An evaluation of Ukrainian legislation to counter and criminalize human trafficking

Demokratizatsiya, Summer 2003 by Pyshchulina, Olga

One of the areas of the world where trafficking is growing fastest is the former Soviet Union.1 Human trafficking from Ukraine, especially for sex work, is a serious and increasing problem for the country.2 Evidence exists from a wide variety of sources, including police, NGOs, healthcare providers, prosecutors, and international organizations, of the widespread and worsening nature of the problem.3 Following a recent study by the International Organization of Migration (IOM),4 some 420,000 women were estimated to have been trafficked out of the country in the last few years alone.5 In 1998, the Ukrainian legislature adopted a criminal law (Article 124-1 in the Criminal Code of Ukraine) against trafficking in people, making Ukraine one of the first countries in Europe to formally criminalize this offense by adopting a discrete trafficking statute.

Because most Western countries have imposed strict limits on the numbers of legal migrants who can enter their territories, many women are forced to accept the service of traffickers if they wish to migrate. Most forms of labor migration are severely restricted; however, one available and legal work option available to migrant women is work in the entertainment sector as "artists" or "dancers." In practice this type of work is frequently linked to work in the sex industry.

Contemporary population movements are characterized by increasing pressures by individuals seeking, through migration, either to escape war, persecution, poverty, or human rights violations, or simply to find better economic opportunities.6 Women from Ukraine also have a strong economic incentive to seek employment in Central Europe, where living standards are higher than in the countries of transition. There are several other reasons that Ukrainian women want to go to abroad. First, liberalization of laws has enabled international travel both to Ukraine and to the European Union.

Second, with the introduction of a free market economy, unemployment has for the first time affected the nation, and primarily women, both economically and psychologically. Women were the first to lose their jobs, and the possibilities of finding a new position are, to say the least, not promising, especially outside the big cities. Migration is especially popular among young women from small, underdeveloped cities and the countryside, where jobs are very scarce. In those areas, women cannot find positions in their own professions, as salespersons, teachers, or nurses, for example. Even if they do, those occupations are very low paid and cannot assure economic independence.

A third motivation for Ukrainian women to migrate to the West is the disappearance of the state social security system. Finally, the myth of an easy and affluent life in the West and the tradition of migrant workers also contribute to the phenomenon.

In Ukraine the transition to a market economy has resulted in huge job losses and an increase in poverty.7 Given this context, it is not surprising that many young women are keen to find employment in the West and to travel to countries that for years have been inaccessible to them. The economic and political reform process in Ukraine has been slow compared to some other former Soviet countries. Today, whereas some FSU countries are showing remarkable political, social, and economic progress toward stability and democracy, Ukraine is lagging behind in its transition process. The most notable reason for that is the issue of governance. Ukraine has been hesitant to embark on the political, economic, and social reforms essential to democratization. The prolonged political and socioeconomic transition has had severe implications, including the marginalization and, to some extent, exclusion of some groups from the social and political forefront. One of those groups is women.

Ukrainian Governmental Response

The government of Ukraine has employed different strategies to address the issue of human trafficking. Primarily, it has adopted several international instruments that put Ukraine at the forefront of the criminalization of human trafficking in Europe. The latest international instrument-the "Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Conventions Against Transnational Organized Crime"-was signed by Ukraine on 15 November 2001 and is in the process of being ratified by the Ukrainian legislature.

When reviewing and considering legal measures to counter a particular societal problem, the legal and social contexts in which these measures will function are crucial. This is especially important when penal measures are considered. Criminal law is one of the most intrusive instruments in the hands of state authorities with respect to private citizens. The question is, first and foremost, whether a law promotes the rule of law.8 Moreover, it is important to distinguish between the law on the books and the law in practice. Preventive measures for human trafficking should primarily aim at strengthening the position of women and other vulnerable groups. The protection of the human rights of trafficked persons should be at the core of any antitrafficking policies.9