October, 17, 2011
His Excellency Volodymyr Mykhailovych Lytvyn,
Chairman of the Verkhovna Rada of Ukraine
Vul. M. Hrusthevskoho 5
Dear Mr. Lytvyn,
I write to you on behalf of Human Rights Watch, to express our concern over the content of a draft bill currently on the agenda of the Ukrainian Parliament. Human Rights Watch is an independent non-governmental organization dedicated to defending and protecting human rights. We investigate and expose human rights violations and hold abusers accountable.
On June 22, 2011 a proposal for a bill on banning “propaganda of homosexualism” was submitted to the Verkhovna Rada. The draft bill is called “On introduction of Changes to Certain Legislative Acts of Ukraine (regarding protection of children’s rights in the safe information sphere)”. The proposal for the bill is a private members initiative by five members of the Ukrainian parliament, representing the block of the Communist Party, the block “Our Ukraine People’s Self-Defense”, the Yulia Tymoshenko block, the block of the Party of Regions, and the block of the “Reforms for the Future”. The draft bill has been put on the agenda to be discussed in Parliament this autumn.
Human Rights Watch urges you to call for the rejection of the Bill on the grounds that it is incompatible with a large number of rights protected by international treaties to which Ukraine is a party. The provisions of the proposed bill would violate the protections on freedom of expression and assembly as well as create an unacceptable environment of state-promoted discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, including those under 18 years of age. It would endanger the rights of human rights defenders to promote rights protections and engage in free discussion about rights principles. It would threaten the health and well-being of Ukrainians, including children, by restricting their access to information necessary for them to make critical decisions about their lives, and could potentially have life-threatening effects by censoring accurate information about HIV and AIDS.
In the explanatory note to the draft law the members of parliament claim that “the spread of homosexualism is a threat to national security, as it leads to the epidemic of HIV/AIDS and destroys the institution of family and can cause a demographic crisis”. They explain in the note that the adoption of their bill is needed “to establish responsibility for actions that promote same sex- sexual relations, abuse the freedom of speech or use media to promote homosexualism.”
The proposed bill would amend the Criminal Code of Ukraine “to increase the responsibility for offenses against public order and morality”, and amend the Law of Ukraine “On protection of public morale”, the law “On Print Mass Media (Press) in Ukraine”, the law “On Television and Radio”, and the law “On Publishing” in order to “provide a legal framework for regulation of print media, of broadcasting in order to combat propaganda of homosexualism in the media”. In addition, the draft bill establishes liability for distribution of products that promote “homosexualism.”
As a member of the Council of Europe, in 1997 Ukraine ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 of the Convention states that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers….”.
Article 14 of the Convention prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention. Since 2006, Ukraine has also been a party to Protocol No. 12 of the Convention, which provides for a standalone prohibition on discrimination on any ground, which as the explanatory memorandum of the Protocol, explains includes sexual orientation.
The European Court of Human Rights, which authoritatively interprets and enforces the Convention, has reiterated on several occasions since the 1999 case of Salgueiro da Silva Mouta v. Portugal that sexual orientation is covered by article 14 of the European Convention on Human Rights.
In the 2007 case of Baczkowski and others v. Poland the European Court of Human Rights, found against Polish authorities’ efforts to ban LGBT people’s peaceful public demonstrations, and observed that the state’s obligation to secure the effective enjoyment of freedoms of assembly and association “is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimization” (para. 64).
Ukraine has willingly agreed to be bound by these obligations to respect, protect, and promote the freedom of expression for all people, regardless of their sexual orientation.
The law proposal would also be in violation of the Convention of the Rights of the Child, ratified by Ukraine in 1991. Article 13 paragraph 1 of the Convention of the Rights of the Child states that a child shall have the right of freedom of expression: “This right shall include freedom to seek, receive and impart information of ideas of all kinds.”
The UN Committee on the Rights of the Child has advised states in two general comments it has issued on the scope of the obligations under the Convention (Nos. 3 and 4)that the rights under the Convention are to be exercised free from discrimination including that based on sexual orientation.
With respect to Ukraine’s obligations to facilitate and protect the legitimate work of human rights defenders, article 7 of the UN Declaration on Human Rights Defenders provides that “Everyone has the right, individually and in association with others to develop and discuss new human rights ideas and principles and advocate their acceptance.” The 2007 report of the UN special Representative on human rights defenders mentions defenders of lesbian, gay, bisexual and transgender rights, and cites articles 2 and 12 of the declaration to remind States of their responsibility to protect human rights defenders.
On March 31, 2010 the Committee of Ministers of the Council of Europe unanimously adopted a set of recommendations (CM/Rec (2010)5 to member states (including Ukraine) on measures to combat discrimination on the grounds of sexual orientation or gender identity. Relevant articles are:
Public officials and other state representatives should be encouraged to promote tolerance and respect for the human rights of lesbian, gay, bisexual and transgender persons whenever they engage in a dialogue with key representatives of the civil society, including the media and sports organizations, political organizations and religious communities.
Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order.
The proposed law would clearly fall foul of the recommended action to states from the Committee of Ministers.
Ukraine was also a member of the UN Human Rights Council, and voted for the Council resolution on June 15, 2011, which requests the High Commissioner to commission a study to document discriminatory laws and practices against individuals based on their sexual orientation and gender identity. Ukraine was also one of 85 countries which had signed the preceding joint statement “on ending acts of violence and related human rights violations based on sexual orientation & gender identity” adopted in March 2011.
If the Ukrainian parliament were to give serious consideration to the draft bill, far less vote to adopt it, Ukraine would stand guilty of implementing discriminatory and stigmatizing legislation. Ukrainians, including children, would be unable to access information they need to protect their health. Human rights defenders working on sensitive issues related to sexual orientation and gender identity could be prevented from publicly addressing these topics.
I call upon you as Chairman of the Parliament to use your office to help ensure that Ukrainian laws are in compliance with fundamental protections on human rights and in particular in relation to this bill, that parliament uphold the rights of all persons in Ukraine, including children, to fully enjoy the right to freedom of expression- including the right to seek, receive and impart information, without discrimination of any kind.
Boris O. Dittrich
Lesbian, Gay, Bisexual, and Transgender Rights Program