REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Third report on the implementation by Ukraine of the Action Plan on Visa Liberalisation
Date: 2013-11-15
Institutions: European Commission
Subjects: EU visa policy, Ukraine, judicial cooperation, police cooperation













EUR-Lex - 52013DC0809 - EN











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52013DC0809

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Third report on the implementation by Ukraine of the Action Plan on Visa Liberalisation /* COM/2013/0809 final */









I. Introduction
The EU-Ukraine Visa Dialogue to examine the conditions for
visa-free travel for citizens of Ukraine to the EU was launched on 29 October 2008. The Action Plan on Visa Liberalisation (VLAP)[1] was presented to Ukraine by the Commission on 22 November 2010. The
VLAP sets a series of precise benchmarks for Ukraine on four ‘blocks’[2] of relevant
issues, with a view to both the adoption of a legislative, policy and
institutional framework (phase 1) and its effective and sustainable
implementation (phase 2).
The Commission has regularly reported to the European Parliament
and the Council on the implementation of the VLAP. The First Progress Report on the implementation by Ukraine of
the Action Plan on Visa Liberalisation was presented on 16 September 2011[3].
The Second Progress Report on the implementation by Ukraine of the Action Plan on Visa
Liberalisation was issued on 9 February 20123. A Senior Officials Meeting took place
in April 2012 during which the Second Progress Report was presented and the next
steps in the process were discussed.
Ukraine handed in its own third progress report
on 22 July this year and provided an update on 11 October, which was the
cut-off date for taking new legislative developments
into account.
Evaluation missions on all four blocks involving nine experts took place in
September 2013. A Senior officials meeting with Ukraine was held on 27
September.
This Commission Report is the third progress report on the first phase of the VLAP,
presenting a comprehensive and consolidated assessment by the Commission of the
progress made by Ukraine in meeting the first-phase benchmarks of the VLAP
relating to the establishment of the legislative, policy and institutional
framework.
Beyond VLAP benchmarks, issues related to the reform of Judiciary
and Prosecutor Office are monitored in other dialogue
frameworks, such as the informal Judiciary
Dialogue launched in February 2013, the Cooperation Committee, the Cooperation
Council, Summit as well as in the context of the implementation of the
Association Agenda.
II. Assessment
of measures under the four blocks of the Visa Liberalisation Action Plan
Block 1: Document
security, including biometrics
General assessment
The basic
legislative framework (primary law) is largely in place. Action Plans have been
adopted both for the roll-out of International Civil Aviation Authority
(ICAO)-compliant biometric passports and for phasing out non-ICAO compliant
passports.
The
Commission considers that Ukraine largely meets the benchmarks set under Block 1. The use of fingerprints as a mandatory biometric
feature for passports is to be further clarified and the necessary by-laws
setting up the issuance procedures are still to be adopted.
Detailed comments
·                        
Adoption of a legal framework for issuing
machine-readable biometric international passports in full compliance with the
highest ICAO standards on the basis of secure identity management (civil
registry and breeder documents) and taking into account adequate protection of
personal data
A
framework law[4]
was adopted and entered into force on 20
November 2012 creating a single state demographic registry and establishing a
list of the data that will be collected and used in order to issue identity or
travel documents using biometric data features. The Law introduces 14 types of
biometric identity, travel and residence documents for Ukrainians, foreigners
and stateless persons, including the international passport and the internal
passport, the latter being the ID card used as the main supporting document to
apply for an international passport.
The Law
lays down most of the basic rules governing the issuance of ICAO-compliant
travel documents (one person one document principle, no extension of validity,
data protection rules indicating the purposes for which data are collected,
stored and used, etc.). Concerning the biometric features to be captured, the
law clearly cites the digitised photo and the signature but mentions
fingerprints only as an additional and optional element with no precise
reference to which fingers should be collected, nor does it indicate which
exceptions are deemed appropriate and what procedures should be followed. A
clear indication of which fingerprints are to be collected and stored in the
passport is required. Likewise the reference to ICAO recommendations in the law
needs to be spelled out in more detail.
Implementing
measures on the issuing procedures and additional technical specifications —
due to the suspension of those adopted in March 2013 — will need to be adopted.
The opportunity could be taken to simplify and streamline the application
procedure.
·                        
Adoption of an Action Plan containing a
timeframe for the complete roll-out of ICAO-compliant biometric international
passports, including at Ukrainian consulates abroad, and the complete
phasing-out of non-ICAO compliant passports
An
Action Plan for phasing out non-ICAO compliant passports was already adopted in
2011. It lists a set of measures and actions to be performed by 24 November
2015 and further indicates that the phasing-out
will be implemented gradually as and when the biometric documents are issued
but does not give any timeframe for rolling out these biometric documents.
As for the roll-out of ICAO-compliant biometric passports, a
2013-16 Action Plan was adopted on 11 September 2013, which needs to be
assessed once an English translation is made available.  
·                        
Establishment of training programmes and
adoption of ethical codes on anti-corruption targeting the officials of any
public authority that deals with international passports, domestic passports
and other breeder documents
The
State Migration Service (SMS) within the Ministry of Internal Affairs is the
body responsible for managing the register and issuing international passports
and other identity documents.
An
ethical code was already adopted in 2011, focusing on the integrity of the
civil service, asset declarations and rules on whistle-blowers, and another
more general code for officers of internal affairs bodies of Ukraine was
adopted in 2012[5].
It is to be seen whether updates are necessary, due to the subsequent changes
in the overall legal framework on anti-corruption (for further detail see the
section on Block 3).  
The
Anti-Corruption Division was established within the SMS in April 2012 to combat
and prevent corruption. An Annual Action Plan on preventing and countering
corruption offences is approved by the Head of the SMS.
Although
there is no specific training for officials dealing with international
passports, several advanced and specialised internal training courses for the
SMS officials were developed in cooperation with universities and already held
this year (June 2013). The courses consist of a one-week programme, they
address anti-corruption and biometrics issues and the lectures are given by the
Anti-Corruption Division.
Their
content appears comprehensive and contributes to raising civil servants’
awareness of corruption and the sanctions incurred.
The
effectiveness of these measures will have to be further assessed once the
issuance of biometric documents has started.
Block 2: Irregular
immigration, including readmission
General assessment
In the area of border management, all the necessary
laws are in place along with the institutional framework, including provision
of training and ethical codes to fight corruption. Inter-agency information exchange should be improved via
the possibility to exchange information at regional and local levels.
With regard
to migration
management, Ukraine has
laid down a comprehensive basis for an efficient migration management system
and the relevant legislative framework is in place.
In the area
of asylum, the legislative basis is there too and largely in line with
European and international standards, although some further improvements are
necessary, with special regard to widening the definition of subsidiary and
temporary protection and the provisions on medical care for asylum seekers.
Most of the institutional framework is in place, although more resources should
be allocated to the implementation of the legislation.
Detailed comments by policy area
Block
2 / topic 1 — Border
management
·                        
Adoption of all necessary measures for
implementing the law enforcement programme on state border development and
reconstruction and the development concept for the State Border Guard Service,
both for the period up to 2015, including a legal framework for inter-agency
cooperation between the Border Guard Service, law enforcement agencies and
other agencies involved in border management and allowing the Border Guard
Service to participate in the detection and investigation of cross-border crime
in coordination with all competent law enforcement authorities
The
legislative framework was already in place, with the Law on border control in
force since December 2010 along with the amendment of a number of other pieces
of legislation and by-laws. In the last two years, only a few minor changes
have been made to border-related legislation. One of these, to relevant
provisions of the new Criminal Procedure Code, affected the competence of the
State Border Guard Service (SBGS), which lost their right to carry out
preliminary criminal proceedings, the Prosecutor’s Office having procedural
control (issuing the task order). In the implementation phase, the precise
consequences for the capabilities of the SGBS as an effective law enforcement
agency tackling cross-border crimes will need to be clarified.
The
demarcation of state borders started at the Ukraine-Russia border in November
2012 and substantially progressed at the Ukraine-Moldova border (95 % of
that border, totalling 1 163 km, has been finalised, including 88 %
of the Transnistrian segment). The Ukraine-Moldova border is to be finalised by
the end of 2013. At the border with Belarus work has not yet started, but in
June 2013 Ukraine and Belarus signed a protocol on the exchange of ratification
notes on the state border agreement concluded by the two countries already in
May 1997. This document will hopefully launch the practical work on demarcating
the Ukraine-Belarus border. Despite the lack of demarcation a border control
mechanism exists and borders are under the control of competent authorities on
both sides.
In
terms of international cooperation, the SBGS is actively developing its
relationships with the authorities of neighbouring countries and other actors
in the sphere of international borders. This development work has continued and
is currently increasingly geared to serving practical cooperation. There has
been good progress especially in the area of joint monitoring of borders based
on bilateral agreements with neighbouring countries: an agreement with Hungary
has been in force since May 2012, and one with Russia since February 2012.
Cooperation with Frontex continued under the new cooperation plan for 2013-15
with a focus on joint operations, risk analysis, exchange of information,
training of personnel and technological cooperation.
Inter-agency
cooperation is one of the areas that still need attention. First steps have
been taken but effective inter-agency cooperation — especially information
exchange — is still limited to only the highest level of organisations. It is
of the utmost importance to recognise the added value of inter-agency
cooperation not only for the SBGS but also for the other authorities involved
in the prevention of cross-border crime and to carefully consider, including
from the legal point of view, whether unnecessary obstacles still exist.
Exchange of information at the inter-agency level is taking place through the
Virtual Contact and Analytical Centre, which interconnects specified units of
the SBGS, the Ministry of Internal Affairs, the Ministry of Foreign Affairs,
the State Migration Service, the State Customs Service, the Security Service
and the National Civil Service Agency, with the SBGS playing the coordinating
role. The Centre has produced joint analytical reports on the basis of which
the leadership of the SBGS and the State Customs Service are taking decisions
in the sphere of border protection.
·                        
Adoption of a National Integrated Border
Management Strategy and an Action Plan for its effective implementation,
containing a timeframe and specific objectives for the further development of
legislation, organisation, infrastructure, equipment and sufficient financial
and human resources in the area of border management
Core
documents were already in place, a Strategy approved in 2006 and an Action Plan
from 2007 up until 2015 with the aim of transforming the SBGS into a modern
European-type law enforcement agency. A text on Reforming mobile squads was
adopted in July 2012 and Strategies (‘Concepts’) for maritime guards and
aviation in 2011.
Results
achieved suggest that in general the aforementioned Concepts are successfully
implemented (e.g. the use of conscripts in border control duties has now drawn
to an end and all SBGS personnel are under contract and specially trained for
their duties). As for aviation, additional aircraft have been purchased and
pilots have been trained in line with ICAO standards. As for maritime
resources, the projects have been completed (the patrol boat ‘Oral’ has been
deployed) and a new training concept and post-graduation system is being
drafted.  
An
integrated inter-agency information and communication system named ‘Arkan’ is
used for the control of persons, vehicles and goods crossing the state border.
It interconnects nine different ministries and agencies, allows information and
functional support activities, and enables its users to manage databases and to
access each other’s and exchange information in a protected and secure way.
Although ‘Arkan’ is already operational, its use is limited as no inter-agency
information exchange is possible between local and regional levels.
·                        
Establishment of training programmes and
adoption of ethical codes on anti-corruption specifically targeting border
guards, customs and any other officials involved in border management
The
SGBS Academy has further improved its level of training and training
conditions. As regards the institutional structure a specific department has
been set up within the SGBS with specific tasks to prevent corruption. In
educational terms, the curriculum of the SBGS Academy includes 114 academic
hours of legal studies on fighting corruption and the code of conduct of
personnel responsible for border management. There is also special training at
advanced level for border management personnel.
Other
concrete measures are in also in place: there is a Public Reception Office for
citizen claims, and a hotline open 24 hours a day. Anti-corruption campaigns
are being conducted, including in cooperation with certain NGOs.
As regards customs, the
Ministry of Revenue and Duties has also strengthened the Internal Security
Department dealing with corruption cases. It has received broader powers to
detect and prevent corruption offences in customs sphere. The Customs
Anti-corruption strategy includes the objectives to reduce corruption amongst
staff through preventive work and shaping negative attitude towards acceptance
of bribes. Operation State Border 2013 was initiated in February 2013 to
address the problem. 
Block 2 / topic
2 — Migration management
·                        
Adoption of a legal framework for migration
policy providing for an effective institutional structure for migration
management, rules for entry and stay of foreigners, measures for the reintegration
of Ukrainian citizens (returning voluntarily or under the EU-Ukraine
readmission agreement), monitoring of migration flows, and measures to fight
irregular migration (including return procedures, rights of persons subject to
such procedures, detention conditions, efforts to conclude readmission
agreements with main countries of origin, inland detection of irregular
migrants)
A framework law on foreigners and stateless persons has already
been adopted and has been in force since September 2011. It covers rules of entry, stay
and return. Following up on the Commission’s previous recommendations, five
other subsequent laws were amended to lay down detailed rules on the
expulsion procedure, on the documents issued to migrants and on additional competences
of the State Border Guard Service in the area of forced return. Additional
operational rules were added in the form of by-laws bringing greater clarity to
the procedures on legal stay.
Reintegration of readmitted or voluntarily returned Ukrainian citizens
is formally part of the Action Plan on integration targeted at both migrants
and own citizens. Some specific aspects (the validation of vocational training
obtained informally while working abroad) were addressed by bylaw. A more
comprehensive approach to labour reintegration was advocated by the President
(annual address to the Verkhovna Rada, June 2013), who tasked the Ministry of
Social Policy to draft a law and a targeted national programme in this regard.
Voluntary return rules were fleshed out in a bylaw in 2012 but further
specification of the mechanism would be useful.    
Compulsory
or forced expulsion of an irregular migrant involves detaining the foreigner in
a Migration Custody Centre (MCC) for the period necessary for enforcing the
judicial decision on compulsory expulsion, which should not exceed 12 months as
stipulated by the relevant provisions of the 2011 Law on the legal status of
foreign citizens and stateless persons[6].
No judicial review of the decision on administrative detention in an MCC is
provided for, except when coupled with an appeal on the substance of the case,
i.e. expulsion[7];
the enforcement authorities are only required to notify the Prosecutor’s Office
within 24 hours.
With regard to institutional capacity, the State Migration Service
(SMS) is the leading agency implementing and coordinating migration policy. It
was set up in 2011 and has by now become fully operational with 199 officials
at its the central office and 5 133 officials at its regional offices;
there are plans to hire an additional 1 500 staff to deal with irregular
migration. It is competent for both legal and irregular migration, although as
regards the latter (e.g. detention), given its civilian nature it has to
involve the law enforcement agencies.
As for readmissions, Ukraine
has concluded readmission agreements with the European
Union (in force since 1 January
2008). An implementing protocol
was signed with Austria; negotiations for similar protocols are in their final
stages with the Czech Republic, Poland and Estonia and are ongoing with another
12 Member States. A new agreement with Russia covering accelerated readmission
was signed and entered into force in 2013. Negotiations are ongoing with a
number of other countries (Western Balkan countries, Switzerland and Iceland).
The EU-Ukraine Joint Committee for re-admission met in May 2012 and noted that
there were no major
problems with practical implementation of the Agreement, while discussing a
number of technical issues.
·                        
Adoption of a National Migration Management
Strategy for effective implementation of the legal framework for migration
policy and an Action Plan, containing a timeframe, specific objectives,
activities, results, performance indicators and sufficient human and financial
resources
The Strategy on Migration and Asylum was adopted on 30 May 2011, identifying trends, principles and
priorities, together with an Action Plan setting out the activities, timeframe
and authorities responsible. An interim
Inter-agency Commission is tasked with implementation of the migration policy
and a Coordination Council has been created to coordinate the Action Plan
activities.
·                        
Establishment of a mechanism for
monitoring migration flows, producing a regularly updated migration profile for
Ukraine, with data on both irregular and legal migration, and establishing
bodies responsible for collecting and analysing data on migration stocks and
flows
A
mechanism for monitoring migration flows is being set up on the basis of a
Cabinet of Ministers Resolution from 2012, as a sub-system of Arkan (the
integrated inter-agency information system, see above topic 1 on border
management). The terms of reference have been produced.
Migration
profiles are regularly updated, for the latest one, of 2012 (issued in 2013),
the State Migration Service was already in lead with the active assistance of
ILO experts.
As far
as the risk analysis is concerned, on the basis of a Strategy adopted in 2011 a
Methodology to combat irregular immigration through a Contact Analysis Centre
is still being established. Currently all the work is being done by the
Analytical Unit within the State Migration Service collecting statistical and
other data manually, without IT support from the relevant agencies.
Block 2 / topic
3 — Asylum policy
·                        
Adoption of legislation in the area of asylum
in line with international standards (1951 Geneva Convention with New York
Protocol) and EU standards, establishing grounds for international protection
(including subsidiary forms of protection), procedural rules on examination of
applications for international protection, and rights of asylum seekers and
refugees
A framework law from 2011 on refugees and persons in need of
subsidiary and temporary protection is in force. It provides a solid legal
basis for asylum procedures that is largely in line with European and
international standards. However, some aspects still require improvement, given
that despite earlier recommendations by the Commission and that of UNHCR issued
in a country report July this year[8], the Law has not been amended. In
particular, the definition of complementary protection and temporary protection
should be extended, and necessary medical care — at least emergency medical
care — should be given free of charge to asylum seekers. As regards the latter,
the SMS has already drawn up a draft. Following recommendations made, action
was taken in 2012 to bring other pieces of legislation into line with the
framework law, by establishing various rights for persons with temporary and
subsidiary protection (education, healthcare, family allowances, social
services, etc.).
As regards the asylum procedure, the Law is also in place,
although some improvements need to be made, in particular as regards the
deadline for appeals, which is currently set at five days, even if according to
the Ukrainian authorities it is not applied strictly by
the courts. Country of origin information should also be specifically referred
to. Issues such as right to interpretation, confidentiality of interviews,
providing grounds for rejection and inadmissibility of asylum claims need to be
clarified. Finally, detention rules need to be further specified, with special
regard to a necessary court authorisation.
As for
legal aid, there is a law on free legal aid that is to apply from 2014 onwards,
apparently also through ‘legal clinics’ providing lawyers also to foreigners
and asylum seekers; the financing is not entirely clear. However, the Law only
foresees legal aid to nationals of countries with which Ukraine has signed a
bilateral agreement on free legal aid - a provision that de facto excludes many
asylum seekers from access to free legal aid.  
In
policy terms an Action Plan was adopted in July 2012 on the integration of
refugees and persons in need of additional protection, which triggers a more
coordinated approach across the different authorities, including the Ministry
of Social Policy, but important issues such as securing budgetary provisions
for its implementation should be addressed. 
In
institutional terms, the State Migration Service (SMS) is the main government
agency competent to take decisions on asylum applicants. With a view to
implementation, the number of staff dealing with asylum applicants should be
increased and the decision-making process could be streamlined. Relations with
civil society and the UNHCR have not improved much. 
Block 3: Public
order and security
General
assessment
The
legislative and policy framework on
preventing and fighting organised crime
has been established. The Law on organised crime has been adopted along with
the Strategy (‘State policy’) and the accompanying Action Plan and they are
largely in line with European and international standards.
The
legislative, policy and institutional framework on preventing and fighting trafficking in human beings (THB) is consolidated and largely in line with European and
international standards. The Action Plan for 2012-15 provides for
a comprehensive approach in addressing THB.
Regarding anti-corruption policy, although substantial progress has been achieved in the last two
years, further improvements are still necessary to complete the legislative and
policy framework.
Regarding cooperation between law enforcement agencies, coordination has been generally improved, allowing more effective
exchange of information. The legislative and policy framework for preventing
and fighting money
laundering and the financing of terrorism is in place, in line with European and international standards.
Ukraine has acceded to all UN and Council of Europe conventions in the area of
public order and security and to most of the UN and Council of Europe
conventions regarding the fight against terrorism. 
Further
steps should be taken to achieve progress in relation to concluding agreements
with Europol as well as with Eurojust.
The legislative
and institutional framework on
data protection is in line
with European standards, although some adjustments are still needed to broaden
the competence of the Data Protection Supervisory Authority.
Ukraine has
put in place the necessary legislative, policy and institutional framework in
the field of anti-drugs
policy in line with European and
international standards.
The
legislative framework regarding
judicial cooperation in criminal matters
was further consolidated. Ukraine has already ratified the Second Additional
Protocol to the Council of Europe Convention on mutual legal assistance in
criminal matters and has inserted appropriate provisions in its new Criminal
Procedure Code.
Beyond VLAP
benchmark, it is important to note that Ukraine took steps reforming the
judiciary as well as the prosecutor office which is closely linked to the
constitutional reform. 
Detailed comments
Block 3 / topic 1 — Preventing
and fighting organised crime, terrorism and corruption
·                        
Adoption of a comprehensive strategy to fight
organised crime, together with an action plan containing a timeframe, specific
objectives, activities, results, performance indicators and sufficient human
and financial resources
The
Law, revised in 2011, on the organisation and legal principles of the fight
against organised crime provides the legislative basis for fighting organised
crime by laying down a general organisational framework and establishing a
system of responsible state authorities, defining their competences and methods
of cooperation. In addition to the law, there is a Strategy (‘Concept’) for
state policies on fighting organised crime dating from October 2011, which is
fleshed out by an Action Plan adopted in January 2012.
The
legal framework on preventing and fighting organised crime was completed
through relevant amendments to the Criminal Code and especially through the
relevant provisions of the new Criminal Procedure Code which came into force on
19 November 2012. The Criminal Procedure Code contains provisions essential to
the fight against organised crime, especially detailed rules on covert
investigative measures, whereas the Criminal Code lays down the qualifying
criteria for offences to be regarded as organised crime and makes it liable to
more severe punishment. The protection of witnesses is further strengthened
through the introduction of precautionary measures, although it would be
desirable to introduce additional specific provisions on cooperation of former
members of criminal groups with the law enforcement authorities by setting up
specific programmes for incentivising and rewarding their cooperation. As
regards criminal procedures, in order to further enhance the effectiveness of
the fight against organised crime it would be advantageous to introduce more
advanced types of confiscation (extended confiscation, non-conviction based
confiscation, value confiscation and consequently the creation of an
independent agency for the management of seized and confiscated assets).
As
regards the policy framework, the ‘Concept’ for state policies along with the
detailed accompanying Action Plan are carefully implemented, and targets and
deadlines are met, with special regard to the analysis of relevant legislation
and subsequent amendments and the development of an effective mechanism of
cooperation. In addition, an annual systematic analysis of causes and affecting
conditions is conducted with the help of a single unified registry of all
pre-trial investigations set up within the General Prosecutor’s Office (GPO).
Finally,
on the institutional structure, the new Criminal Procedure Code clearly
outlines the leading coordinating and supervisory role of the Prosecutor’s
Office, stipulating who has the power of decision in the event of conflict. The
state authorities specifically created to combat organised crime — inside both
the Ministry of Internal Affairs and the Security Service — can further improve
the system of state authorities involved in the fight against organised
crime.       
·                        
Adoption of a law on trafficking in human beings
and adoption of an action plan to effectively implement the State Programme for
combating trafficking in human beings, containing a timeframe, specific
objectives, activities, results, performance indicators and sufficient human and financial resources
The Law
combating trafficking in human beings has been in force since October 2011. It
lays down the main provisions on the prevention of and fight against
trafficking, and on the aid and protection to be given to victims in line with
the relevant EU and international standards (Council of Europe Convention).
This Law has been supplemented with various legislative instruments in the last
two years that substantially improve and consolidate the legal framework and
follow up on almost all the recommendations made in the Commission’s Second
Progress Report.
To implement the Law, secondary legal acts (Resolutions of the
Cabinet of Ministers) were adopted, in May 2012, to introduce standardised
recognition procedures for granting the status of victims of trafficking and,
in August 2012, on the national mechanism for interaction between agents
combating trafficking. The objective of the latter was to avoid overlapping of
competences and to set up a comprehensive system.
In terms of the procedural rights of victims, certain new
provisions on witness protection in the
new Criminal Procedure Code (in force since 19 November 2012) are
relevant for victims of trafficking too (in-camera hearing, remote pre-trial
investigation and remote court proceedings). Procedural rights could be further
strengthened through a system enabling precautionary measures to be taken
before the interview with the potential victims and ensuring confidentiality
already at that stage. As regards foreign victims, the legislation on the legal
status of foreigners should be supplemented to allow them to receive residence
permits following the recognition of their status.
An
Action Plan was adopted in May 2012 setting out measures until 2015, with
specific timeframes, objectives, results and performance indicators. Aid to
victims (rehabilitation and social, judicial, medical and psychological
assistance) is set to be strengthened through a concrete system of monitoring
and better coordination. In the field of prevention, information campaigns and
other awareness-raising activities are scheduled with a specific budget
allocation. Advanced training programmes for government personnel, including
frontline officials, were adopted with a specific budget. Nevertheless, the
budget allocation for assistance could be more specific to guarantee sufficient
resources both at national and at local level.
In
institutional terms, the Ministry of Social Policy is the National Coordinator
for prevention appointed since January 2012 and methods of cooperation have been
agreed with the NGOs listed in a Memorandum of Cooperation with the
All-Ukrainian NGO Coalition against Human Trafficking signed in April 2013. A
transparent system of civil society involvement in the provision of social
services to victims of trafficking should be established.
As
regards combatting human trafficking, the Prosecutor is to coordinate the law
enforcement agencies and there has been a separate Department within the
Militia with specific competence to investigate since August 2013.
·                        
Adoption of legislation on preventing and
fighting corruption and establishment of a single and independent
anti-corruption agency; strengthening coordination and information exchange
between authorities responsible for the fight against corruption
Following
the adoption in April 2011 of anti-corruption legislation, Ukraine took further
legislative initiatives (ie.:  legislative packages of May 2013) with a view to
addressing some of the outstanding recommendations made by the Commission and
the Group of States against Corruption (GRECO). At the same time, it should be
stressed that frequent fragmented legislative changes as opposed to a coherent
strategic approach to legislative reforms pose serious risks to legal certainty
and can render the implementation of anti-corruption policies more difficult.
More efforts need to be made to improve the quality of the legislative process,
build a comprehensive strategic approach based on sound impact assessments and
raise awareness of ongoing legislative changes.
As
regards the criminal law framework, improvements can be noted, such as the
further clarification of the scope of corruption offences. Moreover a law was
adopted to abolish the articles of the Code of Administrative Offences which
were covering offences that trigger criminal liability for active or passive
corruption. In 2012,
rules of ethical conduct were adopted for all persons authorised to perform
functions of central or local government.
With
regard to the private sector, progress was made through the introduction of
corporate criminal liability for corruption offences committed in the interest
or on behalf of legal persons. It is not entirely clear whether and how the new
legislation covers corporate liability in the event of lack of supervision or
control. The sanctions currently applicable to individuals and legal entities
for private sector corruption are not sufficiently dissuasive. A new bill was
submitted to parliament with a view to raising the level of penalties, while
nevertheless leaving prison sentences for individuals as an alternative for
less severe offences.
Monitoring
of the national anti-corruption strategy 2011-15 is one of the tasks of the
National Anti-Corruption Committee (NAC). The corresponding action plan
(state programme), which is coordinated by the Ministry of Justice, would
benefit from updating of planned measures in consultation with the civil
society and allocation of sufficient budgetary funds. Civil society is
represented in the NAC (one fifth of its members). In practice however, the NAC
did not meet in the last year and genuine civil society representation in this
Committee could have yielded few concrete results, if any. Also, GRECO pointed
out that doubts remain as to whether the NAC is actually ‘able to carry out a
meaningful monitoring function’.
Through
the new Criminal Procedure Code which entered into force on 20 November 2012,
the prosecutor’s supervisory role in criminal procedures was further enhanced.
New legislation on the functioning of the prosecution services appears to be
under preparation. However, doubts remain as to how far the current
institutional setting offers adequate guarantees of
independence and efficiency, including with regard to the anti-corruption
specialisation of law enforcement and prosecution bodies and their division of
tasks and concrete cooperation. GRECO pointed out that its
recommendations regarding the guarantees of prosecutors’ independence from
political interference have not yet been fully implemented, while acknowledging
the constitutional and practical challenges that impede the passing of reformed
legislation on prosecution services. New amendments to the Criminal Code and
the Criminal Procedure Code have been adopted, including provisions on
value-based confiscation and third-party confiscation.
In
relation to immunities, concerns remain as regards the immunity of MPs from
criminal proceedings and arrest, which creates risk of obstruction and
politicisation of judicial proceedings. No criminal proceedings (including
preliminary investigations, searches, interceptions, covert operations, etc.)
can be conducted against an MP without the consent of parliament. This may
seriously affect the effectiveness and soundness of criminal proceedings and
can in fact lead to a situation where parliament takes the place of the
judicial system. Some concerns remain also with regard to the immunity of
judges and prosecutors from arrest or detention, not least the decision-making
process for lifting immunities, which currently lies with parliament. Draft legislation
has been laid before parliament with a view to entrusting the High Council of
Justice with the power to lift the immunities of judges and prosecutors.
While
Ukraine has an asset disclosure system applicable to public officials, more
efforts need to be made to ensure a sound and independent verification
mechanism and an effective, proportionate and dissuasive sanctioning system.
Dedicated internal control mechanisms have been set up within public
institutions and the Ministry of Revenue and Duties has been designated as the
institution responsible for verifying asset declarations. However, further
steps are needed to ensure that asset declarations are more widely disclosed
and accessible electronically. Also, it is not yet clear how the verification work
of the Minsitry of Revenue and Taxes will be organised, what methodologies and
tools will be applied and how its capacity to carry out this new additional
task is ensured. Nor will the Authority have the power to apply sanctions
itself. It can only refer cases to other authorities or law enforcement bodies.
Cooperation between the State Authority on Income and Fees and other
administrative and law enforcement bodies for the purpose of verifying asset
declarations needs to be clearly defined. As regards the issue of conflicts of
interest, while some internal control is envisaged, there is no outside
independent verification in place. The sanctioning regime must be strengthened
to ensure that in practice dissuasive sanctions and measures can be enforced in
due time to remedy the damage that has been or might be caused to the public
interest.
In
mid-2012 legislative provisions were adopted on a new
electronic procurement system. Outstanding issues remain, such as the need to
further enhance the transparency of public procurement and streamline
the award of public contracts, address concerns regarding the existence
of numerous exclusions from the public procurement regime, and clarify the
scope of ‘procuring entities’ to which public procurement rules are applied, in
particular when it comes to state-owned companies and enterprises of public
interest. A draft law is currently before parliament that
aims to increase the transparency of public expenditure, including with regard
to state-owned companies.
Ukrainian
legislation requires public officials to report corruption and includes general
provisions on protection of whistle-blowers. In practice, the protection of
whistle-blowers appears to be perceived rather restrictively (i.e. it is
limited to criminal investigations). Ukraine has introduced a few general
provisions in a number of sectoral regulations to remedy this. More efforts are
needed to further widen the scope of protection and create a culture of trust
in reporting mechanisms.
Financing
of political parties and election campaigns is an area where significant
shortcomings remain. Draft legislation is under preparation with a view to
addressing the outstanding GRECO recommendations.
In early 2013 GRECO concluded that 11
out of 25 recommendations from the first two joint evaluation rounds had not
been implemented satisfactorily. GRECO stressed that the legal framework as
regards such fundamental areas as prosecution services, public administration
reform and public procurement is ‘still not fixed, leading to a lack of legal
security and rendering the necessary implementation measures meaningless’.
·                        
Adoption of a national strategy for
preventing and fighting money laundering and financing of terrorism; adoption
of a law on the prevention of financing of terrorism
In the
area of money laundering significant legislative improvements have been made in
recent years and a good system seems to be in place for ensuring oversight of
the overall policy. An annual Action Plan is adopted every year spelling out in
detail the National Strategy covering the period up to 2015 (adopted by the
Cabinet of Ministers). The Action Plan includes concrete measures and the
responsibility for implementing them is clearly allocated to particular
institutions. The plan also includes deadlines for the different measures.
In
institutional terms, the responsibilities for supervising the particular
sectors are shared, with the Financial Intelligence Unit (FIU) having the lead
role. The FIU is staffed with highly trained analysts who evaluate daily the
reports received from reporting entities. Institutional capacity building
programmes have been organised in recent years for the benefit of the FIU and
other law enforcement bodies in the field of money laundering.
The
outstanding issues regarding the sanctioning of insider trading and market
manipulation have also been addressed by legislative amendments that have been
adopted; insider trading and market manipulation are sanctioned either under
the Code of Administrative Offences or under the Criminal Code. Legal entities
found guilty of these offences face financial liability and revocation of the
licence on the basis of which they operate on the market.
The
areas where further work is necessary concern the need to cover domestic
politically exposed persons (PEPs) in the legislation and to clarify the fact
that money laundering is a stand-alone crime, despite some relevant case law
already pointing in that direction. Money laundering should be seen as going
beyond mere association with criminals for the purpose of hiding evidence of
the crime in order to achieve better results in tackling large-scale economic
crime and depriving criminal groups of illicitly acquired wealth.
·                        
Adoption of a new National Strategic
Programme on drugs and its related action plan; ratifying the Memorandum of
Understanding with the EMCDDA
The
relevant legislative, policy, and institutional measures are in place in line
with European and international standards.
A
Strategy (‘Concept’) for implementing the state policy on preventing the spread
of drug addiction and combating trafficking in drugs, psychotropic substances
and precursors for 2011-15, together with an Action Plan to implement it, have
already been in place since 2010. There is a Concept for a monitoring system dating
from 2011 along with a subsequent Action Plan adopted in July 2012.
Several
laws and bylaws have been adopted in order to implement these policy documents.

A new
Drugs Strategy until 2020 was approved by Presidential Decree on 28 August
2013. It ensures national security but gives priority to the protection of
human rights (simplification of access to legal drugs for medical purposes,
general emphasis on medical and legal assistance, enhancing prevention
profiles). To this end the analytical monitoring system should enable legal
entities to provide medical treatment and to use drug substances in their work.
Academics, NGOs and international organisations, including Council of Europe
Pompidou Group, were consulted on the draft Strategy.  
As
regards the institutional framework, the State Service for Drugs Control (SSDC)
was established in 2011 as the main body (together with the six regional
offices subsequently established) responsible for implementing the anti-drugs
policy. The SSDC acts not only as a coordinator but as an initiator of action
to fight drug trafficking, reduce drug use, achieve an integrated inter-agency
approach, strengthen the rehabilitation of drug addicts and raise awareness.
The Law on drugs was amended in March 2013 to clarify the coordination powers
of the SSDC and its relations with other stakeholders.
Inter-institutional
and inter-agency cooperation and coordination has improved. However, clear
budget allocations should be provided for the implementation of the measures
and for the operation of the institutional structures, especially the regional
offices.
The
Memorandum of Understanding between Ukraine (Ministry of Health) and the
European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) was concluded
in 2010 for a five-year period and has been in force since then without the
need for ratification and . It is being implemented on an ongoing basis. The
cooperation is effective (e.g. regular exchange of information on new types of
drugs, implementation of new protocols in Ukraine concerning infectious
diseases resulting from drug use, registration of new drug abuse indicators).
A law
enabling Ukraine to join the Council of Europe’s Pompidou Group is under
consideration by the government. As regards the law enforcement aspects,
Ukraine being not only a transit country but a final destination for marijuana,
opium and synthetic drugs (Subutex), the objective of strengthening
investigations is pursued by the General Prosecutor’s Office, through training
of police officers, wider use of undercover agents and the creation of a
special division inside the Ministry of Internal Affairs.
·                        
Adoption of relevant UN and Council of Europe
conventions in the areas listed above and on the fight against terrorism
Ukraine has acceded to all UN and
Council of Europe conventions relevant to the above-mentioned areas.
Ukraine has now also acceded to the 2001 Protocol against the
illicit manufacturing of and trafficking in firearms, their parts and
components and ammunitions. It ratified the Protocol in April 2013 and in May
2013 adopted the necessary amendments to the Criminal Code which entered into
force on 4 July 2013.  
Block 3 / topic 2 — Judicial
cooperation in criminal matters
·                        
Adoption of a legal
framework on mutual legal assistance
The legislative
framework in the area of mutual legal assistance is in place and is in line
with European standards.
As indicated
above (under Block 3/topic 1), Ukraine has carried out a process of reform of
its criminal and criminal procedure legislation, resulting in the adoption of a
new Criminal Procedure Code (CPC) that has been in force since November
2012. A law on mutual legal assistance was already adopted in June 2011. The
new CPC contains specific provisions on the general
principles of international cooperation, provides a legal basis for
international legal assistance and lays down appropriate provisions on
extradition, takeover of criminal
proceedings, recognition and execution of
judgments of foreign courts and transfer of sentenced persons.
Regarding
the institutional framework, the new CPC confirmed the role of the General
Prosecutor’s Office (GPO) and of the Ministry of Justice (MoJ) as the central authorities
for international legal assistance. Requests for judicial cooperation received
during pre-trial investigations are evaluated by the GPO, and those received
during court proceedings by the MoJ. Direct contacts between authorities have
been allowed, with some exceptions in specific cases where the central
authorities retain their competence.
·                        
Ratification of the Second
Protocol to the European Convention on mutual legal assistance
The
Second Additional Protocol to the Council of Europe Convention on mutual legal
assistance (MLA) was already ratified and entered into force on 1 January 2012,
albeit with declarations and reservations. The reservations concern service by
post (Article 16), cross-border observations (Article 17) and covert
investigations (Article 19). The new CPC and other laws such as the 1993 Law on
organised crime, as subsequently amended, regulate some of the situations
covered by the reservations.
While
Ukraine’s reservations do not jeopardise the level of international cooperation,
it would be desirable for them to be lifted in order to improve the framework
on judicial cooperation.
Special
provisions in the Second Additional Protocol to the Convention on MLA have also
been included in the new CPC: the presence of representatives of foreign
authorities during procedural activities, hearing by video or telephone
conference, information on crimes, temporary transfer of detained persons to
the territory of the requested party, controlled delivery and joint
investigation teams.
·                        
Conclusion of an agreement
with Eurojust
A draft agreement with Eurojust was already
arrived at and initialled in December 2011 and a contact point has already been
set up within the GPO. However, the next steps towards the signature of the
agreement depend upon the results of the ongoing analysis by Eurojust of the
amendments to the legislative framework on data protection (see topic 4 on data
protection).
Block 3 / topic 3 - Law
enforcement cooperation
·                        
Establishment of an adequate
coordination mechanism among relevant national agencies and a common database
guaranteeing direct access throughout Ukraine
The new CPC together with the draft law on the new
Public Prosecutor’s Office has introduced major changes and thus followed up on
the recommendations made in previous Commission reports. Those recommendations
advocated revising the competence of the prosecutor’s office so that it is
immediately informed of all criminal acts and can if necessary classify them as
a specific crime (organised crime) and assign the case to the competent agency,
and increasing the level of coordination among the law enforcement authorities.
A unified (integrated) register of pre-trial
investigations has been created[9]
into which the main information on disclosed crimes must be entered immediately
(within 24 hours) once a law enforcement body has received information about a
crime. Pre-trial investigation can start upon registration. The General
Prosecutor’s Office (GPO) supervises the management of this register. It is
also able in the pre-trial phase to initiate investigative activities, assign
cases to the competent agency and take procedural decisions, including
coordinating requests for international legal assistance. The CPC also provides
for a new investigative unit, called ‘the State Bureau of Investigation’, to be
established. It will be competent in pre-trial investigations into crimes
committed by officials holding a particular status, judges and law enforcement
personnel. Lastly, a new judicial position — the investigating judge — was
created. This figure has to issue permits for all investigative activities that
could limit citizens’ rights and freedoms (arrest, house check, interrogation,
etc.) and to exercise procedural supervision over investigations. As regards
the specific competences of the prosecutor’s office in coordinating
investigations into crimes committed by organised groups, the GPO supervises
investigative activities performed by the special investigative units created
within the Ministry of Interior under the Law on organised crime.
For the
functioning of the State Bureau of Investigation further acts need to be
adopted, for which deadlines are set in the final and transitional provision of
the CPC. The law to be adopted on the Public Prosecutor’s Office is also essential
in this regard.
As
regards the establishment of centralised databases containing information
on crimes committed by organised groups, separate databases are in operation
within the Ministry of Internal Affairs and the Security Service. Other authorities
can access them only upon formal request. There is an order issued in 2011 by
the Ministry of Internal Affairs and the Secret Service giving out instructions on law enforcement cooperation in the sphere of organised crime.
It refers to the methods of cooperation (exchange of information, creation of
working groups, joint analysis of the state and structure of the crimes), but
it does not contain a specific time-period, which should be added in
order to guarantee proper and regular exchange of information and adequate
reporting activity.
There is no universal standard for establishing a ‘common
database’: some countries have a single database, others have separate ones. It
is, however, important to put in place the tools necessary for proactive
consultation of all available databases as referred to above.
·                        
Conclusion of an operational agreement with
Europol with special emphasis on data protection provisions
The negotiation of an operational agreement with Europol depend
upon the latter’s assessment of the relevant data protection standards (see
under point 4 on data protection). On Europol’s side the assessment is ongoing. Two sets of
questionnaires have been completed (in October 2011 and June 2012) by Ukraine.
Europol will shortly be carrying out a mission to Ukraine which should further
clarify the state of play.
Block 3 / topic
4 — Data protection
·                        
Adoption of adequate legislation on the
protection of personal data and establishment of an independent data protection
supervisory authority
Ukraine had a law on data protection in force
since January 2011, but with a range of shortcomings. Neither was there any
independent data protection supervisory authority. Two amendments to the Law on
data protection were adopted in November 2012 and July 2013 along with
amendments to the Law on the Ombudsman in order to entrust him with data
protection functions. The amendments to the Data Protection Law and the Law on
the Ombudsman are to enter into force as of 1 January 2014.
Substantial progress was made in addressing the
shortcomings identified and the legislative framework is now broadly in line
with European standards, including the EU acquis.
The amendments to the Data Protection Law
introduced the essential exception of data processing for artistic and
journalistic purposes, which is not limited to professional journalism only.
The rights of the data subject and the definition of data controller were
clarified and the registration system, which was criticised for being
bureaucratic, was replaced by a system of notification of sensitive processing.
However the following is still to be ensured; the definition of consent of the
personal data subject should be reinstated in the Law and the notifications
should be required ahead of the processing of sensitive data and not
afterwards, as currently stipulated. Specific attention should be paid to
ensuring the right balance between freedom of expression and the right to
privacy. To this end an appropriate interpretation of restricted access to
personal data will also be crucial to avoid adversely affecting access to
public information.
Regarding the institutional framework, an
independent data protection supervisory authority was created by entrusting
this task to the Ombudsperson, whose independence is guaranteed by the terms of
his appointment and dismissal and a separate budget. The powers of the
Ombudsperson are well defined in the Law (to inform, receive complaints,
investigate, report violations to the court, monitor new practices, establish
categories of data processing which have to be notified, adopt recommendations,
etc.). Her competence will, however, need to be extended to the private sector.
The Data Protection Service in place since 2011 will be abolished. A Joint
order of the Ombudsperson and the Minister of Justice was adopted is September
this year containing an Action Plan indicating the necessary measures for the
administrative transfer of competences to the Ombudsperson. It remains to be
seen how the necessary human and financial resources will be ensured and how
the Ombudsman’s capacity will be increased to cope with his new task. Further
implementing acts are still to be adopted before the end of this year. A new
draft law extending the powers of the Ombudsperson to the private sector and
containing the notion of consent of the personal data subject is currently in
interservice consultation.
·                        
Ratification of relevant international
conventions, such as the Council of Europe Convention for the protection of
individuals with regard to the automatic processing of personal data and its
2001 Protocol
Ukraine
has already ratified both the 1981 Council of Europe Convention for the
protection of individuals with regard to the automatic processing of personal
data and its 2001 Additional Protocol regarding supervisory authorities and
transborder data flows, which entered into force in the country as from 1
January 2011.
Block 4: External relations and
fundamental rights
General
assessment
Ukraine made progress in Block 4 on external
relations and fundamental rights. In particular, it addressed the issue of
non-discriminatory issuance of identity documents for refugees and stateless
persons, adequately extending their period of validity. It adopted a Law on
preventing and fighting discrimination. It also adopted a Strategy and an
Action Plan on the social inclusion of the Roma minority. It simplified the
residence registration and de-registration procedures.
The anti-discrimination legislation
adopted in September 2012 represents a step in the right direction, but it is
still not comprehensive. In particular, legal certainty is still insufficient
as regards the scope of the law in particular on the prohibition of
discrimination on the grounds of gender identity and sexual orientation, with
special regard to access to employment and vocational training. Also, in the
absence of the reversal of the burden of proof and given the lack of clarify
regarding the compensation mechanisms, the rights of victims are not adequately
protected.
While documents (Strategy and Action Plan) have
been adopted on the inclusion of the Roma minority providing a specific
policy framework and triggering some mainstreaming in this regard, they have
several shortcomings.
The residence registration and
de-registration procedures, albeit improved, may still present difficulties for
vulnerable groups.
Detailed
comments
Block
4 / topic 1 - Freedom of movement within Ukraine
·                        
Revision of the legal and regulatory
framework on registration and de-registration procedures for Ukrainian citizens
and legal stay for foreigners or stateless persons with a view to avoiding
unjustified restrictions on or obligations relating to their freedom of
movement within Ukraine, with special reference to the conditions for legal
stay without residence registration and the measures taken for failure to
register, and the liability of tenants
The
Law on amendments to certain laws of Ukraine, concerning registration of the
residence and place of residence of persons in Ukraine, entered into force on 5
August 2012.
Under
the new legal framework, the residence registration system was put under the
jurisdiction of the State Migration Service (SMS), an Agency of the Ministry of
Internal Affairs created in December 2010 (Decree No 1085/2010 of the President
of Ukraine dated 9 December 2010; Decree No 405/2011 of the President of
Ukraine dated 6 April 2011) to take responsibility for a broad range of issues
relating to migration and asylum policy and the registration of individuals.
The
new legal framework introduced some improvements aimed at making the procedure
less burdensome, more expeditious and more efficient. In contrast with the old
regulation, registration is now carried out on the day the individual submits
the relevant notice to the SMS office. In other words, de-registration from the
former place of residence and registration in the new place of residence now
takes place simultaneously, on the same day. The registration procedure can be
carried out not only in person, but also by a legal representative. The
possibility for registration was broadened also to cases where the person
resides in a specialised social institution (nursing homes, boarding schools,
rehabilitation centres, etc.) and not only in privately owned apartments and
private houses.
As
a condition for registration, the requirement to possess legal title to a
housing unit or land or an agreement with a landlord remains in force.
Cancellation of residence registration may be carried out on the basis of an
individual application, a death certificate, a court order on deprivation of
ownership or use of a dwelling, but also at the request of the owner of the
residence where a lease agreement has expired. This may pose difficulties in
obtaining or keeping registration for persons belonging to vulnerable
categories such as refugees or Roma members living in informal settlements,
thus creating the need for some corrective action in this regard. The
possibility for homeless persons to register through social care centres may
not address the needs of these groups sufficiently.
According
to the Law on freedom of movement[10],
registration of the person’s place of residence or the absence thereof cannot
be the basis for exercising the rights and freedoms enshrined in the
Constitution and laws of Ukraine and international treaties binding it, or a
ground for restricting them. However, in practice confirmation of registration
is usually a requirement for obtaining access to medical care, enrolling
children at school and obtaining pensions or social benefits, and individuals
may face problems with access to these fundamental social rights when they are
away from their registered place of residence. Therefore this practice should
be reviewed in the implementation phase.
In
general, the Law on freedom of movement and related legal regulations grant
foreigners rights and responsibilities on an equal footing with Ukrainian
nationals (with some exceptions), provided that the foreign or stateless person
has a legal status in Ukraine in conformity with the migration and asylum
legislation. Foreigners who reside in Ukraine are legally required to register
their place of residence within 10 days of arrival at the new place of
residence, a time limit commonly interpreted as commencing from the issuance of
the legal permit by competent authorities.
Block
4 / topic 2 - Conditions and procedures for the issue of identity documents
·                        
Revision of the legal and regulatory
framework so as to ensure effective access to travel and identity documentation
without discrimination, and in particular as regards vulnerable groups
The
Ukrainian authorities followed up on the recommendation made in the Second
Progress Report not to unreasonably limit the period of validity of permanent
residence documents for stateless persons, refugees’ internal documents and
travel documents. Amendments to the legislation were made in 2012 to make the
refugee certificate valid for five years and ensure that the refugee’s travel
document (Refugee Convention Travel Document) is issued for the period of
validity of the refugee certificate, provided that the certificate is issued
for not less than five years (Article 34(5)). These provisions are now in full
conformity with those of the 2011 Refugee Law. Necessary adjustments should be
made as regards the status of complementary protection and in order to prevent
difficulties in fully enjoying broader rights associated with complementary
protection status. 
Block
4/ topic 3 - Citizens’ rights, including protection of minorities
·                        
Adoption of comprehensive anti-discrimination
legislation, as recommended by UN and Council of Europe monitoring bodies, to
ensure effective protection against discrimination
In
September 2012, Ukraine adopted the Law on preventing and combating
discrimination, a framework law that should provide the necessary instruments
for ensuring effective protection against discrimination. Even though adoption
of the Law represents progress, it does not meet all the European and
international requirements. In particular, it does not provide sufficient legal
certainty as regards the prohibition on discrimination on the grounds of gender
identity and sexual orientation. Neither has the
Law contributed to enhancing the protection of victims’ rights as the reversal
of the burden of proof was not introduced. Furthermore certain forms of
discrimination are lacking definitions, in particular segregation,
victimisation and multiple discriminations.  These issues should be addressed
in a way that provides irrefutable legal certainty. Moreover, issues of scope
(ie.: whether it extends to the private sector, whether all aspects of labour
rights including vocational training and participation on organisation of
workers are covered) and the provisions on reasonable accommodation for
disabled persons are to be clarified. In March 2013 the government tabled
before parliament amendments to the Law, which among other things includes a
prohibition of discrimination on the basis of sexual orientation in employment
and addressed the issue of the burden of proof. However, the proposal was not
put to a vote during the spring or autumn parliamentary sessions.
Although
the Ombudsman was appointed as the institution with responsibilities for
implementing anti-discrimination law, she has no legal powers to deal with
incidents of discrimination arising between individuals or between individuals
and legal entities. Ukraine has announced that a legislative amendment will
empower the Ombudsman to deal with cases of discrimination between citizens
and/or citizens and corporate entities or private legal entities. This
amendment is still to be adopted.
Regarding
anti-discrimination, the Commission will also follow closely any further
developments on the pending draft laws 0711 (subsequently 0945) as well as
0290, taking into account the concerns raised by the Venice Commission in its opinion[11]. 
·                        
Actively following the specific
recommendations of UN bodies, the OSCE/ODIHR, the Council of Europe/ECRI and
international human rights organisations in implementing anti-discrimination
policies, protecting minorities and combating hate crimes
Ukraine
ratified the Framework Convention for the protection of national minorities in
May 1998 and the European Charter for regional or minority languages in January
2006. It adopted the Law on the principles of state language policy in June
2012.
In
order to follow-up on earlier recommendations of the Commission made in its
last Progress report, a Strategy and an Action Plan on the inclusion of the
Roma minority were adopted by Ukraine in April and September 2013 respectively.
While both documents were discussed with the local civil society, they were not
subject to consultation with OSCE and Council of Europe prior to their
adoption, and key recommendations made by the civil society were not included
in the approved text. In order to pursue a genuine policy in this regard, a
more developed baseline scenario is needed with a
quantified problem definition (e.g. estimates of those Roma without documents
and estimates of Roma children not in education). In addition, the measures and
the timeline should be spelled out in further detail and adequate
resources will need to be secured and the genuine
involvement of civil society in the implementation process needs to be ensured.
In order to ensure an adequate follow-up of these policy documents, a strong
coordination body and monitoring mechanism will need to be established in the
implementation phase. Currently, the unit in charge of Roma policy is part of
the Ministry of Culture, while many key issues in the area of social policy and
human rights protection are in the competence of other ministerial departments.

Ukraine
has ratified the Optional Protocol to the Convention on the rights of persons
with disabilities of 13 December 2006, which entered in force for Ukraine on 4
February 2010. Ukraine has adopted a series of legislative measures regarding
the accessibility of public places and services.  
·                        
Ratification of relevant UN and Council of
Europe instruments in the fight against discrimination
Ukraine
is a party to most of the UN and the Council of Europe texts on the protection
of human rights and the fight against discrimination.
Further
efforts need to be devoted to improving legislation in the area of
anti-discrimination and bringing existing legislation into line with the
provisions of ratified treaties and international conventions, as described in
more detail above.
·                        
Specifying the conditions and circumstances
for the acquisition of Ukrainian citizenship
The
conditions and circumstances for the acquisition of Ukrainian citizenship are
determined by the Law on citizenship of Ukraine adopted on 18 January 2001.
Ukraine has adopted the principle of single citizenship.
The Law promotes the principle of equality before the law of
Ukrainian citizens irrespective of the grounds, order and date of their
acquisition of citizenship. From this standpoint, the Law is in line with the
Council of Europe Convention on nationality, which entered into force in 2000.
Ukraine signed in 2006, but has not yet ratified, the Council of Europe
Convention on the avoidance of statelessness in relation to State succession.
III.
Overall assessment and next steps
In
line with the established methodology, the Commission has continuously assessed
and regularly reported (First Report, September 2011; Second Report, February
2012) on the fulfilment by Ukraine of the Action Plan on Visa Liberalisation (VLAP) benchmarks, on the
basis of the information and the texts of adopted legislation provided by
Ukraine, together with assessment missions on the ground carried out by
Commission and EEAS staff accompanied by Member State experts.  
Over and above this intensive
reporting process for the VLAP, the Commission has also continued to monitor
the progress made by Ukraine in relevant areas of the VLAP in the framework of
the EU-Ukraine Joint Visa Facilitation Committee, the EU-Ukraine Readmission
Committee and EU-Ukraine Joint Sub-Committee No 3. In each of these committees
the state of dialogue and cooperation between the EU and Ukraine is considered
advanced.
The
EU-Ukraine Visa Dialogue has continued to be an important and effective tool
for advancing reforms in the justice and home affairs area and beyond. The
assessment found that Ukraine has made substantial
progress in all four blocks of the VLAP and in particular since the end of
2012, speeding up its implementation and adopting a number of substantial
legislative packages in order to tackle the identified gaps. However, there are
still some important first phase requirements to be met. As regards document
security, the use of fingerprints as a mandatory biometric feature for
passports needs to be further clarified in the law. In the field of asylum,
certain adjustments need to be made with particular regard to temporary and
subsidiary protection and emergency medical care for asylum seekers. In the
field of anti-corruption, legislation needs to be further strengthened,
particularly with regard providing for dissuasive sanctions for private sector,
ensuring impartial checks on asset declarations, strengthening public procurement
rules and laying down appropriate rules on immunity. Lastly, the legislative
framework on anti-discrimination needs to be further strengthened to
provide adequate legal protection against discrimination in line with European
and international standards. Further information is expected on the envisaged
steps to finalise the legislative and institutional data protection framework.
The Commission will continue to
work in close contact with the Ukrainian authorities to swiftly address the
outstanding issues identified above with a view to communicating to the
European Parliament and to the Council when all measures required by the first
phase of VLAP have been adopted.
[1]Council document SEC (2011) 1076 final.
[2]The four blocks are: (1) document security, including biometrics; (2)
irregular migration, including readmission; (3) public order and security; and
(4) external relations and fundamental rights.
[3] SW 2012 (10) final.
[4] Law of Ukraine No 5492 on the Single State Demographic Registry and
the documents confirming citizenship of Ukraine, identity of the person and
his/her special status.
[5] Order
of the Ministry of Internal Affairs of Ukraine No 155 of 22 February 2012 adopting
rules of conduct and professional ethics for officers of internal affairs bodies
of Ukraine. This order addresses the issue of conflicts of interest and the
prevention of corruption.
[6] Article 30(3) and (4) of the Law on the legal
status of foreign citizens and stateless persons of 2011.
[7] See in particular paragraph 2
of Article 183-5 and Article 256(9) of the Code of Administrative Procedure.
[8] http://www.refworld.org/docid/51ee97344.html
[9] An order issued by the GPO on 17 August 2012 lays down the
procedure for storing and keeping data.
[10] Law 1382-IV of December 2003 on freedom of movement and free choice
of the place of residence in Ukraine.
[11] See Opinion 707/2012 issued by Council of Europe Venice Commission
on 18 June 2013.