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Human rights in Ukraine – 2008. 12. SOME ASPECTS OF THE RIGHT TO PROTECTION FROM DISCRIMINATION AND ON COMBATING RACISM AND XENOPHOBIA

   

[1]

This unit considers some aspects connected with discrimination, racism and xenophobia. Compared with the situation presented in the annual reports Human Rights in Ukraine, from 2004 to 2007, there have basically been no changes for the better. The outline of the problems of discrimination and inequality presented in Human Rights in Ukraine – 2006 [2]remains relevant today. In 2008 legislation in this sphere did not change, and none of the problems identified were resolved therefore the analysis and recommendations in previous annual reports remain current. Similarly in 2008 the situation regarding the rights of sexual minorities remained unchanged.[3].

We should note immediately that there is virtually no direct discrimination in Ukraine, but indirect discrimination is widespread. The most common forms continue to be social discrimination on the basis of age and state of health. At the same time one can notice a significant discrepancy between real and imagined discrimination.

1. Discrimination in the mass consciousness

Studies of the public’s perception regarding discrimination have virtually not been carried out. We are aware of only one sociological study undertaken by the TNS-Ukraine company in January and February 2005.[4]. Only 9.6% of those surveyed said that neither they themselves, nor people they know, had encountered cases of discrimination while the remaining 90.4% named one or several examples. The most widespread forms of discrimination proved to be state of health and age – named by 58.9% and 52.6%, respectively. . Most often mentioned were spheres of work (finding a job; career growth, dismissals) - 37.7%, receiving medical care – 30.2%, receiving social services – 26%, getting the appropriate pay – 25.7%, receiving administrative services – 23.1%.

In 2008 the Kharkiv Human Rights Protection Group, together with 18 partner human rights organizations, carried out a socio-psychological study of everyday ideas about human rights[5] in 18 Ukrainian cities. The study was in three stages: a) a questionnaire among a selection corresponding to the demographic makeup of the population in terms of age, gender and occupation; b) focus groups in each city carried out in order to specify elements which cannot be established by means of the questionnaire; c) a survey of 5-8 civil servants, lawyers, journalists or members of NGOs in each region. 907 questionnaires were chosen (on average 50 for each city), with this selection being representative for Ukraine’s urban population.[6].

The study investigated, among other things, Ukrainians’ perception of discrimination. When asked «What groups in society suffer from discrimination?», the answers were as follows (people could name a number of categories):

women – 24, 0%

men – 3, 3%

sexual minorities – 19, 8%

national minorities – 14, 2%

religious communities – 8, 1%

Russian speakers – 10, 7%

Ukrainian speakers – 9, 6%

pensioners – 40, 0%

young people – 21, 2%

workers – 17, 3%

villagers – 31, 5%

people who work with their mind – 12, 0%

private businesspeople – 9, 4%.

People chose their answer from 0 (Kirovohrad) to 30% (Donetsk) of the respondents; approximately half of the answers were: «nobody is discriminated against»; among other categories mentioned as being discriminated against were down-and-outs; the disabled; mothers with small children; people with many children; «foreign coloured students»; Ukrainian-speaking specialists; members of various sub-cultures, military conscripts.

Judging from the results of the survey[7], discrimination in Ukraine can be divided into objectively existing and perceived, with the latter being in fact a manifestation of exaggerated self-pity or seeking undeserved advantages. If a respondent names a group to which s/he belongs discriminated against, this can be interpreted as the existence of real discrimination, or as the wish for additional advantages for their group, or as a discrepancy between everyday and legal understanding of discrimination, since on an everyday level people mean a low standard of living; poverty; a negative attitude from the authorities, etc.

However if another group is named as discriminated against, one is more likely dealing with cases known to the respondent and sympathy for real victims of social injustice. According to the results of the survey, we have very widespread discrimination on the basis of age (so-called ageism) which State and civic organizations should theoretically be working to overcome. However we have no information about any such work. Discrimination against pensioners and young people was most often mentioned, sometimes children.

From the findings of the focus groups, among discriminatory practices the most widespread were age restrictions when employing staff. The practice of turning down people because they’re too young deprives them of the possibility of learning to work. People who are too «old», that is, people over 50, 40 or even 30, are turned down because it’s harder to control people with experience using manipulative methods or impose stupid manifestations of corporative loyalty. Quite often the wish to employ or not to employ a certain category of people is due to the manager’s personal phobias and without scientific justification.

Gender discrimination is also underestimated, especially against men, with the existence of this virtually hushed up. The reason is clear: complaining about discrimination against yourself over gender contradicts the stereotypes of male behaviour in Ukraine. We still have generally women’s occupations or men’s, as well as standard situations when a man will almost certainly be treated unfairly, but not a woman, or vice versa. However there are virtually no clear taboos on predominantly men’s occupations for women, or vice versa, as in masculine societies. As with respect to poverty, a large and negative role here is played by external examples of a gender role not typical for Ukraine but imposed by foreign media outlets and even gender subcultures, created with the participation of those same media, which are closed to the other sex. A sense that they can’t match the mass culture standards foisted on them by the media creates specific types of male and female inferiority complexes which would otherwise hardly be widespread.

However on the whole one needs a balanced assessment of the influence of the media on forming public opinion on topical issues. For example, the issue of discrimination on language grounds which is assiduously worked on and seriously politicized received fairly modest recognition.

There was rather little mention in the questionnaires and at the focus groups of socially invisible groups of society such as the disabled, people living with AIDS, down-and-outs and members of youth subcultures. However we need to make a correction here since not all participants in the study have personal contact with representatives of these groups. In the same way some ethnic minorities are socially invisible beyond areas where they are concentrated. However the indicators for how discriminated against these groups are was on the borderline for the statistical error margin in our study, To make these readings more exact one would need to considerably modify the design of the selection, as well as asking the actual representatives of the socially invisible groups and of the State and civic organizations which work with them directly. This should be the subject of a separate study.

2. Legal mechanisms for protecting against discrimination and inequality

In the modern world the fight against racism, discrimination, xenophobia and intolerance are considered a top priority of the State.[8]. The duty to provide protection from them is contained both in general documents (the International Covenants on Civil and Political Rights, and on Social, Economic and Cultural Rights, 1966; the European Convention for the Protection of Human Rights and Fundamental Freedoms; the European Social Charter;), and a huge number of special documents (the International Convention for the Elimination of All Forms of Racial Discrimination; some conventions of the International Labour Organization; the European Framework Convention for the Protection of the Rights of National Minorities; the European Charter for Regional or Minority Languages; etc). and international agreements on human rights. The European Union devotes considerable attention to this issue and has since the year 2000 demanded that candidates for membership of the EU introduce into national legislation and practice standards set down in Directive 2000/43/ЕС of implementing the principle of equal treatment between persons irrespective of racial or ethnic origin».

In accordance with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms «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 a party to the Convention, judgments of the European Court of Human Rights on Article 14 of the Convention should be taken into account in Ukrainian legislation and practice. It should be noted that Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms which prohibits discrimination on any grounds was ratified by Ukraine in 2006.

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 irrespective 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.

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 includes discrimination in Article 67 of the Criminal Code in paragraph 3 which makes committing the given crime for motives of racial, ethnic or religious enmity or discord as an aggravating circumstance, and in Article 161 «Infringement of citizens’ equality on the basis of their racial or ethnic origin or their attitude to religion.» Article 161 covers «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 the establishment of direct or indirect privileges for citizens on the basis of race, skin colour, political, religious, or other convictions, gender, ethnic or social origin, material position, language or other grounds».

Article 161 needs to be amended. It should firstly 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. Thirdly, Article 161 needs to clearly define acts of a racist or xenophobic nature as crimes.

A fourth reason is that it is extremely difficult to prove intent to carry out these actions, especially where texts of a xenophobic nature are involved. Finally, it is impossible to use this article to hold people liable in cases which are unfortunately quite frequent when a text insults the feelings and denigrates the honour and dignity not of a specific person, but of an ethnic group or people in general. UHHRU specific proposals on changes to Article 161 are given later in the text..

It is also necessary to broaden the range of offences which carry criminal liability. Article 4 of the International Convention for the Elimination of All Forms of Racial Discrimination deems «an offence punishable by law 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 Covenant 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 in order to ensure that Ukraine’s legislation is in line with international agreements, the relevant elements of the crimes need to be added to the Criminal Code.

Events from 2006-2008 in Ukraine give convincing evidence that legislation needs to be changed in the light of an increase in xenophobia, racially-motivated violence and a worsening in relations between different ethnic groups.

3. 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.[9].

Ministry of Internal Affairs [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 doubled – from 604 in 2002 to 1178 in 2007[10]. 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%. 25 crimes were committed against Africans, with 21 of these solved.[11]. It is impossible to say whether the crimes were committed on racial or ethnic grounds since the statistics did separately record such crimes. 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.

There is a serious problem in the high latency of such crimes with this exacerbated by the dismissive attitude by the law enforcement agencies to these crimes, their unwillingness to recognize their racist and discriminatory nature. A check by the MIA in June 2007 showed that the heads of regional divisions were not monitoring responses to reports of crimes against foreign nationals. As a result of this detective inquiry units had refused to initiate criminal investigations into two thirds of the statements and reports, while in Kyiv criminal investigations were only launched into one in seven such reports.[12]. Besides Kyiv, the most critical situation is seen in the Crimea (where only 4 crimes out of 36 reports alleging unlawful actions were actually recorded), the Odessa, Donetsk, Lviv and Kharkiv regions.[13].

According to information from the Congress of National Communities of Ukraine [CNCU], frequent 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 87 victims, with five of them killed; while in 2008 83 immigrants suffered such attacks with 4 fatalities[14]. 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, 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 Internal 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.[15]. This discrepancy in figures is due to complaints about violent attacks usually being made where there were serious consequences.

The rise in racially-motivated crime forced the authorities to react. On 31 May 2007 MIA adopted an Action Plan on countering racism for the period up till 2009»[16]. The main priority areas of work according to this Action Plan are measures of a preventive nature; identifying movements of radical youth groups and organizations, carrying out explanatory-prophylactic work among their members; safeguarding law and order in places where a lot of foreign nationals are living or staying; forming a tolerant worldview among young people. The plan contains educational measures, training of employees of the law enforcement agencies on preventing and combating xenophobia and discrimination, the legal foundations for fighting them, studying the positive experience in this area of law enforcement agencies in other countries, etc. The Action Plan also includes an analysis of current legislation and submission of proposals on its improvement; the creation of a specialized unit for investigating crimes committed by foreign nationals or against them, as well as a unit on investigating crimes committing on racial or ethnic grounds.

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 President did not pass any normative acts on defining State policy on combating discrimination. However on a number of occasions he drew the attention of the law enforcement agencies to this issue, and also submitted to parliament a draft law No. 1395 on increasing liability under Article 161 of the Criminal Code. At the President’s call, some State bodies began implementing anti-discrimination policy however such actions were not coordinated and systematic.

The Ministry for the Family, Youth and Sport adopted an Action Plan for countering xenophobia, racial and ethnic discrimination in Ukrainian society for 2008-2009.[17]. The Plan concerns prevention of certain forms of discrimination, however there no effective steps including for overcoming discrimination. To a large extent the Plan is aimed at studying this issue. There are serious doubts regarding the effectiveness of the creation of an Inter-departmental Working Group on Countering Xenophobia, Inter-ethnic and Racial Intolerance.

A separate issue is punishment for racist and xenophobic behaviour. Article 161 of the Criminal Code is used extremely rarely. 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). From 2005-2007 only seven criminal investigations were initiated under Article 161. There were 3 cases which were sent to the courts (in the Kirovohrad, Cherkasy and Chernihiv regions); 3 cases in 2006 in Kyiv, of which two were sent to the courts and the third closed under Article 6 § 2 of the Criminal Procedure Code (lack of the elements of a crime); while in 2001 there was one criminal case in Odessa, passed to the court.[18].

Since the beginning of 2008 special criminal investigation units on fighting violent crimes of a racist nature have been functioning within MIA departments in Kyiv, Odessa, Lviv and Luhansk. During the first four months of 2008 four sentences were passed under Article 161 in connection with attacks on foreign nationals. Overall in 2008 there were 10 cases underway involving charges under Article 161. 8 crimes were registered, 6 of which were committed by groups of people. This included 5 violent crimes (three murders in Kyiv, and two assaults causing bodily injuries in Kyiv and Ternopil), distribution of anti-Semitic leaflets in Odessa and an attack on a Crimean Tatar cemetery in the Crimea.

The number of criminal investigations initiated under Article 161, let alone the number of sentences handed down, clearly do not correspond to the scale of racist and xenophobic behaviour. Furthermore 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 motives of racial, ethnic or religious enmity or discord». On 8 February 2009 the Prosecutor General’s Office and MIA issued a joint instruction No. 11/128 «On a record of crimes committed on the basis of racial, ethnic or religious intolerance, as well as of the results of investigations into these crimes» This should enable statistical reporting on the number and nature of such crimes and on the results of police investigations into them. Now law enforcement bodies will be able to keep a separate list of racially or ethnically motivated crimes. It should be noted that statistical reporting needs to be extended to cover application of Article 67 § 3.

One of the reasons for the inadequate reaction from the law enforcement agencies and the State as a whole to racist and xenophobic behaviour is the lack of complaints from victims of racist attacks who don’t hold out any hopes of receiving real protection. Another reason is the formulation of the elements of the crime which is in our view unsuccessful and in many cases makes it seriously difficult to prove guilt.

Nonetheless the efforts of the MIA have borne fruit and the wave of violent attacks which had been steadily rising since the end of 2006, beginning in May 2008 fell. This was recorded by CNCU monitoring, according to which for the first 5 months of 2008 there were 34 violent attacks, while over the last 7 months there 27. This clearly shows a cessation of the most brutal manifestations of racism and xenophobia and does not mean a significant improvement.

If discrimination against the Roma, immigrants from the Caucuses, Asia and Africa increased significantly in 2007-2008 as compared with previous years, public demonstrations of 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 2007 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 cessation from September 2007 of 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 trend towards reduction continued and in 2008 the number of anti-Semitic publications was ten times lower than in 2007[19]. In the first quarter 17 publications were recorded; in the second – 15; in the third – 11; and in the fourth – 10. 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 license, the closing of several branches 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, and fell to 4.1 in 2008. 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. Society’s attitude to the Roma remains negative. Sociological surveys show that prejudice towards Roma is greater than for any other ethnic minority. The Bogardus scale index of social distance with respect to the Roma has over all these years been in excess of 5 points and is steadily rising. They are thus not viewed in the public consciousness as being permanent members of Ukrainian society. With the highest social distance rating, the Roma suffer greatly from social discrimination. Unemployment is on average highest among the Roma, living conditions are worse than for other ethnic groups. They experience more difficulties with access to education, medical services and the courts.

According to Roma rights organizations, most complaints are about arbitrary behaviour by law enforcement officers. Most Roma are semi-literate or have never studied anyway at all. They are very intimidated and afraid of complaining. Feeling total impunity, therefore, law enforcement officers force Roma to say that they committed 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 hold them there for 3-4 hours, then take fingerprints and with no explanations release them. This behaviour is illegal, yet takes place regularly.

«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. Only half of 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 only 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. [20].

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».

«Hate speech» is a standard feature of the Ukrainian media which impose negative ethnic stereotypes, creating and manipulating images criminalizing certain ethnic groups. In our view such use of hate speech is more connected with lack of professionalism and awareness, than actual demonstrations of xenophobia or racism. This lack of correctness is most often seen in the titles of articles which has a lot to do with the tabloid nature of many media outlets, especially on the Internet, who try to attract readers with catchy headlines.

There was a noticeable increase in discrimination against the Crimean Tatars in 2007-2008. 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.[21]. 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. The position in the Crimea is considered separately below.

We would stress that the status of immigrants from the Caucuses, Asia and Africa should be considered within the context of racial discrimination. The research mentioned above by the Institute of Sociology during the 1990s found that the level of intolerance towards these groups exceeded 5 on the Bogardus Scale. This would suggest that they are also not seen as being permanent members of Ukrainian society. The lack of established migration policy, contemptuous attitude by employees of the law enforcement agencies heightens xenophobic attitudes in society. All the more so when high-ranking MIA officials see fit to make dubious and intolerant statements about people from the Caucuses and migrants in general.[22].

A review of State measures on fighting discrimination and xenophobia give grounds for concluding that there is no coordinated State programme in this sphere, and that these measures remain on the whole not very effective.

The measures of State bodies do not contain proposals for drawing up and passing anti-discrimination legislation, creating anti-discrimination bodies, and do not envisage any assistance to the victims of discrimination. It is thus unclear what policy on fighting discrimination the State will carry out.

4. Organized behaviour of a racist and xenophobic nature

Confirmation that State measures against xenophobia are not effective is in the tolerance towards organizations which constantly carry out racist and xenophobic acts and propagandize such ideas. One can understand the reluctance of the authorities to use repressive measures against members of such organizations and not drive them underground, confining their response to preventive measures. however the lack of punishment for most racist and xenophobic acts generates an atmosphere in which anything goes and leads to them becoming more widespread. This in turn creates a mood of despondency and psychological terror among foreign nationals who are the target of such actions.

In Ukraine the most active and aggressive extreme rightwing groups are considered to be the so-called movement «White Power – Skinhead Spektrum», the Ukrainian branch of the worldwide extremist network «Blood & Honour»; 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 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.[23].

According to information from the Press Service of the Security Service [SBU][24], SBU officers pay close attention to the activities of some neo-Nazi gangs of skinheads in Odessa, Sevastopol, Yalta, Kyiv, Kharkiv, Kherson, Sumy, Donetsk, Dnipropetrovsk, Vinnytsa and Zhytomyr. As we see, the data from MIA and SBU are somewhat different. Monitoring by human rights organizations suggests that the scale and level of organization of neo-Nazi gangs is greater than the law enforcement believe.

 For example, in Kharkiv city and region the Kharkiv regional organization «Patriot of Ukraine» [registered 17.01.2006) has become very active. The activities of this organization which has around 150 members is, according to its act of association aimed at the renewal of the Ukrainian nationalist idea, honouring the memory of fighters for Ukraine’s independence (in UPA – the Ukrainian Resistance Army and OUN – the Organization of Ukrainian Nationalists), countering illegal immigration of people from Asian and African countries to Ukraine. However, according to the programme of «Patriot of Ukraine», posted on its site www.patriotukr.org.ua (cf. also: http://community.livejournal.com/patriotukrainy/), the organization «speaks out for a mono-racial and mono-national society». Its head, A. Biletsky directly states that «Ukrainian racial social nationalist is the ideology of the organization «Patriot of Ukraine» (this is the title of his article, printed in the anthology of ideological works and programme documents «Ukrainian Social Nationalism»). While the organization’s ideologue O. Odnorozhenko openly writes that «Restriction and control will be imposed on all alien ethno-racial groups, with their subsequent deportation to their historical home. We Ukrainian social-nationalists view so-called «human races» as separate biological species and consider only the White European Human Being» to be intelligent in the biological understanding.»

From the speech of «the Main Commander of the Organization» – Andriy Biletsky at the general meeting of «Patriot of Ukraine» on 13 February, 2009: «In order to come out victorious from the struggle you must know your enemy – who to fight. How then can we describe our enemy? The general regime in power are oligarchs. Is there anything they have in common? Yes, one thing in common – they are Jews, or their true bosses – Jews – are behind them. Out of one hundred published richest people in Ukraine 92 are Jews, and some others of Tatar origin (Akhmetov and so forth)»

«Patriot of Ukraine» has groupings organized on military lines and carries out regular «training» for its members. «In order to affirm the right of the nation any methods from public to underground, from local to global, from parliamentary to armed force are acceptable» these newly emerged «patriots» write in their booklet.

«Patriot of Ukraine» events are often of an openly xenophobic and extremist nature. The organization is even trying to become a specific kind of centre for «the social-nationalist movement in Ukraine». For example, on 12 April 2008 a so-called «All-Ukrainian Congress of «Patriot of Ukraine» was held during which, according to witnesses, «a number of important organizational issues were resolved, strategy and tactical aspects of the further development of «Patriot of Ukraine» and the social-nationalist movement were discussed, a number of agreements were achieved on further close cooperation with the Russian Orthodox National-Socialist Movement and Cossack communities of the Crimea which in the ideological sense are close to the Organization.»

It should be noted that officers of the law enforcement agencies have taken the position of outside observers in the conflict between members of «Patriot of Ukraine» and the Kharkiv Regional branch of the All-Ukrainian Society «Prosvita». For over a year members of «Patriot of Ukraine», using the inclination towards rightwing extreme views of the head of the Kharkiv «Prosvita» M. Kondratenko, have effectively seized the premises of the regional branch of «Prosvita» (in the centre of the city), applying physical and psychological pressure on members of the «Prosvita» Board.

The Kharkiv Human Rights Protection Group addressed an open letter over this matter to the Head of the All-Ukrainian Society «Prosvita», Pavlo Movchan[25]. However the latter has preferred to stay silent.

We would note that «Patriot of Ukraine» consider their comrades in arms to be UNTP [literally, the «Ukrainian National Labour Party», an extreme neo-Nazi party – translator). One should not underestimate the seriousness of the actions of this organization. «Patriot of Ukraine» is an organization in the most active sense of that word, with clear hierarchy, action plan, methods of work with youth and the media. It is at present carrying out information work, recruitment, ideological work on its members, physical training, and training in the use of weapons. Having registered almost all its members as members of the Kharkiv «Prosvita» Society, the organization has gained the opportunity to legally carry out work with young people in educational institutions.[26]

Although in 2008 in Kharkiv just «Patriot of Ukraine» alone held 9 public actions, the regional law enforcement agencies «did not register any cases of participation in mass events in the Kharkiv region by radical youth groups with demonstrations of racism». And «during last year, 2008, no members of the skinhead movement were detained by units of the regional department of the MIA». However they were detained in Kyiv, during the events of 18 October 2008, when members of «Patriot of Ukraine» caused a brawl with police officers. Then police officers detained 143 offenders, 44 of them from the Kharkiv region.

In our view a most principled standard is needed from the law enforcement agencies regarding racially or ethnically-motivated crimes by members of such organizations, and more active work by civic organizations with members of these organizations.

 

5. Manifestations of racism and xenophobia in the Autonomous Republic of the Crimea[27]

Inter-ethnic tension, manifestations of xenophobia and ethnic discrimination are often seen in the internal public sphere in the Crimea.

The lack of demands from the central authorities in Ukraine is leading to incidents of xenophobia, chauvinism, racism, incitement to inter-ethnic and inter-denominational enmity, and sometimes acts against the State even from civil servants, which are become ever more common in the Crimea, remaining unpunished.

For example, during the night from 10 to 11 April in the settlement of Chistenke near Simferopol, a Muslim cemetery was desecrated with 39 gravestones smashed. The fence also had the words daubed in red paint «Tatars out of the Crimea», with a hangman’s noose and a crossed out tamga (the national emblem of the Crimean Tatars). This was the latest stage in the destruction of Muslim cemeteries. The previous analogous attack was during the night from 9 to 10 February when more than 200 gravestones in the central Muslim cemetery of the Nizhnyohirske settlement. «In the Crimea it’s become a bad and virtually daily tradition to carry out actions which heighten mistrust between people. I don’t want to separate out ethnically motivated crimes, however the trend is such that in the Crimea the destruction of Muslim cemeteries has already become a constant phenomenon.», the Deputy Head of the Mejilis of the Crimean Tatar People Refat Chubarov told reporters. «For us it is clear that there are forces who want to undermine the situation in the Crimea.»

Criminal investigations into these attacks were initiated, there were several pickets of the Crimean Parliament with demands to punish those responsible; the police took all Muslim cemeteries in the Crimea under their guard; the Crimean Parliament allocated 299 thousand UAH for the restoration of the desecrated cemeteries; the Crimean Council of Ministers approved measures on ensuring protection of cemeteries, places of burial and places of worship in populated areas of the autonomous republic. During a joint operation by the Central Department of the SBU for the Crimea, the Simferopol District Prosecutor, the Criminal Investigation Department of the Crimean Department of the MIA for the Crimea, as well as the CID of the Simferopol Police , three offenders who desecrated graves on the territory of the Mirnoye Village Council of the Simferopol District, were detained, however there has been no information about their punishment.

Evidence of opposition to the restoration of the Muslim religious sphere can be seen in xenophobic actions aimed against mosques. For example, on 12 March in the village of Oktyabrskoye, in the Pershotravneny district, three young people smashed the front doors to the mosque. A local resident witnessed this, immediately called neighbours and informed the police. One of the culprits was caught, the other two managed to escape.

An example of xenophobia from the authorities can be seen in the situation over the refusal to let Crimean Tatars build a Soborna [Assembly] Mosque to replace the Mosque destroyed previously. Despite the fact that in Simferopol the restoration by the Moscow Patriarchate of the Alexander Nevsky Cathedral, destroyed in 1934, is in full swing, the Crimean Tatars despite numerous appeals, pickets, etc, cannot receive permission to build the Soborna Mosque. On 10 January 2008 the Simferopol City Council, which had previously given permission to build the Mosque at the planned site on Yaltynska St, reversed this decision. It allocated another site, however the process of gathering all necessary documentation for the building permits had taken two years and cost over 70 thousand UAH, The Crimean Economic Court ruled in favour of the original site, and ordered the Council to comply. The latter in its response of 28 February declared the land site at 22 Yaltynska St and the surrounding territory a «park forest area», and also suggested putting the question of a mosque at that address to vote in a referendum. The Sevastopol Economic Court of Appeal refused to accept the case for examination, however the Council then appealed to the High Economic Court of Ukraine against the Crimean Economic Court’s ruling. The High Economic Court returned the case for new examination to the Crimean Economic Court, then at the end of the 2008 Ukraine’s Supreme Court upheld the High Economic Court’s ruling.

Support by the authorities for pseudo-Cossack structures in the Crimea and the use of them to counter Crimean Tatar communities force the repatriants to create their own units of fighters, as Mustafa Dzhemilyev, Refat Chubarov and other Crimean Tatar politicians have repeatedly stated. In this way it becomes a mechanism for changing the conflict of «authorities – Crimean Tatars» with the authorities refusing to acknowledge the rights and meet the demands of the repatriants into an essentially inter-ethnic conflict of «Crimean Tatars – Russian Cossacks» which has become the source of xenophobic and racist statements, moods and actions.

Prominent demonstrations of xenophobic moods by pro-Russian organizations in the Crimea are seen in the practice where activists of such organizations counter and disrupt civic events by Ukrainians and Crimean Tatars, this violating their right to peaceful assembly. There have been disruptions of press conferences in Simferopol, and even of direct broadcasts on TV «Crimea» by activists of pro-Russian and communist organizations

The end of 2008 and beginning of 2009 marked a period of active manifestations of xenophobia and cases of aggressively intolerant material in the Crimean media.

A number of media outlets, in particular the newspaper «Krymskaya Pravda» [«KP»] take a very aggressive and negative stand on any attempts at «Ukrainiization», this including, for example, plans to have tuition in Ukrainian higher educational institutions in Ukrainian by 2012. The question of which language students should study in and the respective roles of Ukrainian and Russian is a very fraught area with passions often being deliberately stirred up.

Irrespective of the topic, pro-Russian newspapers give any material an anti-Ukrainian twist, denying this or that right for Ukraine as a nation, or the rights of the Ukrainian people. This can include suggesting that the autonomy’s budget should not be providing anything to Kyiv, even though, in fact, the budget is three-quarters financing through subsidies and subventions from the State Budget.

With regard to a performance of the play «Comrade Stalin’s Route», «KP» asks: «Which side are you on, masters of hackwork?» ( (№ 216 25 November 2008) purely because the play is about Holodomor in Ukraine which the newspaper denies.

In numerous articles, «KP» speaks out against the rights of the Crimean Tatars to own land, and effectively calls on the law enforcement agencies to use force against repatriants (for example, №№ 231 from 16 December 2008 and № 13 from 29 January 2009).

The newspaper traditionally comes out with a version of historical issues which repeats long-refuted myths and stereotypes with an anti-Ukrainian or anti-Tatar bent.

In the issue from 7 February 2009 «KP» publishes a propagandist article about the book by G. Kryuchkov and D. Tabachnik «Fascism in Ukraine: threat or reality?» in which it treats the attempts by Ukrainians to have their own language and their own state as fascism. The newspaper, twisting the essence of what was said, treats Yushchenko’s works: «A single nation, a single language, a single church» as a manifestation of fascism, like Hitler’s demands: «One people, one Reich, one Führer «, not noticing the fundamental differences between them. The newspaper, as in communist times, treats the concept of «nationalism» as mere chauvinism, claiming that it is already «the core of ideology and political practice» in Ukraine.

In the article «Voice of the Crimea – voice of the people?», the newspaper «Krymskoye vremya», the articles in which exude xenophobia and intolerance towards Ukrainians and Crimean Tatars, tries to pin those same features on the newspers «Voice of the Crimea» and «Avdet».

One can therefore conclude that xenophobia in the Crimean press appears in two forms. There is, on the one hand, psychological intolerance towards representatives of other ethnic groups, cultures and languages at a personal, human level, while on the other, there is political and historical, language and cultural intolerance towards whole nations with a complex past history.

Hate speech is common in the Crimea. it is heard in the addresses of deputies speaking in the Crimean Parliament, of activists at political rallies, on television broadcasts, in the press and via graffiti. The first aim of such utterances is to deny in the minds of inhabitants of the Crimea the very existence of the Ukrainian people, the Ukrainian language, the legitimacy of the creation of the Ukrainian State, to elicit a denigrating and contemptuous attitude to Ukrainians and all that is Ukrainian. The examples below are demonstrations of mass xenophobia directed against the entire Ukrainian community of the Crimea, against the Ukrainian nation and its State altogether.

For example, on 24 September 2008 Stanislav Matveyev, Deputy of the Crimean Parliament from the Party of the Regions stated during parliamentary hearings: «There are Russians, there are some Russians who have been labelled as Ukrainians, they found among them national schizophrenics, infected a certain part of the people with these schizophrenic ideas and are trying to make Russians and Ukrainians clash, so as to multiply by zero, and the given territory leave to be settled by Negroes from Alabama.» («Krymskoye vremya», № 105, 27 September 2008), furthermore the newspaper did not condemn this xenophobic utterance, but on the contrary, gave it the title «most colourful».

Newspapers like «Krymskoye vremya» and «Krymskaya Pravda» when describing the Ukrainian political milieu unwarrantedly use the term «fascism».

Under an all too frequent section «Ordinary fascism». Natalya Kiselyova deliberately misleads the readers and perfidiously muddles the aim of the Ukrainian State, combining it with the aims of fascism. «They say «renew Ukrainian» and mean «destroy Russian». On 8 July 2008 the newspaper publishes the call: «Burn his effigy again. Vakarchuk is transferring all Crimean schools to the Ukrainian language», although the Minister of Education’s Order was talking about something else altogether.

On 19 July 2009 the article «West [the term is referring to West Ukrainian] Nazis again want to deprive the Crimea of its autonomy» was accompanied by a cartoon with fascist symbols.

Various headlines read: «Did they think up Ukraine in order to join NATO?»; «The devil’s dozen of patriotism»; «They have chosen Russia as the main enemy in the new Ukrainian history»; «Ukraine isn’t even a state?»

Analysts have said a great deal about the articles of Natalya Astakhova in «Krymskaya Pravda» («Brought with the wind» on 22 March 2008 and its sequel [literally] «He who sows a wind reaps a storm» (16 April 2008) as an instrument for inciting inter-ethnic enmity. At the present time we would like to draw attention to the consequences of these articles. As the civic and political situation in the Crimea after them shows, and the discussion on the «KP» site, the sole result of the articles was a worsening in inter-ethnic relations between members of the Crimean ethnic communities. More insults began to be uttered, more contempt and unwarranted demands to deport one group or another; unjustified ideological and historical denies. There was an increase in xenophobic demands in the language, educational, land and legal spheres.

There is only one conclusion that such articles by Astakhova have led not to a decrease in tension, as should be the result of media publications, this being their civic function, but increased in Crimean society a mass of xenophobia and distrust. It is clear that the result (and aim?) of such articles can only be inter-ethnic discord.

Another area of hate speech in the Crimea is with graffiti. In Simferopol there has been a sign saying «Death to the Crimean Tatars, any way!» for several months. Other offensive remarks about Crimean Tatars appeared in Simferopol at the beginning of April 2008.

On 5 April, this time in Bilohirsk the gate to the central Mosque was daubed with offensive graffiti saying «The Crimea is for Russians, Tatars out!». On 10 April similar graffiti appeared elsewhere. According to the Mejilis Press Centre the style, insults and colour of paint used were the same as in Simferopol the previous week.

 There are a huge number of examples. If one generalizes their subject matter, one can conclude that the hate speech is most probably of a coordinated nature since all the articles and utterances are concentrated on the same topics trying to instil into the minds of Crimean residents the claim that the Russian language and Russians in the Crimea are supposedly being denigrated and discriminated against by the Ukrainian State and by public officials. There is also denial of Holodomor in Ukraine, constant insults towards the Crimean Tatars, the formation of a dismissive and insulting public attitude towards the Ukrainian language, Ukrainian State and its public officials.

6. Recommendations from the Ukrainian Helsinki Human Rights Union on State measures against discrimination, racism and xenophobia

These recommendations are based on a study of the recommendations of international bodies of the UN, the Council of Europe, OSCE, on a generalized study of European Court of Human Rights case law, on the experience of countries of Central and Western Europe, the European Union, the USA and Canada, as well as on an analysis of instances of discrimination and an assessment of the action of the authorities in this sphere.

Key objectives of State anti-discrimination policy are a reduction in the level of discrimination in society and in the number of hate crimes. A vital part of its policy should be cooperation with nongovernmental organizations especially on drawing up legislation, collecting and analyzing information on discrimination, and also preparing and carrying out educational programmes aimed at fighting discrimination.

6.1) Preparation and adoption of a framework law on prohibiting discrimination

Such a law should:

– prohibit any form of discrimination’

– define basic concepts needed: «discrimination», «direct discrimination», «indirect discrimination», «positive anti-discrimination measures», «victimization», «persecution», etc’

– set out the main principles of state policy in this sphere, as well as its duties;

– stipulate basic standards and principles for proving discrimination;

– identify the authorities responsible for implementing the law and monitoring its implementation;

– clearly prohibit direct and indirect discrimination, as well as incitement or calls to discrimination;

– apply to all involved in public and private law;

– provide as broad a list of areas where discrimination is prohibited as possible, though such a list cannot be comprehensive;

It should cover:

– labour relations, including access to employment and help with finding work, working conditions, remuneration and grounds for dismissal

– social security, social protection and social services;

– healthcare;

– education;

– access to goods and services which are generally available;

– housing;

– exercise of justice and the activities of the law enforcement agencies;

– political activity, including the right to vote and hold office.

 

This law should fulfil the state’s duty to undertake positive measures on prevention of discrimination, compensation for damages linked with discrimination, as well as impose proportionate sanctions for infringements of anti-discrimination norms. These sanctions should allow for compensation to victims of discrimination.

The State must ensure access to the courts for all victims of discrimination, including legal assistance, for example, with it being the duty of a special body to provide consultations on these issues, with civic organizations having the right to provide such assistance or represent individuals or groups before state bodies, as well as in the courts. It is important in this law to establish rules whereby the duty to prove discrimination:

– in civil cases is placed upon the claimant with the exception of cases where the claimant is somebody holding authority;

– in administrative cases the respondent must prove the lack of discrimination.

This law should directly stipulate that statistical data received through reliable methods can serve as proof of discrimination.

Such a law is needed since there is no regulation of the above-mentioned provisions at the level of a law. Some gaps are filled by the law on equal rights and opportunities for men and women however that law applies to only one sphere. The current situation prevents individuals from defending themselves against discrimination, while state bodies are also unable to properly fulfil this function.

Without such a law, the prohibition of discrimination remains fine words which are not backed up with normative regulation.

In 2006 Ukraine ratified Protocol No. 12 to the European Convention on Human Rights which places an absolute ban on all forms of discrimination. However its provisions have yet to be incorporated into legislation. In the future this could lead to an increase in the number of discrimination claims lodged with the European Court of Human Rights even without approaches to the domestic court system since legislation does not provide such a possibility.

The law should bring Ukrainian legislation into line with EU Directive 2004/43/EC On implementing the principle of equal treatment of persons irrespective of racial or ethnic origin.

6.2) Creation of mechanisms for monitoring observance of anti-discrimination norms

After the introduction of anti-discrimination legislation and refinement of court and administrative practice for its application, careful study should be given to the need to create a separate anti-discrimination body.

The functions of this body should be:

– implementation of state policy on countering discrimination;

– participation in drawing up programmes on fighting various forms of discrimination;

– gathering of information on cases of discrimination, the actions of the authorities, their analysis and summarization;

– preparation of an annual report on discrimination in Ukraine presented to the Verkhovna Rada for its consideration;

– coordination of the work of the authorities in combating discrimination;

– periodic analysis of normative acts to check for different forms of discrimination;

– monitoring of the activities of the central authorities and local bodies of local self-government in this area;

– ensuring that victims of discrimination receive legal assistance;

The control functions of this body should include the following powers:

– examining individual complaints about the behaviour of state authorities, bodies of local self-government and their personnel;

– issue mandatory instructions on eliminating discriminatory behaviour or take measures in the event of inaction by state authorities, bodies of local self-government and their personnel;

– draw up protocols on administrative offences with regard to officials of the authorities or bodies of local self-government, or legal entities for not implementing instructions or other administrative offences relating to discrimination. The courts should have jurisdiction to bring people to administrative liability in this sphere;

– the authorities and bodies of local self-government, if they disagree with the instructions, can lodge an application with an administrative court to have them declared unlawful;

A special anti-discrimination body can be created in three ways:

– through the creation of a separate National Commission against Discrimination as a separate state body;

– through the creation of a special anti-discrimination department within the system of the Human Rights Ombudsperson;

– through the creation of a special Ombudsperson on Countering Discrimination.

6.3) Diversification of liability for discrimination and ensuring inevitability of punishment.

The State must ensure a flexible system of liability for discrimination which establishes proportionate punishment and provides the possibility for victims of discrimination to receive proper compensation for the infringement of their rights.

In our view, the State should not so much heighten liability, as ensure by means of a flexible and clear system of liability that there can be no waiving of responsibility even where there is not a significant size of the liability.

Criminal legislation

In our opinion, changes are needed to Article 161 of the Criminal Code which establishes criminal liability for the violation of individuals’ equal rights on the basis of their racial or national origin or their attitude to religion.

Court practice in 2008 showed that this article can in fact be applied. Despite this, the following amendments need to be made:

1. the range of possible victims of this crime must be widened since in the present version, this covers only Ukrainian citizens, although in practice it is also applied to those who are not citizens;

2. since effectively there are several forms of crime contained in this article, as regards both public and private relations, the components of the crime need to be changed:

– liability for «deliberate acts aimed at inciting ethnic, racial or religious enmity and hatred» make into a separate article and transfer it to Chapter XX of the Criminal Code (Article 440-1) since this would be closer to the nature of this crime;

– decriminalize, that is, remove from the Criminal Code, liability for «deliberate acts aimed at denigrating national honour and dignity or offending citizens’ feelings with regard to their religious convictions» since the application of criminal punishment for offence and denigration of national honour and dignity are not proportionate and would infringe freedom of expression of views in accordance with European Court of Human Rights case law;

– present paragraph one of this article as follows: «Systematic deliberate acts aimed at direct or indirect limitation of rights, or establishment of direct or indirect privileges on the basis of race, skin colour, political, religious or other convictions, gender, ethnic or social original, position as regards property, place of residence, language or other features».

In our view there is no need to increase sanctions for this crime, but instead to ensure that these sanctions are applied without fail to those guilty of the crime.

Traditionally such articles in undemocratic countries are used for repressive purposes. One can cite such examples from the application of similar articles in Russia. In view of this, the removal of direct intent and failure to add systematic nature of such acts to the components of the crime in Article 161 § 1 of the Criminal Code could lead to negative consequences, the harm from which would far outweigh possible benefit.

In our opinion, there needs to be much more frequent application of Article 67 § 1.3 of the Criminal Code which heightens liability and influences the size and kind of punishment imposed. It would also be possible to broaden the content of this element, for example:

Current version of the Criminal Code:

Article 67: Aggravating circumstances

1) In imposing punishment circumstances regarded as aggravating liability shall be:

(…)

2) committing a crime on the basis of racial, national or religious enmity or discord;

Proposed version of the Criminal Code

Article 67: Aggravating circumstances

1) In imposing punishment circumstances regarded as aggravating liability shall be:

(…)

3) committing a crime for the purpose of discrimination or on the basis of racial, national, ethnic or religious enmity.

Legislation on administrative offences

Rather than applying norms of the Criminal Code, it would be much more effective to impose clear administrative liability for certain specific discriminatory acts or inaction by officials of the state authorities or bodies of local self-government, individuals and officials of legal entities.

In our opinion, the problem lies to a large extent not so much in establishing liability in law, as in implementing a tradition of holding people accountable for discrimination. It would thus be wiser to apply relatively minor punishments more often rather than extremely rarely imposing fairly severe sentences. This policy we believe would lead to considerably more efficient countering of discrimination since society and the authorities would begin to more clearly understand which actions are inadmissible since they constitute discrimination.

This would also make it easier to apply liability in the case of those circulating discriminatory material, including media outlets, since there would be the possibility of imposing proportionate punishment in the form of fines to the authors of such information or the officials of the outlets or bodies which had circulated it.

At present in the Code of Administrative Offences there are no offences relating to discrimination.

In our opinion, it would be expedient to establish in the Code of Administrative Offences the following:

liability for:

– discrimination against individuals or groups on political, religious, ethnic grounds, according to age, gender or other factors;

– public calls to discrimination against individuals or groups;

– circulation of information containing calls to discrimination against certain individuals or groups, or information which is discriminatory towards an individual or certain group of individuals;

– preparation and circulation of advertisements whose content is discriminatory, or advertising which contains calls to discrimination;

– the preparation and circulation of printed publications which are discriminatory or which contain calls to discrimination;

– establishment of discriminatory criteria for employing people;

– refusal to provide medical assistance or carry out a medical examinations on the basis of discrimination;

– minor damage to property committed as a form of discrimination, or from motives of racial, ethnic, national or religious enmity;

– petty hooliganism, committed as a form of discrimination, or from motives of racial, ethnic, national or religious enmity;

– failure to react to the instructions of a special anti-discrimination body.

This list is not exhaustive and can be supplemented by liability imposed for other specific acts of a discriminatory nature. It is possible that some of the provisions citing may prove controversial, and need more detailed working when drawing up the relevant draft law.

It is also clear that such types of offences can be established after the adoption of a general anti-discrimination law which would define fundamental concepts.

The sanctions should envisage fines from 10 to 100 times the minimum wage before tax, with an increase in the case of a repeated offence during the space of a year, or community work.

Protocols on such administrative offences can be drawn up by police officers, state authorities carrying out controlling functions on observance of anti-discrimination norms, and penalties imposed through the courts.

It would also be important to make amendments to Article 35 of the Code of Administrative Offences which establishes aggravating circumstances for administrative offences.

For example, an additional circumstance needs to be added in the following version:

«committing an offence as a form of discrimination, or from motives of racial, ethnic, national or religious enmity».

Civil legislation

  Defining certain acts as offences will make it possible to respond in accordance with civil proceedings, for example:

– by demanding through the courts that printed publications or media outlets be withdrawn;

– by demanding through the courts the suspension of a media outlet where there has been systematic (three or more occasions throughout the year) circulation of information deemed discriminatory, or containing calls to discrimination;

– by demanding through the courts compensation for moral and material damage.

The use of measures via civil proceedings should comply with the principles of proportionality and what is necessary in a democratic society.

5) Study and educational programmes on tolerance and countering discrimination.

It is clear that without changes to the public’s attitude on the issue of discrimination it will be hard to achieve significant results in this area. In our view therefore, it is necessary to:

– analyze curricula and textbooks in schools and other educational institutions to check for discriminatory elements and to remove these;

– introduce into the system of school education programmes on tolerance and human rights together with the relevant training for teachers and the possibility of independent public monitoring of the teaching of these disciplines;

– carrying out training of personnel of law enforcement on tolerance and human rights;

– systematically carry out training of law enforcement personnel regarding investigations of offences based on discrimination;

– systematically carry out training courses for judges and bar lawyers on the issue of discrimination.

 

7  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 adopt changes to legislation in order to regulate single-sex cohabitation

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] By Yevhen Zakharov, Co-Chair of KHPG.

[2] Human Rights in Ukraine – 2006, available at: http://www.khpg.org/ru/index.php?r=a2b4c12d3

[3] More details in English about a report by Oleksandr Zinchenkov “Ukrainian State and Society against Gays and Lesbians” can be found here: http://www.khpg.org/ru/index.php?id=1234292888 .

[4] 1200 people aged between 16 and 75 from all types of populated areas were surveyed. The selection was representative for Ukraine in terms of gender and age. The error margin was 3%

[5] By everyday ideas are meant collective and individual mental constructions regarding human rights, typical for Ukrainian citizens, the combination of such constructs corresponds with legal awareness.

[6] Viktor Pushkar. Socio-psychological survey of everyday ideas about human rights / Kharkiv Human Rights Group – Kharkiv, Prava Ludyny, 2009.

[7] Ibid – pp..64-66.

[8] Decision of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, passed on 20 August 1998.

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

[10] Human Rights in the activities of the Ukrainian Police, Kyiv – Kharkiv, Prava Ludyny, 2009

[11] Ibid.

[12] Ibid, p. 119.

[13] Ibid.

[14] Viacheslav Likhachev. Xenophobia in Ukraine, 2007-2008, Kyiv, p. 3

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

[16] http://www.mvs.gov.ua/mvs/control/main/uk/publish/article/83652. The journalist involved - Editor of the newspaper “Nashe dyelo” Igor Volyn-Danilov. received an 18 month suspended sentence in January 2009 http://www.khpg.org.ua/en/index.php?id=1232361673& (translator)

[17] Order № 3716 from 10 September 2008. Measures to implement the Instructions of Deputy Prime Minister I. Vasyunyk, from 06.08.2008 № 11273/11/1-08.

[18] Human Rights in the activities of the Ukrainian Police, Kyiv – Kharkiv, Prava Ludyny, 2009. – p. 119.

[19] More details in English can be found here: Viacheslav Likhachev Trends in anti-Semitism in Ukraine at the beginning of the XXI century: reality and stereotypes : http://www.khpg.org.ua/en/index.php?id=1229369703 .

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

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

[22] See, for example, Halya Coynash: You round up cattle, not human beings http://www.khpg.org.ua/en/index.php?id=1206313396; Strange Welcome http://unian.net/eng/news/news-267026.html; In Defence of Redheads http://www.khpg.org.ua/en/index.php?id=1216384990

[23] Oleh Martynenko: Racism and xenophobia in Ukraine: new challenges in human rights protection

http://www.khpg.org/en/index.php?id=1212543971

[24] “Kievskiye vedomosti”, 22 February 2008.

[25] http://www.khpg.org.ua/en/index.php?id=1220644493

[26] Denis Kobzin and Andriy Chernousov “Intolerant behaviour and organizations in Ukraine. The Results of a Sociological Study”, 2008 (in Ukrainian) http://www.umdpl.info/index.php?id=1234950701 More about this study in English, as well as about rightwing, supposedly nationalist movements can be found in “Terrible Deceit” http://www.khpg.org.ua/en/index.php?id=1236005737&w=terrible+deceit

[27] Cf. Mykola Semena.: Racism, chauvinism, xenophobia and ethnic discrimination in the Crimea; in the book “Racism and xenophobia in Ukraine: reality and myths – Kharkiv, Prava Ludyny, 2009, pp. 36-65.

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