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Civic Nation Unity in Deversity

Anti-Discrimination Legislation

Anti-Discrimination Legislation Constitution of Ukraine

Article 24 of the Constitution of Ukraine prohibits any restriction of rights on the grounds of race, skin colour, religious beliefs, language and other characteristics. Ukraine’s Criminal Code also contains Articles punishing manifestations of racism and aggressive nationalism. In general, however, anti-racist and anti-Nazi legislation is underdeveloped.

On January 28, 2014, espite the protest of several deputies from the Party of Regions and the communists, Verkhovna Rada adopted another 4 laws instead of those repealed. These include:

- “On Amendments to the Ukrainian Criminal Code on responsibility for denial or justification of fascist crimes”;

- “On Amendments to Article 297 of the Ukrainian Criminal Code on responsibility for desecration or destruction of monuments dedicated to those who fought against Nazism during the Second World War – Soviet liberation soldiers, members of the partisan movement, underground, victims of Nazi persecution and internationalist soldiers and peacekeepers”.

On July 11, 2014, Supreme Council of the self-proclaimed Donetsk People’s Republic adopted the Law on the Prohibition of Propaganda of Fascism. The document recognises OUN (Organisation of Ukrainian Nationalists, led by Stepan Bandera), Congress of Ukrainian Nationalists and UNA-UNPA (Ukrainian National Assembly – Ukrainian People’s Self-Defence, which formed the Right Sector party in March 2014 as “nationalist organisations, not to be glorified henceforth.”

The law provides a full ban on propaganda and distribution of fascist and Nazi ideology, as well as “identifies a list of prohibited terms, mottos and slogans” and “resists the existing practice of justification of Nazism and Nazi criminals and their collaborators”.

The fundamental anti-discrimination acts in Ukraine are the laws “On the Principles of State Language Policy” and “On the Principles of Preventing and Combating Discrimination in Ukraine”, adopted in 2012. The law on the principles of state language policy granted regions the right to empower certain languages with a “regional” status – i.e. equal to the official, Ukrainian language. This applies to all languages that, according to the population census, have at least 10% native speakers in the region (‘region’ refers to Oblast, Autonomous Republic of Crimea, district, city, town or village). If the language fulfils these criteria, it can be freely used in many fields instead of Ukrainian.

On May 13, 2014, Verkhovna Rada (Ukrainian parliament) adopted Law №4581 “On preventing and combatting discrimination in Ukraine”. The law passed with 272 votes after several controversial norms had been removed. While the law defines the terms “discrimination”, “indirect discrimination” and “complicity in discrimination”, the norm on “declared intentions to discriminate” was removed after the protest of the radical nationalist Svoboda party». In addition, “sexual orientation and gender identity” was removed from the list of grounds on which discrimination is prohibited.

The law “on the principles of preventing and combating discrimination in Ukraine” prohibits discrimination. Additions to Article 6 of the Law “On the principles of preventing and combating discrimination in Ukraine” prohibit (direct and indirect) discrimination, intention to discriminate, incitement to discrimination, aiding and abetting discrimination – committed by public and private sector. The law was signed by acting President Turchinov on May 29.

On October 16, 2014, parliament of Ukraine (Verkhovna Rada) adopted the law defining the self-governance of Donetsk and Luhansk regions, establishing the special status of the self-proclaimed republics. One of the items of the law was the guarantee to use Russian language and its official status in Donetsk and Luhansk, primarily inhabited by Russian-speakers.

On May 7, Supreme Civil and Criminal Court of Ukraine included sexual orientation in the list of grounds on which discrimination is prohibited. Ukraine adopted laws regulating migration in the 1990s. These include the law “On refugees” (December 1993), “On the entry to Ukraine and exit from Ukraine of Ukrainian citizens” (January 1994), “On the legal status of foreign nationals” (February 1994). At the same time, Ukraine adopted various bylaws, normative acts and regulations, which ensured implementation of these laws. In the early 2000s, these laws were updated and adopted in new editions.

The Constitution of Ukraine grants foreign nationals, refugees and stateless persons, the rights, freedoms and obligations equal to those of Ukrainian citizens (Article 26), including freedom of mobility, freedom of residence, the right to freely leave the territory of Ukraine (Article 33), as well as prohibiting any violation of rights on the grounds of race, skin colour, religious beliefs, language or any other characteristics (Article 24).

Article 16 talks about the issues of ecological migrants, particularly persons who suffered from the Chernobyl incident.

In 2014, Ukraine’s migration policy was guided by a 2011 Conception of State Migration Policy, signed by President Viktor Yanukovych. Previously, the country lacked a comprehensive document that would define the direction and principles of the state migration policy.

The Conception outlines comprehensive measures in migration policy aimed at combatting illegal immigration, regulating legal immigration and ensuring the rights of Ukrainian labour migrants abroad.

Certain measures were related to combating racism and xenophobia, as well as human trafficking and ensuring the rights of citizens who suffered from these criminal activities. Several laws were amended in 2012:

  • “On education” and “On higher education”, which provided refugees and persons seeking additional protection with the right to education equal to Ukrainian citizens.
  • “On social services”, which guaranteed these persons, including disabled persons, the right to social assistance equal to Ukrainian citizens.
  • “On free legal assistance”, which guaranteed persons seeking refugee status the right to receive all kinds of legal assistance “until the decision on their refugee status or the status of a person requiring additional protection is established”.

On September 5, 2013, Verkhovna Rada adopted a law to ratify the Agreement between Ukraine and the Republic of Poland on the social assistance of immigrants. This document regulates the issues of the mandatory state national insurance. So far, Ukraine concluded such agreements with 8 countries, including Spain, Portugal and Bulgaria. Similar agreements with Israel, Serbia and Luxembourg are being negotiated.

On November 19, 2014, Petro Poroshenko enacted the law “On the provision of rights and freedoms for internally displaced persons”. The law defines IDPs as Ukrainian citizens who permanently resides in the country and who was (forcibly or voluntarily) relocated from his place of residence in order to avoid the armed conflict, temporary occupation, violence, human rights violations and other emergency situations.

Internal Displacement is evidenced by a certificate of registration, which is obtained by appealing to the local state administration on social welfare. Temporary Displaced Persons are entitled to benefits of 2400 hryvnia per month per family; 840 hryvnia for disabled persons and 420 for able-bodied persons.

IDPs in “difficult life situations” – disabled, elderly, etc. – have the right to additional social benefits in accordance to local regulations. The law also states that local authorities must provide free housing (not including utilities) for up to six months, following the recognition of IDP status (this period can be extended, depending on the circumstances). In addition, the law provides for free food for IDPs until they are able to sustain themselves (but no more than for 1 month).

Ukraine is a party to European Convention on the Legal Status of Migrant Workers, the Agreement on cooperation in the field of labour migration and social protection for migrant workers and the protocol to the said Agreement that regulates the border migration in the CIS, as well as the Convention on the Legal Status of Migrant Workers and Members of their Families of the Commonwealth of Independent States. In addition, Ukraine is a party to 13 bilateral agreements on employment and social protection of migrant workers and 9 bilateral agreements on social security.

According to Ukrainian immigration laws, immigrants are provided with rights equal to Ukrainian citizens (except voting rights and conscription). These are:

  • The right to free medical care.
  • The right to social protection equal to citizens of Ukraine. Foreign nationals even receive birth assistance, if they give birth in Ukraine.
  • The right to low cost social and public services.
  • The right to employment (for those who have a permanent residence permit).
  • The right to engage in entrepreneurial activities, including simplified (subsidised) taxes (a system that was created to develop Ukrainian business, reduce unemployment and form the middle class).

Nevertheless, these rights do not extend to refugees, because – as mentioned above – Ukrainian employment laws does not provide for their legal employment and therefore, in accordance to the same legislation, majority of other social rights are also unavailable to them.

Asylum seekers have no access to free healthcare (including emergency aid); health services are often too expensive for refugees to take advantage of.

In 2015, the Government of Ukraine adopted a significant number of normative acts to protect the minorities. It should be noted that in most cases these acts were adopted under the pressure of the international community, within the framework of the implementation of international commitments undertaken by Ukraine, the Action Plan for the liberalization of the EU visa regime for Ukraine, etc.

On August 28, 2015, President P. Poroshenko signed Decree No. 501/2015 “On the Approval of the National Strategy for Human Rights”. The Strategy calls among the main systemic problems in the sphere of protection of human rights and freedoms discrimination and ensuring the rights of indigenous peoples and national minorities. As the Commissioner of the Verkhovna Rada of Ukraine for Human Rights noted in the annual Report on the state of observance and protection of rights and freedoms of a person and citizen in Ukraine for 2015, this document is strategic and allows for systematizing approaches, normalizing interaction and defining specific goals that public authorities should reach in the sphere of combating discrimination and ensuring the right to equal treatment.

The Decree emphasises that legislation on the protection of the rights of national minorities requires improvement and harmonization with international standards. There is a need for a legislative settlement of the status of indigenous peoples. The goal of the Strategy is to create an effective system for ensuring and protecting the rights of indigenous peoples and national minorities, supporting and developing tolerant interethnic relations in society. Among the expected results are:

  • Creation of an effective mechanism for ensuring and protecting the rights of indigenous peoples and national minorities;
  • Implementation of comprehensive measures to ensure the needs of Ukrainian citizens who belong to indigenous peoples and national minorities in social and other services;
  • Creation of an effective mechanism for the participation of representatives of indigenous peoples and national minorities in the process of adoption by government bodies, local governments of decisions on issues relating to the rights of indigenous peoples and national minorities;
  • Implementation of the policy of interethnic tolerance.

On April 23, 2015, the decree of the President “On Approving the Annual National Program of Ukraine-NATO Cooperation for 2015” was issued, which specifically noted that the Ukrainian state guarantees citizens equal political, economic, social and cultural rights and implements measures to ensure interethnic harmony and peace in Ukrainian society “regardless of ethnic and social origin, race, skin colour, political, religious or other convictions, sex, property status, place of residence, language or other signs. “ The decree also promised to improve the legislative framework for the protection of minorities, as well as the fulfilment of international obligations in the field of human rights protection. Obviously, these decrees are very timely, since the practice of 2014/15. says about something else: the closure of Russian schools, the ousting of the Russian language from various spheres of life of Ukrainian society, the delay in the adoption of the law on national and cultural autonomy and the glorification of the OUN-UPA, which offends the Russian, Polish and Jewish population of the country. and the fact that in the list of unacceptable grounds for discrimination there were no signs such as sexual orientation and gender identity.

On September 24, Presidential Decree No. 555/2015 approved a new military doctrine. Among the urgent military threats for Ukraine, it listed targeted misinformation (information and psychological impact of using modern information technologies aimed at the formation of a negative international image of Ukraine), as well as destabilization of the domestic social and political situation, exacerbation of interethnic and inter-confessional conflicts in Ukraine or its individual regions and places of compact residence of national minorities. Therefore, one of the main tasks of Ukraine's military policy in the near future and in the medium term is the prevention and effective counteraction to such information impact.

On November 23, 2015, the Cabinet of Ministers of Ukraine adopted Decree No. 1393-r “On Approving the Action Plan for Implementing the National Human Rights Strategy for the Period to 2020” (hereinafter - the Action Plan). The Action Plan pays attention to such important issues as ensuring the rights of indigenous peoples and national minorities, preventing and combating discrimination, as well as creating, as it is called, an effective system to address them.

The Action Plan also proposes resolving one of the most important problems of Ukrainian legislation, which has a negative impact on law enforcement practices in relation to national minorities, - to harmonize the conceptual apparatus of the Criminal Code of Ukraine with regard to the qualifications of various forms and manifestations of intolerance, to unify the terminology using the term “intolerance”. On the other hand, it can be regretted that the plan is mainly focused on overcoming discrimination against LGBT people, paying much less attention to combating discrimination on other important human traits (nationality, culture, ethnicity, language, etc.). It also causes confusion in the proposal contained in the Action Plan to decriminalize the concept of discrimination. It is proposed to remove from the disposition of article 161 of the Criminal Code of Ukraine provisions concerning criminal liability for discrimination (direct or indirect restriction of rights or the establishment of direct or indirect privileges on grounds) and, in return, provide for administrative and civil liability for violation of the current norm in the form of fines for damages. Such a measure can serve as a factor in raising the threshold of offenses against national minorities.

On November 25, 2015, the Cabinet of Ministers of Ukraine adopted Resolution No. 993 “On the establishment of an Interdepartmental Working Group on the Implementation of the Action Plan for the Implementation of the Strategy for the Protection and Integration of the Roma National Minority into the Ukrainian Society for the Period to 2020”.

The Interdepartmental working group is a temporary consultative and advisory body of the Cabinet of Ministers of Ukraine. Its main tasks include:

  • Ensuring coordination between the executive authorities and Roma public organizations on the integration of the Roma of the national minority into Ukrainian society;
  • Monitoring implementation of the action plan for the implementation of the Strategy for the Protection and Integration of the Roma National Minority into the Ukrainian Society for the period up to 2020;
  • Preparing proposals on increasing the effectiveness of executive bodies on the integration of the Roma national minority in Ukrainian society.

The adoption of this document is primarily due to the need to fulfil the international commitments undertaken by Ukraine as a participating state in human dimension concerning the Roma and Sinti communities, namely the OSCE Action Plan on Improving the Situation of Roma and Sinti in the OSCE Area of 2003.

The Order of the Ministry of Social Policy “On Approving the State Standard of Social Service for Representation of Interests” dated 12/12/2015, No. 1261, registered by the Ministry of Justice of Ukraine as of January 22, 2017 No. 127/28257, is also devoted to support of Roma. Subparagraph 3 of Point 1 of Section VIII of the Order stipulates that the main activities that constitute the content of the social service, the form of work and the approximate time for their implementation, are also concentrated on “families, persons from among national minorities”, namely:

  • Conducting negotiations on behalf of the recipient of social services;
  • Assisting in registration or restoration of documents;
  • Assisting in registering a place of residence or stay;
  • Assisting in the search for relatives and friends, the restoration of kinship and social ties;
  • Assisting in providing access to resources and services at the place of residence / stay, establishing links with other specialists, services, organizations, enterprises, bodies, institutions, institutions, etc.

On December 23, 2015, Resolution № 1075 “On the establishment of the Intergovernmental Ukrainian-German Commission for Cooperation on persons of German origin living in Ukraine” was adopted by the Cabinet of Ministers of Ukraine. According to this Resolution, the Commission is a temporary consultative and advisory body of the Cabinet of Ministers of Ukraine, whose main tasks are:

  • Assistance in securing the rights of persons of German descent residing in Ukraine;
  • Organization of the development and implementation of a set of measures for cooperation between Ukraine and the Federal Republic of Germany in order to ensure the realization of the rights of persons of German descent, meet their social, cultural, information and other needs;
  • Assistance in creating the necessary socio-economic and other conditions for the preservation and development of ethnic, cultural, linguistic and religious identity of persons of German origin.

This Resolution was adopted due to the repeated criticism of the German government regarding improving the dialogue on the problems with the German minority in Ukraine, the implementation of the interstate agreement on cooperation in the issues of the German minority in Ukraine and the resumption of the work of the bilateral commission for the German minority in Ukraine.

On September 24, 2015, the Cabinet of Ministers adopted Resolution No. 736 “Separate Issues of the State Service of Ukraine on the Autonomous Republic of Crimea and the City of Sevastopol”. Although this service is largely virtual in nature due to the annexation of Crimea in 2014, the Resolution is of interest, since among the tasks of this body is the creation of conditions for the free development of the Crimean Tatar language, the languages of other indigenous peoples and national minorities living in the Crimea, as well as assistance in meeting their national and cultural, educational needs, the development of ethnic identity. It is characteristic that until March 2014, such tasks were never put by the Ukrainian government, despite the appeals of citizens.

On November 5, 2015, the Law of Ukraine No. 761-VIII “On External Labour Migration” came into force. Adoption of such a law is important for Ukraine, since a significant part of Ukrainians are in external labour migration. According to the Ministry of Labour, these are about 3-5 million people. Unofficially, figures are estimated to about 9 million. In the opinion of the majority of the researchers, approximately one in every three able-bodied Ukrainian (i.e. 6.5-7 million people) work in a foreign country. At the same time, after the Revolution of dignity (or Euromaidan), migration flows from Ukraine were rapidly intensified - on average, 30% of Ukrainians left to work abroad.

The law defined the rights of migrant workers to appropriate working conditions, social protection and family reunification. State guarantees for the provision of social services and assistance to labour migrants have also been established. The state control and responsibility for violation of the requirements of the legislation on labour migration are established. In addition, the law states that central and local executive authorities and the Security Service of Ukraine shall take, within the limits of their authority, all possible measures to prevent illegal external labour migration and trafficking in persons, therefore, economic entities that provide employment intermediation services abroad, the mass media, other enterprises, institutions and organizations or individuals that disseminate false information related to external employment migration, bear responsibility in accordance with the Law.

At the same time, experts argue that the adopted law “On External Labour Migration” is declarative and does not allow to actually protect the constitutional rights of migrant workers. First of all, this concerns the fact that the rights and social guarantees of labour migrants and members of their families defined by the adopted law are declarative, do not establish the responsibility of the state for non-fulfilment of their obligations and the possibility of protection by migrant workers of their labour and other rights in the country stay in Ukraine. In particular, the Law did not envisage the right of migrant workers to repatriate, although it is declared in the text that the state will create conditions for the return to Ukraine and the reintegration of labour migrants and members of their families into society by providing social services.

Another part of the declared rights requires additional financing. This concerns the right of migrants to work in Ukraine public associations of migrant workers formed abroad; to facilitate the satisfaction of the national, cultural, educational, spiritual and linguistic needs of labour migrants; to ensure the right of migrant workers and members of their families to information; reintegration into society of labour migrants. As practice shows, the state does not allocate funds for the implementation of such projects.

On November 2, 2015, Ukraine passed Law No. 785-VIII “On Amendments to the Labour Code of Ukraine on Harmonization of Legislation in the Sphere of Prevention and Combating Discrimination with the Law of the European Union”. This act provides for the prohibition of discrimination in labour relations on any grounds and involves the introduction of changes to the labour code, in particular, a list of characteristics for which discrimination is prohibited: “sexual orientation”, “gender identity”, “disability” and others. The document was necessary and designed to bring Ukraine's legislation into line with EU law and to implement an action plan to liberalise the EU visa regime for Ukraine.

On November 25, 2015, the Verkhovna Rada of Ukraine adopted Resolution No. 824-VIII “On the Recommendations of Parliamentary Hearings on the Role, Importance and Impact of Civil Society on the Formation of an Ethnonational Unity Policy in Ukraine.” As the name suggests, the Decree contains real practical proposals to state authorities and local self-government on the formation in Ukraine of an ethnonational policy aimed at ensuring social cohesion.

The Resolution recommends various political bodies of Ukraine to facilitate the adoption of a number of legislative acts aimed at improving legislation in the sphere of state ethno-national policy. These include, for example, proposals to improve the mechanisms for supporting the activities of public associations of national minorities aimed at preserving their native language, history, culture, traditions, with the aim of strengthening inter-ethnic harmony; ensure implementation of activities for the implementation of the European Charter for Regional or Minority Languages; Ministry of Education and Science of Ukraine - to ensure the further introduction of education principles of interethnic and inter-confessional tolerance in the education system in Ukraine; to promote the development of a network of preschool and general educational institutions with instruction in the languages of national minorities, their personnel and teaching and methodological support; Ministry of Internal Affairs - take measures to ensure proper and complete investigation by law enforcement agencies of crimes committed on grounds of national, racial or religious hatred or enmity in cases where there is reason to believe that they are in cash; local executive authorities and local self-government bodies - to develop regional programs of national and cultural development with the participation of public associations of national minorities of Ukraine and to allocate funds for their financing in local budgets; ensure the functioning of a balanced network of preschool and general educational institutions with instruction in the languages of national minorities, take measures to strengthen their material and technical base, etc. Unfortunately, in the resolution there were very few recommendations to the authorities and local self-government regarding the observance and implementation of the current legislation of Ukraine with respect to the national minorities of Ukraine.

On July 8, 2015, a number of resolutions of the Cabinet of Ministers were adopted that facilitated the fate of internally displaced persons (IDPs). Resolution No. 473 simplified the procedure for acquiring the status of a registered unemployed person from among internal migrants, their registration and re-registration, as well as the registration of persons seeking employment in employment centres. It also contained an exhaustive list of documents for registration at IDPs' employment centres, which were dismissed from work in the absence of documents confirming the fact of such dismissal.

Resolution No. 471 focused on the issue of protecting the rights of immigrants to compulsory state insurance. The Government also approved the Program for the Employment and Vocational Training of Internally Displaced Persons for 2015-2016, which sets out the specific tasks of the authorities. The financial provision of the document in the budget of the Fund for Compulsory Insurance in case of unemployment provides 21 million UAH.

Decision No. 1094 of the Cabinet of Ministers of Ukraine on December 16, 2015, approved the Complex State Program for the Support, Social Adaptation and Reintegration of Ukrainian Citizens who moved from the temporarily occupied territory of Ukraine and the areas where the antiterrorist operation was conducted to other regions of Ukraine for the period until 2017 and the Action Plan for its implementation.

As for the anti-discrimination law, its adoption in 2012 was not accompanied by the necessary mechanism for its implementation. In Ukraine, there is a so-called "Classifier of citizens' appeals", approved by the Cabinet of Ministers of Ukraine, resolution No. 858 of September 24, 2008. In accordance with this resolution, state bodies cannot accept citizens' applications that do not correspond to the Classifier. The index concerning discrimination did not exist in the Classifier, therefore, in all these years the state did not take citizens’ complaints for discrimination into consideration on quite lawful grounds.

Only on June 1, 2016, after an appeal of Ukrainian Ombudsman's, Ukrainian Cabinet of Ministers adopted resolution number 359 "On Amendments to Part II of the Classifier of citizens" where position 120 in the column "Issues’ Content" was supplemented with the words "Prevention of discrimination". Thus, since 2016, Ukrainian citizens have finally received the right to file complaints on discrimination issues.

In 2016 they adopted the procedure for exercising control over social payments to internally displaced persons at the place of their actual residence. This is stated in Resolution No. 365 of June 8, 2016, which prescribes the procedure for the appointment (restoration) of social benefits to the settlers. This measure was aimed at overcoming bureaucratic barriers to providing assistance to this most vulnerable group of the population.

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