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Application of Legislation, Criminal Cases, Court Rulings

Application of Legislation, Criminal Cases, Court Rulings

Supreme Court of Ukraine

According to the latest All-Ukrainian population census (as of December 5, 2001), the population of Ukraine was 48 million 487 thousand people. Of these, Ukrainians were 37 million 541.7 thousand people, or 77.8% of the total; Russian - 8 million 334 thousand people, or 17.3%; 2 million 365 thousand, or about 5%, accounted for representatives of other nationalities living in Ukraine. In general, the ethno-national structure of the country includes representatives of more than 134 nationalities.

Such ethnonational composition of the population of Ukraine implies the implementation of the corresponding national policy, which is based on the principles of non-discrimination and tolerance. The problem is that, despite the rather wide current regulatory framework for national (ethnic) and linguistic minorities in Ukraine, the implementation of this legislation continued to remain a problematic issue in 2015.

In the final report of the Advisory Committee of the Council of Europe's Framework Convention for the Protection of National Minorities for 2012-2014, the positive efforts of the Ukrainian government to ensure the rights of national minorities in the context of the political crisis were noted. According to the results of the monitoring mission in Kiev, Kharkov and Odessa in March-April 2014, the Council of Europe experts conclude that “the Advisory Committee highly estimates the conduct of special additional monitoring work in accordance with paragraph 36 of Resolution 97 of the Cabinet of Ministers of Ukraine as one of the means for protection rights of persons belonging to national minorities, in a crisis situation “.

Nevertheless, the norms of the Criminal Code (CC) of Ukraine related to the fight against hate crimes are extremely complex in law enforcement practice. For example, Art. 161 of the Criminal Code should provide a legal and legal justification for criminal prosecution both for the propaganda of xenophobia and anti-Semitism, as well as for other hate crimes. However, the text of the article is formulated in such a way that it is extremely difficult to condemn the attacker. The most fundamental factor hampering the application of the article is the direct necessity of proving direct intent in the text. Practice is extremely difficult in practice. As a result, the police are extremely reluctant to launch cases of hate crimes, trying in every way to silence or “domesticise” them, blaming criminals for “non-ideological” articles of the Criminal Code such as “vandalism,” “desecration of graves,” “hooliganism,” “damage,” “robbery,” “murder”, etc. Indicative in this situation were the events in Kharkov, when on June 12, 2015, 40 armed bats and knives of thugs in balaclava beat foreign students near the hostel in which they lived. As a result of the investigation, five people suspected of a crime were detained. The actions of intruders are qualified according to several articles of the Criminal Code of Ukraine - Part 4 of Art. 296 (hooliganism), Part 2 of Art. 15, Part 1 of Art. 115 (attempted murder) and part 2 of Art. 187 (robbery), but was completely excluded art. 161 of the Criminal Code of Ukraine. In the end, the investigation stopped on the article of hooliganism, and the detainees were released because the police did not consider the conflict to be interethnic.

Of the 40 detainees after the attacks on the Kiev March of Equality, only four were brought to trial. On June 11, Interior Ministry officials reported that the police do not have a single statement from the affected activists, who were attacked after the march. On June 12, the organizers of the March of Equality accused the Interior Ministry of lying. In Odessa, after a similar attack on participants in a public action of LGBT, cases of hooliganism without mentioning the motive of hatred were instituted.

This state of affairs, when law enforcers completely solve the issue of the qualification of hate crimes, is a long-standing problem of Ukraine. The Ministry of Justice of the country still refuses to amend its own order of 8.10.1998 No. 53/5 “On approval of the Instruction on the appointment and conduct of forensic examinations and expert studies and Scientific and methodological recommendations on the preparation and appointment of forensic examinations and expert studies” where the expert organisations on different fields are specified. Since it lacks a field category for interethnic relations, no expert's conclusion about the presence (or absence) of stirring up ethnic hatred can be considered an examination. This makes it very difficult to qualify xenophobic manifestations and, in fact, shifts the entire responsibility for the qualification of such crimes to law enforcement bodies, which, as a rule, do not possess the necessary skills and prefer to qualify the majority of such crimes as domestic ones.

The issue of creating video surveillance and proper security in the territory of the Babi Yar Historical and Memorial Complex, despite repeated acts of xenophobic vandalism, remains without attention. During the first half of the year 2015, the only verdict was recorded for cases of hate crimes. On March 24, the Kyiv district court of Odessa sentenced a 19-year-old coordinator of the local group of the nationalist movement “Fashionable Sentence” (“Modny Prigovor”) to seven years in prison for organizing the beating to death of an LGBT person.

There is also an apparent reluctance to investigate crimes committed against opponents of the “pro-European” political course. For example, on May 2, 2014 in Odessa, a massacre of activists of anti-fascist organizations was committed, among them mainly Russian-speaking residents of Odessa, militants of nationalist groups with the participation of football fans who are active supporters of neo-Nazis. Total was killed 48 (!) human. So far, only one person has been brought to justice , and the results of the trial are unknown. In February 2016, the Prosecutor General's Office sent charges to the Odessa region court against the former head of the Odessa police, who is accused of abuse of office. Real criminals and murderers are not only not convicted, but even not detained.

There have also been decisions of law enforcement agencies that can be regarded as condoning xenophobia, and attempts to unreasonably apply anti-extremist legislation. On January 13, the appeal court of the Kiev region revised the verdict of January 2014 against the so-called. “Vasilkov terrorists” - nationalists Sergei Bevza, Vladimir Shpara and Igor Mosiychuk, fully acquitting them. On January 30, the director of the Department of Religious and Ethnic Affairs of the Ministry of Culture, Andrei Yurash, stated that the Ministry of Culture of Ukraine would apply to the SBU and the Ministry of Internal Affairs with the intention of bringing to responsibility two representatives of the UOC-MP, bishop of the Banchen UOC-MP Longin (Zhara), and one of the monks of the Desyatinniy monastery in Kiev, who opposed mobilization in the army, since they considered the war in the Donbass “fratricidal”. A. Yurash attributed such statements to “anti-state appeals” and undermined the defence capability of Ukraine.

A major problem for Ukrainian law enforcers was the problem of migrants, especially displaced people - in the context of the armed conflict that began in 2014 in eastern Ukraine, almost 1.4 million people became internally displaced (IDPs). In addition, Ukraine continues to be the “gateway to the EU” for migrants from Asian countries. The most serious problems hampering effective law enforcement practice in the field of migration policy are corruption in all public authorities that are relevant to this sphere and the lack of an information security system. Law enforcement agencies do not consider cases of discrimination against migrants. Meanwhile, for the first half of 2014 The State Border Service detained nearly 1,300 illegal migrants trying to infiltrate the country. 23 thousand people were denied a pass through the state border. In March 2015 it was reported that since October 2014, the State Border Guard Service of Ukraine and the Security Service of Ukraine liquidated 23 illegal migration channels and detained 1080 illegal migrants, and another 5,240 potential migrants were not allowed to enter Ukraine.

The topic of compliance with migration legislation and the reception of refugees in modern Ukraine is weirdly intertwined with one more task facing the administration of P. Poroshenko - the achievement of a visa-free regime in relations in the EU. To this end, Ukraine needs to carry out a number of reforms: organizing camps for migrants, combating discrimination (including on sexual grounds), and ensuring human rights. So far, these reforms are not carried out. The issue of internally displaced persons who were deprived of their social and property rights by the will of the situation is especially acute in Ukraine. UN data indicate that the number of internally displaced persons reaches almost 1 million 400 thousand people. Ukrainians, Jews, Roma, Greeks, Russians and representatives of the Caucasian and other peoples are among the settlers. Society and the state, with the exception of volunteers and patrons of art, were not prepared for such mass migration flows within the country. It should be said that without the help of international financial organizations, Ukraine is unlikely to cope with the problems of internal immigrants. The official statistics, voiced by the UN, is actually understated. In fact, people migrated in proportion to the population of a European country or province, and ranks 9th in the world in terms of the number of internal migrants. TV commercials and transport advertisements call on immigrants to seek help from social centres throughout Ukraine for guaranteed small monthly assistance. And this is all that the state can help them today. Experts believe that if in the near future the country does not receive additional assistance for arranging refugees, an unfavourable situation may arise in which refugees can be on the verge of poverty and placed in conditions close to marginal.

In 2015, despite the loud declarations made by the authorities and the existence of anti-discrimination legislation, the situation with the rights of national minorities was not a top for consideration of the authorities (with the exception of the provisions of the Crimean Tatars). But even in the situation with the Crimean Tatars, the Ukrainian authorities used them as an instrument of pressure on the Russian Federation, without taking real actions to protect this national minority.

Despite the obvious necessity (to the ethnic and linguistic minorities in Ukraine, according to the latest census of 2001, there are about 14 million Ukrainian citizens - more than 30% of the population) and the position of the OSCE High Commissioner on National Minorities, no steps have been taken in this regard:

  • a special state body for working with minorities was not created (instead of the State Committee on National Minorities and Religions that was abolished in 2011);
  • there was no state monitoring of the situation with the protection of the rights of national and linguistic minorities (although this has and continues to have a serious impact on the events in the Crimea and the Donbass). State bodies do not even possess statistical information on this issue;
  • despite the creation of the Ministry of Information Policy of Ukraine, there is no state information policy in the media with regard to protecting the rights of national minorities and countering the “language of hostility”;
  • administrative, bureaucratic and political means block the implementation of the provisions of the Law of Ukraine “On the Fundamentals of the State Language Policy” (according to which the rights of 18 national and linguistic minorities are protected for education in their native language, communication with authorities, obtaining information, etc.) ratified by Ukraine of the European Charter for Regional or Minority Languages;
  • the provisions of the Laws of Ukraine “On National Minorities”, “On the Basics of Preventing and Counteracting Discrimination in Ukraine” are not being implemented.

In the annual Report of the Commissioner for Human Rights of the Verkhovna Rada of Ukraine on the Status, Observation and Protection of Human and Civil Rights and Freedoms in Ukraine for 2015 , from January 1 to December 31, the Commissioner received 359 reports of cases of discrimination, violations of the rights of national minorities and representatives of religious communities. Of these, the largest number - 62 appeals - was received about violations of rights motivated by religious and other beliefs, as well as 22 complaints on discrimination in the place of residence, registration, 17 on ethnic grounds, 12 on grounds of sexual orientation and gender equality, 11 on language feature, etc.

In addition, the report emphasizes that the Commissioner for Human Rights of the Verkhovna Rada of Ukraine on the basis of information obtained as a result of monitoring the media, in 2005, 53 production facilities were opened, which is 2.5 times higher than the previous year (22 production), but The authorized figures do not connect with the increase in discrimination and violation of rights in Ukraine on various grounds, but explains the modernization of the work of the Ombudsman's Secretariat, the beginning of the emergence of the problem of discrimination “out of the shadows” and the increased attention to it from the media, civil society.

The Commissioner for Human Rights of the Verkhovna Rada of Ukraine stresses that a significant number of issues that lead to various manifestations of xenophobia, racism and intolerance remain unresolved. In particular, we are talking about the presence in the mass consciousness of xenophobic stereotypes, the use of hate speech in the media, the spread of intolerance in the Internet network, as well as right radicalism in the youth and in particular the football environment, the commission of acts of anti-Semitic vandalism, and extreme manifestations xenophobia - the commission of crimes motivated by ethnic (national) hatred and even racial intolerance.

At the same time, there were some positive developments in 2015. For example, in the Main Investigation Department of the National Police of Ukraine, a contact point was set up on issues of hate crimes that interacts on an ongoing basis with the OSCE Office for Democratic Institutions and Human Rights and monitors the Single Register of pre-trial investigation investigations in criminal proceedings instituted on the fact of racial, national, religious intolerance. In fact, this is an important stage in the formation of an infrastructure for identifying and investigating such crimes.

On December 31, 2015, the President of Ukraine issued Decree No. 1147 of November 26, 2001, “On life-long state nominal scholarships for citizens of Ukraine who were persecuted for their human rights activities”. This act mentions 10, fairly little-known or virtually unknown to the public, persons who have been given lifelong state nominal scholarships to citizens of Ukraine who have been persecuted for their human rights activities.

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