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III. STATUS OF OBSERVANCE AND PROTECTION OF THE RIGHTS OF SPECIFIC CATEGORIES OF UKRAINIAN CITIZENS ABROAD

3. OBSERVANCE OF HUMAN RIGHTS IN CASE OF DEATH OR BURIAL OF UKRAINIAN CITIZENS ABROAD

GENERAL ANALYSIS

Among the millions of Ukrainian migrant workers abroad there is a growing number of deaths caused by accidents, crimes and other reasons.

Every human death, apart from grief and a sense of irreparable loss, confronts families and relatives with the problems of paying the last respects to the deceased. These problems become the more complicated when the deceased is far away from home and relatives have to transport his remains to his homeland, raise the money to pay for the expenses, execute the required documents, and, generally, worry who to apply to in such cases.

The Commissioner for Human Rights has been receiving a lot of petitions raising these questions. Unfortunately, they are growing in number with each passing year. The Commissioner tries to tackle these problems in close cooperation with the Ministry of Foreign Affairs.

According to the figures provided by 82 Ukrainian consular posts abroad in response to the Commissioner’s inquiry, 2,424 Ukrainian citizens died on the territory of 60 countries in the period from 2000 to the end of six months of 2002, including 795 cases registered in 2000, 1,029 in 2001, and 601 in the first six months of 2002, which speaks of an upward trend in the death rate among Ukrain­ian citizens abroad.

Among the countries where the largest number of Ukrainians died within the referred to period were Germany – 655, Portugal – 297, Poland – 250, Italy – 204, and Russia – 143, which, on the whole, corresponds to the main destinations of Ukrainian migrant workers.

The main categories of the deceased abroad are migrant workers, the causes of their death being:

§ industrial accidents;

§ traffic accidents;

§ murder;

§ domestic accidents;

§ suicide;

§ acute cardiovascular disorders;

§ natural death (by age).

Industrial accidents are the most common causes of death. In the overwhelming majority of cases, such deaths occur among illegal migrants: they work more hours than set by standards, are in a state of constant fatigue without elementary conditions for work and observance of labor safety rules, which results in tragic consequences. Besides, employers try to gain from their cheap labor the largest possible profits at the least incurred cost. The largest number of industrial accidents occurs on construction sites and in factories.

Ukrainian seamen are frequently subject to accidents while performing their contractual commitments on Ukrainian and alien ships.

Quite a few Ukrainians die in traffic accidents because of violation of traffic rules, such as exceeding speed limits and driving in an intoxicated state. Occasionally they become innocent victims of careless drivers.

A team of construction workers from Transcarpathia suffered from a driver’s negligence. On October 12, 2002, they were waiting for a bus in Budapest to reach the railroad station and board a homeward bound train. Suddenly a Mercedes plowed into the group at high speed, killing five people and gravely injuring another two. Hungarian television commented on the tragedy in Budapest for several days in great detail, because nothing like it had ever happened in the country before.

A number of fatal traffic accident cases have also been registered in neighboring Poland, Russia, Belarus and Slovakia.

The Commissioner ascertains with deep regret that quite a few Ukrainian citizens abroad are victimized and murdered for the purpose of robbery, by their fellow countrymen included. Such cases occur most frequently in the Czech Republic and Poland, through which our migrants pass in transit to Ukraine from Western Europe. Similar offenses are also widespread in Portugal and Italy. Every country that has a large concentration of Ukrainian migrant workers is immediately “infested” by criminal groups that want to make a profit out of their countrymen’s work.

In such cases, as the Commissioner for Human Rights holds, it is very important to expand cooperation between Ukrainian law enforcement bodies and their foreign counterparts and also to enhance the number of Ministry of Internal Affairs personnel at diplomatic missions abroad so as to make more effective the fight against international criminal groups.

The growing number of suicide cases among Ukrainian citizens abroad is an alarming symptom. Such cases also occur at the penitentiary facilities where our countrymen are held in custody.

For instance, the Commissioner was addressed by Olexandr B. of Lviv oblast to look into the circumstances of death of her son, Orest B., who was held in custody in a prison in the Czech Republic. He was apprehended by the Czech policy on suspicion of having committed an offense against a Czech citizen. After some time his relatives were informed that Orest B. hanged himself. As the petitioner asserts, his body had bruises that might have been inflicted by the personnel of the prison.

The Commissioner for Human Rights initiated an investigation and forwarded an inquiry to the Ministry of Foreign Affairs of Ukraine. The Ukrainian Embassy in the Czech Republic took measures to clarify the circumstances of the Ukrainian citizen’s death and requested the official results of the Czech forensic medical examination, which identified the cause of death as “asphyxia of respiratory tracts that ensued in consequence of strangulation.” Besides, an investigation by competent Czech authorities established that owing to a dispute between the petitioner’s son and a fellow inmate, also a Ukrainian citizen, the prison administration transferred Orest B. to a solitary cell where he hanged himself. The circumstances of the death are far from being unambiguously clear, because the results of the Ukrainian forensic medical examination are at variance with what the Czech party produced. The case is still under the supervision of the Commissioner.

As the Commissioner believes, diplomatic missions and consular posts abroad should center particular attention on such cases and check their handling.

Chronic diseases in countries with arduous climatic conditions are also the cause of deaths, as, for instance, in Iran and Iraq where Ukrainians work under contracts at oil recovery enterprises and oil refineries. According to the information provided by the Ukrainian Embassy in Iraq, the overwhelming majority of Ukrainian workers employed there by the end of 2002 were of middle age or short of retirement age. Working outdoors at temperatures ranging from +35 Co to +60 Co or else in poorly ventilated premises, they often suffer from health disorders. In the first six moths of 2002 two fatal cases caused by cardiovascular disorders were registered on the territory of Iraq. In Iran, where they work in similar conditions, six lethal cases were registered within this period.

PROBLEMATIC ISSUES THAT ARISE IN CASES OF DEATH OF UKRAINIAN CITIZENS ABROAD

The death of a Ukrainian citizen abroad is attended by a number of problems, such as notification of the relatives of the deceased, adoption of decisions on transporting the corpse to Ukraine, execution of required documents, and the like.

As a rule, a criminal case is initiated and appropriate investigations are launched whenever a Ukrainian citizen suffers violent death abroad. In this connection the Commissioner is receiving a lot of complaints against the careless attitude of competent bodies abroad during the investigation of such cases, especially those involving the death of an illegal migrant, as well as complaints against the refusal of initiating criminal cases. This is especially true for the attitude of the authorities in Poland, the Czech Republic, and Western European countries, as evidenced by the petitions of, say, Zinaida V. from the Autonomous Republic of Crimea, and Kapitolina H., a resident of Cherkassy oblast.

When the guilt of a definite person is established, the relatives of the deceased are entitled to compensation for damages, for which purpose it is extremely important that the criminal case be investigated properly.

Now and then the complaints against the refusal of foreign law enforcement authorities to initiate criminal cases are not sufficiently substantiated. Some petitioners request that the Commissioner open investigations into the circumstances of their relatives’ death when the absence of grounds for initiating criminal cases have already been proved. Frequently such requests are based on essentially subjective considerations. Families and relatives usually do not attach importance to such evidence as bruises or other injuries on the bodies of the deceased. After paying the last respects, they regret having been inattentive and often groundlessly relate such injuries to violent death.

Judging from the monitoring of the Commissioner, some serious problems arise when it comes to notifying the relatives about the death of a Ukrainian citizen abroad.

As a rule, Ukrainian consular posts try to promptly inform the relatives so as to help them take appropriate measures and, when necessary, come to their assistance.

This is especially important in countries that have established time limits for making a decision on what should be done with a corpse. If by that time relatives fail to claim the corpse or do not inform the competent authorities about their intentions, the corpse is cremated, buried or transferred to a medical institution for research. Under the laws of some states in the US, a corpse is cremated if the relatives failed to arrive at a decision 24 hours after the death of a person. According to the laws of some other countries, a corpse not claimed from a morgue within three months is transferred to a medical institution for anatomical purposes.

When relatives decide on the location of burial of the deceased, they occasionally face yet another problem, to which the Commissioner wants to draw attention. For instance, Liubov Y. of Mykolaiv asked the Commissioner’s assistance in transporting to Ukraine the remains of her son who tragically died in Argentina. As the petitioner informed, she addressed the Ministry of Foreign Affairs of Ukraine for assistance and the Ministry made a decision to allocate respective funds for transportation. At the same time, the wife, who had lived with the deceased in Argentina, refused to have the remains of her deceased husband transported to Ukraine and sent a respective letter to the consular department of the Ukrainian Embassy in Argentina. The deceased was temporarily placed in a vault in a cemetery at Santa Fe (Argentina) and has been there for the past three years. Since Ukrainian legislation does not govern such legal relations, and also taking into consideration that both the mother and the wife have equal rights to determining the burial place of the deceased, the Commissioner informed the petitioner that only a court could resolve this matter.

Natalia R. from Kyiv filed a similar petition with the Commissioner for Human Rights. It concerned a family dispute about the burial place of her son who resided in the US together with his father and tragically died there.

As the monitoring of the Commissioner revealed, a lot of problems also arise when decisions are made on transporting the remains of the deceased to Ukraine, specifically as regards raising funds for this purpose.

In case of death or an accident, the provisions of legally concluded contracts with employers usually make allowance for such contingencies. Most of the bilateral treaties on employment and social protection concluded between Ukraine and other states stipulate the obligation of an employer to cover all costs related to the death of a Ukrainian citizen, including transportation of his remains to his homeland.

But now and then, when contracts are concluded directly with employers, the latter evade their obligations on paying transportation costs and compensations.

One way of dealing with this problem, as the Commissioner sees it, is to conclude insurance contracts stipulating compensation in case of death of the insured.

If an employer or insurance company cannot cover the transportation costs, it is the relatives or the government that must shoulder the financial burden.

This is exactly what Liudmyla T. of Kyiv had to go through. Her husband, Volodymyr Z., worked as a roentgenologist in the Republic of Yemen on the basis of a properly executed contract, receiving only US $50 a month. The management of the clinic he worked at promised to make a final settlement upon the termination of his contract in December 2002. On the eve of the settlement Volodymyr Z. met a tragic end under so far unclear circumstances, without receiving the remuneration due to him. After his death, it proved that he had only US $800 on his personal account, while the contract did not stipulate any commitments of the employer to cover the cost of transporting his remains to Ukraine in case of death or pay anything in claims to his relatives. Liudmyla T. had to choose between the option of either agreeing to have his remains buried in Yemen or covering the cost of transportation. In a petition addressed to the Commissioner for Human Rights the widow asked to safeguard her right to pay the last respects to the deceased. On instructions of the Commissioner negotiations were commenced with the Ukrainian Consul in Saudi Arabia (combining this duty in the Republic of Yemen), O.Drevetniak, and also with the Ministry of Foreign Affairs’ consular department on the possible transportation of the deceased to Ukraine. The problem was settled positively through the active assistance of the Ministry of Foreign Affairs.

In this case, as in a multitude of similar cases, the relatives lack the funds for transportation. According to the information of the Ukrainian Foreign Legal Collegium (UFLC), not less than euro 3,000 are required to transfer a corpse from, say, Italy, Portugal and Spain. More often than not the relatives find it difficult to raise such an amount immediately. There have been cases when the burial of deceased Ukrainians was delayed for over half a year while their families were strenuously trying to find the required funds.

Under such circumstances the relatives are compelled to have the deceased buried on the territory of a foreign country or else have the remains cremated and the ashes transferred back home in an urn, which costs somewhat less – a minimum of euro 1,500. Out of all the Ukrainian citizens who died abroad in the period from 2000 to the end of the first six months of 2002, the remains of only about a half were transported to their homeland for burial – 377 of the 795 deceased in 2000, 556 of 1,028 in 2001, and 388 of 601 in the first six months of 2002.

The financial support to relatives of the deceased by Ukrainian diplomatic missions abroad is crucial in such cases, i.e. allocation of costs for ritual services, transportation of corpses or urns with ashes. For these purposes US $236,333 and US $287,959 were allocated to the Ministry of Foreign Affairs in 2001 and 2002 respectively. Yet, as a rule, diplomatic missions cover such costs in exclusive cases when all other options have been exhausted. The money is mostly drawn from other sources of financing, such as charities and foundations.

The largest amount of financial assistance in the first six months of 2002 was allocated for transporting the deceased from countries with the largest number of migrant workers, primarily Portugal, Italy, Israel, France, Greece and Spain.

The Commissioner believes that owing to the high poverty rates of Ukraine’s population, the allocation of state funds for transporting Ukrainian citizens who died abroad is an important factor of protecting the rights of our countrymen, and such a practice of the Ministry of Foreign Affairs should be continued in the future. To this end, it is necessary to provide annually for corresponding expenditures in the State Budget of Ukraine.

A lot of the petitions filed with the Commissioner concern problems the relatives of the deceased have to tackle when it comes to receiving death certificates and have them legalized. They also complain about the long delays in issuing such documents. This hinders their right to succession, social assistance when paying for public utilities, and the like.

Occasionally, consular employees do not adequately respond to the referred to problems, or the government agencies of the host countries are slow in issuing the needed documents.

In October 2002, Victor B. of Ivano-Frankivsk asked the Commissioner’s assistance in receiving a death certificate of his wife who died on the territory of Italy. Although the wife died in 2001, he could not get the certificate. The Commissioner addressed the Ministry of Foreign Affairs to help in this matter. In response, the consular department of the Ministry informed that the reason behind the delay was the discrepancy between the dates of birth in the documents of the deceased.

Other complaints addressed to the Commissioner concern the legalization of death certificates issued by competent government agencies in countries where Ukraine has no consular posts, specifically in the African countries.

The Commissioner received a complaint from Lidia S. whose husband died in Angola that does not have a Ukrainian consular post. Throughout eight months the petitioner could not bury her deceased husband nor apply for social assistance as a dependent, because she had no legalized death certificate issued by an Angolan state authority. Since there is no diplomatic mission in Angola, the applicant’s appeals to the Ministry of Foreign Affairs of Ukraine did not produce any desired results. It was only through the efforts of the Ukrain­ian Embassy in the Republic of South African that the problem was resolved at long last.

Within this context it should be mentioned that in January 2002 Ukraine became a party to the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. The Ukrainian President signed a law to this effect on January 10, 2002. After Ukraine joined the Convention our citizens have the possibility to use the documents issued by competent bodies of foreign states parties to the Convention without legalizing the documents at Ukrainian consular posts. This step, as the Commissioner for Human Rights believes, will make it much easier for the applicants to have their documents accepted.

Another important issue is the compensations families and relatives are to receive upon the death of Ukrainian citizens abroad. Although it was mentioned in the first chapter within the context of the migrant workers’ right to compensation in case of industrial injuries, this issue has to be discussed in greater detail.

As the Commissioner’s monitoring revealed, most of the relatives of deceased Ukrainian citizens do not even know that they are entitled to compensation and lack the possibility to familiarize themselves with corresponding provisions of international legislation governing the referred to legal relations. The relatives expect assistance in such cases from the Ukrainian consular posts abroad. But taking into consideration the civil law nature of such cases, the positive outcome depends on a lengthy and laborious effort. Because of the restricted human resources of Ukrainian diplomatic missions as well as their tremendous workload, they can hardly provide in full the required assistance.

So the relatives of the deceased have no choice but to reconcile to the impossibility of receiving compensations or enlist the services of private lawyers, either foreign or Ukrainian.

In the second case there is a great danger that the lawyers can defraud the potential recipients of compensations.

D.Kurdelchuk, President of the Ukrainian Foreign Legal Collegium (UFLC), provided an in-depth analysis of such facts when the Special Report was drafted. Some Portuguese lawyers acting as intermediaries of migrant workers from the CIS countries, mostly from Russia and Moldova, contact relatives of deceased Ukrainians and persuade them to sign certain documents (letters of attorney, applications, statements of refusal to refer cases to court, and the like – all in one copy made in Portuguese). Such a practice has nothing in common with lawyer-principal relationships – the agent never concludes an agreement on providing legal assistance, nor are the rights and obligations of both parties spelled out. Essentially, the work of local lawyers is not governed by any rules.

Lack of control over the activity of foreign lawyers and their failure to comply with financial transparency results in the beneficiaries receiving indemnities that are much less than what they should actually be. In one case an Italian lawyer reaped a fee of euro 25,000, while the relatives of the deceased Ukrainian migrant worker received only euro 5,000 in compensations.

As the UFLC informed, compensations sometimes run into dozens of thousands of Euro. However, when Ukrainian citizens receive what is due to them (at best), they never know what was pocketed by the enterprising “defender” who is so satisfied by his reward that he does not mention anything about the less attractive prospect of insisting on the payment of pensions to minors and assistance to dependents, because this is a more arduous and time-consuming effort.

Such facts, as the Commissioner for Human Rights believes, confirm once again the need for the Ukrainian diplomatic missions to exercise more determined control over the activity of dubious and unscrupulous legal intermediaries, and also to design a clearly formulated strategy of interaction with and comprehensive support of those Ukrainian and foreign lawyers and law firms that are capable of ensuring real and effective protection of the rights and interests of Ukrainian citizens abroad, caring not only for their direct material gain, but also for the interests of their clients.

The above-mentioned considerations relate to cases when the death of a Ukrainian citizen abroad becomes known to his family and relatives, who then have at least the opportunity to pay their last respects to the deceased and take certain measures that are required under such circumstances.

But the situation becomes much more complicated in the absence of documents identifying the deceased. This is especially true for illegal migrant workers who for fear of prosecution do not carry any documents or IDs.

If the competent authorities of a foreign state have reasons to believe that the deceased is a Ukrainian citizen, they forward a corresponding inquiry to a Ukrainian consular post. Under generally accepted practice, a Ukrainian consular post forwards a photograph of the deceased to the Ministry of Internal Affairs of Ukraine for identification. If the deceased cannot be identified, his remains are buried or used for research purposes. There have been cases when deceased Ukrainian citizens were not entered in official registers because of muddled up registration procedures at police stations.

In such cases relatives do not know what happened to their kin and begin inquiring about their disappearance many months or even years later. The Commissioner received quite a few inquiries of this sort from our citizens, such as O.Kochura, I.Buhai, L.Zhurkina, S.Ishchenko, N.Kurkova, N.Likhachova, O.Marchuk, and O.Semenets, whose relatives were missing in Poland, Spain, the Czech Republic, Italy, United Arab Emirates, the US, Russia and Portugal respectively.

According to the information of 82 Ukrainian consular pots in 69 countries, there were 903 such inquiries in the period from 2000 to the end of the first six months of 2002. Of this number 539 Ukrainian citizens were located within the referred to period. The whereabouts of the others are still unknown.

The Ministry of Internal Affairs’ cooperation with Interpol plays an extremely important role in searching missing Ukrainians abroad. In quite a few cases their whereabouts were established after a long period of time.

Yet another problem related to the death of our citizens abroad is that in some countries cases were registered when internal organs of the deceased were used for donor purposes. Usually, the legislation of most countries provides for preliminary consent of relatives for using the internal organs of a deceased. But judging from the petitions received by the Commissioner, the flaws in the national legislation of some countries cause serious collisions in this respect.

One example in point is the appeal of Halyna Babiy of Khmelnytsky, who questioned the legality of an Israeli hospital removing the heart of her deceased husband for donor purposes.

Mrs.Babiy husband worked under a contract at an Israeli enterprise. When his health failed, he was delivered to a clinic at Bet Shemesh where he died soon afterward. When his remains arrived in Ukraine for burial, it proved that his heart was missing. His wife immediately filed an application with law enforcement bodies. The investigation that followed proved that the patient was diagnosed for poisoning when he was admitted to the hospital whose administration supposedly received a permission to use his heart for donor purposes. But in real fact neither the wife nor his relatives gave such consent. The case is still under investigation. In January 2003 the Attorney General of Ukraine forwarded an official inquiry to Israel. No response has been received yet. This case remains under the supervision of the Commissioner for Human Rights.

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