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11. Protection from discrimination


[1]

   The theme of discrimination, particularly the theme of opposition to discrimination very long remained outside the focus of attention and recognition of the governmental bodies of Ukraine: there was no single goal-oriented legislation, no statistics was collected, no governmental body responsible for the job and it was considered that the problem did not exist at all. The state reports on implementation of commitments concerning human rights, which Ukraine methodically, during many years, had been sending to various institutions (UN, Council of Europe, OSCE), contained a reference to Article 24 of the Constitution about resolution of the problem of discrimination of all vulnerable groups and general statements like “Today Ukraine has the appropriate legal mechanisms for the prevention of racism, racial discrimination, intolerance and prejudices with regard to national or ethnic identity,”[2] or “The legislation of Ukraine guarantees the citizens equal rights and freedoms in relation to equality before the law regardless of race, sex, nationality, language, attitude to religion, social origin, beliefs, and social status. The equality of citizens before the law in all spheres of economic, social, political and cultural life is enshrined in Article 24 of the Constitution of Ukraine…”[3]

   In 2010, speaking at the European Conference of the Speakers of Parliaments (Limassol, Cyprus) Chairman of the Verkhovna Rada of Ukraine V. Lytvyn strongly condemned discrimination and said:

   "In Ukraine, quite effective mechanisms were implemented to protect the rights of citizens based on the principle of non-discrimination on extrajudicial and judicial basis. The effectiveness of the functioning of these mechanisms may be proved at least with the following fact. In the 12 years since the adoption of Ukraine's commitments under the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has received over 20,000 applications from citizens of Ukraine, but among them there are no and were no complaints under Article 14 and Protocol no. 12.[4]

   The ex-speaker made ​​a mistake: over the years of practice, in ECHR, there was one successful case against Ukraine, when the applicants complained of the violation of Article 14[5]. It permits to easily conclude that the parliamentarians and government bodies not only fail to understand the nature of the phenomenon of discrimination, but did not see the need of countermeasures as well, including the reform of the relevant legislation base.

   The main problem of the absence of a clear legislative regulation and impossibility of direct application of Article 24 of the Constitution for many years consisted in the absence of legal definition of discrimination, its forms and liability for discrimination. Thus, the first attempt to legally define discrimination occurred in 2005, when Article 1 of the Law of Ukraine “On Ensuring Equal Rights and Opportunities for Women and Men” defined the notion of gender discrimination as action or inaction expressing any distinction, exclusion or benefits on the basis of sex, if they are intended to limit or prevent the recognition, enjoyment or exercise on equal footing of human rights for women and men.

    Into another law that prohibits discrimination against a group of people “On the Principles of Social Protection of the Disabled in Ukraine” the concept of discrimination and reasonable adjustment was introduced only in 2011. Here the legislator decided not to re-invent the wheel and directly referred to Convention[6] about disability rights: “The terms “discrimination on the basis of disability”, “reasonable adjustment” and “universal design” shall have the meaning provided in the Convention on the Rights of the Disabled[7]. Interestingly, since the ratification of the Convention until the amendments to the law two years passed. The said again demonstrates understanding of the urgency of combating discrimination in the eyes of Ukrainian officials and parliamentarians.

   Understanding or rather recognition of the inevitability of development and adoption of a separate anti-discrimination bill reached Ukraine in 2010 only after the start of the process of rapprochement with the European Union when the clause on the development and adoption of anti-discrimination law was mentioned among the requirements of the Action Plan on liberalization of visa regime[8]: “The adoption of a comprehensive anti-discrimination legislation recommended by monitoring bodies of the United Nations and the Council of Europe in order to ensure effective protection against discrimination.”

   But here, Ukrainian officials decided to follow the path of least resistance and, instead of a special law that is clearly specified by the requirements of the Plan, started and developed the “Strategy to combat discrimination in Ukraine”[9]. According to Minister of Justice Olexandr Lavrynovych, the development of the document was due to the lack of a conceptual definition of public policy in the field of combating discrimination and lack in Ukraine of principles of public authorities in this field, as well as strategic goals, objectives and standards intended to ensure the realization of human rights, which would allow to increase the effectiveness of combating discrimination.

The NGOs and individual experts without any loss of time began criticizing this initiative and its content; the essential criticism read as follows: the strategy is not a law and therefore does not impose liability for discrimination, does not provide for specific powers of public authorities and does not include the list of such protected criteria as sexual orientation, gender identity, and age. On the other hand, the expert[10] of the Ministry of Justice, which was the strategy developer, made the following comment on the said initiative:

   “The strategy is based on general principles of law, on the Constitution. Unfortunately, the Ukrainian legislation does not define what discrimination is. Therefore, I like that the document just gives a broader understanding of what the government should do to realize human rights, as the Constitution specifies”. She said that the strategy is more like a “road map”, “direction sign” to the general approach to the state protection of people against discrimination, and not a law. Therefore, the debate about designation of specific in-groups of people will be possible when the bill will be developed and the purpose of the strategy is to concentrate public efforts on combat against discrimination, but not to protect selected in-groups of people: “Such selectivity will be discrimination inside out”[11]

   The strategy was published for public discussion; rather predictably, the majority of comments came in from religious organizations who objected to the need for protection against discrimination in general. However, the President did not sign the strategy. Probably, having not received confirmation from the European Commission that the strategy would be “credited” as the fulfillment of the corresponding point of the plan for visa liberalization, the Ukrainian government went directly over to the development of the bill, as required by numerous recommendations, NGOs and the aforementioned Plan. The bill developed by the Ministry of Justice was published for public discussion on April 2012, but a week later, without taking into account public criticism, it was registered in the Verkhovna Rada and very quickly approved in first reading. The experts of Ukrainian civil society, including the DAC, international experts and the Office of the Commissioner for Human Rights repeatedly paid attention to the low quality of the bill. Numerous comments and suggestions were sent to the specialized committee of the Verkhovna Rada. The committee even agreed to create a working group to discuss the bill, which met only once after the first reading. No proposals of the members of the working group were included in the text, which was approved at the second reading. The bill was also criticized by experts of the European Commission against Racism and Intolerance. The ombudsman referred the bill to the European Commission against Racism and Intolerance, but unfortunately, but the Verkhovna Rada Deputies voted the bill in second reading before the ECRI sent in its conclusions[12].

   In its opinion letter, among other things, the ECRI noted the following significant deficiencies of the law:

   1. The list of grounds on which discrimination is prohibited also includes “other signs” that makes it incomplete. This is a positive aspect. However, it would be desirable to include additional attributes such as nationality, sexual orientation, gender identity. Such a move would give the judges the needed additional guidance.

2. It should be clearly stated that the term "law" in the second part of the Article applies to the entire system of substantive and procedural law. Such provisions were laid down in the rules that establish civil and administrative liability, as well as regulate civil and administrative process in other countries, members of the Council of Europe.

   3. The bill fails to clearly express that it also applies to private-law relations (i.e. relations between individuals and legal entities that do not have the powers of authority), e.g. in residential relationships, employment and access to goods and services. This should be corrected (see paragraph 7 GPR no. 7).

   In its turn, the Coalition for Combating Discrimination commenting on the bill drew attention of the Committee to the following shortcomings of the text:

   - some debatable problems of definitions of direct and indirect discrimination, harassment and incitement to discrimination;

   - incomplete list of protected characteristics, including the absence in it of such characteristics as “sexual orientation and gender identity”;

   - lack of principle “transfer the burden of proof” in cases of discrimination;

   - lack of a clear-cut mechanism for implementation of the law and imposing liability for discrimination.

   The last comment in the opinion of both Ukrainian and international experts is a major problem of the Ukrainian anti-discrimination law, because the general definition of discrimination contained in the bill in its content actually repeats a part of disposition of article 161 of the Criminal Code of Ukraine, which the “direct or indirect restriction of rights or granting direct or indirect privileges on grounds of race, color, political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, linguistic or other characteristics” recognizes as a crime. Therefore, based on the substance of articles 61 and 62 of the Constitution of Ukraine, the persons who commit discrimination on any grounds (including all forms specified by the bill) may be held legally liable only in the framework of a criminal procedure. This situation not only deprives of the legal meaning some provisions of the anti -discrimination bill, including the right to challenge discriminatory behavior in court, as well as the role of the Commissioner of the Verkhovna Rada of Ukraine on Human Rights in protection of individuals against discrimination, the right of NGOs to represent the victims of discrimination in court and in government bodies, etc., but also leads to the fact that all anti-discrimination law is stillborn in reality.

   Almost immediately after the entry into force of the Law[13] the Ukrainian government decided to reform it. Already in November 2012, the same developer, the Ministry of Justice began working on a package of amendments to the law. The situation, at least in the light of cooperation with civil society and taking into account the comments of interested parties, almost paralleled the previous one. Despite the numerous comments and suggestions (from the CDA, Commissioner, European Commission, ECRI), which were added to the text of the bill, the Ministry of Justice did not take into account almost anything, while focusing only on its own concept of necessary changes, and this time even without a formal declaration of open public debate passed the bill to the Cabinet of Ukraine, which subsequently registered it in the Verkhovna Rada[14] under number 2342. The explanatory note to the bill stated the following: “The Bill of Ukraine “On Amendments to Legislative Acts of Ukraine on Prevention and Combating Discrimination in Ukraine” (hereinafter the bill) is designed to fulfill a number of instructions of the Cabinet of Ministers of Ukraine based on the results of the meetings of the Coordination Center for the implementation of the Action Plan on the liberalization by the EU of the visa regime for Ukraine. The project does not require public discussion.”

   The only legislative compromise admitted by the drafters was the inclusion of sexual orientation in the list of grounds on which discrimination is prohibited in the sphere of labor. Later this very fact became the formal reason why the bill no. 2342 was never put to the vote, even in the first reading, despite the fact that it was repeatedly included in the agenda and the fact that this bill was one of the last unfulfilled state obligations under the Action Plan on visa system liberalization. Instead, the bill was widely discussed by the public which was provoked by the statements of religious organizations and groups and supported by the deputies.

   So Deputy of the Verkhovna Rada of Ukraine of the sixth convocation Pavlo Ungurian said that if the bill no. 2342 “On the prevention and combating discrimination in Ukraine” is adopted, then under the guise of combating discrimination any criticism and limitation of actions of sexual minorities will be prohibited and under the guise of “preventing discrimination” they will get unprecedented freedom of action and legal protection. Due to the vague interpretation of these concepts, after the adoption of the bill any person or church can be brought to administrative or criminal responsibility: for criticizing gay community, for opposing propaganda of their lifestyle, for refusing to employ and admit a gay person to a church or mission, for refusing to perform wedding ceremony, for refusing to allow any gay initiatives, etc. The judicial authorities will call it “indirect discrimination”, “complicity in discrimination”, “incitement to discrimination”, etc.

  Deputy Olena Bondarenko of the Party of Regions adheres to the similar opinion, “this problem is in the fact that the homosexuals are permitted to persecute heterosexuals.”

   According to the Movement “Love Against Homosexuality”[15], which in the course of 2013 repeatedly held extensive public campaigns against the bill no. 2342, its main danger is in as follows:

2342 - destruction of freedom of speech and freedom of religion in Ukraine!

            2342 - elimination of the presumption of innocence;

            2342 - legalized homodictatorship!

   There was no adequate response from the governmental authorities or from deputies in support of the need to pass the bill. The only official arguments in favor of 2342 concerned the need to fulfill obligations to the EU. In the information space only the voluntary group activists drew attention to the fact that the anti-discrimination legislation was needed to protect anyone who had become a victim of discrimination. However, neither politicians nor bureaucrats upheld such statements. After the summer vacations, with the approaching deadline of the Vilnius summit the new arguments emerged. Thus, at first Valeriya Lutkovska, Commissioner of Verkhovna Rada for Human Rights made ​​a statement that there occurred a need to ask Europe not to push for changes to anti-discrimination legislation. She said that the bill developed by the Ministry of Justice prohibited the discrimination based on sexual orientation, which, according to Ms. Commissioner, was controversial, therefore the Verkhovna Rada could not adopt it due to lack of understanding of this issue in the Ukrainian society. Subsequently, the similar statement[16] was articulated by Valery Patskan, C​hairman of the Verkhovna Rada Committee on Human Rights: “…today the Verkhovna Rada Committee on Human Rights together with the Ombudsman and representatives of other political parties will appeal to the European Union to eliminate this provision of the law on sexual minorities. Currently, the Ukrainian society is not ready to include into the law the concept “sexual minorities” … “.

   Neither the relevant committee of the Verkhovna Rada, nor the Office of the Ombudsman conducted any public debate of the problem of discrimination or initiated open statements on the need of improvement of legislation; they failed to inform parliamentarians and citizens. Thus, in the information space a situation emerged when the authorities and religious organizations declared en-mass about absence of discrimination, while some civil society organizations and European experts inclined to work on the problem, study it and improve legislation.

   The national institution on equality under the law was relevant now to the office of the Commissioner for Human Rights of Verkhovna Rada of Ukraine, and only at the end of 2013 it began developing its own plan of action to prevent and combat discrimination. The strategy was developed, authorized and approved by the special order[17]; it will come into force in the early 2014. The overall concept was discussed with the members of the advisory council, while the special part (which after the authorization of the strategy by the order was excluded from the strategy and clearly should be included into the action plan intended to implement the strategy) needs endorsement of the representatives of civil society which are working with different vulnerable groups. The Office itself defines the guidelines on its future policy as follows:

   1) Compliance of the national legal framework and judicial practice on equality and non-discrimination with the international and European standards;

   2) Efficiency of monitoring of adherence to legal standards of equality and non-discrimination in the work of government bodies and of private law entities;

   3) Effectiveness of responses to individual or systemic discrimination and ensuring the restoration of the rights;

   4) Effectiveness of the system of promotion of the principles of equality and non-discrimination through informing and raising awareness of this issue;

   5) Operation of strategic national and international coalitions to promote the principles of equality and non-discrimination.

   In broad outline, the strategy can be assessed as a necessary and important step of the office in finally fulfilling its role as a national institution designed to ensure equality; however, there is one important question whether currently the office has enough skills and resources for the implementation of large-scale and ambitious strategy. After all, a part of it currently requires not only close cooperation with civil society and minorities, but also a lot of resources.

   Returning to the analysis of shortcomings of the Law “On the Prevention and Combating Discrimination” and the Bill no. 2342, it is worth considering one point. The current law did not provide for amendments to legislation with a view of establishing liability for discrimination and thus put the matter under Article 161 of the CPU, which renders impossible its practical application. In its time, the Chief Scientific Department of the Verkhovna Rada in its commentary noted that the criminalization of discrimination by the Article 161 of the Criminal Code of Ukraine also demonstrates proper legislative confirmation of the principle of non-discrimination. On the contrary, this approach is inconsistent with the mandatory for Ukraine standards of human rights. Indeed, the norms of international law require that the responsibility for any offense is proportional and create conditions for the effective protection and restoration of the rights of the person(s) affected by the offense. Therefore, not every manifestation of discrimination can be considered a punishable act. At least because of the fact that criminal liability can be personal only; so if some form of discrimination is criminalized, people who, for example, were subjected to “institutional discrimination” find themselves deprived of effective means of legal assistance.

The case Danilienkov and Others vs. Russia[18] illustrates the inconsistencies of the current legislative consolidation of the principle of non-discrimination in the form of a part of disposition of article 161 of the Criminal Code of Ukraine with the international standards on the protection of human rights, in which the European Court of Human Rights subjected to withering criticism approach to the legal formulation of non-discrimination in Russian legislation, which at the time was identical to the current legislation in Ukraine. In this case, the Court ruled that the authorities of the Russian Federation had violated the applicants' right to freedom from discrimination guaranteed by Article 14 of the European Convention in the context of art. 11 of the Convention (“Freedom of assembly and association”) as they failed to implement effective and efficient means of legal protection which the applicants could use to protect themselves against discrimination by their employer on the grounds of trade union membership.

This very defect of existing law is one of the reasons of its small legal usability during its existence. So in 2012-2013, in the Unified Court Registry we found only 7 cases about discrimination on grounds of disability. The Foundation for Support of Strategic Cases on Discrimination[19] created by NGOs, members of the CRC, received in 2012-2013 no more than 10 applications for assistance to vulnerable groups and / or their attorneys. Among the supported cases three cases relate to people with disabilities, two cases of LGBT, and one case related to the HIV-infected person.

   Another reason for the lack of appeals to the court with complaints about discrimination named by the human rights activists is the low awareness of the topic in general, inability to “see” the discrimination and ignorance of safeguards.

   In another public opinion survey[20] conducted in 2012 the answers to the question “Are Ukrainians protected from discrimination on various grounds (disability, age, social status, gender, etc.)?” were as follows:

   “Unprotected”-- 68.3 % of street respondents. 70.5 % of respondents in the network also answered “no”.

   “A person who differs from the majority (another race, gay or disabled) suffers oppression at all levels of social life.”

   In the framework of the study “THE THOUGHTS AND OPINIONS OF THE POPULATION OF UKRAINE: September 2013" (Omnibus)[21] to the question: " Did you in the last year have to deal with cases of discrimination (infringing of the rights and interests of an individual through unequal treatment based on her/his nationality, sex, race, economic status, views, etc.)?” only 15% of respondents answered “yes”. To the second question, whether they know of the existence of a mechanism of protection against discrimination and specialized law, only 18.7 % of respondents answered “yes”.

   On the other hand, the public opinion survey with the help of the focus groups “Discrimination: views of different groups”[22] conducted by the Ukrainian Center for Independent Political Research in 2012 showed that the surveyed respondents were quite familiar with the topic of discrimination and noticed such cases in relation to themselves or their relatives. However, it should be noted that the study was conducted among respondents who considered themselves to be either vulnerable or well aware of the work of NGOs.

Conclusions

   Ukraine lacks a systematic approach to combating discrimination. If civil society in recent years has been trying to build partnerships both within (creation of a coalition to combat discrimination, participation in advocacy activities, training of activists and representatives of vulnerable groups, development of the Foundation for Strategic Affairs, seeking opportunities to cooperate with the authorities), the government bodies haven’t shown an understanding of their role in the process and responsibility for the exposure of citizens to discrimination. The Office of the Verkhovna Rada Commissioner for Human Rights is the only institution that shows at least some interest in and openness to cooperation with the civil society. Thus, within jurisdiction of the Advisory Council under the department of children's rights, gender and non-discrimination several discussions were held on the office guidelines, comments on the bill no. 2342 and recommendations of NGOs concerning the strategy of the Commissioner concerning control of discrimination for 2014-2017. In general, the ministries and local self-government do not demonstrate willingness to cooperate or respond with standard phrases such as “there is no discrimination in the state, but only isolated incidents “.

Recommendations

   1. Reform the relevant legislation to end all forms of discrimination, namely with the obligatory participation of experts and representatives of civil society:

   · Develop comprehensive amendments to the anti-discrimination legislation, which will include a clear definition of discrimination, its interpretation and identification standards;

   · Include in legislation a comprehensive list of “protected characteristics”, including sexual orientation and gender identity as requiring unconditional protection;

   · Provide common standards and principles proving the availability of discrimination;

   · Review criminal, civil and administrative legislation regarding the availability of mechanisms of compulsory financial and moral compensation for damages caused to the victim.

   2. Such legislation should ensure the fulfillment of the duty of the State to undertake a positive step in the prevention of discrimination, compensation for damages caused because of discrimination and impose appropriate penalties for violations of anti-discrimination rules. Such sanctions should provide for compensation to the victims of discrimination.

   3. Improve the institutional framework necessary for the effective implementation of anti-discrimination legislation and policy the functions of which shall include:

   · Implementation of public policy;

   · Monitoring and reporting to the public;

   · Coordination of the activities of other actors;

   · Participation in the investigation;

   · Assistance to victims and compensation of damages.

   4. The state should provide for the access to the courts to all victims of discrimination, including legal aid, for example, by the obligation of respective institution to render advice on these issues, giving NGOs the right to offer such help or represent people or groups in the government bodies and courts.

   5. Carry out human rights training for police, prosecutors, judges and border guards, as well as create an effective procedure for reports on violations of equality and discrimination by police against Roma, members of other ethnic groups and the LGBT community; ensure the effective investigation of such complaints and bring the perpetrators to responsibility.

   6. Take steps to stop rousing hatred (the use of hate speech), particularly in the statements of officials and politicians in the context of legislation development, ensuring of the human rights and fulfillment of obligations of European integration of Ukraine.

 

[1] This chapter was prepared by Iryna Fedorovych, Chairman of the Coordination Council of the Coalition for Opposition to Discrimination and Co-Coordinator of the No Borders Project.

[2] Translation from Russian into Ukrainian was done by the author; source: National report submitted in accordance with paragraph 15A of the annex to resolution 5/1 of the Council for Human Rights of the UN; the full report is available at http://daccess-dds-ny.un.org/doc / UNDOC/GEN/G08/127/18/PDF/G0812718.pdf? OpenElement

[3] Unofficial translation from Russian into Ukrainian; source: National Report (19-21 periodic report submitted in 2010) to the UN Committee on the Elimination of All Forms of Racial Discrimination; the full text is available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/ SessionDetails1.aspx? SessionID = 398 & Lang = en

[4] The full text of the speech is available at http://iportal.rada.gov.ua/news/Novyny/Povidomlennya/31801.html

[5] The case i question is Fedorchenko and Lozenko vs. Ukraine (Application no. 387/ 03); the text of adjudication is available at http://search.ligazakon.ua/l_doc2.nsf/link1/SOO00476.html

[6] The official Ukrainian translation of the Convention is available at http://zakon1.rada.gov.ua/laws/show/995_g71

[7] Article 2 of the Law "On the basis of social protection of disabled in Ukraine"; the full text is available at http://zakon1.rada.gov.ua/laws/show/875-12

[8] Paragraph 2.4.3 "The rights of citizens, including the protection of minorities". The full text is available at http://www.kmu.gov.ua/kmu/control/uk/publish/article?showHidden=1&art_id=244813273&cat_id=223280190&ctime=1324569897648

[9] The full text is available at http://www.kmu.gov.ua/control/uk/publish/article?art_id=244963098&cat_id=244274160

[10] The expert's name was Ms. V. Lutkovska, who at the time (early 2012) was the authorized representative of the government at the European Court of Human Rights.

[11] Read more here http://www.dw.de/--------/a-15766620-1

[12] Despite the fact that the VR Committee on Human Rights were notified beforehand that the expert opinion of ECRI was pending, as well as the Committee given the findings of the European Commission and Ukrainian experts.

[13] The Law came into force on October 5, 2012.

[14] In the Verkhovna Rada the bill no. 2342 "On Amendments to Legislative Acts of Ukraine on Prevention and Combating Discrimination in Ukraine" was registered on February 19, 2013.

[15] For details of the LAH arguments see: http://blogs.pravda.com.ua/authors/kukharchuk/51924532d447a/

[16] The full text of the application is available at http://eunews.unian.net/ukr/detail/198686

[17] For more details on the strategy of the Commissioner see: http://www.ombudsman.gov.ua/index.php?option=com_content&view=article&id=3255:-2014-2017-&catid=14:2010-12-07-14-44-26&Itemid=75

[18] The case Danylienkov and Others vs. Russia (no. 67336 / 01) is available here

[19] For details about the Foundation see: http://antidi.org.ua/ua/fond

[20] The study was conducted by the Center of Information on Human Rights together with the project "Without Borders" with the support of UNDP; the results are available at http://humanrights.com.ua/162

[21] The study was conducted by the Kyiv International Institute of Sociology from September, 6 till 27, 2013. The fieldwork took place from 13 to 25 September 2013. The survey was conducted in 110 settlements (PSU) in all regions of Ukraine and the Crimea. As a result, field phase 2044 questionnaires were collected.

[22] The full text of the study is available at http://www.ucipr.kiev.ua/userfiles/fg_report_discrimination2012.pdf