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Human rights in Ukraine – 2007. 12. Some aspects of the right to protection from discrimination and the struggle against racism and xenophobia

   

[1]

In this section we consider the problem of discrimination on the grounds of race, skin colour, ethnic origin and language. Religious discrimination is addressed in the section on freedom of conscience. Particular attention is given to the significant increase in racism and xenophobia during 2007.

The situation has in no way changed for the better since the human rights organizations’ reports beginning from 2004, and the summary of the problems regarding discrimination and inequality from «Human Rights in Ukraine – 2006»[2].» remains current.  There were no changes to legislation in 2007 and none of the problems identified in earlier reports were resolved.  The analysis, therefore, and recommendations given in the subsection «Legal mechanisms for ensuring protection from discrimination and inequality»[3] regarding language issues continue to be relevant. The situation as regards sexual minorities also saw no change in2007.

We would note at the outset that there is virtually no direct, or law-generated, discrimination. There is, however indirect discrimination. The most widespread social discrimination is according to age and state of health.

In 2007 racially-motivated violence became a considerable problem, with relations between different ethnic and linguistic groups becoming more fraught. This requires analysis, development and implementation of measures of a special nature for fighting racism and xenophobia.

2. Racism and xenophobia

Up till 2005 the level of xenophobia in Ukraine was relatively low and did not exceed that in other post-totalitarian countries. It was lower than in other Central and East European countries – Bulgaria, Romania, Poland, Hungary, the Czech Republic, Slovakia and the Baltic Republics and considerably lower than in Russia. However in 2005 various informal groups of young people aimed at violence based on racism and national enmity, including «skinheads», became more active. These militant and aggressive young people who often use Nazi symbols, attacked people who didn’t look Slavonic, for example, people from Asia, Africa, the Middle East, the Caucuses and so forth. Their violence was directed against foreign students, asylum seekers, refugees, immigrants, businesspeople and tourists. Some employees of embassies and UN representative offices, as well as members of their families, were also victims.  The US and French embassies put warnings on their sites about such violence.[4].

According to information from the Congress of National Communities of Ukraine [CNCU], these attacks began in October 2006 and their number has been rising rapidly. In 2006 CNCU monitoring recorded 16 attacks, two resulting in the death of the victim; in 2007 there were already approximately 90 victims, with five of them killed; while in the first tree months of 2008 45 people suffered such attacks with 2 fatalities.[5].  CNCU experts believe that this is only the tip of the iceberg since only those cases which came to public notice with a pronounced racist nature are recorded. In response to an information request from the Kharkiv Human Rights Protection Group, the Ministry of Internal Affairs [MIA] informed that from January to April 2008, 160 crimes were committed against foreign nationals, this including 7 murders. 91 cases were solved, including 6 of the murders. According to the Deputy Minister of Eternal Affairs Mykhailo Verbensky, two murders had been racially motivated.  During this period the MIA recorded 33 crimes involving threats against the life or health of people from Asia or Africa of which 28 were solved.  The President of the African Centre in Ukraine Charles A. St. Jeboa maintains that more than one thousand people suffered during this period, mainly people from Africa, India, China, Pakistan and Iran.[6].

In Ukraine the most active and aggressive are considered to be the far-right groups from the so-called «White Power – Skinhead Spectrum», the Ukrainian branch of the worldwide extremist network «Blood and Honour», and the militarized neo-Nazi sect «World Church of the Creator Ruthenia», WCOTC). They are united by an ideology of racism and nationalism based on establishing their superiority over other races and nationalities. The most numerous groups of skinheads were seen in Kyiv, Dnipropetrovsk, Zaporizhya, Lviv, Sevastopol, Chernihiv and the Crimea.  Whereas in Russia there are tens of thousands within the skinhead movement, according to preliminary figures from the Ministry of Internal Affairs (MIA), in Ukraine there are presently no less than 500 skinheads aged from 14 to 27, in groups of between 20 and 50 people without clear structure or organization.[7].

It was in 2005 that closed festivals of neo-Nazi groups from Ukraine and Russia became regular events in Lviv and Kharkiv. .They are organized unofficially by the Ukrainian National Labour Party with overtly racist songs. The organization «Patriot of Ukraine» which in 2007 held a series of torch marches in Kyiv and Kharkiv, using xenophobic and racist slogans, regularly organizes so-called military «training» for its activists at abandoned industrial sites, in forest camps and tourist bases.  There are no less than 30 permanent websites of a neo-Nazi or nationalist nature (Radical Ukrainian Nationalism, the real patriots’ site, Nachtigal, Blood & Honour Ukraine and others.[8].

At the same time, MIA statistics show a clear trend upwards in the number of crimes against foreigners. Over the last five years the number of offences where foreign nationals suffered has doubled – from 604 in 2002 to 1178 in 2007. The large majority of crimes were committed against citizens of CIS countries (63.5%), with the number against nationals of other countries therefore 36.4%. The greatest friction is seen in the Crimea, Kyiv and the Odessa, Donetsk, Lviv and Kharkiv regions[9]. Clearly these statistics do not present the total picture of hate crimes. Not all crimes committed with respect to foreign nationals are linked to the person’s nationality, and the statistics also do not include crimes against Ukrainian citizens from different ethnic groups.

The rise in racially-motivated crime forced the authorities to react. In November 2007 the Ministry of Foreign Affairs introduced the position of Special Ambassador on Combating Racism, Xenophobia and Discrimination.  The Special Ambassador’s tasks are to work on preventing inter-ethnic and inter-faith conflict and coordinating measures and action in this area with other ministries and departments. A separate section has been created in the Security Service [SBU] on identifying and preventing action aimed at inciting ethnic or national enmity. The MIA drew up an «MIA Action Plan on countering racism for the period up till 2009».[10].  Since the beginning of 2008 special criminal investigation units for fighting racially-motivated violent crimes have been functioning in Kyiv, Odessa, Lviv and Luhansk  The first court sentences under Article 161 of the Criminal Code (violation of equality on the basis of race, ethnic origin or attitude to religion). Whereas up till 2007 only one person had been convicted under that article (the organizer of a pogrom in a Kyiv Synagogue after a football match in April 2002), in the first four months of 2008 four sentences were handed down under this article for assaults on foreigners.

On the other hand there is no information about the scale of application of Article 67 § 1.3 of the Criminal Code which envisages as an aggravating circumstance «committing a crime on the basis of racial, national or religious enmity or discord.».

Overall from 2005-2007 only seven criminal investigations were initiated under Article 161. One of the reasons is that the victims of racist attacks do not report such attacks as they don’t expect to receive real protection. Another is the unsuccessful, in our view, wording of the crime which in many cases seriously complicates proving guilt. Article 161 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, as well as direct or indirect restrictions of rights or imposition of direct or indirect privileges on the basis of race, skin colour, political, religious or other convictions, gender, ethnic or social origin, property, place of residence, or on the basis of language or other grounds».

It is firstly extremely difficult to prove intent to commit these acts, especially when dealing with publications of a xenophobic nature. In the second place, one cannot use this article to prosecute in cases which unfortunately arise quite frequently when the denigration or insult to ethnic honour and dignity is not against a specific person, but against an ethnic group or people as a whole. Criminologists are divided with respect to the possibility of applying Article 161 in such cases. For example, one theoretical-practical commentary to the Criminal Code states that «in committing a crime offending the feelings of an individual in connection with his nationality or religious convictions, the culprit plans in this way to denigrate the nation as a whole. Therefore the manifestation of only personal animosity to a representative of another nation (race) – the reluctance to establish close relations, accept the rites of worship of another religion and become friendly – does not establish the elements of the crime foreseen in Article 161.»[11].  In another commentary we read an opposite view: «denigration of ethnic honour and dignity of citizens takes place if there is deliberate offence to a specific individual in connection with their belonging to one or other nation.»[12].

In our view, it is not possible to apply Article 161 to an ethnic group or nation since the article refers to «deliberate actions aimed at …  denigrating ethnic honour and dignity, or causing offence» specifically to individual citizens. .Furthermore, the very title is about citizens, and the article is in Section V of the Special Part of the Criminal Code «Crimes against the electoral, labour and other personal human rights and civil liberties».  The present version of the Code does not allow at all for attacks on the honour and dignity of ethnic groups, races, peoples and ethnic groups. Articles therefore need to be added to the Code with the corresponding elements of crimes, not forgetting however the need for proportionality with respect to intrusion into freedom of expression.

The fact that foreign nationals are not sure that complaints about unlawful actions against them will be thoroughly examined and recognized is linked with discriminatory attitudes towards them by law enforcement officers.  There is, for example, the problem of ethnic profiling, when police officers check identification papers of foreigners and Ukrainian citizens with a non-Slavonic appearance. This is what a Kharkiv resident, Viacheslav Manukian, wrote in a statement to the Kharkiv Human Rights Protection Group:

I am compelled to turn to you over the fact that for a long time the Kharkiv police have been flagrantly violating my human and civil rights as set down in the Constitution, laws, as well as in international legal documents on human rights.

I am regularly stopped for no reason by police officers in city streets and particularly in the metro. Since there are no grounds, reasons or causes for systematically «checking my identity», I have every justification for assuming that this behaviour is linked to my ethnic origin and my appearance. Such checks occur every month, sometimes twice or even three times a month. They have not once ended in anything but a formal excuse that some measures were being carried out. In response to one of my complaints I was told directly in writing that I had been stopped because my characteristic appearance elicits the need in police officers to check the «legality of my being on Ukrainian territory and my citizenship». Despite my numerous complaints at this racist behaviour by the police, I continue to be stopped in the metro and on the street.

Such checks, based on nothing but racial prejudice and possibly on illegal orders and instructions are, as far as I have observed, inflicted specifically on people of «foreign appearance», although the Ukrainian nation includes people of all nationalities.

I would ask you to pay attention to the practice of ethnic profiling – unlawful checking of documents and stopping people based solely on ethnic grounds.

Mr Manukian filed a civil law suit against the law enforcement agencies in the Kharkiv District Administrative Court. At first instance level the claim was rejected. The appeal proceedings are continuing.

Foreign nationals have also contacted KHPG by telephone complaining that the police regularly demand money, «gifts», etc, from them. These complaints have been anonymous since the victims refused to make the necessary official statements for fear of reprisals. KHPG carried out an anonymous questionnaire among foreign students studying in Kharkiv, the results of which were staggering. Out of 68 people asked, only two had never been stopped by police officers, and 49 had been detained even when they had documents with them. 34 foreign students said that they had only freed themselves from the «close attention» of the police officers by paying money (different amounts were named, from 20 UAH to 60 dollars), buying beer or coffer, «giving them» certain items, etc.  That means that 50% of the respondents attested to police officers having behaved in a corrupt fashion towards them. These are shocking figures which the law enforcement agencies should certainly think about and take appropriate measures to stop such shameful practice.

It is typical that the vast majority of those surveyed had not even approached any authorities for help since they believed that they wouldn’t get any. And they have all grounds for thinking so since in the case of the 20 students who did complain about being unlawfully detained to their embassy, to the dean of their institute or to the police indeed received no assistance.[13]

  If discrimination against the Roma, immigrants from the Caucuses, Asia and Africa increased significantly in 2007, anti-Semitism actually decreased, and this was despite the political crisis and parliamentary elections which have always marked rises in anti-Semitism.  It should be noted that there were also attempts by some political technologists during the September early elections to play the anti-Semitism card, using Jewish roots in attempts to discredit some leaders in the election campaign, for example, Yulia Tymoshenko and Yury Lutsenko. However circulation of several pieces of anti-Semitic material did not influence the electorate’s choice. And the single political force which took part in the elections with a xenophobic principle of ethnic proportional representation in its programme, the all-Ukrainian association «Svoboda» received 0.75% of the overall number of votes cast.

The reasons for the decrease in public demonstrations of anti-Semitism in 2007 are, in our view, linked with the gradual reduction in the anti-Semitic activities of the Inter-regional Academy of Personnel Management (MAUP). This gives grounds for describing the character of public manifestations of anti-Semitism in Ukraine as artificial.

Over recent years MAUP was the single prominent centre for the publication of anti-Semitic material.  Whereas in 2006 676 anti-Semitic publications were recorded, in 2007 the figure was 542 with the drop become sharper: 183 publications in the first quarter; 137 in the second; 147 in the third (the period of the election campaign) and 75 in the fourth. This reduction continued through the first months of 2007. One has the impression that criticism of MAUP by Ukrainian society and the government (activation of opposition to anti-Semitism by the government became more noticeable from autumn 2007), attempts by the Ministry of Education to strip MAUP of its licence, the closing of several branches have forced MAUP to stem their campaign of anti-Semitism.

It should also be noted that the rise in the index of social distance according to the Bogardus scale which has since 1994 been carried out each year by the Academy of Sciences’ Institute of Sociology affected Jews to a much lower degree than members of other ethnic minorities and groups living in Ukraine. In relation to Jews this index rose from 3.63 in 1994 to 4.6 in 2007.  The level of social distance of Ukrainians with regard to Jews is lower than that towards Romanians, Hungarians, Poles and members of other European communities, not to mention the traditional «leaders» – Roma, people from Africa, Asia and the Caucuses. We should also point out that the increase in racially-motivated violence observed against people from Africa, Asia and the Caucuses did not affect Jews.

As before, the most discriminated against ethnic minority remains the Roma. «The programme for the social and spiritual revival of Roma, created in 2002 and completed in 2006, has remained virtually unimplemented, in particular because of inadequate financing (100 thousand UAH).  This programme envisaged opening special classes for Roma children in kindergartens and elementary grades so that the children could catch up with other children. However many of the aims have not been achieved. According to Roma organizations, only 68% of Roma people are literate and only 2% have higher education. The main reason for this is poverty and the lack of effective programmes aimed at changing stereotypes about Roma people. Parents of other children don’t want their children to study together with Roma children, particularly because tuberculosis is much more widespread among Roma than among other ethnic communities. A lot of Roma do not have access to running water, electricity, roads, means of transport and communication, and one in ten Roma is living in unsanitary conditions.  One half the Roma are able to eat each day. Through lack of money access to medical care is considerably worse than for representatives of other communities. Unemployment remains a major problem. According to Roma organizations on 38% of Roma people are working, and only 28% work fulltime. The gravity and link between the problems faced by Roma in areas such as education, employment, housing and healthcare require in-depth research and a concerted effort by all relevant governmental bodies in cooperation with Roma organisations in order to adequately resolve them. [14]

3.  The situation for the Crimean Tatars

Discrimination towards the Crimean Tatars increased noticeably in 2007. This was in the first instance linked with conflict over squatters occupying land sites which heightened in 2007.  Squatting was for all residents of the Crimea virtually the only possible way of getting land to build a home and run their household. It has been used not only by the Crimean Tatars, but by others living in the Crimea. As of November 2007 the Crimean Prosecutor’s Office had calculated five thousand cases of unlawful use of land, of which about five hundred cases of land occupation had been carried out by Crimean Tatars.[15].  However the Russian language press of the Crimea, using this subject for its own ends, wrote only about Crimean Tatars squatters, and unfurled a real anti-Tatar and Islamophobic information campaign. Xenophobia against Crimean Tatars is seen in insults, acts of vandalism against sacred places, in particular Muslim cemeteries, and even physical assault. Sometimes conflict over land sites or everyday rows turn into mass inter-ethnic confrontations with a large number of participants on each side and a large number of people hurt.

The law signed on 30 January 2007 by the President «On amendments to some legislative acts of Ukraine on increasing liability for squatters occupying land sites» allows for a heightening of administrative liability and the introduction of criminal liability for occupying land and building on it.  In the Crimea this law began being applied against the Crimean Tatars after the end of the holiday season, at the beginning of November.

On 1 November there was a clash in Simferopol between representatives of the construction firm «Olvi-Crimea» which was laying claim to an area of land of 2.6 hectares in order to build a residential block, and the Crimean Tatars who had seized this piece of land and built twenty temporary buildings. Several hundred people on each side were involved in the confrontation and it was only the intervention of the police that averted a mass brawl. The Crimean Tatars, moreover, complained about the behaviour of the police, alleging that the latter had taken part in beating up Crimean Tatars.  Several dozen men, including police officers, received injuries. It should by noted that the Crimean Tatars at the beginning of 2006 held an indefinite picket against what they believed to be the unlawful decision by the Simferopol City Council to hand over the land site to «Olvi-Crimea».  The Crimean Prosecutor protested against the ruling handed down by the court in favour of the firm and lodged an application with the court to have the City Council’s decision declared unlawful.

On 6 November a special police operation was carried out against Crimean Tatars on Ai-Petri. In the morning, up to a thousand police officers, military service men from the internal military forces, and the «Berkut» unit, together with technology and arms carriers. They demolished a building belonging to a private businessman Y. Mukhatayev, on the basis of a court warrant allowing the demolition, and another seven unfinished buildings and the café-bar «Eden» which there had been no court order to demolish. There were no more than 40 Crimean Tatars; they tried to stop the bulldozers, but were brutally beaten and subjected to special methods. Seven Crimean Tatars were hospitalized with medium severity injuries, one of whom had a bullet wound in his stomach. The police detained 28 Crimean Tatars and 23 had protocols drawn up on administrative offences under Article 185 of the Code of Administrative Offences (persistent non-compliance with a legitimate instruction or demand from the police). Following a ruling from the Yalta Court, 18 of them received administrative arrest of between 3 and 13 days.  Five were fined.

Crimean Tatars asserted that the bullet wound was inflicted by the police. The fate of the criminal investigation initiated over the wound is not known.

In response Crimean Tatars held a number of mass events demanding an independent enquiry into the behaviour of the Crimean police and the dismissal and punishment of its head Anatoly Mohylyov.

We should also point out the long-standing problem over the failure to allocate land to the Crimean Tatars for the construction of a Soborna [Assembly] Mosque. The Crimean Tatars have been trying in vain to get land for the Mosque for ten years already. On 30 November deputies of the Simferopol City Council revoked their own decision passed in June 2004 to allocate land on the outskirts of the city, after all the necessary documents had been gathered and the design drawn up and agreed. Up till 2004 the Crimean Tatars had had three applications for land sites turned down and the land had been used for other purposes.

The statement issued on 6 November by the Mejilis of the Crimean Tatar people asserts among other things: «In a situation where the Ukrainian government is openly ignoring the need to reinstate the rights of the Crimean Tatar people, numerous problems continue to accumulate and deepen regarding the return and settlement of the indigenous people in their native land – the Crimea. This includes the allocation of land; employment; the return of places of worship; education in their native language; the development of their national culture; the restoration of historical names, and many other issues. Such State policy is perceived by the authorities of the Autonomous Republic of the Crimea as the leadership in intensifying discrimination against the Crimean Tatars. Their numerous appeals receive no positive reaction from the executive and representative bodies of power in the Crimea and the agreements reached between the Mejilis of the Crimean Tatar People with the autonomy’s leaders on problem situations are not fulfilled. For example, the issue of allocation of land sites for the construction of housing and places of worship has not been resolved.»  It is hard not to agree with this assessment of the situation for the Crimean Tatars.

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. Improve the procedure for the gathering of information by the law enforcement agencies and the courts regarding hate crimes. This includes statistics on the use of Article 67 § 1.3 of the Criminal Code.

10. The MIA should carry out generalization of investigative operations and other action on prevention and investigation of crime in order to eliminate discrimination on the basis of ethnic origin or other factors.

11. Develop a policy of zero tolerance for manifestations of racism and xenophobia, including drawing up and implementing educational and cultural campaigns aimed at building tolerance towards people of other nationalities.



[1] Prepared by Yevhen Zakharov, Co-Chair of KHPG. Material has been used of Viacheslav Likhachev, Head of the xenophobia monitoring programme of the Congress of National Communities of Ukraine and by Oleh Martynenko, Doctor of Law, from the Ministry of Internal Affairs.

[2] Human Rights in Ukraine – 2006, Kharkiv, Prava Ludyny, 2007

[3]  Ibid.

[4]  European Commission against Racism and Intolerance: Third Report on Ukraine, Strasbourg:  CRI(2008)4, 2008, п.117.

[5] Viacheslav Likhachev, Xenophobia in Ukraine. Material from monitoring, 2007-2008, Kyiv

[6]http://www.rbc.ua/rus/newsline/2008/04/02/340999.shtml ; http://www.ridnews.com/content/view/809/77/

[7] Oleh Martynenko: Racism and xenophobia in Ukraine: new challenges in human rights protection  http://www.khpg.org.ua/en/index.php?id=1212543971

[8] ibid

[9] ibid

[10] http://www.mvs.gov.ua/mvs/control/main/uk/publish/article/83652

[11] Theoretical-practical commentary to the Criminal Code. – 4th edition, revised and supplemented // Y.V. Aleksandrov, P.P. Andrushko, V.I. Antipov and others. Kyiv: ACK, 2005, p. 300.

[12] Theoretical-practical commentary to the Ukrainian Criminal Code. In three volumes. Volume 2: Special Part (Articles 109-254) / P.P. Andrushko, T.M. Arsenyuk, O.F. Bantyshev and others – K.: Forum, 2005, p. 164.

[13] Georgy Kobzar: “Many people think that this is normal”  http://www.khpg.org/index.php?id=1215648060

[14] European Commission against Racism and Intolerance: Third Report on Ukraine, Strasbourg:  CRI(2008)4, 2008, 65-83.

[15] «Voice of the Crimea», №47, 16 November 2007

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