October 2, 2012
His Excellency Volodymyr Mykhailovych Lytvyn,
Chairman of the Verkhovna Rada of Ukraine
Vul. M. Hrusthevskoho 5
Dear Mr. Lytvyn,
We are writing to you on behalf of Amnesty International and Human Rights Watch, to reiterate our concerns about Draft Law No. 8711, which is due to be discussed in Ukrainian Parliament today, 2 October 2012. As you know, the draft law is called “On introduction of Changes to Certain Legislative Acts of Ukraine (regarding protection of children’s rights in the safe information sphere)”.
The provisions of the proposed law violate fundamental human rights, including the rights to freedom of expression, association and peaceful assembly. Should the law be enacted, it will create an unacceptable environment of state-promoted discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, including those under 18 years of age. This draft law would also endanger the rights of human rights defenders to engage in human rights work regarding the rights of LGBT people.
Draft Law No. 8711 proposes to ban any production or publication of products “promoting” homosexuality; the use of media, TV or radio broadcasting for homosexual “propaganda”; the printing or distribution of publications “propagating” homosexuality; and the import, production or distribution of creative writings, cinematography, or video materials “propagating” homosexuality. If adopted, the law will introduce fines or prison sentences of up to five years.
Ukraine is a member of the Council of Europe, and in 1997 ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”). 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 a standalone prohibition on discrimination on any ground, which as the explanatory memorandum of the Protocol explains, includes sexual orientation.
Ukraine has willingly agreed to be bound by these obligations to respect, protect, and promote the right to freedom of expression for all people, regardless of their sexual orientation.
Additionally, the proposed law would be in violation of the Convention on the Rights of the Child (CRC), ratified by Ukraine in 1991. Article 13 of the CRC states that a child shall have the right to freedom of expression: “This right shall include freedom to seek, receive and impart information of ideas of all kinds.”
International law such as found in the Convention provides that restrictions under law on basic freedoms should be clearly and narrowly identified, strictly necessary, and proportionate. The restrictions that would be imposed on these rights by the draft law are not necessary to achieve the principal stated purpose of the proposed legislation - to protect children. Nor are these restrictions proportionate, particularly when they are balanced against the right to freedom from discrimination. The other stated purposes of these proposals – to promote particular definitions of “family,” and “to overcome the demographic crisis” – also fail the tests of necessity and proportionality.
Instead, by banning all forms of public activity that are “aimed at disseminating positive information about homosexuality that may adversely affect the physical and mental health of children,” this legislation would limit the rights of LGBT individuals to fundamental freedoms. By restricting the publication and dissemination of materials related to sexual orientation and gender identity, this bill would severely restrict access to information about health, support networks, and social activities for countless young people.
If it is to meet its European and international human rights obligations, the Ukrainian government should strive to create a society in which diversity is viewed not as a threat, but as a source of enrichment for society as a whole. Amnesty International and Human Rights Watch urge the members of the Verkhovna Rada to reject the proposed Draft Law No. 8711 on the grounds that this law would restrict the rights of children to seek, receive and impart information and ideas of all kinds and result in discriminatory treatment of lesbian, gay, bisexual and transgender people including by violating their rights to freedom of expression, association and peaceful assembly, and to equality before the law.
We call upon you as Chairman of the Parliament to use your office to help ensure that Ukrainian laws are in compliance with fundamental human rights protections and, concerning this bill, that parliament uphold the rights of all persons in Ukraine, including children, to fully enjoy their rights without discrimination of any kind.
Lesbian, Gay, Bisexual, and Transgender Rights Program
Human Rights Watch
European and Central Asia Programme