Ukrainian experts comment on questions of the UN Human Rights Committee addressed to the government of Ukraine

Topics related to the situation of vulnerable groups were included on the list of questions addressed to the Ukrainian government during the 127th session of the UN Human Rights Committee.

In assessing the level of representation of women in political and social life, the HRC asked Ukraine to report on measures taken through the implementation of the State program for ensuring the equality of rights and opportunities of men and women up to 2021.

In reviewing Ukraine’s antidiscrimination laws, the HRC requested clarification on plans to improve the effectiveness of norms (including inclusion of sexual orientation and gender identity among the protected grounds, the sharing of burden of proof in discrimination cases, the creation of effective remedies for victims of discrimination).

The HRC noted several instances of discrimination, hate speech, violence, and calls to violence against LGBT people, particularly ones that were perpetrated at the Equality March in Kyiv on June 19, 2019. The HRC noted with concern the police’s failure to take action, the lack of effective investigation in response to homophobic and transphobic violence, and the failure to properly classify such incidents as hate crimes. Council members also considered it appropriate to recognize hate motives on the basis of sexual orientation and gender identity as aggravating circumstances for all offences set out in article 161 of the Criminal Code.

Council members requested the adoption of measures to protect journalists, gender activists, and human rights defenders, particularly those working on the rights of LGBTI people, from harassment, intimidation and assaults (including by extreme right-wing groups). Council members requested assurance that attacks against journalists are accurately classified under article 345-1 (threats or violence against journalists) of the Criminal Code.

The HRC expressed interest in the government’s plans to improve the law regulating peaceful assembly and bring it into line with the provisions of the International Covenant on Civil and Political Rights and asked for a response to alleged violations of the right to peaceful assembly perpetrated by extreme right-wing groups, including attacks on women’s marches in Kyiv, Lviv and Uzhhorod on March 8, 2018, and frequent attacks against participants in, or violent disruption of, peaceful assemblies organized by Roma and LGBT persons.

In reference to discrimination against ethnic minorities, the HRC requested Ukraine to respond to hate speech, manifestations of racism and intolerance, threats and racially motivated violence, often perpetrated with the involvement of extreme right-wing groups, and requested Ukraine to report on measures taken to effectively investigate such crimes under article 161 of the Criminal Code, including attacks on Roma settlements in Kyiv, Ternopil and Lviv in 2018. Council members asked Ukraine to outline the efforts made to prevent the activities of extreme right-wing organizations and groups in Ukraine.

The HRC will examine Ukraine’s implementation of the International Covenant on Civil and Political Rights in the summer of 2020. Below are the comments of Ukraine experts on the HRC’s questions.

Yevheniya Lutsenko,
director of the Center for Social and Gender Studies “New Life”

In terms of gender equality, the representation of women in politics, including participation in the decision-making process, has improved significantly. In fact, there has never been such impressive representation in high-level government bodies: women make up one-third of the Cabinet of Ministers (six of 18; prior to this, the highest number of female ministers at one time in independent Ukraine was three) and have almost doubled their representation in parliament (from 11.5 percent to 20.9 percent, or 88 of 422 deputies). The 9th convocation of the Verkhovna Rada, like the previous convocation, created an inter-factional association known as Equal Opportunities that representatives of all factions agreed to participate in. Local elections are expected to be held in 2020. The question of promoting and advancing women is very relevant right now in Ukraine, so I hope that this will be reflected in the new groups of deputies on city and district councils. Under Ukrainian law, the president appoints administration heads. Oblast administrations are mainly led by men: there is only one woman out of 25 heads (acting head of the Sumy Oblast State Administration).

What important things are the inter-factional association Equal Opportunities doing for women?

This association has existed in the Verkhovna Rada since 2012. Its top priorities are combating domestic violence, protecting the rights of women and children, and creating equal opportunities for men and women in various areas of public life. Today its work focuses on two key themes: advocating for gender equality, including in the area of involving women in public and political life, and joint legislative initiatives to advance this topic.

There are plans to create a Public Council within the association. Generally important questions are raised during these meetings that require a legislative initiative for resolution. This was how I was able to draw deputy Svetlana Voytsekhovskaya’s attention to the issue of employment discrimination against women and the list of banned professions. Effective cooperation in this matter led to the list’s cancellation in Ukraine1As part of the #Alljobs4allwomen campaign, ADC Memorial has been working to achieve the cancellation of gender-based bans on employment, in particular lists of professions banned for women in Eastern European and Central Asian countries. In late 2017, Ukraine cancelled this discriminatory document, thus opening access to hundreds of jobs for women..

Oksana Guz,
attorney, senior partner at “Prove” Attorneys Union

One of the main reasons why the protection of LGBT people within the scope of criminal law is so ineffective in Ukraine is that the legal framework is imperfect. Society is developing, changes are even taking hold in the law, but some norms of the Criminal Code remain unchanged. For example, changes that would ease both the classification and pretrial investigation of hate crimes have not yet been made. In fact, Ukrainian law still does not have this legal term. Even though the National Police does count these crime, their official number does not correspond to reality.

What norms are used to prosecute people for hate crimes?

In its current state, article 161 of the Criminal Code (“violation of the equal rights of citizens on the basis of race, ethnicity, or religion”) sets out liability for violation of the equal rights of citizens on the basis of their race, ethnicity, religious beliefs, disabilities, or other characteristics. In terms of protecting LGBT rights, the characteristics of sexual orientation and gender identity are not directly mentioned in it. The article is too cumbersome and imprecise; as it stands now, it is virtually impossible to prosecute a guilty party under this article.

A more detailed analysis of the article shows that the first part relates to minor offenses, meaning that the assailant is released from criminal liability if three years have elapsed between the day on which the crime was committed and the day on which a judgment enters into force. In practice, only entry into the Unified Register of Pretrial Investigations and appeals to the illegal closing of cases during the pretrial investigation stage can take up that entire period. Another problem with prosecution under this article is the criminal’s age (assailants under the age of 16 who assault activists and disrupt events cannot be prosecuted for a crime, violation of article 161 does not relate to crimes for which criminal liability appears at the age of 14).

In today’s Ukraine, hate crimes are often not classified or investigated. On June 19, 2019, on the day of the Equality March in Kyiv, unknown assailants attacked audience members at a screening of Pride House near the official location of Kyiv Pride—the IZone Platform, where various LGBT-themed events were being held. According to organizers, four attacks occurred at approximately the same time, but the police only recorded one case and only took a statement from the victim after human rights defenders interfered. These crimes are generally classified as hooliganism because this simplifies the investigation, but, alas, this does not reflect the actual picture of events. Was this attack a hate crime? Considering the circumstances, place, and time, yes.

On November 18, 2018, on the eve of International Transgender Day of Remembrance, a peaceful action was planned in Kyiv. Before the start of this march for transgender rights, the event was blocked with the use of smoke grenades and tear gas. As a result, several people suffered from the gas. But they refused to write statements, so not one single charge sheet was drawn up. The sole criminal proceeding was opened in relation to an attack on a foreign journalist who told police that he was hit in the face and sprayed with gas while taking photos. The assailants were not prosecuted or even arrested. As in other cases, the police classified the crime as hooliganism and not as a hate crime because of the lack of legal norms.

-How frequently are hate crimes on the basis of SOGI committed?

If we’re referring to the frequency of attacks on public events featuring the abbreviation “LGBT,” then we can say with confidence that this happens regularly, especially if the event has received a lot of coverage.

  1. There was an attempt to block the Equality Festival in Zaporizhia (2017). This was a rare case when the people who attacked two participants were successfully prosecuted, but their actions were classified as hooliganism.
  2. The Equality Festival in Chernivtsi (2018) was broken up with the use of gas, and participants were threatened. The NGO Insight submitted a statement about a hate crime to the police, but the statement was not even entered in the Unified State Register of Pretrial Investigations. The court dismissed the complaint with the requirement to obligate the police to enter the information in the register and start an investigation, considering the subjective view of the organization’s director set forth in the statement.
  3. After an action dedicated to International Women’s Day was held in Uzhhorod (2018), assailants threw paint at protestors, causing chemicals burns to their eyes and ruining their clothes. The police arrested six people at the scene and classified the case under article 161 of the Criminal Code, in addition to other articles. After the investigation, the case was referred to court with the classification of “light bodily harm” in relation to two of the accused.

These three cases are just a small number of the cases I worked on. A guilty verdict was reached in only one case. These case could have developed differently if hate crimes were properly investigated and if the investigations were effectively supervised.

 What measures must be taken for the effective protection of LGBT people in Ukraine?

  • Inclusion of the hate motive on the basis of sexual orientation and gender identity in the list of aggravating circumstances (article 27 of the Criminal Code);
  • Inclusion of the qualifying characteristics of sexual orientation and gender identity in other articles of the Criminal Code.
  • Lowering of the age of criminal liability for hate crimes.
  • Amendments to Article 161, simplification of its interpretation and understanding;
  • Inclusion of the definition of hate crimes in the conceptual framework;
  • Creation of a special unit of the National Police of Ukraine to work on crimes of hate and intolerance.

A clear statutory definition of the characteristics of sexual orientation and gender identity will go a long way to simplifying the classification of crimes, reduce the amount of time for proving the motive of SOGI in concrete cases, and simplify the work of the police and attorneys for the victims.

We can take the disruption of the Equality Festival in Lviv (2016) as an example. This disruption was accompanied by mine laying, evacuations, explosions, rock throwing, smashed-up police cars, and a subsequent “safari” around the city in a hunt for people of a nonstandard appearance. This measure was planned as a cultural platform for promoting tolerance and equality and fighting discrimination against groups vulnerable to manifestations of intolerance and violence, including LGBT people. The state was not able to establish the identities of the guilty parties, even though many of them uploaded photographs and made them available to the public to show how proud they were of disrupting the event. Several criminal cases were opened, but were then closed for various reasons in the pretrial stage. None of the cases were officially classified as hate crimes. Clearly, a statutory definition of the term “hate crime” and the motive of SOGI would help the investigation classify crimes correctly and prosecute the guilty parties.

I believe that simply adhering to the obligations Ukraine has already undertaken would be enough to ensure the safety of LGBT people. For example, in 2016 the Ukraine National Action Plan on Human Rights, which included the introduction of required amendments to the Criminal Code, was approved by Order of the Cabinet of Ministers of Ukraine. This plan has yet to be implemented, even though it was initially agreed upon with the relevant agencies. It is the totality of these amendments, the creation of a special hate crimes department (and not just for LGBT groups), and proper preventive work that could change the situation and result in a drop in the number of these crimes, more effective investigations, and more prosecutions of the guilty parties.

Andriy Leshchenko, attorney:

How do the authorities react to hate speech and displays of racism against the Roma minority?

Even though Ukraine has undertaken a number of international obligations to fight racism and incitement of hatred and xenophobia in relation to ethnic minorities, in particular Roma people, and has passed the Law of Ukraine “On the Foundations for Preventing and Fighting Discrimination in Ukraine” in 2012, actual steps to combat these negative manifestations leave much to be desired.

However, Ukraine’s laws do list specific elements of crimes that provide the authorities with effective tools for responding to racism and incitement of hatred and xenophobia, like article 161 of the Criminal Code (“violation of the equal rights of citizens on the basis of race, ethnicity, religion, disability, or other circumstances”) and a series of articles listing aggravating circumstances for a number of ordinary crimes (articles 115, 121, 122, 126, 127, 129 of the Criminal Code). Even though the level of these crimes has increased significantly over recent years, these elements of a crime are generally not applied.

Like other countries in our region, Ukraine has seen anti-Roma attacks in recent years. Ethnic clashes, pogroms of Roma homes, and the expulsion of Roma families from the village of Loshchynivka, Odessa Oblast, occurred after the body of a young girl was found with signs of violence in late August 2016 and a young Romani man was accused of the crime without any grounds. The local authorities did nothing to suppress anti-Roma actions, but even incited these actions themselves in an attempt to maintain their political ratings, while the police did nothing at all. At the same time, the accused and a number of witnesses stated under oath that law enforcement authorities had beaten and tortured them. In spite of the existence of an open criminal case in relation to the torture, which was initiated only after the police’s failure to act was appealed in court, the prosecutor’s office of Odessa has not yet filed charges against anyone in its pretrial investigation and the guilty parties have evaded responsibility.

This negative example was used by members of right-wing groups to organize similar actions to improve their own ratings. In 2018, they committed pogroms of Roma settlements near Kyiv. The opening of criminal cases did nothing to suppress these actions in time and a young Roma man was murdered in a racially motivated killing as a result. Only the prosecution, effective investigation, and timely arrest of criminals has resulted in a significant drop in the number of such attacks. However, further tragedies could have been avoided if the parties guilty of the pogroms that took place during the Loshchynivka tragedy of 2016 had been punished.

How effective are investigations into hate crimes?

An analysis of the statistics of the Procurator General’s Office of Ukraine show how the real situation differs from the situation on paper.

According to official data, 82 crimes were registered under article 161 of the Criminal Code from January to December 2018. In relation to these, six people were named as suspects and a total of four were accused. In 2018, a total of 35 criminal cases were closed, and 78 criminal proceedings remained open at the end of the year. The greatest number of crimes were recorded in the summer months of 2018, when there was a surge in activity. From January to November 2019, 102 crimes were registered under article 161 of the Criminal Code, four people were announced as suspects, and an indictment was issued in only one case. One hundred criminal cases under this article remain open, while 57 have been closed. Thus, indictments under article 161 were issued in only 7 percent of the total number of registered proceedings in 2018 and slightly over one percent of cases in 2019. This illustrates the inadequacy of measures to fight the problem of hate crimes.