Recommendations on overcoming discrimination in Ukraine from UHHRU
These recommendations from the Ukrainian Helsinki Human Rights Union 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.
1) draw up and pass 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;
– access to goods and services which are generally available;
– 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.
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.
3) Gathering information on cases of discrimination, behaviour of the authorities and assistance provided to victims of discrimination
State bodies must introduce a clear mechanism for gathering and processing information on cases of discrimination, actions by the authorities against discrimination, information on the provision of assistance to victims of discrimination, as well as information which can have impact on the development of discrimination in society.
The following are needed:
– The State Judicial Administration should introduce collection of information under Article 67 § 1.3 of the Criminal Code, as well as statistics on administrative penalties imposed in this sphere (in imposing such correspondence) to the relevant form of reporting of first instance and appellate courts and the Supreme Court;
– The Ministry of Internal Affairs should introduce, following a certain pattern, procedure for registering reports of offences which may contain elements of discrimination. This requires a registration form to be drawn up and detailed rules on inputting information onto this form. It would be advisable to consider the possibility of creating a single information database for the law enforcement agencies;
– State authorities should gather and make public on an annual basis general statistics on the situation with different forms of discrimination against groups or individuals
4) 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.
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 contain is discriminatory, or advertising which contains calls to discrimination;
– the preparation and circulation of printed publications which are discriminatory or which contains 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".
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.
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