• Research / Analysis of the human rights situation in Ukraine / Human rights in Ukraine – 2004. Human rights organizations’ report
Human rights in Ukraine – 2004. XVII. RIGHTS OF WOMEN
Ukraine is a member of the United Nations and has committed itself to adhere to internationally recognized human rights standards, in particular the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ratified by Decree of the Presidium of the Supreme Council of the Ukrainian Soviet Socialist Republic in 1981.
Under the terms of the 1991 Act on the Effect of International Agreements on Ukrainian Territory, all international treaties that have been ratified by Ukraine automatically become part of domestic law. This is reiterated in article 9 of the 1996 Constitution of Ukraine. However, in its concluding observations on the Fifth Periodic Report on Ukraine, the Human Rights Committee expressed its concern that the provisions of international treaties did not occupy a high enough position in the legal hierarchy of Ukraine and noted that the standards contained in these treaties were not necessarily given primacy over frequently contradictory national laws.
Having ratified CEDAW, Ukraine undertook obligations provided in article 2 of CEDAW, that is, to eliminate discrimination in all its forms and by all available means. It is obvious that the first and foremost means of overcoming discrimination are legislative mechanisms or incorporation of the principles of gender equality into the Constitution of Ukraine and into the Laws and supplementary legislation of Ukraine.
Article 24 of the Constitution affirms the entitlement of women and men to equal rights and contains a detailed list of measures that the State should take to ensure that these rights are enjoyed.
In affirmation of this position and guided by the Universal Declaration of Human Rights, CEDAW, and other international agreements on human rights, the final documents of the Fourth World Womens Conference Actions for Equity, Development and Peace (Beijing, 1995), and the Decree of the Parliament of Ukraine On Recommendations of Participants of Parliament Hearings On Implementation of CEDAW in Ukraine.from 12 July 1995 , the Verkhovna Rada on 5 March 1999 (Decree No. 475-XIV) adopted the Declaration on Fundamental Principles of National Policies on Family and Women. According to the Declaration, the State guarantees equal rights and opportunities for women and men in respect of all principal human rights and freedoms in all realms of the society. The Decree of the Cabinet of Ministers of Ukraine No. 479 of May 6, 2001 On the National Action Plan for the Improvement of Womens Status and Facilitation of Introduction of Gender Equity in Society for the Years 2001-2005 contains a list of specific steps to be taken in order to efficiently implement the aforementioned Declaration.
Although Ukraine has made these commitments at the national, regional and international levels, violations of human rights such as the right to freedom from discrimination, torture and ill treatment continue to occur. Women in Ukraine currently face many obstacles to the enjoyment of their human rights including negative social stereotypes concerning the status of women in society, high rates of violence against women in the family and in the community and a lack of access to real and legal employment opportunities.
Moreover, mechanisms for overcoming discrimination against women cannot be limited to legislative means only; they need to expand much further into the realms of legal applications and law enforcement. This encompasses all areas of activity of governmental bodies and their officials within the limits of their competence in creating and applying legislation, promoting and enforcing the declared principles. Here, the practice of law enforcement bodies and judges play a vital role. Here the provisions of article 4 of CEDAW, specifically, legitimization of «adoption of temporary measures… that do not qualify as discriminative by the participant countries» should not be confined only to passing normative legislation, but to ensuring their full implementation.
Special social, economic, cultural and educational measures are all needed to combat discrimination against women. A list of such mechanisms and measures is provided in article 2 and other articles of CEDAW. Unfortunately, these measures have not been implemented which means that Ukraine is still far from fulfilling its obligations in full. Ukraine has not yet ratified the CEDAW Optional Protocol, which provides the CEDAW Committee with the power to receive and act upon individual communications as well as to undertake investigations in cases where serio21), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 11).
The Constitutional Court of Ukraine in its ruling of 19 April, 2001 stated that the right to peaceful assembly is an «inalienable and inviolable» right of citizens and gave an official interpretation of Article 39 of the Constitution, in particular, as regards time periods for informing State authorities of plans to hold a mass action. The Constitutional Court also indicated that certain provisions of Article 39 of the Constitution should be specified in more detail by a separate law which has yet to be adopted.
1.2. The use in Ukraine of legislation on peaceful assembly of the former USSR
There is no Law in Ukraine regulating the protection of the right to peaceful assembly aside from constitutional provisions and limitations of a general nature.
State executive bodies, bodies of local self-government and the courts continue to use normative legislation of the former USSR, such as the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR». This is, in our opinion, illegal.
The Resolution of the Verkhovna Rada of Ukraine «On the temporary legal force of certain legislative norms of the USSR on the territory of Ukraine» from 12 September 1991 provided that «until adoption of the relevant norms of Ukrainian legislation, the legislative norms of the USSR shall be used with regard to issues not regulated by Ukrainian legislation, on condition that they do not contravene Constitution and Laws of Ukraine». However, this does not at all mean that the given decree has legal force.
This Decree establishes a permission-based procedure with a 10-day time period for notification of the holding of mass gatherings. The permission-based procedure involves the issuing of a permit by an executive body for the holding of a meeting on submission of the relevant application by the organizers of the action.
The Decree thus contravenes the Constitution of Ukraine, in particular Article 39, which sets out procedure for notification of the organization of mass gatherings, not for seeking permission, and does not contain the limitations concerning the terms for prior notification. It also runs counter to other provisions of the Constitution.
Nonetheless, the Mukachevo District Court effectively took upon itself the authority of the Constitutional Court and directly stated in its decision on prohibiting pickets from 1 to 4 May 2004 that the Decree of the Presidium of the Supreme Soviet of the USSR from 28.07.1988 «was in force on the day of submission to the Mukachevo District Council of applications to hold a picket.
The notification procedure involves the filing of notification about the planned event to be held by the organizers to local executive bodies, who in their turn should not prohibit the event. Such peaceful gatherings may be banned solely by the court following an application by local executive bodies.
1.3 Liability for violation of the right to freedom of peaceful assembly
Law enforcement bodies apply general legal regulations for ensuring public order, yet almost all individuals detained when a mass gathering is being broken up are held responsible for «malicious refusal to heed a lawful direction or demand from a police officer» (Article 185 of the Administrative Offences Code of Ukraine) or «breach of procedure for organizing and holding meetings, political rallies, street actions and demonstrations (Article 185-1 of the Administrative Offences Code of Ukraine).
These Articles allow for punishment in the form of warnings, fines from 8 to 25 minimum wages before tax (from approximately 20 to 80 US dollars), community service for a period from one to two months, with twenty percent deduction from wages or administrative arrest for up to 15 days.
Furthermore, law enforcement officers frequently apply the legal regulations of Article 129 of the Criminal Code of Ukraine imposing responsibility for blocking roads or transport communications.
Nor has there been any case where officials or functionaries were punished for preventing individuals from practising their right to free assembly.
1.4 Legislative acts of local executive bodies concerning the right to free assembly
The Constitution states that the right to peaceful assembly may only be limited in accordance with the law. In spite of this, local executive bodies frequently adopt their own legislative acts which flagrantly violate freedom of peaceful assembly.
Such decisions have been taken by city councils of the majority of Ukrainian regional centres, in particular, in Kyiv, Kharkiv, Donetsk, Dnipropetrovsk, Sumy, Lviv and in some district centres. One should also add that, in accordance with Article 92 of the Constitution, human and citizens rights and freedoms, the guarantees of these rights and freedoms, the main duties of the citizen, are determined exclusively by the laws of Ukraine, and not by decisions of local executive bodies.
Most of these decisions by city councils have been based on the Decree of the Presidium of the Supreme Soviet of the USSR, and have imposed a ten-day period for providing notification about actions. These decisions, moreover, have established significant anti-constitutional limitations on the right to free assembly.
For example, «The Regulations on holding mass events in Dnipropetrovsk», approved by decision of the executive committee on 21 August 2003 states:
«18. In order to ensure appropriate conditions of safety, public order, sanitary norms and rules in holding mass events, the organizers must:
-1. ensure that a metal barrier is set up around the stage and around the crowd (exactly what it says – the crowd!!!, – authors note); -2. ensure the installation of the required number of mobile toilets; -3. insure their liability before third parties (viewers, guests, participants);
4. hold the mass events not later then 11 p. m.
19. The organizers of the mass events together with the representatives of
– the Dnipropetrovsk local department of the Ministry of Internal Affair in the Dnipropetrovsk region;;
– the Dnipropetrovsk state communal enterprise of the electricity network for outside lighting «Misksvitlo»;
– the Dnipropetrovsk city electricity network «Dniprooblenergo»;
– the transport department of the city council;
– the department for emergencies and civil defence of the citys population;
– the explosives technical department of the Ministry of Internal Affairs in the Dnipropetrovsk region;
– 8th state fire prevention brigade;
should draw up a report 3 hours before the start of the mass action on the results of the examination of the venue and submit the report to the city council».
As for meetings of religious communities, these «Regulations» establish a permission procedure for holding mass events which contradicts the notification procedure guaranteed by Article 39 of the Constitution and Article 21 of the Law on Freedom of Conscience and Religious Organizations: «Religious events outside the places and buildings foreseen by the Law of Ukraine «On freedom of conscience and religious organizations» are carried out each time with the consent of the executive committee of the city council after consideration of the purpose and program for the holding of the event by the office of internal policy of the city council».
The Institute «Republic» turned to a number of regional offices of the prosecutor with a proposal to register protest at the decisions of the relevant local authorities, who were establishing procedure for organizing and holding mass events. As no responses arrived during the term provided by the Law, the Institute turned to the General Prosecutor of Ukraine with a proposal to protest the decisions of:
Dnipropetrovsk City Council №2207 from 21.08.03 – «Regulaus or systematic violations of the Convention have allegedly taken place.
2. AREAS OF STUDY
2.1. DOMESTIC VIOLENCE
CEDAW does not directly address violence against women. However, General Recommendation 19 considers it to be a form of gender-based discrimination and a direct violation of universal human rights. Domestic violence is one of the most typical and widespread kinds of violence against women.
The CEDAW Committee made recommendations to the government of Ukraine including the call to pay more attention to this issue in the next official CEDAW implementation report. Adherence to this recommendation naturally requires special steps to be taken including keeping official records on incidents and spread of this phenomenon. However, no official statistics on this subject have ever been widely publicized. Nevertheless, some Ukrainian NGOs have carried out several complex studies of this problem, and so far, their conclusions are the only publicly available sources of such data. The results obtained indicate the seriousness and prevalence of this problem and provide descriptions of behavioural patterns of women victims and of children from violent households.
In 2000, the Kharkiv Committee for Womens Studies (hereafter KCWS) delivered one such study: Impact of Domestic Violence on Behavioural Stereotypes of Women and Children in Ukraine. A general assessment of family relations showed that these relations are characterized by hostility and insults in 19% of families, and by physical abuse in 10% of families. The latter figure requires some comment. Answers to special control questions suggested that, in reality, physical abuse is present in about 18-20% of families, with the target usually being a woman. Physical abuse of women was noted in 80% of families where, according to children, alcohol was consumed on a daily basis.
29% of the children respondents said that during household conflicts they wanted to protect the mother (sometimes the father), 36% wanted to leave home «just so as not to see all this», 10% did « not want to live any more», 17% tried to get the parents to make up, 15% preferred «not to notice» it (or not to care), 2% said that in such a situation they were ready «to kill the father». It is significant that those types of behaviour can vary a lot depending on the frequency and forms of violence, and in general on the type of the family. As a rule, the more violent the family is, the fewer are those, who try to «protect» or «make up», and more and more children prefer «to leave», «not to notice», etc.
Criminological studies complement the aforementioned data: according to them, teenagers who have run away from violent homes commit 30% to 70% of juvenile offences. Physical violence negatively affects childrens interest in learning and education (29% of children in violent families are interested in studying, while the figure for ‘normal families is 34%). Thus it is reasonable to assume that many girls and young womens educational and subsequent economic opportunities are severely impaired by the environment of abuse they grow up in. Another problem is that children from such households eventually learn to perceive violent relations as a norm and later carry this pattern into their own families, thus perpetuating a vicious cycle.
It has been estimated that 30 to 40 percent of all calls to police stations in Ukraine are related to domestic violence involving physical assault. The number of people reported to police for committing persistent domestic offences is constantly increasing. Their number grew by 16% in the past five years and reached more than 67 thousand by January 1, 2001.
One third to one half of women treated for injuries in injury units are reportedly the victims of domestic battering, and these women most frequently seek medical attention for concussion, abdominal injuries and broken limbs. It is estimated that every year in Ukraine, domestic battering causes 100,000 days of hospitalization, 30,000 trips to injury units, and 40,000 doctor call-outs. As for forensic expertise, which is essential in case of official criminal charges, each such doctor sees about 1,200 victims of domestic violence per year. Some clients come as often as once a month, and it is not unusual for forensic doctors to personally call the police inspectors requesting them to intervene in the most worrying cases.
Incidents of domestic violence are generally treated under articles 121-128 of the new Criminal Code, which deal with assault and intentional infliction of bodily harm. Most cases of domestic battering presently fall under article 125 of the Criminal Code, which deals with «intentional light bodily harm». Articles 121 and 122 of the Code both cover cases of assault that cause either severe bodily harm, or long-term health disorders. Provisions of article 296 of the Criminal Code on «hooliganism» are also often used as the grounds for bringing claims of domestic battering. Certain provisions of the Administrative Code have also been applied in cases of domestic violence not deemed to have reached the threshold of seriousness required for prosecution under the Criminal Code.
At the same time, women wishing to press charges of domestic violence frequently come under pressure from lawyers and the police to become reconciled with their husbands or partners. Some prosecutors have refused to take up cases of domestic violence even in situations where women have suffered serious injuries. A survey undertaken among judges and lawyers in the Kharkiv region in 2000 found that many law enforcement bodies in Ukraine perceive domestic violence as constituting a private matter rather than a criminal offence. Even in cases where women have been willing to report instances of domestic battering, law enforcement officers have often refused to intervene referring to article 32 of the Constitution of Ukraine, which prohibits interference in personal or family life.
In order to combat this phenomenon, an action group of youth and womens NGOs led by KCWS began preparing a Draft Law of Ukraine On Prevention of Domestic Violence. A special working group of leading experts of the National Law Academy of Ukraine coordinated by Dr. O. Rudneva was formed to develop such a draft. The action group approached the Vice Speaker of the Parliament of Ukraine, Stepan Havrysh, who agreed to table the Draft law in the Verkhovna Rada. This Law was eventually adopted by the Verkhovna Rada on 15 November 2001.
The Law has been hailed as a landmark for women in Ukraine as its provisions are far more comprehensive than legislation currently in force in any part of the Commonwealth of Independent States (CIS) and Eastern European countries. Article 1 of the Law defines prohibited forms of violence including physical, sexual, psychological or economic (deprivation of financial support) violence. The Law provides for the creation of a network of crisis centres as well as facilities for medical and social rehabilitation of victims of domestic violence. Article 14 specifies conditions under which temporary protection orders will be issued, and Article 16 provides that perpetrators of domestic violence are required to attend training sessions on non-violent behaviour patterns.
This Law came into full force three months after its official publication on 19 March 2002. Its mechanisms for application require development and the introduction of a number of pieces of subordinate legislation. The government has already taken the first steps on that way. The Ministry of Internal Affairs issued Order No. 329 of April 9, 2002, On Approval of Instruction on the Procedure for Placing Household Members Guilty of Committing Acts of Domestic Violence on Preventive Record and on Keeping Records of Such Persons.
However, the State authorities must go much further in order to develop an efficient systetions for holding mass events in Dnipropetrovsk»;
Lviv City Council № 367 from 16.04.2004 – «On the procedure for organizing and holding meetings, political rallies, pickets, street actions and demonstrations in Lviv»;
Sumy City Council №757-МР from 28.04.2004 – «On regulations for holding mass events in Sumy»
Kharkiv City Council №221 from 07.03.2000 «On the approval of temporary regulations «On procedure for Executive Committee review of issues concerning the organization and running of meeting, actions, rallies, and demonstrations in the City of Kharkiv»;
Chernivtsi City Council № 265/10 from 17.04.96 «On places for meeting, demonstrations and other mass political actions in Chernivtsi»;
Zaporizhye City Council №2 from 12.01.01 «Regulations on the procedure for considering applications for holding meetings, political rallies, street actions and demonstrations in Zaporizhye».
The application of regulations which regulate the establishment of «small architectural forms» when fulfilling citizens rights to free assembly.
Some city councils use different regulations for regulating and holding mass events which formally do not touch on the right to peaceful assembly, these being regulations on the establishment on city territory of «small architectural forms». Such regulations have been passed by the councils of many cities, including Kyiv and Donetsk.
«Small architectural forms» are kiosks, stalls, tents and other small constructions, which are erected by businesses of various forms of ownership for commercial purposes. Such «forms» are, moreover, intended to function for a long time. The erection of such «forms» should undoubtedly be subject to regulation by local authorities which does not contravene European practice of issuing permits for the erection of «small architectural forms» for commercial purposes.
However since 1990 during the student hunger strikes in Ukraine, it has become traditional to hold acts of protest in the form of «tent cities». No commercial activity is carried out in these tent cities: their purpose is to draw attention to socially important issues and to publicize the views of their inhabitants. Moreover, such tent cities cease to exist when the protest action ends. For this reason, legal regulation for establishing tent cities should be implemented within the framework of regulations about the right to free assembly, and not regulations about «small architectural forms».
Nonetheless, city councils frequently use regulations about «small architectural forms» in order to restrict the right of citizens to assemble peacefully. This was the case in Kyiv in 2001, when on the decision of the Starokyivsky District Court based on regulations about «small architectural forms», the tent cities of the protest action «Ukraine without Kuchma» were dismantled. This also happened in Donetsk in December 2004, when the Donetsk City Executive Committee applied to the district court to prohibit the erection of tents on the territory of the city (during the court hearing, in which the Institute «Republic» represented the respondent, an Executive Committee representative withdrew the application).
1.5 Draft Laws on the protection of the right to freedom of peaceful assembly
In 2004 the parliament of Ukraine considered two Draft Laws on the freedom of peaceful assembly (Draft Law № 5242 «On the procedure for organizing and running peaceful rallies and actions in Ukraine», tabled State Deputies G. Udovenko, I. Mygovych, I. Sporadenko, V. Taran-Teren; Draft Law № 5242-2 «On meetings, political rallies, marches and demonstrations» introduced by the President of Ukraine). The Draft Law proposed by the President was virtually an exact copy of the draft law proposed by the Russian government for the consideration of the State Duma, which caused a wave of protest from Russian human rights activists.
The other Draft Law was proposed by a group of State Deputies, representing parliamentary factions then in opposition. An undoubtedly positive feature of Draft № 5242 was the norm establishing that organizers did not need to notify the appropriate local executive bodies or bodies of local government in written form about a picket by a group of no more than 50 people. No less positive was that organizers were able give verbal notice of the picket the day before (Article 6). However, considering the practice of Ukrainian executive bodies and bodies of local government, one can assume that precisely verbal notice about a picket could serve one of the ways that certain officials would try to use to hinder picketing on an issue they found inconvenient. In addition, a tent city, as a special and complex form of picketing could exist after normal notification, foreseen by this law, of the relevant authorities.
Among other positive points of Draft Law № 5242 was the identification of a range of activities that did not fall within the force of the Law, such as, for example, weddings, meetings of civic organizations, national festivals, etc, whereas one can assume that in accordance with Draft Law № 5242-2, these would demand such procedure.
Despite the fact that the two drafts were submitted by the representatives of different political forces, to a large extent they were similar. Sometimes the difference was largely one of numbers.
For example, the Constitution of Ukraine does not foresee any limitation on the right to peaceful assembly either with regard to place, time, duration or organizers. Yet both Draft Laws introduced limitations with regard to all of these criteria on the right of citizens to assemble and freely express their opinion. In all cases the limitations are without court decisions, but solely on the decision of officials of law enforcement agencies, State executive bodies or bodies of local self-government.
The Presidents Draft Law introduced restrictions as to places for holding «public actions» (the Drafts
term) – no nearer than 50 meters from the Presidents residence, buildings of the Verkhovna Rada, the Cabinet of Ministers of Ukraine, the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the General Prosecutor of Ukraine, diplomatic representatives of foreign states, missions of international organizations, that is, places which are most often targets of pickets or protest actions. The State Deputies Draft law also foresees these restrictions, however in their Draft the distance is 25 meters. The Presidents Draft demanded that organizers give notice of an action 10 days in advance, whereas the Deputies Draft stipulates three days in advance.
Furthermore, Article 10 of the Presidents Draft, in contravention of Article 39 of the Constitution established restrictions in time and duration when holding mass events: «A public action may begin no earlier than 9 a.m. and finish no later than 22.00 … The maximum duration of a public action held by the same organizer (s) must not exceed five consecutive hours». Of particular concern to human rights activists was the provision of the Presidents Draft about «authorized law enforcement agencies, State executive bodies and bodies of local self-government» which would have the power to «take decisions to suspend or stop public actions» (Article 14 of the Draft) and «to «move citizens from the place where a public action was being held» (Article 15) at their own discretion, without a court ruling. The Deputies Draft law also contained a similar regulation about the right of representatives of law enforcement agencies «to stop» the holding of peaceful actions.
However, on 4 June, 2004 the Verkhovna Rada rejected both Drafts. It is symbolic that the Russian State Duma passed an analogous Draft on the very same day.
2. Overview of violations of the right to freedom of peaceful assembly during 2004
2.1. A general assessment of violations of the right to freedom of peaceful assembly in Ukraine
During 2004, there were mass violations of the right to freedom of peaceful assembly by locam for preventing domestic violence. There are still only a few crisis centres and these are run by womens NGOs. Centres Women for Women operate in several major cities of Ukraine (Chernivtsy, Dnipropetrovsk, Donetsk, Kherson, Lviv, Rivne and Zhytomyr) and serve as domestic violence crisis centres. Nevertheless, their number and capacity are entirely insufficient to provide adequate assistance to victims of domestic abuse, and the active support of local authorities and the government is absolutely essential for substantial improvement of the situation.
The effectiveness of the Law will largely depend upon the extent to which law enforcement officials and members of the judiciary implement it.
2.2. WOMEN IN POLITICS
Article 7 of CEDAW requires its member states to ensure equal political rights for all their citizens regardless of gender. It specifically indicates the need to promote the equal participation of women in policy and decision-making at all tiers of power including carrying out governmental functions.
Formal equality of all citizens of Ukraine is reflected in Constitution (articles 24, 36, 38 et al.). In particular, article 24 guarantees its citizens equal rights and freedoms without any discrimination on the grounds of gender. Other relevant pieces of national legislation that declare all citizens right to participate in all forms of political life without discrimination are the Laws of Ukraine On Presidential Elections in Ukraine (Article 2), On the Elections to the Verkhovna Rada (Article 1), On Local Self-Government in Ukraine (Article 3), On Civil Service (Article 4), On Public Organizations, etc.
During the Soviet period in Ukraine, largely as a result of the gender quota introduced in the 1980s, women comprised more than 33 percent of the deputies in the Verkhovna Rada. While women actively participated in the political process leading to Ukrainian independence in the early 1990s, these days women are generally under-represented in policy and decision-making positions in the Verkhovna Rada and in the upper echelons of State executive bodies. In 1994, there were 19 women members in the Verkhovna Rada, while between 1998 and 2002 women made up only 7.6 percent (37 female members of the Parliament) and filled only 6.7 percent of senior executive positions in State structures. As of May 13, 2002, the Central Election Commission of Ukraine registered 446 members of the Verkhovna Rada, among whom there were 424 men and only 23 women (comprising a mere 5% while the worlds average rate of women in parliaments is 10%,).
By February 2002, 33 political parties and electoral blocs gained the right to run for the Parliament. Only one of them was an association of womens groups. Overall, women made only 29% of the total number of candidates for the Parliament in all presented lists. It should also be noted that the majority of women candidates were placed in «bottom» portions of lists that left them a very slim chance to ever get to the Parliament.
The League of Professional Consultants (Kyiv, Ukraine) analyzed the preliminary results of the last elections and the overall womens representation in all structures of power in Ukraine from the gender standpoint. Disclosed numbers indicate the presence of a wide gender gap in Ukrainian society and absence of balance between women and men in politics. Women are left outside the realm of political and governmental decision-making. Only one woman is a member of the government of Ukraine. Of 15 state committees of Ukraine a woman heads only one. There are no women among the management of the Presidential Administration, nor there are any women governors.
Nevertheless, if the rate of representation of women in the Parliament is low, it is much higher in councils at local and regional levels. Statistical data prove that the lower the levels of governmental bodies, the more accessible they are to women.
According to a preliminary analysis of the results of 2002 elections (official results are to be released in July), women make up 32% of members of councils at all tiers. Women hold only 5% of senior positions of executive power bodies and in governmental bodies. Such imbalance prevents women from being able to really influence decision-making processes and to take an active part in their implementation. Yet, it is an active social position along with real opportunities to participate in the social and political life that together can implement the legal guarantees to enjoy rights and opportunities provided by law for women of Ukraine.
The lack of parity has a direct impact on the stability and efficiency of the political system of the nation, on decision-making in principal areas of the nations development and leads to a situation where womens social concerns are left out. It is crucial to ensure adequate representation of women in Parliamentary committees, in the Presidential Administration, in the Cabinet of Ministers, and in other central and local bodies of executive power.
The Human Rights Committee recently expressed its concern at the low level of female representation in the Verkhovna Rada and in senior positions both in the public and in the private sectors and recommended that the government consider adopting positive measures, including educational measures, to improve the status of women in society.
In particular, it seems expedient to introduce the following provision to the Law of Ukraine On Elections of Members of the Parliament: the number of members of the same sex in the candidates lists must not exceed 70% of their total number. The same provision must apply to top ten candidates on the list». It would be desirable also to consider introduction of the quota system in filling decision-making governmental positions, formation of competition and assessment commissions on parity grounds (with equal number of members of each sex), introduction of requirements of mandatory representation of certain percentages of members of both sexes in structural divisions of governmental bodies. All these would be very temporary special measures that could facilitate overcoming of negative stereotypes regarding Ukrainian womens participation in political processes.
2.3. Womens Status in the Field of Employment and Education
Article 11 which deals with elimination of discrimination against women in the field of employment is one of the most extensive clauses in CEDAW. It lists in detail womens fundamental labour rights and steps that need to be taken in order to achieve equity in this realm. This is not surprising given that it is employment leading to economic independence that is the cornerstone of womens real equity in the society.
Democracy is often associated with personal independence including economic freedoms and opportunities. Nevertheless, the transition to democratic institutions and market economy in Ukraine led to women becoming under-represented in decision-making positions, to huge rates of unemployment and a re-emergence of traditional stereotypes concerning gender roles in society. It has been noted that «conversion to the market economy has become a masculine project of restructuring. The womens perspective is excluded from policy-making, and women do not participate in the process of power or resource distribution."
At a formal level, laws and other normative acts of Ukraine contain a great number of provisions that regulate womens status in the labour market and are designed to ensure their equity with men. More than 119 normative acts on labour and employment have been passed. The Labour Code itself contains the principles for relations between employees and employers and protects legal interests of both parties.
As directed by article 11 of CEDAW, Ukral State executive bodies, bodies of local self-government, law enforcement agencies and courts of first instance
A number of pickets, political rallies and demonstrations (in the majority of cases those of the opposition) were groundlessly prohibited by the courts.
In dispersing political rallies and marches with social demands (even without court-sanctioned prohibition), the police used force, as a result of which participants received injuries.
In some cases, participants of peaceful gatherings were attacked by unidentified individuals, whom the victims believe, not without cause, were connected with law enforcement officers. Despite the fact that in many cases criminal investigations were launched in connection with these assaults, not one of those responsible was detained.
A number of organizers and participants in peaceful events were subjected to administrative persecution.
There were criminal investigations initiated against participants in protest actions – supporters of both main Presidential candidates – for blocking administrative buildings and transport routes. However, these cases were soon closed.
Violations of the right to freedom of peaceful assembly were recorded in virtually all regions of Ukraine.
In 2004, Ukrainian citizens became more active in using their right to political rallies and demonstrations, and the political rallies were more hard-hitting in comparison with previous years. However, one should not attribute this sharpening to the election campaign alone. During the first nine months of the year, political rallies with purely social demands provoked a much harsher reaction from the authorities than rallies of a political or pre-election character. On the other hand, from October to December the many political rallies and demonstrations of opponents of the President and regime took place with a relatively small number of violations of the right to peaceful assembly.
2.2. Overview of violations of the right to peaceful assembly during 2004
2.2.1. Categories of mass events
Judging by information from the Public Relations Department of the Ministry of Internal Affairs of Ukraine, from January to September 2004 there were 40 thousand mass events in Ukraine, in which more than 25 million people took part. The majority of them were linked to a particular date and took place on State or religious holidays: New Year – 3.8 thousand events with 2.5 million participants; Victory Day – mass events in 7 thousand populated areas with 5 million participants; Day of Kyiv – more than 150 thousand participants; Day of Youth – around 1,100 events and 315 thousand participants; (on Constitution Day there were not many mass events). All these gatherings took place virtually without trouble (with the exception of a few football fans detained after the match «Shakhtar»- «Dnipro» and individuals in a state of alcoholic intoxication).
Another category of mass events were political meetings – those which were held by political organizations under political slogans. The pre-election events should also be placed in this category. There is no information about numbers in official sources. The largest of these were demonstrations on 9 March (the birth date of Taras Shevchenko), 1 May, organized by parties of various political leanings, the mass rallies of 4 July in Kyiv when Viktor Yushchenko declared that he would run for President, and in Zaporizhye – when Viktor Janukovych announced his candidacy. According to estimates of the Institute «Republic», there were more than a thousand of such events in various cities of Ukraine in which around 300 thousand people took part.
In many cases, course of first instance, on application of bodies of local self-government, banned such political rallies (as a rule – rallies of opposition parties, but in some cases (Lviv) – rallies of the pro-regime Social-Democratic Party of Ukraine (o).
2.2.2. Court restrictions on the right to freedom of peaceful assembly.
According to information from the State Court Administration of Ukraine, during 2004 the courts received 308 applications from bodies of local self-government (executive committees) and local State executive bodies (regional State administrations) to limit the rights of individuals, civic or political organizations to peaceful assembly. One such case had not been dealt with since 2003.
Decisions were passed in 269 of such cases. In 229 of the cases, the application was satisfied and the right of individuals limited. In 15, the case was closed, and in 21 cases the applications remained unconsidered. 3 cases were referred to other courts jurisdiction. Thus, in all 308 cases were concluded, of which 3 cases not within the terms established by the Civil Procedure Code of Ukraine.
In the majority of cases, courts of first instance «automatically» satisfied the applications of the local executive bodies, which is demonstrated by the number of such decision in relation to the general number of applications to the court. The applications were satisfied in 74.3 percent of the cases.
In all cases analyzed by the Institute «Republic», such decisions were unfounded or based on unconstitutional principles – the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR» or decisions of bodies of local self-government which run counter to the Constitution of Ukraine. Appeal courts however, as a rule, reversed (in the case of a rally being banned), or softened (in the case of administrative arrest of participants in rallies) the rulings of district and city district courts, which yet again demonstrates the fact that these decisions were unfounded and incorrect.
Furthermore, in the majority of cases, courts of first instance infringed a number of procedural norms. For example, the Romen City District Court held their hearing on 5 August in the presence of only one of the parties – the representative of the Sumy Regional State Administration – and without a representative for the students who had organized a march on foot from Sumy to Kyiv. The court thus listened only to the arguments of the State authorities, which violates the principles of impartiality and of adversarial proceedings.
In many cases the court disregarded the principle of the presumption of innocence: the rights of citizens were restricted – that is, they were punished – not for real violations, but for «the likelihood» (in the opinion of the claimant and the court) of violations, in other words, for violations which the citizens had not committed. Nor were such assumptions substantiated by any facts (any clashes between the parties in the past, danger presented by the participants, etc).
For example, the district courts of Kyiv, Lviv, Mukachevo and other cities from 28 to 30 April 2004, at the application of local State executive bodies and bodies of local self-government withdrew (limited) the right to hold demonstrations and political rallies on 1 May – International Workers Day, a traditional day in Ukraine for holding political demonstrations, of representatives of various – left-wing and right-wing forces: the Ukrainian National Assembly and the Union of Ukrainian Anarchists, the Communist Party of Ukraine and the political block «Our Ukraine», the Progressive Socialist Party and the Socialist Party, the association «Prosvita» and the charitable fund «Rusin women of Transcarpathia». These bans were unprecedented in the recent history of Ukraine for their mass scale: such a number of prohibitions is characteristic more of a state of emergency and one can only perhaps compare it with the number of bans at the beginning of 2001 (the period of protest actions of «Ukraine without Kuchma»).
The grounds given for such court decisions was «the likelihood» of clashes between representatives of different political forces during mass events, and the above-mentioneine introduced a considerable number of legislative remedies aimed at elimination of discrimination against women in the employment realm that correspond to article 4 of CEDAW. The Labour Code of Ukraine includes a special chapter on protection of womens employment rights which incorporates articles on labour safety (a list of jobs that are prohibited for women because of danger to life or health (article 174), limitations to womens work on night shifts (article 175), benefits for pregnant women and women with children under 18 (articles 176 to 186). A special legal standard provides a shortened workday for certain categories of women (pregnant women, women with children under 14 or with disabled children under 16, including the situation where a woman is their legal guardian, and for women taking care of sick family members – article 56 of the Labour Code) at their request, etc. A number of provisions of the Law of Ukraine On Employment, the Law of Ukraine On Remuneration of Work, the Law of Ukraine On Labour Protection and others are directed at elimination of discrimination against women.
The Law of Ukraine On Employment foresees the provision of additional employment guarantees to those able to work but needing social protection and unable to compete on the work market on an equal footing, including:
a) women with children under 6;
b) Single mothers with children under 14 or disabled children.
However, legal standards gain maximum efficiency only with introduction of specific mechanisms for their implementation and, first of all, with the imposition of sanctions for violation of specific legal provisions. Nevertheless, Ukrainian labour legislation lacks such specific measures. Instead, its norms contain only general provisions that complicate solutions of specific disputes, e. g., «Persons guilty of violation of labour legislation bear responsibility in accordance with effective legislation» (article 265 of the Labour Code), «…officials guilty of violation of laws of Ukraine on employment are held accountable as specified by law» (article 35 of the Law of Ukraine On Employment), etc. It would be expedient for the lawmakers to provide corresponding sanctions for violation of additional benefits to certain groups along with introduction of such benefits. In particular, in case of violation of the principle of equal opportunities for women and men, there should be specific kinds of disciplinary or administrative action taken against, or specific fines imposed upon owners or empowered boards, enterprise/institution/organization officials, parties of collective agreements, etc., or other negative consequences that apply in cases of infringement of rights of the same kind.
Despite all legislative measures mentioned above in terms of access to employment, women in Ukraine are often discriminated against on the basis of gender and age. Women are particularly affected by downsizing, discrimination in hiring practices, sexual harassment, unequal rates of remuneration (while there is a system of fixed pay rates for each job in the state sector of economy, it is much more difficult for women to obtain better-paid positions as such), high levels of non-contractual work and unstable working environment as well as by illegal dismissals during maternity leaves. Severe employment discrimination against women in Ukraine is a result of social stereotypes that women belong to the private sphere of the family while it is men who are the breadwinners. Reports put forward that not only women with small children are refused employment solely because of their motherhood, but also the whole general practice of paying women less than men for equivalent work is based on the notion that women are not the main family income-earners. On average, women earn 27,6 percent less than men for equal work.). Women usually have greater problems both at receiving and losing employment (their share of those laid off in 2001 reaches 62.6%), i. e., it is more difficult for them to receive termination pay and other benefits provided by law in the latter case.
Article 10 of CEDAW calls for free and unobstructed access to education for women, and this is the right that women in Ukraine truly enjoy. They form the majority of secondary school (56.6 percent), college and university (51.9 percent) graduates. Female students also form the overwhelming majority in medical, cultural, arts and commercial schools (60-70 percent of the total student body), and large numbers of women undertake post-graduate studies (46.2 percent).
Despite the fact that women make up 60 percent of all professionals with secondary and higher education, as discussed below, this high level of educational attainment is not td Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR».
-We would quote a few of these arguments concerning «the likelihood» of violations:
«Its (the mass events) direction indicates a strong likelihood of violations of public order in the place where the event would be held» (the application of the Kyiv City State Administration to the Shevchenkivsk District Court of 28 April 2004, signed by the Deputy Head of the Kyiv City State Administration B. Stichinsky);
-The picket of the Mukachevo Town Hall by two organizations (Ukrainian Social-Democratic Youth and the Fund for Regional Initiatives)« «leads the court to fear that a situation of conflict may arise between them» (the decision of the Mukachevo City District Court of 30 April, 2004, Chairman: O. Kuropyatnyk).
The fact that for the court justification for banning a political rally could be «the likelihood» or «fear» of classes between different political forces during mass events, led to the appearance of a new ‘political technology for the banning of actions by individual political forces. This ‘political technology, which had been applied previously, from 1 May 2004 took on a massive character. After one of the organizations had notified of their plan to hold an event, another organization with different political leanings informed the relevant local body of their intention to hold their own event at the same time and in the same places as the first organization. The court then banned both political rallies, referring to the possibility of classes between different political forces.
Despite the flimsiness of the grounds, the courts in all the above-mentioned cases satisfied the applications of local State executive bodies and bodies of local self-government to restrict the right of citizens to peaceful assembly.
Of course, every demonstration, march or other similar action causes the authorities a lot of problems. However, the European Court of Human Rights has confirmed that Article 11 refers to the positive obligations of the State to defend those who are carrying out their rights to peaceful assembly free of violence from opponents, in particular from counter demonstrations (the case of the organization «The Platform of «Doctors for Life» against Austria, 1985, Paragraphs from 65 to 72). Since both parties have the same right which is guaranteed by Article 11 of the European Convention, where one of the parties is aiming to disrupt the activity of the other, the authorities must in the first instance protect the rights of those who are carrying out their gathering peacefully:
«Any demonstration can irritate or offend those who are against the ideas or demands in support of which it is being held. Nonetheless, its participants must have the opportunity to hold it without fear of physical force being applied by opponents; such fears would hinder them in expressing their opinions on socially important issues. In a democratic society the right to hold a counter-demonstration cannot determine the right to a demonstration. Following from this, the protection of true, effective freedom to hold peaceful meetings cannot lie only in the States lack of interference: the purely negative concept of the role of the State contradicts both the subject and the aim of Article 11» – the European Court of Human Rights states with regard to this decision.
In view of this, the widespread practice of prohibiting peaceful gatherings purely on the basis of the fact that peaceful meetings of two opposing sides will be held in one and the same place, cannot serve as justification for restricting the right to peaceful assembly. Such practice should be deemed to contravene European standards.
Decisions to restrict the right to peaceful assembly are, as a rule, taken the day before mass events which does not allow the organizers the possibility of appealing the decision of district courts before the beginning of the event and, thus, effectively deprives them of the chance to reinstate their constitutional right to peaceful assembly.
Another violation by local State executive bodies, in particular, the Kyiv City State Administration, was the refusal to acceptranslated into competitiveness on the labour market. On the whole, women are assigned to less prestigious and lower paid positions According to information received from the International Helsinki Federation, 80 percent of registered unemployed women had completed some form of higher education, while 72 percent of unemployed women were graduates of vocational and technical schools.
The majority of job ads and employers applications to employment centres and recruitment agencies in Ukraine directly specify preferred gender of future employees. In most cases when this requirement is not stated directly, employers are still most likely to give the preference to men. A 1998-1999 KCWS study of womens status in the labour market disclosed that in cases when the prospective employees sex was specified from the very beginning, the share of vacancies for women made up approximately 1/5 of the real quantity of womens employment needs. Another fixed social stereotype subdivides jobs into so-called «male» and «female». The latter include secretarial, accountancy, retail sales of consumer goods and groceries, teaching, lower to medium level medical staff, etc., which are usually lower-paid.
At the same time, article 22 of the Labour Code prohibits baseless refusal of employment. Any direct or indirect limitation of rights or setting of direct or indirect preferences at entering, amendment and termination of employment agreements based upon the employees sex is not allowed.
55% of all employers ask their prospective female employees additional questions about their family responsibilities or other similar matters though such questions directly violate article 25 of the Labour Code, which prohibits demanding information of prospective employees that is not specified by law.
The Committee on Economic, Social and Cultural Rights and the Human Rights Committee have both recently expressed their concern at the high levels of unemployment among women in Ukraine (up to 80 percent of unemployed persons are women) as well as the concentration of women in low-paying jobs in the informal sector
This situation can be partially explained with the «boomerang effect» of the aforementioned special provisions that weigh employers down with a long list of benefits and additional obligations regarding women employees. In fact, these provisions impair womens competitiveness in the labour market. Not only 53% of employers, but women themselves and even 40% of judges and lawyers that specialize in relevant issues believe that «special rights» contradict the very principles of market economy and are womens disadvantage as compared to men.[21 notification from organizers of mass events on the grounds that the working day had ended. For example, in the case of the civic organization, Ukrainan National Self-defence, the notification was not accepted at 17.00 on 30 April, although the working day in the Kyiv City State Administration ends at 18.00. Among other reasons, this can be explained by the lack of legislative definition of the procedure for submitting notification of plans to hold peaceful gatherings.
The majority of organizers of mass events on 1 May 2004 did not adhere to the rulings of the courts, arguing that they were unconstitutional. They were only heeded by the bloc «Our Ukraine» in Kyiv (before the decision of the court on 28 April, having considered the suggestion of the Kyiv City State Administration, «Our Ukraine» changed the form and place where its events were to be held) and by the Ukrainian Social-Democratic Youth and the Fund for Regional Initiatives in Mukachevo.
Despite this, no incidents where the law enforcement bodies placed obstacles in the way of holding these actions were recorded. There were also no clashes between representatives of different political forces, which the local executive bodies and judges had been so concerned about. In particular, there were no confrontations in «problem» regions where such classes had taken place previously – neither in Lviv between communists and nationalists, nor in Donetsk between representatives of «Our Ukraine» and the Party of Regions of Ukraine.
Most court prohibitions were for the rallies on 1 May, however bans continued after this date. For example, the Ordzhonikidze District Court in Zaporizhye banned an event by the opposition bloc «Our Ukraine» on 15 May; The Suvorovsky District Court in Kherson satisfied the application of the Kherson City Executive Committee to limit the rights of the Kherson organization of the Ukrainian Peoples Party and other organizations to hold a rally on 17 June; the Horodnyansky District Court of the Chernihiv region prohibited the Chernihiv organization of the Socialist Party of Ukraine and the Chernihiv Trade Union of Businesspeople from setting up a tent city in the village of Senkivke on 26 – 27 June during the international festival «Druzhba – 2004».
A protest action by education employees in Lviv demanding that State executive bodies carry out the rulings of the courts of the Lviv region with regard to ensuring social payments to educational workers in accordance with Article 57 of the Law of Ukraine «On education», which began on 7 October, involved setting up a tent city (a traditional form of protest actions since the 1990s) near the premises of the election headquarters of Presidential candidate Viktor Yanukovych, the incumbent Prime Minister of Ukraine. On 29 October, one of the initiators of the action, Andriy Sokolov approached the Executive Committee of the Lviv City Council to give notice that it would take place. In response, on 5 October the City Council turned to the local court of the Halytsky District Court in Lviv with an application to limit the right of citizens to hold this action. The Council argued that the organizers of the tent city had not adhered to one of the requirements of the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR», in accordance with which the initiators of the action must inform local authorities about the event 10 days in advance. Moreover, in the view of the City Council, the teachers action could also be an infringement of the Law on the elections, hampering the work of the regional headquarters of Yanukovych. Such an action would also, they ] The ARG KCWS deems it necessary to draw public attention to the «boomerang effect» of special remedies aimed at facilitation of factual equity of men and women.
Another factor that negatively influences womens status in the labour market is the low degree of awareness of their rights and ways to protect them. Only 22% of women respondents (of them 6% were either lawyers or members of womens NGOs) consider that they are aware of their rights to a certain extent; however, the majority of them indicate their familiarity with pieces of legislation that regulate employment relations without any special gender considerations. 78% of women do not know anything about the mere existence of legal regulations of specifically womens rights. It should be noted that the respondents were speaking only about effective Ukrainian legislation, that is, even women who are familiar with it often do not know anything about international legal standards that provide equal opportunities for women and men in the labour market. As for employers and senior managers, quite a number of them are aware of legal norms that directly regulate the nature of womens labour, define works prohibited for women, provide certain benefits, etc., but overall, they do not know about pieces of legislation that protect womens status in the labour market, either. Thus, it can be stated that there is legal unawareness on both sides that results in considerable limitations of employment and career opportunities for women.
The elimination of discrimination against women in the field of employment is closely connected with the problem of elimination of sexual harassment of women in the workplace
Sociological studies have shown that 50 percent of women in Ukraine have been victims of sexual harassment at work, and 8 percent of women reported having been subjected to repeated sexual harassment. Article 119 of the former Criminal Code made it a crime to force a woman to have sexual relations with a person on whom she was economically or officially dependent. Article 154 of the new Criminal Code replaced article 119 of the earlier Criminal Code of Ukraine and introduces additional criminal charges in case of violence against victims of sexual harassment.
However, in 1997, legal actions were taken only in three incidents, and two persons were charged on the grounds of article 119 of the Criminal Code. In 1996, six cases of sexual harassment were registered, and two persons were convicted for the offence.
According to a poll carried out by a sociological company «Naval», cases of sexual harassment are 1.5 times more frequent in private companies than at state-owned enterprises. It is generally agreed that sexual harassment of women in the workplace is a widely tolerated social practice in Ukraine, and, given the precarious nature of the current job market, is one, which women are often forced to put up with.
At present, a special coordination group of leading experts in labour law of the National Law Academy was formed with the purpose to create the draft of the new amended Labour Code of Ukraine. Item 3 of article 22 of the Constitution of Ukraine prohibits narrowing of effective rights and freedoms in the process of introduction of legal amendments. Thus, it is expected that the new Labour Code will widen womens employment rights.
The facts provided in this document indicate that existing legal regulations in Ukraine fail to ensure complete factual equity of women and men that calls for special attention on the part of global community.
Women in Ukraine face many obstacles to enjoyment of their human rights, and although the government has taken some steps to integrate gender concerns into its policy-making, much work remains to be done in order to ensure that women no longer experience discrimination. For this reason, the Working Group of KCWS recommends that the government develops a comprehensive strategy for prevention and elimination of all forms of discrimination against women, and that this strategy includes training for governmental officials, law enforcement staff and members of the judiciary at all levels in dealing with complaints of infringement of womens rights as well as a general public education campaign aimed at changing social attitudes concerning the status of women.
In relation to specific instruments for protection of womens human rights, the Working Group of KCWS demands ratification of the CEDAW Optional Protocol by Ukraine. This will enable Ukrainian women to lodge individual complaints concerning violations of their rights, which are guaranteed under the Convention.
The Working Group of KCWS calls upon the government of Ukraine to recommend that the Supreme Court of Ukraine summarizes all court cases where facts of discrimination against women were present and to develop an official interpretation on the definition of discrimination and ways to apply CEDAW in judiciary practice.
Trafficking in women and girls for the purposes of sexual exploitation, forced marriage and domestic servitude is a serious and growing problem in Ukraine. While the government has taken certain legislative and policy measures to address the issue of trafficking, it appears that there is little political commitment to tackle the problem. The ARG KCWS recommends that the government amend Article 149 of the Criminal Code, which deals with trafficking in order to make trafficking that takes place within the borders of Ukraine a crime. It also recommends that interpretative commentaries for judges and other officials as well as comprehensive procedural guidelines for police and immigration officers on prevention and prosecution of trafficking offences be developed.
The Working Group of KCWS is particularly concerned with the reported involvement of business entities and organized criminal groupings in the trafficking of women in Ukraine. The failure of the government to effectively investigate, prosecute and punish businesses and organized criminal groupings responsible for the trafficking is a serious problem. KCWS demands that the Government of Ukraine ensure that in the future it takes all measures to prevent and punish trafficking in women by legal entities and organized criminal groupings.
Domestic violence is a serious problem in Ukraine, and KCWS is very concerned that the government has yet to devote significant resources to prevention of domestic violence and to protection of women who are its victims. The adoption and entry into force of the Law On Prevention of Domestic Violence is the first step on the way of efficient addressing of this problem and leads to greater protection against family-based violence for women in Ukraine. KCWS calls upon the government of Ukraine to ensure that all secondary pieces of relevant legislation necessary for application of this Law in daily practice are duly developed.
KCWS proposes to create a special working group that includes NGO members, law and criminology experts, practicing lawyers with the purpose of efficient implementation of the Law of Ukraine On Prevention of Domestic Violence. Such group will bring primary and secondary legislation of Ukraine into line with the adopted Law, develop relevant departmental regulations on the creation and operation of new institutions as specified by the Law as well as on implementing measures and making decisions as provided by the Law. In particular, this group shall:
– propose amendments to the Administrative Code of Ukraine that introduce administrative responsibility for violation of requirements set in temporary protective orders;
– develop proposals on designation of a special empowered executive body that is responsible for prevention of domestic violence and draft argued, interfere with pedestrian movement and transport. On 7 October, the Halytsky District Court considered and satisfied the claim of the Executive Committee. The participants in the action did not have time to appeal the court ruling (which was given on the day when the action was to begin) and disregarded it. It was not adhered to (and no effort even was made to adhere to it) by the law enforcement bodies and executive bodies.
The Institute «Republic» recorded only two cases where the courts of first instance did not satisfy applications from local executive bodies regarding «limitation of the right to peaceful assembly» from January to September 2004 (the term «limitation of the right» in court decisions usually means simply prohibition): On 19 May the Lutsk City District Council rejected an application from the Lutsk City Executive Committee, and on 9 June, the Leninsky District Court in Kirovohrad turned down an application from the Kirovohrad City Executive Committee. In both cases, the local authorities had been trying to ban actions of «Our Ukraine».
On the other hand, from September to December 2004, «Republic» recorded only two instances of court bans on peaceful gatherings – in Dnipropetrovsk and Lviv (the latter was mentioned above) – however in neither case was the court ruling adhered to, and no repressions against the organizers nor participants in the rallies were applied.
On the other hand, during the final months of the year courts of first instance in the majority of cases did not satisfy the applications of local executive bodies to limit the right to peaceful assembly, deeming there to be no constitutional grounds. Even courts which had previously, «automatically», accepted the call from the local authorities to prohibit peaceful gatherings, now rejected such applications.
2.2.3. Persecution of the organizers and participants of peaceful gatherings
In the majority of cases, political organizations did not adhere to court rulings, considering them to be an infringement of Article 39 of the Constitution of Ukraine which guarantees the right to peaceful gatherings and the police did not use force against them. Nonetheless a number of participants in opposition actions experienced persecution at a later stage.
In accordance with the demands of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, persecution of individuals for their participation in peaceful gatherings is a violation of their right to freedom of peaceful assembly.
On 5 May, two activists of the opposition bloc «Our Ukraine» – Ivan Varchenko and Evhen Zolotaryov – were sentenced by a judge of the Kyivsky District Court in Kharkiv, Volodymir Pletnyov, to 10 and 15 days administrative arrest, respectively, on the basis of Article 185 of the Administrative Offences Code in Ukraine («an unlawful march») during their political action of 1 May «Last shirt for Yanukovych»). After a protest at these decisions was lodged by the Prosecutor of the Kharkiv region, Vasyl Sinchuk, Judge Pletnyov shortened the period of administrative arrest of both Varchenko and Zolotaryov to 3 days. Soon afterwards, by a Resolution of the Head of the Appeal Court of the Kharkiv region, Vasyl Bryntsev, this decision was declared unlawful and annulled.
On 20 May 2004, a resident from Transcarpathia, Andriy Flenko, was detained. Flenko had informed of his intention to picket the Transcarpathian Regional State Administration to demand the implementation of the Resolution of the Verkhovna Rada about the events in Mukachevo from 12 May 2004, and in particular, the resignation of the Governor of Transcarpathia, Risak, the Head of the Regional Department of the Ministry of Internal Affairs in Transcarpathia, Vartsaby and his deputy, Rusin. Despite the fact that there was no court sanction for prohibiting the picket, the activist was detained, and the tents erected in the course of the action were removed. Under pressure from civic organizations, Flenko was soon released.
In Mukachevo on 22 May, Kostyantin Sidorenko, who had previously taken part in protest actions, was detained. On 25 May, the Mukachevo City District Court sentenced him according to Article 185 of the Administrative Offences Code («resisting law enforcement officers») to 5 days administrative arrest.
In May, a journalist of the Sumy Regional Television and Radio Company, Kostyantin Yelishevych, was dismissed for having made a speech at a political rally organized by students in Sumy.
On 10 June 2004, the Zarichny District Court in Sumy began its consideration of the case involving Artem Semenchenko, the Head of the Sumy city organization of the opposition Ukrainian National Party and of the regional youth civic organization «Youth of the Sumy region». He was charged with infringements to the procedure for organizing and holding meetings, political rallies, street marches and demonstrations (Article 185-1 of the Administrative Offences Code of Ukraine) during the cultural and artistic ‘extreme festival «Energy of youth», held on 5 June in the childrens park «Kazka» («Fairytale»). On the application of the City Police Department, Semenchenko was accused of having organized a street march at 21.00, after the festival, under the banner of the civic organization «Youth of the Sumy region» through the centre of the city, Independence Square to Soborna Street. However, 22 June, the Zarichny District Court quashed the charge.
There were also other forms of repression against participants in the protest actions of the Sumy students. For example, on 24 September, in the middle of a lecture attended by about 150 people, a student of the Sumy National Agricultural University (SNAU) was informed by the Dean of the Agronomy Faculty, Viktor Kabanets: «We have expelled our main revolutionary and political activist». The expulsion order was signed by the Acting Rector of SNAU, Valery Zhmailov, with the following grounds being given: «In connection with flagrant violations of disciplinary procedure of SNAU and missed lectures which could lead to his falling behind in his studies». Some men in uniform – university guards – then entered the lecture hall and forcibly removed the student from the territory of the university. A few days later, after a query to the Ministry of Education about the above-mentioned events by State Deputy of Ukraine, Valentina Semenyuk, which she made from the tribune of the Verkhovna Rada, Stepanenko was reinstated in the university. Repressions against the students led to a new wave of protest among students and residents of Sumy.
2.2.4. The lack of action by law enforcement bodies during attacks on participants of peaceful gatherings
Although representatives of law enforcement bodies did not directly use force against participants of peaceful gatherings in the majority of cases, there were some incidents where the participants were assaulted by unidentified individuals and sustained bodily injuries. On these occasions, the police did not interfere and did not stop these breaches of public order.
In many cases criminal cases over assault with intent to injure were opened, however these have not to this day been investigated. All of this gives grounds for assuming that the attacks on participants of peaceful gatherings were carried out by individuals connected with law enforcement bodies or the local authorities.
The European Court of Human Rights has frequently reiterated that the guarantee of the right to freedom of peaceful assembly implies positive obligations on the part of the State to protect those who are exercising their right to peaceful assembly against violence from opponents.
«Any demonstration can irritate or offend those who are against the ideas or demands in support of which it is being held. Nonetheless, its participants must have the opportunity to hold it without fear of physical force being applied by opponents; such fears would hinder them in expressing their opinions on socially important issues». – it states in its ruling on the casRegulations that determine its powers and procedures;
– take part in development of the draft Decree of the Cabinet of Ministers of Ukraine on definition of procedures of lodging and reviewing complaints of domestic violence or clear and present danger of its commitment;
– take part in development of draft Regulations On Crisis Centres for Victims of Domestic Violence and Potential Victims of Domestic Violence as well as draft Regulations on Centres for Medical and Social Rehabilitation;
– initiate a wide-scope informational campaign on raising public awareness of the new Law, its provisions and mechanisms of its implementation as well as on raising general legal awareness. This campaign should be delivered with the support of mass media, human rights protection and womens and youth NGOs and legal experts.
In addition, greater attention must be paid to factors that currently prevent women and girls in Ukraine from lodging complaints in relation to domestic violence. These factors include social stereotypes concerning the subordinate status of women in family relationships as well as the lack of specialized training among law enforcement personnel and members of the judiciary who frequently mirror prevailing social stereotypes concerning domestic violence and, as a result, often actively discourage women and girls from pressing official charges against perpetrators of violence. The ARG KCWS recommends that comprehensive training on responding to complaints of domestic violence is provided to all law enforcement staff currently in service as well as to future police officers and judges in the context of their basic training.
The Working Group of KCWS recommends that the government introduce such temporary special measures as legally guaranteed quotas for same-sex representation in the Parliament and higher governmental bodies. The same provision must apply to the top ten candidates on political election lists.
KCWS also suggests considering the formation of competition and assessment commissions on parity grounds and introduction of requirements of mandatory representation of certain percentages of members of both sexes in structural divisions of governmental bodies. These steps will facilitate overcoming of negative stereotypes regarding Ukrainian womens participation in political processes.
KCWS calls on the government to introduce additional guarantees to women in the employment realm as well as to provide sanctions for their violations, particularly, for violation of the principle of equal opportunities. There should be specific kinds of disciplinary or administrative actions taken against, or specific fines imposed upon owners or empowered boards, enterprise/institution/ organization officials, parties of collective agreements, etc., or other negative consequences that apply in cases of infringement of rights of the same kind.
KCWS recommends that the government ensure adequate conditions and guarantees of womens labour in the new Labour Code. These new standards must reflect international legal norms (ILO documents, European social charts, etc.) so that the new benefits correspond with the criteria of necessity and adequacy and do not produce the «boomerang effect», that is, do not complicate womens position in the labour market. KCWS calls upon the State to work upon the draft of the Labour Code in close collaboration with all those concerned.
KCWS understands that according to provisions of article 22 of the Universal Declaration of Human Rights each person as a member of the society has the right to social security through national efforts and international cooperation in accordance with structure and resources of each state. However, if the existing amounts of social aid allocations to certain categories of women and mothers remain unchanged, the overcoming of de facto discriminated status of women during pregnancy and childbirth as well as full-time childcare will be impossible. The Working Group of KCWS insists that the government activate all resources in order to bring the size of social allocations in line with at least, the official minimum living standard.
One of the main reasons for an unequal position of women in Ukrainian society is the low level of public legal awareness, awareness of womens rights as a special category of human rights that is placed under special protection on the part of the international community as well as of mechanisms of its protection and implementation. KCWS is convinced that raising legal awareness among women is a prerequisite for the elimination of inequity of women and men. Thus the Working Group of KCWS recommends that the government organize systematic short-term training courses on womens human rights with the help of regional and district departments of the Ministry of Justice of Ukraine and with the assistance of members of NGOs and students of law schools.
The Working Group of KCWS believes that efficient implementation of the said recommendations will substantially improve the status of women in Ukraine, thus bringing the development of democracy in Ukrainian society to a qualitatively new level as introduction of gender positive policies ensures active participation of all citizens in the progress of the nation.
 Human Rights Committee, Concluding Observations: Ukraine, UN Doc. CCPR/CO/73/UKR, November 5, 2001, Paragraph. 8.
 Donetsk Regional League of Business and Professional Women (DRLBPW), Campaign 16 Days Against Violence, 2000.
 Minnesota Advocates Group, Domestic Violence in Ukraine, December 2000, p.31
 Olexandra Rudneva, Chapter on Ukraine in The First CEDAW Impact Study, International Womens Rights Project, New York, June 2000, p. 224.
 The official website of the Central Election Commission of Ukraine, www.cvk.ukrpack.net
 Human Rights Committee, Concluding Observations: Ukraine, UN Doc. CCPR/CO/73/UKR, 5 November 2001, para. 9.
 Women in Politics, a monthly bulletin of KCWS, Issue 11, 1997, p. 15
 Anastasia Posadskaya, «Gender Dynamics of Economics and Political Change: Efficiency, Equality and Women» in Democratic Reform and the Position of Women in Transitional Economies, p. 18.
 I.Lavrynyuk, Principles of Equal Opportunities in Legal Standards and in Practice. Viche, Issue 9, 2000, p.49-51.
 Women in the Labor Market of Ukraine under Transition, a legal and sociological study, KCWS, Kharkiv, Ukraine, 1999, pp.23-25
 International Helsinki Federation for Human Rights, Ukraine chapter in Women 2000, International Helsinki Federation for Human Rights, 2000, p. 475 (here, the report refers to the KCWSs 1998-1999 study of womens status in the labour market in Ukraine; however, the research organization is mistakenly listed as Kharkiv Centre for Womens Rights)
 Women in the Labour Market of Ukraine under Transition, a legal and sociological study, KCWS, Kharkiv, Ukraine, 1999, p.23
 Ibid., pp.34, 77
 Olexandra Rudneva, Chapter on Ukraine in The First CEDAW Impact Study, International Womens Rights Project, New York, June 2000, p. 223.
For example, on 23 October 2004 at about 15.00 in Kyiv, near the Kyiv Regional State Administration which houses the Central Election Commission of Ukraine (CEC) a political rally began organized by supporters of the bloc «Our Ukraine». After it ended, some 100 supporters remained on the square around the premises of the CEC, together with Presidential candidate Viktor Yushchenko and State Deputies from his election headquarters. Around 23.00, a group of young people (according to different accounts – from 50 to 100 individuals), coming from Kutuzov Street and Druzhba Narodiv Avenue, strode up to the people standing near the CEC, on Lesya Ukrainka Square. Conflict arose between the two groups which lasted less than a minute, but left 8 people with bodily injuries. The Department for Contact with the Public of the Ministry of Internal Affairs (MIA) stated that criminal cases in connection with this incident had been launched by detective units of the Central Department of the MIA of Ukraine in Kyiv and offices of the Prosecutor. The State Deputies said that identity cards of law enforcement bodies had been found on the assailants caught.
A slightly different situation arose in Chernihiv on 26 November 2004 where, during a picket of the Chernihiv City Council, both police officers and those taking part in the meeting were beaten up. Encouraged by State Deputy Mikola Rudkovsky, a loosely-controlled crowd attempted to storm the Council building despite meeting legitimate resistance from the police officers who were guarding it. As a result of the actions of the meetings organizers, a fight broke out in which police officers used special equipment (truncheons, light and noise grenades). As a result of the illegal storming of the building, which was instigated by a State Deputy, several police officers received injuries and were taken to hospital. Despite the absolute illegality of the actions of the participants, and particularly those of the leader of the meeting, nobody was brought to justice for violating the law .
On 29 November 2004, in Luhansk, a column of about 70 Yushchenko supporters were attacked by thirty unidentified individuals, armed with baseball bats and metal bars. They began hitting those in the column and taking away mobile phones, video recorders and cameras from journalists. Four people were hospitalized as a result: Yury Motsny, Oleksandr Veliky, Yevhen Savchenko and a Canadian citizen, Silvie Rossel. A criminal case was launched under Part 2, Article 296 of the Criminal Code of Ukraine (for hooliganism). The Luhansk police did not take measures to ensure the safety of the column of Yushchenko supporters, and stood by, making no attempts to intervene. A criminal investigation is now under way, however there is no sign of its being near conclusion. The Ukrainian Helsinki Union for Human Rights has lodged a claim concerning the unlawful actions of the law enforcement officers who neglected their duty to protect public order and who, in our opinion, are not making proper efforts to investigate this crime.
The police also stood by passively when the tents of Yushchenko supporters in Donetsk were taken down on 10 December 2004.
It is also worth mentioning that not one case of direct confrontation between supporters of Yanukovych and Yushchenko taking part in mass events was recorded, even when these events took place next to each other and at the same time (as was the case in Kyiv, Kharkiv, Dnipropetrovsk and other cities).
On 28 November 2004 in Donetsk, Yanukovych supporters broke up a political rally of Yushchenko supporters. Physical force was applied against thirty people, they had eggs thrown at them and were beaten up. The law enforcement officers distanced themselves and failed to carry out their duty. Furthermore, according to some information, they even helped to break up the meeting. A number of representatives of the political opposition were forced to seek medical assistance in hospitals. Yet the police refused to accept their complaints about the assault.
2.2.5. Specific features of violations of the rights of participants of peaceful meetings presenting demands of a social nature
Mass actions with a social message were smaller in number, but passed in a much more heated atmosphere than those of a political nature. The State authorities were harsher in their reaction to such actions. Law enforcement bodies resorted to force against those participating in the actions even in those cases where the organizers had informed the local authorities in advance about the planned action and where there was no court order restricting the right to peaceful assembly or banning the action.
For example, on 15 May, the Kyiv police used force to disperse a picket of the protest action «SOS» taking place near the Verkhovna Rada of Ukraine. The participants in «SOS» – the parents of young people (in their opinion) illegally convicted – had informed the local authorities in time about their planned action and the action had not been prohibited by the court. However the picket (a few dozen older men and women) was broken up. Those taking part received injuries which were confirmed by medical institutions, yet the Pechersky District Office of the Prosecutor in Kyiv refused to launch a criminal case concerning the assault and the instances of law enforcement officers exceeding their authority.
Participants in the «SOS» action were again detained on 17 September while holding a picket near the Administration Offices of the President of Ukraine. However, no charges were brought against those detained and they only had «preventive chats. In a few hours, after the briefing of the Deputy Head of this institution, Vasyl Baziv which took place in the Administration Offices, those detained were released.
The largest number of court bans, police actions with the use of force and cases of persecution of participants occurred during the protests by students of the universities of Sumy, directed against the merger of some higher education institutions, and the appointment of State Deputy, O.Tsarenko, as Rector of the merged university. The students made no political demands and did not represent any political party or Presidential candidate.
However, on the night from 31 July to 1 August, the Sumy police detained more than 20 participants of the student protest who were staying in a tent city on Shevchenko Square. Nine of them were sentenced to one days administrative arrest under Article 185 of the Administraame=_ftn16> Minnesota Advocates for Human Rights, Domestic Violence in Ukraine, December 2000, p. 10.
 Violence against Women in Ukraine: Mainstreaming the Human Rights of Women (report prepared by The World Organization Against Torture (OMCT) for the Committee Against Torture at its 27th session, 12-23 November 2001)
 International Helsinki Federation for Human Rights, Ukraine chapter in Women 2000, International Helsinki Federation for Human Rights, 2000, p. 475.
 Women in the Labor Market of Ukraine under Transition, a legal and sociological study, KCWS, Kharkiv, Ukraine, 1999, p.96
 Committee on Economic, Social and Cultural Rights, Concluding Observations: Ukraine, U.N. Doc. E/C.12/1/Add.65, 24 September 2001, para. 10; United Nations Press Release, «Human Rights Committee Concludes Review of Report of Ukraine», 73rd Session, 16 October 2001.
 Women in the Labor Market of Ukraine under Transition, a legal and sociological study, KCWS, Kharkiv, Ukraine, 1999, p.97
 Ibid., p.98
 Violence against Women in Ukraine: Mainstreaming the Human Rights of Women (report prepared by The World Organization Against Torture (OMCT) for the Committee Against Torture at its 27th session, 12-23 November 2001)
 International Helsinki Federation for Human Rights, Ukraine chapter in Women 2000, International Helsinki Federation for Human Rights, 2000, p. 489.