serious candidates for posts up to the age of thirty five if they have school age children.

„Olena is worried that she will soon lose her job in the State sector due to her department undergoing restructuring. She has been looking for a job for a year and a half already, but she can feel that due to employers’ age requirements she will find it very hard to change her job. “I’m forty three and each advertisement says “up to thirty five”. In three years I won’t be able to find any work at all.”

„Maria recounts how outraged she felt seeing job advertisements which stipulated restrictions on the age of prospective candidates. “Feeling in the mood to be contrary I decided to send my CV. All three companies gave me an interview and then offered me a job. If I hadn’t been so angry at the injustice, I would have never found a job”.

35.  Requirements as regards appearance from employers looking for candidates to fill different positions, especially those where women are sought are common. Job advertisements where physical appearance does not have obvious relevance to the job involved, unlike work in the entertainment industry or in modelling, often contain demands that the person have a number of physical characteristics. This applies to positions at all levels, including managerial posts. Since such demands are virtually always in advertisements aimed specifically at women, they are discriminatory and have a disproportionate impact on the job opportunities which women have as opposed to men. The conviction of employers that they can with all responsibility stipulate the level of attractiveness of job-seekers heightens an atmosphere in which women can be subjected to sexual harassment.

Article 4. Limitation of the rights set out in the Covenant

36.  In imposing limitations on the rights which the State safeguards in compliance with the International Covenant on Economic, Social and Cultural Rights, Ukraine does not establish such necessary aspects of such restrictions as compatibility with “the nature of these rights” as well as the purpose of the restrictions, being to promote “the general welfare in a democratic society”. These supplementary criteria for limitations are not established by legislation, nor are they used by the courts in domestic case law. This makes it possible to give too broad an interpretation of the grounds established by the Covenant for limiting rights.

 

Article 6. The right to work

37.  Legislation regulating employment remains at the present time in many cases declarative. This is confirmed by the results of implementation of employment programmes, as well as the work of the government bodies called upon to resolve the problem of unemployment.

38.  In particular, the level of forced partial employment remains rather high. One can cite as an example, the fact that during 2005 7.4% worked only part-time, and 1.8% of the general number of employees were on unpaid leave initiated by the administration.

39.  A certain reduction in the level of unemployment is linked with an increase in the demand for workers. At the same time the fact that the need for workers does not correspond in territorial terms with the labour available creates a high level of inter-regional differentiation as far as unemployment is concerned. Higher than average levels of unemployment are seen in the following regions: Zhytomyr, Chernivtsi, Cherkasy (9.8 %), Rivne (9.7 %), Mykolaiv (9.3 %), Ternopil (9.1 %). The lowest levels are in the cities of Sevastopol (3.4 %) and Kyiv (4.3 %).

40.  At the beginning of 2006 there were, on average, 5 people without a job for each vacant position. A shortage of vacancies is seen in virtually all regions of Ukraine, except the cities of Sevastopol and Kyiv where, for certain professions, there is a shortage of people. The disproportion in the spread of industrial resources and manpower explains the considerable inter-regional differentiation in the correlation between the number of unemployed people approaching employment centres and of job vacancies (the competition for one vacant position). For example, in the Donetsk, Dnipropetrovsk, Kyiv and Kharkiv regions this indicator is lower than average for the country and stands at between 2 and 4. On the other hand, in the Cherkasy, Ternopil, Rivne, Ivano-Frankivsk and Chernivtsi regions at the end of 2005 there were on average 15-27 unemployed people for each job.

41.  The funding directed at resolving the problem of unemployment in specific directions has been spent inefficiently which has adversely affected what is a socially important issue – ensuring that people have jobs. Confirmation of this can be found, for example, in the conclusions of the Accounting Chamber. The latter found that, despite positive indicators for the situation on the labour market in 2005 as a whole, there had been insufficient promotion of measures aimed at improving the work situation through supporting self-employed activities and the development of business activities, or of priority employment in subsidized jobs for people unable to compete on the labour market. The size of the unemployment benefit for the overwhelming majority of people unemployed remained minimal and did not comply with the requirements of Article 46 of the Constitution and Articles 23 and 33 of the Law “On mandatory State insurance against unemployment”. At the same time, in 2005 temporarily available funds of the Employment Fund (the body responsible for ensuring employment) placed in deposit accounts in commercial banks were in excess of the amounts stipulated in current legislation. This meant that at the end of the year 157.6 million UAH envisaged in material assistance and social services had not been spent.

42.  Of the overall number of unemployed who were receiving unemployment benefit at the end of 2005 (642.7 thousand people), 93.2 % received amounts not exceeding the amount of the subsistence minimum for an able-bodied person. Moreover, 65.7% of those unemployed were receiving assistance in minimal amounts (insured – 150 UAH or 33.1% of the subsistence level; uninsured – 108 UAH, or 23.8%). The average monthly unemployment benefit in 2005 was only 38.1% of the legally established subsistence minimum for an able-bodied person.

43.  The size of a one-off payment to help organize business activities was small (on average 2,723 UAH) and could not provide any substantial level of assistance. In 2005 out of the total number of people unemployed who received such payments, during the year one in eight recorded that they had suspended their business activities.

44.  Jobs for the unemployed through providing subsidies to employers were mainly for poorly-paid jobs which do not encourage employees to stay on (in 2005 almost every fifth person employed under this subsidy scheme left the job). The number of those unemployed people unable to compete on the labour market who are found jobs remains low (15.4% of the total number of people found work in this way.

45.  Vocational training for the unemployed is mainly carried out in the absence of specific requests from employers, this meaning that those unemployed people who have completed training still have no guarantee that they will find a job. This means that money allocated for combating unemployment is spent inefficiently. For example, regional and base employment centres carried out vocational training for the unemployed in professions and trades for which the demand of the labour market was insufficient to fully provide appropriate work for those who had completed their training. From January to June 2006 around the country on average 60.4% of these people found jobs. .

46.  There are more than 2 million job vacancies in employment centres at the present time, with the real figure even higher. In only 5% of the cases do the vacant positions offer wages of more than one thousand UAH per month, with 70% offering less than 500 UAH. These vacancies will never be filled since people quite understandably are not prepared to work for such low earnings. In Ukraine at present there is a problem of low and inadequate employment. The problem of unemployment here is levelled out and turned into absolutely pitiful and degrading earnings. This means that one has the situation where there are, on the one hand, a lot of vacancies, yet a large number of those unemployed simply don’t want to take them because of the pitiful wages.

Article 7. Just and favourable conditions of work

A. General comments

47.  The right to just and favourable conditions of work is vital in determining people’s quality of life and reflects the level to which the country looks after its population.

48.  A serious problem in Ukraine which is at present given little attention is the growing prevalence of slave-like practices in the area of labour relations. These practices are flourishing against a background of active internal migration among able-bodied citizens who move in search of work from economically depressed rural areas, towns where people are dependent for work on just one large industrial enterprise and from working settlements where unemployment is rife, to large cities, especially Kyiv. They are prepared to work for any wages and under any conditions. This results in the growth of a shadow economy, with shadow or informal labour relations and the total dependence of workers on their employers with all their whims. Labour relations are not formalized by any official contracts and can therefore be terminated at any moment at the employer’s wish without any opportunity for the workers to voice their grievances or protect their rights. According to information from the mass media, such situations are typical for the construction industry, work in large supermarkets, as well as wholesale or retail trading. In the two latter spheres most workers are women who also suffer from sexual coercion. The problem of relations becoming feudal and spread of slave-like practices requires urgent intervention by both the government and society.

B. Remuneration

49.  There is no fixed minimum hourly rate for wages in Ukraine.

50.  Despite the fact that the Government in its Report (Items 115-118) informs of a nominal increase in average monthly wages, we see at present a somewhat unique situation in respect to poverty, with this being a burning issue in the first instance specifically for the working population. According to the Minister of Employment and Social Policy M. Paliyev, as of June 2006 814 thousand people were earning wages lower than the fixed minimum wage, as of June 2006 814 thousand people had pay lower than the legally fixed minimum wage, while 2.76 million were living on pay lower than the subsistence minimum for able-bodied people. [It should be noted that the minimum wage is lower than the subsistence minimum].

51.  This is confirmed by figures from the Ukrainian State Committee of Statistics for 2006 which show that on average in Ukraine 7.5% of those working receive pay lower than the legally established minimum wage. If one leaves out Kyiv city, then this figure will be higher than 10%, and in many western regions of Ukraine it reaches 13-14 %.

52.  The statistics on the percentage of those employed whose wages are lower than the minimum subsistence level clearly indicate the seriousness of the problem of ensuring people’s right to just conditions of work. 23.7% of the population receive wages lower than the subsistence minimum. Only in 5 – 7 regions is the situation somewhat better, while in the others it is considerably more serious. For example, in the Ternopil region the number of workers who earn less than the subsistence minimum comes to almost 37%. This, then, is the standard of living in Ukraine at the present time when even people working not only do not earn the basic subsistence minimum but do not even receive the official minimum wage.

53.  In Item 118 the Government asserts that there has been an increase in wages at enterprises of all types of economic and industrial activity. The Government does not, however, mention that in the Ukrainian economy there is very considerable differentiation in the level of remuneration depending on types of economy activity and region. The highest pay levels are seen in financial institutions and in the aviation industry, as well as in the coke, oil refining, metal works and fossil fuel industries where the wages are 1.5 to 2 times higher than the average for the economy. At the same time, the absolute size of wages for workers in agricultural enterprises, hunting, fishing and fish farming, health care and social assistance institutions, as well as in the textile, clothes, fur and leather goods industry were more than a third lower than average..

54.  Among the different regions the lowest level of wages (31.1% less than the average for the country) was seen in the Ternopil region, while Kyiv had the highest level (1.7 times higher than the average). The average pay for workers in the Kyiv, Zaporizhya, Dnipropetrovs’k and Donetsk regions was also above the figure for the country in general (by 0.4 to 14.7%)..

55.  One should point out the huge difference in salaries of civil servants. The wage differential for all those working in state-funded institutions is equivalent to 1:40. This data is concealed in documents on limited access not available to the public. For comparison, in the Western Europe the ratio is 1:4, in the USA – 1:5 and these figures are open and stipulated by law. What kind of equality in Ukraine can we seriously speak of when an unemployed former parliamentarian has gained the right to receive on a monthly basis approximately four times the salary of a current member of the National Academy of Sciences of Ukraine, or approximately 6 times the salary of a professor in a Ukrainian university (Fourth, i.e. highest, category), or 12-13 times the salary of a highest category doctor, or approximately 20 times the salary of a highest level school teacher? Or while one current National Deputy costs the State Budget as much as eight members of the Academy of Sciences, or 12 professors, or 26 surgeons, or 40 teachers in secondary schools?

56.  We are unable to agree with the Government’s assertion (in Items 138 – 145 of the Report) that the problem of wage indebtedness or arrears has been overcome. We would note that this problem has become a chronic malaise in Ukraine. According to figures from the State Committee of Statistics, the amount of wages owed at 1 December 2006 were 3.7%, or 35.8 million UAH, higher than the figures for the beginning of the year, coming to 996.1 million UAH, or 7.7% of the remuneration fund calculated for November 2006 for all employees.

57.  Pay owed to employees of working enterprises between January and November 2006 increased by 3.9%, or by 15.1 million UAH, and at 1 December stood at 477.2 million UAH, or 47.9% of the entire arrears. Among the types of economic activity involved, the largest increases in the amount of unpaid wages were seen in the manufacturing industry – by 43.8 million UAH, in organizations carrying out operations with real estate – by 22 million UAH, at machine and equipment plants – by 20 million UAH. From the point of view of regions, a rise in arrears at working enterprises was observed in 16 regions, with the highest rates in the Kharkiv region (2.9 times higher), the Ivano-Frankivsk region (2.8 times higher) and in the Transcarpathian region where the figure was up 2.8 times.

58.  Overall, out of each 100 UAH not paid out by working enterprise, 45 were owed employees of industrial enterprises, 12 – by organizations carrying out operations with real estate, another 11 by agricultural enterprises. At the beginning of December 2006, 347.5 people, or 3.1 percent of the total number of workers had not received their pay on time. The amount in arrears on average per worker at 1 December 2006 came to 1,099 UAH, which is almost on the level of the average monthly pay for November 2006. An increase by 12.4% in debt owed in unpaid wages during January – November 2006 was also seen at bankrupt enterprises. At enterprises which had suspended production or economic work (economically inactive), a decrease was observed in arrears of 19.5%.

59.  Just in Chernihiv region over 9 months of 2006 the regional prosecutor’s office launched 48 criminal investigations over infringements of legislation on remuneration. 308 other prosecutor’s measures were also taken on these issues. Proceedings were launched against 220 public officials. In civil proceedings 493 claims were lodged with the region’s courts to retrieve money owed. Millions of UAH were ordered in compensation. In the same region between January and August 2006 the State Labour Inspectorate checked 7 enterprises owing wages. The debt in unpaid wages at those enterprises came to 171.7 thousand UAH, with the time the money had been owed from between one to ten months. According to the results of the inspection, 7 protocols on administrative offences were drawn up and submitted to the court against the managers of the following: the State enterprises “RESSKIlion”, “AhaSna” and “Ahat-mriya”, the open joint stock company ”Ahat”, the agricultural LLC “Poliske, the construction association “Raiaglobud” and others..

60.  In the Ivano-Frankivsk region during 11 months of 2006 the prosecutor’s office launched 110 criminal investigations over non-payment of wages, where the arrears stood at 9.6 million UAH. Of these 52 investigations were against public officials who were alleged to have deliberately allowed the arrears to arise on payments even though there were funds which had been used for other purposes.

61.  The problem with wages owed is particularly acute in mining regions. Late payment of wages and accumulated debt are chronic there with even State controlling agencies acknowledging this.

62.  The Government maintains in Items 123-128 of the Report that a number of measures have been carried out on raising the salaries of employees of educational institutions. It does not, however, mention the problems with paying salaries owed in educational institutions with these serving once again to highlight the seriousness of the problem of wage arrears in Ukraine. We can cite as an example the conclusions reached by the Accounting Chamber when carrying out an audit into how efficiently State subsidies (subventions) allocated to local budgets for eliminating arrears on payments allowed for in Article 57 of the Law “On education” to teaching, academic and teaching and other employees of educational institutions. The systematic failings and infringements the Accounting Chamber identified suggest an inadequate level of organization with respect to work in this area and a lack of control from the Cabinet of Ministers and the Ministry of Science and Education, regional, Kyiv and Sevastopol City State Administrations. In the distribution, provision and use of these subsidies, there were infringements of the principle of justice and impartial sharing of funding between individuals and territorial communities resulting in the restriction of people’s right to receive payments. In 2005-2006 over 400 appeals from individuals over these issues were received by the Ministry of Science and Education. Both at central and local levels, the management of subsidies from the State to local budgets for repaying the debt against payments to employees of educational institutions in 2005-2006 was carried out inefficiently and with infringements of legislation. Infringements were found amounting to 136.5 million UAH in total.

63.  On a number of occasions this led to such payments not being made on time and to infringements of the requirements of Article 5 of the Law “On restructuring indebtedness against payments allowed for in Article 57 of the Law “On education” to teaching, academic and teaching and other employees of educational institutions” regarding monthly repayment of the debt.

64.  Moreover, in a situation of considerable amounts of debt owed against payments to teaching staff of educational institutions for long service and material assistance for health measures, as a result of insufficient control by particular local executive bodies at the end of 2005-2006 a total of 2.3 million UAH was returned unspent to the State Budge, demonstrating ineffective management of the funds. The largest amounts returned to the State Budget in 2005-2006 were in the Lviv region -2,016.5 thousand UAH (72% of the total amount of money returned); the Crimea – 108 thousand UAH, the Kyiv region- 98.4 thousand UAH, and the Odessa region – 92,5 thousand UAH. This means that the reason for this indebtedness is not the lack of funds, but the fact that even money allocated does not reach members of the public.

65.  Yet another example of inefficient government policy in the area of remuneration for work is the situation which has emerged over pay for civic servants. An analysis carried out by the Accounting Chamber found that reforms to the system of remuneration for employees of government structures had over recent years remained on the level of words and had not achieved the aims set out in the Development Programme for the Civil Service in 2005 – 2010 passed by Cabinet of Ministers Resolutions from 08.06.2004 № 746.

66.  Improvement in the conditions of remuneration for civil servants requires a significant increase in actual salary for the positions and the abolition of supplementary payments and other incentive payments. The changes thus far carried out in conditions of remuneration have not established a dominant role for this base salary. The percentage of this base salary for the position in the actual earnings of employees of the central government structures in 2006 ranged from 20 to 50 percent. In the Ministry of Justice, for example, the figure was 19,4 %; the Secretariat of the Cabinet of Ministers – 23,5 %; the Ministry of Finance – 24,6 %;; the Ministry of the Economy – 45.2 %; the anti-Monopoly Committee – 46.2 %; and the Ministry of Employment and Social Policy – 46.6 % . Other payments are supplementary payments, bonuses and others which entirely depend on the head of the department and change virtually each month.

67.  The introduction of changes to virtually all systems for basic salaries for such positions, passed by Cabinet of Ministers Resolution № 268 from 09.03.2006 “On organization of the structure and conditions of remuneration for employees for executive bodies, prosecutor’s office, the courts and other bodies” and the introduction of additional positions demonstrate the shortcomings in the current system of remuneration, as well as the preferential treatment given to certain bodies of State governance. In the first six months of the current year alone, 4 amendments were made to the above-mentioned Resolution. For example, Cabinet of Ministers Resolution № 72 from 31.01.2007, connected with a change to the organizational structure of the Secretariat of the Cabinet of Ministers, introduced the relevant amendments to the basic salary set up for this category of employees. Resolution № 149 from 07.02.2007 sets out the conditions of remuneration for State contractors; Resolution № 328 from 01.03.2007 raises the salaries for leading specialists and scientific consultants for judges of the Constitutional Court; and Resolution № 700 from 12.05.2007 provides a new version of the set up for base salaries in connection with an increase in base salaries for employees of executive bodies.

68.  All these indicators demonstrate the severity of the problem as seen also in cases where Ukrainians have filed suits with the courts, including with the European Court of Human Rights, over wages owed and won them In the European Court of Human Rights alone over 150 Ukrainian nationals in more than one hundred cases have had judgments in their favour over non-payment of wages owed through the fault of the State.

An example can be seen in the claim brought by doctors from the Chortkiv Central District Hospital against the hospital administration over non-payment of expenses for work-related trips and specialization courses. A State programme is underway in Ukraine for moving to the model of family medicine .based on the key role of the family doctor – a general practitioner. Despite the fact that the majority of doctors have specifically this qualification – doctor of general practice, for several years now all district doctors have had to go on six-month “retraining” courses to become family doctors. At the same time the programme’s implementation is not covered by budgetary funding. The administrations as a rule refuse to pay expenses for the six months spent on the specialization courses, for living in hostels etc For this reason, seven doctors T.Kvitka, O. Marushchak, A. Muzyka, Y. Prytula, I. Stapanenko, N. Tsymbala and S. Shulyak lodged a civil suit against the actions of the administration of the Chortkiv Central District Hospital. In 2006 they won their case in a first instance court, and then in February of the same year the Ternopil Court of Appeal upheld the ruling of the Chortkiv District Court. .

69.  Infringements of labour rights are also seen in the use of a coefficient of labour input (CLI) in sharing out collective earnings. The norms on the distribution of CLI used at the enterprises monitoring run counter to Article 252-7 of the Code of Labour Laws: “the brigade may divide their collective earnings with the use of a coefficient of labour input. The coefficient for members of the brigade is approved by the collective at the submission of the brigade leader (council)”. The present provisions, however, allow for the possibility of CLI being divided not only by the collective (or council of the brigade), but also by the boss of the unit or by foremen. Yet the legislation, as presented above, has entitled only the brigade collective to approve CLI.

70.  The unlawfulness of one of these provisions was recognized by a court in considering a suit brought by employees of the Bilorichenska Mine. Miners believe that the practice of reducing CLI for workers is often carried out without legitimate grounds, but rather for the arbitrary increase in the wages of certain privileged workers (brigade leaders, team liaison people) which are then probably shared out among foremen and bosses of the unit. A study into the practice of using CLI gives grounds for believing that it is an anachronism from the Soviet distribution system which at one time was part of the “battle against levelling” but has now turned into a corrupt means of distributing workers income.

C. Industrial injury at the workplace

71.  From 2003 – 2006 the level of industrial accidents in Ukraine remained high. This is in fact confirmed by the Government’s Report. . Despite an overall downward trend, the level actually rose in 5 regions, while in 13 regions an increase was recorded in cases of work-related illness. All this is the consequence of inadequate implementation of measures for preventing accidents, of a reduction in the funding of such measures and of the lack of interest in enterprises in improving their work safety record.

72.  The number of industrial accidents fell by 8.1% in 2006 against 2005 however the number of fatal accidents only decreased by 0.8%, On the other hand the number of people suffering from work-related illnesses increased by 3.4% with the number of those causing the death of the patient rising by 36.8%

73.  An analysis of industrial accidents in 2006 showed that the vast majority stemmed from organizational causes (77.9% of the total number); technical reasons (14.5%); and psychological – physiological causes (7.6%). The main types of accidents were falls (29,8%), incidents where something fell, crumbled or caved in, including earth (21,3%); where objects or parts of equipment moved, broke apart or turned over (19,7%); and road and transport accidents (6,9%). The highest rate of accidents in 2006 occurred at enterprises involved with coal mining, general construction, cultivation of crops, technical and other cultures, and black metallurgy.

74.  In 2006 6,751 miners were injured in coal mines, against 7,768 the previous year (a decrease of 1,017, or 13.1%). 168 people died, either as a result of accidents, or in the case of 26 miners from heart or vascular disease (this being 17.5 percent of the fatalities at the workplace). The number of fatal injuries had increased by 12 (168 against 156) or by 7.7% in comparison with 2005. The percentage of fatal accidents in the coal industry came to 15.6% of the total number of fatal accidents in all parts of the workplace (1,076). This means that every sixth person who died at the workplace was a miner. In recent years there has been an increase in the number of industrial accidents at mines and in non-State owned enterprises which are not under the control of the Ministry of the Coal Industry. In 2006 the rate of injuries and fatalities at such enterprises came to 41.7 % in the field (70 out of 168 accidents). At the present time there are 184 non-State owned enterprises and 389 that are owned by the State in this field.

75.  We are convinced that the downward trend reported in Item 171 of the Government’s Report is not a clear representation since a significant number of such cases remain concealed as a result of the active efforts of the enterprises’ administrations

76.  There has been no practical implementation of the relevant norms of the Law “On mandatory state social insurance against industrial accidents and occupational diseases which have caused disability” with regard to establishing reductions or additions to the size of insurance tariffs for businesses depending on the level of safety and of injuries.

77.  None of the programs for improving the safety level, work conditions and the industrial environment financed by the Fund from 2002 – 2005 was implemented in full. The national programme for improving the safety level, work conditions and the industrial environment in 2001 – 2005 was only 47.1% implemented, in branch programmes – 29.8%. The programme for developing the means for individual protection of workers – 64.3%. Untimely fulfilment of work, lengthy lack of implementation in the workplace of already completed scientific measures for preventing accidents led to their obsolescence and caused inefficient use of Fund spending amounting to 13 million UAH.

78.  The Social Security Fund for Industrial Accidents carried out some of the duties vested with it only following court intervention. This applies, for example, to providing cars to people who were crippled at work and who are waiting in a queue for them. Over five years of the Fund’s work, only 2.3 percent of those waiting to receive a car have been able to exercise their right to this. In 2005 less than 20 percent of the planned 5.3 million UAH was actually used to provide for these needs. In comparison with previous years the figure had grown, but not thanks to an improvement in the work of the Fund, but largely because 52 vehicles had to be purchased following court rulings. They were also made to pay off their debt to the Pension Fund.

79.  We would cite a typical example of a fatal industrial accident where those responsible were not punished and there was not even any just compensation.

There were several fatal accidents at work all around the same time in November 2006 at industrial plants in the district centre Horodnya in the Chernihiv region. On 8 November in the afternoon, at a subsidiary of “Resski-lion” (the Horodnya flax mill) a 45-year-old mechanic Yury Tyshchenko became caught up in a machine. He died because the person responsible for controlling the mechanism was not at his workplace. They pulled the body from the machine only after 48 hours. It so happened that Yury Tyshchenko, in almost a month at the job, had not been formally registered as an employee and his work record did not have the relevant stamp in it. The plant immediately began asserting that he hadn’t worked for them and had just turned up by chance. After conversations with the administration the witnesses also started giving muddled testimony. At present the prosecutor’s office is working on proving that Yury Tyshchenko was indeed a fully-fledged member of the team. There is a paradox in this story in that Yury Tyshchenko is considered to have had unemployed status since he was registered with the employment centre and working at the same time. Therefore at present his family has no grounds for receiving material assistance from the Social Security Fund for Industrial Accidents.

80.  In December 2006 the State Committee on Industrial Safety, Labour Protection and Mining Supervision criticized the Social Security Fund for Industrial Accidents and Work-related Illnesses for inefficiency. Its press service stated that one of the main tasks of the Fund should be to carry out preventive measures aimed at eliminating harmful and dangerous factors and avoiding accidents at the workplace. However, as had become clear, from the Fund’s budget for 2006 over the first 9 months only 1, 8 % of the planned funding had been allocated. Over the five years that the Fund had existed, its budget had tripled and came to almost 3 billion UAH, yet next year they were “planning” for an even greater number of victims, rather than preparing measures to prevent injuries at the workplace, the State Committee on Industrial Safety, Labour Protection and Mining Supervision asserted.

81.  ILO Conventions and the European Social Charter view participation by workers in the running of the organization as an important form of social dialogue. Such forms of dialogue can be negotiations, joint consultations and taking part in concluding collective agreements or contracts The procedure for collective bargaining, mechanisms for resolving disagreements arising during negotiations are regulated by ILO Convention No. 154 concerning the promotion of collective bargaining (ratified in 1981), Article 6 of the European Social Charter” and Articles 10 and 11 of the Law “On collective agreements and contracts”. According to international standards, collective bargaining is carried out between employers or a group of employers, an organization or organizations of workers in order to determine the conditions of work and employment, as well as to regulate the relations between employers or their organizations and an organization (or organizations) of workers.

82.  In Item 146 of its Report, the Government states that during negotiation of a Regional Agreement and collective bargaining, the heads of bodies of local self-government, together with employers’ associations and trade unions, are able to specify the duties concerning adherence to the norms of labour legislation. The Government however avoids mentioning that the current Law “On collective agreements and contracts” does not clearly define the parties to collective bargaining and does not resolve the question of designating fully authorized representation of the parties, does not delineate adequately the aims, objectives and competence of separate levels, in particular branch and nationwide. The law does not allow for the right of workers’ representatives to hold collective bargaining if there are no trade unions or other authorized collective bodies.

83.  It should be noted that there is no norm in Ukrainian legislation which obliges any of the parties to begin collective bargaining. In practice this has led to a situation whereby at State enterprises work on preparing a collective agreement is often late, while at private enterprises collective agreements are not, as a rule, made. At the latter there is often no trade union, and employees in conditions of rising unemployment, concerned about holding on to their jobs, do not raise the issue of concluding a collective agreement. The owner basically doesn’t have an interest in making such an agreement. All of this results in a limitation of workers’ rights..

84.  Furthermore in current Ukrainian legislation there is no clear mechanism for exercising the right to collective bargaining, nor is there a minimum fine for not concluding a collective agreement or for not complying with it. The law does not envisage the right of dismissal for avoiding taking part in collective bargaining. At the same time, bringing proceedings against a person is still no guarantee that after this collective bargaining will begin. The law does not envisage the use of coercive measures to ensure the holding of collective bargaining and it therefore quite often happens that after proceedings are imitated, the collective agreement is not actually concluded.

The Administration of the Mariupol Illych metallurgic plant, represented by the head of the board on 20 12. 05 № 09/4626 refused to allow the independent trade union to enter into the bargaining process on making up a collective agreement. In its turn, the head of the old trade union in a letter from 21.12.05 р. № 6172 refused to allow the independent trade union to form a joint representative body at the plant, claiming that a collective agreement had been adopted back in 2001 and there was no need to adopt a new one or to add amendments to the collective agreement from 2001.

85.  As a separate issue we would mention the problem of court rulings not being adhered to, either by the public authorities or by employers. For example, in Nikopol ( Dnipropetrovsk region), the management of the Nikopol Southern Pipe Plant in October 2006 refused to implement a court ruling allowing representatives of the independent trade union to take part in collective bargaining and sign a collective agreement.

Article 8. Trade Unions

86.  At the beginning of 2007 there were 104 all-Ukrainian trade unions registered with the Ministry of Justice and 14 all-Ukrainian associations of trade unions. No details are available about registration of other trade unions.

87.  There are a number of problems which are closely related to exercising the right of freedom to organize in trade unions in Ukraine, these being:

– problems with State registration;

– problems experienced by trade unions in carrying out their functions;

– various types of pressure from employers on the founders and members of trade unions;

88.  In the course of monitoring observance of the labour rights of State sector employees, it was found that many institutions did not have protocols for forming primary trade union organizations, nor application forms for employees wishing to join these organizations and have their membership fees deducted. From the first day of work, an employee is automatically included in one of the trade unions and membership fees are charged. This means that often membership in a trade union is effectively not voluntary.

89.  At the same time there are problems with the legalization of trade unions, and in the case of legalization, one has to wait months, and sometimes even years to receive the legalization documents.

As of March 2007 a case was awaiting examination in the Lviv Regional Court of Appeal on a suit lodged by the Sambir Free Trade Union of Education and Science against the Regional Department of Justice. The suit concerns the latter’s refusal to legalize local trade union organizations, this being an overt violation of the right to freedom of association

90.  Just in 2006 the Ukrainian government received 9 information requests from the ILO. According to information from territorial State Labour Inspectorates, the checks found infringements of freedom of association as guaranteed by the ILO Convention No. 87 “Freedom of Association and Protection of the Right to Organize”.

91.  When independent trade unions are being formed at an enterprise, the management and traditional trade unions jointly resort to repressive measures to stop them working and to lead to them dissolving.

·  In July 2005 the Independent Trade Union 50th Anniversary of the USSR Mine in the city of Molodogvarkiysk of the open joint stock company Krasnodonvuhillya was created. In breach of Article 12 of the Law “On trade unions, their rights and guarantees for their work”, the head of the mine administration lodged an application with the prosecutor’s office to have a criminal investigation launched against the head of this trade union A.P. Pokuziyev, claiming that the protocol of the statutory meeting stated that there had been more people present than had actually been the case. .A criminal investigation into an alleged breach of Article 94 § 2 of the Criminal Procedure Code was launched against Mr Pokuziyev on 26 December 2005, however up till now Mr Pokuziyev has not been shown the given resolution. After these actions by the prosecutor’s office and MIA investigators, the criminal investigation was twice suspended by investigators from the Krasnodon department of the MIA in the Luhansk region however the prosecutor’s office in Krasnodon cancelled the decisions to suspend it. Since 2005 and to the present day the mine administration has refused to recognize the legitimacy of the Independent Trade Union 50th Anniversary of the USSR claiming that a criminal investigation launched on their application has not been terminated against Mr Pokuziyev. This is linked with the fact that Mr Pokuziyev previously headed an independent trade union at the same mine, and that he is adamant in demanding that the norms of labour legislation are kept and has on many occasions sent reports on abuses of official position both with regard to management of the mine and to Krasnodonvuhillya

·  Since the primary All-Ukrainian trade union “Defence of Justice” at the Mariupol Illych metallurgic plant was created, the plant administration has, in violation of the Law “On trade unions, their rights and guarantees for their activities”, refused to recognize the union and has exerted pressure on its members. The head of the board in a letter from 20 12. 05 № 09/4626 refused to allow the independent trade union to enter into the bargaining process on making up a collective agreement. In its turn, the head of the old trade union in a letter from 21.12.05 р. № 6172 refused to allow the independent trade union to form a joint representative body at the plant, claiming that a collective agreement had been adopted back in 2001 and there was no need to adopt a new one or to add amendments to the collective agreement from 2001. The same head of the board stated at the plant’s general meeting that the enterprise had “its own laws” and its own trade union, and that any trade union which emerged at the enterprise against his will would be “crushed”, its organizers would be “taken away from the plant in wheelbarrows” and that the members of independent trade unions would be stripped of their labour and socio-economic rights.

·  The administrations of the Mariupol and Kherson sea ports are using fighting tactics, blackmail and intimidation to crush the primary organizations of the independent trade union “Defence of Justice” formed in the Mariupol and Kherson sea ports.

·  The administration of the State enterprise “Mariupol trading port”, in violation of Articles 9 and 16 of the above-mentioned law on trade unions, has refused from the outset to recognize the above-mentioned primary independent trade union. It has exerted pressure on its members, refused to provide it with premises to function in and is not prepared to give it incorporation. Infringing Articles 13, 19-20 of the law on trade unions, the administration is not letting the independent trade union take part in running collective bargaining and signing a collective agreement. On the pretext of a fictitious reduction in staff, and without agreeing this with the trade union, V.P. Kartavenko, member of the independent trade union and father of the head of the independent trade union Mariupol trading port M.V. Kartavenko was dismissed. Then through Order No. 935/k from 22. 09.06 № 935/к M.V. Kartavenko himself was fired, allegedly for skiving off work. There were no grounds for this allegation.

·  The administration of the Chervonoarmiysky silicon brick factory is refusing to recognize the primary trade union organization of the factory which belongs to the Confederation of Free Trade Unions of Ukraine and is systematically attempting to destroy it. In statements from 09.11.06, 02.11.06 and 11.12.06 the head of the primary trade union organization “Defence of Justice” from this enterprise E. Rodionova and the head of the independent trade union’s inspection commission R. Yarova assert that following their formation of an independent primary trade union organization, the factory administration represented by the head of the burning department and the head of the section for organizing work have used all possible means to persecute and humiliate them and members of the factory’s independent trade union.

·  Z. Smereka worked on the Lviv railway for more than 24 years (from 1982). In March 2006 he was elected head of the union committee of the Free Trade Union of the Uzhhorod Passenger Carriage Section. On 12 April 2006, on the day that the administration was notified of the election, the head of the Uzhhorod Passenger Carriage Department of the Lviv Railway V.D. Orletsky said: “I’m going to find any way to get rid of Smereka”. From 20 April Smereka was suspended without any grounds, and then, more than four months later, on 31 August he was fired by V.D. Orletsky from his job as train conductor in the Uzhhorod Passenger Carriage Department of the Lviv Railway supposedly for skiving off work. V.D. Orletsky has taken away the office which had been allocated to the free trade union, blocked the transfer of union contributions by the accounts department of the enterprise into the free trade union’s account and is threatening all members of the free trade union of the carriage department with dismissal. Mr Smereka is being subjected to such discrimination only because he is the leader of the free trade union.

·  The Head of the Stryy A. Sheptytsky Lyceum in the Lviv region Y. Turyansky has demonstratively refused to recognize the lyceum’s free trade union ever since it was created in April 2005. He assaulted the head of the free trade union Roman Khomin because the latter was demanding adherence to current national legislation and ILO Conventions in working with employees. The deputy head of the free trade union O.B. Drozd was forced to resign as the result of constant pressure and persecution from the Head of the lyceum. In October 2006 the Head, together with the Department of Education, failed to pay an award for conscientious work only to 17 members of the free trade union.

·  The Head of the school in the village of Verkhnya Yablunka in the Turka district Ivan Sichak has refused to recognize the free trade union formed in the school since its creation in September 2005. He uses all means to persecute its members, to put pressure on them, and refuses to agree the rates, timetables and distribution of bonuses with the trade union. The head and all members of the free trade union have experienced a deterioration in their working conditions and have had their pay reduced. This discrimination from the school’s Head led to ten members of the free trade union going on hunger strike. One woman teacher was hospitalized as a result of the action. In the winter of 2006 the School Head Ivan Sichak seriously assaulted a female trade union activist H.I. Ivanyuk resulting in her being hospitalized. A Ministry of Education commission had, back in 2005, after a visit to the school, recommended dismissing Mr Sichak. The same recommendation was made by the Regional Department of Education, yet due to feudal closing of ranks in this mountainous region, the Head is still there and together with the district department of education is destroying the free trade union. On 31 August 2007, the Head of the Turka Department of Education M.S. Volchansky with one flourish of his pen dismissed the entire active core of the primary organization of the Verkhnya Yablunka school’s free trade union of educational and scientific workers – its head M. Mits, the deputy head of the district branch of the trade union and member of the union committee H.I. Ivanyuk. It should be noted that the dismissal of the activists was carried out with flagrant infringements of the code of labour laws. Consent from their trade union to the dismissals was not obtained, and the dismissals themselves were not based on real work-related necessity. Incidents of persecution specifically for their trade union affiliation have been proven, including in the court. For example, in March 2007 H.I. Ivanyuk convinced the court that the orders which had worsened their conditions of work had been unlawful. As a result she suffered reprisals together with the other activists.

·  In May 2005 a group of five teachers from the private school “Perspektyva” in Lviv discovered that their salaries had been calculated incorrectly and that they were being underpaid by 50%. In order to defend themselves they formed a trade union (headed by Oksana Semenyna). All those who joined the free trade union were dismissed by the Head of the school Svitlana Belbas. The Regional Department of Education which exercises control over private institutions did not uphold the statement alleging unfair dismissal from the members of the free trade union. The latter have been seeking justice in the courts for over a year now.

·  At a working meeting of representatives of the central authorities and of the Confederation of Free Trade Unions of Ukraine which took place on 18 October 2006 at the Cabinet of Ministers an address was given by Hryhory Nedviha, member of the Union of Free Trade Unions of Railway Workers and Deputy Head of the Confederation of Free Trade Unions of Ukraine. He pointed to cases of unlawful dismissal of members of the free trade union by the managers of the Prydniprovsk Railways of the locomotive deports of the cities of Fastiv, Kozyatyn, Uzhhorod and Melitopol.

92.  The Ukrainian Government has effectively not carried out any legislative or administrative measures to defend the right to form trade unions and to guarantee their freedom to function, despite the fact that this recommendation is contained in Item 27 of the Recommendations issued by the UN Committee on Economic, Social and Cultural Rights.

Article 9. The Right to Social Security

93.  The right to social protection is guaranteed by the relevant procedures intended to ensure a standard of living no lower than the subsistence level. A system of social protection should at the same time be constructed in such a way as to avoid creating or developing a levelling and dependent mentality with regard to the distribution and use of material benefits. It should enhance motivation to work and create the conditions enabling people to most fully demonstrate their abilities.

94.  The system of social protection in Ukraine at present cannot, however, boast of its achievements in the above-mentioned areas. In many cases in fact, the system’s shortcomings are increasing social inequality in the country. The level of social assistance is also inadequate, especially if we compare this with the information provided earlier about typical incomes. According to the Ministry of Employment and Social Policy, at the end of 2005 377.3 thousand low-income families were receiving social assistance. During 2005 1,029.9 million UAH were allocated, with the average monthly amount coming to 171.47 UAH. 1,091.2 thousand people with children received aid amounting to 1,686.1 million UAH.

95.  Despite the fact that the Government points to a system of subsidies constituting targeted social assistance for families to pay for housing and communal services, natural gas and domestic fuel and presents this as an effective system supplementing pension security (Item 249 of the Report), this system provides an example of the failings of present social protection framework.

96.  At a time when in virtually all regions of Ukraine prices have risen for housing and communal services, the very existence of this system should provide a guarantee of social protection to people on low incomes and make it possible for them to spend no more than 15-20% of their income on these expenses. It must, however, be said that the government has not prepared the necessary protection for poorer Ukrainians since the system for providing State subsidies lacks transparency and clarity and is not understood by the average member of the public. The procedure for receiving the subsidies is also humiliating. Therefore thousands of people who should be receiving assistance given their actual income do not receive this. The changes made so far have been purely cosmetic.

97.  Nor can we leave without mention the issue of reforms of the pension system. The right to pension provisions is guaranteed by the Constitution (Article 46). This right is guaranteed by general mandatory state social insurance based on the insurance payments of citizens, enterprises, institutions and organisations, as well as on budgetary and other sources of social security; and through the establishment of a network of state, communal and private institutions to care for persons incapable of work. It is stipulated also that pensions should ensure a standard of living no lower than the legally established subsistence level.

98.  .Reform of the pension system in Ukraine is being carried out in conditions of considerable pension burden on employers, a low level of declared earnings and shadow economy employment of a significant part of the able-bodied population. This is slowing down improvements to the solidarity system and making the formation of a budget for the Pension Fund more difficult.

99.  The overall rate for insurance contributions to the four State social security funds is the highest in the CIS and comes to 38.53%. This makes it impossible to fully legalize the income of the employed past of the population. The legislative reduction in income tax to 13 %, the restriction in the imposition of a maximum amount of social security deductions, as well as the establishment of direct dependence of the size of pensions to the length of time making contributions and ones earnings have not had a significant impact on the situation. As a result, at the beginning of 2005 for each person of standard retirement age there were 2.4 people of working age, while the official number of employed was half that figure.

100.  The failure to take fundamental measures regarding the significant rise in income among the population from earnings and to redistribute a part of the social security tariff from the employer to employee, a slowdown in labour migration abroad and reduction to a minimum of deformation on the labour market could mean that in 15 years over Ukraine as a whole there will be one or more pensioners for each working person, with this making it impossible to provide them with a decent level of pension.

101.  The lack of a systematic approach to pension reform, increase in the size of pension overtaking growth in the size of the amount of remuneration paid for labour against a background of a broadening in the sources of income of the Pension Fund spread out for up to ten years, as well as the phased removal of payments it should not have to make, are leading to account balance problems in the Pension Fund’s budget.

102.  As a result of lack of legislative clarity in the fixed amount as of 2004 of the social security contribution for those paying single and fixed tax; the retention for some economic players on concessions regarding payment of insurance contributions (without compensation from the State Budget of expenditure of the Pension Fund); deferment by a year of compensation for those paying a single and fixed agricultural tax; the establishment of part payments of insurance contributions for some insured individuals, as well as the unsatisfactory level of fulfilment by those paying of their commitments, as well as debt against salaries – in 2004 the budget of the Pension Fund received 2,579.3 million UAH less than it should have, and in the first quarter of 2005, 858.9 million UAH less.

103.   According to an assessment by the Accounting Chamber, the management by the Pension Fund of insurance funds was accompanied by some infringements of financial discipline which led to income not being received in full; additional burden on the Pension Fund’s budget and an underestimate of credit indebtedness.

104.  In pointing out a rise in pensions (Items 247 and 248 of the Government’s Report), the Government did not see fit to mention that the increase in the minimum size of the old age pension to the subsistence level are not commensurate with the level of growth of the minimum and average wages in different areas of the economy. Furthermore, the single increase destroyed the differentiation in sizes of the pensions and returned to a levelling of pensions for those categories of the public on low or average incomes. This has inevitably exacerbated the problem of earnings being hidden from the taxman and has had an adverse impact on the money received into the Pension Fund. The main reason for this was that the increase in the level of pensions was carried out without taking into consideration the conclusions of the Ministry of Employment and the Pension Fund regarding the socio-economic consequences of passing these legislative moves.

105.  The legal backup for payment of insurance contributions, the designation and payments of pension and assistance contains a number of inconsistencies and points which are unclear. This has a negative effect on people’s ability to exercise their right to a pension and to government support, or leads to ineffective use of money from the Pension Fund. In particular:

– the establishment for some of those insurance of increased insurance tariffs with single conditions regarding pension provisions in a solidarity system for all those working places them in an unequal position with regard to other pensioners.

– legislative restrictions of income which is taken into account when assigning a pension and which was received by a worker before the introduction of a maximum 5.6 of the size of the average wage in Ukraine causes an unwarranted lowering in the size of pensions.

– the lack of a mechanism in the Law for refunding to an insured individual working at two jobs, the insurance contributions paid into the solidarity system from their wages (income) exceeding the maximum amount leads to a discrepancy between the wages which the pension is calculated from and the income from which the insurance contributions are actually made.

 – the lack of a basis stipulated by the Law for making insurance contributions in the case of people sent on vocational training courses by their businesses results in a loss of income to the Pension Fund.

– the lack of legislatively defined sources to cover the expenditure from the Pension Fund on payments of concessionary pensions and the difference between academic and labour pensions of liquidated enterprises and scientific institutions not financed from the State Budget is contributing to an additional burden on the Pension Fund’s own resources and bringing about inefficient use of these resources.

106.  There is also a certain problem in the difference between the retirement ages for men and women. The average life expectancy of a woman who has reached retirement age is 23 years. That means that she will live on the pension as many years as she worked to receive it. While a woman is bringing up a child up to the age of three, her contributions to the Pension Fund are made for her, calculated on the basis of the minimum wage. However during other years of her working life, the average pay of a Ukrainian woman does not exceed 70% of her male counterpart. The conclusion from this, given the shorter period for accumulating pension contributions and the significantly longer period during which they receive a pension, is that women’s pensions, especially taking into account the future mandatory accumulation system, will be 50% of that for men. A woman cannot accumulate more, however certain benefits regarding consideration of insurance length of payments or of salary could be taken into consideration. Yet this is not a solution. If the likely duration of life after retirement and, accordingly, the actuary calculations on, for example the monthly payments from the accumulation system are calculated using differentials for men and women, there will be completely disaster with the pension coming to 30% of a man’s pension. This would represent a violation of women’s pension rights

107.  The problem is also exacerbated by the inefficiency of the existing social funds. For example, the Accounting Chamber noted in its report for 2006 that the management staff of the Social Security Fund for Industrial accidents and occupational diseases leading to disability had not drawn the appropriate conclusions from the proposals and recommendations made by Accounting Chamber specialists during previous audits. As a result, in 2005 there had continued to be gaps and discrepancies in the normative legal regulation of issues pertaining to filling the Fund’s coffers, as well as managing and using money. The ultimate result of this was the impossibility of optimizing expenditure and an adverse impact on social protection, as well as on the enterprises’ interest in improving industrial safety.

108.  Items 239-243 of the Government’s Report deal with the functions and activities of the Unemployment Insurance Fund. We in turn would like to point out that the Accounting Chamber noted in its report that money in the compulsory Unemployment Insurance Fund in 2005 and the first half of 2006, in certain areas, had not been managed efficiently, this having a negative impact on the socially important issue of ensuring that people have jobs. Work placement for the unemployed through providing subsidies to employees had, in the main, involved badly-paid jobs which did not encourage people to remain at an enterprise (during 2005 almost every fifth person in such subsidized positions resigned). According to the Accounting Chamber’s information, vocational training for people unemployed was largely given without specific requests from particular employers. Regional and base employment centres ran vocational training for jobs which were not sufficiently in demand on the labour market to ensure that people would find appropriate jobs. .Vocational training for the unemployed did not always comply with the indicators for the regional employment programmes.

109.  The State guarantees its citizens assistance at the birth of a child regardless of their social position or employment. At the same time, the legislatively fixed system for assigning and making these payments at the birth of a child by insurer-employers is in fact scarcely capable of ensuring full control over the designation of such assistance, its timely payment and further targeted use. This ultimately makes it more difficult for people to exercise their State-guaranteed right to receive assistance. Such a conclusion is rendered possible from the assessment given by the Accounting Chamber. .

110.   The considerable increase on 1 April 2005 in the size of the assistance provided at the birth of a child to 22.6 times the minimum subsistence level for children up to the age of six was aimed at stimulating the country’s birth rate. However the stipulation of the size of the assistance in the absence of economically justified calculations of the expenses a family incurs on the birth of a child makes it possible to adjust this figure depending on the possibilities of the State Budget, and not on the real needs for creating the appropriate conditions for looking after a child. Thus the Law “on the State Budget of Ukraine for 2006” already restricted the size of the assistance to a fixed amount of 8.5 thousand UAH. Going by the subsistence minimum for 2006 the size of the assistance should come to 9 – 9.4 thousand UAH, with this meaning that parents whose child was born in the first quarter of 2006 received 540 UAH less; parents whose child was born in the second and third quarters – 766 UAH less, and in the fourth quarter – 946.8 UAH.

111.   The Government states that its aim in raising the amount of assistance provided at the birth of a child was to provide the necessary conditions for the full maintenance and upbringing of the child. The lack of any list of these conditions encourages subjective establishment of grounds for suspending payments of assistance and directly limiting the rights of the child.

112.  At the present time almost 72% of the childbirth assistance payments are made from the Social Insurance Fund for Temporary disability and expenses related to maternity leave and funerals, this constituting 98% by insurance-paying employers and 2% by working bodies of departments of the Fund. Here the legislative placing of responsibility on a civic body – the Commission on social insurance for resolving issues relating to assistance to people insured (assigning, making and exercising control over payments) without any levers of influence on its activities leads to assistance at childbirth not being received on time, or refusals altogether to assign and pay them. This meant that in 2005 payments at childbirth were not made the following day, but with a delay of up to 50 days.

113.  The present system for monitoring how the rights and guarantees of those insured are being observed is ineffective. In the absence of applications from the insured themselves or scheduled checks by the State Labour Inspectorate as to whether legislation on general mandatory State social insurance is being observed, the system makes it impossible to uncover infringements. Financial sanctions against insurers are applied only in cases where these try to avoid registering with the Fund, or do not pay in full or in timely manner, with this having an impact on the resources reaching the Fund and are in no way aimed at ensuring that employers provide the proper assistance to their insured staff. As a result, where an employer refuses to designate and pay out financial assistance on the birth of a children to an insured employee, with the Fund’s powers here being only of a recommendatory nature, the insured person can only defend her/his rights through the courts.

114.  The Ministry of Labour and Social Police, as the central government structure responsible for ensuring State policy on social protection of the population, and for carrying out State supervision in the area of general mandatory State social insurance failed in 2005 to ensure full control over the work of the Social Insurance Fund for Temporary disability and observance of the rights of those insured.

115.  The Government asserts (in Item 249 of the Report) that the system of social security is supplemented in Ukraine by a system of benefits, guarantees and subsidies of various types of assistance, including to young families. It does not however comment on the effectiveness of such systems. If, for example, we consider the State Fund for promoting residential construction for young people, according to the Accounting Chamber’s assessment, in 2005 this Fund failed to adequately carry out State Budget programmes aimed at ensuring the construction and purchase by young people of accommodation and effectively managing State funds available for the implementation of these programmes. This led to 35.3 million UAH in State funds being used inefficiently, debts arising to lenders on payments of partial compensation and, as a result, to young families losing confidence in the government. These conclusions were reached by the Accounting Chamber after considering the “Report on the results of a check into the use of State funding by the State Fund for promoting residential construction for young people.

116.  The Accounting Chamber’s auditors pointed out that the mechanisms presently available for providing State support for young people in resolving housing problems do not ensure the availability of housing for young families on an average level of income nor to low-income young individuals.

117.  The mechanism for partial reimbursement of the interest on loans remains ineffective since it is not available to young families needing State support and it encourages the use of State funding for decreasing the cost for affluent young individuals when buying up accommodation. For example, a single young woman from Kherson who did not need to improve her housing conditions was able to get a bank loan to buy a flat of 262 square metres costing 1.3 million UAH with subsequent partial reimbursement from the State Budget of the interest. . The overwhelming majority of people who received the right to partial reimbursement in 2005 did not need to improve their housing conditions.

118.  Uncontrolled agreements made by the Fund in violation of Article 23 of the Budget Code for partial reimbursement of interest on loans from commercial banks and the increase by the Cabinet of Ministers during the Budget year of the size of this interest rate (without financial provisions) make it necessary to increase budgetary assignations for this purpose in 2005 and 2006 by 15 and 30 million UAH respectively. This was at the expense of a reduction in assignations for providing concessionary long-term loans. It is precisely these long-term loans which are more accessible for low-income young families.

119.  The audit found that a Cabinet of Ministers Resolution and Order from the Ministry for Family, Youth and Sport had changed the priorities set out in the Law “On promoting the social growth and development of young people in Ukraine” for providing loans for residential construction, in the first instance to families with children. The move to a rating system of candidates according to which 1 point was designated for a child, 8 points for academics and 7 points for sportsmen or women does not provide families with one or two children who are not young academics or sportspeople with the priority right to receive a loan. Furthermore, the first (main) condition for taking part in this rating was defined as being the candidate’s ability to pay back the loan.

120.  The State programme for providing young people with housing for 2002-2012 is not being implemented as a result of inadequate amounts of State funding which are allowed for each year by the Ministry of Finances when formulating the draft State Budget. The amount allocated from local budgets is extremely inadequate. As a result, young people have only been provided with a third of the housing envisaged by the Programme.

121.  The lack of normative restrictions on providing one person with two types of State support creates conditions whereby young people can purchase flats with partial reimbursement of the interest after they exercise their right to receive a concessionary long-term loan for the construction (or reconstruction) or purchase of housing using State funding.

Article 10. Protection of the family, mother and child

 

A. Domestic violence

122.   The Ministry of Internal Affairs Department of Public Safety reports that they have 85,178 people on their register for acts of domestic violence, with 63,624 of these registered in 2006. 76,192 received official warnings; protection orders were applied against 6,359 people; 66,873 were fined; 375 sentenced to corrective work and administrative arrest was used against 9,334 individuals. The State Social Service for Children, the Family and Youth keeps a database of crisis families. As of 1 January 2006 this contained approximately 133 thousand families.

123.   Data from nongovernmental organizations also confirm the particularly acute nature of the problem regarding the scale of various forms of violence in Ukrainian families. For example, the National Help line on prevention of violence and protection of children’s rights run by the La Strada – Ukraine Centre received more than 1,100 calls between 2005 and the first 8 months of 2007.

124.   Analyzing government policy on combating domestic violence, it must be noted that the government is consistently avoiding adopting and implementing any far-reaching programme aimed at dealing with the problem.

125.  The responsibility for coordinating work with other government bodies on preventing and countering violence in the family is vested with the Ministry for Family, Youth and Sport. This is complicated, particularly at district and city level, by the small numbers of staff in departments on family and youth matters (1-2 members of staff who are expected to run all the Ministry’s programmes), as well as by the large percentage of time devoted to sport issues. The problems involved in implementing government policy against violence in the family are rooted in the poor level of efficiency of this central authority. The latter is responsible for issues which are unrelated to one another, namely the development of professional sport and social problems of the family, young people, women and gender equality.

126.  One of the greatest problems is receiving help for full rehabilitation. Whereas civic organizations can provide legal, consultative and psychological assistance to victims, to provide medical care one needs to have a licence (a private doctor), and this can only be gained by a person formally engaged in commercial activity. Since civic and charitable organizations are not allowed to engage in such activities, they are unable to receive such a licence. The problems involved in given specialized medical aid to victims of violence include the “conspiracy of silence” (when the victim avoids any appeals for help since s/he encounters no understanding of the problem from those around); lack of knowledge and prejudice among the public towards the psychiatric service; an insufficient legal base; the declarative nature of many legal provisions (for example, those about protection for victims and witnesses). At the present time there are no national clinical and epidemiological data for the country as a whole on psychological problems among victims of violence in the family. A State service for medical and social assistance is still only at the embryonic stage.

127.  At the end of 2006 a doctrine had been developed for medical and social assistance to victims of violence, an organizational model had been prepared for the relevant body, and optimum ways of implementing this were being worked on. At the end of 2003 propositions had been submitted to the Ministry of Health with these resulting in Ministerial Order No. 38 from 23 January 2004 “On approving measures to implement the Law of Ukraine “On the prevention of violence in the family” and the “Sample Regulations on medical and social rehabilitation centres for victims of violence in the family”. The Department for the Organization and Development of Medical Care to the Public within the Ministry of Health sent Letter No. 349 from 28 July 2006 to all regions of Ukraine asking for information regarding implementation of this item of the Ministry of Health’s Order. The responses showed that only two medical and social rehabilitation centres for victims of violence in the family had been created, one in the Chernihiv region (in the city of Chernihiv), the other in Sevastopol. Yet even these even those two centres had been opened on the territory of psychiatric and drug dependence institutions, this meaning that the principle of destygmatization which is stressed in the Sample Regulations on medical and social rehabilitation centres) has not been observed.

128.  A number of medical institutions provide medical and social assistance to victims of domestic violence, although they are not designated as permanent medical and social rehabilitation centres for this group of people. Such institutions exist in the following regions: Vinnytsa (1 institution); Donetsk (1), Luhansk (1), Lviv (2), Kyiv (4), and in two other regions – Transcarpathian and Mykolaiv, there are consulting rooms with such a profile. In the Volyn and Kharkiv regions there are only plans to open such institutions. This meant that at the end of 2006 there were only 16 medical institutions in the country providing medical and social assistance to victims of violence in the family which is far too few to cater for the needs of the entire population.

129.  The failure to safeguard people’s right to be protected from domestic violence is reflected in the following:

–  Police officers do not go out to everyday calls which to them include cases of domestic violence;

–  Prosecutor’s office staff are reluctant to issue permits for protection orders;

–  Prosecutor’s office staff and judges are not only unfamiliar with the provisions of the Law “On prevention of violence in the family” but are even unaware of its very existence;

–  The absurd need to approach the police three times before the perpetrator is arrested, although any incident can end in a fatality;

–  The existence of a provision on victim behaviour;

–  Police staff do not have the necessary knowledge and skills in cases involving family violence;

–  Insufficient attention is given to training MIA staff on behaviour and action needed in situations involving domestic violence (this applies both to initial training and to higher educational institutes);

–  The responsibility for violence in the family is shifted onto the victims;

–  The fact that fines are used as the main form of administrative punishment for perpetrators, this adversely affecting not only their material situation, but that of the family as a whole;

–  The lack of possibility of evicting the person guilty of the violence;

–  The impossibility of having any influence on those who commit acts of violence under the influence of drugs or alcohol.

130.  The reasons for the effective lack of possibility of receiving medical, socio-psychological and other assistance, as well as short- or long-term shelter where needed, are:

–  the lack of an extended system of institutions for victims of domestic violence;

–  the shifting of responsibility for financing the creation of institutions providing assistance onto local budgets, instead of via financial allocations from the State budget;

–  the lack of awareness among the heads of regional administrations, regional councils and bodies of local self-government of the need for prevention of violence and the failure to provide funds for implementing programmes;

–  the failure of the Cabinet of Ministers to carry out the provisions of the Law “On prevention of violence in the family” with regard to creating crisis centres, medical and social rehabilitation centres;

–  the Law “On prevention of violence in the family” does not contain provisions making the creation of shelters for victims of domestic violence mandatory;

–  according to the Standard Regulations on socio-psychological help passed by the Cabinet of Ministers, assistance in such centres is only provided to people under the age of 35. This is in breach of the Law “On prevention of violence in the family”, the Ukrainian Constitution as well as the principles of human rights protection. Not only therefore must the said Law be refined, but also a whole range of other laws and normative legal documents;

–  the lack of social housing and the chance to live apart from families where acts of violence are being committed;

–  work (if it is carried out at all) is only with the victims of domestic violence and not with the perpetrators. There is no institution where people who have committed acts of violence are worked with in order to formulate different non-violent models of behaviour;

–  the need to have registration in order to get into a shelter (for example, in Kyiv). In Chernihiv we were told that there is no such requirement however when the shelters and centres are financed by the local authorities, prosecutor’s offices, or Control and Audit Department can demand registration in order to get help. This also violates people’s right to receive assistance, making this dependent on place (city, region) of residence and not on the needs of the person.

B. Human trafficking

Reasons why human trafficking is on the increase

131.  The ineffectiveness of political and economic reform, corruption among civil servants, the declarative nature of social policy the ever widening divide between a rich minority and the poor majority, and the unfulfilled hopes of the first years of independence have led to disillusionment with regard to the possibility of positive changes in the country. Migration, however, is seen not only as a way of resolving financial problems, but also as a way of life and career strategy for the new generation.

132.  The situation is exacerbated not only by the crisis state of the Ukrainian economy, but also by the fact that the migration process is becoming criminalized with cheap labour provided by Ukrainian nationals becoming a source of profit for intermediaries both in Ukraine and abroad. There are also not many legal opportunities for all those who wish to go abroad to do so. Specialists ever more frequently name the growing criminalization of society as one of the factors encouraging the spread of human trafficking. Poverty, the impossibility of finding work or gaining an education because of corruption in almost all spheres of life are the main factors drawing a large number of people into criminal activities.

133.  Another factor which prompts people to leave the country is violence against women, particularly domestic violence. Experience of working with women who have become victims of human trafficking indicates that very often domestic violence prompted the women to seek a better life outside Ukraine.

134.  Surveys have shown that 47% of Ukrainian citizens aged 40 or under, i.e. those who are all of working age would be ready to go abroad. Of these 10% would like to move to another country for good, 21% for several years, and 16% for several months. That means that around half the population can be viewed as belonging to a potentially vulnerable group and could become victims of human trafficking.

135.  Another factor prompting Ukrainian nationals to go abroad in the first instance for work which is not legal and which therefore encourages human trafficking is the presence of social networks abroad. This was first pointed out in 2002 by the ILO

136.  One cannot fail to mention the heightened demand for cheap, and this includes illegal, labour, provided by Ukrainians and others from Eastern Europe or other parts of the world in more affluent European countries, the USA etc. This high level of demand, including for sex workers, must be taken into consideration in formulating an anti-trafficking strategy.

137.  The majority of human trafficking victims are young unmarried women aged between 18 and 25 who have a secondary technical education and live in rural areas. At home all of them had a very low income. As far as men are concerned, most of them are married, aged between 31 and 50 and leave the country for a short period in order to earn enough to provide a decent standard of living for their family. Their level of education is generally the same as that of women victims. Child victims are usually young girls aged between 13 and 18. Most often they come from broken families and they themselves have already suffered from domestic violence.

138.  Internal human trafficking is also rife in Ukraine. This includes exploitation of children for pornography and prostitution and not in the last instance on commission from abroad. Children are drawn into prostitution through offers not only of board, food and shelter, but also pocket money and things that the children don’t have at home. Trafficking in children also takes place with the aim of adoption for profit, exploiting the children in begging or forced labour. Unfortunately such crimes are rarely classified as human trafficking. They are more often treated as, for example, prostitution, which is wrong.

139.  It should also be noted that sexual tourism has also appeared in Ukraine as a new form of sexual exploitation of children.

140.  Approximately half of the child victims who have suffered from international trafficking are taken to the Russian Federation. The recruiters try to get children not only from unfortunate families. It should also be pointed out that Ukraine is not only the country of origin of many victims of human trafficking but also a transit country and destination point, particularly for people from Moldova.

National Action Plan

141.  Work on a draft Government Programme for combating human trafficking up till 2010 began in the spring of 2005. Those who took part in the consultations on creating this programme included the Ministry for Family, Youth and Sport, OSCE, UNICEF, the International Labour Organization and the International Women’s Human Rights Centre “La Strada – Ukraine”. The issues were put forward to be discussed at roundtables and meetings of groups of experts, and then step by step a model was created around which a programme could be developed. The programme which emerged reflected the most modern comprehensive approaches to organizing measures for countering and preventing human trafficking and contained recommendations from international organizations.

142.  However the Government Programme for combating human trafficking up till 2010 was only adopted by Cabinet of Ministers Resolution № 410 on 07.03.2007 and in a much reduced form. This meant that during 2006 there was no National Action Plan, no coordination of actions and no reporting.

143.  An analysis of the organizational and administrative measures envisaged by the Government anti-trafficking programme makes it possible to predict problems in its implementation. Among the problem areas we would point out the coordination and management of the implementation of programme measures; the financing of these measures; the lack of enough qualified specialists who can deal with implementation, financing, as well as monitoring how well the programme is implemented, etc. The Programme is carried out by central and local authorities within the framework of means allocated in the same and local budgets for the relevant year, as well as from other sources. The funding for the Programme from the State Budget amounts to 1,469.7 thousand UAH over five years which comes to a figure of less than 300,000 US dollars. However this funding also lacks its own separate place in the Budget and it will be allocated as part of the means requested by ministries. In forming the Programme, only the Ministry for Family, Youth and Sport, has asked for the relevant amount. The other ministries for reasons unknown have not submitted financial applications and in the absence of funding it would be difficult to expect the relevant work.

Protection and provision of assistance to victims

144.  One of the key issues in combating human trafficking is the provision of assistance to victims of this crime. Resolution of the Cabinet of Ministers № 989 from 27 June 2003 within the framework of the Comprehensive Programme on combating human trafficking for 2002-2005, passed Sample Regulations on rehabilitation centres for victims of human trafficking. According to this, the centres should provide psychological assistance and consultations to the victims, organize and carry out primary medical aid, find them somewhere to stay, organize individual and group rehabilitation programmes for reintegrating victims, provide information about programmes, functions and measures which are carried out in the centre, as well as information on preventive measures in combating human trafficking.

145.  In 2005 Interregional rehabilitation centres to provide assistance to victims were opened in the Zhytomyr, Volyn, Chernivtsi, Lviv and Kherson regions. This was a measure carried out by the Ministry for Family, Youth and Sport in cooperation with the International Organization for Migration [IOM] and the relevant regional administrations

146.  Representatives of nongovernmental organizations and government bodies identify a serious problem in the lack of a mechanism for returning victims from abroad. In addition those who have returned have serious problems with their health and this must definitely be taken into consideration when working with them. Assistance to victims is primarily provided by international and nongovernmental organizations. For example, in 2006 IOM helped 937 victims. The La Strada – Ukraine Centre provided assistance in 2006 to 199 victims (135 women and 64 men). Since the Centre began its work, it has helped over 900 people

147.  A process of stigmatization of victims of human trafficking can be observed.

148.  There are also serious problem in getting State funding for work helping victims.

149.  In our view the authorities are not making sufficient effort to create a system for providing assistance to victims. For example, the State Service for Social Assistance to Families, Children and Youth has refused to provide social aid to victims and said that it is only willing to engage in prophylactic and awareness-raising work and social advertising. This problem has been discussed on many occasions at seminars and roundtables however the position of the management of the State Service remains unbending.

150.  The Ministry of Health also does too little to help victims. In reality the responsibility (financial, organizational, substantive etc) is borne by international and civic organizations which run shelters.

151.  Furthermore changes are urgently required to the Law “On social work with children and young people” which is the base law for the Ministry for Family, Youth and Sport. According to this Law all the activities of the Ministry are in relation only to people up to the age of 35. The centres created under their patronage are obliged to refuse (and do indeed refuse) to provide their services to any over this age.

Combating human trafficking and punishing the perpetrators

152.  Within the structure of the Ministry of Internal Affairs special anti-trafficking units were set up in May 2000. Due to the pressing nature of this issue and the need for efficient investigation of such crimes, these units were reorganized in August 2005 into a Department for Combating Crimes linked with Human Trafficking which has a subdivision in each region of the country.

153.  According to information from the Ministry of Internal Affairs, from 1998 to 2006 more than 2,600 crimes were uncovered which fall under Article 149 of the Criminal Code (human trafficking). The number of crimes identified increases each year (1998 – 2, 1999 – 11, 2000 – 42, 2001 – 89, 2002 – 169, 2003 – 289, 2004 – 262, 2005 – 415, 2006 -376).

154.  There are many problems after the crimes have been uncovered with ensuring punishment of the perpetrators. The statistics for cases reaching the court are of interest. The MIA’s 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. As can be seen, the number of criminal investigations brought to completion is pitiful which demonstrates the MIA’s concern for its figures, and not over a high-quality investigation into such crimes.

155.  In 2005 more than 3,200 cases were uncovered of underage persons not accompanied by adults illegally crossing the border. In addition, more than 13 cases were recorded of illegal crossing of the border for the purpose of medical treatment, holiday or tourism. More than 40 cases were identified where children adopted by foreign nationals were taken out of the country, with the documents being incorrectly prepared.

156.  The main problems in combating human trafficking are the following:

–  The lack of a law on social protection for Ukrainian nationals abroad;

–  The lack of even estimated figures for the number of victims of human trafficking;

–  The programme for protecting witnesses in Ukraine is virtually non-functional;

–  The right of citizens to protection from crimes is not exercised.

157.  With regard to provision of assistance to victims of human trafficking one can identify the following problems:

–  The government is not meeting international commitments even with regard to minimum standards for assisting victims of human trafficking;

–  It is effectively impossible to receive assistance, short- or long-term shelter where needed, medical or socio-psychological assistance, the reason being the lack of an extended system of institutions for victims of trafficking;

–  The possibility, pursuant to current legislation of only providing assistance to people under 35 which is in breach of the Constitution and the principles of protection of human rights;

–  The need to have registration in order to get into a shelter (for example, in Kyiv).

C. The use of child labour

158.  According to a study carried out by the State Department of Statistics in cooperation with ILO in 1999 and 2006, more than 456 thousand children were discovered to be working, of whom 87 thousand were children from the most vulnerable group aged between 7 and 12. The real figures however may exceed official statistics since the methodology of selective statistical reviews used makes it possible to determine the labour only of those children living at home with their parents or guardians. There is a strong likelihood that children who live in asocial families, children living by begging or those in school – orphanages, as well as the children of illegal migrants, were not taken into account. The situation since then has not improved. The existence of hired child labour is confirmed by studies carried out by the Ukrainian Institute of Social Research.

159.  Among the worst forms of child labour are child prostitution, begging, children being drawn into criminal activities (stealing, drug pushing, etc), collecting glass and scrap metal, work at markets, with this normally involving loading work.

160.  The problem is that the number of underage people wanting to find work is far greater than the number of official jobs. Employers are reluctant to employ children and legislation strictly regulates the use of child labour. This leaves illegal types of work. The main types of child labour in Ukraine are:

–  Exhausting and excessively long work done by children as part of the family’s economic activities (this mainly applies to children in rural areas);

–  Work in industry, in institutions and organizations with the work not corresponding to the physical and mental level of the children, damages their health and impedes their studies and development;

–  Work in the family business which is not subject to public and State control;

–  Work outside in unfavourable weather conditions, often in an undesirable social environment (washing cars, street vending, begging etc);

–  The worst forms of child labour (use of children) in criminal activities: stealing, drug pushing, flogging stolen goods, prostitution, the sex business, being used in pornographic material, begging, etc).

161.  The main users of child labour are those working in agriculture, trading and the service industry.

162.  There are regional differences in the use of child labour. In the southern regions of the country child labour is mainly used in agriculture (weeding, etc; working as shepherds, fruit picking, caring for domestic livestock; working with fertilizers, chemicals; helpers on repair work of agricultural equipment); work in the household economy (looking after domestic livestock; caring for younger children or for people who are sick); fishing; trading; service industry work; unlawful activities; involvement in the sex industry). In the eastern industrial regions of Ukraine – collecting scrap metal; the coal industry (digging – within the family or as hired workers; sorting coal; auxiliary workers); gathering secondary raw materials); trading (setting up and equipping tents, unloading, calling out for customers, walking around with advertising boards, sorting goods, cleaning the premises, selling retail goods, newspapers in public transport); the service industry, working outside, household economy (domestic livestock; caring for younger children or for people who are sick), involvement in unlawful activities (stealing, drug selling) and the sex industry.

163.  Of great concern is the increase in the number of children begging. This form of exploitation, unlike others which involves children, is more evident since it can be seen on a day to day basis everywhere, especially in large cities. Yet the official statistics show that in 2005 in the Kyiv and Kharkiv regions only 20 criminal investigations were initiated over drawing children into unlawful activities (drinking, begging or gambling). This state of affairs is to be explained by the fact that law enforcement officers treat cases where children have been drawn into begging as a minor thing, bordering on an administrative offence and this creates a psychological barrier to bringing prosecutions against people for such actions.

164.   In analyzing the prevalence of child labour in Ukraine, it should be noted that there are no official statistics. Research carried out gives grounds for suggesting that the public are tolerant towards child labour and do not see a difference between these activities and work education. Information and awareness-raising are needed in this area.

165.   The government should support the development of different forms of youth employment through labour markets for young people, summer work camps, labour units, etc. Such initiatives are at present few in number. The main reasons for this lie in the lack of legal provisions making legal employment of children possible during the holidays and in the position of employers.

166.  All of the above indicates that there is an urgent need to develop an effective mechanism of control over the implementation in practice of current legislation regarding the work of people underage. Improvement of this mechanism must be aimed in the first instance at promoting the social protection of children from the most socially vulnerable families, adherence to the legal requirements related to child labour, particularly in the informal sector of the economy.

167.   The above is envisaged in the draft National Action Plan on implementing the UN Convention on the Rights of the Child which was drawn up by the Ministry for Family, Youth and Sport in cooperation with all interested ministries, international and Ukrainian civic organizations. It passed through its first reading in the Verkhovna Rada, however due to the political parliamentary crisis it has not yet been adopted. The draft Plan envisages the creation, testing and development of a system of monitoring of child labour which would include regular visits aimed at identifying working children and assessing the risks they encounter, as well as referring them to organizations which can provide assistance, watching over the process of removing them from the child labour situation (supervising) to ensure that the children are happy with the alternative provided).

168.   Insufficient attention, however, is paid to coordination of the activities of different ministries and departments in resolving this problem. One of the reasons for this is the complicated system of management in this area, where the Ministry for Family, Youth and Sport is responsible for ensuring observance of children’s rights, the Ministry of Employment and Social Policy should deal with violations of children’s labour rights and the Ministry of Internal Affairs – with exploitation of children. Other central authorities are also involved, with all of this having an adverse effect on the government’s responsibility for eliminating both exploitation of child labour and the conditions which engender such exploitation.

D. Information about neglected children

169.  At the present time there are no statistics broken down according to years regarding neglected children. The creation of a single computer database for orphans and children deprived of parental care with the subsequent introduction of a system for registering them is envisaged by the Government Programme for overcoming the problem of neglected children. As of today there is no such electronic database, or at least, the appropriate quantitative information is not available.

170.   The draft Law “National Action Plan for implementation of the UN Convention on the Rights of the Child to 2012” envisages bringing the system of recording neglected children into order, as well as a number of other measures for resolving this problem. Both programmes mentioned do not have clear funding or plans for such funding. This places in question the implementation of the high-sounding intentions which the documents contain.

171.  Existing measures aimed at overcoming the problem of neglected children cannot be considered sufficiently effective. For example, legislation does not take into consideration the age of the children or the situation they are in when setting out the actions of the police in returning them to their home or school – orphanage. This is the course of action for the police, for example, envisaged by Article 5 of the law “On structures and services dealing with minors”. This example serves as just one demonstration of a problem linked with the shortcomings of the State system for protecting the rights of the child which is essentially concentrated on the executive authorities and does not allow for sufficient participation of the judicial system. There is also no effective impact on the situation with protecting the rights of the child from the Human Rights Ombudsperson.

 

E. Other aspects linked with the rights of the child

172.   According to official figures from the Prosecutor General “…During 2005-2006 the courts recognized 9 thousand children (under 18) to be victims of crime. Services dealing with minors had almost 45 thousand unfavourable families with 94 thousand children on their precautionary register. However the register in police departments only had 2.5 thousand names of domestic violence offenders. As a result of brutal treatment from their parents, children have been forced to leave home, roam, beg and commit offences. In 2006 alone juveniles committed 10.5 thousand offences. 12 thousand children who had been on the street and begging were brought to juvenile shelters».[2]

173.  The same information from the Prosecutor General confirms that over recent times there has been an increase in cases of ill-treatment and sexual abuse of children by some officers of the criminal police on juvenile affairs. “The Zaporizhya Regional Prosecutor launched criminal proceedings in April this year over the unlawful detention and rape by personnel of the criminal police on juvenile affairs of the Orikhivsky District Police Station of minor D. Zatsarny. The investigation is continuing. Staff of the Zavodsky District Police Station in the Dnipropetrovs’k region used beatings and torture during the night to minor V. Halko detained on suspicion of theft. The teenager was hung up to the wall and they beat his head with a bottle inflicting physical pain and bodily injuries. The Prosecutor of the Dnipropetrovs’k region on 19.06.2006 launched criminal proceedings over this under Article 365 § 2 of the Criminal Code”.

174.   Of great concern is the ever more frequent practice by State-run school – orphanages of sending children to psychiatric hospitals for misbehaving or various misdemeanours. For example, on 8 February 2007 Sevastopol’s Prosecutor Volodymyr Dereza informed that in 2006 around 60 orphans from children’s homes and school-orphanages had for a month been held illegally in the city psychiatric hospital. The Prosecutor stated that a criminal investigation had been launched into this. He said that it could be supposed that particular children did require such medical care, however expressed surprise that in the psychiatric hospital they had formally treated the young patients and stressed: “The doctors were obliged to immediately return those children who didn’t need in-patient care”.

175.  With regard to sexual exploitation and the sexual corruption of children, figures from government institutions and nongovernmental organizations are widely divergent. For example, the criminal police on juvenile affairs during the first six months of 2006 documented 8 crimes under Article 155 of the Criminal Code (sexual relations with a person under the age of sexual maturity) and 28 under Article 156 of the Criminal Code (corruption of a minor). The results of studies carried out by nongovernmental organizations suggest a much wider scale of the problem. For example, a 2005 survey undertaken by the Ukrainian Women’s Consortium of specialists of school-orphanages showed that 34% of the specialists had come upon at least one cases of sexual coercion involving a child. In fact the problem is not typical only for closed children’s institutions, but also for general education schools. According to figures from the International Women’s Human Rights Centre La Strada – Ukraine, every seventh adolescent suffers from sexual abuse by adults.

Article 11. The right to an adequate standard of living

176.  While there has been an apparent reduction in the level of poverty over the last three years, the figures cited are to a certain extent achieved artificially. For example, the government artificially lowers the subsistence minimum which it sets. The method for calculating this is suspect since the amounts do not cover even basic expenses. And yet virtually the entire system of social security is based on the size of this minimum subsistence level.

177.  We would point out the ever widening gap between rich and poor in the country. At least one fifth of the population has great difficulty making ends meet. In comparison with developed countries, there is a gap of over 7-10 times in income between rich and poor. It should also be noted that information about the income of all except certain high-ranking public officials is not open or available to the public

178.  A sociological survey^[3] showed that on average Ukrainians receive 780 UAH per family member, while they consider that an average income of 1,638 UAH[4] is sufficient to have a normal life. At the same time, 7% of the respondents said that they had to economize even on food. 20% had enough for food, but needed to save or borrow to buy clothes or shoes. This would suggest that more than a quarter of the Ukrainian population is living below the poverty line. 34% of those surveyed said that they had enough for food and necessary clothing, but purchases like a good suit, a mobile telephone or the most basic appliances were already problematical. 26% reported big problems in buying large appliances. Only 11% of those surveyed said that the only difficult purchases would be a car, land for a dacha or a flat.

179.  The same survey showed that 41% of the respondents rated their material situation as average; 31% – lower than average; 14% – low and 4% said that it was very low. It should be mentioned that by no means all of the 7% who reported having to be frugal with food items rated their material situation as being very low. Furthermore with an average desired monthly income per member of the family of 1,638, requirements differed significantly depending where a person living. Those in rural areas said that 1,358 would be sufficient per person per month, while those who lived in towns and cities estimated they would need 1,537, with the figure for regional centres reaching 2,053 UAH.

180.  The problem of poverty is particularly acute for the working part of the population. As of June 2006 814 thousand people had pay lower than the legally fixed minimum wage (less than 332 UAH in 2005, and 375 UAH in 2006) while 2.76 million were living on pay lower than the subsistence minimum. It can be seen that even figures from State statistics show that on average 7.5% of those working receive pay lower than the legally established minimum wage. If one leaves out Kyiv city, then this figure will be higher than 10%, and in many western regions of Ukraine it reaches 13-14 %. Overall, according to figures from the State Committee of Statistics 23.7% of the population receive wages lower than the subsistence minimum.

181.  A serious problem in the country is being posed by the eviction of people from their homes without providing other accommodation. Social housing is virtually not being built or provided.

182.  As a result of developing residential construction, conflicts have become more frequent over the forced eviction of residents from old buildings which are to be knocked down to make way for new ones. We know of cases where the new developers have unlawfully but without being punished demolished old buildings and their owners have had no choice but to agree to the conditions of resettlement elsewhere.

183.  Roma people in Ukraine face serious obstacles when trying to exercise their right to adequate housing. Many live in substandard conditions in settlements or ghettos that are often cut off from mainstream society with little access to public transportation or public utilities like power or sanitation. There are absolutely no public services or improvements such as road repairs or rubbish disposal, with this also restricting access to education.

184.  In most school-orphanages all the students need to be provided with accommodation after graduating. According to the Law “On ensuring the organizational and legal conditions for the social protection of orphaned children and children deprived of parental care”, these young people are placed on the flat register after they turn 18. The overwhelming majority of students of school-orphanages finish school before reaching that age. Since the problems with provision of social housing in Ukraine have yet to be resolved, and the question of provision of housing for young people finishing school-orphanages is raised not long before they are to leave the institution, they are effectively forced to either continue their studies or find a job where hostel accommodation is provided. However this does not solve the problem, but simply puts it on hold. At present there is also no procedure for returning a young person to the home that they once shared with their parents: the young person’s right to accommodation is fixed on the formal basis of the parents’ housing. This leads to the situation whereby a young person leaving the school-orphanage has accommodation fixed in his or her name, but no actual possibility of returning to it and living there. At the same time the very fact of this fixed accommodation deprives the young person leaving the school-orphanage of concessions for receiving accommodation without waiting in the queue. There have already been some reasonably successful attempts to introduce at government level mechanisms for providing social housing to young people finishing school-orphanages however there is still no mechanism for a systematic resolution of the problem. In cases where a child did not have accommodation and registration before entering the institution, it is impossible to determine which government body should deal with providing them with housing. There is no clear legislative answer to this problem.

185.  At the present time there is no procedure for allocating temporary government assistance to young people leaving school-orphanages in cases where the parents are refusing to pay maintenance, or are not in a position to support the young person, as well as where the parents’ whereabouts are not known. There is no mechanism for providing social assistance to those young people who are not entitled to a pension due to the loss of the breadwinner, yet who are on full State support. No money can thus be saved in these young people’s personal accounts making the starting conditions when leaving institutional care unequal.

Article 12. The right to the highest attainable standard of physical and mental health.

A. General comments

186.  The demographic situation in Ukraine remains extremely serious. Despite an increase in the birth rate from 9 in 2005 to 9.8 in 2006 per thousand head of population and a fall in the mortality rate from 16.6 to 16.2 per 1000 of the population, there remains negative population growth. – 6.4 per thousand of the population. The figures for infant mortality (up to the age of one) rose in 2006 and reached 10.1 against 10.03 in 2005. The trend upwards in general illness among the population remains (with an overall increase of 1.2% as compared with the previous year). The largest increase is seen in illnesses of the vascular system – by 3%; the digestive organs – by 2.2%; an increase in injuries from accidents – by 1.8%; most among school age children (6-14) – by 9.5% and road injuries – by 8.4%; the rise in the number of people with malignant tumours – by almost 4%; with an extremely high fatality rate (32%) up to 1 year and with a considerable number (15.3%) of cases discovered in the fourth stage.

187.  Of infectious diseases, there was an outbreak of measles with 17.9 times more cases in 2006, and a 62% increase in cases of whooping cough. The situation with tuberculosis remains highly dangerous, with 83.2 new cases for 100 thousand head of population, among whom there were 22.1 deaths per 100 thousand. There were 1,101.3 people for every 100 thousand registered as having the disease.

188.  There is no system in Ukraine for informing and educating doctors on issues involving patients’ rights.

189.  There is no legislation clearly defining a patient’s rights. The following for instance are not properly defined in legislation: access to ones own medical records; the right to choose or reject a doctor or medical establishment; the right to refuse medical intervention, etc. Furthermore, in practice, these rights of the patient are infringed even despite current legislation.

190.  For example, at the present time it has become common for victims, having turned to a medical forensic expert institution and undergone medical forensic examination, to not be able to receive the relevant certificate. Very often, as well, it is impossible to obtain documents from medical institutions, where a victim was examined or treated. Medical institutions refuse to give such information referring to some instruction by prosecutor’s offices, but it is impossible to find out more about the subject matter of this instruction.

Andriy Yatsuta, detained on 24 May 2004 by police officers, on 27 May turned to the Kharkiv Bureau of Medical Forensic Examination where he underwent examination. He was then treated in two medical institutions in Kharkiv. In July 2004, Yatsuta turned to the Bureau of MFE, asking them to provide him with a copy of the medical forensic certificate, as well as to both medical institutions, asking them to give him his medical documents. His lawyer also submitted the same requests. Yatsuta’s requests for the documents were turned down. In his response, the Deputy Head of the Kharkiv Bureau of Medical Forensic Examinations wrote the following:

«We cannot give you a copy of the medical forensic examination certificate because all examinations (or research certificates) are material of preliminary inquiry and, in compliance with the Order of the Ministry of Healthcare from 17 May 1995 (point 2.21.1), a medical forensic expert is not entitled to make public data of a medical nature, which he/she has become aware of in the course of fulfilling his/her official and professional duties. A copy of the medical forensic examination certificate can be obtained only by court and investigating authorities on a request in writing».

191.  This practice entirely contravenes legislation. Moreover, on a similar issue, a decision by the Constitutional Court of Ukraine was made in the case of Ustimenko,^[5] according to which «the constitutional human and civil rights to information, its free access … in the amount needed for every person to exercise his/her rights, freedoms and lawful interests are fixed and guaranteed by the current legislation»; «medical information, i.e. information about a person’s health, his/her medical history… is information with restricted access. A doctor is obliged, at the patient’s request … to give (him/her) such information in full and accessible form».

 

B. Reform of the State health care system

192.  The President’s Decree “On urgent measures for reforming the health care system” is in our view of a declarative and political nature. While asserting that its aim is to carry out fundamental structural changes in the field of medicine and to bring in European standards for ensuring citizens’ right to medical care, it does not contain any strategy for reform of the health care system. Most importantly: the Decree provides no programme for how exactly to reform the financing of the health care system. Quoting the source: “ … to take measures for introducing modern economic mechanisms into the work of health care institutions, to clearly differentiate between spending on primary, secondary or tertiary treatment and prophylactic assistance”. It is difficult to understand what the President has in mind when he says “modern economic mechanisms”. It remains unclear whether the President supports the idea of providing economic independence to health care institutions or whether he is standing up for the introduction of forms of mandatory State social health insurance. Nor is there clarification of a number of other practical provisions of the Decree, for example the introduction of European standards of medical aid; raising the level of provision to the population of health care and medicines especially in rural areas; allocation of premises for rural medical outpatient facilities and improvement in the system for prophylactic medicine checks of the population; providing medical staff with accommodation, work cars and means of communication.

193.  With the aim of introducing a system of mandatory State health insurance a number of different draft laws have been tabled in the Verkhovna Rada, however none has been passed. We would point out that the right to health insurance is enshrined in Article 49 of the Constitution. Furthermore, according to the “Fundamental principles of legislation on mandatory State social insurance” (14 January 1998), health insurance is one of the mandatory forms of State social insurance. However there is to this day no law relating relations with regard to health insurance. At present there are two main competing concepts for introducing health insurance. The first asserts the need to introduce mandatory health insurance based on budgetary funding for the heath care system. The other proposes mandatory health insurance with the involvement of insurance companies, as well as the government. Supporters of both concepts have tabled their draft laws in the Verkhovna Rada. For example, the first option was proposed in Draft Law № 0944 „On State social health insurance” which in autumn 2003 was not far off getting enough votes to be passed in its third reading in the Verkhovna Rada. At present, there is a new attempt, with Draft Law № 3155-1 „On general mandatory State social health insurance” tabled at the beginning of 2007. Opponents of this put forward their Draft Law № 3370 for Verkhovna Rada consideration during the pre-2006 election term. That was not voted on, however already in September 2006 Draft Law № 2192 was tabled, this based on involving private insurance companies.

194.  It must be said that each of these concepts has its advantages and shortcomings. The introduction of health insurance oriented on a model of mandatory civil insurance could lead to a regressive character of financing (the poor pay relatively more than the rich), there could be different programmes of services depending on the amount of insurance; competing insurance markets could be created which would almost inevitably lead to less justice, especially with regard to the elderly or those with chronic conditions. In addition, this model of health insurance involves a mechanism for management which is quite complicated to implement. There have not been any clear moves towards introducing health insurance and this reform which could have realistically helped resolve the problem of funding has been put off indefinitely.

195.  The proposals put forward by the Ministry of Health to the draft recommendations of the parliamentary hearings of 6 July 2005 on the subject “Problems in providing health care and medical services for Ukrainian citizens and ways of overcoming them” speak of the need to agree with all interested parties a draft law on mandatory State health insurance which will envisage stipulation of a fixed percentage of individuals’ income tax aimed at providing financing for medical services for those insured, or the introduction of a special insurance contribution or allocation of the relevant quota for financial medical care for those insurance within the structure of a single social tax.

C. The accessibility and level of funding for medical establishments

196.  The system in Ukraine for financing the health care service is unsatisfactory and makes it impossible to provide high-quality and free medical care.

197.  The present mechanisms for funding reduce the efficiency of the health care system. The report by the Blue Ribbon Commission was blunt in its assessment: “Public funds are allocated, in essence, to support the costs of existing health care facilities and not to achieve health care results. Hospitals face little incentive to reduce the number of admissions, as financing is still based on bed capacity. This creates perverse incentives, resulting in a rise in unsubstantiated hospitalizations. Hospital stays in Ukraine are among the longest in Europe, at an average of 14.4 days. State and communal health care institutions continue to have the status of spending units with very limited rights and incentives to make management and financial decisions that would allow for more efficient use of resources. Allocation of budgetary funds is based on a list of permitted line items, with norms set by the Ministry of Health. Although financing is decentralized, with 80 percent of total funding allocated at the regional and local levels, health care administrators have little authority to deviate from rigid line-item budgets. Budgets are strictly itemized, and the volume of resources set aside for each budgetary item is strictly regulated. Similarly, health care professionals receive fixed salaries set in accordance with a national pay scale, so remuneration bears little relation to quality of work or number of patients seen. Staffing levels are determined in accordance with norms set by the Ministry of Health, most often based on a set standard of hospital beds per 10,000 people”^[6].

198.  4.92 UAH per day is allocated for each patient in hospital (for both treatment and meals). Even less is assigned for one visit to an outpatient clinic – 0.42 UAH. The budget for 2007 allocated a mere 100 million UAH for rural health care establishments despite an overall increase in funding of health care of more than 4 billion UAH. Such a pitiful amount of funding is manifestly inadequate to meet the needs of rural medicine.

199.  Another major problem is the neglected state of primary care. “Too much funding goes on expensive inpatient care, while less costly primary care is neglected. Ukraine has 5.94 hospitals per 100 thousand people, higher than the EU average of 3.2. Maintaining such a large number of inpatient facilities restricts funding for other purposes. The volume of specialized care exceeds that of primary care, turning the typical “heath care pyramid” upside down. Primary doctors constitute just 26 percent of all doctors, whereas in some European countries the share is as high as 50 percent. Ukraine has only 3,354 of the 33,000 general and family physicians it needs, so hospitals and ambulance services are used to provide routine medical assistance. By one estimate, nearly one third of hospital patients would qualify for outpatient care”.^[7]

200.  An absolute majority, over 85% of the population, are not able to receive medical care in private medical establishments because their income is too low. Since 1996 the percentage of individual payments which the population officially pays has risen from 18.8% to 38.5% of the overall spending on health care. If one adds the unofficial amounts of payment then this percentage will rise to 52%. This means that in fact Ukrainians pay more than half of the cost of medical services from their own pocket. Most of this money goes on medicines. Widespread payments for health care make it less accessible for the poorer parts of society which infringes the principles of justice and equity. Charges make the poorer put off going to the doctor as a result of which they often only go when the need is already urgent when an illness that might have otherwise been curable has gone beyond that stage. This situation results in a considerable number of people effectively do not received medical care.

201.  Informal payments in the area of health care foster corruption. Such informal payments commonly made for medical services are viewed by a lot of medical workers as justified compensation for their low salaries. The volume of these payments is large, and while on the one hand they keep medical workers from abandoning the profession, they do give preference to the wealthy and undermine the transparency of the system, which has a demoralizing effect. There are cases where doctors demand extra payment for treating their patients with proper care. This has become so habitual in many medical institutions that doctors don’t even talk about it directly: the patient already knows from experience that if s/he doesn’t pay up, this will be reflected in the treatment. There is believed to be particular corruption over any kinds of medical operations, services during childbirth and examinations using expensive equipment.

202.  There is an extremely dangerous situation in the increasing problems with staffing of the health care system. On average there are around 80% of the doctors actually intended, with the lowest figures being 71.7% of optimum staffing in rural outpatient clinics and 74.7% in district hospitals. 219 rural hospitals do not have a single specialist. The overall number of doctors per 10 thousand head of population is 41.6, however of these only 26.5 are actively engaged in providing medical assistance. There is a steady increase in the number of those having already reached retirement age among working doctors, with this number reaching 21% in 2006. Among the remaining doctors, almost half are near retirement age. The number of specialists trained on State commission in 2006 met only 60% of the needed staffing for health care establishments. There is a similar situation with staffing as regards middle-level medical personnel, and this is with the lowest ratio in Europe between doctors and middle-level medical staff which stands at 1.2.2.

203.  According to information from the Ministry of Health, at present there are almost 300 villages with populations of between 500 and 1,000 people which don’t have hospitals at all.

 

Assessment of the ability to receive medical care at ones place of residence (in percentages, according to the results of a sociological study carried out by the State Committee of Statistics from 18 October 2006)

 

Are you able to receive the necessary medical care where you live?
	Yes	No
Urban areas
2003	42,8	57,2
2004	51,3	48,7
2006	50,4	49,6
Rural areas
2003	19,5	80,5
2004	21,4	78,6
2006	24,4	75,6

D. Reducing the number of stillbirths, infant and child mortality and ensuring the healthy development of the child

204.  Ukraine has not drawn up nor therefore implemented the programme recommended by the Committee in Item 13 of the Concluding Observations of the Committee on Economic, Social and Cultural Rights

205.  The problem of infant mortality (in the first year of life) and child mortality (up to the age of 18) remains serious. The Deputy Minister of Health, Viktor Veselsky, has himself stated that these mortality rates are continuing to rise. The seriousness of the problem is demonstrated by the special meeting held at the Ministry of Health. The rise in infant mortality was confirmed and broken down into different regions for the first six months of 2006. With an average for the country of 10.12 deaths per one thousand babies born, in the Zhytomyr region the figure was 14.79, in the Kirovohrad region – 13.98, the Chernivtsi region – 13.26 and Luhansk region – 12.87.

206.  Another indicator is also showing an increase each year, this being the number of women dying during childbirth. For example, in the Luhansk region where another special committee from the Ministry of Health worked, it was found that in 5 months of 2006 the indicator for maternal mortality was 50.7% (4 women died, as against one death in 2005). This suggests serious failings in the organization and quality of medical care provided to pregnant women, women who are giving birth or who have done so recently, both in-patients and those treated on an outpatient basis.

207.  Despite the large number of programmes, plans and strategy plans (cf. Items 379-393) of the Government Report), only families of reproductive age have really felt that the government is doing something and then only on one issue. This was seen recently, in 2005, when on the initiative of the new President mothers began receiving 8,500 UAH as a one-off benefit which had a significant impact on the material provisions and therefore on the likelihood that young families would decide to have a child.

208.  Medical assistance for pregnant women in the antenatal period is mainly fee-paying. Most investigations which could significantly influence the prognosis regarding childbirth which are carried out at the family’s expense are not available to a significant part of the population, especially those in rural areas. This is another reason why the state of health of children and adolescents in rural areas is much worse than that of their urban counterparts. As a rule, there are also effectively charges to be paid for childbirth. Parents pay through various means: these can be so-called charitable contributions to the unidentified needs of the maternity unit or huge lists of medicines for labour which the unit as a rule takes when the prospective mother is being admitted. There are also the “voluntary” but obviously compulsory payments to midwives, anaesthetists, etc. All of this adversely affects the level of medical aid to the mother and child and results in a high likelihood of complications during labour and in the neonatal period.

 

E. Prevention and treatment of epidemic, endemic, work-related and other illnesses, and combating them

 

Observing the rights of people living with HIV/AIDS and the spread of AIDS

209.  Ukraine is facing the most serious AIDS epidemic in Europe. At the end of 2005 more than 88 thousand cases had been recorded since the beginning of the epidemic. As we know, official figures regarding the scale of the epidemic tend to be unrealistically low as they include only those who have undergone a test and been diagnosed as HIV-positive. Experts estimate that the real number is around 400 thousand or approximately 1.4% of the entire adult population.

210.  In ever more cases HIV is developing into AIDS and leading to death. Since the epidemic began, 13,100 people have been diagnosed as having AIDS, and over 7,500 have died of it. In 2005 alone 4,500 people were found to have the disease with this being a 50% increase in diagnosed cases over the previous year. The number of deaths from AIDS is also rising swiftly with 2,100 people dying in 2005. at the beginning of 2006 63 thousand people were on the records as living with HIV and were officially registered within the network of regional and local centres for prophylactic measures and combating AIDS. Other patients had either died of the disease or those carrying out the monitoring had lost track of them. Of those living with HIV/AIDS, and on the health register, 5,100 were diagnosed as having AIDS.

211.  During six months of 2006 8,058 new cases of HIV-infection were recorded among Ukrainian nationals, and 10 among nationals of other countries. 2,393 people living with HIV were diagnosed as having AIDS, including 61 children under the age of 14. Despite the wide-scale introduction of antiretroviral treatment, there were 1,140 deaths from AIDS, including 17 children. As of 1 July 2006, there were 67 974 people officially registered as having the HIV infection. . This equals 144.3 people living with HIV per 100 thousand head of population (On 01.01.05 this was 133.5 per 100 thousand). In more than 6 thousand cases (6,297) the HIV infection has developed into AIDS. Of people with AIDS, the figure is 13.4 per thousand head of population (the analogous figure for 1 January 2005 was 10.8 per 100 thousand).

212.  The highest rates are registered in the following regions: Dnipropetrovs’k (356.5 per100 thousand head of population), Odessa (347.5), Donetsk (319.4), Mykolaiv (298,2) , and in Sevastopol (259,2) and the Crimea (221,3). These regions also have the highest number of new cases of HIV-infection.

213.  Over the last six months the infection was contracted in the following ways: parenteral (in general through injecting drugs) – 45,3 %; through sexual intercourse – 35,4 %, (predominantly heterosexual)l from mother to child – 16,4 %, not identified – 4,5 %. In the first two quarters of 2006 3 649 injecting drug users were registered, this being 45.3 % of all those officially registered as living with HIV in Ukraine. According to monitoring, over six months of 2006 1,285,402 tests for HIV antibodies were carried out in Ukraine, with 15,380 people being identified as HIV-positive (1.2%). The number of people identified as having the HIV infection among pregnant women and potential donors is on the increase. Under the code 108 (donors), 542 people were infected (1.13%) and under 109 (pregnant) – 1,577 women (0.31%)

New national estimates[8]

1. Most vulnerable groups of the population (aged from 15 to 49)
Group of the population	Estimate of the number of members of the group		Estimate of HIV prevalence rate (%)		Average number of adults living with HIV/AIDS
	low	high	low	high
Injecting drug users	325 000	425 000	11.00%	66.00%	144 183
Men having sexual intercourse with men	177 000	430 000	3.00%	15.00%	27 315
Women sex industry workers	110 000	250 000	8.00%	31.00%	35 100
Male clients of female sex-workers	330 000	750 000	2.00%	5.00%	18 900
Total	942 000	1 855 000			225 690
2. Partners of members of the most vulnerable groups (aged from 15 to 49)
Partners of injecting drug users	422 500	552 500	8.00%	31.00%	95 063
Female partners of men having sexual intercourse with men	177 000	430 000	1.00%	3.00%	6 070
Partners of male clients of female sex-workers	825 000	1 875 000	0.60%	2.00%	17 550
Total	1424 500	2 857 500			118 683
3. Calculated number of people living with HIV (all age groups)
Men living with HIV (all age groups)						205 660
Women living with HIV (all age groups)						171 940
including children up to the age of 14 living with HIV						2 850
Total						377 600

214.  The overwhelming majority of social measures aimed at youth and socially vulnerable groups in society which are envisaged in various legislative acts, for example, providing them with support through an extended network of specialized institutions, as well as social and psychological assistance, have not yet been implemented. There has also been no action on the following:

–  Reducing the spread of HIV infection among vulnerable groups of the population, in particular, injecting drug users through the development of a network of rehabilitation centres for injecting drug users to get them off drugs and help with social adaptation;

–  The introduction of a programme of substitution therapy and joining it to programmes for prevention, treatment, care and support for those living with HIV or AIDS;

–  The extension via State and civic organizations of a network of specialized services for vulnerable groups of the population in order to ensure their access to social, medical, information, psychological and legal services.

215.  State funding and loans from international organizations for these purposes are not spent wisely or with infringements of legislation. This is evidenced by the Accounting Chamber’s audit into how effectively funding from the State Budget and from the World Bank is spent on implementing the National Programme for prevention of HIV infection, help and treatment of people living with HIV or AIDS for 2004-2008. According to the audit: “The Ukrainian Ministry of Health as the State body entrusted with implementing State policy in health care, ensuring the sanitary and epidemiological well-being of the population, is not coordinating work on combating HIV-infection and AIDS properly. The measures are in fact being implemented in an unsystematic manner and do not achieve the objectives set down in the National Programme. For example, the lack of realistic planning and clear organizational measures by the Ministry of Finance and the Ministry of Health have resulted in loans from the World Bank to implement the National Programme being used by only 2.6%. The use of State funding has been confined merely to buying medical supplies and equipment which can in no way resolve the problems of overcoming the epidemic of HIV-infection and AIDS in Ukraine. Prevention of HIV among vulnerable groups in society through information and awareness-raising work which if carried out could stop the epidemic is virtually non-existent.” (23.01.2007).

216.  According to figures from human rights organizations, the level of discrimination against people living with HIV/AIDS, groups vulnerable to infection, for example, injecting drug users and sex workers, remains very high. It is seen mainly from the staff of law enforcement agencies, health care institutions and educational institutions, and in infringements to norms of the laws “On preventing the Acquired Immune Deficiency Syndrome (AIDS) and the social protection of the population”, “On the fundamental principles of health care legislation in Ukraine” and other normative legal acts These are most often norms relating to the requirement for tests to be voluntary, to doctors’ duty to keep information to themselves and confidentiality of medical records and generally the right to privacy. Personnel of law enforcement agencies threaten to prosecute people unless they take a test for HIV and information about positive results of such tests become known not only in health care establishments, but also in kindergartens or schools where the person infected is a child. There have been cases where people have been refused medical care, or its scale has been reduced. All of this contributes to an increase in the stigmatization and marginalization of people living with HIV/AIDS.

217.  Attempts by the Government to resolve system and organizational problems involved in combating HIV/AIDS are reflected in the creation of a National Coordination Council on Preventing the Spread of HIV-infection and AIDS (16.05.2005) and the Committee on Combating HIV-infection and AIDS and other socially dangerous diseases (31.05.2006.), however in the opinion of observers from civic organizations there have yet to be any significant moves forward towards resolving the problems.

Other epidemics (tuberculosis and hepatitis B and C)

218.  At the present time 84.1 people per 100 thousand of population are suffering from tuberculosis, and the number of deaths is 23.1 per 100 thousand.

219.  More than 10 percent of those with the disease in Ukraine have specifically this drug-resistant form. The lack of a system for fighting drug-resistant tuberculosis is one of the major causes of the epidemic in Ukraine. Patients with this form which at the present time is practically untreatable, not only themselves cannot get better but continue infecting others. According to the anti-tuberculosis programme patients mostly receive free treatment, however this does not, unfortunately, include medicines for concomitant illnesses. Moreover, the living conditions and food in the majority of tuberculosis treatment units are such that they encourage patients with an open form of tuberculosis to travel home (in public transport) to have a wash and to go to shops to buy food to eat. They can clearly infect passengers who happen to be on a bus with them, or their neighbours or relatives. An even partial lack of implementation of legal acts on preventing a tuberculosis epidemic thus renders meaningless the law itself, making it words alone.

220.  Tuberculosis is spreading particularly rapidly among Roma people. The number of cases per head of population among them is at least twice that of the population as a whole. They are also often unwarrantedly refused medical treatment or examinations. In one of the Uzhhorod camps 25% of the 300 residents have tuberculosis. The regional department of health has confirmed that a large number of the Roma children in the Transcarpathian region have tuberculosis.

221.  The situation with infectious diseases is no less serious. The epidemic with hepatitis B and C is getting worse with both the number of cases and number of deaths on the increase. Official statistics on this issue are either being held secret or are not kept, and this is while there is not one government programme for overcoming the epidemic. Unlike people with HIV/AIDS, those suffering from hepatitis B or C have no chance to receive adequate State-funded antiviral treatment and are not examined free of charge. Even in most hospitals for infectious diseases, the analysis for diagnosing the type of hepatitis is done at the patient’s expense. With such prevalence of this extremely dangerous infection, additional norms must be added to the Law “On infectious diseases”, and a separate programme created. Ignoring the problem leads to serious latency of the epidemic and its further spread.

F. Problems with prisoners’ right to health care

222.  According to figures from the State Department for the Execution of Sentences as of 01.01.2007 there were 4,695 HIV-infected people in penal institutions, and approximately 7.6 thousand people suffering from an active form of tuberculosis. During 2006 there were 741 deaths among inmates of the Department’s institutions, including 44 cases of suicide. The mortality rate comes to 4.6 per thousand prisoners (on average the figure in the country is 16.0).

 

Illness and deaths in institutions run by the State Department for the Execution of Sentences

Indicators	1.1.2004	1.1.2005	1.1.2006	1.1.2007
The number of people in penal institutions	191 677	188 465	170 923	160 725
Deaths	824	808	868	741
Per thousand prisoners	4,30	4,29	5,08	4,61
Cases of suicide	41	44	40	44
Per thousand prisoners	0,21	0,23	0, 23	0,27
Suffering from an active form of tuberculosis	9 080	10 198	9 020	around.7,6 thousand
Per thousand prisoners	47,37	54,1	52,77	47,28
HIV-infected	1 917	3 568	4 058	4 695
Per thousand prisoners	10,0	18,93	23,7	29,2

 

223.  Medical care in penal institutions and pre-trial detention centres is extremely under-developed. While completely in the State’s control, people are often infected with dangerous illnesses and are not provided with adequate medical care. The lack of such care can often end in the person’s death.

Olha Bilyak, born in 1971, was detained on suspicion of committing a crime and held in custody in a SIZO [pre-trial detention centre] in Kyiv. Ms Bilyak denied any wrongdoing and asked on many occasions to be released from custody, referring to weak evidence against her, her alibi and also the fact that she had disability status, and a child who needed treatment. The illnesses which Ms Bilyak suffered from are on the list of those constituting grounds for release from imprisonment. Ms Bilyak was convicted by a first instance court, but this verdict was revoked by a court of appeal and the case was returned for additional investigation.

While held in the SIZO, Ms Bilyak contracted a serious form of pneumonia for which she did not receive adequate treatment. Her lawyer sent an application to the head of the SIZO asking for Ms Bilyak to be examined and referred for hospital treatment but was told that Ms Bilyak’s condition was such that she did not require hospital care. According to the head of the SIZO, he sent a letter to the investigator informing him that Ms Bilyak was seriously ill and could not take part in the investigation. However the letter said nothing about her illness preventing her from being held in custody. On 30 January the investigator refused to allow Ms Bilyak’s lawyer to see her.

On 2 February he told the lawyer that he had sent an order calling for her release to the SIZO. The SIZO staff told her parents by phone that Ms Bilyak had been released on 30 January. After a long search they found their daughter’s body in the morgue. A worker at the morgue told them that the body had been brought from the SIZO on 30 January 2004. The behaviour of the investigator and the SIZO staff gave grounds for believing that they were trying to conceal the real circumstances of what happened.

224.  The Dnipropetrovs’k Section of the International Society on Human Rights visited ten corrective establishments, where it conducted a research of living conditions of persons diagnosed with tuberculosis.^[9] They interviewed the heads of some of these institutions; surveyed 1500 prisoners suffering from tuberculosis; 500 people with tuberculosis who had already been released from penal institutions, as well as 112 employees of hospitals within penal institutions where tuberculosis patients are treated. The monitoring group visited patients’ wards, hospital units, manipulation rooms, laboratories, canteens, shower rooms, toilets, places where parcels or prisoners’ personal belongings are stored, chapels and churches on the territory of penal institutions, the offices of doctors, nurses and employees of the regime service, as well as of the heads of the institutions, guards’ rooms, etc.

225.  They came to the conclusion that the conditions, in which these ill people live, can be regarded as cruel and inhuman.

226.  The overwhelming majority of tuberculosis patients are held in premises where there are between 54 and 100 beds over a space of 60 m². The bed-bunks are two-storey, which shuts out the light, since the top bunk is at the level of the windows which are already small and have grating over them. It’s damp in the place, and in winter it’s cold, while in summer very hot.

227.  For 100 patients, there are 5 washbasins, only 4 «contraptions» without a cistern, partitioned off only on the sides, with no other walls or doors from the front.

228.  The shower rooms were in a separate block and were dark areas of around 25 m², in which 4 shower contraptions had been fixed to the walls, also without any partitions, or any places for putting clothes. During their visits none of the shower rooms had hot water, the taps needed fixing, and the floors and walls were dirty. Most of the ill prisoners replied that they were only able to have a shower once a week, however half of them said that the taps needed to be fixed, a third commented that the rooms were dirty, and that there were problems with hot water, and only 3% dared to say that in the shower rooms repairs dragged on for half a year.

229.  The researchers found that the food was not fit for consumption, prepared from low-quality products, and provided in small portions.

230.  The patients’ canteen is a big hall of 300 m², dark and without lighting, with the electric lights not turned on during dinner (to economize) and light gets into this dark place only through the doors when patients come in or through the doors of the place where the food is given out.

231.  The diagnosis of tuberculosis in penal institutions would appear to be at a reasonably decent level going by the information from the survey and our interviews, as well as from our own observations. In the penal institutions there are X-ray facilities and reasonably well-equipped diagnostic laboratories. Most of those suffering from tuberculosis are examined using x-rays and by a doctor. However only approximately 50% of those ill have been laboratory tested

232.  The treatment is insufficient, as is confirmed both by the patients surveyed, by the medical staff and even by the heads of penal institutions. There are not even enough specific drugs against tuberculosis, and no effective anti-tuberculosis medication of the new generation, nor are there drugs for strengthening the immune system of patients, vitamins, general health-strengthening medicines, etc. Approximately 30% of the prisoners with tuberculosis stated that they were brought medication by their relatives. Up to 10% said that they received medication irregularly, or not at all, although they did need it.

233.  Care for the patients, especially those seriously ill, is unsatisfactory, given not by members of the staff, but by sick prisoners themselves from those who have less serious instances of the disease and whom the administration designates as «hospital orderlies». In return for this work they are placed in wards not with 100 bed-bunks, but for 6-8 people.

234.  The overwhelming majority of prisoners with tuberculosis have been in the hospital from 3 months to a year. A third said that their state of health during that period had improved, while more than a third considered that their condition had either not changed or had got worse.

235.  The survey among 500 tuberculosis patients who had been released, but who had at one time been treated for tuberculosis in penal institutions gave the following information:

–  All 100% of those surveyed answered that they had first contracted tuberculosis in penal institutions. 64% had been released due to the illness. Of the 500 people, 422 (84.4%) had been officially given disability status.

–  92% said that the wards were damp, in winter cold and in summer very hot. 96% commented that in the unit (outside the ward itself) it was cramped, dark and damp, with access to water difficult, while up to 10% said that it was dirty both in the wards and in the overall unit.

–  89% mentioned that the shower rooms don’t function for months on end, or there are repairs, or no hot water, while more than 85% say that you can yet to the toilets when you need to, but they don’t flush and they’re dirty.

–  89% spent time in the fresh air everyday, while 11% did not due to the seriousness of their state of health. 97% of the 500 men asked said that the food was bad, with 76% commenting that parcels did not always reach them, and if they did, they were spoiled, ripped and «only half full». Parcels handed in were received by only 32% of those asked.

–  The overall assessment of the everyday conditions was as follows: 91% – bad, 9% – satisfactory.

236.  When asked about the treatment, diagnosis and care of the patients in penal institutions, of the 500 surveyed 87% said that aside from x-rays, they had had no other examinations, nor had there been specialists from other hospitals or tuberculosis treatment units. 96% stated that the treatment had been carried out with two forms of medication – turbazid and streptomitsin, meaning without any new generation drugs. 84% answered that care for seriously ill patients was given by orderlies, but not from among the medical personnel, but from those also suffering from tuberculosis, but with a milder form of the disease. 93% described the care as bad, while 7% said that it was satisfactory. Only 4% confirmed that relatives were allowed to visit seriously ill patients, with 10% answering that they didn’t know, and 86% saying that such visits were not permitted.

237.  The group also carried out a survey of 112 members of penal institution medical personnel. The medical equipment, in the opinion of the medical personnel, was in a bad state and out of date, while the provision of medicine for patients was either inadequate (32%), or of an inadequate range (28%). Nor did those surveyed conceal the fact that in more than half the cases relatives helped provide the patients with medicines, that often (according to 62%) there were not enough specialists for consultations. They claimed that where there was a conflict of interests between regime and medical readings, the issue was decided in each case on an individual basis (61%). 54% rated their level of knowledge about prisoners’ rights as average, while 18% said that it was low.

238.  As to the morbidity with tuberculosis: In one juvenile educational colony each year over the last few years 4 -5 young people have contracted tuberculosis – with 350 convicted prisoners this means that the illness readings amount to 1400 per 100 thousand, whereas in society as a whole this figure comes to 80 per 100 thousand, that is, 18 times less. This can be considered a double epidemic, since by international standards if the rate of those who have contracted tuberculosis reaches 40 per 100 thousand of the population this is considered an epidemic in the country.

Article 13. The right to education

239.  The results of a study carried out by a group of civic organizations in 2006 again drew attention to the large number of children not attending school. Within the framework of the study surveys were carried out and statistical data gathered. “The number of children who systematically or constantly do not attend school is an indicator of the failure to enforce Article 28 § 1.d of the UN Convention on the Rights of the Child. The figures are particularly high in the Kharkiv region where 65.8% of those surveyed said that they knew children who do not attend a kindergarten or school. In the North 33.5% gave this response, in the South – 27,8%. In the West, according to statistical data from the beginning of 2006, out of 86,492 children of preschool age, 59,492 for various reasons do not go to a preschool, while of 206,394 children of school age the number is only 11. This correlates with the results of the survey among the public. In the Volyn region 52% of the respondents said that they knew children who do not attend a preschool centre or school; 60% in the Chernivtsi region; and 76% in the Transcarpathian region. To compare the provision of the right of a child to be in a preschool centre or school even within the limits of one overall region it is worth noting that only 24% of those surveyed in the Ternopil region spoke of knowing of children who were not attending an educational institution. .

240.  Access to pre-school education and good-quality education is extremely restricted for children living in rural and outlying areas.

241.  The restricted access to pre-school education for children living in rural areas was confirmed with data provided by the Minister of Education and Science S.M. Nikolayenko at a session of the Verkhovna Rada on the state of rural education on 10 January 2006. “At present 65% of urban children receive public pre-school education, while in rural areas the figure is 24 percent. In the Lviv region kindergartens are attended by only 9% of the children from rural areas; in the Rivne, Zhytomyr, and Kyiv regions by 10 percent and in the Volyn region by 16 percent”. According to the State Committee of Statistics 54% of children of appropriate age attend pre-school institutions. The difference between the number of children receiving pre-school education in urban and rural areas is considerable and cannot only be explained by the decision of parents to give their children such education themselves. Children from rural areas are usually unable to receive pre-school education due to the lack of such facilities.

242.  The closure of rural schools is by no means always justified and it is these schools which most often fall under the axe. Since 2001 779 schools have been closed of which 779 (or 85 %) were in rural areas.

243.  The School Bus Programme which government bodies refer to when these closures are mentioned in practice only partially solves the problem. As a result 297.3 thousand children are forced to make their way to school each day solely on public transport.

244.  There have been no notable moves towards achieving equal access to education for children with mental health disorders. In Ukraine there are children who are entirely or partially deprived of access to education. This is confirmed by data from the National Assembly of People with Disabilities in Ukraine:

“…At the present time in Ukraine there are a large number of children who don’t receive any education at all. This especially applies to children with mental health or learning disorders, as well as those children who are looked after by the State in children’s homes or school-orphanages within the social protection system, which do not carry out educational activities or do not have the relevant specialists or teachers.

Education is also not envisaged for children with medium or severe learning disability. Even the standard for education is developed only up to the level of elementary school and only for children with light learning disabilities. Within the framework of implementation of the State standard for elementary general education for children with special needs curricula were issued for preparatory and first grades according to a new content and structure. At the present time the curricula for grades 2 – 4 have only been sent to the publishers. In 2006 only textbooks and course manuals for children with disabilities (92 titles) were added to the list of educational material for general schools and technical-vocational colleges.

Nor are children with hearing or sight impairments able to fully exercise their right to education since there are not enough textbooks and special literature printed, for example, in Braille, nor are there the technical means for helping children with sensory disorders receive a full education and learn to lead a free and autonomous life.

The issue is therefore how to provide students with disabilities with textbooks and other learning material. At the present time there are no exact figures about the level to which the need for domestic textbooks is being met in school-orphanages where 54.1 thousand children with disabilities study. The tuition is in Ukrainian, although most of the textbooks which date back to Soviet times are in Russian

A particular place in the barrage of problems children, especially those with neuromuscular disorders, face, is occupied by the sheer difficulty of getting to educational institutions. Nor is the problem confined to education, but is the same with health care, housing and transport, sports and cultural premises, which leads to them being effectively isolated from society”.

245.  It is important to note that the problem of social integration of children with special needs, for example, of equal access to education and the opportunity to attend general educational institutions, requires a clearly defined action plan. We need to train the appropriate specialists, develop and create the necessary material base, adapt educational premises for people with special needs, as well as learning programmes, and to prepare absolutely all members of the educational process for the changes to come.

246.  There is a serious problem in Ukraine of access to education for migrants, refuges and members of certain ethnic groups, in particular the Roma.

247.  The worst situation with regard to education is seen in places with a large number of Roma people, primarily in the Transcarpathian region. According to information from the Roma newspaper “Romany Yag”, in the Transcarpathian region 83.7% of Roma children had received incomplete secondary education; 14,5% – general secondary; 1,4% – a special vocational school and only 0.15% had a higher education.

248.  According to figures from the Institute of Sociological Research, 68% of Roma people cannot read or write, or only with difficulty. 59% cannot count or have trouble doing so. Among the group of Roma surveyed, 25% could not write at all, 34% had never attended school, and 49% had some elementary school education.

249.  These statistics reveal a troubling reality that the vast majority of Roma children in Ukraine are either not attending school at all or are being denied access to mainstream schooling. The outcome of both is the same. An entire generation of Roma children are growing up and preparing for adulthood in a way that will leave them with extremely limited opportunities to have futures that will be free from poverty, social marginalization and great suffering.

250.  The direct refusal to enrol Roma children in mainstream and/or elite primary schools is a known and regular occurrence in Ukraine. Adequate documentation on the extent of the problem is, however, lacking to date, in large part because the Ukrainian government has never made any comprehensive effort to determine the scope and nature of this issue.

–  One of the Roma said that he had attempted to enrol one Roma child in five different primary schools. One after the other, each of the five refused, either outright, or on the basis of claims that classes were full. In the case of the latter, non-Roma families were observed successfully enrolling their children of the same age in the same schools afterwards. One of the parents tried to enrol her child of 3 in the kindergarten “Zolota Kazka”. The director almost agreed to accept the child, but after she found out that the child’s mother was Roma problems appeared. They tried to find any reasons to postpone the process of accepting the child, such as increasing the monthly payment for the child, organising a psychologist test, over 3 weeks they kept ringing with questions about when the child could start and in which group. The whole process took 3 month after which they informed the mother that they couldn’t take the child since he was watching cartoons and knew how to use a computer.

–  In the village of Nyerubayskoye, in Odessa oblast, the local high school segregated Roma students away from other students by placing all of them, irrespective of age, in a single classroom with one teacher in a building separate from the newer main school building. These children come from the poorest families in the town whose parents were often unable to send them to school for lack of money for clothing, school supplies or even to cover the costs of travel. 29 Roma families wrote letter to the school head asking for their children to be integrated with the others, but were told that this could not be done and that “it was the tradition”.

251.  Roma parents are unwilling to send their children to school because most of them are poor and cannot provide the children with all that they need for school (clothes and footwear, stationery, books etc). According to representative of the Ministry of Education teachers tend to attribute learning difficulties mainly to unsystematic attendance, defiant attitudes to individual studies and homework, lack of awareness of parents to the need to educate their children. As a result of irregular school attendance of Roma children and active migration of the Roma population, teachers often encounter the problem when children of a given age have different education levels. There is another reason that creates obstacles for school attendance by Roma children – a range of traditional stereotypes of Roma that demotivate education of Roma children. Roma youth, especially Roma girls, marry and bear children in early age. Roma girls traditionally assist their mothers at home and prepare to wifehood.

252.  The government does not pay for vocational or higher education for refugees or the children of people applying for refugee status. Since the children are not Ukrainian nationals, vocational or higher education is provided fro a fee on the basis of individual contracts. One therefore sees only isolated cases where the children of refugees can receive such an education, and they are therefore forced to go out to work after finishing school.

253.  There is also a problem with child refugees, or as they are also called, children separated from their families. These are children who arrive in Ukraine without their parents and do not have relatives who can help them. At present there are no normative documents addressing this issue as a result of which these children do not even go to school. There are various reasons, of an economic, administrative and educational nature. In the vast majority of cases these are young people who have already reached the age of 16. They have no documents about their education or personal documents, and in the best instance have had 3 years of elementary education. Special attention therefore needs to be given to these young people and separate classes created where they can gain an education on intensive programmes and be able to become fully-fledged members of society.

254.  2006 broke all records in terms of the number of reports in the mass media about cases of ill-treatment in educational institutions. The cases involved both brutal treatment by other school students, and by personnel of the institutions. This reflects the irresponsible attitude to their duties of education system structures in Ukraine.

255.  Education in Ukraine, especially elementary and secondary education, is chronically under funded. There is a permanent shortage of money not only for developing the education system and its infrastructure, but even for the most basic needs to ensure the straight survival of educational institutions. School education remains based on post-Soviet rather than market economics. A given school is funded not according to standardized expenditure per student, but on the principle: “the district budget will allocate so much, and let the school head find the rest where s/he can”. Control of school education is entirely under State departments of education. Educational associations and public councils are only allowed to imitate elements of civic society and have no access to the financial resources of the region, city or settlement. In general school heads and managers of the district and regional educational system are not educational managers. Schools, as before, do not have autonomous status. Their predicted costs for the year are drawn up without their participation. Since the list of such costs leaves out a number of school expenses, the schools are unambiguously pushed towards the “shadow” economy. As a result, a considerable amount of the money needed is collected unofficially from parents in the form of so-called “charitable” payments which are used for repairs to the building and material provisions for the school.

256.  The situation in educational institutions is such that only around a third of students are assured textbooks. According to official data from the Central Control and Audit Department of Ukraine, the average percentage of textbooks reaching educational institutions is 67% of the number required. Some of these arrive in numbers which mean that one textbook needs to be shared by 3 or 4 school students. It is also typical for textbooks or the main consignment of them to reach the school library in the middle of the academic year, i.e. when the course has long been running and students have already had to buy the textbooks themselves. The most interesting thing in this sense is the fact that one can freely buy textbooks which state that they are not on free sale.

257.  Ukraine is gradually introducing a system whereby graduates of a higher education institution whose studies were paid for by the State, must after the end of their studies work for three years in their field at a working place designated by the State. The system has already been introduced in law and medical faculties. These postings are in unpopular, sometimes outlying areas and badly-paid work. A person who refuses to accept them has to return the money paid by the State for his or her education. This effectively renders meaningless the rules about free higher education.

258.  The size of student grants more than double in comparison with 2004 and is calculated according to Cabinet of Ministers Resolution No. 882 from 12 July 2004 “Issues of student grant provisions”, in relation to the size of the subsistence minimum. However this level remains symbolic since nobody can live on these amounts. For example, the size of the grant is as follows:

–  25 percent of the subsistence minimum for students of higher institutes with first or second level accreditation;

–  30 percent for students of higher institutes with third or fourth level accreditation.

A-grade students studying on State commission have a student grant which is 25% higher than the normal grant.

259.  Social grants are allocated to students needing social protection, even in cases where an academic student grant has not been assigned on the basis of results of studies. This category includes students without parents or deprived of parent care, people guaranteed concessions as regards student grants pursuant to the Law “On the status and social protection of citizens who suffered as the result of the Chernobyl Disaster”; students from families on a low income; people with disabilities from childhood or with I or II group disability status and students with children.

260.  The system of teachers’ salaries is degrading. The level of pay is extremely low which creates a shortage of staff especially in elementary and secondary school. This is leading to a significant drop in the level of education.

261.  There is no system of human rights education for all educational institutions. In some institutions the study of particular laws is offered, but this does not ensure a sufficient level of understanding, knowledge and ability to exercises ones rights.

IV. Recommendations for improvements

Recommendations of a general nature

Recommend that the Government of Ukraine:

1)  draw up and implement a programme for enhancing the role of national institutions on human rights in the area of protection of social, economic and cultural rights in the light of the Committee’s comments.

2)  have an official translation made of the Committee’s Concluding Comments and ensure its official publication in print media..

3)  draw up and pass an Action Plan on carrying out the recommendations of the UN Committee on Economic, Social and Cultural Rights given in the Concluding Comments to this Government Report.

4)  introduce into Ukrainian legislation provisions which would make restrictions of social, economic and cultural rights possible only in accordance with the criteria set out in Article 4 of the International Covenant on Economic, Social and Cultural Rights.

 

On combating discrimination

5)  Recommend that the Government of Ukraine draw up and pass legislation on a general prohibition of discrimination, setting out among other things the concept of direct and indirect discrimination, effective mechanisms of protection from discrimination and punishment for those responsible.

6)  Create a separate State body for implementing policy on countering discrimination and monitoring adherence to the relevant legislation.

7)  Ukraine should carry out urgent legislative and administrative positive action in order to protect the Roma, people from Asia and Africa, members of sexual minorities, women, people living with HIV/AIDS, people with disabilities as well as other socially vulnerable groups from discrimination.

The right to work

8)  Steps are needed to liquidate indebtedness against wages, especially at economically active enterprises, as well as against other social payments.

9)  Ensure implementation over the entire territory of the country of laws on remuneration, including adherence to minimum legislative guarantees in this sphere.

10)  Ratify the European Convention on the Legal Status of Labour Migrants in order to heighten legal and social protection of Ukrainian nationals abroad.

11)  Improve the legal regulation for resolving the problem of extracting debts from enterprises, especially those which are State-funded, via the courts.

12)  Regulate the use of the coefficient of labour input (CLI) in order to ensure that it is not used for corrupt redistribution of workers’ income.

Freedom of trade unions

13)  Recommend that the Government of Ukraine take urgent legislative and administrative measures to simplify the procedure for registration of trade unions; ensure their free activities and the safety of their leaders and participants in the trade union movement.

14)  Strengthen measures aimed at punishing individuals guilty of using pressure or impeding the work of a trade union.

15)  Remove from Article 39 § 6 of the Law “On trade unions, their rights and guarantees for their functioning” the need to justify a trade unions rejection of an employee’s dismissal.

The right to social security

16)  Heighten measures on eliminating poverty, and introduce benefit targeting. This is needed to ensure that social protection funds actually reach the poor. To achieve this new methods are needed for evaluating the level of poverty, together with poverty mapping.

17)  Review the methodology behind assigning the subsistence minimum, taking into account all needs required for a decent level of existence.

18)  Reduce the number of benefits and monetize them, with this increasing the level of transparency and responsibility.

19)  Clearly delineate social protection and social insurance. Under insurance programmes there must be a clear link between the size of the premiums paid and the level of compensation which the beneficiary receives. This will promote an increase in the level of legal employment since the size of the payments will be linked with the period and overall amount of contributions. All insured individuals will have to make contributions to all mandatory State insurance funds, with any exceptions needing to be financed from the State Budget, and nor from insurance funds. Only those citizens who have paid all the necessary premiums will be able to receive accident compensation. Similarly insurance funds should stop funding unrelated benefits.

20)  Take a balanced approach in forming tariffs for housing and community services, ensure a transparent and open method for calculating such tariffs, prevent unwarranted increases in tariffs and actively respond to infringements. Create an effective, simple and transparent system of subsidies as an important element of social protection of the population.

 

Protection of the family, mother and child

Countering domestic violence

21)  Draft and adopt a National programme for countering domestic violence in Ukraine. Heighten public and parliamentary control over adherence to legislation on prevention of violence against women.

22)  Toughen sanctions against people who commit acts of violence in the family and also introduce criminal liability for such offences. Introduce alternative forms of punishment for people who have committed acts of violence in the family, in particular, imposing community work and mandatory participation in rehabilitation programmes which will help reduce the process of criminalization of domestic offenders.

23)  Provide for the functioning in each Ukrainian region of institutions for victims of violence in the family, crisis centres, socio-psychological help centres, shelters, services for medical and social rehabilitation, etc.

24)  Ensure legal aid for victims of violence in the family, including women cut off from social contact, migrants and refugees who have recently arrived in the country, members of minorities and women with restricted possibilities.

25)  Develop a system for financing crisis centres and shelters for victims of violence out of the State budget. Shifting responsibility for financing these institutions to local budgets means that victims of violence in different regions have unequal conditions, whereas all are equally entitled to the same scope of assistance and protection.

26)  Develop and introduce indicators reflecting the prevalence of human trafficking in the country, violence in the family; and also create a statistical database of victims.

 

Human trafficking

27)  Develop a national system for providing assistance to victims, involving the government and nongovernmental organizations at local and national level, in order to guarantee the necessary identification and referral of victims, and that they receive the help they need. Prepare criteria for identifying victims of human trafficking in order to give them victim status. Develop a system of compensation for damages sustained. Establish and introduce a system for returning Ukrainian nationals from abroad at the State’s expense.

28)  Create the office of National Coordinator on combating human trafficking, taking into consideration the experience of countries which have already introduced such an institution. Also restart the work of permanent regional commissions on prevention of human trafficking (at the regional level).

29)  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.

30)  Run awareness raising campaigns about human trafficking.

31)  Support the work of help lines in order to warn potential migrants of the risks they may encounter going abroad.

32)  Carry out sociological research to ascertain how aware the public are about human trafficking issues.

Protection of the child

33)  An effective mechanism needs to be developed for monitoring adherence to current legislation on minors working. The development of such a mechanism should be aimed first of all at promoting social protection of children from the most socially vulnerable families, adhering to the requirements of legislation on child labour, first and foremost in the informal sector of the economy.

34)  The practice of unlawfully placing children from children’s homes or school-orphanages in psychiatric hospitals must be stopped immediately, and an effective mechanism must be developed to enable the law enforcement agencies to react in such cases.

35)  Besides the general principles of equal rights and prohibition of discrimination, there need to be special mechanisms envisaged by legislation on protection from discrimination, especially as regards particularly vulnerable groups of children.

36)  Normative acts regarding the prohibition of corporal (physical) punishment should be made to work, and need to be accompanied by broad-ranging awareness-raising and information measures, and training sessions among professional groups working with children or in their interests, their parents or those replacing them.

37)  The resolution of situations of conflict and methods of upbringing in educational institutions must comply with standards for observing the rights of the child.

38)  “Status” punishments, that is, those where minors can be punished for acts which an adult would not be held legally liable for and would not therefore face punishment for, should not exist either at the level of legislatively imposed norms, or in the practice of preventive upbringing measures.

39)  The government should pay particular attention to ensuring access to education for children with impaired possibilities, with the maximum level of socialization for these children within general schools, and should provide individual tuition for those children needing it.

40)  Proper financing needs to be provided for educational institutions, with payment of salaries for educational staff and provision of the necessary materials in schools.

41)  The public authorities should develop and introduce a separate programme for children who have dropped out of school and do not wish to continue their studies.

42)  A system should be introduced for gathering and analyzing information about neglected children. A more flexible policy is needed in addressing the problem of neglected children.

43)  It would be desirable to strengthen policy on reducing the number of State children’s homes and giving the priority to bringing up children in family environments. We would recommend accelerating the creation of family-type children’s homes. It is impossible to ensure effective State control over respect for children’s rights.

44)  Particular attention should be given to drawing up a range of measures for preventing sexual abuse of children.

45)  Create a single social service for the socialization of orphans and children deprived of parental care.

 

The right to an adequate standard of living

46)  The introduction of a system of State social housing should be accelerated.

47)  It would be desirable to give attention to the conditions Roma people live in where there are compact communities

48)  Review current legislation on controlling the safekeeping of orphaned children’s accommodation, increase the powers of the controlling bodies, create permanent commissions made up of deputies on exercising such control and establish and open list of named individuals responsible for keeping their property, and impose liability where this is not done appropriately. Resolve the problem of communal payments for the property while the children are in care.

49)  Develop procedure for providing orphans with organized social accommodation, designate those responsible for assessing the accommodation conditions of children leaving care and create a database of children in school-orphanages indicating whether they need housing. This will also help the child while still in the institution to begin resolving the issue of accommodation and make it possible to exercise systematic control over the property of those children who have it.

50)  Create a single register of housing which is owned by orphans and children deprived of parental care and which is not subject to expropriation or sale. Introduce effective mechanisms of control over the activities of notaries as regards operations with housing of children in school-orphanages.

51)  Increase liability of public officials for failing to properly protect the property of children in school-orphanages

52)  Introduce amendments to legislation regarding the allocation of funds from local budgets to pay money owing on communal charges for property belonging to children presently in care.

53)  Supplement the Housing Code with articles enabling children to be placed on the register to receive a flat as first priority on the application of the school-orphanage, office of care and supervision, or a guardian, to allow for a mechanism to provide first priority loans to orphaned children via youth housing loans.

54)  Introduce amendments to the Family Code to have courts designate those responsible for retaining housing and property of children in school-orphanages.

55)  Introduce amendments to the Family Code to have courts designate those responsible for retaining housing and property of children in school-orphanages. Introduce a mechanism for periodic assessment of the possibility of returning the child to the housing held in his or her name.

56)  Improve the mechanism for letting accommodation of children in school-orphanages under the control of the authorities.

The right to the highest attainable standard of physical and mental health

57)  Pass a Law “On amendments and additions to the Law “On the fundamental principles of health care legislation in Ukraine”, to ensure that the Fundamental Principles comply with modern requirements of international and domestic law. The amendments should be aimed at the following:

–  providing a clear legal definition of “medical care”, “medical services”, “medical practice” and “auxiliary services in health care”;

–  regulating approaches to determining the list of medical services and medicines and other products with a medical purpose, the cost of which is either not covered or is only partially covered by the State Budget; defining how patients can share a role in paying for such medical services, medicines and other products with a medical purpose;

–  regulating approaches to determining the standard conditions for providing medical services (the number of wards in hospitals; level of comfort in standard wards; provision for treatment of medicines in the National list of main (vital) medicines and other products with a medical purpose, etc;

–   improving regulation of the procedure for ensuring the right to freely choose ones doctor or health care establishment;

–  defining clear procedure for free choice and change of primary care doctors;

–  primary care doctors keeping registers of the patients under their care;

–  introduction of patients’ access to inpatient and specialized outpatient care solely on referral by a primary care doctor, provided on the basis of the relevant medical indicators; prepare a clear list of conditions under which patients have the right to make a direct appeal for free inpatient and specialized outpatient care without such a referral;

–  establishing clear medical and legal criteria for hospitalization, refusing to hospitalize somebody; treatment and discharge from hospital.

58)  Adopt a new version of the Law “On the use in Ukraine of narcotic substances and psychotropic means, their analogues and precursors, and abuse of these” (2000) which allows for health care institutions regardless of their form of ownership to hold, transport, procure, sell, produce, use or destroy narcotic (psychotropic) medicines and precursors included in No. 2 table IV of the List of narcotic substances, psychotropic means, and precursors.

59)  Urgently improve Ukraine’s legislation regarding the development of legal mechanisms for financing the system of health care.

60)  Develop a National programme for combating and preventing the spread of hepatitis B and C, and ensure that diagnosis of these illnesses is free of charge.

61)  Improve the level of awareness and learning among the public and medical institutions personnel about patients’ rights.

62)  Carry out measures for improving medical provisions in rural areas.

63)  Improve living conditions of prisoners diagnosed as having tuberculosis, in particular:

–  ensure that patients are placed in wards for no more than 8 beds;

–  ensure that wards have sufficient lighting;

–  ensure that a necessary temperature regime is kept in wards;

–  ensure that patients have regular access to cold and hot water;

–  install more wash-stands in wards;

–  rebuild lavatories;

–  construct shower rooms in each hospital building and provide the necessary conditions in them;

–  improve patients’ diet: rebuild canteens; ensure that canteens are equipped with lighting; ensure that food for patients is prepared by a hired worker, a cook, in order to make food fit for consumption;

–  improve the efficiency of treatment: supply patients with specific anti-tuberculosis medicines, including “new generation” ones, in sufficient quantity; supply patients with medicines those stimulate immunity and improve their general condition.

Right to education

64)  The government should pay particular attention to ensuring that children with impaired possibilities have access to education with the maximum level of socialization for these children within general schools. It should provide individual tuition for those children needing it.

65)  Children in hospitals and similar should have the opportunity to continue their education if their state of health allows.

66)  The authorities should develop and implement a separate programme for children who have dropped out of school and do not wish to study further.

67)  Ensure that prisoners have the right to education. This is particularly important for people who do not have secondary education or any vocational skills.

68)  Ensure the constitutional chance to receive free higher education in Ukraine without any conditions. An end is needed to attempts to restrict free higher education by the obligation to work for three years where the government decrees.

69)  Resolve the problems of school funding by allowing schools real autonomy, not just on paper; introduce a system of socio-economic support for schools from civic support via school councils, educational associations, independent trade unions etc; move towards a system whereby schools are funded from the budgets of different levels (nationwide, regional, local) according to standardized norms for expenditure per student.

70)  Raise student grants to the minimum subsistence level; raise the level of school teachers’ salaries.

71)  Guarantee the rights of students to be provided with the necessary books, as well as with student accommodation.

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[1] Pavlechko, L. P. ed., Osnovy Zdorovya (“Basic Health”), (Donetsk: Novaya Pechati, 2004) p. 81. This text was brought to the attention of ERRC by Aleksandr Mischiariakov, President of Amaro Deves. The UN CERD recently expressed concern about publications of this sort containing “historically inaccurate information about minorities.” In August 2006 in its 69^th Session, the CERD recommended to the Ukrainian government that “further promote the publication of textbooks for schoolchildren in minority languages, including the languages of Roma and Crimean Tatars, and to ensure that all ethnically discriminatory content is eliminated from existing textbooks.” See UN CERD, Draft Concluding Observations of the Committee on the Elimination of Racial Discrimination — UKRAINE, CERD/C/UKR/CO/18, August 2006, para 16.

[2] Information on adherence to legislation aimed at protecting the rights of minors who are suffering from criminal encroachments, violence in the family, being drawn into committing a crime and other unlawful activities // Letter from the Prosecutor General to the Prime Minister from 31.07.2006. N 07/3-90

[3] The survey was carried out by the Ukrainian Institute for Social Research and the Social Monitoring Centre from 5 to 12 December 2006 in all regions of the country. 2,279 people in total were surveyed..

[4] 5,05 UAH equals 1 US dollar

[5] Decision by the Constitutional Court of Ukraine in the case of the official interpretation of sections 3, 23, 31, 47, 48 of the Law of Ukraine «On Information», and section 12 of the Law of Ukraine «On the offices of the prosecutor» (case of K.G. Ustimenko).

[6] The State and the Citizen: Delivering on Promises”, Analysis of socio-economic policy carried out by the Blue Ribbon Commission in 2006.

[7] Ibid

[8] Road Map for achieving universal access to prevention of HIV/AIDS, treatment, care and support to 2010. The document is based on the results of three national consultative councils and prepared with the support of the Joint United Nations Programme on HIV/AIDS (UNAIDS), 2006.

[9] Report of the Dnipropetrovs’k section of the International Society for Human Rights – Ukrainian Section, prepared by Taisa Shkryum. The full report is available in Ukrainian at http://www.khpg.org/index.php?id=1152287185