We invite you to look throug the main conclusions of the expert group of the project "Actions for the Protection of Children at Risk: the Experience of Poland, Germany and Ukraine",and to see the the publication, which is based on the project results. The publication includes the analysis of the observance of the rights of children at risk in Ukraine, the overview of the national systems and standards for the provision of assistance to children at risk in Poland and Germany, and recommendations to the Government of Ukraine on the improvement of the existing situation.

In their conclusions the experts from Ukraine, Poland and Germany pay attention to a number of serious issues pertaining to the observance of the rights of children at risk in Ukraine, and suggest solutions to the Government of Ukraine. 

 

 

Main Conclusions

 

Recognizingthefactthattherootoftheproblemliesintheabsenceofaholisticapproachtowardsthepreventionofthe demoralizationofchildrenatriskinUkraine, realizingthenecessitytoconsidertheproblemsofneglectofandhomelessnessamongminorswithdueregardtoboth thefunctioningofsocialtutorialinstitutionsandgovernmentaltasksconcerningchildrenandfamily, the expert group considers it necessary to pay the attention of the Government of Ukraine to problem spheres of general character, which affect the violation of the rights of children at risk, who are under the threat of demoralization or are demoralized and, due to life circumstances, are in need of special social and psychological assistance and guardianship. The list of problems emphasized by the trilateral work group is not exhaustive[1]. The analysis of the reasons of these problems will be continued within the framework of further projects[2].

 

 

1. Practicalfunctioningof“apunitiveapproach”,apparent in various ways, towardsstreetchildren,childreninconflictwithlaw, children who are under the threat of demoralization, are demoralized, or who commit punishable offences

ThebasisforchangesintheobservanceoftherightsofchildrenatrisklivinginUkraineisthetransitionfrom“apunitive” approach, whenthechildisheldresponsiblefora particular behaviororactions(oftenasanadult),andhastobepunishedbyvariousmeans, to“an educational and correctional” approach. Such an approach intends that the goal of the entire system of assistance to children, who are under the threat of demoralization or are demoralized,isthe outmost good of the child. Such a system should function in the best interests of children and in order to provide the child with opportunities for a full-fledged development, which is based on the principles contained in the international documents. It is important to realize and accept the approach that presupposes that the child is not born “a criminal”. It is an adult society and, primarily, the governmental institutions in charge of work with children and family, that are responsible for children’s negative behavior and actions. It is the government obligation to establish an effective system of assistance to children at risk.

1. Theabsenceofaspecializedbodythatmakesdecisionsconcerningchildrenandfamilyondifferentlevels, controls the execution of such decisions, and coordinates institutions in charge of the provision of assistance to children and family.

Sucha specializedbodyfunctionsinPolandandGermany. It is the Family Court. It is important to strive for the creation of such an institution in Ukraine in a long term perspective. In a short-term perspective, “family” departments should be initiated in the structure of the permanent courts. The judges of such departments could specialize in the questions of assistance to children and family, examine administrative and criminal cases concerning juveniles, and control the execution of decisions. Institutions in charge of social, psychological and pedagogical expertise and assistance to family and children could conduct a preliminary evaluation of a particular situation, thus making it easier for judges to make a decision. It is also reasonable to establish a specialized service similar to a service of judicial curators in Poland. This institution could assist the Family Court, either when it analyses the situation of a family or a child, takes or executes decisions, or in the course of the further support of the child or family.

1. The low level of coordination and interaction among institutions in charge of work with children at risk.

Practically, the relevant institutions take no interest in such interaction. Each institution fulfills its tasks often without following the principle of “the best interests of the child”. For now, until the system of family courts and curatorial institutions is established, it is important to apply the experience of other countries like Poland and Germany, which use services of interdisciplinary teams consisting of various departments’ representatives. Such teams discuss, develop and implement the programs of assistance to children, who found themselves in difficult situations, and to their biological families, if they have them.

1. Insufficientpreparationofstateandmunicipalofficialsfortheworkwithstreetchildren, demoralized children, and children in conflict with law. The low level of awareness of human rights and international standards of the treatment of minors. It shouldbe emphasized separately, that law enforcement agents do not undergo specializedpreparation fortheworkwithchildrenatrisk.

AccordingtothestandardscontainedintheUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJustice(“TheBeijingRules”),policeofficerswhoeitheroftenorinclusivelyare involvedintheworkwithjuveniles, orareessentiallyinvolvedinthepreventionworkagainstjuveniledelinquency,shouldundergospecializedinstructionandtraininginordertofulfill their functions in the best possible way.  

Despitethefactthatthe specializedpolicedepartmentsin charge ofworkwithchildrenhavebeenfoundedinUkraine(the so called CriminalMilitiaonChildren’sAffairs (Ukrainian: Кримінальна міліція у справах дітей; the syllabic abbreviation from Ukrainian is KMSD)), theofficersofsuchdepartmentsdo not obtain sufficient preparation. Out of twelve higher educational establishments, only two have departments for the preparation of the KMSD specialists. The number of specialists, who underwent training, is not sufficient to supply the needs of the whole country.Availableeducationalprogramsarecriticizedbyexperts, becausetheymostly do notapplytheinternationalstandards, butrather refer tothe Ukrainianlegislationthatoften does not guarantee the high standards of protection. One of the essential aspects of the problem is that the law enforcement agents often change their specialization. Police officers often change departments, while the departments of the Criminal Militia on Children’s Affairs are supplemented by people without adequate knowledge, and who are not experienced in the work with children. In addition, there is no effective system of the training and retraining for the staff of departments in charge of work with children in the system of the Ministry of Interior of Ukraine.

In order to prevent the violation of children’s rights by police officers, it is necessary to develop specialized programs for the preparation of law enforcement agents, who work with children. It is also essential to develop and introduce the system of training and retraining for police officers who contact children, such as the representatives of:

- the Criminal Militia on Children’s Affairs;

- District police officers;

- Crime Detection Departments;

- Police station’s front offices;

- and Patrolservices.

Educationalmodulesforhighereducationalestablishmentsandbasic training courses within the system of the Ministry of Interior of Ukraine, which have been worked out by the project work group, are presented in Section VI of the publication Actions for the Protection of Children at Risk.

 

1. Theabsenceofeffectivemechanismsforthelegal protection of children at risk in Ukraine

There are no legislative provisions, which allow considering children at risk as the ones who need special protection. Claims from children at risk are not examined thoroughly and with due attention. The refusal to consider special needs of children at risk, the absence of positive measures stipulated by the law and aimed at the provision of special protection prove that children at risk are discriminated.

Provided that legalrepresentativesactonbehalfofachildandarenotmotivatedtoseekthevindicationofthechild’srights(e.g. administratorsofspecializedinstitutions, distantrelatives, demoralizedrelativesetc.), thefactsofviolationareinvestigatedformally,and,inmostcases,children’srightscannotberestored. There are no mechanisms to control “the quality” of the investigation of the violation of the rights of children at risk, which is carried out by police officers or prosecutors. The problem is especially apparent when children’s rights are violated by the representatives of law enforcement agencies. The state of dependence and pressure from police officers considerably complicates the efforts of children to vindicate their rights. Children often refuse to witness against the representatives of law enforcement agencies.

Therefore,itisimportanttoentrench a normrequiringaspecialprocedurefor claims about the violation of children’s rights by the representatives of law enforcement agencies. Moreover, it is essential to foresee additional possibilities for the interdepartmental and internal monitoring, and to provide non-governmental organizations with the right to conduct the corresponding monitoring. It is also important to exclude the possibility to terminate the investigation of facts contained in the claim, if an applicant rejects his or her demands and asks to cease the investigation.

1. Issuesof theUkrainianlegislationinthesphereofthepreventionofcrueltreatmentofchildren, particularlyofviolenceagainstchildreninfamily,inthelightof theinternationalstandardson the children’s rights protectionand on  the provision of the needs of children at risk

Crueltreatmentofchildrenisoneoftheprerequisitesdefiningthat a child belongsto ariskgroup, becauseviolenceagainstchildren, ontheonehand, turnsthechildintoavictimsuffering thecruel treatment, and, on the other hand, provokes the child’s demoralization, raises aggressiveness and cruelty in him or her. All this eventually leads the child to conflicts with law.  

There are many conflicts of law in the Ukrainian legislation. Such conflicts are particularly exposed by the definition of the notion “the cruel treatment of children” and its correlation with the relevant notions, such as “violence against children”, “violence in family”, “the exploitation of a child”, “sexual exploitation”, “child trafficking”, “the involvement of children into criminal activities and prostitution”, “reducing to begging” and so on. The conflicts also occur due to the insufficient support of substantive law with legal procedures defining the sequence of actions that should be undertaken by bodies and services in charge of the cruel treatment of children prevention. These are, primarily, the law enforcement agencies.

In actual fact, thelegislationofUkrainein the sphere ofthepreventionofviolenceinfamilydoesnottakeintoconsiderationthepeculiaritiesofpreventiveworkwithfamilies,wherechildrenhavebecomeormaybecomethevictimsofviolence. There are also conflicts that make it difficult to protect children who suffered the severest forms of domestic violence with essential elements of crime.

Thefactualinabilityofchildrentoinformpolice about the facts of cruel treatment constitutes thedirectviolationoftheinternationalstandardsfortheprotectionoftherightsofchildrenwhosufferedfrom violence.

Sucha situationisduetothecontradictoryregulationoftheprocedureoftheacceptanceofclaimsandreportsfromcitizens, which isstipulated by the internal and interdepartmental normative acts of the Ministry of Interior of Ukraine. The internal normative acts of the Ministry of Interior of Ukraineshould be brought into agreement with the international standards, according to which every child is guaranteed a possibility to file a complaint about criminal actions committed against him or her or about cruel treatment.

1. Contradictionbetweentheprocedureofinterviews withchildrenwho witnessed or suffered from criminal actions and the international standards for children’s rights

Onemoreproblemthat pertainstotheapproachofgovernmentalagentstowardschildrenatriskistheprocedureanda demand to interview the child who became a victim of or witnessed a crime. One of the international standards in the sphere of the observance and provision of the needs of children at risk is the document that most explicitly defines the demands for interviews with children who witnessed or became the victims of a criminal offence. It is the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse no. 201. Article 35of the Convention titled Interviews with the child stipulatesthat each government shall take the necessary legislative or other measures to ensure that:

1. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;
2. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;
3. interviews with the child are carried out by professionals trained for this purpose;
4. the same persons, if possible and where appropriate, conduct all interviews with the child;
5. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;
6. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.

 

Legislativeandothermeasuresshouldbetakentoensurepossibilitiesfortherecordingofinterviewswithvictimsor, whereappropriate, withchildrenwhowitnessedacrime, andtoensurethesustainmentofsuchvideoevidencesasaproofincourt according to the national legislation. The majority of these demands have not been implemented in the national legislation, which requires further work in this area.

It is advisable to develop propositionsastotheamendmentstotheproceduralcriminallawofUkraine that will relate to interviews with the child, who became the victim of or witnessed a crime. Such amendments are necessary in order to bring the mentioned procedure into agreement with the international standards. It is relevant at present, as the new Procedural Criminal Code of Ukraine is being developed.

Interviewmethodsshouldbedevelopedfor conversations withchildrenwhowitnessedorbecamethevictim of a crime. Such interview methods should be applied by law enforcement officers when interrogating the child.

1. Criminalproceedingsagainstchildrenunder18 yearsofagewhocommittedcrimes(objectiveillicitacts) donotcorrespondtotheinternationalstandardsandrulespertainingtotheeffectuationofjusticeandexaminationofcases thatinvolvechildren

Amongchildrenatrisk,whodirectlydependontheobservanceoftheinternationalstandardsforchildren’srightsbypoliceandotherlawenforcementagencies,themostvulnerablearethose,againstwhomcriminalproceedingshave beeninitiated,orthereisinformationconcerningtheinitiation of such criminal proceedings.   

Ukrainehasratifiedanumberofinternationaldocumentsontheprotectionoftherightsofjuvenileswho committedcrimes. One of them is theUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJustice(TheBeijingRules, 1985). Many problems, however, that relate to criminal proceedings against juveniles who committed crimes remain relevant and need to be resolved both on the level of the legislation and the law enforcement practice. Below are some of the mentioned problems: 

 - anindividualapproachinproceduraldecisionsconcerningjuvenilesrequiresthedefinitionof“the personalitycharacteristicsofajuvenile” (it. 3 art. 433 of the Criminal Procedural Code of Ukraine). Thelistofpersonalitycharacteristicsofthechild,definedin the current legislation, obviously is not sufficient. On this account, alongside with the age of the minor, his or her health and general development, conditions that had a negative impact on the child’s upbringing, the presence of adult inciters and other persons, who involved the minor into a criminal activity, it is also essential to ascertain the following:

• age-relatedandpsychologicalcharacteristics(temperament, the level of general development, health conditions, interests, and the system of values etc.);
• socialcharacteristics(relationshipsinthefamily, withpeers, attitude to education, labor, civil activity etc.);
• theminor’sattitudetoconsequencesofhis or heractions, whichrequirescorrespondingamendmentstoArticle 433of the Criminal Procedural Code of Ukraine.

Inthesituationofstress, whichisacriminalcase, minorsaremorepronetoapplyprimitivemeansofpsychologicalprotection, whichbecomeapparentinthefollowingforms: thereactionofopposition(bravado,thedemonstrativecharacterofactionsandstatements that are not internally motivated),the reaction of rejection(disobedience to demands),the reaction of isolation(pursuit to avoid contacts),and frustration in the form of aggression or alienation. Thus,inordertoimprovethecredibilityofdatainlegalproceedingsagainstjuveniles,it is absolutely necessary to be aware of a childandadolescentpsychology.

Thisproblemwouldberesolved, if amoreprecisedefinitionwere given tothelegalstatusofateacher who participates in interviews with minors. This could be a teacher or a psychologist well aware of child or adolescent psychology. It is also necessary to define the scope of rights and duties of such a specialist and to broaden the scope of procedural actions where his or her participation is advisable. Consequently, Article 433 of the Criminal Procedural Code of Ukraine should be brought into conformity with the international standards for children’s rights.

 - Inordertoprovideconditionswhenpsychologicalcharacteristicsofajuveniledefendantandhis or herabilitytocomprehendthemeaningofandcontrolhis or her actionsormeasuresaretakenintoconsiderationatmost, itisimportanttoimprovethelegislativeregulationandtoextendtheapplicationoflegalandpsychologicalexpertiseincases involving  juvenile offenders.

 - Inorderto createadditionalguaranteesthatwillpreventthe illegalandunreasonableinvolvementofminorsincriminalproceedings, itissuggestedtointroducespecializedpersonnelwithinthe framework of thedepartmentsoftheMinistryofInteriororPublicProsecutor’sOffice,whowouldbeauthorizedtoopenacriminalcaseorconductaprejudicialinquiry,ifthe data confirm the juvenile’s engagement in a crime.  

ItisreasonabletoensurethattheCriminalMilitiaonChildren’sAffairsconductsthepreliminaryverificationofclaimsandreportscontainingdataaboutthecrimecommittedbyajuvenile. The mentioned agency has the corresponding credentials according to the Act of Ukraine titled About Agencies and Services on Children’s Affairs and Specialized Institutions for Children.

 

Severalbasicprinciplesontheprovisionoftherightsofchildrenatriskthat Ukraineshouldaspireto:

• Theclarityandtransparencyofthesystemofassistancetochildrenatrisk(theavailabilityofagenciesandinstitutionsthathelpthechildandfamily, whichfunctions, responsibilitiesandtasksaredescribedindetailsandareapprehensible, andit is clear, which institution or agency is responsible for the child at a given moment).
• Thetransparencyofinstitutions in charge ofworkwithchildrenatrisk,withaparticularemphasisontheclarityandtransparencyofproceduresthat are applied intheinstitutions withinthesystemoftheMinistryofInterior(thepossibilitiesforaccesstoinstitutions, and for the public control of institutions; access to documents that should be clear, comprehensible and nonclassified for children and interested persons; the monitoring by specialized competent authorities (in Poland it is primarily conducted by the Family Court and the Public Prosecutor’s Office).
• Thesettingoflimitsforthecontentandtheuseofthe internalactsofinstitutionsthat workwithchildrenatrisk(such acts may not regulate fundamental rights and freedoms, but should only give exact definitions to procedures and so on).
• Theavailabilityandclarityofproceduresthat relatetocontactsoftheofficers of the Ministry of Interiorwithchildren;setting restrictionsforpoliceofficerswhentheyworkwithchildrenatrisk(there should be minimum contacts with victimized and witnessing children – such statuses are often given to children at risk or to street children).
• Theavailabilityofspecializedcentersthatconductthediagnosticsof children, of conditions in which  they were found or in which they live, of their surroundings etc. (in order to make the right decision on the assistance the child is in need of).
• Measuresconcerningchildreninneedofspecialprotectionshouldnotduplicateactionstakenagainstchildrenwhocommittedanoffenceoracrime(different possibilities should be foreseen for the restriction of liberty; various types of work and influence should be applied to such children; and there should be institutions of various levels where children could be placed).
• The completeprohibitionofviolenceagainstchildren withtheefficientcontroloverthe observance of this principle in theinstitutionswithin the Ministry of Interiorand, particularly,inclosedinstitutions.
• Theabsenceofadiscriminativeapproachtowardsstreetchildrenoflawenforcementofficersandinchild welfare agencies.
• Theavailabilityoftrainedandqualifiedpersonneland ofpremisesdesignedandadaptedfortheworkwithchildrenatrisk.

 

 

Recommendations

 

 

Annotation

 

WithintheframeworkoftheprojectActionsfortheProtectionofChildrenatRisk: theExperienceofPoland, GermanyandUkrainethegroupofexperts, who representnon-governmentalorganizationsandlawenforcementagenciesofUkraine, PolandandGermany,definedgeneralproblemscontributingtotheviolationof the rights of children at risk and street children. The experts also developed recommendations addressed directly to the Ministry of Interior of Ukraine, which is in charge of one of the professional groups that potentially might and in fact violates children’s rights when in contact with children and, particularly, with children at risk.

 

Understanding that the protection and the provision of the rights of children at risk in Ukraine is a complex interdisciplinary problem requiring various actions connected with systematic changes and work on the levels of legislation and law enforcement practice with different agencies in charge of work with family and children (law enforcement agencies, social and tutorial institutions etc.), the work group of the project presented general conclusions on the situation.  Suchconclusionsareregardedasabasisfor apublicdiscussionaimedattheimprovementoftheobservanceoftherightsofchildrenatrisk.All interested organizations are invited to participate in this important discussion.  Duetothescaleoftheproblem, itisimpossibletoconductitsefficientanalysiswithintheframeworkofoneproject. The problem considerationwithinthelimitedpublicationalso stipulatesthenecessitytohighlightandpayattentionto thecertainaspectsoftheproblemand toinstitutionsthat should be improvedinthelightoftheinternationalstandardsforchildren’srights. As it was already mentioned, the authors of this publication chose the Ministry of Interior to work with within the framework of the problem.

Havingcomparedthedatareceivedwithintheframeworkoftheprojectwiththestandardscontainedinanumberofinternationaldocuments,andstandards, which areappliedinthePolishandGermansystemsofassistancetochildrenatrisk, theexpertsdefinedseveralkeyproblemsinthelegislationandin the law enforcement practice of Ukraine. These problems demand the attention of the Ukrainian government.Inthejudgmentoftheprojectexperts,therightsofchildrenatriskcanalsobeviolatedatallstagesofcontactswithlawenforcementagents: duringfirstcontacts, inpreventivework, uponthearrest,andinthecourseofinvestigatory actions. It is stipulated by both the deficiencies of the legislation and law enforcement practice, by the absence or ambiguity of procedures, and by the lack of sufficient training of law enforcement officers, who work in different departments in the sphere of human/children’s rights. Because of the latter aspect, there were developed educational modules that are included in the publication. One more educational module on children’s rights and on the standards of the treatment of minors intended for the Criminal Militia on Children’s Affairs is being developed at present.

 

 

Defining a Target Group

 

HavingconsideredtheproblemoftheobservanceoftherightsofchildrenatriskinUkraine, theprojectexpertsnarrowedtheanalyzedsphere, and defined several groups of children at risk who are the most vulnerable. These are orphans, the inmates of specialized institutions, children deprived of a “qualitative” guardianship of adults,  children disposed to vagrancy, children distinguished by race or ethnicity, children who committed or are suspected of committing a punishable offence, children registered in police departments, children on probation, children who witnessed or became the victim of a crime, children from families in difficult conditions (crisis families), victims of family violence, children of convicted persons, children abusing alcohol or drugs, children exposed to any kind of exploitation (labor or sexual exploitation), the representatives of subcultures, and children with mental disorders.

„…afterconsideringtheproblemofhomelesscitizensandstreetchildreninUkraineandthemeansofitssolution, itwasconcludedthatthementionedproblemdeformsthesocialsurrounding, ruinsthephysical, psychologicalandspiritualhealthofpeople, decreasestheirvital, civilandcreativeactivity, disturbsmoralorder, andcreatessocialtension…”

(Recommendationsadoptedinthecourseof theParliament hearings on the problem of homeless citizens and street children and the means of its solution3)

1. Preamble

Specialists working in the sphere of children’s rights protection have been stating for a long time that it is necessary to define the notion “children at risk”. This category of children should include all children, who were left without the supervision of adults. At the same time Article 1 of the Act of Ukraine titled About the Protection of Childhood gives definition of only one category of children -street children:

street children is a term to refer to  children who were either abandoned by their parents or left  their family or institutions, where they had been brought up, andhave no definite place of residence4.

The analysis of the legislative acts of Ukraine allows stating that there is no legal definition of notion “child neglect”. However, Article 4 of the Act of Ukraine About Agencies and Services on Children’s Affairs and Specialized Institutions for Children specifies that one of the main tasks of the authorized central agencies of the executive branch of the government on children, family and youth affairs, and of the authorized agencies of the Autonomous Republic of Crimea on children, family and youth affairs is to coordinate efforts of central and local agencies of the executive branch of the government, of local authorities, enterprises, institutions and organizations regardless of the form of ownership in the questions of the social protection of children and in the work aimed at the prevention of the neglect of children5.

Such children are also recalled in the Resolution of the Cabinet of Ministers of Ukraine as ofMay 11, 2006, no. 623 About the Adoption of the State Program on the Overcoming of the Homelessness and Neglect of Children for the years 2006 to 2010. The Resolution particularly defines:  Present conditions contribute to the social phenomenon of homelessness and neglect of children. Children who were either abandoned by their parents or left their families, where there had been  no conditions for living and full-fledged development, are on the tramp, cadge, become thieves, consume alcohol, take drugs and toxic substances systematically, often become the victims of sexual crimes, and are involved into criminal activities by adults. The life and health of such children are under a constant threat, while the increase in the number of these children constitutes a particular threat to the society.

Thus, there is a phenomenon of child neglect, and each of us has been convinced of that more than once. Taking into consideration the national system of the protection of children, it is inappropriate to talk about the neglect of children. Even if a child is deprived of parental care, he or she should be under somebody’s guardianship supervision). It should be provided either by an official guardian (appointed according to the decision of a court), or by the government through the institution for children (such as mixed-type children’s homes, family-type children’s homes, and boarding schools). Thus, according to our reckoning, it is necessary to talk about children who were left without the supervision of adults, because care and supervision are different in their meaning.  

Police records testify of the seriousness of the problem. More than 22 thousand minors are registered in police departments. These are juveniles who commit offences, are disposed to the consumption of alcohol, drugs or psychotropic substances. Only in 2009 more than 41, 5 thousand administrative offences and more than 15, 4 thousand crimes were committed by juveniles.

At the same time, the social structure of all the juveniles registered in police departments indicates clearly of the fact that not only street children belong to the group of children at risk.

 

 

Most of the registered children have at least one parent.

According to the data contained in the Twelfth Yearly State Report on Children in Ukraine, the number of children that could be referred to as children at risk was rather high.  Only in 2003 more than 19, 5 thousand children at risk were found in the result of preventive inspections, which were carried out by the Criminal Militia on Children’s Affairs and by services on children’s affairs. In 2004 there were 13, 7 thousand children, in 2005 – 11, 2 thousand, 2006 – 9, 3 thousand, and in 2007 – 8, 8 thousand children.

Basicreasonsimpactingtheproblemofthe homelessnessand neglect ofchildrenandmeansofitssolutionarespecifiedinthePresidentialDecreetitledAbout Priority Measures Concerning Children’s Rights Protectionof July 11,2005, no. 1086. SeveralStateprogramsontheovercoming of the homelessness and neglect of children have been adopted by the Government of Ukraine. The programs foresee the social and legal protection of children in complicated living conditions together with effective forms of their social support6. 

However, everydayonthestreetsofourcapital, intheregionalcentersofourcountrylawenforcementofficersmeetchildrenwho, foronereasonoranother, have beenleftwithoutthesupervisionofadults, whocommitoffences, crimes, and rogueorbeg. Everysuchcaserequiresaparticularattentionwithregardtotheprovision and observance of the rights of little citizens, because even before the child meets a police officer, his or her rights, proclaimed by the UN Convention7, have been already violated by adults. 

1. Contacts of police officers with children at risk

The first situation: the withdrawal of the child left without the supervision of adults

In the situations when the child is left without the supervision of adults (apart from the situations when the child commits an administrative offence or a crime), there is a need to take the child away (from the street or premises). Grounds and terms of detention of juveniles under 14 years of age, who were left without the supervision of adults and committed crimes at the ages when the criminal responsibility is not yet imposed, are defined in Article 5 of the Act of Ukraine About Agencies and Services on Children’s Affairs and Specialized Institutions for Children. The term of detention must not exceed 8 hours8.

At present the withdrawal procedure concerning the child left without the supervision of adults consists of several stages. First of all the child is taken to a police station for the documentation. Afterwards the child is taken to a medical establishment for the examination, in case he or she might have an infectious disease. Only in the absence of such diseases the child can be taken either to the reception center for children within the system of the law enforcement agencies or to the orphanage.  In the course of the entire procedure the child is supervised by various police officers, doctors and social workers. Each and every adult asks the child, how he or she turned out on the street, and where are the adults responsible for him or her. In accordance with the general practice the child’s reaction becomes worse when more questions are put.

Detention is one of the most problematic issues related to the observance of human rights. The analysis of the international documents, such as the Universal Declaration of Human Rights9, UN Convention on the Rights of the Child[1], European Convention for the Protection of Human Rights and Fundamental Freedoms give grounds to consider the child’s placement to a specialized institution as the deprivation of liberty. In such cases “the deprivation of liberty” is not considered as a type of punishment, id. est. “imprisonment”, but as the restriction of the right to particular actions (the right to movement, the prohibition to leave a place or a territory etc.), because liberty may be referred to as a possibility to behave in a certain way (for example, the freedom of speech, the freedom of religion) allocated in a constitution or another act of law. The notion of liberty is close to the subjective notion of “the right to something”. However, the latter intends a clearer implementation mechanism and, as a rule, corresponds to the obligation of the government or another subject to carry out particular actions (for example, to provide with a job for the implementation of the right to labor).

Specifically, Item d of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms allows „the detention of a minor by lawful order for the purpose of educational supervision” or „for the purpose of bringing him before the competent legal authority”. According to the Convention the term “a minor” is referred to persons less than 18 years of age.

Without the corresponding court decisions, stipulated by the international standards and the Constitution of Ukraine, the chief officers of territorial law enforcement agencies continue signing decrees about the starting of cases related to an operational investigation or decrees of agencies in charge of preliminary investigation. According to such decrees children are placed for 30 days to reception centers, which could be referred to as places of temporary deprivation or restriction of liberty.

 

Taking the child to the law enforcement agency in such a casewill not benefit him or her10. By all means in such circumstances the child must be taken to the specialized institution for children (an orphanage, a crisis center, the center of medical and social rehabilitation). Contacts with children at risk prove that the child’s first placement in an institution can be rather crucial, as, according to many researchers, psychological and pedagogical work in such cases has a very specific character, which becomes apparent during the first contacts with the specialists of such institutions11.

 

Consequently, it is necessary:

1). to develop mechanisms for the immediate withdrawal of the child from the situation, when he or she is left without the supervision of adults (such as begging, roguery, home abandonment or the abandonment of institutions for children for any reasons);

2). by all means to provide the normative definition of the procedure of the treatment of the child under alcoholic or drug intoxication; if appropriate to create specialized medical institutions or departments in children’s hospitals).

3). to introduce models of the operative monitoring of children’s rights violations in situations when the child is left without the supervision of adults.

An innovative approach to the problem of the urgent withdrawal of the child from the situation when he or she is left without the supervision of adults would be the establishment of the Center for Urgent Assistance to Children (hereinafter  the TsEDD according to the Ukrainian syllabic abbreviation). With the help of the Center it would be possible to quickly deal with problems, when the child is taken away from the street and should either be placed to the specialized institution or brought back to parents.
First of all, when the child is taken to the TsEDD, they get food and drinks. Afterwards the child is examined by a psychologist, whose task is to find out whether the child was abused, and to diagnose the child’s mental condition. Afterwards the child goes to different rooms to work with the representative of Criminal Militia on Children’s Affairs, a doctor and a social worker. Within 3 to 8 hours the representatives of Criminal Militia and children’s services decide, where the child should be sent further (to an orphanage, mixed-type children’s home, to a boarding school or a foster family if one is available). Bellow is the scheme of the procedure of the child’s withdrawal.

 

 

 

According to item b of Article 37 of the Convention on the Rights of the Child no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

The grounds, procedure and terms of detention of citizens by law enforcement agencies are specified in Articles 262to 265 of the Code of Ukraine on Administrative Offences. However, in exceptional circumstances the laws of Ukraine may stipulate other terms, for example, until the case is reviewed by a judge.[1]As we can see, there is a conflict between the latter provision and the previous norm, because the child under 16 who committed an offence and was left without the care and guardianship of adults may be detained up to 8 hours, while older children may be detained up to 3 hours.

 

Constituentelementsofan offencestipulatedbytheCodeofUkraineonAdministrativeOffenceswereabsolutelynotapplicabletojuvenilesinSoviettimes(theCodewasadoptedin1984). Thesocietycouldn’t’timaginethatyoungpeopleof17 yearsofage,whostudiedinhighereducationalestablishments,wouldviolatelawsaboutassemblies, politicalmeetings, streetmarchesanddemonstrations(Art.185¹ of the Code of Ukraine on Administrative Offences), because socialinstitutionsofthosetimesdemandedthatyoungpeopleweremembersofVLKSM(a syllabicabbreviationfromRussian, which stands for the All-Union Leninist Young Communist League). Single non-governmental organizations that functioned then were supervised and controlled. Cases of misdemeanors committed by juveniles, who reached 16 years of age, were considered extraordinary and were dealt with by all students and staff of secondary schools, vocational-technical schools and universities. This is the origin of the types of punishment stipulated by Article 2412 of the Code of Ukraine on Administrative Offences (an obligation to apologize publicly or in a different form, warning, reprimand, parental supervision or supervision by staff members or other citizens).

 

Thedetentionofthejuvenile, whoreachedtheageofcriminalresponsibility, onsuspicionofacrimeisstipulatedbyArticle106 oftheCriminalProceduralCodeofUkraine. Thegroundsfordetentionareclearlydefinedbythelaw: whenapersoniscaughtatthesceneofacrimeorrightafterit; whenwitnessesorvictimsdirectlypointtoapersonclaimingheorshecommittedacrime; whenthesuspect, thesuspect’sclothes, orhisorherpremises of residence bears evident traces of a crime.

Juveniles suspected of committing a crime are detained and kept in detention centers having the same rights as prisoners. No sanctions of a public prosecutor or the leave of court is needed. The detention is based on the detention protocol, the copy of which is handed over to the apprehended person and delivered to the public prosecutor. The detention term is counted from the moment when the person suspected of a crime is brought to an agency in charge of preliminary investigation or to an investigator. If the detention is based on an arrest or search warrant issued either by an agency in charge of preliminary investigation or an investigator, its term is counted from the moment of an actual arrest. The detention term for a person suspected of committing a crime may not exceed 72 hours. An investigator or a person who conducts the investigation is obliged to explain the apprehended person his or her rights and responsibilities, which are defined by the current legislation, whereupon a record is made in the detention protocol13.  

On any such action it is necessary:

1). to entrench a norm ensuring the obligatory fulfillment of item d of Article 37 of the UN Convention on the Rights of the Child pertaining to the right of every child deprived of liberty to prompt access to legal or another appropriate assistance;

2). to allocate the right of the child to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority (which may be exercised by a legal representative, a defense attorney or a lawyer);

3). to allocate the right of the child to a prompt decision of a court or other competent, independent and impartial authority.

The third situation: the withdrawal of the child from the family where he or she is abused

In such a situation we should talk not about the observance but rather about the provision of the child’s rights. When the child is abused in the family, the intervention of the executive authorities’ competent bodies is obligatory. In particular, according to item 3.3.7 of the Decree On Approval of the Order of Submitting Applications and Reports Сoncerning Cruel Treatment of Children or Real Threat of its Committment14, if it is necessary to withdraw the child from the family, where he or she is abused by parents or persons substituting them, the representatives of Criminal Militia on Children’s Affairs together with the juvenile services come to a decision about the further placement of the child. Simultaneously, such a formulation is not binding as to the withdrawal of the child   (the question of the placement of the child may be resolved later).

Consequently, it is necessary:

to entrench a procedure of the withdrawal of the child from the family (or other surroundings) where he or she is abused by parents or persons substituting them, taking into consideration the practice of the European Court concerning the cases on Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms15 (the right to respect for private and family life).

 

The fourth situation: discrimination on the ground of national or social origin, association with a national minority

The problem of the discrimination of children belonging to national minorities was emphasized by the UN Committee on the Rights of the Child in its recommendations to Ukraine that followed its Report on the Implementation of the Convention on the Rights of the Child:

35. The Committee is concerned about continuous complaints from children, particularly from Roma children, about cruel treatment and tortures by police officers as well as about the inefficient investigation of such complaints.

36. The Committee recommends to the State party:

…d) to take immediate measures in order to cease police violence against children who belong to national minorities, particularly Roma children, and to overcome the impunity dominating in these acts of violence16.

Specialists in the sphere of human rights protection more and more often resort to a term “ethnic profiling”, which is relatively new to Ukraine, in order to distinguish the actions of law enforcement agents connected with an ethnic based approach. Profiling refers to the practice of police officers, when a definite set of characteristics (profiles) is used in order to search for or detain a person, who committed a crime (criminal profiling), or in order to identify persons who are likely to be related to criminal activity (behavioral profiling). Thus criminal and behavioral profiling is an acceptable and legal instrument used in the operative investigation activity of law enforcement agencies. Ethnic profiling refers to any action of the representative of authorities against a person or a group of persons with an aim to ensure public safety and order, which is based on the actual or supposed membership of a person in a group, relies on race, color, ethnic or national origin or religion and does not take into account factual grounds and valid suspicions that leads to unequal treatment of this person of a group of persons17.

For all intents and purposes ethnic profiling is based on the assumption that there is a connection between the inclination to commit offences and ethnic origin. Very often Roma children become victims of such a stereotype. Actions of police officers in relation to these children in particular may be regarded as a type of discrimination. According to researchers, assumptions presupposing that the representatives of particularly this nationality commit offences (including stereotypes about frauds, petty theft etc.) constitute one of the types of discrimination.

The cases when Roma juveniles are detained and taken to police departments, because they are suspected of committing a crime, are not sporadic. One of the basic reasons of such an attitude is a certain stereotype about the life of Roma people. Correspondingly, the stereotype is applied to children as well.  

Thus, it is necessary to develop educational programs for police officers on the use of logic and socially motivated reasons in an everyday activity as opposed to defining offenders on the ground of racial and ethnic characteristics solely. 

However, stereotypes and discrimination related to profiling are not only based on racial and ethnic grounds.  The preventive record18 of juveniles, who were released from places of detention, are on probation or were acquitted of criminal responsibility due to legislative pardon or compulsory measures of educational character, intends special supervisory measures. According to a false practice, when the examination is conducted to define whether a person was involved in committing a crime, police officers primarily check those juveniles who are maintained in police records for preventive measures. In a certain way such a treatment is degrading, because the court that reviewed the case of the juvenile gave him or her the chance to improve or entirely released him or her from responsibility. The constant examinations of such juveniles aimed to define whether they were involved in committing a crime have a bad influence on their psyche and have a discriminative character. To suspect a juvenile for committing any offence just because he or she used to commit crimes and offences and is maintained in police records is as illicit as to have such suspicions if the juvenile is Roma. However, the aim of preventive records is to conduct individual and prophylactic measures with regard to juveniles. Such measures intend juveniles’ resocialization and are called to prevent them from committing repetitive socially dangerous actions. According to global experience this task is better coped by probation services.

Thus, it is essential to establish a corresponding service, which workers will provide supervision and social support. The establishment of such a service should be stipulated by law.

An essential step forward in the prevention of juvenile delinquency would be the introduction of restorative justice procedures in the activity of law enforcement agencies (police departments, public prosecutor’s office or court) in cases involving juveniles.

Restorative justice passed national borders and consolidated on the international level long time ago. On July 24, 2002 the UN Economic and Social Council passed the resolution on the Basic Principles on the use of restorative justice programs in criminal matters.  According to the resolution all States are recommended to develop and introduce restorative justice programs in the national legal proceedings.  There are several models of restorative justice, one of the most widespread of which is the reconciliation programs for victims and offenders. Because such programs are often conducted with the help of a mediator, they are called the mediation.

According to the European Union Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, mediation in criminal cases is understood as the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person – a mediator. Under the Decision all the members of the European Union are obliged to extend mediation in criminal cases and to ensure the due consideration of any agreement between the victim and the author of the offence reached in the process of mediation. Moreover, all EU States were obliged to pass laws ensuring mediation in criminal cases by 22 March 2006.

According to item 124 of the Action Plan for the Implementation of the UN Convention on the Rights of the Child19, it is essential to develop a set of measures on the introduction of restoration justice programs to reach negotiated solutions in criminal proceedings between children who committed an offence and victims. Such programs are understood as an instrument to involve community into the process of the resocialization of children in conflict with law and to prevent repeated crimes.

Primary attention should be given to the training of specialists who work with children at risk or in conflict with law. The principles of the training of specialists are defined in Article 34 of the UN Convention on the Rights of the Child. The elements of such training are:

• the fulfillment of police tasks in the system of juvenile care;
• children’s rights;
• youth education fundamental principles;
• work with parents;
• the teaching of basic forms of interviews with children: basic techniques of communication, specialized trainings on the work with children less than 12 years of age or with children with mental disorders;
• cooperation and key activities;
• the awareness and understanding of other organizations goals and tasks.

 

Taking into consideration that the law enforcement agencies of Ukraine belong to the system of governmental bodies in charge of the provision of the rights and interests of all children without exception, we should remember about the need to establish cooperation and to have a common interpretation or definition of the problem. Thus, there are several more recommendations:

1).to entrench the definition of the categories of children at risk and of criteria identifying whether the child belongs to a risk group on the legislative level.

2). to work out and adopt on the legislative level preferably the system of the assessment of risks that the child might fall under the category of ‘children at risk’.

3). to establish free hot lines for children in crisis centers and within the services for children.

 

For information

The project Actions for the Protection of Children at Risk was administered by the Human Rights Center Postup (Luhans’k, Ukraine). Project partners: Helsinki Foundation for Human Rights (Warsaw, Poland); the non-governmental organization German-Russian Exchange (Berlin, Germany). The project was carried out within the second stage of the Understanding Human Rights Program Action Plan. Local Ukrainian partners of the project: the non-governmental organization MARTIN-club (Makiivka, Ukraine), the non-governmental organization M’ART (Chernihiv, Ukraine), Kharkiv Regional Foundation Public Alternative (Kharkiv, Ukraine).

The project was carried out under the financial assistance of the Stefan Batory Foundation, the Robert Bosch Foundation and the Polish-Ukrainian Cooperation Foundation (PAUCI).

The Project Group of Experts:

• Elzbietta Czyz, Helsinki Foundation for Human Rights (Warsaw);
• Olga Salomatova, Helsinki Foundation for Human Rights (Warsaw);
• Agnieszka Makowska, Regional Police Department of Warsaw Wola (Warsaw);
• Andrzej Orlowski, Pedagogy Group and Social Animation Association of Prague North (Warsaw);
• Tim Bohse, the non-governmental organization German-Russian Exchange (Berlin);
• Konstanze Fritsch, Center for Coordination of Assistance to Children and Youth (Berlin);
• Matthias Niestroj, Berlin Police Department Consulting and Mediation Bureau (Berlin);
• Kostiantyn Reuts’kyi, the Human Rights Center Postup (Luhans’k), Donbas Human Rights Children’s Network;
• Serhii Burov, the non-governmental organization M’ART (Chernihiv), the Understanding Human Rights All-Ukrainian Educational Program;
• Oleksander Voitenko, the All-Ukrainian Association Nova Doba (Hadiach), the Understanding Human Rights All-Ukrainian Educational Program;
• Maria Yasenovs’ka, Kharkiv Regional Foundation Hromads’ka Al’ternatyva (Public Alternative) (Kharkiv) Understanding Human Rights All-Ukrainian Educational Program;
• Anna Hrystova, Kharkiv Regional Foundation Hromads’ka Al’ternatyva (Public Alternative) (Kharkiv), National Law Academy named after Yaroslav Mudryi;
• Viktoria Fedotova, the non-governmental organization “MARTIN-club” (Makiivka), Donbas Human Rights Children’s Network;
• Yurii Bilousov, the Ministry of Interior of Ukraine, the Department for the monitoring of the observance of human rights in the activity of law enforcement bodies;
• Vadym Pyvovarov, the Ministry of Interior of Ukraine, the Department for the monitoring of the observance of human rights in the activity of law enforcement bodies (until June 2010), the Ukrainian Helsinki Human Rights Union;
• Oleksii Lazarenko, the Ministry of Interior of Ukraine, the Department for the monitoring of the observance of human rights in the activity of law enforcement bodies;
• Ol’ha Vilkova, the Ministry of Interior of Ukraine, the Department for the monitoring of the observance of human rights in the activity of law enforcement bodies (until June 2010), Sevastopol’ Human Rights Group;
• Mykola Mazur, Luhans’k State Institute of Internal Affairs named after E. Didenko, Luhans’k Legal Foundation.

 

 

12The Code of Ukraine on Administrative Offences – /Vidomosti Verkhovnoi Rady Ukrainy (The Official Bulletin of the Supreme Council of Ukraine), 1984, Annex to no. 51. p. 1221

13A Commentary to Criminal Procedural Code of Ukraine, Maliarenko V., Honcharenko V., 2003

14The Decree of the State Committee of Ukraine on Family and Youth, Ministry of Interior of Ukraine, Ministry of Education and Science of Ukraine, and Ministry of Health of Ukraine of 16.01.2004 no. 5/34/24/11. Access to the resource: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=z0099-04

15The Convention was ratified by Ukraine according to the Act of 17.07.97 N 475/97-ВР. Access to the resource: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=995_004

16The review of reports submitted by State Parties according to Article 44 of the Convention, CRC/C/15/Add. 191, 2002, Section D 4.

17Preventing the Practice on the Use of Ethnic Elective Approach in the Activity of the Law Enforcement Agencies of Ukraine: Methodological Recommendations, O.Martynenko, Y. Belousov, D. Kobzin and others. Kyiv, 2010

18The Act of Ukraine About Agencies and Services on Children’s Affairs and Specialized Institutions for Children – /Vidomosti Verkhovnoi Rady Ukrainy (The Official Bulletin of the Supreme Council of Ukraine),1995, no. 6, p. 35

19The Act of Ukraine On the Approval of the National Action Plan for the Implementation of the UN Convention on the Rights of the Child. Access to the resource: zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1065-17 

 

6The Resolution of the Cabinet of Ministers of Ukraine About the Validation of the State Program on the Overcoming of the Homelessness and Neglect of Children for the years 2006 to 2010 as of May 11, 2006 no. 623

7Access to resource: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=1&nreg=995_021

8The Act of Ukraine About Agencies and Services on Children’s Affairs and Specialized Institutions for Children (with amendments introduced by the Act no. 609-Vas of07.02.2007) – /Vidomosti Verkhovnoi Rady Ukrainy (The Official Bulletin of the Supreme Council of Ukraine), 1995, no.6, p. 35

9Access to the resource: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=995_015

10Access to the resource:  http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=995_021&myid=4/UMfPEGznhhE4h.ZiBkAeAyHdlqksFggkRbI1c

11Social and Legal Basis of the Work of Psychological Services in the System of Education: Educational Manual, Kozubovs’ka I., Sahada V., Dorohina O. and others, Uzhhorod, 2000 

 

 

3Approved by the Resolution of the Supreme Council of Ukraine of February 3, 2004, no. 1428-IV http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1428-15

4The Act of Ukraine The Protection of Childhood – / Vidomosti Verkhovnoi Rady Ukrainy (The Official Bulletin of the Supreme Council of Ukraine), 2001, no. 30

5The Act of Ukraine About Agencies and Services on Children’s Affairs and Specialized Institutions for Children (with amendments as of 2007) – /Vidomosti Verkhovnoi Rady Ukrainy (The Official Bulletin of the Supreme Council of Ukraine), 1995, no. 20

 

 

[1]The present section is a supplement to the section where the corresponding situation in Ukraine is described. The reports given in the latter section include the description of main difficulties, which pertain to children at risk living in Ukraine.

[2]Theexpertgroupalsoconsidersitnecessarytopayattentionofthosewhoareinterestedtothecloselyrelatedprojecttitled“EuropeanStandardsofAssistancetoChildrenandFamilyinChernihivRegion”that was supported in 2009 by the Ministry of Interior of the Republic of Poland within the Polish Assistance Project. The project is implemented by the Helsinki Foundation for Human Rights (Warsaw, Poland) and the Center for Humanistic Technologies AHALAR (Chernihiv, Ukraine).The analysis of the legislation and of the law enforcement practice was carried out within the framework of the project. There were also developed recommendations about changes in the sphere of children and family care.