There is no systematic State policy in Ukraine for countering discrimination. Various bodies of power deal with particular areas while other directions, such as protection from discrimination or help for victims of discrimination do not exist at all. There is also a lack of systematic State assessment of the scale of discrimination and the effectiveness of the activities of bodies involved in countering it. The main source of information, therefore, is data gathered by civic organizations which cannot, however, reflect the real scale of the problem.

21 July 2011

 

Contents

1.    General assessment

2.    Review of the 19-20 Report by Ukraine on its Implementation of the UN Convention on the Elimination of All Forms of Racial Discrimination, submitted on 8 January 2010.

3.    Comments regarding Ukraine’s implementation of the previous concluding recommendations of the UN Committee on the Elimination of Racial Discrimination.

4.    General recommendations from the Ukrainian Helsinki Human Rights Union

 

1.     General assessment

There is no systematic State policy in Ukraine for countering discrimination. Various bodies of power deal with particular areas while other directions, such as protection from discrimination or help for victims of discrimination do not exist at all. There is also a lack of systematic State assessment of the scale of discrimination and the effectiveness of the activities of bodies involved in countering it. The main source of information, therefore, is data gathered by civic organizations which cannot, however, reflect the real scale of the problem.

Despite having sufficient financial and other resources, the Human Rights Ombudsperson (Authorized Representative on Human Rights to the Verkhovna Rada) does not pay enough attention to protection from discrimination. The Ombudsperson’s Office’s main area of activity over recent years has been to translate the recommendations in the human rights sphere from international institutions into Ukrainian.

There is no systematic policy on implementation international institutions’ recommendations on observance of human rights with this leading to their being ignored. No body of power is authorized to draw up action places for implementing such recommendations. This fully applies to the recommendations of the UN Committee on the Elimination of Racial Discrimination and explains their inadequate implementation. Such recommendations often do not even receive official translation into Ukraine and the bodies which they concern do not even learn of them.

Ukraine has still not passed basic anti-discrimination legislation with this meaning that there is no legislative base for effective court protection from discrimination.

The number of hate crimes began increasing rapidly from October 2006 and by the middle of 2008 had reached worrying proportions. This forced the government to take various measures[1] resulting in the edge of such crimes being curbed Both State statistics and monitoring by NGOs showed a decrease in the number of crimes in 2009-2010. It is clear, nonetheless, that the problem of racism and xenophobia remains acute.

 

2              Review of the 19-20 Report by Ukraine on its Implementation of the UN Convention on the Elimination of All Forms of Racial Discrimination, submitted on 8 January 2010

 

Article 4 of the Convention: Legislative measures on eliminating incitement to racial discrimination or discrimination itself

There is no proper anti-discrimination legislation in Ukraine. In its report, the Government has given examples of prohibition of discrimination from various legal acts. However these formulations are too general and it is impossible in practice to apply them because they are extremely vague.

There is no single law prohibiting any form of discrimination in any possible sphere. Legislation does not provide a definition of the concept of discrimination, of direct and indirect discrimination, nor does it set out standards and criteria for proving discrimination. The declarative nature of legislative provisions entirely explains the virtually total lack of court practice regarding protection from discrimination. The only law where direct and indirect discrimination is mentioned is the Law on Equal Opportunities for Men and Women however this does not pertain to racial discrimination.

A problem with legislation is the incomplete list of spheres where discrimination is banned, as well as the presence of other restrictions.

For example, Article 24 of the Constitution speaks of equality before the law and prohibition of discrimination. However both this article and other legislative norms only concern Ukrainian citizens and do not apply to those in Ukraine legitimately, but who are not citizens.

There is also a problem in the virtually total lack of punishment for discriminatory behaviour. Criminal liability is stipulated for certain actions yet through the flawed legislation this is virtually never applied. There is no administrative liability, nor civil-legal liability for discrimination.

This results in it being almost impossible to bring civil proceedings for discriminatory treatment which explains the lack of such court practice. It is not possible to lodge such a claim within the framework of labour relations.

A person cannot therefore seek to have discriminatory acts stopped by the court or receive compensation for them.

For example, it is because of this that one cannot punish a person or media outlet for circulating material calling for discriminatory behaviour. There are in general no legal mechanisms against such publications.

The main areas of life where discrimination, including on racial or ethnic grounds, is an issue are: employment; education; medical care; provision of accommodation; relations with the law enforcement bodies; access to public and social services; contractual relations between individuals and legal entities, etc.

Punishment for discrimination on racial or ethnic grounds is set out in the Criminal Code. Article 161 envisages punishment for deliberate actions aimed at inciting ethnic, racial or religious enmity and hatred, at denigrating a person’s ethnic honour and dignity or causing offence with regard to religious beliefs. However this article is also rarely applied in practice since it is difficult to prove intention in court.

The information provided by the Government in Items 56 and 474 of their Report is not correct. The law partially amended Article 161 however there were no amendments to Articles 115, 121 or the others from the Criminal Code indicated in the Report.[2] Furthermore these amendments essentially only increased the sentence for the type of crime in Article 161. There were no significant changes to the elements of the crime. The amendments have therefore had no impact on the application of this punishment with only a few people convicted of offences under Article 161 during 2009-2011.

The list of offences carrying criminal liability needs to be extended as under Article 4 of the UN Convention on the Elimination of All Forms of Racial Discrimination where all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; constitute an offence punishable by law.

Article 20 of the International Covenant on Civil and Political Rights states that it shall be a criminal offence to create organizations and advocate ideas linked with discrimination, in particular, racial, while in Ukrainian legislation such actions are not a criminal offence. Under Ukrainian legislation such actions do not carry any liability.

 

Article 5 of the Convention. Measures which the State is taking to ban or eliminate racial discrimination and ensure equality of all before the law without any differentiation according to colour of skin, national or ethnic origin.

В. The right to personal security and protection given by the State against violence and bodily injuries inflicted by officials or any other individuals, groups or institutions.

According to our information and that of other human rights organizations rough treatment by the police of people from the Caucuses, Asia, Africa, as well as representatives of certain ethnic groups, in particular the Roma, is on a wide scale.

Also people who don’t have a European appearance can become the victims of assaults from rightwing radical gangs. Such incidents are not always investigated swiftly and in proper fashion. As a result victims often do not even report such attacks to the police.

The rise in hate crimes began in 2006 and continued until 2008. After this the number of crimes in this category began falling although it did not reach the level of 2005. The problem is given coverage in in the reports of both Ukrainian and foreign experts.

In 2006 the Congress of National Communities of Ukraine recorded 16 attacks, two of them resulting in the death of the victim. In 2007 there were 87 victims, with five of them killed; while in 2008 83 immigrants suffered such attacks with 4 fatalities [3]. In response to this the government took measures[4], which was one of the reasons for a certain decrease in this type of crime in 2009-2010 (the fall in the number of murders and attacks on people with a different appearance was also stimulated by the caution from potential victims warned about danger by the media and members of their communities, as well as civic organizations that circulated information about possible danger). According to data from the Congress of National Communities of Ukraine the number of hate crimes came to 37 with not one ending in the victim’s death.[5]. We would note that the State statistics only record isolated cases.

The following examples are fairly typical:

During the evening of 27 March 2009 a group of aggressive young people attacked the synagogue in Simferopol. Two people were hurt. The police detained 5 assailants. Two of the initiators were imprisoned for 5 days for petty hooliganism; the others were released.

During the night of 19 September 2010 a person from Kuwait was admitted to the M.O. Semashko Neurological Intensive Care Clinic. He was found to have a brain and skull injury; be in a second degree coma and had been beaten on the right side of the head, had subcutaneous hematomas on the head and skull on the right, as well as a fractured jaw on the left. The foreign national, a student at the Crimean State Medical University had been attacked when returning to his university hostel at night from visiting friends..[6]

From an interview with N, an Azerbaijan national who is 36, a private businessman living in Cherkasy: “One evening when I was relaxing in a café three young guys came up and sat with me. At first they behaved normally – they asked who I was and where I’d come from, and offered me cigarettes. Then, during the conversation, one of them asked if I like Ukrainian girls. I answered that Ukrainian girls are very beautiful and friendly. I don’t know why but that answer infuriated them. The guy who’d asked said: “Our women are not for you, black arse and he splashed a mug of beer in my face. They pulled the chair out from under me and began kicking me. All three of them kicked me for a few minutes and then they ran out onto the street”[7]

With respect to the number of such rightwing radicals who carry out hate crimes, one can give the following figures:

As of 2009 there were over 1200 people who consider themselves supporters of ultra-rightwing ideology on the police preventive records. These included 60 people in the Crimea; 150 in the Zaporizhya region; 105 – in the Odessa region, 60 in the Kharkiv region, 126 in the Chernihiv region and 793 skinheads in Kyiv[8].

According to reports from the Central and regional departments of the Ministry of Internal Affairs [MIA], in 2009 there were only 6 regions where no radical youth gangs or organizations were identified and where the police had received no reports of their activities (these being the Volyn; Zhytomyr; Transcarpathian; Luhansk; Rivne; and Chernivtsi regions). No hate crimes, or public manifestations of anti-Semitism or extremism were recorded in 10 regions (Chernihiv, Chernivtsi, Volyn, Donetsk, Zhytomyr, Ivano-Frankivsk, Kirovohrad, Rivne, Sumy and Ternopil). It should however be noted that in the Chernihiv and Ivan0-Frankivsk regions there were cases of vandalism.[9].

In the recommendations made by international organizations, including the UN, on fighting hate crime, attention has been given to the lack of statistics on such crimes. Representatives of the MIA often provide figures for crimes committed against foreign nationals as an indicator of the number of hate crimes, yet this is incorrect since not all hate crimes are committed against foreigners and not all crimes against foreign nationals are hate crimes. These can often be banal killings in order to rob a person. Figures are also often cited for criminal investigations initiated under Article 161 of the Criminal Code (deliberate actions aimed at inciting ethnic, racial or religious enmity and hatred). Yet these figures also fail to reflect the real number of hate crimes since the vast majority of cases which should be initiated under that article are initiated under the articles for “hooliganism” and “causing grave bodily injuries”. Concern over this has been expressed by a number of international organizations, for example, Amnesty International.[10].

The lack of statistics regarding such crimes does not indicate the exact scale of the problem in Ukraine and makes it impossible to follow what is happening with the rate of hate crime.

Besides murders and attacks on people with a “different” appearance, rightwing radicals make themselves known through other “deeds” as well. For example, they can destroy the vending spots of foreign nationals or denigrate places of worship, cultural significance or places used for educational or other purposes by national minorities. There are public demonstrations by chauvinists and racists where racist or xenophobic slogans are heard, inciting to discriminatory acts against people of other nationalities or race.

For example, in 2010 in Vasylkiv the vending outlets of foreigners were destroyed and this was written about on the website of the organization “Patriot of Ukraine”.

“On 24 February 2010 in Vasylkiv there was a raid by fighters of Patriot of Ukraine and business owners in the city. As a result of the raid several Vietnamese containers were closed, together with foreigners’ goods, and stalls run by Uzbeks and Gypsies were removed. Most Ukrainians who were at the market at that time approved of the Social-Nationalist actions. As reported previously, Ukrainian business owners selling goods at that market were categorically against foreigners selling their goods, specifically Vietnamese, Gypsies, Uzbeks, etc. Ukrainian business owners supported the Social-National Assembly and the organization Patriot of Ukraine. The patriots and the business owners have together over the last 2 weeks pushed most of the foreigners out of the Vasylkiv market. Some members of the Vietnamese diaspora needed to be shown their place with force, some were taken to hospital by ambulance. The Social-National Assembly … from the first day of the confrontation in Vasylkiv between Ukrainians and immigrants stated that it was in favor of total removal from the area around the market of immigrants (Vietnamese, Gypsies, Uzbeks). … on 31 July 2010 fighters of Patriot of Ukraine carried out a raid of the Vasylkiv market and told the remaining immigrants that a loyal attitude to them by the police did not guarantee them a place under the sun on the territory of Vasylkiv in particular, or Ukraine as a whole. The illegal immigrants [nelegaly] who were hurt are licking their wounds, the patriots at liberty are celebrating the latest victory over foreigners, and so in Vasylkiv the fight against migrants continues”[11].

The Social-National Assembly was supposed to be holding a festival called “Traditions of the Spirit” where the appearances were planned of radical rightwing groups («Sokira Peruna», «Seitar», «Nachtigall», «White Lions»), which openly praise and romanticize skinheads and incite to harassment of national minorities[12]. The festival was stopped only at the last minute at the request of the public.

There was an attack by people espousing extremist and racist ideology on the Chernihiv Public Human Rights Committee.[13].

It is important to note that whereas hate crimes are not placed in a separate category and viewed like any others, investigation into them is often not carried out properly. This can be manifested in different ways. For example, the investigators don’t believe what the victim’s testimony or don’t carry out a proper investigation into reports alleging bias when determining the correct form of punishment; the Prosecutor’s office reduces the level of the offender’s blame, or the court does not use its own powers regarding severe forms of punishment taking into account the motives behind the offender’s actions.

In Item 68 of the Report, the Government writes of the creation of separate departments for fighting ethnic crimes. It is worth adding that at the beginning of 2010 all these separate departments were dissolved. This department within the MIA Central Office was also effectively closed. The latest report on the MIA website regarding the fight against racism is dated March 2009.

In 2010 the work of the Inter-departmental Group on Countering Xenophobia, Inter-ethnic and Racial Intolerance was virtually stopped – whereas in 2009 the Group held seven meetings, in 2010 there was not one.

One of the problems leading to the lack of punishment for hate crimes is the reluctance by victims to approach the police for help since they do not believe that the police will carry out an effective investigation. The lack of confidence that the police will defend them is often based on the discriminatory attitude shown by law enforcement officers to some ethnic groups and members of certain nationalities.

One of the discriminatory actions by the police is ethnic profiling when police officers stop people who look as though they’re from the Caucuses, or are of Asian or African origin to check their papers. This is what a Kharkiv resident, Viacheslav Manukian, wrote in a statement to the Kharkiv Human Rights Protection Group:

I am compelled to turn to you over the fact that for a long time the Kharkiv police have been flagrantly violating my human and civil rights as set down in the Constitution, laws, as well as in international legal documents on human rights.

I am regularly stopped for no reason by police officers in city streets and particularly in the metro. Since there are no grounds, reasons or causes for systematically «checking my identity», I have every justification for assuming that this behavior is linked to my ethnic origin and my appearance. Such checks occur every month, sometimes twice or even three times a month. They have not once ended in anything but a formal excuse that some measures were being carried out. In response to one of my complaints I was told directly in writing that I had been stopped because my characteristic appearance elicits the need in police officers to check the «legality of my being on Ukrainian territory and my citizenship». Despite my numerous complaints at this racist behavior by the police, I continue to be stopped in the metro and on the street.

Such checks, based on nothing but racial prejudice and possibly on illegal orders and instructions are, as far as I have observed, inflicted specifically on people of «foreign appearance», although the Ukrainian nation includes people of all nationalities.

I would ask you to pay attention to the practice of ethnic profiling – unlawful checking of documents and stopping people based solely on ethnic grounds”

Such checks are officially aimed at maintaining control over illegal immigration however in fact they often lead to unlawful detention, demands for a bribe and other abuse. According to a survey carried out in 2007 by Amnesty International in the National Aviation University of Kyiv in which 37 foreign students took part, 17 respondents stated that the police checked their documents more than once a week.[14]

Foreign nationals have complained to the Kharkiv Human Rights Group about the police demanding money or gifts. These complaints are anonymous because the victims do not write official complaints fearing reprisals from the police. KHPG carried out an anonymous survey among foreign students studying in Kharkiv which gave shocking results. Of 68 respondents, only two had never been stopped by police officers, and 48 had been detained even when they had all their documents on them. 34 foreign students admitted that they had only managed to extricate themselves from the police’s vigilant clutches by paying money (various figures were named ranging from 20 UAH to 60 dollars), buying them beer or coffee, “giving” them certain things, etc. That means that 50% of those surveyed reported that the police had been guilty of corrupt actions with respect to them. The vast majority had not even turned for help or to any institutions since they did not believe that that would help. There are all grounds for thinking this since according to the survey those 20 students who did complain about unlawful detention to the embassy of their country, to the Dean, the police, indeed found that nobody helped.[15]

The people who suffered most from the law enforcement were Roma and people from Asian countries. Violations of the rights of these groups are publicly condemned by the MIA management, but in practice supported and encouraged. “Preventive” measures which are prohibited by law without proper grounds but are in fact often used by the police against the Roma and people from the Caucuses include: unwarranted detention, personal searches, being taken to a police station and being held there for an unwarrantedly long time, searches of home or vehicles, phone-tapping and taking fingerprints. Here are a few examples.

In June-July 2010 in Chernihiv the police carried out a policy of detaining all Roma and taking them to police stations in order to be photographed and have their fingerprints taken in order to update record cards. These actions were carried out with absolutely no grounds on the basis merely of external data.

In June 2010 in the town of Chyhyryn (Cherkasy region) a conflict arose between a local resident and a person of Roma nationality, L over a quarrel between their children. Later L., and then also his wife and underage son, were beaten, yet when L. approached the local police station for help, the officers detained him, and, L asserts, used insults and unlawful force to get him to say things against himself. The Roma family turned for help to the civic-political publication “Press Centre”. One of the Centre’s correspondents came to the Chyhyryn Police Station in order to find out what was going on, but was told to leave, with both the journalist and L. being told that “Gypsies are not people”..[16]

From an interview with R, a Ukrainian national, and Azerbaijani private businessman “I have lived in Rivne for 20 years, have Ukrainian citizenship. I work here, and married here. However I’ve kept good relations with my former family. My sons came to visit from Azerbaijan for two weeks, and when we came to have dinner in the café they were called out to by three men in plain clothes who asked to see their documents. The lads said that the documents were in the car standing a few meters away, and that their father was waiting for them in the café. To that the men answered rudely, with foul language, saying their passports needed to be in their pockets. They were forced into the car and taken away. I went after them yet in the police station was told that my sons weren’t there. But then I was told to wait. An hour later he admitted that my sons were there and told me to bring their passports. Even after I brought them, they were still held for three hours”

His sons recount that they were taken to the second floor, to the CID room. They were referred to in a moderately racist fashion and told that “Islamists were not welcome in Rivne”. The officers threatened to plant drugs and periodically beat them on the head and back. They finally wrote down all numbers from their telephone, family.[17]

There is another serious problem in the high latency of such crimes which is exacerbated by the dismissive attitude to them seen by Internal Affairs bodies, as well as reluctance to accept their racist or discriminatory nature. A check of the MIA in 2007 showed that the heads of regional departments were not monitoring reactions to reports of crimes against foreigners. This resulted in the detective inquiry bodies refusing to initiate criminal investigations over two thirds of the reports and statements, while in Kyiv criminal investigations were only initiated in one in seven such reports.[18]

In the Report, the Ukrainian Government mentions that on 18 February 2010 the MIA Plan for Measures on Countering Racism and Xenophobia for the period up till 2012 was approved (Item 89 of the Report and a separate appendix to the Report). It is worth noting that after the change of Minister of the MIA in March 2010, this Plan ceased to be implemented and as of July 2011 not one of the planned measures had been carried out..

 

С. Political rights

Equality in enjoying the right to freely elect and stand for electoral office and access to participation in government and bodies of local self-government

It is in the first instance Crimean Tatars who complain of unequal opportunities for electing and standing for electoral office in bodies of local self-government. Since 2010 this problem has even worsened. In our report for 2009-2010 there is a statement from the Head of the Mejlis of the Crimean Tatar People, Mustafa Dzhemiliev about the discriminatory staffing policy of the government. This is, he believes, aimed at pushing Crimean Tatars out of leading positions in the Crimea. “This is a policy of restricting representation by Crimean Tatars in governance. If this trend continues, it could become something of a problem in our relations with the regime”. Mustafa Dzhemiliev also reported an increase in discrimination against Crimean Tatars when taking people into the civil service, during his meeting with Zbigniew Brzezhinski on 15 December 2010.[19].

D. Other civil rights

Freedom of conscience and religion

Legislation continues to seriously restrict freedom of worship for foreign nationals and stateless persons. This is seen in the fact that they cannot found religious organizations and the restrictions on carrying out preaching or other religious activities. These restrictions even apply to foreigners permanently resident in Ukraine. Foreign nationals may engage in preaching activities only at the official invitation of a registered religious organization (although their registration is not mandatory) and permission of the State bodies on religious matters.

The lack of permission carries administrative liability for foreign nationals (a fine), while the religious organization receives a warning and later possible compulsory dissolution. This issue is especially immediate for national minorities.

Е. Economic, social and cultural rights

The right to work

The principle of equality and non-discrimination in the labor sphere is most often violated. This problem to some degree concerns people once deported who return to Ukraine as well as members of particular groups, including ethnic, for example, people from the Caucuses (quite idiotically referred to as “persons of Caucuses nationality), Asia, Africa and Roma

Roma organizations provide statistics suggesting that only 38% of Roma have work, and only 28% work fulltime.[20].

The right to health care, medical assistance, social security and social services.

Roma and people originally from the Caucuses, Asia and Africa have worse access to medical services than other people living in Ukraine.

 

The right to education and professional training

According to information contained in the European Commission’s Report, only 68% of the Roma are literate while only 2% have a university degree. Poverty and the lack of effective programs aimed at changing stereotypes are one of the main reasons for the low level of education among the Roma people. The European Commission against Racism and Intolerance was concerned by reports that in Odessa there are special schools where the majority of students are Roma / Gypsies.[21]

 

Article 7. … combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

The problem in Ukraine is hate speech in the media and even on the official websites of State institutions, including on the MIA website. There are virtually no legal mechanisms of defense against such publications and their circulation cannot be banned through court or other procedure.

This has been noted by the European Commission against Racism and Intolerance in their Third Report on Ukraine, by Ukrainian Helsinki Human Rights Union researchers in their annual human rights reports in the section on racism and xenophobia and there was a special project of the International Renaissance Foundation and Amnesty International in Ukraine where monitoring of hate speech was carried out from 2006 to 2009[22]. One can also read the Report on Hate Speech in the Crimean Media[23], This report was carried out by the Yevpatoria Centre for Regional Development with the support of the International Renaissance Foundation.

On 23 April 2010 the official MIA website carried an article which demonstrated overt enmity towards the Roma people. It was entitled “Six ways of getting rid of your money or how to protect yourself from crooks”, and one subtitle read: “Third way: nice unfortunate Roma in your house”. In this all Roma were openly accused of having an inclination towards crime, and people were advised to reject any communication with them. The article ends with the words: “Defenders of public order are constantly calling on citizens to not enter into any contact with Gypsies, after all almost each such conversation ends in swindling. Be vigilant when Gypsies ask to come into your home on various pretexts: to drink some water, to change their baby’s nappy, to ask for food or clothes. While the sensitive and kind people go looking for something for these supposedly poor people, the crooks are already beginning to make themselves at home in the flat, taking anything with any value … Gypsies most often choose simple trusting people who are easily influenced for their victims. … It’s therefore not worth letting people of Gypsy nationality into your homes. Do not establish contact with them, do not react to any of their requests…”

Overall in 2010 the MIA website carried dozens of negative items in which people’s ethnic origin was given, including 16 about the Roma, 8 about Georgian nationals and 17 with the formulation “persons of Caucuses nationality” or person from the Caucuses. At press conferences with the media and meetings with members of the international community the heads of the MIA constantly deny that there is any xenophobia in the police force and declare their readiness for improvements. However such declarations generally remain far removed from everyday reality. The heads of the MIA have not prepared any instructions informing rank and file officers of a principled stand by the Ministry regarding the inadmissibility of violations by their subordinates of human rights on the grounds of ethnic origin.[24]

 

3. Comments regarding Ukraine’s implementation of the previous concluding recommendations of the UN Committee on the Elimination of Racial Discrimination

B. Item 7

The Committee recommends that the member state continue work on adopting a comprehensive draft law on fighting discrimination which would also cover indirect discrimination in accordance with Article 1 of the Convention.

As noted above, legislation on discrimination remains flawed and no significant steps towards improving it have been taken.

D. Item 9

The Committee urges the State party to consider a relaxation of the strict requirement of wilful conduct set out in article 161 of the Criminal Code in order to facilitate successful prosecutions under that article. The Committee also requests the State party to consider extending the application of article 161 of the Criminal Code to cases where the victim of discrimination is not a citizen. It urges the State party to ensure the effective implementation of all legal provisions aimed at eliminating racial discrimination, and to provide in its next report updated information concerning the application by the Ukrainian courts of criminal law provisions punishing acts of racial discrimination, in particular articles 66 and 161 of the Criminal Code. Such information should include the number and nature of cases brought, convictions obtained and sentences imposed, and any compensation or other remedies provided to victims of such acts.

No changes have been made to Article 161 and as previously one need to prove the intentional nature of racist acts which is often in practice impossible, and the article only pertains to Ukrainian citizens.

No statistics are kept regarding crimes falling under Articles 161 and 66 of the Criminal Code. There are such statistics only in the MIA with regard to the number of criminal investigations initiated for these crimes, this being mentioned in the Report. There is no information as to the number of sentences which have come into force, the forms of punishment nor about compensation to victims of such crimes.

E. Item 10

The Committee recommends that the member state consider including organizations which encourage and incite racial discrimination on a specific list of banned associations which cannot receive legal registration in accordance with Article 4 of the Law on Civic Organizations.

There was no list of such organizations and no relevant legislative acts during the reporting period. There is also no proper legislation and practice regarding suspension of the activities of organizations aimed at encouraging and inciting racial discrimination.

G. Item 12

The Committee urges the member state to continue activating training of police staff on human rights issues and promoting registration of cases of abuses by police officers with respect to Roma and other people of other ethnic origin; to carry out effective investigations regarding complaints and prosecute those guilty of such actions; to provide reliable defence and compensation to victims, as well as including information in the report regarding the number and nature of the cases examined, convictions passed down, the punishments imposed, as well as about the measures and means of legal defence provided to the victims of such acts.

As can be seen from the above, the police continue unlawful actions with respect to the Roma and members of other ethnic groups and nationalities, while the victims of most incidents are afraid to complain to the police. Even when victims do complain about unlawful acts by the police, such complaints lead nowhere. There is no information as to whether any police officers have been punished for racially-motivated acts of violence.

I. Item 14

The Committee recommends that the member state take measures, including special ones, in order to ensure proper representation of the Crimean Tatars in the public service of the Autonomous Republic of the Crimea, including leading posts.

There have been no measures with respect to this, and the situation has only worsened since people have been appointed to leading roles, both in the Crimea and Ukraine as a whole, who have had conflict with the leadership of Crimean Tatar organizations.

J. Item 15

The Committee urges the member state to ensure that effective means of defence are provided making it possible for people once deported, in particular the Crimean Tatars, to demand restitution for their previously confiscated property or adequate compensation, as well as to take measures so that people once deported can receive appropriate plots of land in the areas where they traditionally lived. The member state should ensure that all previously deported people have access to adequate housing, and that people living in village settlements have the legal guarantee of property and access to proper infrastructure, including safe water supplies, a plumbing system, electricity, gas, heating, roads and transport.

No draft laws guaranteeing the Crimean Tatars who return the right of compensation for the property lost have been adopted.

The Crimean Tatars in most cases received plots of land in isolated areas where this is no suitable infrastructure.

4. General recommendations from the Ukrainian Helsinki Human Rights Union

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;

– healthcare;

– education;

– access to goods and services which are generally available;

– housing;

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

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

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

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

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

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

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

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

 

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 programs 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 behavior of state authorities, bodies of local self-government and their personnel;

– issue mandatory instructions on eliminating discriminatory behavior 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.

 

Gathering information on cases of discrimination, behavior 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

 

Diversification of liability for discrimination and ensuring inevitability of punishment

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

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

Criminal legislation

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

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

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

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

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

– decriminalize, that is, remove from the Criminal Code, liability for “deliberate acts aimed at denigrating national honor and dignity or offending citizens’ feelings with regard to their religious convictions” since the application of criminal punishment for offence and denigration of national honor 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 color, 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”.

Civil legislation

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

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

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

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

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

 

5) Study and educational programs 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 programs 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.

[1] More detail can be found in the Human Rights Organizations’ Report Human Rights in Ukraine – 2008. Ukrainian Helsinki Human Rights Union. Kharkiv: Prava Lyudyny, 2009 .http://www.helsinki.org.ua/en/index.php?id=1246103198

[2] See the draft law and law here: http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_2?id=&pf3516=2281-1&skl=7.

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

[4] More detail can be found in the Human Rights Organizations’ Report Human Rights in Ukraine – 2008. Ukrainian Helsinki Human Rights Union. Kharkiv: Prava Lyudyny, 2009 . http://www.helsinki.org.ua/en/index.php?id=1246103198.

[5] Viacheslav Likhachev. Xenophobia in Ukraine, 2009. Monitoring Report, p. 7 http://www.eajc.org/page18/news16652.html.

[6] See. http://www.kianews.com.ua/node/24241

[7] Human Rights Organizations’ Report Human Rights in Ukraine» – 2009-2010. Ukrainian Helsinki Human Rights Union. Kharkiv: Prava Lyudyny 2011. http://www.helsinki.org.ua/en/index.php?r=a2b3c6

[8] Human Rights Organizations’ Report Human Rights in Ukraine» – 2009-2010. Kharkiv. Prava Lyudyny, 2011

[9] Human Rights Organizations’ Report Human Rights in Ukraine» – 2009-2010. Kharkiv. Prava Lyudyny, 2011

[10] Ukraine: The Government should take measures against racial discrimination. 2008 Report, p. 21

[11] http://sna.in.ua/?p=4482, http://sna.in.ua/?p=4602

[12] http://www.xenodocuments.org.ua/factitem/1919

[13] http://helsinki.org.ua/index.php?id=1292242448

[14] Ukraine: The Government should take measures against racial discrimination. 2008 Report, p. 29

[15] Human Rights Organizations’ Report Human Rights in Ukraine – 2007. Ukrainian Helsinki Human Rights Union. Kharkiv: Prava Lyudyny, 2007 and Georgy Kobzar: Many people think that this is normal http://www.khpg.org/index.php?id=1215648060

[16] http://www.rivnepost.rv.ua/showarticle.php?art=024929 English: khpg.org/index.php?id=1281019320

[17] http://www.rivnepost.rv.ua/showarticle.php?art=024929 English khpg.org/index.php?id=1281019320

[18] Human Rights in the Work of the Police – Kyiv-Kharkiv Prava Lyudyny, 2009

[19] Human Rights Organizations’ Report Human Rights in Ukraine» – 2009-2010. Kharkiv. Prava Lyudyny, 2011

[20] European Commission against Racism and Intolerance. Third Report on Ukraine, p. 23

[21] European Commission against Racism and Intolerance. Third Report on Ukraine,, Strasbourg, 12 February 2008

[22] The results of the monitoring can be found at http://www.xenodocuments.org.ua/monitoring/search/2009/01

[23] Crimean Media. Hate Speech. Yevpatoria, 2011

[24] Human Rights Organizations’ Report Human Rights in Ukraine» – 2009-2010. Kharkiv. Prava Lyudyny, 2011