Coalition for Combating Discrimination in Ukraine has issued a statement concerning anti-discrimination legislation
Coalition for Combating Discrimination in Ukraine has issued a statement concerning anti-discrimination legislation. The Coalition is supported by the Human Rights and Justice Program Initiative of the International Renaissance Foundation.
Paving the way to changes: slow yet significant developments in anti-discrimiantion legislation in Ukraine
The field of promoting equality and non-discrimination in Ukraine saw several significant developments in the beginning of May. First, there was the adoption of the bill 4581 “On Amendments to Some Legislative Acts of Ukraine (On Preventing and Combating Discrimination)”. Secondly, the High Specialized Court of Ukraine (VSSU) for Civil and Criminal Cases published a letter titled “On Ensuring Equality of the Citizens’ Labor Rights in the Settlement of Disputes in the Field of Labor Relations”. Thirdly, the Constitutional Court of Ukraine issued a response to the application of Ukrainian Charitable Organization Fulcrum with regard to whether discrimination on the grounds of sexual orientation is prohibited under the Constitution within the interpretation of the “other grounds” wording contained in paragraph 2 of article 24 of the Constitution of Ukraine.
Coalition for Combating Discrimination in Ukraine (CCDU) has already expressed its opinion on the bill 4581. The Coalition welcomes yet another effort to improve anti-discrimination legislation in Ukraine and the successful second attempt by the parliament members to finally vote for the principles of shifting the burden of proof, changes to basic definitions of discrimination, as well as broadening the mandate of the Ombudsman. However, the CCDU would like to note with regret that the current law does not remove all the existing shortcomings.
For instance, these amendments have not addressed the legal uncertainty, nor did they take into account expert recommendations on introducing relevant changes to the Criminal, Administrative, Civil, and Labor Codes of Ukraine. Moreover, the list of protected grounds once again was not expanded due to the lack of understanding of the principles of equality by the authors and MPs. Sexual orientation and gender identity (SOGI) were not recognized as protected characteristics despite numerous comments from local and international experts. Deputies and officials use the “traditional values of Ukrainian society” only to further homophobia thus explicitly demonstrating their disrespect for human rights.
The CCDU would like to reiterate that determined and open cooperation of legislators and experts is crucial for creating an effective and comprehensive anti-discrimination legislation. Legislative process in Ukraine must take into account the views of the groups that it is designed to protect, as well as it must proceed in accordance with the human rights standards.
On the other hand, the VSSU letter titled “On Ensuring Equality of the Citizens’ Labor Rights in Reviewing Disputes in the Field of Labor Relations” can be viewed as an effort by Ukrainian authorities to address the issue of protecting LGBT rights without including SOGI grounds into the law. Perhaps, the motivation is to reduce the damage to “traditional values”. However, it is important to read carefully the VSSU’s response to a joint application by the Ministry of Justice and the Ministry of Foreign Affairs of Ukraine. The Court references and analyzes the Constitution of Ukraine, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Labor Code of Ukraine the Law of Ukraine “On Preventing and Combating Discrimination in Ukraine ” to reach the following conclusion:
“…in the settlement of disputes in the field of labor relations, the courts need to take into account that the list of grounds prohibiting privileges or limitations of the citizens’ labor rights is non-exhaustive. In particular, violation of equality of labor rights is unacceptable not only in cases where the ground is mentioned in para 2 art. 24 of the Constitution of Ukraine, art. 21 of the Labor Code of Ukraine, and para 2, part 1 art. 1 of the Law, but also in cases where characteristics of age, skin color, other physical characteristics (weight, height, speech impediments and facial defects), family status, sexual orientation and others are concerned”.
The clarification by VSSU certainly does not replace the need for legislative expansion of the list of protected grounds, nor does it address all spheres where discrimination must be prohibited. However, this letter marks the first signpost for judges on how broad their interpretation of the non-exhaustive list in anti-discrimination legislation should be. It is a significant step on the road to developing relevant case law. Importantly, the Court refers not only to international documents that are binding for Ukraine, but also to instruments we seem to recognize as fundamental in our European hopes – the EU Charter of Fundamental Rights and the EU Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The latter contains prohibition of direct and indirect discrimination based on religion or belief, disability, age or sexual orientation in the fields governed by the Directive. One day, Ukraine will have to implement all EU Directives and amend its legislation accordingly regardless of MPs’ will or lack thereof and notwithstanding “traditional values”.
Due to technical reasons, the Constitutional Court of Ukraine refused to conduct a constitutional review following the application by Fulcrum Charitable Organization. The Court based its decision on the absence of the right to constitutional review and the failure to meet legal requirements. A substantive response by the Constitutional Court could finalize the discussion on the scope of interpretation of the non-exhaustive list of protected grounds both in the Constitution of Ukraine and, accordingly, in the Law of Ukraine “On Preventing and Combating Discrimination in Ukraine”. The Coalition for Combating Discrimination in Ukraine considers that the High Specialized Court has taken the first step towards establishing the case law. Consequently, if ambiguity in interpretation of the law occurs in the future, the need for clarification by the Constitutional Court may emerge again unless, of course, the issue is resolved by including sexual orientation and gender identity into the list of protected grounds under article 24 of the Constitution of Ukraine.
Coalition for Combating Discrimination in Ukraine
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