Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the first and second reports of the Government and requests it to supply further information on the following points.

Article 2 of the Convention. Definition of a child. The Committee notes that according to section 1 of Act No. 2402-III on the Protection of Children, a "child" is defined as a person under the age of 18 years, unless majority is attained by virtue of a relevant legislation. It also notes that section 1 of the Act on promotion of the social advancement and development of young people, 1993, defines "minor" as a citizen under the age of 18 years. Moreover, section 190 of the Labour Code prohibits the employment of persons under 18 in heavy duties, work with harmful or dangerous working conditions, as well as in underground work. The Committee requests the Government to indicate the definition of the term "minor" provided by the Penal Code.

Article 3. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Forced or compulsory labour. The Committee notes that by virtue of article 43 of the Constitution, the use of forced labour is prohibited. The Committee requests the Government to indicate whether the national legislation prohibits specifically the use of forced and compulsory labour of children.

2. Sale and trafficking of children. The Committee notes that section 149 of the Penal Code provides that: (1) the sale or any other paid traffic of a person, as well as any illicit agreement concerning him/her, implying legal or illegal traffic with or without his/her consent across the borders of Ukraine, to sell or transmit him/her to another person(s) for the purpose of sexual exploitation, exploitation in the pornographic industry, to involve him/her in criminal activities, to push him/her in debt bondage, to adopt him/her for lucrative purposes, to use him/her in armed conflict or to exploit his/her work, are punishable by 3-8 years of imprisonment; and that (2) the same act committed on minors, repeatedly, by previous agreement among a group of persons, or committed by someone on whom the victim was dependent (materially or otherwise), is punishable by imprisonment of 5-12 years and the confiscation of property. The Committee observes that section 149 of the Penal Code provides for sanctions rather than explicitly prohibits the sale and trafficking of children. Accordingly, it requests the Government to indicate whether the national legislation prohibits the sale and trafficking of children under 18 years.

3. Forced recruitment of children for use in armed conflict. The Committee notes that section 30 of Act No. 2402-III on the Protection of Children prohibits the participation of children under 18 in military activities. It also notes that in its report to the Committee on the Rights of the Child (CRC/C/70/Add.11, paragraph 99) in May 2001, the Government indicated that under the Act on universal conscription and military service, only voluntary enlistment in the armed forces (under contract) is possible for persons aged 17-21 who meet the requirements for military service, including persons who attain their seventeenth birthday in the year of their enlistment.

4. Corrective labour colonies. The Committee notes that in its report to the Committee on the Rights of the Child (CRC/C/70/Add.11, paragraphs 754-755, 773-774 and 777) in May 2001, the Government included extensive information on juvenile justice as well as on corrective "labour colonies". In the period 1993-97, an average of 3,600 juveniles were serving sentences in the 11 correctional labour colonies run by the State Department for Enforcement of Sentences, together with 30,500 juveniles held to be criminally responsible and convicted of criminal offences. The Government indicated that the treatment of persons taken into custody must be commensurate with the seriousness and nature of the offence. No measure may be used which causes them physical or moral suffering or impairs their human dignity. The use of physical coercion, special measures and firearms in dealing with juveniles is prohibited, except in the event of a group attack which threatens the lives or health of the personnel or of other persons of a place of pre-trial detention, or in the event of armed resistance. Juveniles aged 14 and older sentenced to deprivation of liberty serve their sentence in a correctional labour colony of the Ministry of Internal Affairs. The Government also indicated that these colonies are supervised by the State Department for Enforcement of Sentences. Agencies of the Procurator’s Office are responsible for the supervision of compliance with the rules and application of the law on general education and vocational social rehabilitation schools in accordance with the Act on the Procurator’s Office.

The Committee observes that the information provided by the Government in its report to the Committee on the Rights of the Child does not clearly distinguish between children in pre-trial detention and those convicted of offences, especially as to whether labour can be imposed on children in corrective "labour colonies" only after conviction in a court of law. The Committee reminds the Government that Article 2, paragraph 1, of Convention No. 29 provides that the term "forced or compulsory labour" shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself/herself voluntarily. It also reminds the Government that paragraph 2 of Article 2 of Convention No. 29 allows an exception to the general definition only for any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee requests the Government to provide further information on the rules governing the work performed by children under 18 years of age in corrective "labour colonies" and their application in practice.

Clause (b). The use, procuring or offering of a child for prostitution or pornography. The Committee notes that section 149 of the Penal Code applies for the purpose of sexual exploitation and exploitation in the pornographic industry. It also notes that section 301 of the Penal Code provides that: (1) importation into the Ukraine of the works, images or other items of a pornographic nature for sale or distribution or their production, or transportation or compulsion to participate in their manufacturing is punishable by fines or imprisonment; (2) the same action committed in respect of cinematographic and video production computer programmes of a pornographic nature and also sale to minors or distribution among them, of works, images and other items of a pornographic nature is punishable by fines or imprisonment; and (3) the actions provided by subsections (1) and (2) of this provision, if those are committed repeatedly or due to prior collusion by a group of persons and also through the compulsion of minors to participate in the creation of works, images or cinema and video production, computer programmes of a pornographic nature, is punishable by imprisonment for a term of 3-7 years. Moreover, section 302 provides that: (1) the creation or keeping of dens and also the procuring of persons for prostitution is punishable by fines or deprivation of liberty for up to 2 years; (2) the same action, committed for making money or by a person who has convictions prior to this crime or committed by an organized group is punishable by deprivation of liberty for five years or by imprisonment for the same period; and (3) the action described under subsections (1) and (2) of this provision committed with the involvement of minors is punishable by deprivation of liberty for a term of 2-7 years. The Committee observes that the sections of the Penal Code mentioned above provide for sanctions rather than explicitly prohibit the sexual exploitation of children under 18 years of age. The Committee requests the Government to indicate whether the national legislation prohibits the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances, in conformity with Article 3(b) of the Convention.

Clause (c). The use, procuring or offering of a child for illicit activities. In its reports, the Government indicates that various actions have been taken in Ukraine to prevent the expansion of the use of drugs among children at school. The Government also indicates that up to 5,000 children consume drugs. The Government’s report adds that acts such as inducing minors into criminal activities, drunkenness, begging, gambling, and the illegal introduction of drugs, or psychotropic substances, are liable to penal responsibility according to sections 303, 304, 307, 309, 314, 315, 317, 323 and 324 of the Penal Code. Among these provisions, section 304 stipulates the deprivation of liberty of up to five years or imprisonment for the same period for drawing a minor to criminal activities, drunkenness, begging or gambling. While noting the information provided by the Government in its reports, the Committee recalls that by virtue of Article 3(c) of the Convention the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties is considered as one of the worst forms of child labour, rather than the offences relating to the illicit activities themselves. It also reminds the Government that according to Article 1 of the Convention, each Member which ratifies it shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee therefore requests the Government to indicate the measures taken or envisaged to secure the prohibition and elimination of the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, in conformity with Article 3(c) of the Convention.

Clause (d). Hazardous work. The Committee notes that section 190 of the Labour Code provides that it shall not be permitted to employ persons who are under the age of 18 years in heavy duties, work with harmful or dangerous working conditions, to lift and carry things the weight of which exceeds the limits established for these persons, as well as in underground work. According to that provision, the list of heavy duties, work with harmful and dangerous working conditions, as well as the limits for lifting and carrying heavy things by persons who are under the age of 18 years shall be approved by the Ministry of Health of Ukraine, in agreement with the State Labour Protection Supervision Committee of Ukraine. The Committee however notes that the scope of application of the Labour Code, or the Workers’ Protection Act does not seem to cover self-employed persons, while section 1(4) of Act No. 803 on the Employment of the Population, 1 March 1991, includes as part of the "employed population", self-employed persons. The Committee requests the Government to provide information on the scope of application of the Labour Code and the Workers’ Protection Act. If self-employed children are excluded from their scope of application, the Committee requests the Government to indicate the measures taken or envisaged to ensure the protection of self-employed children under 18 years of age from work which by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of the types of hazardous work. The Committee notes that Order No. 46 of the Minister of Health Protection, of 31 March 1994, establishes the list of heavy work and work in harmful or dangerous conditions prohibited for children under 18. The Committee also notes that Order No. 59 of the Minister of Health, of 22 March 1996, sets forth weight limits for the lifting and moving of heavy objects by minors. Moreover, by virtue of section 55 of the Labour Code, night work is prohibited for different categories of workers including persons less than 18 years and section 192 of the Labour Code provides that it shall not be permitted to employ persons under the age of 18 years on night work. The Committee requests the Government to indicate the consultations which have been held with employers’ and workers’ organizations in accordance with the provisions of Article 4, paragraph 1, of the Convention.

Paragraph 2. Identification of hazardous work. The Committee notes that the Government has provided no information with regard to this paragraph. It also notes that in its report to the Committee on the Rights of the Child (CRC/C/70/Add.11, paragraph 823) in May 2001, the Government indicated that despite the existence of a regulatory framework some business managers continue to use child labour in work in harmful or dangerous conditions. A total of 1,813 children have been found assigned to such work. The Committee requests the Government to take the necessary measures to identify, after consultation with the organizations of employers and workers concerned, where these types of work exist and to communicate the results.

Paragraph 3. Periodical examination and revision of the types of hazardous work. The Committee notes that the list of the types of dangerous work so determined by section 190 of the Labour Code and Order No. 46 of the Minister of Health Protection, 31 March 1994, was adopted before the ratification of the Convention. It draws the Government’s attention to Article 4, paragraph 3,of the Convention according to which the list of the types of hazardous work so determined by section 190 of the Labour Code and Order No. 46 of the Minister of Health Protection, 31 March 1994, shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. The Committee requests the Government to provide information on any measures taken or envisaged to review as necessary the list of hazardous work so determined, as well as on consultations held on the matter with the organizations of employers and workers concerned.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. In its reports, the Government indicates that the State, through guardianship bodies, units in charge of minors’ affairs, juvenile social services centres, and according to laws, provides children and persons who take care of them with the necessary help to prevent and discover cases of mistreatment of children, to pass information on these cases for their examination by the competent bodies to make the necessary inquiries and take measures to stop violence. The Government also indicates that according to section 1 of the Act on bodies and services in charge of affairs relating to minors and on the specialized minors’ institutions, 1995 (amended on 8 July 1999), one of the main tasks of the bodies and units in charge of minors’ affairs is to establish a supervision of the application of legislation concerning minors’ work in enterprises, institutions and organizations whatever their ownership. Moreover, the Government indicates in its reports that the supervision of the application of labour law is carried out by the Ukrainian General Prosecutor and other prosecutors and is also covered by Cabinet Order No. 1351 of 30 August 2000, creating within the Ministry of Employment and Social Policy, a national department for the supervision of the implementation of labour legislation; Cabinet Order No. 1771 of 29 November 2000, concerning the national department for the supervision of the implementation of labour legislation, which among other things carries out inspections in enterprises who employ workers, and in particular minors; and Cabinet Order No. 1200 of 3 August 2000, which created the inter-ministerial committee for issues relating to child protection.

While noting the information provided by the Government in its reports, the Committee observes that none of the mechanisms to monitor the implementation of the national provisions on child labour indicated above are specifically about the elimination of the worst forms of child labour. The Committee requests the Government to provide information on the functioning of the mechanisms monitoring the implementation of the provisions giving effect to this Convention, including any extracts of reports and documents. It also asks the Government to report on the consultations held with employers’ and workers’ organizations, in accordance with Article 5 of the Convention.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. The Committee notes the regional programme with IPEC which was launched in 2002 relating to child trafficking in the Balkans and Ukraine entitled Prevention and reintegration programme to combat trafficking of children for labour and sexual exploitation in the Balkans and Ukraine. This programme comprises two phases. Phase I concerns the identification of a strategy for concerted action through a situation analysis of existing responses in selected geographical areas. During this first phase, assessment surveys were conducted by national research organizations in four target countries, namely the Republic of Moldova, Romania, Ukraine and Albania. Moreover, partner institutions that will implement action programmes during Phase II will be identified. Phase II concerns the implementation of a comprehensive programme to combat trafficking of children in the Balkan region and Ukraine particularly through preventive and reintegration measures. The Committee notes that IPEC identified three types of pulling/pushing factors: (1) demand in the sex trade, existence of trafficking rings; (2) inadequate or insufficient legislation on child and youth trafficking, including a definition of an offence in law and common standards for penalties, which offers free play to criminal organizations; and (3) persecution of ethnic minorities, lack of education and employment opportunities and poor social protection systems. It requests the Government to provide information on the implementation of this regional programme as well as results achieved with regard to combating and eliminating the trafficking of children for labour and sexual exploitation.

The Committee also notes that another regional programme, namely Combating child labour in selected stability pact countries: Regional programme with a focus on the worst forms of child labour,should start shortly for a duration of four years to assist governments and other IPEC partner institutions to strengthen their capacity to apply Convention No. 182. This programme will focus on building institutional and technical capacity to address the worst forms of child labour. The Committee requests the Government to provide information on developments concerning this programme.

Paragraph 2. Consultation with relevant government institutions and employers’ and workers’ organizations, and other concerned groups. The Committee notes that the Government has provided no information on consultations held with employers’ and workers’ organizations for the design and implementation of the programmes of action. It requests the Government to indicate the consultations, which have been held with employers’ and workers’ organizations in accordance with the provisions of paragraph 2, Article 6, of the Convention and if the views of other concerned groups have been taken into consideration.

Article 7, paragraph 1. Measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention. The Committee notes that penalties provided by labour legislation are not specifically relating to the worst forms of child labour and the amount of possible fines appears to be quite low. It asks the Government to provide information on the legislative texts concerning sanctions applicable to the worst forms of child labour, including the amount of fines and their actual application.

Paragraph 2. Effective and time-bound measures. The Committee notes that in its reports, the Government refers to various measures especially those carried out with ILO/IPEC assistance, and also to its own policies and initiatives concerning children and youth. It observes however that the information tends to be general rather than focusing specifically on the worst forms of child labour and concrete measures taken against them. There is no detailed description in the report corresponding to the application of clauses (a) to (e) of this provision of the Convention. The Committee reminds the Government that by virtue of Article 7, paragraph 2(a) to (e), of the Convention, effective and time-bound measures shall be taken to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls. The Committee requests the Government to supply information on measures taken or envisaged, as required under Article 7, clauses (a) to (e) of the Convention, to prevent the potential occurrence of the worst forms of child labour and assist the removal and rehabilitation of children from the worst forms of child labour.

Paragraph 3. Competent authority responsible for the implementation of the Convention. The Committee notes the information provided by the Government in its reports concerning the authorities "in charge of questions relevant to child labour in Ukraine". The Government mentions the following authorities: the Office of the President of Ukraine, Cabinet of Ministers, Committees of the Supreme Councils of Ukraine on Youth Issues, on Labour Questions, and on Health Maternity and Childhood, the Ministry of Labour and Social Policy, Ministries of Health, of Interior, of Education, of Justice, enterprises and trade unions and so on. The Committee notes that many of those authorities appear to deal with child labour questions in general, but none are specifically responsible for the implementation of the provisions relating to the elimination of the worst forms of child labour. It therefore requests the Government to provide information on the methods by which each of the authorities listed in the reports supervise the implementation of the provisions giving effect to this Convention.

Article 8. International cooperation and/or assistance. The Committee notes that section 36 of Act No. 2402-III on the Protection of Children which relates to international cooperation for the protection of minors, stipulates that this cooperation should be in conformity with international law. The Committee also notes that Ukraine is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Parts IV and V of the report form. The Committee notes that in its concluding observations on the second periodic report of Ukraine (CRC/C/15/Add.191, paragraphs 64-67) in October 2002, the Committee on the Rights of the Child indicated that, while noting the creation of the Ministry of Labour and Social Policy in 1996, which is responsible for monitoring compliance with the labour legislation, particularly in respect of children, it remained concerned about the inadequate enforcement of the Ukrainian Labour Code, in particular with regard to hazardous and forced labour, and that a large number of children are reported to be working, particularly in the informal sector. It also expressed its concern about the growing involvement of children in the sex industry; the non-implementation of the national plan of action to prevent trafficking in women and children; the large-scale trafficking of children, in particular girls, for the purpose of sexual and other forms of exploitation, and the lack of a clearly defined minimum age of sexual consent. In its concluding observations, the Committee on the Rights of the Child recommended that the Government undertake a national survey on the causes and extent of child labour with a view to adopting and implementing a national plan of action to prevent and combat child labour; continue efforts to protect all children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental or social development. It also recommended that the Government take action to combat child trafficking, child prostitution and other forms of sexual exploitation of children; implement the national plan of action against sexual and commercial exploitation of children, taking into account the Declaration and Agenda for Action and the Global Commitment adopted at the 1996 and 2001 World Congresses against Commercial Sexual Exploitation of Children; continue and strengthen its efforts to combat trafficking of women and children, including through the new national plan of action to prevent trafficking in women and children, and ensure that this programme is provided with sufficient resources to guarantee its effective implementation; establish recovery and social reintegration programmes for child victims. The Committee requests the Government to communicate information on the manner in which it will resolve the difficulties indicated above in practice. It also requests the Government to give a general appreciation of the manner in which the Convention is applied in Ukraine, including any practical difficulties encountered in the application of the Convention, or any factors which may have prevented or delayed action against the worst forms of child labour.

The Committee notes that in its second periodical report to the Committee on the Rights of the Child (CRC/C/70/Add.11, paragraphs 73 and 818-820) in May 2001, the Government indicated that the state of compliance with the child labour legislation is currently being studied by the State Labour Inspectorate in conjunction with the Ministry of Education and the Ministry of Family and Youth Affairs. The findings of this study will appear in a report of the Cabinet of Ministers. The Government also declared that the central authorities produce annual reports to the President on the situation of children in Ukraine. The reports for 1996 and 1997, which constitute a detailed analysis of the basic indicators of the situation of children, contain radical recommendations for its improvement, as well as reflecting the progress made in the implementation of the national programme "Children of Ukraine". The Committee requests the Government to provide a copy of the report - referred to by the Government in its second periodical report to the Committee on the Rights of the Child in May 2001 - of the Cabinet of Ministers relating to the state of compliance with child labour legislation studied by the State Labour Inspectorate in conjunction with the Ministry of Education and the Ministry of Family and Youth Affairs.

The Committee requests the Government to provide copies of the following texts:

-  Code of laws on administrative violations, as amended on 7 December 1984;

-  Act on the prevention of violence in the family, 2001;

-  Act on bodies and services in charge of affairs relating to minors and on the specialized minors’ institutions, 1995 (as amended up to 8 July 1999);

-  Act on universal conscription and military service;

-  Decree No. 1376 of the President of Ukraine on polyvalent programmes for the prevention of criminality for the period 2001-05;

-  Decree No. 113 of the President of Ukraine on supplementary measures of prevention of child vagrancy;

-  Decree No. 42 of the President of Ukraine on supplementary measures to be taken to guarantee the realization of the national programme "Children of Ukraine" until 2005;

-  Cabinet Order No. 1351 of 30 August 2000 creating within the Ministry of Employment and Social Policy a national department for the supervision of the implementation of labour legislation;

-  Order No. 59 of the Minister of Health relating to weight limits for the lifting and moving of heavy objects by minors, 22 March 1996;

-  Order No. 1200 on the creation of interdepartmental committee for issues relating to child protection, 3 August 2000;

-  Penal Procedure Code (submitted to the Ukrainian Parliament on 23 June 2001).