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    Ukraine (2nd cycle)

    For a summary of Ukraine’s review at the first cycle please click here.

    14th UPR session
    Date of review: 24 October 2012
    Date of report adoption: 14 March 2013
    Working Group report: A/HRC/22/7

    Summary

    Recommendations: Ensure that legislation is fully compliant with international commitments; Adopt a comprehensive anti-discrimination law that addresses the worrying trend of incidents based on gender, sexual orientation, racial and ethnic discrimination; Raise awareness on discrimination, including on the basis of sexual orientation and gender identity.

    Status: accepted.

    Recommendations: Withdraw draft legislation criminalising the promotion of homosexuality, and refrain from adopting any other legislation that restricts freedom of expression; Take an active stance to stop any actions or laws that constitute an infringement of the rights of LGBT persons; Increase efforts to improve the effective protection of LGBT persons.

    Status: rejected.

    I. Key issues/recommendations identified by NGOs

    • Reject draft legislation that would restrict freedom of expression by banning “promotion of homosexuality”;
    • Take action against hate crimes; include sexual orientation and gender identity in antidiscrimination legislation;
    • Remove any excessive requirements in legal gender recognition and ensure quick, transparent and accessible procedures for changing name and gender marker;
    • Review the High Commissioner’s report on sexual orientation and gender identity, and consider implementing the recommendations.

    Note: recent developments in Ukraine include introduction of draft legislation prohibiting the “promotion of homosexuality” – see:

    http://tinyurl.com/9px6jyp

    http://tinyurl.com/bl549cx

    II. Excerpts from input reports

    National report

    No references to sexual orientation or gender identity

    UN Compilation

    No references to sexual orientation or gender identity

    Summary of stakeholder information

    II. Information provided by other stakeholders
    C. Implementation of international human rights obligations, taking into account applicable international humanitarian law
    1. Equality and non-discrimination

    13. JS11 highlighted that the principle of equality was not extended to citizens in the Constitution. JS11 noted the absence of a comprehensive anti-discrimination legislation. Council of LGBT organisations of Ukraine (CLGBT) stated that anti-discrimination provisions were scattered throughout the legal system and lacked effective mechanism for their implementation. JS2 stated that legislation did not provide a definition of discrimination, including direct and indirect discrimination and did not include a comprehensive list of grounds for discrimination. As CoE noted, CoE-ECRI reiterated its recommendation that Ukraine include in the Constitution the right to equality and non- discrimination for all, but not just for citizens. JS11, JS2, CLGBT, Insight and the Council of Europe (CoE) recommended that Ukraine adopt a comprehensive anti-discrimination law covering all areas of life.

    19. HRF highlighted the lack of explicit legal protection against discrimination based on sexual orientation. Furthermore, as CLGBT noted, some laws contained discriminatory provisions against LGBT persons. HRF and CLGBT pointed to intolerance towards LGBT persons in society. JS2 referred to reports indicating that LGBT persons experienced direct and indirect discrimination in employment, access to services, education, housing, health care and access to justice.  JS2 also pointed to reported high incidence of bias-motivated crimes directed at LGBT individuals and organisations. Insight reported that politicians chose to use homophobia as part of their election platforms in 2010 and 2012.

    20. Insight reported that hate crimes towards LGBT people often treated as hooliganism. JS2 stated that LGBT persons were reported to be often victims of police profiling and illegal arrests. CLGBT reported that threats to disclose information about the person‘s sexual orientation to his/her relatives or colleagues were reportedly used by law enforcement bodies to extort money or make LGBT people to admit guilt for crimes they did not commit.

    4. Right to privacy, marriage and family life
    38. Insight reported that legislation did not provide rights to LGBT people to register their partnership, to marry or to adopt children. CLGBT explained that same-sex couples were deprived of any form of legal recognition and of any rights as a family even if they cohabit and de facto constitute a family. Same-sex couples were not allowed to jointly adopt children and legislation did not recognise any parental or custodial rights and obligations for a partner in a same-sex couple in relation to the child of the other partner. Insight concluded that the lack of legal recognition of diverse forms of families resulted in discrimination in a number of areas of life.

    III. References to SOGI during the Working Group review

    I. Summary of the proceedings of the review process
    B. Interactive dialogue and responses by the State under review

    19. The Netherlands observed that Ukraine has signed but not ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence. It welcomed a letter by the Ombudsman to recall draft law No. 8711, as the law might lead to excessive restrictions on freedom of expression. The Netherlands made recommendations.

    21. Norway expressed deep concern about instances of selective justice in Ukraine and welcomed the approval of a new criminal procedures code. It appreciated Ukraine’s active stance to integrate minorities. It expressed its concern at legislation under consideration that would explicitly discriminate against LGBT persons and limit their right to freedom of expression. Norway made recommendations.

    33. Sweden stated that the new criminal procedure code is a step in the right direction but noted that the need for further reforms to the prosecutor’s office and the independence of the court system, have been identified.  Sweden raised concerns over the widespread of cases of police brutality and their impunity; as well as protection of rights of LGBT persons. It encouraged Ukraine to ratify the Rome Statute of the International Criminal Court (ICC).  Sweden made recommendations.

    43. Switzerland expressed concern at allegations of torture and ill-treatment by the police as well as the lack of investigations of such cases. It was concerned by the detention and treatment of members of the former government. Switzerland also expressed concern with discriminatory acts on the basis of race and nationality as well as the draft legislation discriminating LGBT persons. It made recommendations.

    47. The United Kingdom of Great Britain and Northern Ireland noted the reform of the judicial system, including the new Criminal Procedure Code. It highlighted reports of selective justice and serious violations of fundamental legal principles in relation to recent trials.  It was concerned by the discrimination of LGBT persons and by the draft Bill 8711. It made recommendations.

    48. The United States of America expressed concern at the deterioration of fundamental freedoms and the rule of law, and widening corruption. It viewed positively the passage of the Criminal Procedure Code. It remained concerned over politically motivated trials, the imprisonment of the opposition, increased pressure on independent media, police abuse, trafficking in persons, discrimination of LGBT persons and the weak asylum system. The United States of America made recommendations.

    49. Uruguay noted Ukraine’s cooperation with the universal system of human rights including its mid-term report on UPR implementation and its standing invitation to special procedures. Uruguay referred to the discrimination against LGBT persons. Uruguay made recommendations.

    54. Australia was concerned about the deteriorating situation regarding freedoms of assembly and expression and fair judicial process. It welcomed the withdrawal of draft legislation that would have re-criminalized defamation. However, it was deeply concerned about the draft bill outlawing the promotion of homosexuality and the selective and politically-motivated judicial processes applied against opposition figures. Australia made recommendations.

    62. Canada remained concerned about prison conditions and asked about measures that were adopted to guarantee detainees’ right to be treated humanely, including steps to strengthen complaints mechanisms. It welcomed steps taken to raise awareness of domestic violence and racism. Canada was concerned about attacks and discrimination against the LGBT community and draft legislation threatening freedom of speech and assembly. Canada made recommendations.

    77. Finland welcomed ratification of the CRPD and its optional protocol and amendments to legislation on the rights of persons with disabilities, but was concerned about their effective implementation. It was also concerned about draft legislation criminalizing references to homosexuality in the media or public domain, which would contradict Ukraine’s international human rights obligations. Finland made recommendations.

    78. France welcomed measures adopted to respond to allegations of torture and ill-treatment, but noted that they seemed insufficient. It was concerned about increasing violence against persons because of their sexual orientation and at attempts by Parliament to adopt legislation criminalizing the promotion of homosexuality. It was also concerned about pressure exerted on the independent media and journalists. France made recommendations.

    79. Germany expressed its appreciation at efforts to implement the recommendations of the first UPR cycle, but remained concerned about continued human rights violations. It encouraged Ukraine to abandon draft legislation criminalizing the promotion of homosexuality and to refrain from other legislation infringing on the human rights and fundamental freedoms of LGBT persons. Germany made recommendations.

    85. Ireland commended Ukraine on progress achieved in implementing commitments made following the first Universal Periodic Review. It was concerned about the lack of explicit legal protection against discrimination based on sexual orientation.

    IV. Conclusions and/or recommendations

    The following recommendations were accepted by Ukraine:

    97.24. Ensure that legislation, including the proposed Bill 8711, is fully compliant with Ukraine’s international commitments, including under the European Convention for Human Rights (United Kingdom of Great Britain and Northern Ireland);

    97.30. Adopt a comprehensive anti-discrimination law that addresses the worrying trend of incidents based on gender, sexual orientation, racial and ethnic discrimination (Portugal);

    97.56. Remove from the legislation discriminatory provisions based on race, sex or sexual orientation, and adopt comprehensive anti-discrimination legislation (Canada);

    97.59. Continue its effort to combat discrimination and promote equality in accordance with international treaties establishing guarantees of fundamental human rights and freedoms and equality in the enjoyment of such rights, without privileges or restrictions based on race, colour, political, religious or other belief, gender, sexual orientation, ethnic or social origin, property status, place of residence, language or other grounds (Brazil);

    97.69. Respect its international commitments on fundamental rights related to non-discrimination, prevent the adoption of a law prohibiting freedom of expression with regards to homosexuality and  raise awareness of civil society on combating  all forms of discrimination, including discrimination based on sexual orientation and gender identity (France).

    The following recommendations were rejected by Ukraine:

    97.18. Reject any proposed legislation that would restrict freedom of expression relating to sexual orientation (Slovenia) (Norway);

    97.18. Not accepted. National legislation establishes the principle of non-discrimination, which provides equal rights and liberties for all persons, groups of persons, and equality before the law, respect for the dignity of every human being, equal opportunities for all individuals and / or groups of individuals. In this regard, the selection of a form of discrimination considers inappropriate. In addition, Article 34 of the Constitution guarantees everyone the right to freedom of opinion and speech, freedom of expression of their views and beliefs. Article 64 of the Constitution says that the constitutional rights and freedoms of man and citizen may not be restricted, except as provided by the Constitution.

    97.19. Withdraw its draft legislation criminalising the promotion of homosexuality, and refrain from adopting any other legislation that restricts freedom of expression (Australia);

    97.19. Not accepted, taking into account the opinion given in 97.18. Furthermore it should be noted that the adoption of new laws or amending existing laws shall not diminish the content and scope of existing rights and freedoms. In addition, the government has no authority to withdraw the bills initiated by MPs of Ukraine;

    97.25. Enact legislation that explicitly protects LGBT persons from discrimination and that laws that contain discriminatory provisions against LGBT persons are amended (Ireland);

    97.57. Step up the efforts to fight against discrimination by refraining from contradictory legislation and by amending the anti-discrimination legislation to include explicit references to sexual orientation and gender identity as possible grounds of discrimination (Finland);

    97.70. Take an active stance to stop any actions or laws that constitute an infringement of the rights of LGBT persons (Sweden);

    97.70. Not accepted according to the opinion given in the recommendation 97.18. However, we consider it necessary to note that non-discrimination principle enshrined in Article 24 of the Constitution of Ukraine, Article 6 of the Law of Ukraine “On Prevention and Combating Discrimination in Ukraine.” Also Article 67 of the Criminal Code of Ukraine provides that the offense committed with racial, national or religious enmity or discord is an aggravating factor in sentencing;

    97.71. Implement the recommendation issued in 2010 by the Committee of Ministers of the Council of Europe on measures to combat discrimination based on sexual orientation or gender identity (Switzerland);

    97.72. Adopt legislative and other measures to correct and prevent discrimination based on sexual orientation, and to ensure full respect for freedom of expression and association of LGBT persons (Uruguay);

    97.73. Increase efforts to improve the effective protection of LGBT persons, and abandon legislation work on draft law no. 8711 on so called ‘propaganda of homosexuality’ and refrain from other legislation infringing on the human rights and fundamental freedoms of LGBT persons (Germany).

    V. Adoption of the Report

    The report of the working group was adopted at the 22nd regular session of the Human Rights Council in March 2013.

    Presentation by the State under review

    [...] In order to avoid any misunderstandings I would like to go shortly through the recommendations we did not accept. [...] The next group of non-accepted recommendations is on discrimination of LGBT persons, representative of national minorities (rec. 97.18-97.19, 97.25, 97.44, 97.55, 97.71-97.73). In this case it should be mentioned that new Ukrainian legislation establishes the principle of non-discrimination, which provides equal rights and liberties for all persons, groups of persons, and equality before the law, respect for the dignity of every human being, equal opportunities for all individuals and/or groups of individuals. Moreover it should be noted that we are still improving this legislation in accordance with the relevant EU standards.[...]

    Statements by States and other stakeholders

    Amnesty International
    [...] Mr President, Amnesty International deeply regrets Ukraine’s rejection of recommendations, made by eight states, to ensure full respect for freedom of expression relating to sexual orientation, and to protect lesbian, gay, bisexual and transgender (LGBT) people from discrimination. Their rejection contrast starkly with Ukraine’s acceptance of more than 15 recommendations on non-discrimination more generally. In October 2012, parliament passed the first reading of a draft law which would ban any production or publication deemed to “promote” homosexuality, including media, TV or radio broadcasting; in the printing or distribution of creative materials, cinematography or videos. Draft law No. 0945 (formerly 8711), if adopted, will introduce fines or prison sentences of up to five years. Amnesty International calls on the Ukrainian government to reject this law on the grounds that it would result in discriminatory treatment of LGBT people, including by violating their rights to freedom of expression, association and peaceful assembly, and to equality before the law. [...]

    COC Netherlands and LGBT Council of Ukraine
    We would like to applaud the Ukrainian government for its support to several recommendations made during the UPR process, but regret that the Ukrainian government has not accepted recommendations 97.18, 97.19, 97.25, 97.57 and 97.70-73, not recognising the need to further safeguard protection of LGBTI people against discrimination based on sexual orientation and gender identity.

    We call upon the Ukrainian government to ensure full protection of LGBTI people against any form of discrimination; that in the nearest time, (hate) crimes against LGBTI people will be investigated and perpetrators will be prosecuted; that public awareness raising activities about sexual orientation and gender identity and human rights will be supported; and that appropriate actions will be undertaken to build broad support for LGBTI rights in the new comprehensive anti-discrimination law.

    Unfortunately, we need to recognise that the human rights situation of LGBTI people has worsened in Ukraine. Violence against people has increased, and peaceful and legitimate public demonstrations against homophobic legislation have been banned and led to the arrest of human rights defenders.

    Five draft laws aimed to limit basic human rights for LGBTI people were introduced in the Ukrainian Parliament between 2010 and 2013, as has been noted during this UPR. We are concerned about the impact that this laws may have on the daily lives of LGBTI people, their fundamental rights to freedom of expression and assembly, and their right to health, knowing that homophobic legislation will deter LGBT people from seeking health services, including HIV prevention services.

    Therefore, we urge the Ukrainian government:

    1. To include sexual orientation and gender identity in the proposed comprehensive anti-discrimination legislation of Ukraine.

    2. To refrain from adopting Draft bill 0945 and similar legislative initiatives, as these will hinder the peaceful and legitimate work of LGBTI human rights defenders in creating awareness of LGBTI issues and promoting respect for diversity in society.

    3. To guarantee that all human rights defenders in Ukraine are able to carry out their legitimate human rights activities without fear of reprisals, and free of all restrictions including judicial harassment.

    Human Rights Watch
    The Universal Periodic Review of Ukraine addressed a range of concerns, two of which Human Rights Watch will address in particular: discrimination based on sexual orientation and gender identity including homophobic legislation currently pending in parliament; and access to pain care medicine and the right to health.

    We deeply regret that Ukraine rejected over a dozen recommendations to prohibit discrimination based on sexual orientation and gender identity and to drop homophobic laws.

    Despite protections enshrined in the Ukrainian Constitution, LGBT people remain a discriminated and stigmatized group in Ukrainian society.  Throughout 2012 and in early 2013 there have been a growing number of attacks by neo-Nazi and nationalist groups targeting LGBT-related events, including peaceful public protests.

    These recent attacks on LGBT activists also underline the urgency in strengthening anti-discrimination legislation and police response to attacks against LGBT people. Human Rights Watch has documented a number of attacks on LGBT activists and others in 2012 and 2013. For example, in June 2012, an unidentified man approached Kiev Pride head Taras Karasiichuk near his home, asked his sexual orientation, and beat him, breaking his jaw and giving him a concussion. Investigators were unable to identify the attacker. In December 2012 and February 2013, Karasiichuk was approached by groups of men who warned him against organizing Kiev Pride and threatened to beat him.  The authorities opened criminal investigations, but failed to consider the activist’s sexual orientation or activism as a motivating factor.

    In light of these developments and Ukraine’s obligations under international law, we call on the Ukrainian government to:

    • Speak out against the homophobic laws currently pending before the parliament, making clear that they breach Ukraine’s international obligations and for President Viktor Yanukovich to reject the laws should the parliament adopt them;
    • Ensure effective investigations into acts and threats of violence against members of the LGBT community and hold accountable those responsible for such actions;
    • Ensure adequate protection for organizers of LGBT-related events and their participants;
    • Condemn, at the highest levels, rhetoric likely to incite discrimination, violence, or hostility against LGBT people and make clear such expressions have no place in Ukrainian society;
    • Include sexual orientation and gender identity as non-discrimination grounds in all anti-discrimination legislation.

    In this regard we welcome the Ukrainian Cabinet of Ministers’ recent proposal to include sexual orientation as ground prohibited for discrimination in Labor Code. [...]

    VI. Further information

    UPR Documentation

    For first cycle reports of Ukraine, please see here

    National report 1: ACE | FR | S
    Compilation of UN information 2: ACE | FR | S
    Summary of stakeholders’ information 3: AC | E | FR | S
    Corrigendum : A | C | E | FR | S
    Questions submitted in advance : E
    Addendum 1 : E
    Addendum 2 :  E
    Addendum 3 : E
    Addendum 4 : E
    Addendum 5 : E

    Outcome of the review:

    Report of the working group: AC | E | FR | S
    Addendum: E