What is the Extent of the Discriminatory Practices in Ukraine?

While Ukraine is not free from discrimination, we cannot assess the extent of the problem due to lack of relevant statistics. In its turn, insufficient data undermine any suggestions to enhance anti-discriminatory legislation.

First, Ukraine needs census to obtain precise statistics on its population. Second, there should be fast-track responsibility mechanisms established by the law that allow to identify and remedy the instances of discriminatory treatment – i.e. not only the criminal responsibility but also administrative penalty.

The number of alarming events and disturbing trends have been gaining momentum during the past year.  International organizations on multiple occasions criticized Ukrainian authorities for their inability to adequately and effectively respond to a growing number of hate crimes.The use of aggressive and biased wording is common in online-media. The homophobic speech is widespread in schools. Some Ukrainian officials and leaders also do not shy away from openly sexist, chauvinist, anti-Semitic and homophobic rhetoric in their attempt to score easy popularity points before the upcoming presidential and parliamentary elections.These circumstances raise many concerns about Ukraine’s commitment to develop safe and tolerant environment.

More often than not the notion of “traditional family values” and a concept of “gender” are used in manipulative discourse as antithesis, while they are not mutually exclusive as a matter of fact. Such manipulations on the level of definitions often result in a state’s failure to adopt necessary legislation and fully comply with international standards for ensuring equal rights and opportunities among the population.

Ukraine adopted The National Human Rights Strategy 2020 and the respective Action Plan that aim at developing the broad range of anti-discrimination measures. However, in order to ensure that suggested antidiscrimination policy  is effective and operational Ukraine has to face the issue that lies at the core of the problem: the absence of relevant complete and disaggregated data.

The last population census in Ukraine was carried out in 2001. During the last 18 years the next census has been rescheduled four times already (2011; 2012; 2013; 2016; 2020). On multiple occasions international monitors stressed that a population census is long overdue and that the lack of accurate and reliable data leaves a room for speculation relating to the size of particular groups. For instance, the Ministry of Social policy still cites results of 2001 census to describe the national composition of the population. Once the state fails to collect such data the burden falls on the civil society organizations, which have limited capacity and insufficient funding to carry out such a large-scale project. Current strategies are relying on segmented/sporadic data sets that do not fully reflect the diversity of Ukrainian population. Thus, the state can hardly accurately identify, estimate and remedy the population groups challenged by discrimination.

The number of complaints filed with the government institutions also doesn’t reflect neither actual number of discrimination incidents nor specific problematic issues. According to 2018 UNDP research, only 45% of Ukrainians attempt to protect their rights in case of violation. In cases of discrimination the rate is likely to be even lower for several reasons:

First, despite Ukraine is currently developing anti-discrimination legal framework, the introduced norms are predominantly declarative and lack efficient enforcement mechanisms that are specific to acts of discrimination. Consequently, even when an applicant is reinstated in substantial right, discriminatory treatment as such is not recognised and punished.

Second, in order to prove discrimination, a complainant has to prove that act, policy or practice are disproportionately unfavourable to a specific group compared to others in a similar situation. For instance, in Di Trizio v. Switzerland, Abdu v. Bulgaria cases the ECHR relied on statistics to establish that a protected group is disproportionately affected. In the case of Hoogendijk v. the Netherlands the Court explicitly stated that it considered whether the applicant managed to demonstrate “on the basis of undisputed official statistics” that formally neutral regulation clearly affected a higher percentage of women than men. It is extremely challenging to prove indirect discriminatory treatment in the absence of official statistical data in both domestic and international proceedings.

Third, the prohibition of discrimination under the Article 161 of the Criminal Code of Ukraine is insufficient and has many drawbacks. The protection of this article covers only citizens of Ukraine (thus, foreigners and stateless persons remain unprotected) and requires establishing a criminal intent in each case. However, in the case of D.H. and Others v. the Czech Republic the ECHR stated that there is no need to establish a motivation of the defendant in discrimination case (except for the instances of violence motivated by prejudice). Additionally, it is challenging to bring offender to responsibility under this article if the hate speech is directed not against a particular individual, but the entire group. Since other provisions** of the Criminal code list discrimination as an aggravating circumstance, its application is seen as non-obligatory. Due to this fact, publicly accessible record of hate crimes has been kept only for the Article 161 of the Criminal Code, leaving a share of discrimination cases out of the database. It is also not uncommon that discrimination component is overlooked in the cases of attacks against a representative of targeted groups and cases are classified as “hooliganism” with no specification of motif.

Another problem is that the vast majority of discrimination cases arise in civil or administrative relations and, thus, criminal sanction is often disproportionately severe. Hence, it is extensively recognized that the use of lengthy and costly court proceedings in this matter is highly inefficient (provided that there are no administrative and fast-track procedures). Such inefficiency often affects individual’s decision to file a complaint. Consequently it is hard to estimate the number and scale of discrimination cases that are left out of the legal framework. Only in 2016 this problem was partially remedied by the Regulation 359 (initiated by the Ombudsman) that requires state authorities to keep the record of filed discrimination complaints. However, in 2017 and 2018 annual Reports, the Ombudsman notes that obtaining statistics in cases where discrimination is not a primary subject of complaint is still very complicated.

An attempt to introduce the mechanism of administrative responsibility separate from criminal liability for discrimination was made in the Draft law 3501. This bill has passed the first reading in early 2016 and has been waiting for the second reading since then. Interestingly, in early critique of  the Draft law 3501, the Central Scientific Experts Office of the parliament argues that redesigning criminal responsibility and establishing administrative one in discrimination cases is not sufficiently justified since legislators failed to offer a statistical proof. This is a vivid example of the vicious circle where collection of the relevant data is made practically unmanageable under the current legislation, but the adoption of a new norm is obstructed due to the lack of statistics.

The appeal to the lack of data nourishes a widespread narrative that in Ukrainian context discrimination is a non-issue. In circumstances when the internal discussion becomes vague and loses definition, international obligations generate pressure that facilitates progressive change. For instance, the development and adoption of the 2012 Discrimination Law was conducted in completion of Ukrainian Visa Liberalisation Action Plan. Similarly, in 2015 Ukraine adopted anti-discrimination amendment to Labor Code as a part of the EU visa-free package.

Recommendations to the government

• It is necessary to establish a unified full list of protected grounds of discrimination recognized under the current laws and Constitution.
• The government, civil society organizations and citizens should cooperate in the matters of data collection and the 2020 census must be held as planned. This data must be publicly accessible.
• Verkhovna Rada should review and adopt those draft laws that enhance complaint mechanisms in discrimination cases and bills that repeal discrimination practices and have been approved by respective committees (e.g. the draft law 6240 which restores voting rights for internally displaced persons and thus removes one aspect of their discrimination).
• It is essential to ratify international instruments that foster the change and have an enforcement mechanism for discrimination cases, for instance long due Istanbul Convention.
• The government should focus on developing a range of positive actions (e.g. continue trainings for the government and law enforcement officials, develop and carry out trainings for  the members of targeted groups, intensify awareness campaigns, etc.) in prevention of discrimination that would secure that recent legal changes were not in vain. Additionally, it is important to ensure that discrimination expertise is not optional or merely formal but obligatory and functional. The results of such expertise in cases when it is mandatory under the law  should be accessible to public in the same way as results of anticorruption expertise are.

Dear readers, there is a limit to what a policy or law can do, but your ability to support, cooperate, and react is not limited. We call on you to be tolerant and respectful and not to step away when you notice injustice.