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VIII. Protection against discrimination

[1]

The conclusions of the report for 2013 already mentioned that “the state lacks a systematic approach to counteraction against discrimination.” The civil society has already begun to build partnerships for systematic work to tackle the discrimination problems[2], however the public authorities are still trying to deny the existence of the problem of discrimination and refute their role in preventing it, as well as personal responsibility for the vulnerability of citizens. The only institution that not only declares but also conducts systematic work in this direction and is open to cooperation with civil society is the office of the Ukrainian Verkhovna Rada Commissioner for Human Rights.

Also in the last year’s report we noted that in general the development of anti-discrimination law and further practical progress in this area is due, first of all, to the desire of the state to meet its obligations to the European Union, in particular, due its efforts to bring closer visa-free regime. However, this powerful stimulus also makes the realization of commitments to ensure legal and practical implementation of the principle of equality and non-discrimination a matter of form; currently the government does not recognize the very existence of the discrimination issue and extent of its spread.

In its third periodic report on the fulfillment by Ukraine of the Plan of Actions on Visa Liberalization (PAVL) at the end of 2013, the European Commission named among the obstacles on the way to the second phase of the plan[3] the shortcomings of anti-discrimination law and the need for further strengthening it. In view of the blocking by the Verkhovna Rada deputies of the bill No. 2342 on amendments to the Law of Ukraine “On Prevention and Counteraction Against Discrimination in Ukraine” during 2013 and subsequent developments in Ukraine, the bill was eventually technically withdrawn from consideration as one that failed the first reading. The publicly proclaimed reason, for which the majority of deputies refused to vote for the bill No. 2342, was the inclusion of sexual orientation into the list of protected characteristics provided for in the Labor Code of Ukraine. Despite the demands of the European Commission, Council of Europe, national experts and social urgency of the issue, the deputies could not overcome their own homophobia and vote for this bill. On the contrary, trying to justify their inaction, denying the need to develop legislation on protection against discrimination for all vulnerable groups, the politicians resorted to outright manipulation of public opinion. Thus, former Prime Minister Mykola Azarov said:

“The opposition leaders are telling us tales that we will sign an Association Agreement with the EU and the next day we will travel without visas to Europe. Nothing of the kind. We must fulfill a number of conditions: legalize gay marriages, adopt a law on equality of sexual minorities…”

The requirements of the EU to Ukraine under PAVL did not include any changes of the Family Code that would allow same-sex marriages. The former prime minister, trying to justify his own inaction, once again publicly denied the universality of the principle of equality of rights, which does not depend on whether the protected characteristic is directly mentioned by the law or not. Another important point in this situation, when politicians openly resort to justifying restrictions on the rights of a group, is the fact of legitimizing the inequality of the group by ordinary citizens, which only deepens the problem of intolerance and xenophobia in the Ukrainian society.

Thus, the new version of the bill[4] on amendments to the Law of Ukraine “On Prevention and Counteraction against discrimination in Ukraine” developed in March 2014 by the Ministry of Justice contained no references to sexual orientation among protected characteristics which, according to the experts, was primarily due to attempts to please the deputies and contribute to its fastest adoption in formal compliance with the demands of the EU. Trying to go over to the second phase of PAVL the government again ignored the need for consultation with civil society. The Coalition for Counteraction Against Discrimination (CCAD) after registration of the bill No. 4581, having analyzed the proposed amendments, emphasized the following:

“The amendments to a number of laws of Ukraine proposed by the bill need refinements and improvements. The CCAD has to note that the previous recommendations of the Council of Europe, EU and Ukrainian experts on expansion of the list of protected attributes cannot be limited to the inclusion of such features as “citizenship” only. The CCAD insists that the list of protected attributes must be not only open, but also based on the social realities; the list should be optimal and also include explicit prohibition of discrimination on grounds such as “sexual orientation” and “gender identity” because the LGBT in Ukraine is one of the most marginalized communities in need of protection and recognition of its equal rights.

The valuable addition to the new bill is the expansion of the forms of discrimination and adding in of the “declared intention of discrimination” and “complicity in discrimination,” but the wording of these provisions and the absence of the proposed amendments to the Criminal Code of Ukraine and the Code of Ukraine of Administrative Offences can lead to difficulties in their practical application.

The proposed extension of duties of the Ukrainian Parliament Commissioner for Human Rights, on the one hand, indicate a desire to increase powers of this institution, on the other hand, these amendments are not feasible without changes to the budget and without making secretariat more professional. Extending the functions of the Commissioner under which s/he “makes proposals to improve legislation on preventing and counteraction against discrimination and termination of use of positive actions” requires further clarification, because the procedure for making and consideration of proposals remains unclear, especially taking into account that the Commissioner has no right of legislative initiative.

Taking into account the position of some deputies and parties, we insist that the exclusion from the bill of the proposed amendment to Article 60 of the CPC of Ukraine would reduce the security level of the plaintiffs and complicate the work of the courts. The proposed norm does not interfere with the observance of “presumption of innocence” as is erroneously believed by some deputies. It is important to distinguish between civil and criminal proceedings. Moreover, the principle of allocation and transfer of the burden of proof is one of the basic principles that the European Court of Human Rights applies in its practice in cases of discrimination, and practice and decisions of which are binding on Ukraine.

We emphasize that the changes in the context of improving anti-discrimination legislation should be applied not only to the core law but to criminal, civil and other codes as well, which, unfortunately, can no longer be done with the existing bill, but should remain a task for the Verkhovna Rada for the future.”[5]

Although the formal public discussion of the bill No. 4581 did not take place, the coordination of efforts and discussion of common approach to the most important and fundamental changes to the law, mechanisms of joint promotion took place at the level of co-working of the office of the Parliament Commissioner for Human Rights, Coalition Against Discrimination and the Verkhovna Rada Committee on Human Rights. Therefore some important amendments to the wording of the bill were made through the office of the Commissioner between the first and second readings.

The bill No. 4581 adopted on May 13, 2014 amended the anti-discrimination legislation. The definition of forms of discrimination was improved and expanded, the positive actions, mechanism of their implementation and monitoring of realization were determined, the powers of the office of the Commissioner for Human Rights of the Verkhovna Rada were expanded, and the principle of shifting the burden of proof was added to the Code of Civil Procedure. Other issues remain unsettled because the law does not provide for the necessity to establish state policy or strategy for the prevention of discrimination, does not solve all procedural problems of its application and does not mention all protected groups.

After the amendments took effect, in the fourth periodic report on the implementation of PDLR, confirming Ukraine’s transition to the second phase of the Plan, the European Commission, making mention of the changes, also stressed the need for further improvement of the law and careful monitoring of its execution[6].

Another positive example was the clarification letter of the Superior Specialized Court of Ukraine for Examination of Civil and Criminal Cases “On granting proper equality of labor rights in disputes arising in the area of labor relations” published on May 7, 2014; on the one hand, the Ukrainian experts in anti-discrimination law was appraised it as an attempt to avoid direct references to sexual orientation in the Law and, on the other hand, as the first guide for national courts. So the letter of Superior Specialized Court of Ukraine for Examination of Civil and Criminal Cases underlines the following:

“…while examining industrial disputes, the courts should take into account that the list of indications, for which the law stipulates no privileges or restrictions on the implementation of labor rights, is not exhaustive. In particular, it is unacceptable to violate labor rights equality not only based on the indications referred to in part 2 of the art. 24 of the Constitution of Ukraine, art. 2-1 of the Labor Code of Ukraine, paragraph 2 part 1, art. 1 of the Law, but also on the basis of age, skin color, and other physical characteristics (weight, height, speech defects, defects of the face), marital status, sexual orientation and so on.”

Of course, the clarification of the Superior Specialized Court of Ukraine for Examination of Civil and Criminal Cases does not replace the need of legislative extension of the list of protected indications and does not cover all aspects of life, where the discrimination on the basis of “sexual orientation” should be prohibited. However, this letter clarifies for the judges how broad should be their interpretation of the open list of indications which is an important step towards the establishment of appropriate judicial practice. It is also important to note that in its analysis the Superior Specialized Court of Ukraine for Examination of Civil and Criminal Cases refers not only to the international instruments, which currently are mandatory for Ukraine, but also to those that we virtually recognize as the fundamental aim of our European dreams: the Charter of Fundamental Rights of the EU and EU Directive No. 2000/78/EU on establishing a general framework for equal treatment of industrial relations and employment which specifically prohibit direct or indirect discrimination based on religion or confession, disability, age or sexual orientation in the areas covered by this Directive.

Another legislative initiative implemented in 2014 included the amendments to Article 161 of the Criminal Code of Ukraine, namely the extension of the list of protected indications by adding of such indication as “disability”[7]. The authors of the initiative focused only on the formal extension of the list of indications regardless of evaluating of the effectiveness of the previous application of Art. 161 of the Criminal Code of Ukraine and the question of the “adequate punishment”. The inefficacy of art. 161 was always the main issue which the experts stressed once and again while analyzing art. 161 and militia practices regarding the statements about certain forms of discrimination, including violent crimes. Indeed, in order to bring charges of discrimination, it is necessary to prove the motive and intent of the offender. At the same time in the world practice the issue of the “motive” of discrimination is not important, because the perpetrator might not want to discriminate anyone or be not at all aware of this phenomenon. For example, the public monitoring 2013 showed the widespread problem of inaccessibility of Ukrainian courts for persons with disabilities. Already in 2014, the client of Foundation for Strategic Affairs of the CCAD, wheelchair-bound invalid, trying to take legal action regarding the inaccessibility of an establishment of public catering failed to get into the court registry because of the inaccessibility of the building. The algorithm stipulated by art. 161 of the Criminal Code of Ukraine in this case is totally ineffective, because if an applicant files an application to the militia about the “direct restriction of his right to a fair trial because of a disability,” it might be extremely difficult for the investigator to prove the court’s motive for intentional non-providing of an approach ramp.

Other important issues of protection against discrimination of certain vulnerable groups were also neglected by the state. Thus, despite an active public discussion in March 2014 of the necessity of amending the Law of Ukraine “On national minorities in Ukraine”[8] and recommendations of international bodies; no specific proposals were paced for consideration of the Verkhovna Rada. The only response was the creation of the position[9] of the Government Commissioner for ethnic national policy. With no powers of legislative initiative, the Commissioner was initially designed to become a kind of a bridge for coordinated action among public authorities and to carry out supervisory and advisory activity.

According to the regulations about the Government Commissioner for ethnic national policy, the competence of the Government Commissioner for ethnic national policy includes as follows:

1)  study the state and trends of international relations, national ethnic national policy, including protecting the rights of minorities and indigenous peoples;

2)  development and submission to the Cabinet of Ministers of Ukraine:

—  proposals to improve the state ethnic national policy, particularly on the protection of national minorities and indigenous peoples, as well as to prevent ethnic conflicts, discrimination on racial, ethnic, linguistic and religious grounds;

—  proposals to improve the work of the executive bodies intended to prevent at the early stages the transformation of escalating ethnic tensions into open conflicts;

—  information and analytical materials on national ethnic policy, state of interethnic relations, protection of national minorities and indigenous peoples, as well as proposals to address weaknesses in the relevant areas;

—  proposals to establish international cooperation with organizations implementing international programs in ethno-national domain;

3)  provide for the interoperability of the Cabinet of Ministers of Ukraine with the executive authorities and civil society, including the temporarily occupied territory of Ukraine, in order to protect the ethnic rights of citizens of Ukraine of all nationalities, harmonization of international relations, preservation and development of ethnic, cultural, linguistic and religious identity of ethnic communities and preservation of interethnic unity and harmony in Ukrainian society;

4)  information and analytical support of executive authorities regarding Ukraine’s international commitments in the field of ethnic national policy, protection of national minorities and indigenous peoples;

5)  promote international cooperation on the protection of national minorities and indigenous peoples;

6)  informing the Ministry of Culture of facts of violation of rights of national minorities and indigenous peoples;

7)  examination of the facts and circumstances that led to tension in international relations, violation of rights of national minorities and indigenous peoples;

8)  participate in drafting laws and other legal acts, including state ethno-national programs and measures to protect and promote the rights of national minorities and indigenous peoples, preservation and development of their national identity;

9)  formation of tolerance, preservation of ethnic unity and harmony in Ukrainian society, prevention of incitement of ethnic, racial or religious hatred, xenophobia and manifestations of discrimination, intolerance to ethnic and national communities and their representatives;

10)  informing the public in Ukraine and abroad about his activities.

6. Government Commissioner has the right to:

1)  set up expert and working groups convened meetings, hold meetings and other events on matters within his competence;

2)  involve specialists of executive bodies, enterprises, institutions and organizations (as agreed with their heads) to consider matters within his competence;

3)  sit on the boards of ministries and other central and local executive bodies when considering matters within his competence;

4)  address in accordance with established order requests to public bodies and local bodies of self-government and get from them materials and information necessary to carry out his tasks;

5)  in the prescribed manner to participate in the bilateral governmental commissions and their Ukrainian units on the issues of protection of national minorities and in preparation of periodic state reports of Ukraine concerning the implementation of international agreements on ethnic national policy and protection of national minorities.

7. the Government Commissioner has the right to participate in an advisory capacity in meetings of the Cabinet of Ministers of Ukraine when considering matters within his competence.

8. the Government Commissioner coordinates his activities with the Ministry of Culture.

9. the Cabinet of Ministers of Ukraine.

10. The Government Commissioner has a letter-head with the name of his office and address.

Appointed to this position H. Druzenko characterizes his work as follows:

“There was a simple reason to create the position. After the Revolution of Dignity the representatives of ethnic minorities demanded restoration of a ministry or other central body, which would supervise national minorities. The government was not inclined to create a separate department: it had neither money, nor resources. Accordingly, my position is a compromise between the pressure of ethnic communities and desire of the government to take a step towards them, but without appropriate agency…

There exists a problem of dual power or rather dispersion of powers in my field. On the one hand, according to the regulations about the Ministry of Culture, it remains a special executive authority in the field of interethnic relations and protection of minorities’ rights.

However, the Government Commissioner has almost no instruments to influence political decisions. This is despite the fact that the creation of my post caused a lot of expectations of representatives of national communities. But then it became clear that the financial and resource issues are detached from me, I can neither manage adoption of legal acts nor influence them, I have no right to develop draft legal acts and submit them to the Cabinet; moreover, the ministerial projects are never sent down to me for endorsement.”[10]

Adopted in April 2013 the Strategy of protection and integration into Ukrainian society of the Roma minority up to 2020 and the attached Action Plan adopted in late 2013 was the only document which could be regarded as an example of positive action, if not for declarative character of both documents, non-conformity with minimum standard for positive action design, lack of clear indicators measuring success and overall “Soviet” approach to settling document. Neither strategy nor plan received budgetary financing for their implementation.

This exhausted the state steps aimed at practical implementation of the Law of Ukraine “On Prevention and Counteraction Against Discrimination in Ukraine”. Ignoring the comments of civil society and the expectations of the European Commission, the state did not get down to work on public policy, program or strategy of preventing and counteraction against discrimination. There were neither explanations or initiatives of the central executive bodies (CEB) about implementation of certain provisions of the Law, or local administration of government powers. Therefore, evaluating preliminary awareness of the representatives of state and agencies and local self-government bodies as to the existence of the Law, individual provisions and understanding of their responsibility, the coaches of the training program[11] in the framework of the project “Achieving Equality: joint approach to improve the status of equality and non-discrimination”[12] noted that:

— Government officials and representatives of local authorities have a relatively low level of understanding of the phenomenon of discrimination;

— In each region the dialogue with the government officials began with a denial of existence of the problem of discrimination in this very oblast/region;

— No CEB offered any clarification to its structural units about the procedure and specific implementation of the provisions of the Law of Ukraine “On Prevention and Counteraction Against Discrimination in Ukraine”;

— Participants of the training program unanimously noticed the need for a centralized program/policy design on preventing and counteraction against discrimination.

This example shows hat the government officials do not understand the need for local initiatives and their inability to implement local or regional programs in any area without adequate order of the respective ministry.

The only system documents in this area include the approved “Strategy for prevention and counteraction against discrimination in Ukraine in 2014–2017 years”[13] and Action Plan for 2014 developed by the office of the Verkhovna Rada Commissioner for Human Rights in close cooperation with the institutions of the civil society in December 2013.

On the basis of the analysis of the current judicial practice and individual appeals of the citizens related to inequality and discrimination the state of affairs is as follows:

— low level of understanding by Ukrainians of their rights, their inability to objectively assess violations and demand the restoration of their rights;

— public mistrust towards the judicial system and reluctance to file complaints to court for violation of their rights;

— lack of understanding by judges of the essence, purpose and specificity of anti-discrimination legislation;

— non-application of art. 60 of the Civil Procedural Code of Ukraine about transfer of the burden of proof on the defendant if the plaintiff submits evidence proving that the discrimination took place;

— inaccessibility of most courts for persons with disabilities[14];

— predominant use of judicial mechanism to protect the rights of only one protected group — persons with disabilities.

At the same time, the above conclusions show the urgent need for the state and civil society to focus on the following objectives:

— Development and adoption of a national document that would define strategic goals and objectives of the state in the sphere of counteraction against discrimination and specific program documents at the level of CEB and local self-government bodies to create clear guidelines on the effective exercise of their powers stipulated under the Law “On Prevention and Counteraction Against Discrimination in Ukraine”;

— wage a broad information campaign on the spread of discrimination in every sphere of public life with a clear focus on specific examples of various vulnerable groups;

— More active involvement of organizations of civil society and representatives of vulnerable groups in the development of state / regional programs to prevent discrimination and assessing the state’s performance in this area;

— Analysis and simulation of individual cases for the formation of the practice of law, including identification of problematic issues of relief at law and finding ways to address them;

— Training of judges in the use of anti-discrimination legislation, including the explanation of the standard trial as formulated by the ECHR;

— Preparation of clarification of the specific application of anti-discrimination legislation for the courts.

In addition to the above points, it is worthwhile considering following problematic trend. In 2014, Ukraine lost the second action[15] in the European Court of Human Rights, where the applicant brought up the problem of discrimination (Pichkur vs. Ukraine)[16]. The applicant complained that he was deprived of his retirement pension based on his place of residence — he lived in the City of Bremen (Germany) — but he had Ukrainian citizenship and a pension that he had while living in Ukraine. Taking into account the fact that Mr. Pichkur was not the only pensioner who lives abroad and wants to receive his pension, this particular problem also requires a legal settlement, because in the absence of its solution a number of individual complaints to the ECHR may follow.

Conclusions

Summarizing the above, it should be noted that the main barrier to effective practical implementation of the Law “On Prevention and Counteraction Against Discrimination in Ukraine” is the unwillingness of the government to stop hiding the problem of discrimination and to get down to systematic work on its prevention. The legislation created a space for many activities such as early detection of individual violations and timely systemic prevention of discrimination. The lack of government policy in this area, the inability of central government agencies to work together among themselves and with civil society to solve problems only tend to aggravate the problem. Last year there was no initiative aimed at the development and implementation of affirmative action, for example, although not all measures for the prevention of discrimination or rather equalization of opportunities for vulnerable groups in need of additional funding, and so on.

Recommendations

1. To conduct comprehensive reform of the relevant branch of legislation to prevent all forms of discrimination with obligatory participation of experts and representatives of civil society:

— To include into the legislation indication of health status, sexual orientation and gender identity as “protected characteristics” in need of legal fixing;

— To establish administrative responsibility for violation of the provisions of the Law of Ukraine “On Prevention and Counteraction Against Discrimination in Ukraine”;

— To revise the relevant branches of legislation for the establishment of contradictions in existing laws and anti-discrimination legislation;

— To do revision of the existing regulatory framework to identify provisions that result in indirect discrimination;

— To overhaul the provisions of art. 161 of the Criminal Code of Ukraine providing penalties for discrimination unrelated to the use of violence within the Civil Code and the Code of Ukraine on Administrative Offences;

— To develop clear and step by step instructions for the bodies of the Ministry of Internal Affairs of Ukraine.

2. To map out a national strategy to prevent discrimination and a step by step action plan of implementation of such strategy involving civil society experts. It may follow the pattern of the strategy developed by the office of the Commissioner. The strategy and action plan should cover all aspects of life, clearly defining responsibilities of state and local self-government bodies, have realistic and measurable goals, including a mechanism for evaluating the effectiveness of implementation.

3. To provide for systematic training of civil servants, local self-government officials, law enforcers and judiciary in compliance with and implementation of the Law of Ukraine “On Prevention and Counteraction Against Discrimination”.

4. To work out an effective procedure for dealing with reports on discrimination and violation of equal rights by the law enforcers regarding the Roma population and members of other ethnic groups and LGBT providing effective mechanisms for investigation of such complaints and bring those responsible to justice.

5. To make arrangements to stop rousing hatred (the use of hate speech and spread of false information), in particular in the statements of officials and politicians in the context of legislation development, ensuring human rights and implementation of the European integration commitments of Ukraine.

[1] This section has been prepared by Iryna Fedorovych, Chairman of the Coordination Council of the Coalition to combat discrimination and co-coordinator of the Project “Without Borders” of the NGO Center “Social Action”.

[2] For example, creation of the Coalition Against Discrimination in Ukraine; more on CAD see:

 http://antidi.org.ua/ua/

[3] For English text see: http://europa.eu/rapid/press-release_IP-13-1085_en.htm

[4] This is the bill No. 4581 developed by the Ministry of Justice and submitted by the Cabinet of Ministers to the Verkhovna Rada on March 27, 2014; for the text of the bill and accompanying cover letter see:

 http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=50 439

[5] See the full text http://antidi.org.ua/ua/activity/application/280-zvernennya-kpd-shchodo-zakonoproektu-4581

[6] For the full text of the fourth report see

[7] The text of amendments to art. 161 see http://zakon4.rada.gov.ua/laws/show/1519-18

[8] The Law of Ukraine “On National Minorities” 1992 is and declarative does not meet today’s realities and needs significant changes; see the full text here http://zakon4.rada.gov.ua/laws/show/2494-12

[9] The Regulation of the Cabinet of Ministers No. 164 dated June 4, 2014; see:

 http://zakon4.rada.gov.ua/laws/show/164-2014-%D0%BF

[10]10 From the interview for Hlavkom on September 8, 2014; for the full text see:

 http://glavcom.ua/articles/22274.html

[11] The coaches of the training program for representatives of state agencies and bodies of local self-government included Iyeligulushvili M., Ponomariov S. and Fedorovych I. The trainings were held in five cities of Ukraine: Vinnytsia, Kherson, Uzhhorod, Zhytomyr and Dnipropetrovsk; for more on the training program see:

 http: //noborders.org.ua/pro-nas/novyny/zaproshujemo-na-navchalni-zahody/

[12] See more details: http://antidi.org.ua/ua/activity/projects/300-dosiahnennia-rivnosti-uchasnytskyi-pidkhid-do-stanovlennia-rivnosti-ta-nedyskryminatsii-v-ukraini

[13] See the full text of the Strategy: http://www.ombudsman.gov.ua/images/stories/strategic%20plan.pdf

[14] According to the inspection of the accessibility of courts conducted in 2013; for more details see: http://helsinki.org.ua/index.php?id=1385205425

[15] The first case where the Applicants stated the violation by the state of art. 14 of ECHR was Fedorchenko & Lozenko vs. Ukraine in 2012; for the court ruling in Ukrainian see: http://zakon4.rada.gov.ua/laws/show/974_933

[16] For details of the case see: http://helsinki.org.ua/index.php?id=1398255443