Publication

Protection against discrimination

Chapter is prepared by Iryna Fedorovych, co-coordinator of “Without Borders” Project of “Social Action” Public Association and expert of the Coalition on Counteraction of Discrimination in Ukraine.

Unfortunately, 2015 did not distinguish itself by significant changes in the sphere of prevention and counteraction of discrimination; rather we could observe already usual scandals on this subject and desire of the authorities to avoid decisive actions. Repeating the findings of the report “Human Rights in Ukraine” for 2014, it is important to remind about the need of systematic work from the public authorities and the termination of issue speculation of protection against discrimination. In this case, such system work should include not only clear action plans of each separate public authority within the competence, but also systematic cooperation between the public authorities at different levels, partnership with the civil society and dialogue with vulnerable groups.

Bearing in mind that development of the anti-discrimination law is caused by desire of the authorities to formally fulfill the conditions of the Action Plan on Visa Liberalization, the Ukrainians got only one legislative change in 2015 – introduction of features of “sexual orientation” and “gender identity” to the list of features in the Labor Code (November, 2015). It has occurred only under pressure of the next report of the European Commission on fulfillment of commitments within the Plan on Visa Liberalization. It is important to note that there were amendments to the old Labor Code, while Ukraine declares a desire to adopt the new Code that automatically means the need for repeated introduction of features of “sexual orientation” and “gender identity” there, because none of the suggested projects of changes contains these features today. It is expected that due to the process of adopting anti-discrimination amendment in November this year, it will be extremely complex challenge.

The social and political discussion on this amendment during 2015 has affected unfortunately by usual wave of homophobia and equally usual wave of a manipulation of public opinion and church interference in affairs of the state. Voting has become possible only after long persuasions of deputies and the entire fractions, taking into account statements of the President, which are quite ambiguous in terms of universality and inviolability of human rights[1]:

“As the President, as the orthodox Christian, as the person, who is already married for 31 years and loves his wife very much, as the father of four children, I am in favor of preserving the family values, traditional for the Ukrainian society. But, as the guarantor of the Constitution, I am totally against discrimination of any of the Ukrainian citizens on any grounds”

and Speaker of Parliament [2]:

“We stand with you for family values and in any case, I hear some fakes, which say that there may be some same-sex marriages in Ukraine. God forbid that it would take place, and we will never support it”.

In general, it should be noted that despite the fact that the European Commission (EC) shows some creativity in its periodic reports, trying to estimate the progress of Ukraine in this sphere, unfortunately, the Ukrainian government is unable on such creativity, therefore, it continues to show persistently rather insignificant progress. Thus, the EC appreciates the work of the Authorized Representative of Verkhovna Rada of Ukraine on Human Rights in the Sphere of Prevention and Counteraction of Discrimination, while noting the resource insufficiency of the last and the fact that only institutions of civil society conduct the educational and information work at the expense of foreign donors, whereas the government continues to ignore the need of such work.

In the fifth periodic report on implementation of the Action Plan on Visa Liberalization by Ukraine in May 2015, the European Commission notes that “achievement of indicators of success in this sphere can be considered as partially satisfactory with the good outlook for the future progress”. However, the points, already habitual in the recent years, repeat among recommendations, to which the experts of EC draw attention of the government of Ukraine:

  • review and expand a capability and respectively the budget of the Authorized Representative of Verkhovna Rada of Ukraine on Human Rights;
  • begin to develop and implement the policy on prevention and counteraction of discrimination and, respectively, find the funds in the state and local budgets for this;
  • step up the anti-discrimination information campaign;
  • adopt a national strategy on prevention and counteraction of discrimination;
  • provide the judges, law enforcement authorities and prosecutors with the system training in this sphere, including policy of prevention of discrimination and the involvement of international organizations.

It should be noted that several recommendations have been implemented since the publication of 5th report: funding of work of the Authorized Representative of Verkhovna Rada of Ukraine on Human Rights was increased; changes were made to the Labor Code; National Strategy on Human Rights and Action Plan were adopted, which writes in detail the tasks on prevention and counteraction of discrimination in all spheres of public life and, respectively, concerning all discriminated groups. However, the progress has stopped on this.

Within the framework of the Universal Periodic Review of the UN, which Ukraine was held in 2012 (the 2nd cycle), the record number of recommendations consisted of recommendations for improvement of situation with prevention and counteraction of discrimination and recommendations for separate vulnerable groups (LGBT, national minorities, in particular, the Crimean Tatars and Roma, people with disabilities, displaced persons, etc.). In total, 59 recommendations have been received; the majority of them were adopted by the state. Unfortunately, the public organizations, in particular, the Coalition on Counteraction of Discrimination, preparing the interim report to the Committee in June 2015 had to state that the majority of these recommendations have not been implemented by the state.

At the beginning of 2013, after confirming the list of the adopted recommendations, initiated by the public and by the leadership of the Ministry of Justice of Ukraine, the working group, which included the representatives of the central executive authorities and public activists, was created, working sessions were held and “the road map” was created for the state to optimize process of implementation of recommendations. Unfortunately, this work has stopped after events of Euromaidan, and the ministries did not express the readiness to return to implementation of “the road map” and recommendations of the UN.

Today, the short assessment of implementation of the UN recommendations is as follows:

  1. Recommendation 97.18 and others about deviation of any laws that restrict freedom of expression for LGBT were adopted by the state, however, they were implemented in 2014 and 2015, when Verkhovna Rada had withdrawn draft laws No. 8711, No. 10290 and No. 1155.
  2. Recommendation 97.25 and others, concerning the adoption of legislation, which would obviously protect LGBT against discrimination, have not been implemented; the features of “sexual orientation”, “gender identity” have never been included in drafts of the anti-discrimination law[3].
  3. Recommendation 97.26 and others for the adoption of the anti-discrimination law are implemented. Harmonization of the domestic law system for effective work and, respectively, the practical implementation of the law in still in question. It is not enough to consider the existence of the law on paper as the achievement; in addition, the law determines obligations of the public authorities and local self-government on prevention and counteraction of discrimination and creates space for development and introduction of positive actions that was not enough for the period of 2012-2015.
  4. Recommendation 97.38 and others for the creation and operation of institutional mechanisms on prevention of racial discrimination have not been implemented, even at the level of any initiatives or discussions.
  5. Recommendation 97.58 and others concerning the programs, directed to prevent and counteract the racism and other forms of discrimination have not been implemented.
  6. Recommendation 97.105 and others for activation of investigation of hate crimes have not been implemented. Despite the fact that Ukraine finally signed the memorandum of cooperation with ODIHR/OSCE in 2013, which provides training of law enforcement agencies in prevention and counteraction of hate crimes, such training has not been started. The entering of discipline “Tolerance and Non-discrimination”, which also includes a section of preventing the hate crimes, into the training course of new patrol service in the cities of Kyiv, Odesa, Lviv and Kharkiv can be considered as the only achievement.
  7. Recommendation 97.140 and others concerning the rights of national minorities of indigenous people in general, and the Crimean Tatars in particular, are not implemented.

 

The creation of position of the Government Representative for ethno-national policy in 2014 was the only response to the issue aggravation concerning violation of the national minorities’ rights. The Government Representative had no mandate and the proper apparatus for system work, according to his own estimates in May 2015. The Representative could have done much more for almost a year in this position, even with a limited resource, which he possessed, according to the civil society. However, instead of consolidating the efforts of experts, for example, for completion of work on the state ethno-national policy, or working together with MPs and civil society on promotion of draft laws on the indigenous peoples or changes to the law on national minorities, or attempts to build the effective interaction between the central public authorities, etc., the Government Representative has spent the time to stay in the ATO zone with the field hospital that has not direct relation to his position and the mandate, to loud and often ambiguous statements concerning “the true nature” of interethnic problems in Ukraine. This position was abolished in May 2015.

The Ministry of Culture of Ukraine, which after reform of 2010-2011 and, accordingly, liquidation of the State Committee on Nationalities and Religions, was authorized to work with national and religious minorities, failed to do the effective and systematic work in this sphere. The Ministry continues to be engaged in types of activity, “traditional” for itself – such as promotion of the intercultural festivals, counting of the registered parishes and monasteries, but does not take any step towards the coordination of the efforts with other central executive authorities or cooperation with public sector, without understanding that the issues of observance of the rights of the national and religious minorities are not limited only to the culture issues.

So, being responsible central executive authority for preparation of the next report to the UN Committee on the implementation status of provisions of the Convention on Liquidation of All Forms of Racial Discrimination, the ministry has not only delayed the report for more than a year, but could not gather information, analyze it and even highlight those improvements in the report, which undoubtedly have taken place in Ukraine.

The Strategy of protection and integration into the Ukrainian society of the Roma national minority for the period until 2020, accepted in April 2013, and the Action Plan for it, approved at the end of 2013, – remained the only document, which can be considered as an example of positive action on specific national minority. However, the assessment of civil society of both the documents and conditions of their implementation for the first half of the year is very disappointing. In June 2015, the coalition of the Roma NGOs, supported by the International Fund “Vidrodzhennya” and the Authorized Representative of Verkhovna Rada of Ukraine on Human Rights, has published the report on monitoring results of implementation status of Strategy Plan.[4] Monitoring conclusions characterize unsatisfactorily work of the state:

  • there is no exact number of the Roma population in the country and, therefore, the number of those, who need the help, is underestimated;
  • Strategy and Action Plan have the declarative nature because of clumsy problem definition and lack of indicators of the progress measurement;
  • there is no periodic assessment of the performed actions and reporting by the public authorities;
  • funds are not provided in the national budget, the Plan is financed only from the local budgets;
  • there is no coordination of actions between different public authorities and local government authorities for execution of separate tasks of the Plan;
  • there is no dialogue with the civil society and the Roman communities regarding their needs and the effectiveness evaluation of the Plan implementation.

The only system document in the sphere of prevention and counteraction of discrimination remains “The Action Strategy in the Sphere of Prevention and Counteraction of Discrimination in Ukraine for 2014-2017”[5] created and adopted in December 2013 by Office of the Authorized Representative of Verkhovna Rada of Ukraine on Human Rights and the Action Plan for 2015, developed by the Office in Cooperation with Institutes of Civil Society. The report of the Representative for 2014, published in the spring 2015, fully reflects the success of the national institutes concerning equality, as well as contains the assessment of the state work in this sphere, which almost completely coincides with the position of civil society. The Office is also the only body, which publishes statistics of addresses with individual complaints about discrimination that allows monitoring discrimination distribution trends. In addition, the Office is the only actor that performs the consistent academic work in the sphere of discrimination prevention. Thus, the Office employees provided training for the courts officials of Ukraine in 2015. The capacity of the Office has been raised due to increase in financing and personnel training, supported by the Council of Europe in cooperation with the international and national experts in the sphere of non-discrimination.

Another undoubtedly positive moment of 2015 is reforming of work of the Ministry of Internal Affairs and creation of new patrol police. Within a training course, all cadets not only got knowledge about human rights, but also had the separate 5-hour course “Tolerance and Non-discrimination”, completely developed by representatives of the civil society[6]. The course includes the following themes: “Stereotypes”, “Principle of Non-Discrimination in Work of Police Officers”, “Gender Equality”, “Hate Crimes” and “Ethnic Profiling”. The first job evaluations of patrol force in Kyiv, Odesa, Lviv and Kharkiv are generally positive, at least regarding communication with the population – police officers show qualitatively new approach and observance of not only the law, but also of the standards of tolerant communication.

 

Recommendations

  1. To the Government of Ukraine to initiate the following amendments to the existing legislation:
  • improve the procedure of anti-discrimination examination of drafts of regulatory legal acts by the executive authorities;
  • amend the Criminal Code of Ukraine in order to provide punishment for crimes, committed on the grounds of homophobia – namely, art. 67, p. 2 of Art. 115, p. 14 of Art. 121, p. 2 of Art. 122, p. 2 of Art. 126, p. 2 of Art. 127, p. 2 of Art. 129, Art. 293;
  • decriminalize the discrimination by withdrawing part 1 of Art. 161 of the Criminal Code;
  • extend the employment guarantees, provided for women with kids or disabled child, to men;
  • review the internal regulations of penitentiary facilities in order to provide the reasonable accommodation for representatives of religious communities, who require such accommodation;
  • review the change/correction of sex conditions according to the Procedure of Examination of Persons, who Need Change (Correction) of Sex, approved by the Order No. 60 of the Ministry of Health of Ukraine.
  • add features of “sexual orientation” and “gender identity” to the explicitly quoted list of features in Art. 1 of the Law of Ukraine “On Principles of Prevention and Counteraction of Discrimination in Ukraine”;
  • adopt the new law on national minorities in Ukraine and on the indigenous people;
  • develop algorithm for data collection on hate crimes, having added it to the instruction on the single crime reporting;
  • develop provision on cooperation between the National Police and prosecution authorities in cases of hate crimes.
  1. Conduct systematic training on “Equality and Nondiscrimination”, as well as provide obligation of observance of the non-discrimination principle by state officials and employees of local government.
  2. Continue human rights training for police officers, Border Guard Service, prosecutors and judicial authorities, as well as create effective procedure of notification on violation of principles of equality and the facts of discrimination by police officers against Roma, representatives of other ethnic groups and LGBT. Ensure the effective investigation of such complain and bringing the perpetrators to responsibility.

[1] Complete text on the link http://www.rbc.ua/ukr/news/poroshenko-neobhodimo-vvesti-zapret-diskriminatsiyu-1447103425.html

[2] Complete text on the link http://fakty.ua/208547-rada-s-shestogo-raza-vse-zhe-progolosovala-antidiskriminacionnuyu-popravku-v-trudovoj-kodeks

[3] See statement of the Coalition on Counteraction of Discrimination on the matter on the link http://antidi.org.ua/ua/activity/application/280-zvernennya-kpd-shchodo-zakonoproektu-4581 and other statements about the overall development of anti-discrimination legislation in 2014 and its shortcomings http://antidi.org.ua/ua/activity/application/292-na-shlyakhu-do-zmin-povilnyy-ale-vazhlyvyy-rozvytok-antydyskryminatsiynoho-zakonodavstva-v-ukrayini

[4] Complete text of the report is available on the link http://issuu.com/irf_ua/docs/rpi-2015-1#download

[5] The text of the Strategy is available on the link http://www.ombudsman.gov.ua/images/stories/strategic%20plan.pdf

[6] Authors of the course: A. Lenchovska, O. Suslova and I. Fedorovych

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