Committee on the Elimination of Racial Discrimination considers report of Ukraine

Committee on the Elimination
of Racial Discrimination

18 August 2011

The Committee on the Elimination of Racial Discrimination has completed its consideration of the nineteenth through twenty-first periodic reports of Ukraine on the implementation of the provisions of the International Convention on the Elimination of Racial Discrimination.

The report of Ukraine was presented by Mykola Maimeskul, Ambassador and Permanent Representative of the Permanent Mission of Ukraine to the United Nations Office at Geneva. Mr. Maimeskul said the report covered the period from 2006 to 2010 and provided a review of the national legal mechanisms intended to promote human rights, and responded to the recommendations the Committee provided in its previous review. Ukraine had built up a tradition of inter-ethnic tolerance and dialogue, and it employed a flexible, regionally-differentiated approach for promoting the human rights of minority groups.

In preliminary concluding observations, Patrick Thornberry, the Committee Expert who served as the country Rapporteur for the report of Ukraine, said subsuming the combat against racial discrimination into criminal processes was not a comprehensive approach. Regarding hate speech, the centrality of article 161 of the criminal code and legislative amendments was clear. Article 4 of the Convention was fairly demanding on this issue and thus it was a question of measuring those requirements according to Ukrainian legislation. The balance between the prohibition of hate speech and the principles of freedom of speech and expression was crucial.

During the interactive dialogue, Committee Experts raised a number of questions and asked for further information on subjects related to, among others, extremism, acts of violence against foreigners, asylum seekers, discrimination in sports and sporting events, the application of article 4 of the Convention, the education system and the use of minority languages and discrimination suffered by women of minority groups.

The delegation of Ukraine included representatives from the Permanent Mission of Ukraine to the United Nations Office at Geneva, the Ministry of Interior and the State Migration Service.

The Committee will present its written observations and recommendations on the nineteenth through twenty-first periodic reports of Ukraine, which were presented in one document, at the end of its session, which concludes on 2 September.

The Committee will hold its next public session at 3 p.m. when it will begin consideration of the eight and ninth periodic reports of the Czech Republic (CERD/C/CZE/8-9).

Report of Ukraine

The nineteenth to twenty-first periodic reports (CERD/C/UKR/19-21) submitted as one document, note that Ukrainian legislation guarantees citizens the same rights and freedoms, and equality before the law, irrespective of race, sex, ethnicity, language, attitude to religion, social origin, beliefs or social status. Ukraine’s policy for eliminating racial discrimination in all its forms encompasses actions by central and local government bodies to create an atmosphere of inter-ethnic harmony and tolerance in society, as well as measures by those bodies to preserve the unique cultures of the country’s ethnic minorities and ensure their integration in Ukrainian society. Under the Ethnic Minorities of Ukraine Act, Ukrainian citizens belonging to ethnic minorities have an equal right to be elected — or, as appropriate, appointed — to any post in legislative, executive or judicial bodies (art. 9). Domestic law does not provide for any linguistic or ethnic quotas. The Ministry of Internal Affairs systematically monitors the circumstances surrounding ethnic offences and the activities of radical organizations and movements, and takes measures to prevent or detect offences against foreign nationals. The National Security Service continues to take measures for maintaining ethnic and interfaith harmony to prevent the escalation of xenophobic tendencies, which could lead to the destabilization of society.

Recommendations have been drawn up on methods of using elements of bilingual education for the study of particular subjects in general schools where ethnic minority languages are the language of instruction. Ukrainian cultural legislation does not contain restrictions leading to any kind of discrimination on racial grounds. In order to develop and preserve ethnic minorities’ cultures, traditions and customs, the State Committee on Ethnic and Religious Affairs, with the participation of the relevant central Government bodies, drew up a set of comprehensive measures to implement State policy in the sphere of inter-ethnic relations and the development of ethnic minorities’ culture in Ukraine up to the year 2010. Measures are taken to prevent racial hatred and prejudice in sports competitions. The annual State budget includes funding for events to address the cultural, linguistic and information needs of ethnic minorities. The Ukrainian press has paid particular attention to measures aimed at preventing illegal acts involving incitement of national, racial or religious hatred or enmity, attacks on the honour or dignity of ethnic groups and insults of citizens related to their religious beliefs.

Ukraine regards the preservation and development of Crimean Tatar and Roma culture as an important component of nationwide cultural development. The Council of Ministers of the Autonomous Republic of Crimea provides specialists of Crimean Tatar origin with assistance in education, further training and career development in executive and local government bodies. A comprehensive plan of action to develop ethnic traditions and cultures and improve inter-ethnic relations in the Autonomous Republic of Crimea for 2008–2010, provides for measures to promote inter-ethnic harmony and raise the level of tolerance in Crimean society. Public funds are set aside every year for these purposes. The parliament of Ukraine considered a draft decision in 2005 on recognition of the Rusyns as an ethnic group and included them in the list of ethnic groups living in Ukraine. The parliament of Ukraine voted down the bill, arguing in particular in its decision that “there is no documentation today in Ukraine that could confirm a citizen’s ethnic background” and therefore the “recognition of ethnicity is not within the purview of the State but is rather a personal matter for every individual to decide”.

Presentation of the Report

MYKOLA MAIMESKUL, Ambassador and Permanent Representative of the Permanent Mission of Ukraine to the United Nations Office at Geneva, said the report covered the period from 2006 to 2010 and provided a review of the national legal mechanisms intended to promote human rights in Ukraine. It also responded to the recommendations the Committee provided in its previous review of the implementation of the Convention on the Elimination of Racial Discrimination in Ukraine in 2006. The population of Ukraine was made up of a wide range of ethnic groups who spoke different languages and practiced different religions. Most of the population was ethnic Ukrainian, while a significant number of Russians and other minority groups were present as well. The Ukrainian State faced significant problems due to the forced deportation of Crimean Tartars by the Soviet Union and their subsequent repatriation. Ukraine had built up a tradition of inter-ethnic tolerance and dialogue. Ukraine employed a flexible, regionally-differentiated approach for promoting the human rights of minority groups. Taking into account that national policies, plans and strategies for combating ethnic, racial and other forms of discrimination were far from perfect, a draft framework anti-discrimination law had been developed. Ukraine provided expenditures to implement parts of the Convention by funding activities that promoted the cultural background, education and language of minorities. Minority groups were provided the opportunity to study and use their own languages, and minority-language textbooks were also provided.

State television and radio stations had aired programs to promote tolerance for minorities, and there had been an increase in the number of organizations representing ethnic minorities over the reporting period. Investigations of crimes based on religious, ethnic and racial grounds had been pursued and there had been a number of convictions. Employees of the Ministry of the Interior were being trained to promote tolerance and prevent discrimination. Vandalism had been committed at religious sites, but cases of vandalism had dropped over the reporting period. In 2009, the Government created a Council for Representatives of the Spiritual Leaders which worked with Muslim centres in Ukraine to coordinate relations between Muslim communities, public authorities and Christian communities and to prevent extremism. Some of the Crimean Tartars became members of the national parliament and were represented in other public offices, particularly in the autonomous region. Since the 1990s, the Ukrainian state budget has had a separate budget line for the repatriation of forced Crimean Tartar deportees. Resources were allocated to provide housing, rehabilitation and socio-cultural activities to integrate repatriated people into Ukrainian society. The Ambassador emphasized that the State authorities and the local government and the overwhelming number of social organizations were making significant efforts to promote a spirit of harmony, mutual respect and tolerance among people of different backgrounds.

Following the ambassador’s statement, another member of the delegation took the floor. The delegation member said a recently adopted Law on Refugees addressed issues related to refugees and persons requiring temporary and additional protection. In accordance with international obligations, the Ukrainian state implemented measures to integrate refugees into Ukrainian society. Concerning the deported Crimean Tartars, since the beginning of the repatriation process, the State had devoted significant resources for education and housing. The repatriation process was far from complete and extension of the State programme until 2015 was under consideration. The issue of Roma was a main focus in the public sphere. Ukraine had allocated resources to preserving the language and culture of Roma communities, including participation in the all-Ukrainian Festival. Roma children were being integrated as much as possible into the education system. The State Migration Office had begun issuing passports to Roma and had commenced dialogue with the Roma community regarding registration and other issues. The draft Anti-Discrimination Act had, to date, not been finalized, but would define discrimination and other concepts, lay out measures to prevent discrimination and clarify the rights and responsibilities of State bodies. A monitoring procedure would be established. The Ministry of Interior had implemented a number of measures aimed at preventing and detecting crimes committed on the basis of racism, xenophobia and religious discrimination. The need for new statistics on hate crime was recognized. There had been 28 such criminal cases, ranging from vandalism of monuments to murder.

Questions Raised by the Rapporteur and Experts

PATRICK THORNBERRY, the Committee Expert serving as country Rapporteur for the report of Ukraine, said Ukraine was a sovereign state, but hosted the autonomous region of Crimea. The core document indicated that the main indigenous population was Ukrainian, but it would be interesting to know more about the status of minority groups in Ukraine. Ukraine maintained a reservation to Article 17 of the Convention and had accepted the optional communication procedure under article 14 of the Convention. The State report stated that in developing the report there had been substantial consultations, but it was not clear whether civil society organizations had been included. The drafting of a basic law on anti-discrimination was welcome. The Rapporteur asked if the definition of discrimination applied to legal as well as natural persons. Provisions on anti-discrimination in Ukraine were generally covered by the criminal code. However, adopting provisions related to civil and administrative liability should be considered. Mr. Thornberry asked how follow-up to the Committee’s recommendations had proceeded. Concern had been expressed about the dissolution of focal points on discrimination issues in government bodies. Referring to right-wing movements, they were, in some respects, beyond the Ministry’s legal competence. Some clarification was required in this regard. The Government was also encouraged to clarify whether there was a specific competence on racial discrimination and the relationship between the Ombudsman and the Paris Principles.

The lack of cases on anti-discrimination was not an indication of social health. It could be that mechanisms were not working or people did not want to report crimes. Article 4 was one of the pillars of the Convention, which covered incitement to racial discrimination, hate speech and other issues. Mr. Thornberry noted that Article 4 clearly required legislation. Amendments to existing legislation for this purpose were referred to in the State report. The Committee asked for a relaxation of the terms of willful conduct to facilitate application of the article. This was not intended to instruct Ukraine on how to draft its laws; such advice was intended to promote the successful use of the legislation. Mr. Thornberry asked for further information on prohibitions of speech debasing national honor. Mr. Thornberry also wanted to know more about the Civil Code provisions that could be applied to the media’s engagement in racial discourse. The issue of land had been particularly contentious for the Crimean Tartars. Civil society groups claimed the existing legal framework was not appropriate for dealing with formerly deported people. Land distribution policy seemed to favor some groups over others. Compensation for losses was also an issue. The Crimean Tartar groups had made issue of the lack of employment opportunities, sparse mother tongue education, vandalism, hate speech, and political representation. These groups framed their arguments as pertaining to indigenous groups, which changed the legal context. Participation was part of the answer and was, therefore, indispensable.

Civil society groups claimed that there were large discrepancies in the number Roma and Jews accounted for and more information on these statistics was requested. There was reference in the materials to the existence of schools in Odessa specifically designated for Roma. This required clarity as there was a suspicion that Roma children were being assigned to particular schools because of their ethnicity. No reference to Roma languages was found in the report. Comprehensive language policy involved the consideration of whether the promotion of state language was carried out in a way that was detrimental to other languages. Bearing in mind that it was an absolute right to speak any language in the private sphere, to what extent did language policy impinge on private matters? Mr. Thornberry asked for more information about the alleged restrictions of religious activities in Ukraine. What measures did the Government of Ukraine take to prevent racial violence, speech or other discriminatory acts in sports and sporting events?

Other Committee Members took the floor after the presentation of Mr. Thornberry. One Committee Expert noted that Ukraine had attracted many foreign students, including from Africa, and said the report recognized the issue of attacks on foreigners. Thirty cases of this nature were noted by civil society groups. How did Ukraine ensure the protection of foreigners against such attacks? What was being done to ensure young people respected foreigners? Considering there was a significant Roma population in the State, Committee Members asked why the Roma language was not taught in schools. Also, were there a number of Roma without identification documents? Paragraph 557 provided an explanation that was unsatisfactory, indicating that international legislation did not allow for recognition because it had not been determined who would be recognized and how registration would proceed. Recognition of minority groups should be based on self-identification. Did members of the Roma community always choose to self-identify? Committee Members asked whether the Holocaust, when mentioned in history books, covered its impact on Roma.

Regarding access to public places, paragraphs 283 and 485 of the report were contradictory. In paragraph 464, nothing was said about how the law was applied in practice, or whether it had been applied. Experts asked what had been done to prohibit neo-Nazi and fascist groups, how such organizations arose and how they were dealt with when they first appeared. How were human rights taught and instilled? It would be interesting to know about how the State proceeded to block the dissemination of discriminatory language through electronic, television and radio media. Were any measures taken to allow for exceptions? Children without the proper paperwork were often deprived of social rights. One Committee Expert asked whether the number and quality of centers for asylum seekers in Ukraine were adequate. What happened to asylum seekers who were not in housing centers? To what extent were the rights of asylum seekers assured? Were they provided with the appropriate documents? Ukraine was facing significant financial restraints, but the Government should ensure it continued to provide the necessary support and protection of asylum seekers. Their applications should be processed as soon as possible.

During the Universal Periodic Review, Ukraine had rejected two recommendations that were relevant to the Convention. The first recommendation dealt with educational instruction in minority languages and the adoption of Russian as a national language. The other recommendation covered the protection of ethnic and linguistic minorities. Since these recommendations were issued, had the Government softened on these issues? Concerning criminal legislation against discrimination, Article 4 of the Convention was explicit about the criminalization of direct and indirect discrimination. It appeared that emerging legislation would be satisfactory in this regard. Ukraine had not recognized the right of Crimean Tartars to be considered indigenous people. This deserved consideration. In implementing policies and undertaking reforms, what measures were taken to combat the specific forms of racial discrimination suffered by women?

Response by Delegation

In responding to questions posed by Committee Members, the delegation of Ukraine said that the comments had been very constructive, and they were always pleased to hear that Ukraine provided frank and specific information in its report. The relationship between Ukraine and the Committee was constructive, and the issues raised placed a lot of responsibility on the delegation and its small group of experts to produce responses to the comments and questions, which were taken very seriously by the Ukrainian Government.

The delegation said Committee Members had referred to the large number of state bodies in the Ukraine tasked with combating discrimination. Bodies of the executive branch had suffered from duplication and overlap in functions and lacked clarity of direction and therefore, administrative reforms were initiated. The new version of Ukrainian law on the cabinet of ministers and executive branch aimed to strengthen governance and avoid duplication among state bodies and ministries. Regarding legislative backstopping for provisions of the Convention on the Elimination of Racial Discrimination, measures to eliminate incitement or discrimination were based on Article 24 of the Constitution, which prohibited violations of human rights on a wide range of grounds. Article 161 of the Criminal Code of Ukraine contained penalties for the violation of the rights to equality and to protection against discrimination guaranteed by the Constitution. In law enforcement, proof of whether a constitutional crime had been committed was primary. There was a list of codes and laws provided in the report and the inadmissibility of incitement of hate crime and discrimination was contained in the Law on Information. All of these laws, in terms of penalties, referred to Article 161.

The creation of the State Migration Service in December 2010 aimed to improve the system for managing migration flows. Reform of State regulation of migration had focused on the institutional and legislative bases. The United Nations High Commissioner for Refugees, in holding seminars for staff, had helped to train Migration Service employees. Creating sound conditions for asylum seekers and refugees in line with international obligations was a main objective of the service. Every year, Ukraine considered 2,000 applications for refugee status. The housing problem remained an issue, however, and this was partly resolved with resettlement in refugee centers, which were funded by the State and provided health and other services. This housing was far from sufficient and the Government was studying how to better support refugees. Particular attention was given to the study of the Ukrainian language. The financial and economic crisis had slowed down the opening of new refugee centers, although international assistance was provided.

There were 47,600 Roma in Ukraine, amounting to 0.1 per cent of the total population. The Ministry of Education had designed and publicized a study program of the Roma language, and the history, culture and traditions of Roma were taught. Adaptation was still a problem and pedagogical tools were making significant progress in involving Roma in the study process. However, school attendance was at 70 per cent as children often skipped class, and they were often not prepared for school in advance. Their vocabulary was meager and sometimes they had difficulty expressing themselves. A significant number of children were neglected from a pedagogical point of view. Many Roma also remained undocumented. Over the course of the year, 279 citizens had been issued passports, however. The delegation stressed that belonging to this ethnic group did not pose obstacles to self-fulfillment in Ukraine. Eighty-eight Roma cultural associations had been officially recognized. Grant based programs were focused on the specific problems faced by the Roma, such as self-protection, access to health services and living conditions. The Roma Holocaust was covered in the general history classes in Ukraine to build up memory and tolerance in Ukraine. The Roma who died in the Holocaust were memorialized at the State level.

Victims of crime who were not Ukrainian citizens were covered by Article 161 of the Criminal Code. The delegation cited the prosecution of perpetrators of attacks and murders of foreigners. Concerning extremism in Ukraine, the existence of internet sites espousing Nazi sentiments could not be denied. Ukraine did not support these groups in any shape or form. On the whole, Ukrainians were open and tolerant of other people, and had been victims of fascism. Recently, unfortunately, websites had been created by groups with extreme ideologies. A unit to combat cyber-crime had recently been created and was working to develop the forms and methods to combat such propaganda. The Ministry of the Interior aimed to identify the individuals who had placed this discriminatory information on the internet. There was a much greater danger for ethnic minorities and foreigners who did not appear Slavic, and they were particularly threatened by skinhead groups. Skinhead ideology came from abroad. Their contribution to crime in Ukraine had grown in recent years, including the assault and murder of foreigners and Ukrainians of non-Slavic origin. These cases were concentrated in Kiev and the organization did not have any structure or clearly identified leaders. The ideology varied from neighborhood to neighborhood in Ukraine, but generally they espoused racial purity. Ukraine was seriously alarmed by this turn of events. Everything possible was done to prevent these attacks and investigate these crimes, including the creation of specialized units to combat these crimes which existed in all regional law enforcement bodies. A number of preventative measures were taken, including the establishment of a database of skinhead members.

Regarding discrimination in sports and sporting events, football hooligans were concentrated in cities where teams played in the champion league of Ukraine. In preparation for the Euro 2012 Football Championships in Ukraine and Poland, the Ministry of Interior had set up a working group and regularly met with its Polish partners in organizing and coordinating activities. Radicals from Ukraine, but also foreign radical fans, were anticipated. Racism in sports was not a problem in Ukraine. Looking at the main football teams and their players, there were quite a number of African players as well as players from other parts of the world.

Further Questions Posed by Experts

Committee Members said Ukraine had issued a reservation to Article 17 of the Convention and ratified the communication procedure under Article 14 of the Convention. Committee Members were pleased that the Government had lived up to its obligations and had been consistent in implementing the Convention. The existence of neo-Nazi and other radical groups was not exclusive to Ukraine and existed in other countries. Organizations prepared young people for attacks, took up certain ideas and values and distorted them and incited attacks against people who were not enemies in any sense. The ideology sowed the grounds for violence. It was important to know about the reasons behind the phenomena. Was it a failure of European policy? If a phenomena or evil was to be tackled, the underlying causes needed consideration.

According to paragraph 543 of the report of Ukraine, there were 601 Crimean Karaites and 204 Krymchaks with an average age of 60 in 2001. These were not minority groups, but rather it was a reference to distinct groups in terms of language, culture and religion. These groups, and the associated 2,000 years of tradition and culture would be lost soon. The groups barely survived the Holocaust and were dying out. They needed special protection and efforts to record and preserve their contribution to human civilization. Financing their cultural events, as was done for other minority groups, was not relevant for these few hundred people; other sets of policies had to be devised to protect their members. Committee Members asked about policies and actions taken against racism in sports, which were closely linked to extremist groups throughout Europe. Ukraine had entered into agreements with neighboring States on cooperation in cultural and educational activities. Were these accords working smoothly? Concerning civil and administrative liability for acts of discrimination, discriminatory acts could only be evoked in criminal court. However, civil and administrative procedures could deal with a broader range of issues, such as housing, health and education.

Response by Delegation

The delegation said that five cases of hate speech had been brought to court due to offensive racially-motivated statements. Such instances were not overlooked, and people who committed such crimes were prosecuted, based on Article 161 of the Criminal Code. These were isolated incidents, however, not a rising trend. Regarding the Crimean Karaites and Krymchaks, the information about average age was correct, but there were also young people in these groups. The State was working to encourage the existence of these languages, and Sunday schools had been established for that purpose. There was also an effort underway to change the bill on minority and regional languages in Ukraine to ensure these two languages would be covered by the Minority Languages Convention. Unfortunately, that related committee was disbanded, but this work would be continued in the near future. Regarding racist acts and speech related to sporting events, there was only one case of a crime against a sportsman of African origin, a member of the Kiev basketball team. The crime was not related to extremist groups, but the individual’s knowledge of Ukrainian and Russian languages.

Concerning agreements with neighboring countries on national minorities, cooperation with Slovakia, Hungary and Romania had been effective in upholding the rights of minorities. There had been many bilateral meetings and a number of problems had been solved. Article 161 was the only provision for punishment of racially motivated actions. Other legal norms did not allow for administrative and civil complaints. It was difficult to establish proof under the Civil Code. The expected adoption of the Antidiscrimination Act would not, however, diminish the need to reform administrative and civil codes for the victims of racial discrimination to seek remedies.

Preliminary Concluding Observations

PATRICK THORNBERRY, the Committee Expert serving as country Rapporteur for the report of Ukraine, in preliminary concluding observations, said the idea of a special body to coordinate response to racial discrimination and the idea of a possible link with the new framework Antidiscrimination law was welcomed by the Committee. The Committee hoped the Antidiscrimination Act would be adopted, which would be tracked as it evolved. A single law was not mandated by the Convention but could focus and clarify issues for Ukrainian citizens. Subsuming the combat against racial discrimination into criminal processes was not a comprehensive approach. Regarding hate speech, the centrality of article 161 of the Criminal Code and legislative amendments was clear. Article 4 of the Convention was fairly demanding on this issue and thus it was a question of measuring those requirements according to Ukrainian legislation. The balance between the prohibition of hate speech and the principles of freedom of speech and expression was crucial. Concerning hate speech against minorities and vulnerable groups, Mr. Thornberry recommended Ukraine look at the Camden Principles which proposed balance between minority rights and freedom of speech. Politicians could set the tone for society. Migration issues had been referred too as well and the reference to future citizens of Ukraine was positive. The role of language was sometimes underestimated. Not one party in Europe seemed to have gotten the issue of Roma education right; it was a challenging issue. Concerning extremism, social networks and other elements, the internet could play a negative and positive role. Favorable conditions and support could turn the tide for groups like the Crimean Karaites and Krymchaks, but the tipping point could have already been breached. There was a need to expand statistics on minorities covering a number of grounds.

In concluding remarks, MYKOLA MAIMESKUL, Ambassador and Permanent Representative of the Permanent Mission of Ukraine to the United Nations Office at Geneva, said the dialogue had been constructive and open. The Committee had provided painstaking and in-depth analysis of the implementation of the Convention on the Elimination of Racial Discrimination in Ukraine. Ukraine was continuously working to meet its international obligations, and on that basis it would continue its constructive relationship with the Committee. The delegation would go back to Ukraine with food for thought based on the valuable analysis, comments and recommendations provided.

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