Discrimination.
Step 1. Ukraine received and accepted 3 recommendations(2) on combating discrimination within the first cycle of the UPR. All 3 recommendations can be summarized as “create framework antidiscrimination legislation and effective institutional mechanism to combat all forms of discrimination as advised by international treaty bodies in the past”. During 2008 – 2012 (first 6 months) Ukraine did not fulfil these recommendations. Main reason is lack of political will.
Step 2. Despite that in theory provisions of Ukraine’s Constitution are supposed to have a direct effect and application, Constitutional guarantees remain primarily declaratory. Legislation doesn’t provide a definition of the concept of discrimination, of direct and indirect discrimination, nor does it set out standards and criteria for proving discrimination. This entirely explains the virtually total lack of court practice. 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 it’s never applied. There is also neither administrative, nor civil-legal liability for discrimination. As the results it’s impossible to bring claim for discriminatory treatment which explains the lack of the relevant court practice in any legal sphere. A person cannot therefore seek to have discriminatory acts stopped or receive compensation. For example, this legal cap is the reason that a victim cannot punish an individual or media for circulating material calling for discriminatory behaviour. In April 2012 the Ministry of Justice prepared draft law “On combating discrimination” and submitted it to the Parliament. This process was conducted without consultation with civic society. Draft law contains many flaws that would enable its successful implementation if approved by the Parliament. With the support of the Ombudsman office, NGOs submitted its comments to the Parliament, later the law draft was submitted to the ECRI for comments and recommendations.
Step 3. Recommendation 1.
Reform relevant parts of the Ukrainian legislation to ensure access to redress for victims of all kinds of discrimination. In particular in consultations with civil society organizations and relevant experts:
- develop a comprehensive anti-discrimination legislation;
- define basic concepts needed, such as: “discrimination”, “direct discrimination”, “indirect discrimination”, “positive anti-discrimination measures”, “victimization”, “persecution”, etc.;
- include comprehensive list of protected characteristics into the law, including sexual orientation and gender identity as explicitly defined protected grounds;
- stipulate basic standards and principles for proving discrimination.
Recommendation 2.
Establish institutional framework necessary for effective implementation of anti-discrimination legislation and policy with the functions to:
- state policy implementation,
- monitoring and public reporting ,
- coordination of other state actors work,
- investigation participation,
- victims’ assistance and redress.
Refugees and asylum seekers rights.
Step 1. Ukraine received and accepted 2 recommendations(3) on improving the situation with refugees and asylum seekers rights. All of them can be summarized as “bring legislation into the line with international standards and improve recognition procedure”.
Step 2. In 2011 Ukraine changed its legislation and adopted a new law “On refugees and persons in need of subsidiary and temporary protection”, which provides several changes and can improve the situation in future if duly implemented in practice. The act defines the order of social relations regulation, not only in sphere of recognition an individual as a refugee, but also as a person who is needed of subsidiary or temporary protection, loss and deprivation of such status, as well as establishing the legal status of refugees and individuals in need of subsidiary protection and those who have been granted temporary protection in Ukraine. Unfortunately, the Law has provisions that cause reservations and can be used not to the benefit of refugees and asylum seekers. At the contrary rights of asylum seekers are very limited in comparison to rights of recognized refugees.
There has been a grave problem with the State Migration Service (SMS is structural part of MOI) and many attempts to restructure it during2009-2011.From August 2009 through August 2010 it was impossible to be granted asylum in Ukraine because there was no authority with power to do so.
Unfortunately through 2011, newly created SMS existed only on paper, which resulted in denying many people in need of protection, a due and careful examination of their claims and decisions on their claims.
Step 3. Recommendation 3.
Develop clear standards for assessment of refugee claims as well as claims for the status of persons in need of subsidiary and international protection and provide UNHCR an opportunity to
effectively monitor and support national refugee status determination procedure in Ukraine.
Recommendation 4.
Ensure that refugees and asylum seekers in Ukraine are not forced into destitution through ensuring that they have adequate means of subsistence for themselves and their families including prior to determination of their status, if impossible, enforce the right of asylum seekers to seek
employment without additional procedural obstacles like the work permit.
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1) Full text of the UPR submission prepared by the coalition is available here http://helsinki.org.ua/en/index.php?id=1337405229
2) Recommendations are the following:
1. Follow through on creating an advisory council to address discrimination, to adopt comprehensive anti-discrimination legislation, as recommended by the Committee on Economic, Social and Cultural Rights in 2007.
2. Continue its efforts to improve legislation and policies and to create institutional mechanisms to combat all forms of discrimination.
3. Step up its struggle against racism, inter alia through implementing the recommendations made by the Committee on the Elimination of Racial Discrimination concerning identity documents for Roma as well as those made by the Committee on the Elimination of Discrimination against Women and the Committee on the Representation of Women in Public Services.
3) Recommendations are the following:
1. Provide a more orderly process for refugees-asylum applicants and ensure that repatriations are carried out in line with UNHCR guidelines.
2. Bring its legislation on the determination of the status of refugees and stateless persons in line with international standards.
