Eliminating discrimination or reporting to the UN?

On 11-12 August, Ukraine will report to the UN in Geneva about its actions to eliminate all forms of racial discrimination. The State submitted its report to the Committe on the Elimination of Racial Discrimination. Both the Committee, and also the civil society, had time to evaluate the submission.

On 14 September 2011, during the review of its 19-21st periodic reports (CERD/C/UKR/19-21), Ukraine received 32 recommendations from the Committee on the Elimination of Racial Discrimination and undertook to implement them in the following four years.

According to Ukraine’s report, our country first reported on adopting anti-discrimination legislation in 2012, as well as a number of other legislative changes. The state also went on to list a number of plans and activities implemented during the reporting period.

It concluded that “Ukraine took the necessary legislative measures to prevent discrimination, which shows the State’s will to build a society where racial or ethnic discrimination have no place…”.

However, despite legislative changes, there are many remarks as to “actual elimination of discrimination”. For instance, the alternative report submitted by civil society activists points out the lack of mechanisms for implementation of all the adopted laws.

Experts representing No Borders Project/Social Action Centre NGO, Association of Middle East Studies, The Right to Protection ACF, Roma Center for Human Rights Protection, Romani Cherkhen Association, Institute for Religious Freedom, Coalition for Combating Discrimination, and the Eastern Partnership Minorities Network joined forces to prepare the alternative report.

SORE SPOTS

The alternative report is availabe on the Committee’s website. This article only covers the most interesting – how the state keeps its poker face while the cards are not good.

Ukrainian civil society notes the lack ofsimple and transparent compensation mechanism for victims of discrimination.  

The Ukrainian Parliament Commissioner for Human Rights remains virtually the only “functioning” state body working in the field of protection from discrimination. However, looking at the report, the victims is practically one-on-one with the problem.

Another sore spot is the list of protected grounds in norms on hate crime – the closed list only includes religious, ethnic, and racial intolerance. Therefore, it precludes investigation and proper qualification of hate crimes committed on other grounds.

“In practice, virtually all these crimes are qualified as hooliganism without any consideration of the motive. It sends a signal to the victims that these matters do not constitute an important social issue”, the report says.

In addition, most cases that are opened never reach the court.

Only recently, there were efforts to address the issue of collecting data about hate crimes.In 2016, the National Police published data segregated by types of hate crime (grounds), recorded in the Unified State Register of Pre-Trial Investigations during 2015. Yet, there is no data on age, gender, or ethnic background of victims. There is also no information about the number of qualified cases or open court statistics.

Experts say, “According to the state court registry, these articles were almost never used in the past years for qualification of crimes. At the same time, the number of reports on hate crimes has not decreased, especially when it comes to crimes against ethnic and religious minorities, and LGBT people”.

ROMA ISSUES NOT WORTH NOTING?

A significant portion of the report concerns the so-called Roma issue.

 

Low level of education, discrimination by teachers, other students and parents, lack of documentation, early marriagesemographic seasonal migration of the students’ parents, poverty and unemployment of the majority of families; decreased responsibility of parents for upbringing of their children – these are only several from the list of  long-lasting issues mentioned by the authors.

Approximately 17000 Roma are still undocumented. The Committee was shocked to hear Ukraine’s explanation that “the lack of evidence of ethnicity on the part of the State party is a major factor in limiting the production of identification documents”.

Another significant shortcoming in the ethnic policy towards the Roma is the exclusion of Roma non-governmental organizations from the discussion and decision-making by the local authorities.

As possible solutions, experts suggest to introduce a position of an inspector for Roma community work at the regional and district state administrations in areas of Roma compact settlement, to develop and implement a program for training/retraining of lawyers who provide consultations or legal services to persons who are illiterate or have very low level of education, and to engage Roma leaders in awareness raising work for staff of educational institutions etc.

DO NOT FLEE TO UKRAINE…

In its report, Ukraine “was confident” about implementation of recommendation concerning refugees. In particular, the state referred to the new LawOn Refugees and Persons in Need of Complementary and Temporary Protection” (adopted on 8 July 2011).

The law was designed to improve the quality of the refugee status determination procedure, review of asylum applications, temporary accomodation and medical care for refugees and asylum seekers, including the most vulnerable applicants.

However, things are not looking so bright in Ukraine.

Despite restructuring of the State Migration Service (SMS) in December 2010 and adoption of the new migration police to simplify processing of 2000 asylum applications per year, there is still a need to adopt reasonable decisions in the refugee status determination procedure. 

 Authors of the alternative report note the lack of professionalism and bias of the SMS staff, “Often, the SMS staff ignore evidence of a well-founded fear provided by the applicants or available in credible sources of information on the human rights situation in the country of origin. Sometimes, they proceed to distort the applicant’s statement and other evidence to find grounds for rejection”

Often, administrative courts in their case law consider the decision to grant refugee status or complementary protection to be a discretionary power of the SMS of Ukraine.

Consequently, even when an asylum seeker succeeds in proving that rejection was unfounded in all court instances, his/her case will only be directed for a repeat review to the SMS of Ukraine.

And what prevents the migration service from issuing an identical negative decision following a half-year long “repeat review”?

Experts state, “the flaws in the status determination system and inability of national courts to have the last say in these cases lead to a situation where persons in need of international protection remain in the uncertain status of asylum seekers for lengthy periods”

There is also an ongoing issue concerning the number of reception centers for refugees and asylum seekers, as well as the funding for these centers.

EVERYTHING CONSIDERED

In hindsight, the Action Plan for implementation of the National Human Rights Strategy (2016-2020) includes several tasks that could support implementation of the Committee’s recommendations while new recommendations will also be provided.

“However, most executors of the plan delay appointing officials responsible for the measures and ignore information requests. Moreover, the Ministry of Culture, which is responsible for a large number of measures in relation to national and religious groups, sent a letter to the working group asking to relieve them of the responsibility because of the lack of understanding of how to do this work, shortage of experts and funding”, - says the report.

One can read two major questions between the lines of the alternative report – what good are laws that fail to protect victims of discrimination or action plans that never include budget for their implementation?

 

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