An evaluation of Ukrainian legislation to counter and criminalize human trafficking

Demokratizatsiya, Summer 2003 by Pyshchulina, Olga

Ukraine may be considered a country in transition from a communist totalitarian state to a democratic society, which is governed by the rule of law. One of the major problems in this process is widespread corruption, which affects all levels of society, including police, prosecutors, and judges. Ineffective privatization, the lack of law enforcement, lack of rule of law, the professionalization of organized crime, and the absence of a legal culture have allowed organized crime to flourish from human trafficking.

In September 2001, the new criminal code of Ukraine came into force, which constitutes a radical departure from the previous one, essentially based on the Soviet criminal code. Article 149 of the new code makes human trafficking a crime. As stipulated by the law, a person who is found guilty of involvement in direct or indirect, open or hidden trafficking in human beings with the intent to sell them for sexual exploitation, pornographic business, or use in military conflict, as well as any person who adopts children for commercial purposes, will face criminal charges and will be punished by imprisonment for a period of three to eight years, with confiscation of property. A person who is involved in the sale of children or an official abusing his or her position in relation to trafficking will be punished by imprisonment for a period of five to ten years. In situations where the trafficking has led to serious consequences, is managed by a criminal organization, or is intended for the transplantation of human organs, the punishment increases to eight to fifteen years. This new article is more in accordance with the international standards stipulated in the UN Protocol10 than the one found in the old criminal code;" however, Ukraine still has to reform its national legislation and is currently drafting such a proposal.

Critiques of the Ukrainian Antitrafficking Law

Article 124-1 has been criticized on the basis that elements of the crime were not defined, and so police and prosecutors were unclear as to how to apply its provisions in practice. New terms such as "debt bondage," "sexual exploitation," and "exploitation of work" were used with no guidance as to their definition. No official commentaries were provided concerning implementation of the law, and although these commentaries are not binding, courts generally rely on them in interpreting the law. Also, law enforcement officers were not provided with any new procedures in relation to trafficking, as is normally the case in connection with the enforcement of new crimes. The overall effect of these inadequacies has been to discourage police from investigating allegations of trafficking, and prosecutors have also been reluctant to initiate new cases. Until now, more than 250 trafficking cases have been filed, and many other cases are under active investigation.12 (Unfortunately, the data regarding the number of criminal cases is controversial. For example, according to information provided by the Committee Against Torture at its twenty-seventh session, 12-23 November 2001, only thirty criminal cases on human trafficking were filed since the adoption of Article 124-1 in 1998 till the start of 2001, and thirty-seven such cases were filed in 2001.l3) In any case, the number of prosecuted cases is steadily growing, demonstrating the political will of the Ukrainian government to fight this phenomenon.