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Human rights in Ukraine – 2006. XII. Some aspects of the right to protection from discrimination and inequality

   

[1]

In this section we consider the problem of discrimination on the grounds of race, skin colour, ethnic origin and language, as well as some aspects of social discrimination. Religious discrimination is addressed in the section on freedom of conscience.

Two important points should be mentioned immediately. Firstly, Ukraine’s Constitution and legislation proclaim equal rights for all.  In theory, this should make the unit before you extremely short! Unfortunately, the very lack of precise legal definition of direct and indirect discrimination, as well as the largely declarative nature of many constitutional norms, makes it actually harder to fight discrimination and to ensure prosecution of those guilty of such acts.

There have been no improvements since we described the general situation in Human Rights in Ukraine – 2004.  Legislation has not been changed and the problems identified at that time have not been resolved. The analysis, therefore, given at that time remains current.  The main change is that tension between different ethnic, language and religious groups has increased.

 

1. A brief overview

For Ukraine the following problems linked with discrimination and inequality are most typical.

1.   Equal access to education

  Quality of education is to a large extent dependent on where people live, with rural schools lagging seriously behind those in urban areas. There are also problems of access for migrants and representatives of certain ethnic groups. The worst situation with regard to education is seen in places with a large number of Roma people, primarily in the Transcarpathian region. According to information from the Roma newspaper “Romany Yag”, in the Transcarpathian region 83.7% of Roma children had received incomplete secondary education,; 14,5% – general secondary; 1,4% – a special vocational school and only 0.15% had a higher education.

2.   Non-discrimination in the school curriculum and higher education programmes

  • presentation of the role of minorities
  • programmes for teaching various subjects, for example, history

Soviet stereotypes regarding certain national minorities, ethnic and religious groups find their way into course programmes and textbooks for humanitarian subjects, first and foremost, history.

3.   Equal access to health care

Elderly people have worse access than people of working age. This is also a problem for Roma people, as well as people living in Ukraine but without Ukrainian citizenship, for example, people originally from Asia, Africa and the Caucuses.

4.   Equal rights in employment, in particular:

  • access to the labour market;
  • working conditions;
  • access to all levels of employment;
  • conditions of dismissal.

Principles of equality and non-discriminatory practice are most frequently infringed in this area.  Those affected include formerly deported people who have returned to Ukraine, as well as members of certain groups, for example people from the Caucuses, Asia and Africa, Roma and others, as well as sexual minorities.  Discrimination is also experienced on the grounds of gender and age with women having far more problems in looking for a job than men, and older people finding it harder to find work.

5.   Equal rights to ownership and housing conditions, including::

  • compensation for property;
  • access to former property (reinstatement of rights);
  • access to and quality of temporary accommodation in cases of loss, damage or occupation of property;
  • privatization of land

This problem is, perhaps, most acute for members of the formerly deported peoples. It should be pointed out that they are not in an equal position to descendants of those once deprived of their property as «kulaks»[2], who, at least in theory, have the right to get their property back in accordance with the Law “On the rehabilitation of victims of political repression”. There are grounds for speaking of inequality with distribution of land in the Crimea where a large number of Crimean Tatars cannot take part in the process of privatization.

6  Equal access to social services

  • access to social welfare and services (including for mothers and children), pensions, etc;
  • access to basic facilities such as water, electricity and plumbing;
  • equal rights to social and communal services.

The return of the families of those formerly deported has resulted in inequality with regard to living conditions and access to communal services. This problem also affects certain groups of those repressed on political grounds, but not rehabilitated. These are, for example, a large group of men convicted by Soviet courts before 1991 for refusing to do military service on religious grounds. These people do not receive compensation and benefits foreseen for those rehabilitated. The same applies to former soldiers in the Ukrainian Resistance Army (the UPA)[3] who have not to this day been rehabilitated.

Access to basic facilities – water, plumbing and heating – is considerably more limited for people in rural areas.

7.  Equality of access to economic projects, in particular, participation in development projects

This problem concerns weakened ethnic groups unable to seek the financial assistance for their social, cultural and other needs, as well as the Crimean Tatars, who, on the contrary, present justified demands for a level of financing which the government is unable to provide.

8.   Equality in issues involving citizenship, in particular, conditions for obtaining it.

One of the five conditions for receiving Ukrainian citizenship, proof that the person is not a citizen of another country, is quite often simply impossible to satisfy because of the threat to a person’s life if he or she returns for the documents required to the country where they previously lived, or because of prohibitive fees for renouncing one’s previous citizenship.

9  Equality in exercising the right to return (linked with the reinstatement of citizenship and travel documents, security, housing, employment, access to social services, reconciliation)

This problem again concerns members of deported groups who have returned to their original home.

10.   Equal treatment from law enforcement officers;

·  freedom from intimidation and the use of physical force;

·  treatment during arrest;

·  treatment while in custody

The serious overall problem of torture and ill-treatment of detainees is exacerbated when those involved are from the Caucasus, Asia and Africa or are members of certain ethnic groups such as the Roma. One also sees prejudice towards members of sexual minorities, as well as to certain vulnerable groups such as drug addicts and people living with HIV with this resulting in discriminatory behaviour towards them. Members of these groups complain that the police constantly ignore violence against them, and sometimes abet it.  As examples of discrimination one can mention the forced taking of fingerprints of certain ethnic groups (for example, the Roma) and en masse searches.

11.   Equal treatment in pre-trial detention centres and in penal institutions

  • the conditions of imprisonment;
  • treatment by the personnel in penal institutions;.

Personnel in pre-trial detention centres and penal institutions are more brutal in their treatment of immigrants from the Caucasus, Asia and Africa or towards members of certain ethnic groups such as the Roma.  Such treatment is also meted out to members of sexual minorities, as well as to certain vulnerable groups such as drug addicts and people living with HIV.

12.   Equality in exercising the right to safety and personal security

  • State protection against violence, harassment and intimidation;
  • freedom from arbitrary arrest and detention.

Immigrants from the Caucasus, Asia and Africa, members of certain ethnic groups such as the Roma, sexual minorities, drug addicts and people living with HIV are more likely to face such arbitrary arrest than others.

13.   Equality in exercising the right to freely vote and stand for electoral office, and the right to take part in government or bodies of local self-government

Representatives of the Crimean Tatars and some national minorities and ethnic groups complain that they do not have equal rights in this area, and demand the introduction of special quotas in the electoral system.

14.   Equality in exercising the right to freedom of thought, conscience and religion

In different regions of Ukraine, different branches of the Orthodox and Greek Catholic Churches feel that they do not have equal rights. There is a lot of talk about discrimination; however the issue involved is more one of property than of freedom of conscience. There are some grounds for speaking of discrimination with regard to non-traditional religions, with this inequality varying from region to region.

15.   Equality in exercising the right to freedom of expression

The ability of people living in small towns and rural areas to exercise their right to information is in marked contrast to that of people living in regional centres. There are areas in the country where there is access only to the radio, others where there is radio and the First National television channel. . Access to the Internet and the quality of communications is also greatly dependent on where a person lives. This leads to considerable inequality in exercising the right to freedom of expression.

16.   Equality of national cultures and languages

  • the use of one’s native language in public and private life;
  • learning one’s native language
  • studying in one’s native language;
  • access to cultural values.

This is an enormously important issue requiring particular attention (it is addressed here later in the section).

 

2.   Legal mechanisms for ensuring protection from discrimination and inequality

  In the modern world measures to combat racism, racial discrimination, xenophobia and related intolerance are considered priority tasks for each state.[4].  The obligation to provide protection against these ills are contained in both general human rights agreements (the International Covenants on Civil and Political Rights and on Social, Economic and Cultural Rights from 1966; the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter), as well as a huge number of special accords (the International Convention on the Elimination of All Forms of Racial Discrimination, some International Labour Organization conventions, the European Framework Convention for the Protection of National Minorities, the  European Charter for Regional or Minority Languages and others). The European Union places great emphasis on this and since 2002 has demanded that all prospective EU members introduce in domestic legislation and practice the standards set out in EU Directive 2000/43/EU on adhering to the principle “equal treatment of all regardless of their racial or ethnic origin”.

Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that the “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”

Since Ukraine is party to the Convention, the judgments issued by the European Court of Human Rights on Article 14 must be taken into consideration in Ukrainian legislation and practice. It should be pointed out that Protocol No. 12 to the Convention prohibits any kind of discrimination at all.

All of this suggests the need for substantial amendments to Ukrainian legislation and practice which at present fail to meet the requirements of international agreements. For example, the basic constitutional norm of article 24 of the Constitution on equality before the law and the prohibition of discrimination (we would note that the actual word “discrimination” is not used either in the Constitution or in legislation) does not apply to those who are in Ukraine on legal grounds but are not Ukrainian nationals.  The concept “indigenous peoples”, mentioned in Article 11 of the Constitution is nowhere developed in legislation and has thus remained undefined.

The principle of equality before the law is reflected in a general way in the laws of different fields, and norms of civil and administrative legislation. However these normative legal acts do not contain anti-discrimination norms preventing discrimination in different areas of public life such as employment, education, health care, provision of accommodation, access to public and social services, contractual relations between individuals, between individuals and legal entities, and so forth  These norms are needed also to introduce effective legal mechanisms and obligations of public bodies to protect against discrimination and to provide compensation for damages sustained.

For example, the Civil Code does not have the concept of discrimination at all. The Civil Procedure Code declares that cases shall be examined on the basis of equality before the law regardless of race, national identity, religion, education or language (Article 6). Article 248 of the Code of Administrative Offences speaks of consideration of cases being on the basis of equality before the law regardless of race, colour, political or religious convictions or ethnic origin. Article 7  of the Family Codes stipulates that members of a family cannot have privileges or face restrictions on the basis of race, colour, gender, political or religious convictions, ethnic origin, language or others factors. The same general norms are included in the Labour Code (Article 2-1); the Law “On education” (Article 3); the Law “On general secondary education” (Article 6); the Law “On pre-school education” (Article 9) and other laws. These norms, however, are not developed and remain mere declarations.  For example, the Law “On remuneration” does not contain any norm regarding equality before the law. No normative act defines and differentiates between direct and indirect discrimination. Nor do declarations about equality before the law in fact prevent discrimination in practice. The following can serve as examples.

Pursuant to Article 3 of the Law “On education”, Ukrainian citizens have the right to free education regardless of gender, race, skin colour, nationality, social and material position,  convictions, religion or other factors.  On the other hand, the admission rules of the Yaroslav Mudry [the Wise] National Law Academy envisage considerable restrictions for people wishing to receive a legal education. Education in the faculties preparing specialists for the prosecutor’s office, the Security Service [SBU], the military justice system, the Ministry of Justice, penal institutions, the Pension Fund, as well as the criminal investigation faculty is undertaken according to agreements between the Academy and those particular bodies (Item 3 of the Admission Rules). The agreements envisage written referrals of students from these bodies to the Academy. This effectively means that a student has to work in the relevant structure and it would be different to expect that the law enforcement agencies will be renewed, quite the contrary, they are likely to become more conservative.  In our view, the Rules introduce direct discrimination and violate Article 3 of the Law “On education”.

The Law “On national minorities” needs amendments, and there are, in fact, some draft laws designed at adding such amendments.  The definition of national minorities as groups “of Ukrainian citizens who are not Ukrainian by nationality but share a sense of national identity and affinity” (Article 3 of the present law) is inadequate, and this failing is not unfortunately overcome in any of the draft laws. In the first place, “Ukrainians by nationality” are placed in ethnic opposition to those who “feel a sense of national identity”.  Secondly, the present contradiction with the content of Article 11 on the right to freely choose ones nationality is retained. In the definition of national minorities, it would be better to stress the subjective, rather than the objective character of a person’s identification of him or herself as member of a specific national minority. It would be desirable to formulate the definition of national minorities as groups of Ukrainian citizens who do not see themselves as being ethnic Ukrainians and evince another ethnic identification and affinity among themselves. It would be wise to also strengthen the guarantees of freedom of choice of nationality with the norm: “The State does not interfere in the issue of ethnic identification of Ukrainian citizens”.

One of the shortcomings of the current law is the lack of conceptual underpinning with regard to protecting the rights of national minorities. We have in mind the lack of right to exist and the lack of definition of national and cultural autonomy through which the identity of the minority is affirmed. There is also no procedure for creating such autonomy. Yet it is national and cultural autonomy in its various forms which will promote the exercising of the rights of national minorities. It is worth mentioning the norms of the former draft law of this Law which were excluded back in 1992.  These were on creating a national administrative – territorial unit and on the competence of Councils of National Deputies for ensuring that national minorities participate in governance of governmental and civic matters, free use of ones national language, the creation of conditions for the development of national culture, traditions and everyday life, and that national pre-school and educational institutions are created, etc.

Article 18 of the present law indirectly prohibits direct and indirect discrimination on grounds of nationality, yet there is once again no definition of what constitutes direct or indirect discrimination. This needs to be rectified, and the range of types of discrimination which are clearly prohibited must be expanded to cover discrimination on the grounds of race, colour of skin, language and religion. The law’s force should also be extended to apply to non-nationals.  Another change needed is legislative resolution of the issue of electoral representation of national minorities, probably through the use of quotas or minimum numbers of representatives for particular groups.  This could be added to the Law “On national minorities” or through the relevant provisions in electoral legislation. It would, we believe, be desirable to pass a new electoral law for the Crimea which takes into account the complex inter-ethnic relations in this region of the country.

The lack of clear and precise classification of certain behaviour as discrimination leads to impunity with discrimination virtually going unpunished in Ukraine, this leading in turn to further discrimination. The overwhelming majority of normative legal acts contain the same fixed phase “Persons guilty of infringing legislation bear civil, administrative or criminal liability in accordance with Ukrainian legislation”. Yet neither civil liability nor administrative liability for discrimination is anywhere defined. With regard to criminal liability, this is applied only to individuals. If administrative liability is introduced, this will also apply exclusively to individuals. This means that members of minorities are virtually not protected from discrimination by legal entities.

Criminal legislation only touches on discrimination in Article 161 of the Criminal Code which punishes for deliberate actions aimed at inciting ethnic, racial or religious enmity and hatred, at denigrating a person’s ethnic honour and dignity or causing offence with regard to religious beliefs.  This article needs to be amended. It firstly needs to be extended to cover all individuals, not only Ukrainian nationals. Secondly, defence of honour and dignity must include additional grounds as well as nationality and religion, for example, race, colour of skin, ethnic origin and language. Furthermore, Article 161 needs to clearly define acts of a racist or xenophobic nature as crimes.

The main reason why Article 161 is virtually not applied is the need to prove intent. Over recent years not one criminal prosecution under Article 161 has resulted in a court conviction. As the well-known specialist in this category of court cases and bar lawyer Viacheslav Yakubenko[5]:explains:

“From time to time, in cases which receive a lot of public attention, criminal investigations are initiated under this Article, mainly where there is pressure placed, either from the public or from National Deputies. However it is virtually impossible to get anybody actually convicted of this crime.  At the subjective level, the crime involves direct intent, with the particular aim of inciting ethnic enmity in the country or in a specific region, of denigrating the honour and dignity of representatives of particular ethnic groups. What this means is that in court the author of the provocative article must state that he or she intended to incite ethnic enmity.  Furthermore, as a general rule, admission of guilt by the accused cannot be the sole proof in a criminal case.  That is, there needs to be something added, for example, a note in the accused person’s own handwriting with content like: “Chief, your task has been carried out, and a massacre provoked in the “Cotton Club”.  It is thus clear that the criminal case option has no chance of success”.

  The wording of Article 161 needs therefore to be changed so that it can begin to work properly.

The range of criminally liable offences must also be extended. According to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination offences punishable by law include “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof”. Article 20 of the International Convention on Civil and Political Rights states that: “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”  Thus to ensure that Ukrainian legislation complies with its international commitments, the relevant elements of the crime must be added to the Criminal Code.

One of the mechanisms which international institutions recommend is the creation of a special anti-discrimination government body. This demand is contained in Directive 2000/43/EU, in the Action Plan for implementing the Declaration on the Liquidation of All Forms of Racial Discrimination passed by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, documents of the European Commission against Racism and Intolerance, etc. Summarizing the demands of various institutions, a special anti-discrimination structure should carry out the following functions:

consider allegations of discrimination; carry out independent investigations into cases of discrimination in various areas of public life;

help victims of discrimination by providing consultations, access to justice, help in lodging civil suits and representation in the court;

prepare and submit draft laws aimed at protecting against and preventing discrimination;

carry out monitoring of legislation and practice, judicial and administrative in the context of countering xenophobia and discrimination;

prepare and publish independent reports on issues related to combating discrimination and the implementation of special measures aimed at preventing discrimination;

inform the public and public authorities about anti-discrimination practice existing in the world;

encourage nongovernmental organizations to become involved in countering discrimination and inequality.

  We believe that such a structure in Ukraine should be provided by a special Ombudsperson on Minority Rights who would head the relevant department within the Secretariat of the Human Rights Ombudsperson. However in order to achieve this, the Law on the Human Rights Ombudsperson needs to be changed.

To sum up, it would be desirable to prepare and pass a base anti-discrimination law containing all the necessary definitions, a list of grounds where discrimination is prohibited and a mechanism to protect people against them, increasing the responsibility of the government for countering discrimination and introducing a special anti-corruption body.

 

3.   Xenophobia in Ukraine

In our opinion, the level of xenophobia in Ukraine remains relatively low and is no higher than in other post-totalitarian countries. It is in fact lower than in Bulgaria, Romania, Poland, Hungary, the Czech Republic, Slovakia and the Baltic States.  It is considerably lower than in Russia.

It must however be noted that there has been a rise in xenophobic incidents aimed at immigrants from the Caucasus, Asia and Africa, the Roma, Crimean Tatars, Russians and Jews. These incidents have sometimes involved violence, bodily injury or even death.  We have witnessed acts of vandalism against Ukrainian, Russian, Crimean Tatar and Jewish sacred places and symbols; and sometimes against those other national minorities and ethnic groups. We can cite the following examples from January to April 2007.[6].

1.   27 April 2007 – desecration of a Monument in Khmelnytsky marking the graves of eight thousand Jews murdered by the Nazis during the Second World War. The memorial plaque was removed and smashed.

2.  22 April 2007 – in Kyiv a swastika was daubed over the temporary Armenian Chapel on Podil and its lock damaged. The police call this a conflict between local residents who don’t want a church built on the square and the Armenian community. A similar attack took place in 2005 on an Armenian Cathedral in Lviv.

3.  12 April 2007 –  around seventy gravestones were vandalized and three destroyed at the old Jewish Cemetery in Chernivtsi 

4.  During the early hours of 18 February 2007 in three districts of Odessa several hundred graves at the Jewish Cemetery were desecrated, as well as two Monuments to the Victims of the Holocaust and a memorial plaque on the home of a Jewish writer. Swastikas were daubed, as well as an offensive message about the Holocaust. At the beginning of March, the police informed that three suspects had been detained under Article 297 of the Criminal Code “Vandalism”. Yet observers believe that actions on such a major scale requirement several groups of a few dozen people.

5.   17 February 2007 – in Kyiv over forty gravestones at the Lukyanvisky Military Cemetery were damaged or smashed, and the plaque on the Menora Monument at Babi Yar was smashed. On 20 February two suspects were detained who, according to press reports, confessed to committing the acts for anti-Semitic reasons. Since there were no crosses on the graves at the Military Cemetery, they had decided the people buried there were Jewish.

6.  9 January 2007 – in Kharkiv, on a building which was once a synagogue, the memorial plaque to Victims of the Holocaust was smashed and two swastikas painted.

We believe that the reaction of the authorities to these xenophobic incidents was not adequate and that there is a need to develop and implement special measures aimed at preventing such xenophobic behaviour. These measures need to be drawn up bearing in mind specific local and regional features. Both the government and the public need to adopt a much more active and uncompromising position with regard to those who incite enmity.

In the following section, we consider the specific features of xenophobia with regard to particular ethnic and social groups – the Roma, immigrants from Africa, Asia and the Caucuses, and Jews. We do not give special attention to the position of the Crimean Tatars since that was discussed in depth in Human Rights in Ukraine – 2004 and there have been no significant changes since then.

 

The Roma people

According to the 1989 census, the number of Roma people comprised 47,900, with 12,131 living in the Transcarpathian region. However, the findings of special research carried out by the Uzhhorod Regional Council suggest that the number of Roma people in the Transcarpathian region is in excess of 20,000, that is, 1.6% of the population of the region. The results of the 2001 census were as follows: 47 600 indicated their Romany ethnic origin, 14,000 of whom lived in the Transcarpathian region. The next largest group is in the Odessa region where, according to the census of December 2001, there are more than 4,000 Roma people According to data from the civic organization «The Romany Yag», the number of Roma people in the Transcarpathian region is around 50,000, and throughout the country – from 200 to 300 thousand.  According to the Head of Romany Yag, Adam Aladar, the main reason for the divergence between the results of the census and the real number of Roma people is that people do not want to identify themselves as Roma because they will then have far more difficulty finding work and will experience problems from public officials and law enforcement officers.

Attitudes within society to the Roma remain negative, and sociological surveys suggest that prejudice against the Roma is more widespread than against people from other national minorities. Studies into national tolerance applying the Bogardus scale[7], which have been carried out every year since 1994 by the Institute of Sociology, show that the level of intolerance has throughout these years registered more than 5 on this scale and has been gradually increasing. The results suggest that in the mass perception, the Roma are not considered permanent residents of Ukraine

The Roma experience the highest degree of intolerance and suffer greatly from social discrimination. The level of unemployment among the Roma is, on average, the highest, their living conditions are worse than those of other ethnic groups. They experience more difficulty with access to education, medical services and the judicial system. School attendance figures for Roma children remain low.  According to Roma rights organizations, the greatest number of complaints they receive relate to allegations of arbitrary treatment from the law enforcement agencies. Most Roma people have little education, or have never studied anywhere. They are extremely intimidated and frightened to complain. Therefore, feeling total impunity, law enforcement officers force them to admit to unsolved crimes. In areas with a large number of Roma, the police use their own specific “prophylactic form of fighting crime”. Early in the morning, a group of police officers arrives at the Roma camp, shoves all the men into a bus and takes them to the department of the Ministry of Internal Affairs. They’re held there for 3-4 hours, then they take fingerprints and with no explanations release them. Civic organizations are demanding that an end be put to this behaviour which is illegal, yet takes place regularly. The following letter was sent to various government bodies by the Head of the Uzhhorod organization Romany Yag and the Head of the All-Ukrainian Roma Rights Association “Chachipe” Adam Aladar.

 

To the Minister of Internal Affairs Y. Lutsenko

Copies to:

The European Roman Rights Centre (Budapest)

The Human Rights Ombudsperson N. Karpachova

The Verkhovna Rada Profile Committee H. Udovenko

The Head of the Transcarpathian Regional MIA Department I. Rakhivsky

Dear …,

On behalf of the Uzhhorod Roma community I am for the second time this year compelled to approach you asking why there is continuing violence directed against the Roma people.

In the morning of 21.01.2005 some Roma people came to our office. They said that the day before, on 20 January, around 6 o’clock in the morning, police officers in masks burst in to some Roma flats on Pohranichna, Telman and Hranitna St.  They used brute force and without any explanation forced the people there to get into a bus and go with them to the Uzhhorod Police Station. When asked to explain what was going on, some police officers began inflicting blows on the Roman. As a result of this unlawful behaviour, some of the Roma sustained bodily injuries, and clothing and household items were also damaged.

On arrival at the Uzhhorod Police Station, the Roma had their fingerprints taken, were videoed and photographed. During this procedure no explanations were given nor any documents for them to sign.

According to the Law “On the Police”, the police are allowed “to take photographs, audio recordings, film and video recordings or take fingerprints of people, however only of those who:

·  have been detained on suspicion of having committed a crime, or for vagrancy;

·  are accused of a crime;

·  have been remanded in custody;

·  have been placed under administrative arrest.

There are thus only four grounds for taking fingerprints. Furthermore, each has its own procedural formalities (the decision of an investigator, a protocol, etc). The same grounds are set out in Item 1.5 of the Instructions “On the procedure for the functioning of the fingerprint register of the MIA Expert Service”, passed by MIA Order on 11.03.2001. Yet not one of the Roma had been “detained on suspicion of having committed a crime”, “remanded in custody” or “accused of a crime”.  The police behaviour with regard to the Roma minority was therefore unlawful and no “operational requirements” can justify it.

Similar instances took place in the morning of 29 September this year when police used brute force against 36 Roma people from Telman St. in Uzzhorod. They got them up at 6 in the morning and took them in a police vehicle to a city police station.  It is also disturbing that the police demanded from 10 to 15 UAH from each Roma as payment for petrol. Those Roma who had money on them paid it  directly to the police station, otherwise the camp head paid for them.

A similar flagrant case was seen in the early hours of 20 October this year in the village of Velyka Dobron in the Uzhhorod district when 3 police officers beat Roma from that camp. We have received statements from the latter in defence of their honour and dignity.

The last of such cases took place during the early hours of 26 October this year and was once again directed against Roma people from the Radanka and Pirogov St micro-districts. Armed officers from Internal Affairs agencies burst into Roma flats, dragged the people up and pushing them with their rifles shoved them into cars which took them away and returned to collect more people.

We previously made a statement to the Head of the Transcarpathian Regional MIA Department Police Colonel I.I. Poroshkovsky with regard to such treatment of the Roma of the Transcarpathian region being unacceptable. Material regarding incidents of abuses committed by law enforcement officers against Roma was published in the national bi-weekly newspaper “Romany Yag” from 27 January 2005 and 26 October 2005. A roundtable was also held, attended by the Deputy Head of the Transcarpathian Regional MIA Department Mykhailo Turyanyshch, the Head of the Transcarpathian Regional Criminal Investigation Department Volodymyr Shelepets and the Programme Coordinator  for “Roma Rights in Ukraine and Access to Justice” Ishtvana Fenveshi from the European Roma Rights Centre (ERRC) in Budapest. The roundtable passed a resolution with proposals for improving the situation with Roma rights.  Since then the management of the Department has changed several times, and after each new appointment, such “going over” in the camps has continued.

Given the above, I would strongly ask you to intervene urgently in this situation in order to prevent rights abuse with regard to citizens of Roma nationality, as well as to ascertain the reasons for so-called “going over” of Roma camps by police officers.

Yours sincerely,

Adam Aladar

Head of the All-Ukrainian Roma Rights Association “Chachipe”

26.10.2005.

As a result of this letter a special session of the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-ethnic Relations was held focusing on the situation with Roma rights. The Committee adopted recommendations for improving the situation and sent these to public authorities. Ministry of Internal Affairs representatives promised that the practice of mass compulsory fingerprint taking would be stopped. Unfortunately, however, such cases are still continuing to occur.

It is not only public officials and law enforcement officers who become implicated in discrimination against the Roma, but also many media outlets. The headlines and content of articles like “Gypsy brigade into dodgy business” or “Villagers in the Cherkasy region suffer from the carousals of Gipsy newcomers” are not subjected to criticism. Where a person suspected of having committed a crime is from the Roma minority, both the police and the media emphasize the link with “gypsies”.  An article, for example, in a Khmelnytsky newspaper[8] begins with the headline “Four gypsy woman swindlers detained in the Khmelnysky region”. It opens with the statement that during 2007 115 cases of swindling had been registered with “a large percentage committed by gypsies”, and then describes the crimes in detail, with “gypsies” presented as the perpetrators.  Presumably the journalist did not feel that the presumption of innocence applied to certain minorities.

We could cite a number of examples of direct and indirect discrimination, as well as acts of coercion directed against Roma people. They are the most discriminated against ethnic group in the country. In our opinion, a government programme is needed to improve the situation and address issues linked with all aspects of Roma life, in particular education and health care to which the Roma people do not have normal access.

 

Discrimination against immigrants from the Caucuses, Asia and Africa

 

We believe that the status of these groups should be considered in the context of racial discrimination. Members of these groups cannot leave the place where they live without documents since they risk being detained by the police to ascertain their identity. The police often stop people with a darker skin and check their documents, while such checks on people of European origin are rare.  Although police officers resorting to acts of coercion have faced disciplinary proceedings where these cases were brought to the attention of the management, such behaviour remains common. Members of these ethnic groups are the first to be suspected where a crime has been committed, and the police and penal institution personnel are more brutal towards them.  The research mentioned above by the Institute of Sociology of the Academy of Sciences during the 1990s found that the level of intolerance in the country exceeded 5 on the Bogardus Scale. This would suggest that these groups are also not seen as being permanent members of Ukrainian society.

It should be noted that in some circumstances law enforcement personnel collect information about whether a person belongs to a specific ethnic or immigrant group. They gather, for example, operational data regarding crimes committed by certain minorities. This data contains detailed statistics regarding criminal cases involving Crimean Tatars, Roma, and immigrants from the Caucuses, Asia and Africa in different regions of the country. This activity has no legal justification and is not based on voluntary identification. The gathering of personal data regarding whether a person belongs to certain national minorities without their consent and in the absence of legal guarantees is a flagrant violation of the right to privacy which is guaranteed by both the Constitution and international standards.

There has been an increase in the number of media reports of racially motivated violence against people of Asian or African origin, or from the Caucuses. At the same time law enforcement agencies have constantly ignored likely racial motives and classified them as ordinary hooliganism. The following are typical.[9].

1. On 14 March (according to other information – 14 April 2007) in the centre of Kyiv, a group of young people attacked an adviser to the Egyptian Embassy in Kyiv, Khalepa Nader, and inflicted injuries.  The embassy confirmed this information, as well as the fact that an official note of protest had been sent to the Ukrainian Ministry of Internal Affairs.  The Ministry of Foreign Affairs and the MIA denied knowing anything about this. International press agencies spoke of the assailants as “neo-Nazis”.

2. On16 February 2007 in Kyiv, according to the newspaper “Komersant – Ukraine”, a Georgian national Moris Yugashvili was murdered. According to the press report, the dead man’s brother said that Mr Yugashvili had been set upon by assailants who looked like skinheads. The police however say that the death was the result of an everyday dispute.

3. Around 3 February 2007, in Simferopol, a female medical student from India was attacked and lost consciousness as a result of her beating. The incident was mentioned in an article from the Crimean press as just one of the many attacks on foreign students.

4. During the evening of 12 January 2007, on Kyiv’s Khreschatyk St, a group of around 20 young people attacked three Iranians, at least one of whom was a student of the Glier Kyiv State Higher Music School. Chanting national and racist slogans, they inflicted bodily injuries. At least one of the victims had to be treated in hospital.

5. On 2 December 2006 on Sophia Square in Kyiv, members of the UMAII [the “Ukrainian Movement against Illegal Immigration”] held a rally calling for the release of one of their number who had been detained on suspicion of involvement in the murder in Kyiv of a Nigerian national on 25 October, as well as against the presence in Ukraine of migrants from other countries. A day earlier, members of the same organization had handed out leaflets inciting racial enmity outside the UNIAN press agency where a press conference was being given by members of the Nigerian community.

6. On 25 October 2006, near the metro station “Poznyaky” in Kyiv, a Nigerian Hodnoys Myevi was fatally stabbed. The assailants, according to witnesses, chanted racist slogans. The Kyiv Prosecutor’s Office has charged one of those detained under Article 115 (Murder), while two others have been charged under Article 161 which has been applied for the first time in a case involving murder. As of the end of May 2007 the trial had not yet begun.

7. In Kyiv, on 26 February 2005, a group of neo-Nazi skinheads attacked Robert Simmons, an Afro-American employee of the US Embassy. His white companion was not touched. The US Embassy registered an official protest.  

The author of this section personally investigated the complaints made by foreign students in Kharkiv. They spoke of insults, threats and being beaten up and said that they felt under real psychological pressure, and were too afraid to go outside in the evenings. The protest actions which they describe – marches by skinheads at the weekends around hostels in Kharkiv where foreign students live; marches in the late evening with candles and torches, supposedly by students aggrieved that foreign students received better treatment, chanting “Ukraine for Ukrainians” and other aggressive slogans, with these marches ending in all “non-Russians” they can find being beaten up) bear the hallmarks of actions inspired from outside. It is characteristic that these slogans are chanted in Russian. One has the impression that they have been specially organized and paid for. It is difficult to imagine that Kharkiv students would voluntarily gather in the late evenings at weekends for such marches.  

 

Jews

According to the census of 1989, there were 486 300 Jews in Ukraine. During the 90s,

this figure decreased significantly; according to the last census, there are now 103 591.

Traditional everyday anti-Semitism exists in Ukraine, as in many other countries, but its manifestations, in our opinion, are not as menacing, as some Jewish organizations assert.  Jewish people are widely represented among the political, business and cultural elite.  Of all national minorities in Ukraine, they have perhaps best succeeded in using the new opportunities which have presented themselves in today’s Ukraine.  There are a large number of Jewish educational and cultural institutions, schools, theatres, publications, etc.  There are therefore no grounds for talking of discrimination against Jews. At the same time, the number of reports of anti-Semitic behaviour in 2005 and 2006 rose significantly, accompanied by a serious increase in the number of anti-Semitic publications in the press.  This is reflected by monitoring carried out by the Congress of National Communities of Ukraine[10].  The increase in anti-Semitism can be clearly seen by comparing the number of anti-Semitic publications over 10 years, beginning in 1997 which saw the lowest number in all the years of independence.

 

  The number of anti-Semitic publications from 1997 – 2006

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

143

265

250

161

161

149

258

379

661

676

 

The table shows that the number of anti-Semitic publications has risen over the last 10 years by more than 4.5 times.

An analysis of periodical publications which print material of an anti-Semitic nature shows that the increase in the number of publications can be attributed to publications which are owned or sponsored by the Inter-regional Academy for Personnel Management [MAUP]. These are the journal “Personnel”; the newspapers “Personnel Plus”, “For a Free Ukraine Plus”, “Ukrainian Newspaper Plus” and “Information Bulletin”.  This is graphically demonstrated by a breakdown of anti-Semitic publications for 2006.

 

 

  Publication

 

Number of issues in the year

Number of anti-Semitic publications in the year

“Personnel Plus”

52

335

“Personnel”

12

47

“For a Free Ukraine Plus”

52

184

“Ukrainian Newspaper Plus”

47

82

“Information Bulletin”

46

20

Others

 

8

 

Total  676

 

 

A large amount of material in MAUP-controlled publications is full of aggressive and xenophobic sentiments towards Jews, Russians, migrants both from immediate neighbours and other countries. One can gauge the aggressive nature simply by looking at the titles of articles (taken from the newspaper “Personnel Plus”): “Against the doctrine of Jewish racism”; “Ritual killing by order of the children of Zion”; “Victory of democrats is a victory of sexual minorities and Jews”; “The Chosen People against Ukrainians”, and so forth.

MAUP periodic issues are published with large print runs. The newspaper “Personnel Plus” is in the first ten newspapers in Ukraine in terms of the size of its print run. A part of this is distributed free of charge among students of MAUP branches. At present, in addition to the publications already listed, MAUP puts out and distributes the journal “Book Club”, the newspapers “Ukrainian leader” and “For a Ukrainian Ukraine”. In 2007 these were included in the Catalogue of Periodical Publications and will be distributed by post around the entire country. MAUP also publishes a considerable number of books and brochures of an anti-Semitic nature, with a whole network of bookshops created for disseminating these.

We thus see in Ukraine that instead of separate and as a rule marginal newspapers with small print runs publishing anti-Semitic articles, a powerful propaganda centre has emerged which is promoting in a consistent and deliberate manner anti-Semitism. There is a whole circle of propagandists of anti-Semitism around MAUP; links are created with foreign anti-Semitic publications and there is active exchange of material on anti-Semitic subjects. MAUP is actively engaged in international activities aimed at creating and maintaining the reputation of being one of the world centres for fighting Zionism.  Each year MAUP hosts international “academic conferences”, symposia, forums with an anti-Semitic and anti-Zionist bent. On 24 November 2006, for example, it held an “International Forum of Holodomor [the Famine of 1932-1933] in Ukraine: Punitive bodies of the Jewish-Bolshevik regime”. On 3 June there was a conference “Dialogue of civilizations: Zionism – the greatest threat for contemporary civilization”.  The following is a typical excerpt from the latter event.  “Zionists have always complained that they’re oppressed. But I personally have never heard an answer as to why Hitler killed them (applause). All Jews should move to their Jewish [the word used is offensive in Ukrainian – translator] country Israel!” (enthusiastic applause).

The anti-Semitism of MAUP’s leaders came pouring out during the 2006 parliamentary elections in which the Ukrainian Conservative Party [UCP] took part. This party was headed by MAUP rector Georgy Shchokin.  Up until the emergence of UCP, anti-Semitism was a secondary factor in Ukrainian politics, which was observed among marginal extreme right-wing political groups. UCP openly and assertively declared itself as an unyielding fighter on principle against Zionism, a Jewish State, Jewish organizations and Jews in general. It received, however, minimal support from Ukrainians, gaining a mere 0.09% of the votes.

The increase in propaganda of anti-Semitism has contributed to a rise in anti-Semitic actions. In 2006 the Committee of National Communities of Ukraine registered 5 cases of violence against Jews and16 acts of vandalism. The following are some examples.

1. On 16 December 2006 on Podil in Kyiv, near the Synagogue, around ten young men, chanting anti-Semitic slogans, assaulted three Jewish believers in traditional clothes. Two of the believers managed to escape, however the third was beaten up, as was a passer-by who attempted to stop the attack.

2. On 23 June 2006 in Kirovohrad a local synagogue was pelted with stones. According to members of the Jewish community, this was the fifth such attack since the beginning of the year.

3. On 20 April 2006 in Dnipropetrovsk a young Jewish worshipper Kham Hobriv was set upon by a group of young people as he left the Synagogue. He received knife wounds and a serious head injury. A few days before this, four Jewish teenagers had been attacked on the central square in Dnipropetrovsk by a group of neo-Nazis. .

4. On 11 September 2005 in Kyiv, on the grounds of the National “Expo-Centre Ukraine”, several adolescents assaulted two Israeli nationals, father – Rabbi Mikhael Menis and his son Mordechai. The police detained the assailants and charged two with “hooliganism”.

5. On 28 August 2005 in Kyiv, two students from a Jewish educational institution were attacked by a group of neo-Nazi skinheads who brutally beat up their victims, chanting anti-Semitic slogans. One of the victims, Mordechai Molozhenov, was beaten into a coma. Three of those detained were charged with “hooliganism”..

The authorities have on many occasions demonstrated their negative attitude towards MAUP, however in practice very little has been done to deal with it. It is worth mentioning that the sharply negative attitude shown by President Yushchenko to Jew-phobia and its manifestations has undoubtedly had an impact on some national – patriotic political forces which have stopped their anti-Semitic rhetoric and publications. However on the whole the Ukrainian authorities have proved helpless in their efforts to stop anti-Semitic utterances in MAUP publications. A number of court suits filed by Jewish organizations over overtly defamatory statements by authors in MAUP newspapers against Jews have ended in the termination of the case for want of the elements of the crime. At the same time MAUP counters with civil suits against Jewish organizations and public authorities and sometimes wins. The latest lawsuit brought by MAUP at the end of 2006 was against President Yushchenko’s Press Service as individuals for “insulting, defamatory and untruthful information about MAUP intolerance towards Jews”.

In its attitude to anti-Semites the authorities are inconsistent. On the one hand, on the eve of Jewish holy days and anniversaries, statements are made condemning anti-Semitism. On the other – on key dates for anti-Semites, they are awarded State honours. For example, the Head of the Editorial Council of the newspaper “Silski visti” [“Rural news”] Ivan Spodarenko, who has repeatedly published anti-Semitic articles in his newspaper, was honoured with the title of Hero of Ukraine. Another notorious anti-Semite Vasyl Yaremenko received a prestigious literary award, and the Vice-President of MAUP for publishing Yury Bondar was honoured “For his contribution to the development of the information sphere”.

Such actions by the authorities render meaningless all attempts by the public to fight xenophobia and anti-Semitism, demonstrating, regardless of their declarations, a tolerant attitude to manifestations of these evils based on motives of political expediency.

One can say in general that the Ukrainian authorities are not able to firmly react against anti-Semites with this resulting in even more determined propaganda of anti-Semitism.

 

4. The language issue: the Ukrainian and Russian languages in Ukraine

The legal framework regulating the co-existence of different languages, the use of languages in education, science and other spheres of public life, is the point at which ethnic and language-related problems and contradictions meet. The most heated discussions and political speculations arise specifically around language issues. Well-planned State policy in resolving these issues is the guarantee for avoiding discrimination and conflict. This is why it is so important to analyze the problems, taking into consideration specific regional and local features.

It is important to remember that in Ukraine linguistic and ethnic groups do not coincide. For a large percentage of ethnic Ukrainians, Russian is their native language. Some of them do not feel or consider themselves to be Ukrainians. A survey by the International Institute of Sociology showed that only 58.8% of the 72.6% who are ethnic Ukrainians think of themselves as Ukrainians, whereas 10.8% of ethnic Russians (20.1% of the whole population) consider themselves to be Ukrainians. Thus, every fifth Ukrainian and every second Russian see themselves as having dual nationality. 41.6% named Ukrainian as their native language. Russian is the native tongue of 43.4%. The others replied that they were bilingual. 

The same picture is given by the national census results from December 2001. 85.2% of ethnic Ukrainians said that their native language was Ukraine, and 14.9% - Russian. 95.9%, 0.2 % – another language.

We believe that these statistics are convincing evidence that the exchange of information is carried out in two languages – Ukrainian and Russian. It is desirable to support both languages, while at the same time introducing special measures for supporting Ukrainian as the State language.

Allegations of language discrimination are fairly frequent, with both Ukrainian and Russian being presented as the language discriminated against.  With regard to discrimination against the Ukrainian language, this is mainly in the Crimea and some eastern regions of the country where Ukrainians have the sense of being an ethnic minority. In our view, counterclaims of discrimination against Russian-speakers are the result of harmful administrative practice inherited from the Soviet administrative system where, for example, officials forcibly introduce higher education in Ukrainian despite a lack of lecturers able to teach in Ukrainian, of textbooks and of students who wish to study in Ukrainian. Nonetheless, they take a decision according to which teachers may only receive the highest qualification categories if they speak Ukrainian. The requirement to hold entrance exams to universities and institutes exclusively in Ukrainian also seems to us inadequate, since many of those applying do not know Ukrainian sufficiently well. In this way, they find themselves at a disadvantage to Ukrainian-speaking applicants. An opposite, yet similar, situation was seen in Soviet times when young people from Ukrainian villages could not get into higher education institutes because they did not know Russian well. This leads to fears regarding enforced «Ukrainianization» are fuelled by the impatient moves of Ukrainian-speaking Ukrainians and the incompetence of executive bodies. However, this «enforced Ukrainianization» is fairly often used by certain political groups for campaigning aimed at returning Ukraine to a new empire. These two phenomena should not be confused.

Knowledge of Ukrainian is compulsory for civil servants. Any persecution for using the Ukrainian language or for campaigning to change over entirely to this language is not to be tolerated. One must ensure at the same time that no persecution is allowed for using the Russian language. Any forcible restriction of information flow in Russian must be prohibited, as well as any discrimination when employing people on the grounds of ethnic origin.

At the same time, we cannot support demands to declare Russian a State language of Ukraine. This demand only appears democratic. It is quite possible to grant several languages State language status provided that the starting conditions are equal. Bearing in mind, however, that, as the consequence of prolonged Russification, the Russian and Ukrainian languages are not starting out equal, applying the principle of free competition here would inevitably lead to a strengthening of the position of the Russian language. Furthermore, making Russian a State language would «set in stone» the spheres of influence of each language. In conditions where people behave according to totalitarian stereotypes, this division could lead to the languages being opposed, and establish great barriers between the territories where they are used, and thus create a basis for the disintegration of the Ukrainian state.

We reject the division of languages into «of future significance» and «of no future significance» regarding each language as an invaluable creation of humanity. For this reason State protection for the historically weaker Ukrainian language is not only justified, but also necessary. It is also vital to support the free functioning of other languages which suffered from the pressure of Russification.

State policy regarding languages must, therefore, avoid extremes. On the one hand, the State should not give encouragement to citizens who do not recognize the need to study Ukrainian and who declare that any step in this direction is enforced Ukrainianization. On the other hand, it would be inadmissible to ignore the wishes of Russian-speaking citizens of Ukraine or to use coercive measures to force the use of the Ukrainian language. It is necessary to ensure the gradual inculcation of the Ukrainian language in all spheres of our life, taking into consideration the inertia of language processes.

 

5. Discrimination against sexual minorities

  According to the leaders of some nongovernmental organizations for sexual minorities – “Liga”, “Our world”, “Gay Alliance” and others, there are about a million gays and lesbians in Ukraine, and several thousand homosexual families.[11].  The community of Lesbians, Gays, Bisexuals and Transgender (LGBT) say that they experience discrimination in all spheres of social life.

According to surveys regarding discrimination carried out by the company TNS-Ukraine in January and February 2005, 14.4% mentioned sexual orientation as a potential cause of discrimination. The same percentage of respondents pointed to gender as one of the possible reasons for being discriminated against. Among younger respondents (up to 35), 21% spoke of incidents of discrimination on the basis of sexual orientation.  Taking into consideration the number of members of the LGBT community, this figure seems quite serious and suggests widespread discrimination against sexual minorities.

From January to March 2005, the regional information and human rights centre for gays and lesbians “Our World” carried out a study entitled “Discrimination against Ukrainian citizens on the basis of sexual orientation”., as part of the project “Monitoring, representing the interests and defending the rights of the LGBT community”[12].  The study constituted a survey of people of homosexual orientation, with no other demographic indicators taken into account.  330 questionnaires were received back by post with another 575 respondents giving their answers during interviews.  The study was able to cover various groups of LGBT differing by gender, age, region, place of residence and social status. 901 questionnaires were chosen for analysis).

Discrimination on the basis of sexual orientation is specific in that it depends directly on whether or not a person conceals their orientation. On the question of whether they were open about their sexual orientation, 4% said that they concealed it from all; 38.2% said that only a few bisexual or homosexual friends knew; 27.8% answered that only their family and close friends knew; only 29.3% said that they did not hide their orientation from anyway, or that a wide range of people knew. There was a direct link between a person’s openness and demonstrations of discrimination towards them. Among those who didn’t conceal their sexual orientation, 76.3% said that they had experienced discrimination in some aspect of their life. This rate gradually decreases according to the person’s level of openness (56.7% of those whose orientation was known only to close friends and some relatives; 37.8% where only a narrow circle of people themselves homosexual were aware of the person’s orientation; reaching 13% for those who told nobody about their sexual orientation). The study found that women are more open than men, and at the same time experience much less discrimination. The level of openness decreased according to age, as did accordingly the number of people feeling discriminated against.

The study showed that the greatest level of discrimination experienced by members of the LGBT community is in the area of labour relations. The question regarding work was directed at those who had been working or looking for work over the last four years. 417 questionnaires fell into this category. 326 of the respondents (78.2%) said that they had encountered rights abuse and discrimination in the labour sphere. Of these 216 (51.8%) answered that the people they worked with knew about their sexual orientation. The most typical violations named were: obstructions to being promoted - 12.9%; a prejudice attitude towards them as compared with other employees – 21.1%.  The more open people were about their sexual orientation, the more likely they were to encounter discrimination or other violations of their labour rights. 35% of those surveyed (of whom almost 80% were people whose orientation was known to others) said that they had experienced psychological pressure from colleagues. 19 people (including three women) stated that they had faced sexual harassment. Physical violence had been applied against 20 employees (including 4 women).  4 people said that they had been raped by other employees.

The second most common area of discrimination related to privacy and the right to information. 42.8% of all those surveyed had encountered some kind of infringement in this sphere. Almost a quarter (23.8%) indicated that information about their sexual orientation had been disclosed without their consent, and a further 18.7% had been threatened with disclosure of the information. 8.5% were not about to place information about a single-sex friendship, they were turned down. 28.1% stated that they found distorted and untruthful information in the media regarding people with non-traditional sexual orientation.

The largest number of cases of discrimination and prejudiced or negative treatment of people with non-traditional orientation had been at the level of inter-personal relations. . 300 people (40% of those surveyed) spoke of psychological pressure, humiliation or insults. It is important to note that some of those respondents not concealing their orientation – 43.6% (with this group making up 29.3% of the total number of respondents), or 54 respondents (including 12 women) had experienced sexual harassment. 82 people (including 7 women) had faced physical violence, while 13 men and one woman had been subjected by private individuals to sexual coercion.

The results of the study showed that every second person of those whose rights had been infringed had attempted in some way or other to defend their rights (248 people). Half of the respondents had done nothing. When asked whether they had succeeded in upholding their rights, more than a third (35.9%) said that they had not been successful. More than a third (36.5%) stated that they had managed to uphold their rights, and by themselves, without approaching the relevant bodies or institutions. A further 8.1% were able to defend their rights thanks to making such approaches. The others had either partially resolved the problem of their violated rights, or had changed their circumstances by moving, running away from their family, or other ways.

The study also found that members of the LGBT community experienced a considerable number of rights infringements in the area of family relations and cohabitation. This was linked with the fact that the issue of single-sex cohabitation is not at all regulated by legislation. On the one hand, single-sex partners where they are living together have virtually the same range of rights in connection with this as other members of a family. This applies to joint property, inheritance, etc. On the other hand, in practice, one of the partners is deprived of the right to joint property or to a part of it, inheritance rights, the right to jointly bring up the child of one of the partners, etc. The same applies to the right to adopt although Chapter 18 of the Family Code on adoption does not contain any restrictions with regard to the sexual orientation of the adoptive parent.  Nor are there any such restrictions in Chapter 19 of the Family Code which regulates the legal relations with regard to guardianship or care. Yet 23 respondents (including 2 women) stated that they had been refused protection of their property rights as part of a homosexual couple.  16 respondents (all men) had had their applications for a joint loan together with their partners turned down.  10 respondents (all men) had not been allowed to adopt children. 8 respondents had had their right of inheritance turned down, and another two (both women) had not been able to take time off to look after the child of their partner. This means that they were deprived of the rights which heterosexual couples have.

Single-sex partnerships are legally excluded from social life making their participants totally vulnerable before the law. There are no real opportunities to represent one’s partner’s interests in property, financial, medical or other relations; there is no possibility to jointly adopt and bring up children, or nor to enjoy the relevant benefits and privileges, nor is there any mechanism for protection of property or other rights and interests of each of the partners should they separate.  It is these issues, and not the recognition of single-sex marriages, that requires crucial legislative regulation and guarantees.

Nongovernmental organizations for sexual minorities approached the President, members of the Cabinet of Ministers, National Deputies and members of the All-Ukrainian Council of Churches and Religious Organizations with regard to resolving the problems of the LGBT community.[13]. They received answers from the Ministry of Foreign Affairs, the Ministry for Family, Youth and Sport, the Ministry of Justice and the Ministry of Employment and Social Policy. The responses demonstrate recognition of the problems and the will to resolve them.[14].  However the Head of the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-ethnic Relations Leonid Grach reacted unexpectedly. Mr Grach stated that in the light of his position he needed to defend human rights. As he put it:  "My colleagues and I in Parliament have to defend society from infringements upon morality and not allow the thought to enter the consciousness and souls of people of any age that the State is on the side of people spreading debauchery, propagandizing wantonness and sexual permissiveness and bringing the abomination of depravity into society. The State must protect society from evil, from violence, including such evil as homosexuality, lesbianism and the like.”   Leonid Grach considers that Ukrainians should observe the norms of moral purity “bequeathed us from old times by Orthodox ancestors”.[15].  A novel perception of human rights from the head of the parliamentary profile committee!

 

Recommendations

 

1. Draw up and pass a basic anti-discrimination law which should contain all necessary definitions, a list of prohibited grounds for discrimination, as well as mechanisms for protecting against such discrimination. It should also increase the State’s responsibility for combating discrimination and introduce a special anti-discrimination body.

2. Prepare a Draft law on amendments to the Law «On national minorities in Ukraine», and undertake an expert analysis of the Draft to ensure its compliance with OSCE, Council of Europe and European Union standards.

3 Draw up a Draft law on amendments to the Law on languages and review the Law on ratification of the European Charter on regional languages and language minorities.

4. Prepare Draft laws «On national-cultural autonomy», on amendments to the Civil Code and other laws, as well as special programmes aimed at developing the principle of non-discrimination, and allow special quotas for discriminated ethnic groups (the Roma, Crimean Tatars, Karaims, Krymchaks, etc.)..

5. Prepare a special electoral law for the Autonomous Republic of the Crimea.

6. Carry out an inventory of land in the Crimea to help resolve the problem of land allocations to representatives of formerly deported peoples.

7. Provide better definition of the elements of the crime under Article 161 of the Criminal Code; introduce norms stipulating civil and administrative liability for actions directed at discriminating against individuals and groups of society.

8. Broaden the force of anti-discrimination norms to cover foreign nationals legally abiding in Ukraine

9. Draw up and pass amendments to legislation in order to provide legislative regulation for single-sex cohabitation.

 



[1]  By Yevhen Zakharov, Co-Chair of KHPG and Head of the UHHRU Board

[2] «Kulaks» were more prosperous peasants. In the first decades of Soviet rule, they were treated as class enemies (although their wealth as such was relative, and sometimes they were simply good farmers with a little bit more than average). They were either murdered, sent to the GULAG or deported in the late 1920s and 1930s. (translator)

[3] The Ukrainian Resistance Army (UPA from the Ukrainian) was formed in 1942, mainly by Western Ukrainian nationalists. Its soldiers fought the Soviets, Nazis (and sometimes Poles) they saw as all being enemies. It went underground at the end of WWII, continuing to wage war against the Soviet powers until it was finally crushed in the 1950s. (translator)

[4] Decision of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance passed on 20 August 1993

[5] http://www.khpg.org.ua/en/index.php?id=1127287663&w=Yakubenko

[6] The examples are from an article by Maxim Butkevych: “Initiative “Without borders”: Demonstrations of Xenophobia and Racism in Ukraine”. Available at:

 http://www.khpg.org.ua/index.php?id=1179241286&w=%C1%F3%F2%EA%E5%E2%E8%F7

[7] Emory S. Bogardus. «Measuring Social Distances». Journal of Applied Sociology (1925)

[8]  http://20minut.ua/news/61594

 

[9] The examples are from an article by Maxim Butkevych: “Initiative “Without borders”: Demonstrations of Xenophobia and Racism in Ukraine”. Available at:

 http://www.khpg.org.ua/index.php?id=1179241286&w=%C1%F3%F2%EA%E5%E2%E8%F7

 

 

[10] Viacheslav Likhachov: Anti-Semitic actions and material in periodical publications in Ukraine for 2006

[11] http://www.gay.org.ua/articles/letter.htm

[12] Discrimination on the grounds of love. Report on observance of gay and lesbian rights in Ukraine – Kyiv: Nora Press, 2005..

[13] http://www.gay.org.ua/articles/letter.htm

[14] http://www.gay.org.ua/articles/reply.htm  See also http://www.khpg.org.ua/en/index.php?id=1174094707&w=Grach for more about the outrage expressed in reaction to Mr Grach’s comments (translator)

[15] http://obozrevatel.com/news/2007/2/9/155653.htm

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