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II. STATUS OF OBSERVANCE OF UKRAINIAN MIGRANT WORKERS’ RIGHTS IN THE RECEIVING COUNTRIES

1. RUSSIAN FEDERATION

Today the Russian Federation has the largest number of Ukrainian migrant workers – about one million and over three million at the seasonal peak, as estimated by the Ukrainian Embassy in the Russian Federation. According to unofficial data, legal workers account for an average of 5–7%, while the overwhelming majority of our countrymen work illegally.

Judging from the information of the Russian Federal Migration Service, over six million “illegals” are now working in Russia, most of them from Ukraine, China, and other countries of the Middle and Far East.

In Tyumen oblast alone, Ukrainians, who do not hold Russian citizenship, account for 32% of the alien labor force.

Such a large number of Ukrainian migrants in the Russian Federation, as compared with other countries, can be explained by the following:

§ cultural and lingual closeness, similar attitudes and a common historical past of Ukraine and Russia;

§ ties of relationship (according to a monitoring of the Institute of Sociology under the Ukrainian Academy of Sciences, 40% of the residents in Ukraine had relatives in Russia in 2001) and well-established migration flows since the times of the USSR (for employment in the oil and gas industries, construction, etc.);

§ simplified procedure for border crossing and traditionally tolerant attitude of local authorities to the Ukrainians’ stay in Russia;

§ Russia’s huge demand in skilled labor for the construction, industrial, lumbering and wood processing enterprises, especially in the northwestern regions.

The main areas were Ukrainians find employment are Moscow and Moscow oblast, the Republic of Komi, the Khanty-Mansi and Yamalo-Nenets autonomous districts, Belgorod oblast, Leningrad oblast, Rostov oblast, Krasnodar oblast and the Krasnoyarsk region.

The overwhelming majority of our countrymen are employed in construction, transportation, coal mining, at industrial enterprises and in the private sector, performing work that Russians refuse to take up.

There are a number of factors that induce the overwhelming majority of Ukrain­ian citizens to work in Russia outside the law.

One of the factors is the activity of recruitment agencies in Ukraine, which select workers for their subsequent transfer to Russian partners to be used at jobs in circumvention of Russian laws.

As a rule, Russian employers are not interested in formalizing the employment of Ukrainian workers, especially the unskilled ones, because this entails substantial expenses. To legalize an alien worker, the employer has to pay a special fee, its amount depending on the skill of the worker. Besides, legalization imposes on the employer additional obligations, such as guarantee of minimum wages, social and medical protection, proper conditions of work, and also deprives him of the advantages he has when hiring an “illegal” – the possibility to pay less than to a Russian citizens, no liabilities for social security, greater leeway for dismissal and admission to work, and the like.

According to the information of the Sumy oblast state administration, the local employment center was receiving verbal job offers for Ukrainians from Russian enterprises whose representatives did not want to officially execute documents for employment.

In such a situation Ukrainian citizens have no choice but to agree with the employers’ terms without any guarantees.

Very frequently legalization is of little advantage for the migrant worker himself, because even if his wage is raised to a minimum rate, the real amount he gets from the employer will be less that what he could earn as an “illegal.”

As a result, 90% of migrant workers are engaged in a shadow economy controlled mostly by criminal elements. This is the reason behind the numerous violations of the migrant workers’ rights.

The consular department of the Ukrainian Embassy in the Russian Federation is receiving a lot of complaints. In 2002 the embassy received complaints from 964 persons, i.e. 246 more than in 2001. Over 50% of the points at issue were of a social nature, 20% related to civil law and 15% to administrative law. Ukrainian citizens in Moscow, Moscow oblast and Russia’s frontier regions filed the largest number of complaints.

The most frequently cited violations concerned labor relationships:

§ violated rules of hire (without effected labor agreements and contracts);

§ violated conditions of work, specifically the employers’ failure to meet the sanitary requirements to the migrants’ lodgings;

§ marked difference in wages as compared to what Russian citizens receive.

The Ministry of Foreign Affairs of Ukraine cited facts of enterprise managers denying employment to Ukrainians permanently residing in Russia just because they were not citizens of that country. This induces some of our countrymen to acquire Russian citizenship.

Medical insurance is yet another urgent issue of protecting the human rights of Ukrainian citizens in Russia. The Ukrainian Embassy in the Russian Federation holds that relevant Ukrainian government agencies and their Russian counterparts should jointly analyze the progress of compliance with the intergovernmental treaty of October 28, 1999 on medical insurance of Ukrainian citizens temporarily staying in the Russian Federation. Since the methods of calculating insurance rates are not harmonized, the treaty is practically not effective. As a result, Ukrainian citizens in Russia just like Russian citizens in Ukraine are denied the possibility to take out insurance policies for medical treatment and emergency aid.

The referred to violations are also confirmed by the appeals of Ukrainian migrant workers to the Commissioner for Human Rights: nonpayment of wages, inadequate conditions of work, disrespect for human dignity, forced or compulsory work, infringements by law enforcement bodies, and the like.

In his appeal to the Commissioner, Yevhen S. stated how he was forced to work on the construction site of a hotel in the city of Anapa. In connivance with the local law enforcement bodies, as the appellant wrote: “our documents were taken away from us and we were carried off by truck to an unknown destination. We were accused of having failed to register within three days. So now we have to work where we have been told to, and under guard for that matter. Our letters have to carry only good messages, since they are checked. There are twelve of us, all from Ukraine who came here to harvest grapes. As cheap labor, we are working for Armenians. We were told that once we completed our work, we could go home. Escaping is not a problem, but it’s impossible getting anywhere without documents and clean clothes, because you’ll get nabbed right away and be worse off…” In response to the complaint, the Commissioner for Human Rights addressed an appeal to Oleg Mironov, Commissioner for Human Rights in the Russian Federation.

Improving the procedure for crossing the state border of Ukraine and Russia is an important component of migration processes for safeguarding the rights of migrant workers.

This issue became a subject of scrutiny by Ukrainian and Russian commissioners for human rights during an inspection tour of the Hoptivka-Nekhoteyevo border checkpoint on the territory of Kharkiv oblast and Belgorod oblast.

During the tour the managers of the frontier oblasts as well as the border and customs services of both countries discussed issues of cooperation, specifically possible ways of simplifying the procedure of border crossings to expedite and improve the quality of services. The commissioners also suggested combing individual control functions of the Ukrainian and Russian customs services, which are currently discharged autonomously.

After studying the situation, the commissioners of the two countries signed a joint statement about their intention to continue their monitoring effort to assess the dynamics of changes, meet in consultations to safeguard the rights of Ukrainian and Russian citizens, and resolve the problems that might arise during their cooperation.

For Ukrainian migrant workers the restraining laws of the Russian Federation on money transfers is a serious problem. Under Russia’s legislation taking and even remitting foreign currency in cash is permitted only on condition of its preceding import or remittance upon presentation of relevant customs and bank documents, which expressly violates the rights of Ukrainian citizens working legally in the Russian Federation.

Therefore, the overwhelming majority of Ukrainian citizens working in Russia have to bring home their earnings in cash, frequently becoming objects of attention of criminals and dishonest employees of law enforcement and customs agencies.

As Ukrainians who temporarily worked in Moscow evidence, a “hunt” for them is staged on their way back home first in the subway and other public transport, then at the Kiev Railroad Station in Moscow, and after that on the train up to the Ukrainian border. In the subway they are checked by the policemen on duty, at the railroad station by shady characters dressed in camouflage uniform, on the train by employees of the Moscow transport police, and at the border by Russian customs officials. The average amount of the kickbacks they have to pay to keep their earnings range from 50 to 100 Russian rubles. At worst they run the risk of losing their Ukrainian passports that are demanded for presentation for inspection and practically all the money they earned can be taken away from them. As a rule, only a negligible part of Ukrainian citizens file complaints with law enforcement bodies and public prosecutors of the Russian Federation. Since proving such facts is extremely difficult, people lose faith in the possibility of seeing their rights and freedoms safeguarded.

Some of these violations are occasioned by the lack of a legal status of migrant workers. This problem is especially acute in the capital of the Russian Federation, Moscow.

What makes migration from Ukraine to Russia different from this process in other countries, in particular in Western Europe, is the fact that a substantial number of Ukrainians stay in Russia on legal grounds, only engaging in illegal work. Accordingly, Ukrainian migrant workers, as aliens legally staying on the territory of the Russian Federation, should enjoy all the rights and freedoms their status implies. But in practice, regrettably, that is not always the case.

The Commissioner is especially concerned about the numerous complaints against the violations by Russia’s law enforcement bodies, such as humiliating treatment of Ukrainian citizens, extortion of bribes and abuse of power.

During the visit of the Commissioner for Human Rights in the Russian Federation, Oleg Mironov, to Ukraine in September 2002, Ukraine’s Commissioner for Human Rights requested to raise the question of the leadership of the Ministry of Internal Affairs and the Attorney General of the Russian Federation taking additional measures for the prevention of such cases. Besides, in 2001-2002 the Ukrainian Commissioner forwarded to the Russian counterpart 20 petitions on violations of our citizens’ rights by the law enforcement agencies of the Russian Federation.

In the opinion of the Commissioner for Human Rights, Ukraine’s diplomatic missions in the Russian Federation should adequately respond to the facts of violation of our citizens’ rights by Russia’s law enforcement bodies, stand up more vigorously to safeguard these rights, and use the available diplomatic and extrajudicial remedies, such as the interventions of the Commissioner for Human Rights in the Russian Federation, when there are systemic violations caused by fallible and discriminatory laws. Ukrainian citizens should also be more comprehensively informed about the independent legal protection they can afford when their rights are impaired.

Also urgent is the need to discuss with the Russian party the issue of liberalizing the existing mechanisms of money transfers by Ukrainians.

Decisive within this context was the Law of the Russian Federation “On the Legal Status of Foreign Citizens in the Russian Federation,” which came into force on November 1, 2002. In pursuance of this law, a number of government resolutions and regulations will be adopted for the additional control and management of migration flows, of migrant workers included, on the territory of Russia. In particular, it is planned to introduce the payment of a fee of 4,000 Russian rubles for persons seeking employment in Russia, a migration workers quota (500,000 persons, according to the RF Federal Migration Service) determined by the subjects of the Russian Federation and approved by the government, as well as work cards to improve recording migrants on the territory of the Russian Federation.

Besides, Russia raised requirements to alien migrant workers. In particular, the Ministry of Internal Affairs began to check to what extent the presence of foreign citizens in Russia was justified and also to establish the sources of their existence and incomes. Every foreign citizen has to undergo general registration and also register with the tax administration to pay a tax on his business or any other monthly income. It is also planned to introduce amendments and additions to the RF Criminal Code in so far as they concern criminal liability for organizing illegal migration.

What followed was a greater number of complaints.

In this respect the regional employment centers should be more active in deepening cooperation with relevant Russian services so as to deal with the inconsistencies in the laws of the subjects of the Russian Federation, which are at variance with federal legislation and incorporate discriminatory provisions with regard to foreign citizens. The Consular-General of Ukraine in Tyumen informed that the Law On the Procedure and Conditions for Attracting and Using Foreign Labor in the Yamal-Nenets Autonomous District came into force on March 22, 1998. Adopted by the State Duma of the Autonomous District on March 26, 1998, Article 11 of this law is inconsistent with Presidential Edict On Attracting and Using Foreign Labor Force in the Russian Federation of December 16, 1993, because the law sets not only a fee for issuing employment permits that is ten times higher, but additionally stipulates payment for the consideration of applications for permits in the amount of a minimum monthly wage.

In the opinion of the Commissioner, such a situation calls for a more thorough monitoring of Russia’s labor market for the purpose of concluding mutually beneficial bilateral agreements on employing Ukrainian workers in the Russian Federation and also for concluding such agreements between regions.

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