UKRAINE: TIP ACTION GUIDE TO COMBAT TIP

UNCLAS STATE 112382

SIPDIS

E.O. 12958: N/A
TAGS: KCRM KWMN KTIP PHUM PREL SMIG UP
SUBJECT: UKRAINE: TIP ACTION GUIDE TO COMBAT TIP
(2008-2009)

REF: GONZALES-MAYHEW 10/16/2008 EMAIL


1. This is an action request (see para 5).


2. The 2008 Trafficking in Persons Report rates countries as
Tier 2 when host governments are not meeting the minimum
standards to combat trafficking in persons (TIP) as defined
by the Trafficking Victims Protection Act (TVPA),but are
making significant efforts to do so. Remaining on Tier 2,
however, is not guaranteed; governments must continue to
combat TIP and especially address areas that need further
work. All Tier 2 countries will move to Tier 1 if and when
they evidence satisfaction of all of the minimum standards.
Tier 2 countries are also subject to slipping to Tier 2 Watch
List or Tier 3 if they do not continue to make significant
efforts to meet the minimum standards from one year to the
next.


3. Please keep in mind the TIP Report measures host
government efforts. To be useful for tier placement
purposes, there should be a concrete role or tangible
value-added by a host government in activities by NGOs,
international organizations, or posts.


4. The following explains steps the government needs to take
in order to fully comply with the Minimum Standards for the
elimination of trafficking, and therefore qualify for a Tier
1 ranking, and offers suggestions to address specific areas
of concern highlighted in the 2008 TIP Report. Legal
standards are excerpted from the Trafficking Victims
Protection Act, as amended. Implementation Principles are
excerpted from guidance issued in 07 State 150188 (October
29, 2007) and are not specific to any country or region.
Country specific points are not exhaustive, but offer steps
and possible ways to address specific areas of concern. The
Department assesses government efforts each year. All
governments must show concrete evidence of serious and
sustained efforts in eliminating severe forms of trafficking
from the previous year. Tier ranking determinations will be
based on the government's efforts to comply with the Minimum
Standards to Combat TIP during the April 2008 - March 2009
reporting period.


5. Begin action request: Post is requested to explain to
the host government the areas of specific concern noted in
the TIP Report and why the government failed to meet the
minimum standards (and thus did not meet the requirements for
Tier 1 placement). Post may offer steps in para 6 to the
host government as possible ways to address specific areas of
concern. While the list is not exhaustive, it should focus
the host government on deficiencies in meeting the minimum
standards and examples of ways to overcome them. As every
year, the Department will weigh the government's level of
support and participation in reported activities, as well as
the efficacy and sustainability of government actions, in
light of its resources and capabilities.

Begin Action Guide and internal numbering.


1. Legal Framework: The government should criminally prohibit
TIP and punish such acts.

(A) For TIP crimes, punishment should be prescribed that is
commensurate with that for grave crimes, such as forcible
sexual assault.

(B) For TIP crimes, punishment should be prescribed that is
sufficiently stringent to deter and that adequately reflects
the heinous nature of the offense.

Implementation Guideline: At minimum, governments must
criminalize and prescribe penalties for all forms of
trafficking relevant in the country, including forced labor.
This must include the elements of "severe forms of
trafficking in persons" -- force, fraud, and coercion.
Although desirable, this need not be accomplished through a
comprehensive law, so long as relevant elements of
trafficking, specifically including fraud/deception and
coercion along with force, are covered by the country's laws.
Sanctions for sex trafficking should be on par with rape.
The prescribed penalties for sex trafficking crimes or
trafficking involving rape, kidnapping or death should be
substantially similar to those for rape, taking into account
the full range of sentences available. Consistent with the
UN Convention Against Transnational Organized Crime, criminal
penalties to meet this standard should include a maximum of
at least four years deprivation of liberty, or a more severe
penalty.

COMPLIANCE: The government was in full compliance as
reported in the 2008 TIP Report.

Positive results that should be maintained:

-- The government prohibits all forms of trafficking through
Article 149 of its Criminal Code, which prescribes penalties
that are sufficiently stringent and commensurate with those
prescribed for other grave crimes, such as rape.


2. Prosecution and other Law Enforcement Efforts: The
government should show serious and sustained efforts to
combat TIP by vigorously investigating and prosecuting TIP
acts, and convicting and sentencing persons responsible for
such acts.

(A) The government must provide data regarding
investigations, prosecutions, convictions, and sentences,
consistent with its capacity to do so, or it shall be
presumed not to have vigorously investigated, prosecuted,
convicted or sentenced such acts.

Implementation Guideline: All governments, consistent with
their capacity to do so, are required to submit full
comprehensive data on trafficking enforcement actions,
including length of sentences actually imposed on convicted
traffickers, as evidence of their vigorous law enforcement
efforts. Imposed sentences should involve significant jail
time, with a majority of cases resulting in sentences on the
order of one year imprisonment or more, but taking into
account the severity of an individual's involvement in
trafficking, imposed sentences for other grave crimes, and
the judiciary's right to hand down punishments consistent
with that country's laws. Convictions obtained under other
criminal laws and statutes can be counted as trafficking if
the government verifies that they involve trafficking
offenses.

COMPLIANCE: The government was fully compliant as reported
in the 2008 TIP Report.

Positive results that should be maintained and/or exceeded:

-- In 2006, Ukraine made progress in prosecuting and
punishing trafficking offenses. This year, the government
completed 82 criminal investigations and arrested 56 people
on trafficking charges. The Interior Ministry reported that
the number of prosecutions for labor trafficking increased
from 3 in 2006 to 23 in 2007. Overall, the government
prosecuted 95 cases resulting in 83 convictions of
trafficking offenders under Article 149. Of the total number
of persons convicted, 59 were placed on probation and not
subjected to imprisonment. In June 2007, the Prosecutor
General ordered prosecutors to take a more aggressive posture
with regard to sentencing convicted trafficking offenders and
to appeal every case in which a judge ordered probation
rather than jail time. As a result, during the second half of
2007, the share of convicted trafficking offenders receiving
jail time rose to 44 percent, up from 36 percent during the
first half of the year. The government financed regular,
formal training seminars for Interior Ministry
anti-trafficking officers throughout Ukraine. The Ukrainian
Academy of Judges and the Academy of Prosecutors, with
sponsorship from the OSCE, participated in eight seminars for
203 judges and prosecutors from around the country on victim
related issues and sensitivity training for
trafficking-related cases. The government cooperates with
other governments on anti-trafficking law enforcement efforts
but acknowledged the need to simplify procedures for mutual
legal assistance between Ukraine and trafficking destination
countries.

Recommended measures to ensure the country continues to fully
comply with Minimum Standards:

-- Continue efforts to ensure that convicted traffickers
serve significant jail time.

-- Continue efforts to ensure that trafficking offenses are
fully prosecuted and punished.

-- Continue trafficking-specific training for prosecutors and
judges

-- Issue official guidelines for judges on how to handle TIP
cases in full compliance with relevant international norms
and standards


3. Victim Protection and Assistance: The government should
demonstrate serious and sustained efforts to combat TIP by
protecting TIP victims and encouraging their assistance in
the investigation and prosecution of their traffickers.
Protection should include:

(A) provisions for legal alternatives to victims' removal to
countries in which they would face retribution or hardship.

(B) ensuring that victims are not inappropriately
incarcerated, fined, or otherwise penalized solely for
unlawful acts that were committed as a direct result of being
trafficked.

Implementation Guideline: Critical factors considered in
whether a country fully satisfies this part of the minimum
standards are: (1) Formal, systematic screening procedures
that proactively identify victims and guide law enforcement
and other front line responders in the process of victim
identification. (2) Shelter, health care, and counseling
should be available to victims, allowing them to recount
their trafficking experience to trained social counselors and
law enforcement at a pace with minimal pressure. Shelter and
care may be provided in cooperation with NGOs, but part of
the government's responsibility includes funding and referral
to NGOs providing services; to the best extent possible,
trafficking victims should not be held in immigration
detention centers, or other detention facilities. Factors
also considered and strongly recommended for favorable
placement are: (1) Victim/witness protection, rights and
confidentiality; i.e., governments should ensure that victims
are provided with legal and other assistance and that,
consistent with its domestic law, proceedings are not
prejudicial to victims' rights, dignity or psychological
well-being; and that victims are provided information in a
language they understand. (2) Source and destination
countries share responsibility in ensuring the safe, humane
and, to the extent possible, voluntary
repatriation/reintegration for victims. At a minimum,
destination countries should contact a competent governmental
body, NGO or IO in relevant source country to ensure that
trafficked persons who return to their country of origin are
provided with assistance and support necessary to their
well-being. Trafficking victims should not be subjected to
deportations or forced returns without safeguards or other
measures to reduce the risk of hardship, retribution, or
re-trafficking.

COMPLIANCE: The government was not fully compliant as
reported in the 2008 TIP Report.

Positive results that should be maintained and/or exceeded:

-- Law enforcement agencies referred 456 victims to NGOs for
assistance. Through donor-sponsored programs and some
government services, foreign and domestic victims of
trafficking in Ukraine receive shelter, medical,
psychological, legal, and job placement assistance. The
Kherson regional government allocated $20,170 to
anti-trafficking activities including support of a
reintegration center. Ukraine does not punish victims for
unlawful acts committed as a direct result of being
trafficked. Courts in the Ivano-Frankivsk region are
implementing a pilot program to develop a modern witness
protection program.

Recommended measures to ensure that the country fully
complies with Minimum Standards:

-- Ukraine's protection and reintegration efforts remained
heavily reliant on international donor funding. The
government should increase funding for victim protection and
assistance, especially for maintenance of shelters for
victims.

-- Develop formal, systematic procedures for government
officials to identify potential trafficking victims among
vulnerable populations (such as street children and women in
prostitution) as well as among individuals who travel abroad
from Ukraine, and individuals who were involuntarily returned
to Ukraine, and to refer victims to service providers.

-- A weak witness protection system and a bias against sex
trafficking victims discourage many victims from testifying
in court. Develop policies to encourage victims to assist in
the investigation and prosecution of traffickers.

-- The government should provide foreign victims with legal
alternatives to removal to countries in which they may face
hardship or retribution.


4. Prevention: The government should demonstrate serious and
sustained efforts to combat TIP by adopting measures to
prevent TIP. Measures such as:

(A) steps to inform and educate the public, including
potential victims, about the causes and consequences of TIP,

(B) measures to reduce the demand for commercial sex acts and
for participation in international sex tourism by nationals
of the country,

(C) measures to ensure that its nationals who are deployed
abroad as part of a peacekeeping or other similar mission do
not engage in or facilitate severe forms of trafficking in
persons or exploit victims of such trafficking,

(D) measures to prevent the use of forced labor or child
labor in violation of international standards.

Implementation Guideline: The government should provide/fund
a hotline or similar mechanism that offers victims and
potential victims assistance/information about TIP. Per the
new amendments to the Minimum Standards, starting with the
April 2007- March 2008 reporting period to be covered in the
2008 TIP Report, countries should, for example where
applicable: (1) Reduce demand for commercial sex acts:
Implement or support some form of visible awareness campaign
that educates the clients of the sex trade (and potential sex
trafficking victims) if the country has a significant sex
trafficking problem, or a campaign that targets those who
form the demand for victims of forced labor about the nature
of the relevant form of TIP. Nations with legalized
prostitution should make additional efforts to proactively
identify TIP victims among those in prostitution in the
legalized sex trade. This includes the systematic and
sensitive screening of persons in the legalized sex trade.
(2) Address child sex tourism: Countries that have a
significant number of nationals traveling abroad as child sex
tourists should undertake an awareness campaign that targets
tourists traveling to known child sex tourism destinations.
(3) Address trafficking and exploitation committed by
multinational peacekeepers: Governments with more than 100
troops on peacekeeping or other similar missions abroad
should provide anti-TIP training for these troops (directly
or through multilateral efforts),and should investigate and,
if appropriate, prosecute any allegations of trafficking
crimes or crimes of facilitating trafficking or exploiting
trafficking victims committed by these troops abroad and
referred to it by the UN or another competent organization.

COMPLIANCE: The government was partially compliant as
reported in the 2008 TIP Report.

Positive results that should be maintained and/or exceeded:

-- The government made progress in preventing trafficking in
persons during the reporting period. In 2007, the government
broadcasted a public service announcement on television
entitled "Do not look at employment abroad through
rose-colored glasses" throughout Ukraine and ran a parallel
billboard campaign. The national government spent
approximately $53,465 for printing and distributing materials
for raising awareness, and local governments made additional
contributions to prevention activities. For the past three
years, Ukraine's National Academy of Defense has conducted,
jointly with IOM, anti-trafficking classes for Ukrainian
troops being deployed for international peacekeeping duties.
During the reporting period, the Ministry of Interior worked
with Interpol to prevent known child sex tourism offenders
from entering Ukraine.

Recommended measures to ensure that the country continues to
fully comply with Minimum Standards:

-- Implement or support some form of visible awareness
campaign that educates the clients of the sex trade (and
potential sex trafficking victims),and/or a campaign that
targets those who form the demand for victims of forced labor
(and potential victims) about the nature of forced labor.


5. Corruption and Official Complicity: The government should
vigorously investigate, prosecute, convict, and sentence
public officials who participate in or facilitate TIP, and
take all appropriate measures against officials who condone
such trafficking.

(A) This should include nationals of the country who are
deployed abroad as part of a peacekeeping or other similar
mission who engage in or facilitate severe forms of
trafficking in persons or exploit victims of such trafficking.

(B) The government must provide data regarding such
investigations, prosecutions, convictions, and sentences, or
it shall be presumed not to have vigorously investigated,
prosecuted, convicted, or sentenced such acts.

Implementation Principle: Governments, consistent with their
capacity to do so, must provide full comprehensive data on
actions taken against TIP related complicity. Information on
general government corruption does
not satisfy this minimum standard, except in cases in which
specific cases of complicity are not reported by the
government or known to the USG, but where there is a
reasonable probability of such complicity within the wider
context of generalized corruption in that country.

COMPLIANCE: Despite widespread reports of
trafficking-related corruption, Ukraine failed to demonstrate
any efforts to vigorously investigate, prosecute, convict, or
sentence government officials complicit in trafficking this
year.

Recommendations for measures to ensure that the country fully
complies with Minimum Standards:

-- Vigorously investigate and (criminally) prosecute
trafficking-related corruption at all levels of law
enforcement. Share data on investigations, prosecutions, and
convictions of complicit officials, and the lengths of
sentences imposed on those convicted, if specific cases of
complicity have occurred.

--Consider development of actions that show political will to
fight trafficking-related corruption such as: an anonymous
mechanism for reporting trafficking)related corruption,
vetting for officials combating human trafficking, and/or a
strong public statement against trafficking-related
corruption.

End Action Guide and internal numbering.


6. The Department appreciates Post's continued efforts to
address trafficking in persons issues.
RICE