(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
With the important exception of a bill put forward in October 2012 aiming to establish liability for actions that promote same-sex relations (see below), Ukrainian domestic law gives little attention to LGBTI persons. While Article 24 of the Ukrainian Constitution provides for gender equality, the Constitution makes no express mention of sexuality as being a recognised characteristic that the State has a duty to protect. Marriage is defined as between a man and a woman exclusively.
Article 300 of the Ukrainian Penal Code dealing with forms of incitement does not mention violence in terms of gender or sexuality. The Penal Code makes reference to ‘unnatural gratification of sexual desire’ and ‘unnatural sexual intercourse’ in the context of rape and murder and various acts of criminal violence. The meaning of ‘unnatural’ is not defined.
A bill commonly referred to as the ‘gay gag law’, backed by the ruling Regions Party, passed initial reading on 2 October 2012 and the second reading has not yet begun. If successful, Bill 8711 will criminalise the discussion of homosexuality in Ukrainian media, and possibly limit the rights of LGBTI persons to assemble and engage in public displays of affection.
Organisations such Amnesty International, Human Rights Watch and the International Commission of Jurists condemn the bill, as does the European Parliament. Ukraine is also among the countries with the largest number of applications to the European Court of Human Rights, but human rights defenders note that few ECHR judgements are enforced nationally.
While the precise wording of the bill is unknown, Bill 8711 would arguably violate Art 10 Freedom of Expression and 11 Freedom of Assembly of the European Convention on Human Rights, to which Ukraine is signatory. Ukraine is also signatory to the International Covenant on Civil and Political Rights (ICCPR) of which the bill has the potential to infringe:
Article 19 freedom of expression; Article 20 (2) prohibition of incitement to discrimination, hostility or violence and Articles 21 and 22 the right to freedom of assembly and association including membership of Trade Unions. Article 26 equality before the law and protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The case is an appeal made by the Ukrainian national after having his application for protection under a class XA visa refused. The applicant’s case included claiming that he had suffered physical violence in various workplaces, and after becoming an activist in a small and un-registered gay activist group suffered persecution in his home via hate mail, as well as fear for his safety due to right-wing groups breaking into the group’s meeting place and assaulting his friends. He had lived in Australia for some years at the time of the Tribunal. The appeal was rejected on the basis that the Tribunal did not feel he satisfied the five convention criteria of the 1951 Convention Art. 1A(2). The tribunal questioned the applicant’s sexual orientation, and did not believe he had been a member of any activist group, on the grounds that he had not made many gay friends in Australia or continued his activist work. They also found no evidence of any significant issues facing gay people in the Ukraine that would prevent the applicant from returning to the Ukraine and living without fear of persecution.
Supporting authorities; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR and SZATV v Minister for Immigration and Citizenship (2007) HCA and Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 205 ALR.
This is an appeal against the decision to dismiss an asylum and human rights appeal. The appeal was allowed because of a personal relationship that could trigger an Art 8 claim and the lack of consideration given to a report entitled ‘The situation of gay men and lesbians in Ukraine’, authored by the LGBTI rights organisation Nash Mir.
The Appeal Tribunal decided that there was no reason why the applicant could not return to the Ukraine to apply for a visa for residence in the UK according to standard immigration procedures.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
There is deep seated prejudice against the LGBTI community in Ukraine, exemplified by the ease with which bill 8711 passed its first reading in Parliament. According to poll data collected by International HIV/AIDS Alliance, Ukrainian voters favour the law—78% of the country views homosexuality negatively and 61% of Kiev residents believe that promoting homosexuality should be punished by a prison sentence. Only 11% oppose any punishment.
The first Kiev Pride was cancelled at the last minute, in May 2012, due to police fears of 500 anti-gay protestors posing a threat to the participants. Although the event did not go ahead, there was some violence against members of the LGBTI community.
While the European Parliament condemned the violence around Kiev Pride 2012 and urged the Ukrainian government not to adopt Bill 8711, activists argue that discrimination is difficult to challenge in Ukraine due to a lack of effective legislative mechanisms for victims.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We are not currently aware of any organisations working with LGBTI persons in the Ukraine, but welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently have a country of origin specialist for Ukraine, but welcome suggestions.
Researched by: Katherine Burrows
Email: katherineburrowsfahamugmail [dot] com