INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME XXI OF THE ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
12 JUNE 2018
TABLE OF CONTENTS
Annex 776 OHCHR, Report on the Human Rights Situation in Ukraine (16 August–15
November 2017)
Annex 777 OHCHR, Situation of Human Rights in the Temporarily Occupied Autonomous
Republic of Crimea, No. 12-401/2016 (17 November 2016)
Annex 778 OHCHR, Situation of Human Rights in the Temporarily Occupied Autonomous
Republic of Crimea and the City of Sevastopol, U.N. Doc. A/HRC/36/CRP.3 (25
September 2017)
Annex 779 OHCHR, Report on the Human Rights Situation in Ukraine (16 November
2017–15 February 2018)
Annex 780 U.N. Commission on Human Rights, Commentary of the Working Group on
Minorities to the United Nations Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, U.N. Doc.
E/CN.4/Sub.2/AC.5/2005/2 (2005)
Annex 781 Human Rights Bodies - Complaint Procedures, OHCHR (6 June 2018) accessed
at
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.asp
x#interstate
Annex 782 U.N. General Assembly, 20th Session 1406th Plenary Meeting, Official Records,
U.N. Doc. A_PB.1406 (21 December 1965)
Annex 783 Intentionally Omitted
Annex 784 Written Statement Submitted by the Society for Threatened Peoples, U.N. Doc.
A/HRC/28/NGO/97 (23 February 2015)
Annex 785 Permanent Delegation of the Russian Federation to UNESCO, Information on
the Situation in the Republic of Crimea (the Russian Federation) within the
Scope of UNESCO Competence as of April 8, 2015 (14 April 2015)
Annex 786 U.N. General Assembly Resolution 45/158, International Convention on the
Protection of the Rights of all Migrant Workers and Members of their Families
(18 December 1990)
Annex 787 HRC, General Comment No. 18, Non-Discrimination (Thirty-seventh Session,
1989), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 (1994)
Annex 788 CERD Committee, General Recommendation No. 14
Annex 789 CERD Committee, General Recommendation No. 31
Annex 790 CERD Committee, General Recommendation No. 32
Annex 791 CERD Committee, General Recommendation No. VIII Concerning the
Interpretation and Application of Article 1, Paragraphs 1 and 4 of the
Convention Thirty-Eighth Session, contained in U.N. Doc A/45/18 (23 August
1990)
Annex 792 Report of the CERD Committee, General Assembly Official Records: 48th
Session, Supp. No. 18, U.N. Doc. No. A/48/18 (19 January 1994)
Annex 793 Russian Federation, Reports Submitted by States Parties under Article 9 of the
Convention, Twentieth to Twenty-Second Periodic Reports of States Parties due
in 2012, Russian Federation, CERD/C/RUS/20-22 (6 June 2012)
Annex 794 Finland, Reports Submitted by States Parties under Article 9 of the Convention,
Twelfth Periodic Reports Due in 1993, CERD/C/240/Add.2 (17 May 1995)
Annex 795 Consideration of Reports Submitted by States Parties Under Article 9 of the
Convention, Concluding Observations of the Committee on the Elimination of
Racial Discrimination, Russian Federation, CERD/C/304/Add.5 (28 March
1996)
Annex 796 CERD Committee, General Recommendation No. XXIX on Article 1, Paragraph
1, of the Convention (Descent) Preamble, contained in U.N.
Doc.CCPR/C/21/Rev.1/Add.5 (2002)
Annex 797 Hagan v. Australia, Communication No. 26/2002, CERD/C/62/D/26/2002 (14
April 2003)
Annex 798 CEDAW, General Recommendation No. 25 on Article 4, Paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination Against Women,
on Temporary Special mMeasures (2004)
Annex 799 A.W.R.A.P. v. Denmark, Communication No. 37/2006,
CERD/C/71/D/37/2006 (2007)
Annex 776
OHCHR, Report on the Human Rights Situation in Ukraine (16 August–15 November 2017)
Office of the United Nations High Commissioner
for Human Rights
Report on the human rights situation in Ukraine
16 August to 15 November 2017
Contents
Paragraphs Page
I. Executive summary ................................................................................................. 1–19 1
II. Rights to life, liberty, security and physical integrity ............................................. 20–66 4
A. International humanitarian law in the conduct of hostilities ........................... 20–25 4
B. Civilian casualties ........................................................................................... 26–30 6
C. Missing persons and recovery of human remains ........................................... 31–33 9
D. Summary executions, killings, deprivation of liberty, enforced disappearances,
torture and ill-treatment, and conflict-related sexual violence ........................ 34–66 9
1. Summary executions and killings ....................................................... 34–35 9
2. Unlawful/arbitrary deprivation of liberty, enforced disappearances
and abductions .................................................................................. 36–46 10
3. Torture and ill-treatment .................................................................... 47–54 12
4. Conflict-related sexual violence ......................................................... 55–58 14
5. Access to places of detention .............................................................. 59–60 15
6. Conditions of detention ....................................................................... 61–66 15
III. Accountability and administration of justice ........................................................... 67–91 17
A. Accountability for human rights violations and abuses in the east ................. 67–74 17
B. Fair trial rights ................................................................................................ 75–78 19
C. Territory controlled by armed groups ............................................................. 79–83 20
D. High-profile cases of violence related to riots and public disturbances .......... 84–91 22
1. Accountability for the killings of protesters at Maidan ...................... 85–88 22
2. Accountability for the 2 May 2014 violence in Odesa ........................ 89–91 22
IV. Fundamental freedoms ............................................................................................ 92–110 23
A. Freedom of movement .................................................................................... 92–100 23
B. Freedoms of opinion and expression .............................................................. 101–107 25
C. Freedom of religion or belief .......................................................................... 108–110 27
V. Economic and social rights ..................................................................................... 111–129 28
A. Right to an adequate standard of living .......................................................... 111–117 28
B. Right to social security and social protection ................................................. 118–124 30
C. Housing, land and property rights................................................................... 125–129 31
VI. Discrimination against persons belonging to minority groups ................................ 130–131 32
VII. Human rights in the Autonomous Republic of Crimea and the city of Sevastopol . 132–147 33
A. Rule of law and administration of justice ....................................................... 133–134 34
B. Right to liberty and security ........................................................................... 135–137 34
C. Right to physical and mental integrity ............................................................ 138 35
D. Freedom of opinion and expression ................................................................ 139–141 35
E. Freedom of religion or belief .......................................................................... 142–143 35
F. Freedom of peaceful assembly ....................................................................... 144–146 36
G. Military conscription ...................................................................................... 147 36
VIII. Legal developments and institutional reforms ........................................................ 148–160 37
A. Legal framework concerning territory not controlled by the Government in
Certain areas of Donetsk and Luhansk regions ............................................... 148–154 37
B. Law on education ............................................................................................ 155–160 38
IX. Technical cooperation and capacity-building .......................................................... 161–165 39
X. Conclusions and recommendations ......................................................................... 166–175 40
1
I. Executive summary
1. This twentieth report on the situation of human rights in Ukraine by the Office of the
United Nations High Commissioner for Human Rights (OHCHR) is based on the work of the
United Nations Human Rights Monitoring Mission in Ukraine (HRMMU)1, and covers the
period from 16 August to 15 November 2017.
2. The findings presented in this report are grounded on data collected by HRMMU
through 290 in-depth interviews with witnesses and victims of human rights violations and
abuses, as well as site visits in both government-controlled and armed group-controlled territory.
HRMMU also carried out 423 specific follow-up activities to facilitate the protection of human
rights connected with the cases documented, including trial monitoring, detention visits, referrals
to State institutions, humanitarian organizations and non-governmental organizations (NGOs),
and cooperation with United Nations human rights mechanisms.2
3. While May through September saw a steady decline in hostilities, which levelled off in
October, November commenced with a sudden surge in keeping with the unpredictable dynamics
of the armed conflict in eastern Ukraine. Much of the character of the conflict, however,
remained the same as previously reported – with daily ceasefire violations and frequent use of
heavy weapons, some with indiscriminate effects, threatening the lives and well-being of the
civilian population while damaging property and critical infrastructure. As the fourth winter of
the conflict approaches, fluctuations in the armed hostilities maintained a tense environment of
general insecurity. The situation has been exacerbated since the beginning of the conflict by the
presence of foreign fighters and the supply of ammunition and heavy weaponry reportedly from
the Russian Federation.3
4. OHCHR recorded 87 conflict-related civilian casualties in eastern Ukraine (15 deaths
and 72 injuries) between 16 August and 15 November 2017, a 48 per cent decrease compared to
the previous reporting period of 16 May to 15 August. The leading causes of casualties were
mines, explosive remnants of war (ERW), booby traps and improvised explosive devices (IEDs)
which accounted for 59.8 per cent of all civilian casualties recorded, while shelling was
responsible for 23 per cent, and fire from small arms and light weapons for 17.2 per cent.
Recalling, however, that the conflict is still in an active phase, after three months of lower
civilian fatalities and injuries, as of 15 November, hostilities appear to be on the rise, which
could lead to a corresponding increase in civilian casualties.
5. Shelling of critical civilian water infrastructure continued to endanger not only the staff
but all persons in the vicinity of such facilities, in addition to disrupting public supply of water
and posing serious risk to the environment. Repeated shelling of the Donetsk Filtration Station4
1 HRMMU was deployed on 14 March 2014 to monitor and report on the human rights situation throughout Ukraine and
to propose recommendations to the Government and other actors to address human rights concerns. For more details, see
paras. 7–8 of the report of the United Nations High Commissioner for Human Rights on the situation of human rights in
Ukraine of 19 September 2014 (A/HRC/27/75).
2 United Nations Human Rights Council Special Procedures mandate holders and Human Rights Treaty Bodies.
3 OHCHR Report on the human rights situation in Ukraine, 16 February to 15 May 2015, paras. 2 and 6; OHCHR
Report on the human rights situation in Ukraine, 16 May to 15 August 2015, paras. 2, 58-59; OHCHR Report on the
human rights situation in Ukraine, 16 August to 15 November 2015, paras. 2 and 22 (see also fn. 128); OHCHR
Report on the human rights situation in Ukraine, 16 February to 15 May 2016, para. 2.
4 The Donetsk Filtration Station, located in “no man’s land” approximately 15 km north of Donetsk city, between
government-controlled Avdiivka and armed-group-controlled Yasynuvata, processes water for approximately 345,000
people on both sides of the contact line.
“It is now worse than in 2014 because we cannot continue to bear it any longer.”
- Resident of a village near the contact line.
2
between 3 and 4 November damaged a backup chlorine pipeline, which could have led to an
environmental disaster if toxic chlorine gas had leaked. A direct hit to the main pipeline or any of
the 900-kg bottles storing chlorine at the facility could have resulted in the deaths of any person
within a 200-metre radius.5 The following day, the Verkhnokalmiuska Filtration Station,6 which
stores 100 tons of chlorine gas, was shelled and sustained multiple hits.
6. OHCHR repeats its call for all parties to the conflict to immediately adhere to the
ceasefire and to implement all other obligations committed to in the Minsk agreements, including
the withdrawal of heavy weapons and disengagement of forces and hardware.7 OHCHR recalls
that during the last reporting period, a renewed ceasefire commitment (the “harvest ceasefire”)
resulted in a decrease in ceasefire violations, and a notable decrease in civilian casualties.8
7. OHCHR continued to document cases of summary executions, enforced disappearances,
arbitrary detention, torture and ill-treatment, and conflict-related sexual violence. While many
cases recorded date back to prior years of the conflict, new incidents also occurred within the
reporting period.
8. In government-controlled territory, OHCHR – in general – continue to enjoy unimpeded
access to conflict-related detainees, with the exception of several individuals in Kharkiv, Kyiv
and Dnipro who are under investigation of the Security Service of Ukraine. In territory controlled
by armed groups, OHCHR was denied access places where people are deprived of their liberty
and to hold confidential interviews. As enforced disappearances, torture and conflict-related
sexual violence often take place in the context of detention, this denial of access raises serious
concerns that human rights abuses may be occurring.
9. Accountability for grave human rights violations in conflict-related cases remained
elusive. Legal proceedings were plagued by ineffective investigations, politicization of cases
with the involvement of high level officials and infringements on the independence of the
judiciary. OHCHR documented substantial pressure exerted on judges in numerous cases.
10. No significant progress was achieved in criminal proceedings related to the killing of
protestors in Maidan in 2014. Due to the length of proceedings, defendants have remained in
detention for several years.9 With regard to the 2 May 2014 violence in Odesa, the trial of 19
persons accused of organizing and participating in the mass disturbances which led to six deaths
concluded in an acquittal. To date, no one has been held responsible for the violence that day, or
for any of the resulting 48 deaths.
5 Press release, Ukraine: UN experts warn of chemical disaster and water safety risk as conflict escalates in East, United
Nations Special Rapporteur on the implications for human rights of the environmentally sound management and disposal
of hazardous substances and wastes and Special Rapporteur on the human rights to safe drinking water and sanitation, 10
November 2017.
6 The Verkhnokalmiuska Filtration Station, located in armed-group-controlled territory approximately 17 km
northeast of Donetsk, supplies water to 800,000 people.
7 The Package of Measures for the Implementation of the Minsk Agreements calls for: an immediate and comprehensive
ceasefire; withdrawal of all heavy weapons from the contact line by both sides; commencement of a dialogue on
modalities of local elections; legislation establishing pardon and amnesty in connection with events in certain areas of
Donetsk and Luhansk regions; release and exchange of all hostages and unlawfully detained persons; safe access,
delivery, storage, and distribution of humanitarian assistance on the basis of an international mechanism; defining of
modalities for full resumption of socioeconomic ties; reinstatement of full control of the state border by the Government
of Ukraine throughout the conflict area; withdrawal of all foreign armed groups, military equipment, and mercenaries
from Ukraine; constitutional reforms providing for decentralization as a key element; and local elections in certain areas
of Donetsk and Luhansk regions. United Nations Security Council Resolution 2202 (2015), available at
http://www.un.org/press/en/2015/sc11785.doc.htm. See also Protocol on the Results of the Consultations of the Trilateral
Contact Group regarding Joint Measures Aimed at the Implementation of the Peace Plan of the President of Ukraine P.
Poroshenko and Initiatives of the President of the Russian Federation V Putin, available at
http://www.osce.org/home/123257; Memorandum on the Implementation of the Protocol on the Results of the
Consultations of the Trilateral Contact Group regarding Joint Measures Aimed at the Implementation of the Peace Plan of
the President of Ukraine P. Poroshenko and Initiatives of the President of the Russian Federation V. Putin, available at
http://www.osce.org/home/123806.
8 The “harvest ceasefire” ran from 24 June to the end of August, and while it never fully took hold, it contributed to an
overall reduction in the number of daily ceasefire violations, and consequently, the number of civilian casualties. See
OHCHR Report on the human rights situation in Ukraine, 16 May to 15 August 2017, paras. 22-23, 32-33.
9 Two defendants have remained in detention for over three years while three have been detained for over two years.
3
11. Within structures in territory controlled by armed groups, arbitrary detentions and
‘prosecutions’ were compounded by the lack of recourse to effective remedy. This is of particular
concern given the ‘pronouncement’ of a second ‘death penalty’ by the ‘supreme court’ of the
‘Donetsk people’s republic’ in November. The practice of incommunicado detentions, which
often amounted to enforced disappearance, also persisted.
12. As in previous reporting periods, infringements on freedom of movement continued to
isolate residents in villages located close to the contact line, cut off access to basic goods,
services and humanitarian aid, and intensified general hardship for the population. The
shortening of entry-exit checkpoint operational hours after summer, together with high numbers
of persons traveling resulted in longer queues to cross the contact line. A total of 1.2 million
crossings were recorded at the five crossing routes in the month of August, and 1.1 million each
in September and October.
13. Freedom of opinion and expression continued to face mounting challenges. OHCHR
noted with concern the broad interpretation and application of terrorism-related provisions of the
Criminal Code in cases where SBU initiated criminal investigations against Ukrainian media
professionals, journalists and bloggers. In territory controlled by armed groups, freedom of
expression remained severely curtailed, with no room for critical publications or elements of
dissent.
14. Many of the human rights violations and abuses and infringements on fundamental
freedoms described above persisted at similar or slightly heightened degrees as reported by
OHCHR in previous quarters. However, members of the conflict-affected population expressed
to HRMMU that the cumulative effect of the resulting harms and hardship they have endured as
the conflict continues in its fourth year is reaching an unbearable level. This was exacerbated by
the worsening socio-economic situation, policies which deprive citizens of their pensions, and the
lack of access to restitution of or compensation for property damaged or destroyed by the
conflict. These conditions deepen the divide, jeopardize social cohesion and complicate prospects
and efforts for future reconciliation.
15. Along with an increasing sentiment of despair of people directly affected by the armed
conflict in the east, OHCHR noted increasing manifestations of intolerance, including threats of
violence, by extreme right-wing groups, which served to stifle public expressions and events by
individuals holding alternative, minority social or political opinions. Violent acts which occurred
remained largely unsanctioned.
16. Having no access to Crimea, HRMMU continued to analyse the human rights situation
on the peninsula from mainland Ukraine on the basis of United Nations General Assembly
resolution 68/262 on the territorial integrity of Ukraine and resolution 71/205 referring to Crimea
as under occupation by the Russian Federation. The Russian Federation continued to apply its
laws, in violation of international humanitarian law applicable to an Occupying Power. Practices
by the authorities which resulted in serious human rights violations, and which disproportionately
affected Crimean Tatars, persisted this reporting period. Further, the exercise of freedoms of
opinion and expression, religion or belief and peaceful assembly also continued to be curtailed
through verdicts criminalizing criticism and dissent.
17. Two developments during the Parliament’s session within the reporting period are of
particular importance. Parliament began consideration and adoption of a new legal framework
concerning territory not under the control of the Government, with the aim of restoring state
sovereignty over certain areas of Donetsk and Luhansk regions. It is viewed to be implemented in
the context of an armed aggression and temporary occupation by the Russian Federation.
OHCHR cautions that, at this stage, the draft law lacks clarity as to the framework for the
protection of rights and freedoms, thus failing to satisfy the legal certainty requirement.
18. Parliament also adopted a new Law on Education which instates the Ukrainian language
as the main language of instruction in secondary and higher education. OHCHR cautions that
strengthening of the Ukrainian language should not come at the expense of minority languages,
4
and calls on the Government to ensure that the rights of minorities are respected without
discrimination among different minority groups.
19. OHCHR continued to engage in technical cooperation and capacity-building activities
with the Government of Ukraine and civil society in order to strengthen the protection and
promotion of human rights. OHCHR provided targeted trainings and advocacy to support
implementation of the Istanbul Protocol,10 and continued to raise awareness of conflict-related
sexual violence. OHCHR also supported the preparations for Ukraine’s third Universal Periodic
Review (UPR) which took place on 15 November 2017. Furthermore, the United Nations
Partnership Framework with Ukraine defining the support of the United Nations to national
development priorities has been signed. OHCHR will contribute to specifically support those
relating to democratic governance, rule of law, civic participation, human security and social
cohesion.
II. Rights to life, liberty, security, and physical integrity
A. International humanitarian law in the conduct of hostilities
20. During the reporting period, daily exchanges of fire across the contact line by all parties
to the conflict continued. Some improvement in the security situation was observed since the
beginning of the reporting period in mid-August until the end of October, which may be partially
attributable to renewed ceasefire commitments. Following the end of the “harvest ceasefire”
(agreed to allow local communities to bring in their crops safely), another renewed ceasefire
commitment commenced on 25 August to allow children to start the new school year safely.
However, such recommitments to ceasefire by the sides to the conflict can only be a temporarily
solution. The escalation that took place by the end of the reporting period, in the first two weeks
of November, indicates that achieving a sustainable peace requires full compliance with the
Minsk agreements. Meanwhile, sporadic and unpredictable spikes in the armed hostilities further
exacerbated the situation of general insecurity for civilians living in conflict-affected areas, and
in particular, those close to the contact line.
21. OHCHR remains concerned about the continued presence of heavy weapons near the
contact line,11 in disregard of pledges made under the Minsk agreements to withdraw such
weapons. The Special Monitoring Mission (SMM) of the Organization for Security and Cooperation
in Europe (OSCE) documented the repeated use of weapons with a wide impact area
(such as artillery and mortars) or the capacity to deliver multiple munitions over a wide area
(such as multiple launch rocket systems).12 The use of such weapons in densely populated areas
can be considered incompatible with the principle of distinction and may amount to a violation of
10 United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, available at http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
11 For example, the OSCE SMM observed four multiple launch rocket systems being transported between Shchastia and
Voitove (government-controlled territory) on 15 September, four multiple launch rocket systems near Novoamvrosiivske
and ten tanks near Novoselivka (armed-group-controlled territory) on 12 October. See OSCE SMM daily reports,
available at http://www.osce.org/ukraine-smm/reports.
12 For example, on 22 August, the OSCE SMM camera in (government-controlled) Shyrokyne recorded inter alia 8
rocket-assisted projectiles in flight and 20 explosions assessed as impacts. OSCE SMM daily report available at
http://www.osce.org/special-monitoring-mission-to-ukraine/336636. On 10 October, the OSCE SMM heard 35-40
explosions assessed as impacts of multiple launch rocket system near (government-controlled) Lebedynske. OSCE SMM
daily report, available at http://www.osce.org/special-monitoring-mission-to-ukraine/349206.
“If the shelling does not start at 22:00, I cannot fall asleep.”
- Resident of a village near the contact line.
5
international humanitarian law due to the likelihood of indiscriminate effects. During the
reporting period, HRMMU documented civilian casualties and damage to civilian property
caused by heavy weapons.13
22. The risk to civilian lives has been further heightened by the contamination of highlyfrequented
areas with mines and IEDs, as well as the presence of ERW.14 The parties to the
conflict continued the practice of placement of IEDs and anti-personnel mines in populated areas
and near objects of civilian infrastructure.15 OHCHR notes that placement of such victimactivated
explosive devices, which, by their nature, cannot differentiate between civilians and
combatants, in densely populated areas and areas frequently attended by civilians may amount to
an indiscriminate attack in violation of the principle of distinction enshrined in international
humanitarian law.16 Further, OHCHR recalls that parties to a conflict must take all precautionary
measures to avoid or minimize incidental loss of civilian life, injury to civilians and damage to
civilian objects.17
23. OHCHR continued to observe military presence in densely populated areas and military
use of civilian property on both sides of the contact line, increasing the risk to civilian lives,
property and critical infrastructure.18 Locating military positions and equipment within or near
residential areas and objects indispensable for the survival of the civilian population falls short of
taking all feasible steps to separate military objectives from the civilian population, in
contravention to international humanitarian law.19 OHCHR notes that where such presence is
justified due to military necessity, the parties must protect the resident civilian population,
including by providing alternative accommodation.20 Some residents of (government-controlled)
Opytne and in the “no man’s land” part of Pivdenne informed HRMMU they wished to relocate
13 See “Civilian casualties” below. In addition, HRMMU documented damage to civilian houses in (armed-groupcontrolled)
Pervomaisk caused by shelling on 23-24 August, and damages to civilian houses and infrastructure in (armedgroup-
controlled) Kyivskyi district of Donetsk city during an escalation in hostilities on 5-6 November 2017. See also
OSCE SMM documentation of civilian property damaged by shelling in (government-controlled) Marinka on 27
September and (armed-group-controlled) Yasynuvata on 29 September, available at http://www.osce.org/ukrainesmm/
reports/.
14 “Ukraine has the largest number of anti-vehicle mine-related incidents globally, and ranks fifth worldwide for civilian
casualties as a result of landmines and unexploded ordnance (UXO).” 2018 Humanitarian Needs Overview, Ukraine,
November 2017, available at https://reliefweb.int/report/ukraine/ukraine-humanitarian-needs-overview-2018-enuk. On 6
September, a man in Dmytrivka was injured by ERW. On 4 October, an employee of the local power company was killed
after tripping an anti-personnel mine near a powerline on the outskirts of Betmanove (formerly Krasnyi Partizan). On 5
November, one child was killed and two injured by ERW near a school in (armed-group-controlled) Petrovskyi district of
Donetsk city. OHCHR civilian casualties records.
15 HRMMU documented a case of a man in Zolote 4 (located in “no man’s land”) who went deaf in one ear as result of an
explosion of a sound grenade placed near his house. HRMMU interview, 29 September 2017. On 8 October, a tractor
driver was injured by the explosion of a mine near Metalist in an area which had been previously de-mined.
http://www.osce.org/special-monitoring-mission-to-ukraine/349421. On 31 October, HRMMU documented the case of a
woman who was injured in April 2017 by a trip-wired explosive device planted in her neighbour’s house.
16 ICRC, Customary International Humanitarian Law Database, Rules 1, 11 and 12.
17 ICRC, Customary International Humanitarian Law Database, Rule 7.
18 Presence of military or armed groups and their use or occupation of civilian property was documented by HRMMU in
government-controlled territory in Dacha (1 November), Krymske (29 August), Luhanske (4 October), Malynove (5
October), Novhorodske (5 September), Novoluhanske (4 October), Novotoshkivske (6 October), Opytne (10 October),
Shchastia (5 October), Tonenke (10 October), Troitske (31 October), and Zolote 4 (30 August), in armed-groupcontrolled
territory in Adminploshadka (26 September), Donetskyi (16 August and 3 November), Donetsk city Kyivskyi
district (9 November), Lukove (8 September), Molodizhne (25 August), Pikuzy (formerly Kominternove) (26 October),
and Zolote 5 (4 October), and in “no man’s land” in the Chihari area of Pivdenne (9 November), as well as in both the
government-controlled and armed-group-controlled parts of Zaitseve (1 November).
19 See ICRC, Customary International Humanitarian Law Database, Rules 22 and 23.
20 Customary international humanitarian law sets out the following elements of protection of civilians in such situation:
(1) prohibition on use of human shields (Rule 97), (2) requirement to warn the civilian population of upcoming attacks
(Rule 20), and (3) requirement to remove the civilian population and objects under control of the belligerent party from
the vicinity of military objectives (Rule 24; Guiding Principles on Internal Displacement, Principle 7(3)(b), Principle
15(a)). In the case that the security of the civilian population or military imperative demand evacuation, humane
conditions must be ensured and affected civilians must be provided with adequate alternative accommodation (Rule 131;
Guiding Principles on Internal Displacement, Principle 7(2)). In addition, civilian properties should be protected and
compensation paid for any use or damage of property (Rule 52, Rule 133).
6
to a safer place, however adequate alternative accommodation was never offered by the
authorities.21
24. During the reporting period, 10 incidents affecting water facilities were documented in
conflict-affected areas.22 The First Lift Pumping Station23 of the South Donbas water pipeline
was shelled on three occasions, causing damage to the facility and vehicles, and came under
small-arms fire on three occasions. The Donetsk Filtration Station24 was shelled repeatedly
between 3 and 5 November 2017, causing damage to a backup chlorine pipeline. If the main
pipeline in use or any of the 900-kg bottles storing chlorine in these facilities were to sustain a
direct hit, it would endanger the lives of not only staff, but any person within a 200-metre radius,
disrupt the water supply to approximately 350,000 people on both sides of the contact line, and
have devastating consequences for the environment.25 On 5 November, the Verkhnokalmiuska
Filtration Station, which supplies clean water to 800,000 people and stores 100 tons of chlorine
gas, was hit by multiple shells. If toxic chlorine gas were to be released, it could have
“devastating consequences” for the population in Donetsk city, Makiivka and Avdiivka.26 This is
not the first time that shelling of such infrastructure has threatened lives and the environment.27
OHCHR notes that critical civilian infrastructure such as water facilities require special
protection and calls on all parties involved in the hostilities to adhere to the agreement reached in
Minsk on 19 July 2017 in which they expressed commitment to create “safety zones” around the
Donetsk Filtration Station and the First Lift Pumping Station.
25. Armed hostilities also continued to threaten industrial facilities containing hazardous
materials which, if released, may have severe consequences for the environment and civilians
living in close proximity. For example, the sludge collector of the phenol plant in (governmentcontrolled)
Novhorodske requires regular bi-weekly maintenance. For the last year, however, no
such maintenance or repair work could be done due to the lack of security guarantees for a
“window of silence”.28 It should be noted that if the dam around the collector is damaged, it risks
releasing liquid toxic waste into the Kryvyi Torets and Siverskyi Donets rivers which serve as the
main water sources for the Donbas region.29 On 9 November an agreement to provide security
guaranties for a “window of silence” was reached by the Joint Centre for Control and
Coordination and repair works started. OHCHR recalls that particular care must be taken to avoid
attacks and damages of installations containing dangerous forces and substances and also to
protect the natural environment against widespread, long-term and severe damage. OHCHR calls
on the parties involved in hostilities to negotiate adequate security arrangements which would
allow regular maintenance as well as repairs to be conducted on the phenol plant.
B. Civilian casualties
26. Between 16 August and 15 November 2017, OHCHR recorded 87 conflict-related civilian
casualties in 44 locations of Ukraine: 15 deaths (14 men and 1 boy) and 72 injuries (42 men, 19
21 HRMMU interviews.
22 See WASH Cluster Incident Reports nos. 81-93, available at
https://www.humanitarianresponse.info/en/operations/ukraine/documents/bundles/46705.
23 The First Lift Pumping Station is located between the armed group-controlled villages of Vasylivka and Kruta Balka, in
immediate proximity to the contact line.
24 The Donetsk Filtration Station is located in “no man’s land”, approximately 15 kilometres north of Donetsk city,
between government-controlled Avdiivka and armed group-controlled Yasynuvata.
25 See “Ukraine: UN experts warn of chemical disaster and water safety risk as conflict escalates in East”, United Nations
Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of
hazardous substances and wastes and Special Rapporteur on the human rights to safe drinking water and sanitation, 10
November 2017.
26 See “Ukraine: UN experts warn of chemical disaster and water safety risk as conflict escalates in East”, available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22382&LangID=E.
27 See, e.g., OHCHR Report on the human rights situation in Ukraine, 16 May to 15 August 2017, paras. 29-30; OHCHR
Report on the human rights situation in Ukraine, 16 February to 15 May 2017, para. 18.
28 A “window of silence” is a localized agreement to adhere to the ceasefire for a designated time period.
29 HRMMU interview.
7
women, 10 boys and 1 girl).30 This is a 48 per cent decrease compared with the previous reporting
period of 16 May to 15 August 2017, during which 168 civilian casualties (26 deaths and 142 injuries)
were recorded.
27. This reduction is mainly in the number of civilian casualties caused by shelling and
SALW31 fire, which has been steadily decreasing since May 2017. Between August and October,
it decreased four-fold as compared to May through July (11 and 42 on average per month,
accordingly). OHCHR also observed an increasing disparity in regard to civilian casualties
caused by shelling and SALW fire occurring on territory controlled by armed groups and those
occurring on territory controlled by the Government. From May through July 2017, the ratio was
2 to 1, while from August through October, the ratio was 10 to 1 (29 in territory controlled by
armed groups versus 3 in government-controlled territory).32 With regard to the 52 civilian
casualties caused by mines, ERW, booby traps and IEDs, 20 occurred in mine-related incidents
(38.5 per cent), while 32 (61.5 per cent) resulted from imprudent handling or dismantling of ERW
or the detonation of hand grenades in interpersonal conflicts.
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28. Overall levels of civilian casualties in 2017 were comparable to 2016 levels. From
1 January to 15 November 2017, OHCHR recorded 544 conflict-related civilian casualties: 98 killed
and 446 injured. This is a 3.6 per cent increase compared to the same period in 2016, when 525
civilian casualties (87 killed and 438 injured) were recorded.
30 OHCHR investigated reports of civilian casualties by consulting a broad range of sources and types of information
which were evaluated for credibility and reliability. In undertaking documentation and analysis of each incident, OHCHR
exercises due diligence to corroborate information on casualties from as wide a range of sources as possible, including
OSCE public reports, accounts of witnesses, victims and other directly-affected persons, military actors, community
leaders, medical professionals, and other interlocutors. In some instances, investigations may take weeks or months
before conclusions can be drawn, meaning that conclusions on civilian casualties may be revised as more information
becomes available. OHCHR does not claim that the statistics presented in this report are complete. Civilian casualties
may be underreported given limitations inherent in the operating environment, including gaps in coverage of certain
geographic areas and time periods.
31 Small arms and light weapons.
32 OHCHR is not in a position to establish with certainty which party to the conflict is responsible for specific civilian
casualties caused by shelling and SALW fire; it is only able to make their attribution per territory of control.
8
29. During the entire conflict period, from 14 April 2014 to 15 November 2017, at least
2,523 civilians were killed: 1,399 men, 837 women, 91 boys, 47 girls and 149 adults whose sex
is unknown. An additional 298 civilians, including 80 children, were killed as a result of the
MH17 plane crash on 17 July 2014. The number of conflict-related civilian injuries is estimated
between 7,000 and 9,000.
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30. In total, from 14 April 2014 to 15 November 2017, OHCHR recorded 35,081 conflictrelated
casualties in Ukraine among Ukrainian armed forces, civilians and members of the armed
groups. This includes 10,303 people killed and 24,778 injured.33
C. Missing persons and recovery of human remains
31. With the outbreak of the armed conflict in April 2014, documentation of missing
persons was considerably disrupted in eastern Ukraine. Although efforts have subsequently
resumed in both territory controlled by the Government and territory controlled by armed groups,
there has been no effective exchange of forensic information (such as DNA samples and
anthropometrical data) across the contact line for over three years. As of 15 November 2017,
draft legislation “On the legal status of missing persons” foreseeing the establishment of a
commission for missing persons, which is crucial for fulfilment of Ukraine’s obligations under
international humanitarian law,34 was still pending before Parliament.35
32. There is therefore no effective possibility to match figures on the missing reported by
the Government (86536 to 1,47637) and those reported by armed groups (509 as of 10 November
2017 according to the ‘ombudsperson’s office’ of the ‘Donetsk people’s republic’).38 As of 22
August 2017, the ICRC estimated the number of conflict-related missing persons to be from
1,000 to 1,500.39
33. OHCHR believes that many of those reported as missing persons may be dead, with
their bodies either not yet found or identified. Further, OHCHR cannot exclude that some
individuals reported missing may currently be held incommunicado either by the Government or
by armed groups. Full and unimpeded access of independent international monitors to all places
of detention, especially those in territory controlled by armed groups, is crucial for establishing
the whereabouts of some of the missing.
D. Summary executions, killings, deprivation of liberty, enforced
disappearances, torture and ill-treatment, and conflict-related sexual
violence
1. Summary executions and killings
34. OHCHR continued to receive and verify allegations of summary executions and wilful
killings of civilians, Ukrainian servicemen, and individuals associated with armed groups. These
allegations mostly concern 2014, but also 2015 through 2017, indicating the prevailing impunity
for grave violations and abuses of international human rights law and violations of international
humanitarian law in the conflict zone. Victims’ relatives and witnesses interviewed by HRMMU
often do not give consent for public reporting on such cases out of fear of retaliation or
persecution.
33 This is a conservative estimate based on available data. These totals include: casualties among Ukrainian forces as reported
by Ukrainian authorities; 298 people from flight MH-17; civilian casualties on the territory controlled by the Government as
reported by local authorities and regional departments of internal affairs; and casualties among civilians and members of
armed groups on territory controlled by ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’, as reported by armed
groups, the so-called ‘local authorities’ and local medical establishments. This data is incomplete due to gaps in coverage of
certain geographic areas and time periods, and due to overall underreporting, especially of military casualties. Injuries have
been particularly underreported. The increase in the number of casualties between the different reporting dates does not
necessarily mean that these casualties happened between these dates: they could have happened earlier, but were recorded by
a certain reporting date.
34 ICRC, Customary International Humanitarian Law Database, Rule 117.
35 There have been no developments on the two draft laws since 7 June 2017, when the Parliamentary Committee on
human rights issued its conclusion regarding the texts.
36 As of 15 November, according to the Main Department of the National Police in Donetsk region.
37 As of 15 November, according to the National Police of Ukraine.
38 No figures have been reported by the ‘Luhansk people’s republic’.
39 https://www.ukrinform.ru/rubric-society/2290807-krasnyj-krest-razyskivaet-640-propavsih-bez-vesti-na-donbasse.html.
10
35. For example, a civilian who participated in the May 2014 “referendum on the status of
the Donetsk peoples’ republic” went missing after Ukrainian military, including the Aidar
volunteer battalion, retook control of the area. His body was found in November 2014 with traces
of gunshot wounds to the head. His family is not aware of any investigation conducted into his
death.40 In another case, in July 2016, a man was found shot dead near his house in a village of
Luhansk region controlled by armed groups. Neighbours had heard three shots in the preceding
evening. There was an armed groups’ checkpoint nearby, manned by the ‘Brianka-USSR’
battalion. The victim's family was notified that a suspect was ‘arrested’ by ‘police’ at the
beginning of November.41
2. Unlawful/arbitrary deprivation of liberty, enforced disappearances and abductions
36. OHCHR continued documenting cases of unregistered detention, when a person is held
incommunicado prior to being delivered to an official place of detention, a practice which
increases the likelihood of torture and ill-treatment with a view to extracting a confession.
Although these cases occurred earlier, they were documented during the reporting period.
37. For example, on 16 April 2015, a former member of an armed group was detained in his
home by armed men in balaclavas. Without introducing themselves or presenting a search
warrant, they beat him, threatened him, and searched his house. They took the victim to a
basement, which he believes was on the outskirts of Pokrovsk (formerly Krasnoarmiisk), where
he was detained incommunicado, handcuffed to a metal safe which forced his body into a
difficult position. He was interrogated and tortured by having water poured over his face,
electrocutions, and beatings on his back and kidneys. The perpetrators made him sign documents
and filmed a video confession. He was taken to the Kramatorsk SBU on 21 April 2015, where he
was given more documents to sign. In November 2015, he was convicted of terrorism.42
38. On 10 January 2015, a resident of Pokrovsk was stopped in his car and detained by four
armed men. They brought him to the Right Sector training camp near Velykomykhailivka
(Dnipropetrovsk region), where he was detained in a basement and beaten with a truncheon for
two days. The victim was held incommunicado until 14 May 2015, during which time he was illtreated
and witnessed the death of another detainee. The perpetrators are currently on trial.43
39. OHCHR is concerned about the lack of progress in investigations of enforced
disappearances which occurred in 2014. For example, there has been no progress in the
investigation into the disappearance of a truck driver who went missing on 25 July 2014 near
Katerynivka (formerly Yuvileine) in Luhansk region. HRMMU recently learned that his passport
was found in March 2017 in possession of a UAF serviceman.44 On 30 August 2017, National
Police of Ukraine in Bilokurakynsk district of Luhansk region launched a criminal investigation
under article 115 (murder).
40 HRMMU interview.
41 HRMMU interview.
42 HRMMU interview. His appeal is currently being heard.
43 HRMMU interview.
44 HRMMU interview.
“When you do not understand anything and just sit there in the basement, every night you
expect that someone may come, take you out, kill you and bury you in some forest, and then
no one will ever find out where you are. That’s the only thing you can think about.”
- Victim describing incommunicado detention.
11
Territory controlled by armed groups
40. OHCHR documented the continued practice of ‘administrative arrest’, during which
persons are held incommunicado and prohibited from contact with relatives or a defence counsel.
The initial detention period of 30 days was often automatically prolonged beyond the initial
period.45 OHCHR is concerned about arbitrary application of ‘administrative arrest’ and
incommunicado detention, and the lack of any procedural guarantees or recourse for persons who
find themselves subjected to it. Further, OHCHR notes that such a practice – of detaining
persons, denying them access to lawyers or relatives, and refusing to provide information to
families on their whereabouts – may amount to enforced disappearance.
41. For example, on 29 April 2017, two men traveling to Dokuchaievsk were detained by
‘border guards’ at an armed-group-controlled checkpoint and taken to the ‘department of
combating organized crime’ (UBOP) in Donetsk. Both men worked as State Fiscal Service
inspectors in government-controlled territory. They were detained for a few days in ‘UBOP’ and
then brought to a temporary detention facility administered by ‘police’ and held incommunicado
under ‘administrative arrest’. Their families were not notified of their ‘arrests’, and learned of
their whereabouts from other sources. The lawyer hired by relatives was denied access to the
detainee. Since April, the men were released every 30 days, given a moment to talk to relatives,
and then immediately ‘re-arrested’ by ‘UBOP’ on different ‘charges’ and placed under another
30-day ‘administrative arrest’.46
42. On 27 February 2017, a couple was detained at a checkpoint controlled by armed
groups. They were questioned for approximately six hours, then separated and brought to the
‘MGB’ building in Donetsk city. The woman was questioned again and told that they had
discovered explosives in one of their bags and would charge her husband with ‘espionage’. When
she was released, she saw her husband in another office; his pupils were unusually enlarged. Ten
days later, she received a call from and ‘MGB officer’ who stated her husband was under
‘administrative arrest’. As of 15 November 2017, the victim was allegedly in Donetsk SIZO,
however his wife has never been able to see him during his detention.47
43. OHCHR continued documenting cases of individuals subjected to enforced
disappearance. On 31 August 2017, a young man who made his living carrying luggage for
people walking along the Stanytsia Luhanska crossing route went missing. He had crossed the
government-controlled entry-exit checkpoint while carrying luggage, but was stopped by
personnel at the checkpoint controlled by the armed groups of the ‘Luhansk people’s republic’
and his passport was taken away. Despite relatives’ inquiries, the whereabouts and fate of the
victim remain unknown.48 On 2 September 2017, the National Police of Ukraine in Stanytsia
Luhansk district of Luhansk region launched a criminal investigation under article 146 (Illegal
confinement or abduction of a person).
44. On 25 August 2017, a man was taken from his home to a ‘police station’ in Makiivka by
the ‘ministry of state security’ (‘MGB’) officers, where he was held for at least two days. The
family’s last contact with him occurred by phone on 27 August. They were informed by ‘police’
that the man was under ‘administrative arrest’ and denied permission to speak or meet with him.
It is believed that his ‘arrest’ is retaliation for his political opinion, as he openly expressed ‘prounity’
views and criticism of the ‘Donetsk people’s republic’ and the Russian Federation.49
45. OHCHR is concerned that there has been no progress on cases that occurred in earlier
stages of the conflict. For example, on 1 July 2015 an unconscious man with visible injuries on
his head and torso was seen being dragged from his apartment by three armed men in camouflage
45 See OHCHR Report on the human rights situation in Ukraine, 16 February to 15 May 2017, paras. 43-45.
46 HRMMU interview.
47 HRMMU interview.
48 HRMMU interviews; HRMMU meeting, 15 September.
49 Approximately seven months ago, the victim was fired from his job at a local hospital in Makiivka due to his ‘prounity’
views.
12
with 'Vostok' insignia. The victim was put in a car. As of 15 November 2017, his whereabouts
remained unknown.
46. OHCHR notes that enforced disappearance not only constitutes a grave violation of the
rights to life and to liberty and security of the person, but is “inseparably linked” to treatment that
amounts to torture or to cruel, inhuman or degrading treatment or punishment.
3. Torture and ill-treatment
47. During the reporting period, OHCHR continued to receive allegations which match the
previously documented pattern of use of torture to extract confessions from persons suspected of
being members of or otherwise affiliated with armed groups.50 Also, in a few cases, Ukrainian
servicemen detained on suspicion of committing criminal offences were subjected to torture until
they provided self-incriminating testimonies. It is deeply concerning that investigations into
allegations of torture are rarely opened and when so, have been ineffective. Defence lawyers also
rarely raise allegations of torture, either due to intimidation or as a strategy to reduce the
sentence.
48. For example, in August 2015, in two separate episodes, SBU arrested two residents of
Kharkiv region accused of being supporters of the ‘Donetsk people’s republic’ and ‘Luhansk
people’s republic’ and planning to carry out subversive activities. Both victims were transported
to the regional SBU department, where they were tortured (beaten, hands twisted behind the
back, subjected to mock execution, and threats of violence against their families) until they
signed self-incriminating statements. Although they were taken to hospital, SBU officers
instructed doctors not to record any injuries. One of the victims begged a lawyer not to raise
allegations of torture in court, fearing reprisals. The victim told the doctors in the pre-trial
detention facility (SIZO) that he was injured falling from a tree. Both victims remain in
detention, with trials ongoing.51
49. In another case, on 16 June 2016, a victim was physically attacked next to his apartment
building by two men wearing balaclavas. The victim ran out into the street, where two other
individuals hit him on the head, strangled him, and kicked his head when he fell on the ground.
He was handcuffed, dragged into a van, and driven 30-40 minutes away. When the van stopped,
an SBU official of the Kharkiv regional department questioned him about his acquaintances who
joined the armed groups of the ‘Donetsk people’s republic’. Unsatisfied with the victim’s reply,
SBU officers strangled, kicked and punched him while threatening his family. When the victim
agreed to cooperate, the SBU officers explained that he would be taken to the Ukrainian-Russian
border and detained for “smuggling weapons”. At the border, one officer stabbed the victim’s
heel so he would not be able to escape. Afterwards, the victim was taken to the Kharkiv SBU
building and forced to memorise a written statement. His “confession” was video recorded. The
victim is currently on trial for “terrorism” and “trespass against territorial integrity of Ukraine”.
While the Military Prosecutor for Kharkiv Garrison is investigating the allegations of torture, no
notifications of suspicions or indictments have been issued.52
50 Not all incidents documented by OHCHR which occurred during the reporting period are reflected in this report in
order to maintain the highest protection of victims through strict adherence to the principles of confidentiality and
informed consent.
51 HRMMU interviews.
52 HRMMU interviews; HRMMU trial monitoring, 15 September and 30 October 2017;HRMMU meeting, 5 September
2017.
“If you behave well, if you say what we want – you won’t be hurt. If you resist, we will send
Right Sector to your house. Your boy will be crippled; your wife will be met on the way
from work. We will inject you with drugs, so you will become a plant.”
- Perpetrator to a victim of torture.
13
50. In another case, a man was detained in his home in Nyzhnioteple in November 2016 by
members of the UAF. They searched him at gun point, beat him causing lasting pain, and
subjected him to suffocation and electroshocks. They forced him to make a video confession that
he provided information on Ukrainian military positions to armed groups. Then he was taken to
the Sievierodonetsk SBU building where he was interrogated without a lawyer and forced to sign
papers in order to receive medical care. Afterwards, he was taken to the hospital but threatened
by SBU officers not to complain of any ill-treatment. He is accused of being a spotter for armed
groups and is currently on trial.53
51. OHCHR also followed cases of Ukrainian servicemen who reported being subjected to
torture while detained on criminal charges.54 On 30 October 2014, a serviceman of the
Kirovohrad volunteer battalion together with five fellow soldiers was detained by a group of 20
armed men. The victim was held incommunicado in solitary confinement for three days in the
basement of the SBU regional department building in Kramatorsk. He was tortured several times
a night in order to extract information about his commanders. The victim was beaten, including
with truncheons, and hung from bars while being hit and subjected to electroshocks. On the third
night, the perpetrators cuffed the victim’s hands behind his back, put duct tape tightly over his
eyes and mouth causing pain, pushed him to the floor and kicked him. The victim lost
consciousness and choked on his own blood. The beating continued until the victim confirmed
that he was ready to “confess”. He was told what to say in court and forced to sign documents.
The SBU officers who took him to the court threatened that if he asked for a lawyer or
complained, his “therapy” in the basement would continue. In the presence of two masked, armed
SBU officers, the judge ordered his pre-trial detention for 60 days, without announcing any
charges.55 The victim’s injuries were later documented at hospital and in the SIZO. Despite his
written complaints about the incommunicado detention and torture, as well as two court orders
for the Office of the General Prosecutor to conduct a forensic expertise of his injuries and
investigate the circumstances of his arrest, there has been no progress in investigation. As of 15
November 2017, he remains in detention and complains about not receiving necessary medical
aid.56
Territory controlled by armed groups
52. Victims of torture residing in territory controlled by armed groups hesitate to report
torture and rarely give consent for public reporting for fear of retaliation and direct threats to
their safety.57 When cases are reported, it is often much later after the incident occurred.
53. OHCHR documented the case of a Russian blogger,58 who was detained with his wife at
their home in Donetsk city on 27 September 2017 by armed men dressed in camouflage. The
blogger was physically assaulted by the perpetrators, resulting in a fractured leg. One of the
perpetrators also attempted to suffocate him. The victims were then taken to the ‘UBOP’ office,
and interrogated separately for a few hours. During this time, no medical aid was provided. The
woman was released that evening, while the man was forced to sign a ‘notice’ that he was
detained under ‘administrative arrest’ upon charges of participating in a terrorist organisation. He
was released on 2 November 2017.59
54. During the reporting period, OHCHR received and followed up on accounts of seven
individuals (three women and four men) who had been detained incommunicado in an armedgroup-
controlled place of detention called “Izoliatsiia”.60 Since at least 2016, the facility has been
used by the ‘MGB’ and the ‘UBOP’ of the ‘Donetsk people’s republic’ to detain men and women
53 HRMMU interviews.
54 HRMMU interviews.
55 The victim was later charged and on 28 April 2017, the Kostiantynivka City Court convicted him under articles 187(2),
189(3), 263(1) and 410(1) of the Criminal Code and sentenced him to 10 years. He has appealed the verdict.
56 HRMMU interview.
57 HRMMU interviews.
58 See also para. 105 below.
59 HRMMU interviews.
60 Izoliatsiia was an industrial facility that was turned into cultural facility in Donetsk city prior to the conflict. In May
2014, it was seized by armed groups and used as an illegal detention facility where individuals were tortured. OHCHR
has previously reported on the human rights violations that occurred there.
14
suspected of “treason”, “subversive activities” or cooperation with SBU. Some members of the
armed groups of the ‘Donetsk people’s republic’ were also reportedly held in this facility.
Detention periods varied from a few hours to over a year. The facility has cells used for
punishment (e.g. one only for sitting, another only for standing) and a ‘monitoring room’ from
which the cells could be watched 24 hours via video cameras. Guards wore camouflage without
insignia and were armed with AK-47 assault rifles. To keep detainees in a state of exhaustion, the
guards forced them to constantly perform physical work.61
4. Conflict-related sexual violence
55. OHCHR continued documenting cases of conflict-related sexual violence, most of
which occurred at the early stages of the conflict, in 2014-2015, but were only reported recently
when the victims felt safe and were able to access some services. These cases fit into the
previously-identified pattern of sexual violence used as a form of torture or to force victims to
perform actions demanded by the perpetrators.62 Some emblematic cases are described below.
56. On 28 September 2017, a civilian man was taken off a bus at an internal checkpoint by
armed men in camouflaged uniform and accused of affiliation with armed groups based on his
social media pictures. He was transferred to a police station in Kreminna, where he was forced to
strip to his underwear and stand in a cold room for two hours, with people walking in and out. He
was beaten, threatened with rape and of being handed over to Azov battalion. Without access to a
lawyer, he was forced to sign a statement, typed by an investigator, that he was a member of
armed groups. The next day he was released.63
57. In December 2014, seven masked men armed with assault rifles, including several
members of a volunteer battalion, broke into a private house in a town near the contact line. One
perpetrator put a knife to the victim’s neck, who was eight months pregnant, and threatened to
cut her throat if she screamed. He tied her hands and legs with rope and gagged her with a cloth
wet with engine oil, causing her to suffocate. He also pointed a gun to her stomach threatening to
shoot her baby. While one perpetrator demanded to know where the money and valuables were,
another one sexually assaulted her by touching her breasts and genitals under her clothing, and a
third man threatened her with gang rape. During this ordeal, the victim could hear her parents
screaming in another room, causing additional suffering and reinforcing the threats. After seizing
all the valuables and money, the men threatened to shoot the family if they reported the crime.
The perpetrators are currently on trial.64
Territory controlled by armed groups
58. On 31 May 2014, near Luhansk, two civilian men were abducted and detained by five
members of an armed group masked with balaclavas and armed with assault rifles. They were
taken to a tent camp and separated. One victim, who was known for his pro-Ukrainian views,
was brought inside a tent, where other members of armed groups beat him and subjected him to a
mock execution before interrogating him. At one point, the interrogator kicked the victim in his
testicles, which was extremely painful and resulted in residual injury. The victim was also beaten
with a metal rod wrapped in a rag by different individuals, including a woman. The perpetrators
forced the victim to open his social network accounts, which was followed by more beatings on
different parts of his body, including his kidneys and the back of his head. The perpetrators
61 HRMMU interviews.
62 See OHCHR report on conflict-related sexual violence in Ukraine, 14 March 2014 to 31 January 2017.
63 HRMMU interview.
64 HRMMU interview.
“We will bring your daughter here and we will have sexual intercourse with her in all
possible ways.”
- Staff to detainee during interrogation.
15
threatened the second victim that his younger sister “may not come back home tonight”; they
knew where she studied and what time she returned home. The victims also heard a man armed
with a pistol ask the guards whether his friends could rape the ‘detainees’.65
5. Access to places of detention
59. In government-controlled territory, OHCHR – in general – continued to enjoy
unimpeded access to official places of detention. OHCHR conducted confidential interviews, in
line with international standards, of detainees in SIZOs in Bakhmut, Kharkiv, Kherson,
Mariupol, Mykolaiv, Odesa, Starobilsk, Vinnytsia and Zhytomyr, and in penal colonies in
Kharkiv, Mykolaiv and Odesa regions. At the same time, OHCHR faced unreasonable delays
with access to a number of detainees held in Dnipro and Kyiv. In Kharkiv, OHCHR was denied
permission for three months to hold a confidential interview with a detainee under SBU
investigation, and also faced delays accessing other such detainees.
60. In both ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’, OHCHR
continued to be denied access to detainees and places of deprivation of liberty. Coupled with
first-hand information received by HRMMU, this denial of access continued to raise serious
concerns regarding detention conditions, as well as possible further human rights abuses such as
torture and ill-treatment.
6. Conditions of detention
61. In government-controlled territory, HRMMU noted during its visits that the general
conditions in some places of detention did not satisfy applicable international standards such as
the Mandela Rules.66 The issue of access to medical care remains acute, particularly for conflictrelated
detainees in SIZOs. Frequently raised concerns included: refusal to provide medical
care67; failure or inability to provide opportunities for specialised medical care (e.g. consultations
with a neurologist, endocrinologist, surgeon or gynaecologist) or for a specific medical
examination despite repeated requests68; failure to provide medical check-ups or needed X-rays69;
and failure to provide medical assistance due to the absence of basic medication in SIZOs70 or
inability to ensure access to antiretroviral treatment for detainees with HIV71. While these
findings are based on HRMMU interviews with conflict-related detainees, the United Nations
Subcommittee on Prevention of Torture (SPT) also captured these violations as a result of
systemic challenges.72
62. During interviews and court hearings, alleged victims and their lawyers continue to raise
concerns that bodily injuries of detainees as a result of torture are not systematically documented
when detainees are admitted to a SIZO or temporary detention facility (ITT), despite existing
regulations.73 For example, a detainee was first rejected by the ITT in Kramatorsk due to visible
signs of ill-treatment, but later admitted after the military police forced him to sign a statement
that the injuries were sustained prior to his apprehension. The ITT administration did not attempt
65 HRMMU interview.
66 United Nations General Assembly Resolution 70/175, “United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules)”, 17 December 2015.
67 HRMMU interviews.
68 HRMMU interviews.
69 HRMMU interview.
70 HRMMU interview.
71 HRMMU trial monitoring, 17 October 2017.
72 CAT/OP/UKR/3, Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment Visit to Ukraine undertaken from 19 to 25 May and from 5 to 9 September 2016: observations and
recommendations addressed to the State party, paras. 53-56.
73 For example, the existing Order of the Ministry of Internal Affairs No. 638 dated 2 December 2008, registered in the
Ministry of Justice on 12 February 2009, requires that all detainees pass a medical examination in the medical institution
under the Ministry of Health, and if a detainee has any health complaints, ITT staff should call an ambulance. If there are
any visible signs of injuries, the Prosecutor’s Office should be immediately notified. Unfortunately, based on HRMMU
monitoring, these safeguards do not always work, which leads to poor documentation of torture at all stages. HRMMU
therefore welcomes efforts of the National Police and other relevant law-enforcement agencies to improve the situation
through training of their staff, including on Istanbul Protocol, as well as a pilot project in ITT nr. 1 in Dnipropetrovsk
region.
16
to verify the veracity of the written statement.74 Often, detainees are only asked if they have any
medical complaints and are not duly examined by a health practitioner. In some cases, although
injuries were documented, SIZO staff failed to provide a copy of the medical certificate to the
detainee75 despite the legal requirement to do so.76 As was highlighted by the SPT, delayed or
superficial medical examination may thwart investigative efforts into allegations of torture.77
Situation of pre-conflict prisoners in territory controlled by armed groups
63. OHCHR welcomes the transfer on 14 September 2017 of 19 pre-conflict prisoners from
four penal colonies78 controlled by the ‘Donetsk people’s republic’ to facilities in governmentcontrolled
territory. The transferred prisoners did not report being subjected to torture or illtreatment,
however, in certain penal colonies, the conditions were poor, including substandard
quality of food, insufficient healthcare due to lack of medical staff and supplies, and lack of
adequate heating.79
64. Prisoners reported that one of the primary reasons for requesting transfer was to be able
to maintain contact with families, which had become difficult once the armed conflict erupted.
While prisoners are sometimes able to make phone calls, there is no postal service between
government-controlled territory and armed-groups-controlled territory, and relatives cannot
easily cross the contact line. OHCHR is not informed about criteria used for selecting detainees
for transfer. It is of concern that the ‘Donetsk people’s republic’ denies transfer requests of preconflict
prisoners with official registration in government-controlled territory of Donetsk region.
65. Even those prisoners who have served their complete sentence or were acquitted by a
court in government-controlled territory after the start of the conflict have not been released. The
armed groups do not acknowledge court decisions taken in government-controlled territory and
do not recognize or apply the Savchenko Law,80 resulting in the arbitrary detention of the
concerned individuals.81
66. To date, no pre-conflict prisoners have been transferred from penal colonies controlled
by the ‘Luhansk people’s republic’ despite numerous appeals by prisoners and advocacy by
HRMMU. This raises concern when paired with allegations received by HRMMU of illtreatment,
particularly in penal colonies in Slovianoserbsk and Khrustalnyi (formerly Krasnyi
Luch). In addition to poor conditions of detention,82 prisoners alleged that they have been
regularly beaten by masked men believed to be ‘special forces’ (“spetsnaz”). The perpetrators
wore camouflage with a chevron displaying a skull wearing a beret with a knife in its teeth.83
74 HRMMU interview.
75 HRMMU interviews.
76 Joint Decree of the Ministry of Justice Ukraine and the Ministry of Health of Ukraine no. 239/5/104 of 10 February
2012, explicitly requires SIZO medical staff to issue a copy of a medical certificate attesting to documented bodily
injuries to the detainee, regardless of the nature and circumstances of such injuries
77 CAT/OP/UKR/3, Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment Visit to Ukraine undertaken from 19 to 25 May and from 5 to 9 September 2016: observations and
recommendations addressed to the State party, paras. 34-38.
78 Penal colonies no. 32 and 97 in Makiivka, no. 28 in Torez, and no. 52 in Yenakiieve.
79 HRMMU interviews.
80 Law of Ukraine ‘On amendments to the Criminal Code of Ukraine concerning the improvement of rules of
incorporation by the court of the period of pre-trial detention into the period of sentence’ No.838-VIII of 26 November
2015.
81 Under the Savchenko Law, when calculating time served, one day in a pre-trial detention facility was counted as two
days of detention in a prison colony, which could substantially reduce the overall length of a prison sentence.
82 Prisoners reported insufficient quantity of food, insufficient of medical aid, limited electricity and running water
(available only two hours per day), no heating in the barracks, and insufficient opportunities for personal hygiene
(prisoners are allowed to wash only once a month).
83 HRMMU interviews.
17
III. Accountability and administration of justice
A. Accountability for human rights violations and abuses in the east
67. The Government of Ukraine has a duty to ensure that victims of human rights violations
and abuses have access to an effective remedy, including reparations, and that such remedies are
enforced when granted.84 Yet accountability for most conflict-related cases has not been
achieved. These include both human rights violations perpetrated by Government forces and
human rights abuses perpetrated by armed groups.
68. As of 1 November 2017, military prosecutor’s offices reported carrying out 118
investigations into crimes allegedly perpetrated by Ukrainian military forces and other military
formations (including killings of civilians) as well as by the SBU (including abuse of power and
physical abuse of detainees to force confessions).85 They further reported that, under their
procedural guidance, the national police are carrying out 119 investigations.86 At the same time,
certain human rights violations allegedly perpetrated by Ukrainian military (in particular by
members of special units formed on a voluntary basis) and SBU remain uninvestigated.87
69. Similarly, police were hesitant to investigate the enforced disappearance of a Luhansk
resident on 14 July 2014 allegedly perpetrated by members of the Ukrainian military due to
“absence of elements of the crime”. Only in May 2017, after the victim’s mother had repeatedly
filed a complaint with the police, was an investigation formally launched.88 In another case, a
Ukrainian soldier, accused of arbitrarily detaining a person, complained that the military
prosecutor’s office failed to investigate his own complaint of arbitrary detention and beatings
over the course of three days at the Kramatorsk SBU. Despite repeated complaints since 2015,
the investigation was closed and reopened twice, with no results to date.89
70. The effectiveness of investigations is also an issue. For example, the criminal
investigation into unlawful detention of individuals at the Kharkiv SBU has been ongoing for a
year without yielding any results, raising concern regarding the genuine intention to bring the
perpetrators to accountability.90 Similarly, a conflict-related detainee’s allegations of torture and
ill-treatment by SBU officers in Sievierodonetsk were not properly addressed by the military
prosecution.91 Furthermore, the investigation into the enforced disappearance of a resident of
Dobropillia (Donetsk region) on 1 October 2014 has not yielded any results. The victim’s brother
collected witness accounts suggesting that the crime had been committed by members of the
84 ICCPR, art. 2(3); CERD art. 6; CAT, art. 14.
85 According to the Military Prosecutor, in addition, 13 investigations have been suspended, 124 have been closed and 83
have been submitted to courts with indictments (52 of which resulted in judgments of conviction).
86 According to the Military Prosecutor, in addition, 6 investigations have been suspended, 142 have been closed and 243
have been submitted to courts with indictments (150 of which resulted in judgments of conviction).
87 For instance, killings of Roman Postolenko and Dmytro Shabratskyi, OHCHR thematic report on accountability for
killings in Ukraine, Annex I, paras. 11-14 and 117-118 respectively.
88 HRMMU interview.
89 HRMMU interview.
90 OHCHR Report on the human rights situation in Ukraine, 16 November 2016 to 15 February 2017, para. 41 and
footnote 37.
91 HRMMU interview. The victim complained to the Prosecutor’s office of Luhansk region, which forwarded the
complaint to the military prosecutor of Luhansk garrison, which in turn forwarded the detainee’s complaint to the SBU
internal oversight mechanism. The latter replied to the victim that no illegal actions had been established as a result of
conducted investigation.
“We will kill you now, and we will avoid any punishment for that.”
- Perpetrators to victim of human rights violations.
18
Donbas battalion with the acquiescence of the SBU and local police. The same police department
is in charge of the investigation.92
71. OHCHR is deeply concerned with the release on 6 November 2017 of a State Border
Guard who had been convicted in the first instance court of killing a civilian in 2014 and
sentenced to 13 years in prison.93 The release followed a public information campaign by
political figures in support of the accused which distorted the facts of the case, requests by
members of Parliament for the SBU to investigate the judges of the trial court for links to armed
groups and to examine their previous judgments,94 and a meeting between members of
Parliament and the Prosecutor General.95 Further, President Poroshenko made a public statement
in support of the accused.96 Such pressure is emblematic of interference with the judiciary, and is
likely to have a chilling effect on future investigations into serious violations of international
human rights law or international humanitarian law committed by members of the security
forces.
72. The Office of the Military Prosecutor continued to investigate human rights abuses
perpetrated in territory controlled by armed groups, including killings, arbitrary deprivation of
liberty, and torture and ill-treatment of both Ukrainian military and civilians. It reported having
established numerous violations of Part 2 of Article 75 of Protocol I.97 Testimonies of over 1,050
individuals arbitrarily detained by armed groups have reportedly been collected.
73. Individuals affiliated or linked with armed groups continued to face charges based only
on their alleged participation in or support to armed groups rather than on violations of
international humanitarian law or the human rights abuses they may have committed.98
According to the Military Prosecutor, only 11 persons have been charged with violating the rules
and customs of war under article 438 of the Criminal Code.99
74. OHCHR notes the in absentia murder conviction and life sentences issued on 10
November 2017 against three members of armed groups of the ‘Donetsk people’s republic’ for
the 2014 killing of 16-year-old Stepan Chubenko.100 While OHCHR welcomes adjudication of
92 HRMMU interview.
93 Judgement of conviction, Prymorskyi district court of Mariupol, 15 November 2016, upheld by court of appeal of
Donetsk region on 7 February 2017, available at: http://reyestr.court.gov.ua/Review/64775792. The accused was released
based on the decision of the High Specialized Court for Civil and Criminal Cases on 6 November 2017 to return the case
for retrial, available at: http://reyestr.court.gov.ua/Review/70144868.
94 See appeal of judges of Prymorskyi district court of Mariupol to the High Council of Justice regarding interference with
the judiciary, 6 November 2017, available at http://www.vru.gov.ua/content/file/2951-0-6-17_.pdf. On 1 November, a
member of Parliament filed a request with SBU to examine whether the judges of Prymorskyi district court are linked to
the armed groups. In addition, approximately 150 men, including senior officials and servicemen of the State Border
Guard Service, members of the Donbas battalion, at least four members of the Parliament, and young men in sportswear
with a red duct tape on their shoulders, attended the hearing on 2 November, and up to 200 men in military uniform
attended the hearing on 6 November before the High Specialized Court for Civil and Criminal Cases. HRMMU trial
monitoring, 2 and 6 November 2017.
95 On 2 November, members of Parliament who support the perpetrator met with the Prosecutor General to discuss the
case. http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=218440&fp=20.
96 President Poroshenko made a statement supporting the Court decision saying that “sometimes the Motherland has to
defend its defenders” (available at: https://www.facebook.com/petroporoshenko/posts/1136056533195404)
97 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977.
98 See OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017, para. 88; OHCHR report on
the human rights situation in Ukraine, 16 May to 15 August 2017, para. 72.
99 See defendants listed in OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
footnote 118. Additional defendants include a ‘commander’ of the ‘Hooligan battalion’ of the ‘Luhansk people’s
republic’ (suspected of armed assault, abduction and illegal detention), the ‘military commandant’ of the ‘ministry of
defence’ of the ‘Luhansk people’s republic’ (suspected of creating an armed group in July 2014, assault, and
misappropriating of property to be used in operation of the ‘Luhansk people’s republic’), commander of the ‘Vostok
battalion’ for failure to provide medical aid to a Ukrainian soldier, leading to his death (see OHCHR thematic report on
Accountability for killings in Ukraine from January 2014 to May 2016, Annex I, paras. 26-28), and a member of the
armed groups of ‘Donetsk people’s republic’ for physical violence against captured military servicemen and civilians in
Snizhne, Donetsk region. According to the Office of the Military Prosecutor, 3,000 persons (including 1,450 civilians)
have been unlawfully detained and subjected to torture, inhuman and degrading treatment.
100 Judgment of conviction of Dzerzhynskyi town court of Donetsk region (available at:
http://reyestr.court.gov.ua/Review/70145786). See also OHCHR thematic report on accountability for killings from
January 2014 to May 2016, Annex I, paras. 44-47.
19
the human rights violation rather than focusing on membership in an armed group, concerns
remain regarding possible deficiencies of the national legal framework regulating trials in
absentia which may fall short of international human rights standards.101
B. Fair trial rights
75. Individuals arrested and detained for conflict-related charges often found themselves
victims of human rights violations such as arbitrary detention, torture and ill-treatment. The
pattern suggested that the majority of these violations occurred shortly after arrest with the aim of
obtaining incriminating testimonies and information. Victims’ complaints of torture or illtreatment
were often disregarded, even when submitted in court.102 Furthermore, OHCHR
documented cases suggesting that immediate access to a lawyer remains a problem for conflictrelated
detainees. This problem existed mainly in combination with the practice of unlawful
detention prior to registering the arrest of a person.103
76. Article 258-3 of the Criminal Code on the “setting up of a terrorist group or
organization” criminalizes a broad range of actions, including “participating in” as well as
“materially, institutionally, or otherwise facilitating the setting up or operation of” a terrorist
group or organization. Such wording allows for broad interpretation of the law, in contradiction
to the basic principle of legal certainty. On 28 September 2017, the Andrushivskyi district court
of Zhytomyr region sentenced one media professional and one IT specialist to nine years for the
“informational facilitation” of “activity of a terrorist organization” for helping to organize the
operation of Novorossiia TV channel.104
77. OHCHR continued to observe attempts to pressure or otherwise interfere with the
judiciary in conflict-related cases. A judge of Zarichnyi district court of Sumy105 reported being
harassed by ‘civic activists’ in response to the acquittal of a former security officer accused of
joining an armed group.106 In an unrelated case, after acquitting the former chief of the
Kramatorsk town police who was accused of supporting armed groups, another judge found
himself under investigation for the same charges.107 A judge of the court of appeal of Luhansk
region considering an appeal in the second acquittal of a district council official charged under
article 114-1 of the Criminal Code108 openly stated during a hearing that it was difficult for him
to handle the “poorly substantiated appeal” given the attention to the case of “people from
above”.109 Judges of Selydivskyi town court of Donetsk region who complained to the High
101 While an accused person has the right to be present at his or her trial (art.14, ICCPR), trials in absentia may be
acceptable in special circumstances so long as the rights of an effective defence is preserved (General Comment no. 13,
art. 14, ICCPR). The Criminal Code of Ukraine allows for in absentia trials, however does not provide for retrials, nor an
opportunity to appeal against the verdict after the expiry of the general 30-day statutory limitation.
102 HRMMU interviews (with regard to complaints made in six different cases).
103 HRMMU interviews.
104 Judgment available at http://reyestr.court.gov.ua/Review/69213571.
105 HRMMU interview.
106 The acquittal was based on lack of recognition of the ‘Donetsk people’s republic’ as a terrorist organization and nonadmissibility
of evidence, obtained by coercion.
107 HRMMU interview.
108 Article 114-1, introduced into the Criminal Code at the wake of the armed conflict in April 2014, criminalizes any
“obstruction of lawful activities of the armed forces of Ukraine or other military formations”. The current legislation does
not define such ‘lawful actions’ with sufficient clarity, nor does it set a threshold to qualify as ‘obstructing’ them. This
raises concerns that an unjustifiably wide discretion is left to prosecutors and judges, and the article may be used to
persecute legitimate complaints against the military.
109 HRMMU trial monitoring, 30 October 2017. According to publicly available information, the Deputy Minister for
Temporary Occupied Territories and IDPs made prejudicial statements against the accused and another senior official of
“The European Court of Human Rights is very far. SBU, on the other hand, is right here.”
- Criminal judge.
20
Council of Justice about interference with their functions by the prosecutor’s office of Donetsk
region in conflict-related criminal cases, afterwards found themselves under investigation led by
the latter.110
78. OHCHR recalls that the presumption of innocence is among fundamental guarantees of
fair trial, and senior public officials should refrain from making public statements regarding
criminal proceedings which would prejudice the public to believe the suspect is guilty or
prejudge the assessment by judicial authorities.111 OHCHR is concerned with public statements
made by the deputy speaker of the Parliament claiming that former Sloviansk mayor Nelia
Shtepa112 (currently on trial for trespass against territorial integrity of Ukraine and creation of
terrorist organization) called the “Russian world” into Donbas.113 (See also the release of a
convicted State Border Guard, para. 71 above.)
C. Territory controlled by armed groups
79. The ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ continued developing
structures through which they performed government-like functions, including in the area of
‘justice’. OHCHR recalls that it is increasingly accepted that non-state actors exercising
government-like functions and effective control over a territory must respect human rights
standards when their conduct affects the human rights of individuals under their control.114
the district council, blaming them for construction of barricades obstructing the movement of UAF troops. Notably, he
publicly admitted to interfering with the judiciary and pledged to “not step away until purging the land of this scum”. See
https://apostrophe.ua/ua/article/society/2015-10-02/georgiy-tuka-o-vozvraschenii-separatistov-vo-vlast-i-blujdayuschihsnayperah/
2353 and https://amnesty.org.ru/ru/2015-09-18-ukraina2/.
110 See complaints regarding interference with the judiciary, dated 23 June 2017 and 11 July 2017 (available at
http://www.vru.gov.ua/content/file/1288-0-6-17_.pdf and http://www.vru.gov.ua/content/file/1288-1-6-17_.pdf). The
judges complained about the failure of the prosecutor’s office of Donetsk region to comply with legislation when
prosecuting individuals on conflict-related charges, leaving judges no option but to return indictments back to the
prosecution or acquit defendants. They alleged that in order to shift attention from their failures, the prosecutors blame the
judges of intentional protraction of proceedings and unwillingness to adjudicate in conflict-related cases. On 7 July 2017,
a group of “National Corps” activists allegedly organized by the prosecutor’s office of Donetsk region protested against
the acquittal of the ‘head’ of the ‘supreme court’ of ‘Donetsk people’s republic’ and performed a mock ‘hanging of the
corrupt judge’ (see http://azov.press/ru/selidivs-kim-suddyam---lyustraciyu). On 4 August 2017, based on a submission of
a member of the Parliament, the prosecutor’s office of Donetsk region launched an investigation into the acquittal of the
‘head’ of the ‘supreme court’ of ‘Donetsk people’s republic’ by the judges of Selydivskyi district court of Donetsk region
on charges of delivering a knowingly unjust verdict (see OHCHR report on the human rights situation in Ukraine, 16 May
to 15 August 2017, footnote 74).
111 It is a duty of all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making
public statements affirming the guilt of the accused. In Gridin v. Russia (2000), the Human Rights Committee found a
violation of the presumption of innocence where public statements by officials which received wide media coverage
presented the accused as guilty. See also Saidova v. Tajikistan (2004); Ismoilov and others v. Russia, ECtHR, no.
2947/06, 24 April 2008.
112 See OHCHR Report on the human rights situation in Ukraine, 16 May to 15 August 2017, footnote 122. On 20
September 2017, Leninskyi district court of Kharkiv released Ms Shtepa from custody, replacing detention with house
arrest upon the motion of the defence. Decision available at http://reyestr.court.gov.ua/Review/69076525). After more
than three years of extending the detention (since Shtepa’s arrest in July 2014), the court concluded that there was not a
risk of flight. Of note, on 6 November 2017, the court informed the parties that the presiding judge on the trial has gone
on paternity leave and recused himself. It is unclear whether the case will now need to be tried de novo.
113 https://www.facebook.com/iryna.gerashchenko/posts/1512039325550542.
114 The United Nations Committee on the Elimination of Discrimination against Women considers that “under certain
circumstances, in particular where an armed group with an identifiable political structure exercises significant control
over territory and population, non-State actors are obliged to respect international human rights” (General
Recommendation No 30, 2013). The United Nations Security Council strongly condemned “the continued violations of
international humanitarian law and the widespread human rights violations and abuses, perpetrated by armed groups” in
the Central African Republic (resolution 2127 (2013), para. 17). In relation to the situation in the Democratic Republic of
the Congo, it reminded all parties “in Uvira and in the area that they must abide by international humanitarian standards
“The circus continues...”
- Person on ‘trial’.
21
80. The armed groups contend that conflict-related detainees are under ‘investigation’
and/or in ‘custody’ awaiting ‘trial’. As a general rule, conflict-related ‘criminal cases’
(‘espionage’, ‘high treason’, etc.) are held in closed ‘sessions’ without outside observers or
independent international monitors. OHCHR is concerned that, behind closed doors, conflictrelated
detainees are ‘convicted’ and face harsh ‘sentences’ without recourse to effective remedy.
For example, on 31 October, a ‘military court’ of the ‘Luhansk people’s republic’ ‘sentenced’ a
man to 12 years for ‘high treason’ after a two-week ‘trial’ held in closed sessions. OHCHR notes
that the defence counsel, who was ‘appointed’ by ‘MGB’, never visited his client in detention.
OHCHR further notes that while the details of the ‘prosecution’ and ‘conviction’ are unknown,
the man was initially arrested after singing a Ukrainian song in a local bar.115
81. In addition to these concerns, the inherent lack of independence and impartiality of these
‘tribunals’ raises serious concerns that residents in territory controlled by armed groups do not
have adequate protection of their rights and no access to justice. The situation is even more
concerning in light of reports that a second ‘death penalty’ was ‘pronounced’ on 7 November
2017 by the ‘supreme court’ of the ‘Donetsk people’s republic’.116 International law sets stringent
conditions for application of the death penalty, including meticulous compliance with
international fair trial standards. The structures put in place by the “Donetsk people’s republic”
clearly fail to meet those standards and should therefore in no circumstances impose capital
punishment.
82. In territory controlled by armed groups of both ‘Donetsk people’s republic’ and
‘Luhansk people’s republic’, the process of ‘registered’ detention is often preceded by a period of
incommunicado detention perpetrated by the ‘law enforcement structures’, by ‘MGB’117 or
‘UBOP’118, which is not subject to any ‘review’. Such incommunicado detention may last for
weeks or months.
83. Persons residing in territory under the control of armed groups, including those in
detention, who wished to obtain a lawyer faced new challenges. On 30 June 2017, the ‘head’ of
‘Donetsk people’s republic’ issued a ‘decree’ stating that only lawyers who were ‘certified’ by
the ‘Donetsk people’s republic’ may represent a ‘defendant’ in ‘criminal cases’, which is in
conflict with the ‘law on the bar and practice of law’.119 Many lawyers fear obtaining such
‘certification’, as it may put them at risk of arrest and prosecution when they travel to
government-controlled territory because the certification procedure requires taking an oath to the
‘Donetsk people’s republic’.
and ensure respect for human rights in the sectors they control” (statement by the President of the Council,
S/PRST/2002/27(2002)), and indicated that “the RCD-GOMA must… ensure an end to all violations of human rights and
to impunity in all areas under its control” (statement by the President of the Council, S/PRST/2002/22(2002)). See also, in
relation to the situation in Gaza: A/HRC/16/71, para. 4, and in relation to the situation in Libya: A/HRC/17/45(2011),
para. 20. See also Report of the International Commission of Inquiry to investigate all alleged violations of international
human rights law in the Libyan Arab Jamahiriya, A/HRC/17/44, para. 72; and Report of the Secretary-General’s Panel of
Experts on Accountability in Sri Lanka, 31 March 2011, para. 188.
115 HRMMU interviews. In addition, on 9 October 2017, the ‘prosecutor-general’s office’ of the ‘Donetsk people’s
republic’ reported the ‘sentencing’ of two people to 14 years each for ‘espionage’, and on 13 November, OHCHR
attended the pronouncement of a ‘judgement’ by the ‘military tribunal’ of the ‘Donetsk people’s republic’ where a
woman was ‘convicted’ of ‘espionage’ and ‘sentenced’ to 10 years. She reportedly received the minimum ‘penalty’ in
exchange for cooperating with the prosecution.
116 The ‘defendant’ was ‘convicted’ of the rape, sexual assault and killing of a nine-year-old girl. Judgment available at
https://supcourt-dnr.su/content/verhovnyy-sud-prigovoril-nasilnika-i-ubiycu-k-isklyuchitelnoy-mere-nakazaniya. The first
‘death penalty’ was ‘pronounced’ in December 2015 in a ‘case’ involving ‘charges’ of brigandism and killings, however
as of 27 June 2017, the ‘death penalty’ had not been executed?
117 HRMMU interview; OHCHR Report on the human rights situation in Ukraine, 16 May to 15 August 2017, paras. 47-
50.
118 HRMMU interview.
119 The ‘law’ allows lawyers certified in Ukraine or the U.S.S.R. who have continuously practiced law in the ‘Donetsk
people’s republic’ since 11 May 2014 and are registered with the ‘ministry of justice’ to represent criminal defendants.
HRMMU interview.
22
D. High-profile cases of violence related to riots and public disturbances
84. OHCHR continued to follow the cases of killings and violent deaths in the context of
mass assemblies, including those which occurred at Maidan in Kyiv,120 during the 2 May 2014
violence in Odesa121, during the Unity March in Kharkiv on 22 February 2015122 and from the
explosion near Parliament on 31 August 2015.123 Investigations into some episodes have been
ongoing, while others have reached the courts, however no essential progress has been observed
in convicting perpetrators.
1. Accountability for the killings of protesters at Maidan
85. According to the Prosecutor-General’s Office, 53 persons (including former senior
officials) have been notified of suspicion of committing crimes against participants of Maidan
protests. Forty of them have reportedly absconded; special pre-trial investigations in absentia
were launched against 27 of them.
86. Ten persons have been indicted, including five former “Berkut” special police regiment
servicemen who are on trial on charges of killing 48 people and inflicting 128 gunshot injuries to
80 protesters on 20 February 2014, together with other absconded servicemen. They remain in
custody pending trial at Sviatoshynskyi district court of Kyiv, which is still reviewing witnesses’
and victims’ testimonies and examines case files.
87. On 14 November 2017, Pecherskyi district court of Kyiv extended the pre-trial
detention of one of alleged accomplices124 of the abduction of two Maidan protesters on 21
January 2014. Both were reportedly severely beaten and released in a forest outside Kyiv. As a
result, one victim froze to death.
88. The Prosecutor-General’s Office continues its investigation against the former deputy
head of the Kyiv SBU for launching an “anti-terrorist operation” in the Kyiv city centre which
resulted in the deaths of protesters.125 In total, 380 persons are under investigation for committing
crimes against Maidan protesters.126
2. Accountability for the 2 May 2014 violence in Odesa
89. On 18 September 2017, the Illichivskyi town court of Odesa region acquitted 19
persons127 of mass disturbances in the city centre which led to the killing of six men.128 The court
held that the prosecution failed to prove that the accused took active part in the disorder. The
court also noted that the pre-trial investigation was not impartial as it was carried out by police
and according to available information, police officers could have been engaged in organizing
and participating in the mass disturbances along with those on trial. The court also shared
OHCHR’s concerns regarding the one-sided investigation, noting in particular that the
prosecution was biased against the ‘pro-federalism’ activists.
90. The court ordered the immediate release of the five defendants who had remained in
custody since May 2014. SBU immediately re-arrested two of them in the courtroom after the
120 At least 108 protesters and other individuals, as well as 13 police officers, were killed during the Maidan protests. See
OHCHR report on Accountability for killings in Ukraine, paras. 20-24 and Annex I, tables 1 and 2.
121 During the mass disorder in Odesa city centre, 6 persons were shot dead and 42 died while trapped in the burning
House of Trade Unions. See OHCHR report on Accountability for killings in Ukraine, paras. 25-27 and Annex I, table 3.
122 Four people were killed by a blast. See OHCHR report on Accountability for killings in Ukraine, Annex I, para. 4.
123 Four police officers were killed by a combat grenade explosion. See OHCHR report on Accountability for killings in
Ukraine, Annex I, para. 5.
124 Another 11 suspects have been put on a wanted list.
125 For more details, see OHCHR thematic report on Accountability for killings in Ukraine from January 2014 to May
2016, Annex I, Table 1.
126 Of them: 48 senior officials, 203 law enforcement officers, including 25 investigators, 16 prosecutors and 15 judges,
and 42 civilians (the so-called “titushky”) have been charged with crimes against Maidan protesters from November 2013
to February 2014. One hundred fifty five indictments against 239 persons have been submitted to courts, and 42 people
have been convicted.
127 The 20th accused absconded from Ukraine on 11 August 2017 and his case was separated.
128 Judgment of acquittal, available at: http://reyestr.court.gov.ua/Review/68926870. OHCHR notes that the legal
proceedings were beset with delays, having been transferred between four different courts, as well as re-started on three
different occasions. Notably, once the case reached the panel of the Illichivskyi town court of Odesa region, the trial saw
rapid progress and was completed within four months (from 31 May to 18 September 2014).
23
judgement was pronounced, on charges of “trespass against the territorial integrity of Ukraine” in
connection with a peaceful motorcade rally of ‘pro-federalism’ supporters in March 2014.129
91. The court decision left unanswered the question of who is responsible for organizing
the mass disturbances which resulted in 48 deaths. As of the date of this report, the investigations
had identified only two persons who allegedly shot dead two men. One of the suspects is a
member of ‘pro-unity’ groups and remains at liberty pending his trial, in stark contrast to the
members of ‘pro-federalism’ groups who were detained for several years prior to their
acquittal.130
IV. Fundamental freedoms
A. Freedom of movement
92. Restrictions on freedom of movement and the transfer of goods and currency across the
contact line continued to adversely affect hundreds of thousands of persons. Such restrictions,
which required civilians to expose themselves to security risks, long queues and physical
challenges, only served to further divide a once-integrated community.
93. Numerous factors contributed to longer queues at entry-exit checkpoints (EECPs) on
both ends of the crossing routes. A total of 1.2 million individual crossings were recorded at the
five crossing routes in August, and 1.1 million in September and October each.131 The daily
working hours of the checkpoints at the crossing routes were reduced by 4.5 hours over the
course of the reporting period.132 As of 15 November 2017, they were open from 8:00 to 17:00
hrs. Newly introduced measures133 at the Cargill checkpoint (controlled by ‘Donetsk people’s
republic’), also significantly slowed down the movement of people across the contact line.
HRMMU observed that due to the longer waiting periods at this checkpoint, people attempted to
cross the contact line through other crossing corridors, contributing to longer queues there as
well. Civilians complained to HRMMU that long queues at government-controlled checkpoints
were caused by an overly complicated checking procedure. OHCHR notes that corrupt practices
were also claimed to be a significant factor negatively impacting the flow of civilians across the
contact line.134
94. During the reporting period, there have been at least nine security incidents at or in the
vicinity of the crossing routes.135 Mines continued to pose a serious threat to civilians crossing
129 http://reyestr.court.gov.ua/Review/69748399, http://reyestr.court.gov.ua/Review/69748019
130 The second suspect is a ‘pro-federalism’ activist who allegedly fled Ukraine after the 2 May violence.
131 Number of individual crossings of the contact line per month (information provided by the State Border Guard Service
of Ukraine): August – 1.194.000; September – 1.093.000; October – 1.108.000; 1-15 November – 485.000.
132 On 1 September 2017, the working hours were reduced by 2.5 hours, and on 29 October, they were reduced by a
further 2 hours. At the close of the reporting period, the EECPs were open from 8:00 to 17:00 hrs.
133 Individual passport registration and checks already in place at other checkpoints were introduced at Cargill checkpoint
on 7 September 2017.
134 HRMMU site visits of all five crossing routes throughout the reporting period and information received from
interlocutors.
135 See Ukraine: Checkpoints – Humanitarian Snapshot (as of 16 November 2017), available at
https://reliefweb.int/report/ukraine/ukraine-checkpoints-humanitarian-snapshot-16-november-2017; Ukraine: Checkpoints
– Humanitarian Snapshot (as of 15 September 2017), available at https://reliefweb.int/report/ukraine/ukraine-checkpointshumanitarian-
snapshot-15-september-2017. Further, on 13 October 2017, one Ukrainian Border Guard was wounded as a
“If we did not have to travel to the territory controlled by the Government to confirm our
right to receive pensions, we would still go there... But to meet with relatives, to purchase
food, not to be humiliated.”
- Resident living in territory not controlled by the Government.
24
the contact line and those living in close vicinity to EECPs. On 22 August, two women (aged 60
and 56) suffered injuries requiring hospitalization from an explosive device while walking off the
main road near the Novotroitske EECP.136 On 1 September, a 54-year old woman was wounded
by a mine explosion in a forest in Stanytsia Luhanska.137
95. OHCHR continued to express concern over conditions at Stanytsia Luhanska, the sole
crossing route in Luhansk region, which requires people to climb across unsafe wooden ramps
connecting parts of a destroyed bridge.138 This is especially challenging for elderly people (who
make up the vast majority of those crossing), persons with disabilities, and families travelling
with children. With the onset of winter, traversing the ramps will become increasingly more
difficult due to snow and ice. For this reason, persons with disabilities living in territory
controlled by armed groups often decide it is too dangerous to travel across in order to receive
their disability support and pensions.139 OHCHR fears that these conditions may also encourage
use of alternative, unofficial crossing paths, which are often mined. For example, on 10
November 2017, a resident of Donetsk stepped on a landmine while attempting to cross the
contact line from Donetsk to Marinka outside of official crossing routes.140 He died instantly
from his injuries, however, his body remained in “no man’s land” for two days before it could be
recovered.
96. On 20 October 2017, in a unilateral action, the Government once again opened its EECP
located at the hitherto closed crossing route near Zolote in Luhansk region141 and allowed people
to cross into “no man’s land” towards positions of armed groups of the ‘Luhansk people’s
republic’. The people were prohibited from crossing checkpoints manned by the armed groups
and had to return. While OHCHR strongly urges the opening of additional crossing routes across
the contact line, including at Zolote, this must be done in a coordinated manner and must avoid
placing civilians at increased security risks.
97. OHCHR continued to document cases of discriminatory restriction of freedom of
movement through so-called ‘internal check points’ operated by the National Police. Civilians,
including representatives of local and international NGOs who are registered in territory
controlled by armed groups are often stopped and required to present an IDP certificate and their
cell phones for a check of IMEI codes.142 All personal data is reportedly stored for future use.
Such practice not only restricts freedom of movement and has a negative impact on operation of
NGOs but also has a discriminatory nature targeting people who are registered in territory
controlled by armed groups.
98. Residents were also adversely affected by unnecessary and disproportionate restrictions
imposed by Order no. 39 of the Ministry of Temporarily Occupied Territory, which specifies the
list of goods and quantities which may be transported across the contact line. On 28 July 2017, a
woman crossing the contact line was stopped from transporting life-saving medication for her
disabled daughter who suffers from a serious kidney condition, because the quantity of
medication exceeded the prescribed maximum. The mother and child were stuck at the EECP for
eight hours, during which the woman had to perform peritoneal dialysis for her daughter twice.
result of sniper fire at Marinka checkpoint, and on 10 September 2017, the area around the government-controlled
checkpoint at Maiorsk was impacted by shelling.
136 Daily report of the OSCE SMM, 25 August 2017, available at http://www.osce.org/special-monitoring-mission-toukraine/
336636.
137 ATO Press Centre, 2 September 2017, available at https://www.facebook.com/ato.news/posts/1682749488402517.
138 See OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2017, para. 91.
139 HRMMU meeting, 12 September 2017.
140 OSCE SMM Daily report, 13 November 2017, available at http://www.osce.org/special-monitoring-mission-toukraine/
356591. In addition, on 7 November, a resident of Stanytsia Luhanska died when he detonated an antipersonnel
mine in the vicinity of Krasnyi Yar village while attempting to cross a river by boat from governmentcontrolled
territory to territory controlled by armed groups (information provided by OSCE SMM).
141 The Government first opened the Zolote checkpoint in March 2016, however armed groups of the self-proclaimed
‘Luhansk people’s republic’ refused to open checkpoints on territory under its control which would allow for the
crossing of civilians.
142 Information provided by NGO Right to Protection. In addition, on 16 October 2017, HRMMU national Human Rights
Officers staff travelling in a private car were asked at an internal checkpoint about their registered place of residence
(“propiska”), suggesting discriminatory treatment.
25
They were allowed to transport the medication across the contact line only after a local NGO
intervened.143
99. Since there is no legal provision determining the amount of money which may be
transported across the contact line, border guards apply Order no. 39 arbitrarily and confiscate
amounts in excess of 10,000 UAH.144 As of 28 August 2017, the State Fiscal Service of Ukraine
(SFS) had seized cash from persons crossing the contact line on 26 occasions, totalling over
300,000 USD.145 In each of these incidents, the SFS opened criminal proceedings under article
285-5 of the Criminal Code (“financing terrorism”) and transferred the cases to SBU for
investigation.
100. Civilians complained that at government-controlled checkpoints, SBU officers pressured
civilians residing in territory controlled by armed groups to sign papers agreeing to cooperate
with SBU, by gathering information and reporting it back to SBU.146 OHCHR is deeply
concerned that such actions place civilians at serious risk. Such exchanges with SBU, occurring
at checkpoints, can have grave repercussions such as ‘arrest’ by members of the armed groups on
‘charges’ of ‘high treason’ or ‘espionage’.
B. Freedom of opinion and expression
101. OHCHR is concerned about the use of and the broad interpretation of terrorism-related
provisions of the Criminal Code, as well as the provisions on high treason and trespass on
territorial integrity of the country, in cases against Ukrainian media professionals, journalists and
bloggers who publish materials or make posts or reposts in social media which are labelled by
the security service as ‘anti-Ukrainian’.
102. Within the reporting period, at least three individuals were arrested and detained147 and
one was convicted and given a suspended sentence based on a repost he made on social media.148
In addition, on 28 September 2017, the Andrushivskyi district court of Zhytomyr region
convicted one media professional and one IT specialist on terrorism charges and sentenced each
to nine years.149 They were accused of facilitating the online broadcasting of Novorossiia TV
channel (affiliated with the ‘Donetsk people’s republic’, which the SBU considers a terrorist
organization). Another journalist detained at Zhytomyr SIZO since 2 August 2017 is charged
143 HRMMU interview.
144 The Order provides that a person may transport goods with a total value of 10,000 UAH.
145 According to the SFS, they confiscated 3,393,500 UAH, 1,319,700 RUB, 137,300 USD, 8,600 EUR, 100 CAD and 35
GBP during 2017.
146 HRMMU interviews.
147 SBU arrested one man on 28 September 2017 in Zaporizhzhia for his alleged affiliation with the ‘social
communication committee’ of the self-proclaimed ‘Donetsk people’s republic’ and his publications which SBU claimed
to be anti-Ukrainian and contain public calls to trespass the territorial integrity of Ukraine (See
https://ssu.gov.ua/ua/news/1/category/2/view/3952#.3AuLYZF0.dpbs), the second on 19 October in Berezivka town in
Odesa region (https://ssu.gov.ua/ua/news/7/category/21/view/4035#.ZODEPeyc.dpbs), and the third on 27 October 2017
in Dnipro (https://ssu.gov.ua/ua/news/4/category/21/view/4067#.r2HQ9i27.dpbs) for social media posts deemed “anti-
Ukrainian”.
148 On 2 October 2017, the Desnianskii district court in Kyiv convicted a man under article 109 of the Criminal Code
(“Actions aimed at forceful change or overthrow of the constitutional order or take-over of government”) for his repost on
social media (http://reyestr.court.gov.ua/Review/69284181#).
149 Both were found guilty of “Creation of a terrorist group or a terrorist organization” (Article 258-3 of the Criminal
Code), and the IT specialist was additionally convicted of “public calls to commit a terrorist act” (Article 258-2) and
“Violating the equality of citizens based on their race, ethnicity or regional beliefs” (Article 161). HRMMU interviews.
See also Fair trial rights, para. 76 above.
“If you cover the events in a wrong manner, you will end up with a criminal case of
terrorism.”
- Legal defender.
26
inter alia with treason and terrorism based on his publications, and could face up to 15 years of
imprisonment.150
103. The lack of accountability for crimes against journalists raises serious concerns. Little
progress was achieved in investigations of recent physical attacks against media professionals151
or in the high-profile cases of the killings of Pavlo Sheremet152 and Oles Buzyna.153
104. OHCHR also noted a worrying trend of foreign journalists reporting on the conflict in
the east being labelled “propagandists” as a basis for their deportation from Ukraine.154 Three
journalists from the Russian Federation and two from Spain were subjected to arrests,
interrogations, and expulsions in connection with their reporting.155 The SBU insists it is
compelled to undertake restrictive measures in cases when journalists disregard objectivity and
distort information. OHCHR stresses that any restriction of freedom of expression, if applied,
must be proportionate to the legitimate aim pursued and calls for careful consideration of each
restrictive measure, based on international standards including practice of the European Court of
Human Rights.156
Territory controlled by armed groups
105. Freedom of expression remains severely restricted with no critical publications or
elements of dissent allowed in media outlets circulating in ‘Donetsk people’s republic’ and
‘Luhansk people’s republic’. On 27 September 2017, armed men forcibly entered the home of a
well-known blogger and activist in Donetsk, beat him and interrogated both him and his wife
(see also para. 53 above). The blogger was arbitrarily detained for 36 days, until 2 November,
150 He is charged with “High Treason” (Article 111 of the Criminal Code), “Trespass against the territorial integrity and
inviolability of Ukraine” (Article 110), “Violations of citizens’ equality based on their race, ethnicity and religious
beliefs” (Article 161) and “Creation of a terrorist group or a terrorist organization” (Article 258-3). HRMMU interviews;
https://ssu.gov.ua/ua/news/1/category/2/view/3945#.Zd2HXxCc.dpbs.
151 On 15 September 2017, a journalist and a cameraman from Radio Liberty were attacked in Kyiv, allegedly by a state
guard officer while they were filming near the venue of the wedding of the General Prosecutor’s son. A criminal case was
opened under article 345-1 (“threats or violence towards a journalist”). Both the victims and their lawyer state the law
enforcement are failing to investigate the case. On 24 October 2017, one journalist was beaten and two others were
attacked and apprehended while reporting on a trial in Sviatoshynskyi district court in Kyiv. A criminal case was opened
under article 171 of the Criminal Code of Ukraine (“preventing legal professional activity of journalists”). In total, from
January to October 2017, the National Union of Journalists of Ukraine documented 80 attacks against journalists, 20 of
which were reportedly committed by state officials, civil servants or law enforcement agents.
http://nsju.org/index.php/article/6679.
152 See OHCHR report on the human rights situation in Ukraine covering the period between 16 May and 15 August
2017, para. 97.
153 See OHCHR report on Accountability for killings in Ukraine, January 2014 to May
2016, Annex I, para. 79-82; OHCHR report on the human rights situation in Ukraine covering the period between 16
February and 15 May 2017, para. 86.
154 The practice was widely criticised by the international community: On 18 September 2017, the Committee to Protect
Journalists (CPJ) published an open letter to President Poroshenko which referred to seven incidents from August to
September where SBU “targeted newsrooms and journalists on accusations that appear politically motivated, and in
retaliation for critical reporting” and called on the President “to reaffirm his commitment to ensuring journalists’ safety”,
available at https://cpj.org/2017/09/cpj-calls-on-ukrainian-president-petro-poroshenko-.php.
155 On 14 August 2017, SBU detained Tamara Nersesyan, special correspondent for Russian state broadcaster VGTRK
and interrogated her about her reporting in eastern Ukraine. On 29 August 2017, SBU reported it had barred Spanish
freelance journalists Antonio Pampliega and Ángel Sastre over their reporting on the conflict in the east and for posting
“anti-Ukrainian” messages on social media. On 30 August 2017, unknown persons abducted Russian journalist from
‘Pervyi kanal’, Anna Kurbatova, from a street in the centre of Kiev. On 4 October, SBU detained Russian ‘NTV’
journalist Viacheslav Nemyshev and reported he had a ‘press accreditation’ of the self-proclaimed ‘Donetsk people’s
republic’ and had been working on the armed-group-controlled territory in 2016-2017, reporting “anti-Ukrainian
information”. All these journalists were expelled and barred from entering Ukraine for three years. On 13 October 2017
SBU reported to have lifted the ban for the two Spanish journalists
156 See fact sheet on hate speech by the European Court of Human Rights, available at
http://www.echr.coe.int/Documents/FS_Hate_speech_ENG.pdf; Handyside v. the United Kingdom, Judgment, 7
December 1976, § 49: “Subject to paragraph 2 of Article 10 (art. 10-2), [freedom of expression] is applicable not
only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of the population.
https://hudoc.echr.coe.int/eng#{"itemid":["001-57499"]}.
27
accused of ‘terrorism’. The ‘charge’ allegedly stemmed from his published articles criticising the
leadership of the ‘Donetsk people’s republic’.157
106. Armed groups of ‘Donetsk people’s republic’ continue to detain blogger Stanislav
Aseyev (aka Vasin), held since 3 June 2017.158 Another blogger in ‘Luhansk people’s republic’
was reportedly ‘convicted’ of “extremism” and “espionage” for his critical posts on social media
and ‘sentenced’ to 14 years imprisonment.159
107. The privacy and personal data protection of internet users in ‘Donetsk people’s republic’
have been compromised. On 21 September 2017, the ‘ministry of communication’ sent a letter to
internet providers requesting them to collect and store the personal data of internet users160 and
information about their online activities.161 The justification provided was the “significant
number” of requests from ‘law enforcement agents’ to identify persons suspected of committing
offences.
C. Freedom of religion or belief
108. OHCHR continued documenting interference with freedom of religion through policies
and actions undertaken in particular in territory controlled by armed groups. OHCHR also
continued to monitor ongoing disputes between different churches in Ukraine for potential
impacts which may infringe upon the freedom of religion.162
109. On 17 August 2017, the ‘ministry of culture, sports and youth’ of ‘Luhansk people’s
republic’ adopted a ‘decree’163 requiring religious organizations to obtain a positive “theological
opinion” in order to ‘register’, act as ‘legal entity’ and operate. The ‘expert council’ created to
conduct such theological expertise can issue a negative opinion on the basis of a broad and vague
list of reasons.164 OHCHR is concerned that implementation of this ‘decree’ will lead to arbitrary
infringement on the right to manifest one’s religion or belief, while further shrinking the space
for members of minority religious groups to exercise their rights.
110. In both ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’, a number of
actions were taken against Jehovah’s Witnesses communities. In Horlivka, one of the houses of
worship of the Jehovah’s Witnesses community (known as “Kingdom Halls”) was reportedly
‘expropriated’ by the ‘Donetsk people’s republic’ on the basis that it was “abandoned”, despite
documentation confirming the congregation’s ownership of the property165 as well as its
continued use by parishioners.166 On 28 August, the ‘MGB’ of the ‘Luhansk people’s republic’
announced that activities of unregistered organizations of Jehovah’s Witnesses were banned due
to their alleged ties with the SBU. Since then, Kingdom Halls in Luhansk, Alchevsk and
Holubivka in territory controlled by the ‘Luhansk peoples’ republic’ have been inaccessible for
parishioners, bringing the total number of Jehovah’s Witnesses religious buildings seized by
157 HRMMU interview.
158 OHCHR Report on the human rights situation in Ukraine, 16 May and 15 August 2017, paras. 49 and 103.
159 Joint Submission under Article 19 of the Centre of Democracy and Rule of Law, Interdisciplinary Scientific-
Educational Centre on Fighting Corruption, Human Rights Information Centre, Human Rights Platform and Institute for
Development of Regional Press for the Universal Periodic Review of Ukraine, 30 March 2017, available at
http://bit.ly/2jzbKwS; Press briefing by a representative of the self-proclaimed ‘Luhansk people’s republic’, available at
https://www.youtube.com/watch?time_continue=111&v=5XeYdB6-rlo.
160 Internet providers are expected to provide ‘law enforcement’ with a user’s name, residence registration, contact details
and IP address.
161 The information is to be stored for no less than six months. The letter is published on the website of the ‘ministry of
communications’, available at https://xn--b1akbpgy3fwa.xn--p1acf/sites/default/files/pismo_ms_2418.pdf.
162 These churches include the Ukrainian Orthodox Church (Moscow Patriarchate), Ukrainian Orthodox Church of the
Kyiv Patriarchate, and Ukrainian Greek Catholic Church.
163 ‘Decree’ on ‘order of issuance of theological opinion on permissibility of state registration of religious organizations’,
available at https://mklnr.su/engine/download.php?id=507&area=static.
164 The list inter alia includes “complicity in aggression against the ‘Luhansk people’s republic’”.
165 The documents were issued by Ukrainian authorities prior to the outbreak of the conflict.
166 No ‘decision’ was communicated to the parishioners, who found out from anonymous sources after the ‘expropriation’
had already taken place.
28
armed groups since the beginning of the conflict to 12.167 Furthermore, on 14 October, ‘MGB’
entered the private home of a parishioner, interrupted a joint worship and collected personal data
of all the participants. Four parishioners were temporarily detained and one was accused of
organising an unauthorised public gathering.168
V. Economic and social rights
A. Right to an adequate standard of living
111. The living conditions of people residing in conflict-affected areas remained dire due to
damages and wear of key civilian infrastructure affecting public gas, water and electricity supply,
lack of basic services in remote villages close to the contact line, severe restrictions on delivery
of humanitarian aid, deteriorating economic environment, food insecurity, high level of
unemployment and limited access to psycho-social and other forms of support.
112. As temperatures fell, the humanitarian situation in villages close to the contact line
where civilian infrastructure and public gas supply are often damaged worsened. For example,
the gas pipeline to (government-controlled) Krymske, Toshkivka and Nyzhnie was damaged by
shelling on 5 June 2017, interrupting the supply of gas to those villages. The majority of
residential houses have not been equipped with other heating mechanisms and will rely on
limited humanitarian support in this regard. A similar situation was observed on the other side of
the contact line, in Pikuzy village (formerly Kominternove) where 35 residential houses have not
had gas supply since shelling damaged the pipeline in April 2017. Although the pipeline was
repaired in May 2017, the gas company (located in Mariupol) stopped supplying gas to Pikuzy on
9 June 2017.169 Due to high prices, residents cannot afford to purchase coal on a regular basis for
heating purposes and instead rely on electric heaters. However, the electricity supply is irregular
due to frequent damages inflicted by shelling.170
113. Much of the key water infrastructure is located in “no man’s land”, which is often
shelled and/or contaminated with UXO. The security situation poses serious obstacles for
performing maintenance and repairs which should be completed prior to the onset of winter in
order to avoid possible serious irreversible damage.171 Dokuchaievsk (located 2km from the
contact line in territory controlled by ‘Donetsk people’s republic’) receives approximately only
167 Kingdom Halls in Horlivka, Donetsk, Perevalsk, Khrustalnyi (formerly Krasnyi Luch), Boikivske (formerly
Telmanove), Yenakiieve, Holubivka (formerly Kirovsk) and Brianka remain confiscated. In addition, Kingdom Halls in
Luhansk and Alchevsk were searched by ‘MGB’ on 4 August 2017 based on alleged mining of the area, during which,
parishioners were forced out from the building, had their personal data collected, and were individually questioned
(including children who were questioned without the presence of their parents). On 15 August, the Kingdom Hall in
Holubivka (formerly Kirovsk) was sealed by the ‘Luhansk people’s republic’ without any justification provided.
HRMMU interview; Jehovah’s Witnesses Report on Observance of Freedom of Religion in “Certain Territories in the
Donetsk and Luhansk Regions”, July – September 2017; OHCHR Report on the human rights situation in Ukraine, 15
May to 14 August 2017, paras. 105-106.
168 HRMMU interview. HRMMU documented other cases where parishioners of Jehovah’s Witnesses were detained,
questioned with regard to their religious affiliation, and ill-treated by members of armed groups.
169 HRMMU meeting, 7 September 2017.
170 Other locations with restricted access to electricity caused by the conflict include government-controlled Lopaskyne
(since May 2017), armed-group-controlled Staromarivka (since end of September 2017) and Novooleksandrivka (where
inhabitants have not had electricity for more than three year). OSCE SMM.
171 If the pipes do not have water running through them when temperatures drop, they may freeze, causing irreversible
damage. HRMMU meeting (WASH Cluster), 31 August 2017.
“We had hoped that when we retire, we can finally start living for ourselves. But now we
do not have money for anything. We just sit at home all day long. It is very depressing.”
- Pensioner.
29
70 per cent of its water needs due to damages of the South Donbas Water Pipeline caused by
shelling; the same damage places at risk the centralized heating of 400,000 people during the
winter. Repairs would require a “window of silence” for water specialists to fix known damage
and to check nine kilometres of pipe located in “no man’s land”, which may be contaminated
with mines and UXO.
114. People living in villages close to the contact line continued to face obstacles accessing
basic services and goods. For instance, in Opytne village where 42 residents remain, there has
been no electricity, heating, gas or water supply since the beginning of the conflict. Furthermore,
there is no grocery store, no pharmacy, no medical facility, and no public transportation. In order
to access basic services, residents must walk 6 km to Avdiivka, along a footpath going through
fields contaminated by mines and UXO, as the roads leading to Opytne are closed to vehicles.
Persons with disabilities or elderly people who cannot walk the distance are especially
vulnerable.172
115. Restrictions on movement also prevented humanitarian assistance from reaching Opytne
and other remote villages located close to the contact line in “no man’s land”. An NGO
attempting to deliver humanitarian aid was stopped at an ‘internal’ checkpoint at the entrance to
Pishchane (located 1.2km from the contact line) and denied entry to the village.173 Similar
incidents were documented in Novoluhanske, and the government-controlled area of Zaitseve
(Bakhmutka and Zhovanka).174
116. Access to adequate housing also remained an issue, in particular for displaced persons
with disabilities. OHCHR observed poor living conditions in a collective centre for IDPs in
Sviati Hory sanatorium in Donetsk region, where 90 per cent of the 203 residents (including 31
children) are persons with disabilities.175 The indoor temperature of the two buildings was
approximately 15 degrees Celsius. Residents share a single functioning shower, and a warm
shower is available only once every nine days. The electricity is weak and the elevators do not
function. Furthermore, IDPs accommodated in this collective centre lack basic food items,
medications and hygiene products. OHCHR also documented the case of an 80-year-old
wheelchair-bound IDP and her husband from Donetsk, who have spent two years living in their
unheated country house. With very few accessible apartments available, they were unable to
obtain appropriate alternative accommodation.176
117. The space for humanitarian action in territory controlled by armed groups continued to
be restricted. For instance, in ‘Donetsk people’s republic’ a new ‘accreditation’ for humanitarian
cargo was introduced,177 adding a third layer to an already cumbersome ‘accreditation’ process
for humanitarian activity.178 This cumbersome procedure creates additional challenges for
humanitarian aid to reach people in need, at a time when 800,000 people in territory controlled
by armed groups (double the number in 2016), are severely and moderately food insecure.179
172 HRMMU visit to Opytne village, 10 October 2017. HRMMU documented similar situations during visits to Chornyi
Buhor and Chihari settlements in Pivdenne (2 November 2017), Dacha (1 November 2017), Katerynivka - particularly its
western part Koshanivka (30 August 2017), Krymske (29 August 2017), government-controlled parts of Zaitseve
(Bakhmutka and Zhovanka, 1 November 2017), Znamianka (9 November 2017) and Novooleksandrivka (20 October).
173 HRMMU visit to Pishchane, 5 October 2017.
174 HRMMU visit to Novoluhanske, 4 October 2017.
175 HRMMU visit, 5 September 2017.
176 HRMMU interview.
177 Although ‘decree’ no. 74 “on adoption of a temporary order of accreditation of humanitarian cargo” was signed on 28
April 2017, it was not published until 12 September 2017.
178 There are now three ‘accreditation’ required, for the humanitarian organization to operate in the territory, for the
specific humanitarian project, and for humanitarian cargo.
179 Food Security and Livelihoods Cluster, Update on Sectoral Needs, Ukraine, October 2017, available at:
http://fscluster.org/sites/default/files/documents/fslc_brief_update_on_sectoral_needs_october_2017.pdf.
30
B. Right to social security and social protection
118. There has been no change in the Government’s policy of linking pensions to IDP
registration.180 The verification and identification procedure181 under this policy has led to the
suspension of pension payments to at least 500,000 people since its adoption on 8 June 2016.182
119. OHCHR stresses that this discriminatory requirement violates Ukraine’s legal
obligations183, jeopardizes social cohesion, and creates additional hardships for vulnerable
people. For example, persons with disabilities, who are particularly affected by the conflict184 and
face greater challenges due to restrictions on freedom of movement,185 have increased difficulty
fulfilling the verification procedure. The policy also distorts displacement statistics and puts
administrative burdens on local social protection departments tasked with conducting the
verification. Moreover, verification (home visits) often cannot be conducted in governmentcontrolled
territory located near the contact line.186
120. OHCHR notes that the suspension of pensions under the verification process, which
deprived hundreds of thousands of people - and often entire families - of their sole income,
appears to have been disproportionate and unnecessary. Of the 547,300 cases of suspensions
which were reviewed by the inter-agency commission on assigning (resuming) pension payments
in 2017, pension payments were reinstated in 385,100 cases, amounting to 70 per cent.187 Further,
those pension suspensions which were challenged in court also led to reinstatement in a
significant number of cases.188 Notably, on 30 August 2017, the Dobropillia city-district court of
Donetsk region ruled in favour of a plaintiff who had been deprived of her pension since October
180 See OHCHR Report on the human rights situation in Ukraine, 16 February to 15 May 2017, para. 99; OHCHR Report
on the human rights situation in Ukraine, 16 May to 15 August 2017, para. 118.
181 Verification is intended to confirm that pensioners with residence registration in armed-group-controlled territory have
de facto become IDPs living in government-controlled territory, which is required to continue receiving pension
payments. The procedure was introduced by Cabinet of Ministers resolution no. 365 on “Some questions of
implementation of social payments to internally displaced persons”, available at
http://www.kmu.gov.ua/control/ru/cardnpd?docid=249110200. On 13 September 2017, the Cabinet of Ministers adopted
resolution no. 689 (available at http://www.kmu.gov.ua/control/uk/cardnpd?docid=250271225) abolishing the verification
procedure (home visits) for pensioners if they undergo the obligatory identification procedure (personal appearance) in
‘Oshchadbank’ (due every three months). However, regular verification will continue for those IDPs who receive targeted
assistance or any other forms of social benefits. As the majority of IDP-pensioners also receive IDP assistance or social
benefits, they do not benefit from the amendments. In other cases, lack of cooperation and technical means for timely
information exchange between the departments of social policy and ‘Oshchadbank’ have thwarted the intended effect of
the reform.
182 Data provided by the Pension Fund of Ukraine on 3 November 2017.
183 Article 9 of the International Covenant on Economic, Social and Cultural Rights; Article 1 of Protocol I to the
Convention for the Protection of Human Rights and Fundamental Freedoms; Article 14 of the Convention for the
Protection of Human Rights and Fundamental Freedoms; Articles 41 (the right to property) and 46 (on the right to social
security) of the Constitution of Ukraine; Decision of the Constitutional Court of Ukraine dated 7 October 2009
recognizing that pension payments cannot be suspended solely on the basis of the beneficiary’s place of residents.
184 See, e.g. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of
Ukraine, 2 October 2015, paras. 13-14, 22-25; OHCHR Report on the human rights situation in Ukraine, 16 May to 15
August 2017, paras. 91, 111 and 115.
185 See Freedom of Movement above.
186 For example, HRMMU was informed that representatives of the Ukrainian Pension Fund refused to cross the bridge to
Staromarivka (located in “no man’s land” in Donetsk region) to process the verification of four bedridden pensioners,
whose entitlements were thereafter suspended. HRMMU meeting with NGO Right to Protection on 6 September 2017.
187 Data provided by the Pension Fund of Ukraine, covering all cases reviewed from 1 January to 26 October 2017.
188 In 90 per cent of cases filed in 2017 by the NGO Right to Protection (over 80 decisions), Ukrainian courts ruled in
favour of citizens who appealed the decision to suspend their pension payments. The Pension Fund informed HRMMU
that between January and October 2017, 165 IDPs had their pension payments restored based on court decisions.
“You should have thought about this in 2014! When will they terminate your pension?”
- Border Guard to pensioner crossing the contact line.
31
2014, marking the first time that a court confirmed the right to pension of a resident who
continuously lived in territory controlled by armed groups.189 The decision, however, was
overturned on 31 October 2017 and is now pending before the High Administrative Court of
Ukraine.
121. Furthermore, the linking of the right to pension with IDP registration for citizens with
residence registration in armed-group-controlled territory even when they choose to register a
residence in government-controlled territory creates obstacles for the integration of IDPs in their
new communities.190 OHCHR reiterates that in order to prevent a situation of protracted
displacement, Government policies should facilitate access to durable solutions such as local
integration.
122. OHCHR noted a worrying trend where IDPs have been denied targeted financial
assistance because the settlements they fled were not included in the official list of settlements
where state authorities do not exercise their functions in accordance with Cabinet of Ministers’
Order No. 1085.191 For example, Zaitseve, Zolote-5, Pivnichne, and Nevelske - which are
regularly affected by the armed hostilities - have not been included in the list.
Territory controlled by armed groups
123. Since the conflict began, persons residing in territory controlled by armed groups have
suffered from the loss of access to Government services. Persons with disabilities have been
disproportionately affected as, for example, they no longer receive discounts on or free provision
of certain medications, hygienic items and prosthetic equipment, and the social taxi (for people in
wheelchairs) no longer functions. In addition, persons with disabilities in armed-group-controlled
territory, including children, can no longer receive annual treatment or undergo rehabilitation in
sanatoriums.
124. Residents stated that the ‘disability allowance’ paid by the self-proclaimed ‘authorities’
in both ‘republics’ is not a sustainable source of income and does not cover basic needs.192 As a
result, persons with disabilities were often left fully dependent on families and/or humanitarian
assistance, at a time when humanitarian organizations faced continuing restrictions (see also
Adequate standard of living above).
C. Housing, land, and property rights
125. The lack of restitution and rehabilitation of, or compensation for, destroyed or damaged
property remained among the most pressing unaddressed socio-economic issues.193 OHCHR
notes that there was no progress in development of a unified registry of damaged and/or
destroyed property.194 In certain areas close to the contact line, where residents were forced to
leave their homes due to the security situation, the local civil-military administrations check on
damaged property only when specifically requested by the owner. Therefore, it is likely that a
large number of damaged and/or destroyed properties have not been certified by civil-military
administrations, which would make it difficult for owners to obtain compensation or restitution in
the future.
126. In six cases, a first instance court recognised the right to compensation of persons whose
houses were damaged or destroyed due to the hostilities, however these decisions were
overturned either by appeal or cassation courts.195 In a recent decision, a court of appeal
189 Court decision available at http://reyestr.court.gov.ua/Review/68839150.
190 HRMMU interviews.
191 On 31 May 2017, the Cabinet of Ministers adopted amendments to resolution No. 505 (on provisions of targeted
assistance to IDPs), which provides that only IDPs from settlements listed in Order No. 1085 are eligible for targeted
Government assistance. The list in Order 1085 was adopted in November 2014 and last amended in December 2015.
192 HRMMU interviews.
193 See OHCHR Report on the human rights situation in Ukraine, 16 May to 15 August 2017, para. 119.
194 In its previous report on the human rights situation in Ukraine, OHCHR recommended to the Cabinet of Ministers
to develop property inventory and inspection procedures, including an effective and accessible mechanism for
documentation and assessment of damages caused by the armed conflict.
195 Information provided by the NGO Right to Protection.
32
overturned a judgment awarding compensation because the owner had received humanitarian
assistance in the form of construction materials.196 OHCHR reiterates that persons whose houses
have been damaged or destroyed due to the armed conflict have the right to full and effective
compensation as an integral component of the restitution process.197
127. On 20 September 2017, the Cabinet of Ministers adopted resolution no. 708, which
provides necessary criteria for IDPs to participate in the state affordable housing program.198 The
program provides financial assistance amounting to 50% of the estimated cost of purchasing or
building a home. OHCHR welcomes the adoption of the resolution but cautions that, taking into
consideration housing prices and unemployment levels in conflict-affected areas, housing may
still be unaffordable for vulnerable categories of people despite this assistance.199
Territory controlled by armed groups
128. A number of IDPs whose homes lie in territory controlled by armed groups expressed
concern regarding a new ‘program’ introduced by the ‘Luhansk people’s republic’ to make an
inventory of all “abandoned” apartments so that they can be allocated to people in need.200 This
‘program’ raises concerns that the private property of IDPs temporarily residing in governmentcontrolled
territory may be seized.
129. On 3 November 2017, the armed groups of ‘Donetsk people’s republic’ published a
‘decree’ on ‘nationalisation’ of harvest planted on land plots which are included in the ‘state’ or
‘municipal’ ‘property funds’ and have been “occupied” by legal entities or private persons
without ‘authorization’.201 The ‘ministry of taxes’ was given unhindered access to the storages of
legal entities and private persons to implement the decree, which applies retroactively. OHCHR
is concerned about the possible human rights impact of this action, particularly in light of the
level of food insecurity in the territory.202
VI. Discrimination against persons belonging to minority groups
130. OHCHR continued to document attacks against persons belonging to minority groups,
as well as the reluctance of police to classify such attacks as hate crimes. On 30 September,
participants of the Equality Festival in Zaporizhzhia were attacked by a group of approximately
200 young people, resulting in hospitalization of four female activists.203 Whilst the perpetrators
were beating the victims, they shouted, “This is not the place for people like you!” The police,
whose number was insufficient to protect the participants,204 failed to timely react to the attack.
Seventeen people were arrested, however police were unwilling to classify the attack as a hate
crime205 and classified the charges as hooliganism.
131. OHCHR is concerned with manifestations of intolerance, including threats of violence,
by extreme right-wing groups206 against individuals holding alternative, minority social or
196 Decision of the Court of Appeal of Donetsk region, 12 September 2017, available at
http://reyestr.court.gov.ua/Review/68895276.
197 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, known as the
‘Pinheiro Principles’, Principle 21.
198 Available at http://zakon3.rada.gov.ua/laws/show/708-2017-%D0%BF.
199 This point was raised during the HLP Fair organised by the Danish Refugee Council on 5 October 2017.
200 HRMMU phone conversations with IDPs from Luhansk. Statement of the ‘head’ of ‘Luhansk people’s republic’ of 11
September 2017.
201 https://old.dnr-online.ru/wp-content/uploads/2017/11/Ukaz_N291_03112017.pdf
202 See Food Security and Livelihoods Cluster, Update on Sectoral Needs, Ukraine, October 2017, available at:
http://fscluster.org/sites/default/files/documents/fslc_brief_update_on_sectoral_needs_october_2017.pdf.
203 HRMMU interview.
204 The Ministry of the Interior informed HRMMU that 70 police officers were present.
205 Art. 161 of the Criminal Code prohibits “wilful actions inciting national, racial or religious enmity and hatred,
humiliation of national honour and dignity, or the insult of citizens' feelings in respect to their religious convictions, and
also any direct or indirect restriction of rights, or granting direct or indirect privileges to citizens based on race, skin
colour, political, religious and other convictions, sex, ethnic and social origin, property status, place of residence,
linguistic or other characteristics.
206 “Extreme right-wing groups” is an umbrella term encompassing political parties, movements and groups who blame
vulnerable groups for societal problems and incite intolerance and violence against them. Extreme right-wing groups
bring into question fundamental principle of non-discrimination by propagating an ideology based on racism, racial
33
political opinions. On 8 September 2017, the LGBT association ‘Liga’ in Mykolaiv intended to
lay flowers at a monument commemorating those who died during Maidan protests. The event
was cancelled due to violent threats from representatives of Sokil207 and the Right Sector,208 and a
lack of security guarantees from police.209 Organizers of the Forum of Editors, held in Lviv from
14 to 17 September, also received threats210 from extreme right-wing groups (including the Right
Sector, Sokil, National Corps211 and Volunteer Ukrainian Corps212), forcing them to cancel the
presentation of a book featuring lesbian parents. On 31 October, a session of the Gender Club
organized by students of the National Pedagogical University was disrupted by members of
“Traditions and Order”213 who physically threatened the participants and ripped apart the
European Union flag flying on the university building.214 OHCHR is further concerned with
expressions of intolerance voiced by government authorities, such as the Poltava City Council
which adopted an open statement calling upon the Verkhovna Rada to discriminate against the
LGBTI community.215
VII. Human rights in the Autonomous Republic of Crimea and the
city of Sevastopol
132. Despite continued lack of access to Crimea, OHCHR was able to document aspects of
the human rights situation on the peninsula, through interviews with witnesses and victims of
human rights violations, as well as visits to the Administrative Boundary Line with Crimea and
meeting with local Government officials. During the reporting period, two deputy chairs of the
Crimean Tatar Mejlis were sentenced by courts in Crimea to various terms of imprisonment. On
25 October, they were pardoned and jointly released. In other cases, OHCHR recorded serious
human rights violations such as arbitrary arrest, torture and ill-treatment. The exercise of
freedoms of peaceful assembly, opinion and expression continued to be curtailed through
verdicts criminalizing criticism and dissent. OHCHR notes that under article 43 of the 1907
discrimination, xenophobia and related intolerance. The same groups are also involved in attacks against individuals
based on their gender identity and sexual orientation. See Reports of the Special Rapporteur on contemporary forms of
racism, racial discrimination, xenophobia and related intolerance (A/HRC/35/42 of 26 April 2017 and A/HRC/18/44 of
21 July 2011).
207 The youth wing of the extreme right-wing political party Svoboda.
208 Right Sector is an extreme right-wing movement which consists of political party, paramilitary volunteer battalion and
youth organization.
209 See Appeal of the Head of LGBT Association ‘Liga’ to the Ukrainian Parliament Commissioner for Human Rights,
available at http://lgbt.com.ua/звернення-до-уповноваженого-пл/. Representatives of Sokil and Right Sector openly
threatened to violently disrupt the event and stated that such events are not in line with the ideology of their organizations
and cultural traditions of Ukraine.
210 A number of extreme right-wing groups signed a letter addressed to the head of the Lviv Regional Department of the
SBU, head of the Lviv Regional State Administration and the Head of the Lviv City Council calling upon them to prevent
presentation of the book and threatening to otherwise take all possible actions themselves. See http://bookforum.ua/wpcontent/
uploads/2017/09/Lyst.pdf.
211 Extreme right-wing political party with Social Nationalistic ideology.
212 Volunteer battalion and military wing of the Right Sector Movement.
213 Extreme right-wing group propagating nationalism and traditional family values.
214 HRMMU was informed that the perpetrators were shouting that the idea of gender is contrary to Ukrainian traditional
values and that such topics should not even be discussed. The police arrived to the site, however, after taking some
written testimonies from perpetrators, they departed without taking any further actions. HRMMU interview.
215 On 19 September 2017, the Poltava City Council adopted an open statement calling for the Verkhovna Rada to ban
“propaganda of deviant sexual behaviour” including “dignity marches”, “prides”, “gay parades” and “queer-culture
festivals”, erase any mention of “sexual orientation” or “gender identity” from domestic legislation, abstain from adopting
the Law on Civil Partnership, remove sexual education aimed at eliminating gender stereotypes from schools, adopt the
Law on “prohibition of propaganda of homosexuality”, halt the process of amending the Constitution and other legal acts
with regard to the definition of family, marriage, fatherhood, motherhood and childhood.
“This arrest is an attempt to shut our mouths.”
- Crimean Tatar on trial for alleged membership in a terrorist group.
34
Hague Regulation and article 64 of the Fourth Geneva Convention of 1949, the Russian
Federation, as the occupying power, must respect the laws already in place in the occupied
territory, and can only adopt penal provisions that are essential for maintaining an orderly
government and ensuring its security.
A. Rule of law and administration of justice
133. On 25 October 2017, two Crimean Tatar leaders Akhtem Chiygoz and Ilmi Umerov,
convicted in Crimea for “organizing mass disorders” and “public calls to violate the territorial
integrity” of the Russian Federation, respectively, were freed. They were flown to Turkey and,
on 27 October, returned to Ukraine. The President of the Russian Federation reportedly pardoned
both deputy chairs of the Mejlis following negotiations with the Turkish President.
134. Chiygoz was sentenced on 11 September 2017 to 8 years in prison for organizing mass
disorders during a rally in Simferopol on 26 February 2014. Umerov was found guilty on 27
September 2017 and sentenced to two years of imprisonment for public calls to violate territorial
integrity of the Russian Federation during a televised interview. OHCHR notes that the
conviction of Chiygoz may be viewed as a violation of Article 70 of Geneva Convention IV,
according to which the arrest, prosecution and conviction by the occupying power of a
“protected person”216 for acts committed before the occupation are illegal, notwithstanding the
issue of the law applied to the case.217 With regard to the conviction of Umerov, OHCHR recalls
that all forms of opinion are protected under human rights law and cannot be criminalized.
B. Right to liberty and security
135. During the reporting period, Crimean law enforcement officers arrested 10 Crimean
136. Following house raids, four Crimean Tatar men – all devout Muslims – were arrested on
movement banned in the Russian Federation as an extremist organization.218 Three of the men,
who were represented by private lawyers, were remanded in custody and the remaining man was
placed under house arrest. Within a few days, the three men in detention terminated the services
of their private lawyers. According to OHCHR interlocutors, the waivers are the result of
pressure exerted by FSB on the suspects and their relatives in order to dissuade them from
requesting the services of a dedicated counsel in exchange for promised leniency.219
137. On 11 October, the FSB and Special Forces units carried out a series of simultaneous
searches of homes of Crimean Tatars in Bakhchysarai, resulting in the arrest of six Crimean
220 With these arrests,
the number of people detained in Crimea since March 2014 on accusation of membership in Hizb
ut-Tahrir has reached 25. On the same day, 11 other Crimean Tatar men who came to show
216 Article 4 of Geneva Convention IV states that “Persons protected by the Convention are those who, at a given moment
and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict
or Occupying Power of which they are not nationals.”
217 Article 70 of Geneva Convention IV stipulates that “protected persons shall not be arrested, prosecuted or convicted
by the Occupying Power for acts committed before the occupation, with the exception of breaches of laws and customs of
war.”
218 The Supreme Court of the Russian Federation declared Tablighi Jamaat an extremist organization on 7 May 2009. In
Ukraine, Tablighi Jamaat is allowed.
219 HRMMU interviews.
220 The Supreme Court of the Russian Federation declared Hizb ut-Tahrir a terrorist organization on 14 February 2003.
Tatars alleged to be members of terrorist or extremist groups promoting a sectarian form of
Islam. The police also briefly detained 49 Crimean Tatars who initiated peaceful single-person
pickets to denounce the arrests and portrayal of Crimean Tatars as terrorists.
2 October by the Crimea branch of the Russian Federation Federal Security Service (FSB). They
are accused of “extremist activities” and alleged to be members of Tablighi Jamaat, a Sunni
Tatar men – all practicing Muslims – on charges of alleged membership in Hizb ut-Tahrir, an
organization labelled as ‘terrorist’ and banned in the Russian Federation.
35
solidarity and film the actions of law enforcement officers were also detained and later released.
Nine of them were sentenced to administrative fines.
221
C. Right to physical and mental integrity
138. OHCHR documented grave human rights violations allegedly perpetrated by the
Crimean branch of the FSB against a Crimean Tatar man. In the early morning of 13 September,
following a search of his home, a Crimean Tatar man was detained by the Crimean FSB. The
victim was held incommunicado for more than a day in the premises of the FSB in Simferopol,
during which time his family made continuous inquiries to law enforcement about his
whereabouts and fate.222 On 14 September, the victim was left at a bus station in Simferopol. He
was physically injured and stated he had been beaten and tortured, including by electric shock,
and threatened with sexual violence in order to force him to make incriminating statements
against himself and others. No formal record of his arrest was made and no official charges were
brought against him.
D. Freedom of opinion and expression
139. Those who claimed that Crimea was occupied by the Russian Federation faced criminal
consequences and possible imprisonment.
140. Like Ilmi Umerov, freelance journalist Mykola Semena was convicted on separatism
charges on 22 September 2017 and handed a 30-month suspended prison sentence. He is also
barred from “public activities” - including journalism - for three years. The conviction stems
from an article he wrote for Radio Free Europe/Radio Liberty in 2015 which criticized the
occupation of Crimea and called for its blockade by military means.
141. OHCHR notes that anti-separatism provisions must be applied in a manner consistent
with the obligation of states under article 19, paragraph 1, of the International Covenant on Civil
and Political Rights, and not used to silence or criminalize opposing opinions or criticism.
E. Freedom of religion or belief
142. On 31 August, court bailiffs stormed the building housing the Ukrainian Orthodox
Church of the Kyiv Patriarchate (UOC-KP) in Simferopol. The action was undertaken pursuant
to a judgment, upheld by the Supreme Court of the Russian Federation in February 2017,
ordering to vacate premises used by a subsidiary company of the UOC-KP as office space and a
shop in the first floor of the building. OHCHR notes that these developments created anxiety
among churchgoers and revived concerns about the future of the UOC-KP, whose functioning
in Crimea remains precarious due to the lack of an official legal status pursuant to Russian
Federation legislation.223
143. Unlike the UOC-KP, the Ukrainian Greek-Catholic church (UGCC) re-registered in
2016 and is operating in Sevastopol, Yalta and Yevpatoriia in accordance with the legal
framework imposed by the Russian Federation. However, the church had to change its name to
the ‘Byzantine Catholic Church’, as its original appellation is not recognized in the Russian
Federation. Furthermore, only two UGCC priests permanently reside in Crimea where they
continue providing religious services. The other UGCC officials who were not residents of
Crimea in March 2014 - and thus did not meet the legal condition to become Russian Federation
citizens - became foreigners under Russian Federation law which was imposed in Crimea, and
had to leave the peninsula.224
221 HRMMU interview.
222 HRMMU interviews.
223 Under Russian Federation law, all public organizations in Crimea, including religious communities, had to re-register
in order to obtain legal status. Without registration, religious communities can congregate but cannot enter into contracts
to rent State-owned property, open bank accounts, employ people or invite foreigners.
224 HRMMU interviews. See also OHCHR report on “The situation of human rights in the temporarily occupied
Autonomous Republic of Crimea and the city of Sevastopol, paras. 64-70.
36
F. Freedom of peaceful assembly
144. The authorities in Crimea continued to impose restrictions on the exercise of the
freedom of assembly. The police arrested 49 people who conducted one-man pickets in protest
against the prosecution of Crimean Tatars. Further, 13 municipalities rejected requests to hold
peaceful assemblies on LGBT rights.
145. On 14 October, a series of one-person pickets took place throughout Crimea in protest
against the arrests of Crimean Tatars for alleged membership in “terrorist” or “extremist”
organizations in Bakhchysarai. Nearly 100 people held up placards expressing demands to stop
the persecution of Crimean Tatars. The police reported the arrests of 49 picketers for violating
Russian Federation federal law on public assemblies.225 After “precautionary conversations” with
the police, they were released. According to Russian Federation legislation applied by the
Occupying Power in Crimea, one-person pickets do not require pre-authorization.226 OHCHR
recalls that under international human rights law, restrictions on the exercise of the right to
peaceful assembly may only be justified if they are necessary in the interests of national security
or public safety, public order, the protection of public health or morals, or the protection of the
rights and freedoms of others.
146. Thirteen municipalities in Crimea - Yevpatoriia, Yalta, Sudak, Feodosiia, Dzhankoi,
Armiansk, Bakhchysarai, Sevastopol, Kerch, Alushta, Saky, Simferopol, and Krasnoperekopsk -
banned LGBT assemblies planned in October 2017. LGBT organizations from the Russian
Federation petitioned for these peaceful assemblies to advocate for recognition of human rights
of LGBT persons. The refusals were based on Russian Federation legislation, applied by the
Occupying Power in Crimea, prohibiting propaganda of “non-traditional sexual relations”. In
Bączkowski and Others v. Poland, the European Court of Human Rights recognized that the
refusal to hold a peaceful assembly on the ground of sexual orientation amounts to a violation of
the right to free assembly in conjunction with the violation of the prohibition of discrimination.227
G. Military conscription
147. On 2 October 2017, the Russian Federation launched a new military draft. Around 2,000
men from Crimea are expected to be conscripted into the Russian Federation Armed Forces. The
Russian Federation Ministry of Defence confirmed that one third of the conscripts will be
transferred outside the peninsula, to the Russian Federation. Draft evasion is punishable under
the Criminal Code of the Russian Federation, and possible sanctions include up to two years of
incarceration.228 A local department of the Russian Federation Investigative Committee in
Sevastopol confirmed pending criminal charges against a Sevastopol resident for draft evasion.229
OHCHR notes that the military draft violates the international humanitarian law prohibition to
compel protected persons to perform military service in the armed forces of the occupying
power.230
225 https://82мвд.рф/news/item/11345690/.
226 However, according to the Constitutional Court of the Russian Federation, when several one-person pickets are held
simultaneously and are similar to one another with “sufficient obviousness” in respect of the items used, common goals,
slogans and timing, such pickets may be considered as one single public picket carried out by a group of individuals, to
which pre-authorization requirements for their conduct will apply. (Judgment of the Constitutional Court of the Russian
Federation, 14 February 2013 No. 4-П, par. 2.5; https://rg.ru/2013/02/27/mitingi-dok.html).
227 ECtHR, Bączkowski and Others v. Poland (No. 1543/06), 3 May 2007.
228 Article 328 of the Criminal Code of the Russian Federation.
229 Sevastopol Investigation Department of the Investigative Committee of the Russian Federation, statement of 28
September 2017, available at http://sevastopol.sledcom.ru/news/item/1167566/; Statement of 11 October 2017, available
at http://sevastopol.sledcom.ru/news/item/1170699/.
230 Article 51, Geneva Convention IV.
37
VIII. Legal developments and institutional reforms
A. Legal framework concerning territory not controlled by the Government
in certain areas of Donetsk and Luhansk regions
148. On 6 October, the Parliament of Ukraine prolonged231 by one year the application of a
2014 law232 providing for expanded local self-rule in certain areas of eastern Ukraine not under
Government control as one of the political commitments under the Minsk agreements. The
introduction of special governance rules is conditioned upon the implementation of a set of
requirements for safe and democratic elections,233 including the withdrawal of weapons and all
illegal military formations.
149. On the same day, Parliament adopted in its first reading the draft law providing a
framework for the Government to re-establish control over certain areas of Donetsk and Luhansk
regions.234 It states that the Russian Federation has conducted an armed aggression against
Ukraine, resulting in the temporary occupation of parts of its territory. The text affirms Ukraine’s
right to self-defence,235 alongside its commitment to a peaceful political settlement based on
international law. Conflict management is entrusted with the military - the Joint Operative
Headquarter of the Armed Forces of Ukraine (JOHAFU)236 - and the principle of an anti-terrorist
operation conducted under the auspices of the State Security Service of Ukraine (SBU) is
abandoned.
150. Under the draft law, Ukraine claims no responsibility for illegal acts of the Russian
Federation and armed groups in the territory they control and considers null and void any act
(decisions, documents) committed by them in this territory. It recognizes Ukraine’s positive
obligations towards the population of these areas, and creates a “special legal regime” to protect
its rights and freedoms, based largely on the 2014 law237 which previously applied exclusively to
Crimea. The Ministry on Temporarily Occupied Territory (TOT) and IDPs is tasked with
designing “protective measures” such as facilitating the satisfaction of economic and social
needs, providing humanitarian aid, and ensuring access to the Ukrainian media and legal
remedies. The procedure regulating movement of persons and goods across the contact line is to
be defined by the Head of JOHAFU in consultations with the SBU and the Ministry on TOT and
IDPs.
151. OHCHR takes note of the intention of the legislator to define, in legally binding terms,
the conflict in eastern Ukraine. At the same time, it underlines that this position should not be
used to impose a narrative - and introduce legal sanctions - restricting the freedom of opinion and
expression.
152. OHCHR notes that the draft law generally lacks clarity regarding the legal framework
for the protection of rights and freedoms in certain areas of Donetsk and Luhansk regions.
Although legislation applying to Crimea is mentioned as forming the legal basis for human rights
protection in eastern Ukraine, its transposition appears to require adjustments without which the
legal certainty requirement may not be satisfied.
231 Adoption of the Law of Ukraine “On Creating the Necessary Conditions for a Peaceful Settlement in Certain areas of
Donetsk and Luhansk Regions” no.2167-VIII.
232 Law of Ukraine “On the Special Order of Local Self Government in Certain Areas of the Donetsk and Luhansk
regions” no.1680-VII of 16 September 2014. The law had been adopted for a three-year period, set to expire on 18
October 2017.
233 Ibid., Article 10.
234 Draft Law no.7163 “On Particular Aspects of Public Policy Aimed at Safeguarding the Sovereignty of Ukraine
over the Temporarily Occupied Territory of the Donetsk and Luhansk regions of Ukraine”.
235 Article 51 of the United Nations Charter.
236 The Joint Operative Headquarter of the Armed Forces of Ukraine (JOHAFU) is a body responsible for the
management and coordination of inter-agency militarised forces. Together with the General Staff of the UAF, it forms
part of the Ukrainian military command. JOHAFU was included into the structure of the Ukrainian Armed Forces in the
course of its reform in June 2016. See Law of Ukraine “On amendments to the legislation concerning defence”no.1420-
VIII of 16 June 2016.
237 Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily
Occupied Territory of Ukraine” no.1207-VII of 15 April 2014.
38
153. OHCHR also has concerns regarding the provision proclaiming blanket non-recognition
of acts issued in the territory not under Government control, and urges that, in order to guarantee
legal recognition of persons living in these areas, at a minimum that the procedure of recognition
of the facts of birth and death occurring in such territories be continued.
154. Anticipating the consequences of the promulgation of the draft law, OHCHR urges the
Government to prevent the abrupt termination of the validity of legal acts238 that established
certain guarantees and privileges for the population for the duration of the anti-terrorist operation.
A transitional period should foresee that the validity of such privileges be extended until national
legislation is harmonized with the new legal framework.
B. Law on Education
155. On 28 September, a new law “On education” entered into force which aims to ensure
equal opportunities for students to achieve fluency in the official language and introduces new
rules on the use of languages in public education.239
156. Under the law, Ukrainian will become the main language of instruction in secondary
(i.e. beginning from fifth grade) and higher education. National minorities retain the right to be
instructed in their mother tongue in pre-primary and primary school, and at higher levels may
request to be taught their native languages as a subject. Additionally, “one or more” subjects may
be taught bi- or multi-lingually, in Ukrainian and any of the official languages of the European
Union. Indigenous peoples can be educated in their native language from pre-primary to
secondary school, and will also have the option of continuing to learn their indigenous language
as a separate subject thereafter.240
157. OHCHR notes that the previous education law allowed the use of minority languages as
a medium of instruction at all levels of education, thereby enabling national minorities to benefit
from the full extent of international education standards. The UNESCO Principles on Language
and Education state that minority language education should cover primary instruction and “be
extended to as late a stage in education as possible”.241 Similarly, according to the United
Nations Special Rapporteur on National Minorities, “ideally, the instruction in the mother tongue
should last for a minimum of between six to eight years – more when this is feasible”.242
158. The new legislation is more restrictive than the previous education law, as national
minorities may not be instructed in their mother tongue beyond primary education. In its 2001
decision Cyprus v. Turkey, the European Court of Human Rights found a violation of the right to
education243 where the provision of instruction in the minority language was ensured during
primary education but not secondary.244
159. While it is a legitimate aim for states to provide students with sufficient opportunities to
achieve fluency in the official language, OHCHR believes this should not be at the expense of
education in minority languages.245 It also stresses that all rights must be enjoyed in a non-
238 For instance, the Law “On Temporary Measures for the Duration of the Anti-Terrorist Operation” no.1669-VII of 2
September 2014.
239 President Petro Poroshenko stated that the law improves the quality of the education system of Ukraine, enhances the
role of the Ukrainian language, and provides everyone with equal learning opportunities. He also emphasized the
determination to rigorously respect education rights of national minorities.
240 A transition period is provided for students who commenced their secondary education before 1 September 2018, and
for whom former language rules will apply, but only until 1 September 2020 when the provisions of the new law will
apply to all.
241 UNESCO, Principles of Language and Education, Principle 1.
242 United Nations Special Rapporteur on minority issues: Language Rights of Linguistic Minorities. A Practical Guide
for Implementation, Geneva, March 2017, p. 18.
243 Article 2 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
(European Convention on Human Rights).
244 European Court of Human Rights, Cyprus v. Turkey, Judgement of 10 May 2001 (Grand Chamber) Cyprus v. Turkey ,
at para.278.
245 According to the United Nations Special Rapporteur on minority issues, “students should be provided with sufficient
opportunities to achieve fluency in the official language, although not at the expense of education in their own language”,
supra, footnote 4, p. 19.
39
discriminatory manner. This applies, for example, to the right of national minorities to be
educated in “one or more subjects” in an official EU language, which is not available to those
whose mother tongue is not an official EU language.
160. OHCHR recalls that the context prevailing in a country is central to the proper
regulation of minority language issues. Representatives of various national minorities246 have
approached HRMMU and complained that the provisions of the law, as adopted, do not take their
interests into account, which were expressed during consultations. Some expressed concern that
the significant limit on educational instruction in minority languages will affect both the quality
of education and their right to cultural self-determination, especially in certain remote areas with
a high concentration of residents belonging to national minorities. OHCHR is concerned that the
new law may result in increased tensions in Ukrainian society.247 The Government of Ukraine is
invited to ensure flexibility in developing and implementing language and education policies, and
to introduce any changes gradually, in full respect of its international and regional obligations.
IX. Technical cooperation and capacity-building
161. OHCHR engages in technical cooperation and capacity-building activities to assist the
Government of Ukraine in meeting its international obligations to protect and promote human
rights. During the reporting period, meetings and events were held with a wide range of
government actors and civil society, in order to provide guidance and assistance in addressing
human rights issues. In particular, closer cooperation was established with the Permanent
Representative of the President of Ukraine to Crimea. Further, OHCHR continued to support
preparations for Ukraine’s third Universal Periodic Review (UPR) which took place on 15
November 2017.
162. HRMMU continued to promote implementation of the Istanbul Protocol248 through
trainings and dissemination of information. In September and October, HRMMU provided
trainings to over 160 practitioners including civil society monitors of the National Preventive
Mechanism (NPM), management and medical staff of penitentiaries, members of prosecution
offices, police and forensics experts. The trainings focused on torture prevention, humane
treatment of detainees in line with the “Nelson Mandela Rules”249, effective identification and
investigation of torture, state obligations under international law, and United Nations
mechanisms to address torture. Such capacity-building activities complement HRMMU’s
monitoring, reporting and advocacy efforts with regard to the practice of torture by Government
agents and armed groups against conflict-related detainees, which the Mission has been
documenting since 2014. In addition, on 10 October, jointly with the NPM, HRMMU conducted
a partners’ meeting on implementation of the Istanbul Protocol. Representatives of the Office of
the Prosecutor General, Ministry of Health, Ministry of Justice, the Parliament's Commissioner
for Human Rights (Ombudsperson), civil society and international organisations shared
information on their completed and planned activities and identified challenges and gaps.
163. HRMMU also continued to raise awareness of conflict-related sexual violence and carry
out follow-up activities to the OHCHR thematic report on conflict-related sexual violence in
Ukraine released in February 2017. On 28 September and 2 November 2017, HRMMU delivered
sessions on prevention of arbitrary and unlawful detention, torture and conflict-related sexual
246 HRMMU interviews with representatives of the Albanian, Gagauz, Hungarian, Moldovan, Romanian and Russian
national minorities.
247 HRMMU was informed about a number of demonstrations against the language provision of the new law on
education. For example, on 17 October 2017 in Chernivtsi a demonstration of people belonging to Romanian national
minority demanded the right to education in their native language; simultaneously there was a counter demonstration
organized by Ukrainian nationalist groups, including Right Sector and Svoboda, shouting that every citizen of Ukraine
must be taught in Ukrainian (see e.g.
http://zik.ua/news/2017/10/17/u_chernivtsyah_rumunski_organizatsii_piketuvaly_oda_cherez_zakon_pro_osvitu_118780
9).
248 United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, available at http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
249 United Nations Standard Minimum Rules for the Treatment of Prisoners, A/RES/70/175 adopted on 17 December
2015, available at https://www.penalreform.org/resource/standard-minimum-rules-treatment-prisoners-smr/.
40
violence to military personnel who will be deployed to the conflict area in civil-military
coordination units. In addition to presenting the findings of the thematic report, HRMMU
provided an overview of relevant international human rights and international humanitarian law
standards, including through specific case studies. Further, in support of the Government’s
commitment to undertake steps to design and operationalize effective measures to address
conflict-related sexual violence, HRMMU and UN-Women contracted an international expert
consultant to provide strategic advice to the Government, civil society and the United Nations
system on preventing and addressing conflict-related sexual violence in Ukraine. Extensive
consultations were held from 13 October to 2 November with representatives of the Government,
Parliament, local authorities, civil society and UN Agencies The consultant’s visit concluded
with a workshop on 10 November hosted by the Ministry of Justice, where key state actors,
including regional and local authorities from conflict-affected areas, service providers, civil
society and development partners contributed to the development of the national strategy to
prevent and address conflict-related sexual violence.
164. On 15 November 2017, Ukraine’s compliance with international human rights
obligations was appraised under the Universal Periodic Review (UPR) procedure of the Human
Rights Council. 190 recommendations were issued by Member States in relation to women’s
rights/gender equality, domestic and sexual violence, fighting xenophobia and homophobia,
inter-ethnic harmony, corruption, accountability/impunity, and judicial reform. The United
Nations system in Ukraine contributed to an informed review of Ukraine’s third UPR by
submitting a joint human rights assessment, raising the awareness of embassies in Ukraine about
key human rights issues, and facilitating consultations involving the Government, civil society
organizations and the Ombudsperson Institution.
165. The United Nations Partnership Framework with Ukraine defining the support of the
United Nations to national development priorities was signed on 25 October 2017. Under the
Framework, OHCHR will contribute to specifically support those priorities related to democratic
governance, rule of law, civic participation, human security and social cohesion.
X. Conclusions and recommendations
166. The temporary lull in the armed hostilities and consequent reduction in civilian
causalities recorded in September and October demonstrated the potential positive impact on the
population of adherence to the ceasefire. However, the number of civilian casualties is on the rise
again in November. Further, while the number of casualties may have temporarily dipped, the
adverse effects on the population caused by the conflict in eastern Ukraine did not diminish.
Sudden and unpredictable spikes in the armed hostilities claimed lives, inflicted suffering and
destroyed families. The duration of such suffering, stretched over three years, has taken a heavier
toll than can be reflected in statistics. This suffering was compounded as individuals were
subjected to human rights violations - including arbitrary detentions, torture and ill-treatment -
committed in connection with the conflict on both sides of the contact line. At the same time,
continuing restrictions on the freedom of movement served to further suffocate and isolate
communities, jeopardizing social cohesion and future peace and reconciliation efforts.
167. For the 4.4 million people who have been affected by the conflict,250 there were no
indications of serious efforts by the parties to the conflict to halt hostilities and restore peace.
Faced with “more of the same”, those who have already lost their loved ones, health, property,
livelihood and opportunities are now losing hope. The approach of the fourth winter of security
risks and hardship is anticipated as more difficult to bear than those endured earlier in the
conflict.
168. Earnest efforts to take concrete steps toward resolving the conflict are long overdue.
With the passage of time, divisions in Ukrainian society resulting from the conflict will continue
to deepen and take root. Challenges which need to be overcome for a true reconciliation and
250 2018 Humanitarian Needs Overview, Ukraine. November 2017, available at
https://reliefweb.int/report/ukraine/ukraine-humanitarian-needs-overview-2018-enuk.
41
long-term peace throughout Ukraine also become greater as they remain unaddressed over time.
A serious intention to honour and implement commitments made in the Minsk agreements would
be an invaluable first step towards peace and reconciliation.
169. Furthermore, as we move into 2018, it is imperative that Government policies and
legislative developments evolve in an inclusive manner, and together with judicial reforms,
contributes to the enhancement of accountability and the foundation for future peace and
reconciliation. Such measures would also create conditions for a free media and freedom of
expression in the run-up to the 2019 elections, while combatting hate speech and discriminatory
acts of violence.
170. Crimea continues to remain subjected to the legal and governance framework of the
Russian Federation, in violation of international humanitarian law. For its part, the Government
of Ukraine should foster and implement inclusive policies towards the population of the
peninsula, to help ensure that existing divisions do not deepen further. The lifting of all
unnecessary restrictions to freedom of movement would be a significant element in such an
approach.
171. Most recommendations made in the previous OHCHR reports on the human rights
situation in Ukraine have not been implemented and remain valid. OHCHR further recommends:
172. To the Ukrainian authorities:
a) Where military presence within civilian areas is justified due to military
necessity, take all possible steps to protect the resident civilian population,
including making available adequate alternative accommodation, as well as
compensation for the use of property and any damages;
b) Government of Ukraine to develop a national mechanism to make adequate,
effective, prompt and appropriate remedies, including reparation, available to
civilian victims of the conflict, especially those injured and the families of those
killed;
c) Government of Ukraine to establish independent, transparent and nondiscriminatory
procedures of documentation and verification of housing, land
and property ownership, create a registry of damaged or destroyed housing and
other property, and a comprehensive legal mechanism for restitution and
compensation;
d) Law enforcement agencies to ensure effective investigation of cases of enforced
disappearance, incommunicado detention, torture and ill-treatment in which
Ukrainian forces (SBU, UAF, volunteer battalions, etc.) are allegedly involved,
and consider establishing an inter-agency group in charge of investigation of
such cases, as civilian investigative bodies do not have access to many alleged
places of detention or where the victims were last seen;
e) Security Service of Ukraine to grant immediate, unrestricted, and confidential
access to conflict-related detainees newly arrested by SBU, including in Kharkiv
region;
f) Cabinet of Ministers to amend its resolution no. 99 so that it provides a list of
items prohibited from transport across the contact line to replace the current list
of permissible goods and quantities;
g) Government of Ukraine to lift unnecessary and disproportionate restrictions and
ease freedom of movement at all checkpoints including ‘internal’ checkpoints,
and ensure that persons with residence registered in territory controlled by
armed groups are not subjected to additional discriminatory checks;
h) National Police to conduct transparent and effective investigation in all cases of
attacks on media professionals, and undertake all possible measures to ensure
42
accountability for killings of journalists, including with international expertise
where needed;
i) National Police, Headquarters of the Antiterrorist Operation, heads of regional,
district and village councils and heads of civil-military administrations to
collaborate on defining the list of settlements affected by the armed conflict,
ensuring that it does not deprive people of their economic and social rights;
j) Ministry of Social Policy to ensure that the protection and support to IDPs
extends to all persons who meet the IDP definition, without any discrimination
including based on the list of settlements affected by the armed conflict;
k) Government, Parliament and other relevant State bodies to eliminate obstacles
which prevent Ukrainian citizens from having equal access to pensions
regardless of place of residence or IDP registration;
l) Ministry of Social Policy to establish effective cooperation and information
exchange processes with all relevant actors engaged in conducting verification
and identification procedures in relation to pensions, as well as in homedelivering
payments for IDPs receiving pensions and social benefits, to avoid
double-verification or any additional burden on vulnerable people;
m) Cabinet of Ministers, Parliament and other relevant state bodies to ensure that
persons with disabilities, regardless of their place of residence, have access to
health services, including rehabilitation, as foreseen by state programs and laws;
n) Ministry of Temporarily Occupied Territories and Internally Displaced Persons,
Ministry of Social Policy and other relevant state bodies to ensure that IDPs with
disabilities are provided with adequate accommodations, access to in-home and
other services, and means for inclusion in the community;
o) National Police and other law enforcement agencies to take all appropriate
measures to secure public gatherings of persons belonging to minority groups;
p) Office of the Prosecutor General and other law enforcement agencies to ensure
appropriate classification, investigation and prosecution of hate crimes, including
any crimes committed on the basis of ethnicity, sexual orientation and gender
identity;
q) Office of the Prosecutor General and other law enforcement agencies to properly
address and investigate manifestations of intolerance, including threats of
violence, by extreme right-wing groups against individuals of minority social
groups and those holding alternative political opinions;
r) Government of Ukraine to ensure that the language provision in the new Law on
Education does not lead to violations of the rights of minorities and to avoid any
discrimination against certain minority groups;
s) Government authorities to create an administrative procedure, which is
accessible to all, without discrimination of any kind, and free of charge, enabling
use of documents relating to the facts of birth and death which are issued on
territory not under Government control in the process of recognition of such
facts under Ukrainian legislation, and maintain the judicial procedure as an
alternative for disputable cases.
173. To all parties involved in the hostilities in Donetsk and Luhansk regions, including
the Ukrainian Armed Forces, and armed groups of the self-proclaimed ‘Donetsk people’s
republic’ and ‘Luhansk people’s republic’:
a) Bring to an end the conflict by adhering to the ceasefire and implementing other
obligations undertaken in the Minsk agreements, in particular regarding
withdrawal of prohibited weapons and disengagement of forces and hardware,
43
and until such implementation, agree on and fully respect “windows of silence”
to allow for crucial repairs to and maintenance of civilian infrastructure in a
timely manner;
b) Strictly adhere to international humanitarian law standards on the prohibition of
use of weapons with indiscriminate effects in populated areas, including those
with a wide impact area or the capacity to deliver multiple munitions over a wide
area;
c) Respect the agreement reached in Minsk on 19 July 2017 in which parties
expressed commitment to create “safety zones” around the critical civilian water
facilities of Donetsk Filtration Station and First Lift Pumping Station in Donetsk
region, and expand the list of such “safety zones” to include facilities which house
hazardous materials that would endanger civilians and the environment if
damaged by the armed hostilities;
d) Take necessary measures to ensure protection of civilian population living close
to the contact line and in the case that the security of the civilian population or
military imperative demand evacuation, ensure humane conditions of such
evacuation and provide adequate alternative accommodation;
e) Enable and facilitate the voluntary transfer of all pre-conflict detainees to
government-controlled territory, regardless of their registered place of residence,
in order to enable contact with their families without the unnecessary hardship
linked to restrictions on freedom of movement;
f) Facilitate the safe and unimpeded passage of civilians across the contact line by
ensuring that crossing routes and entry-exit checkpoints are a no-fire area and
by increasing the number of crossing routes, especially in Luhansk region by
opening the Zolote crossing route for vehicles and pedestrian traffic;
g) Refrain from unnecessary impediments to access of humanitarian assistance to
people in need, including in villages and settlements located close to the contact
line;
h) Armed groups of the ‘Donetsk people’s republic’ and ‘Luhansk people’s
republic’ to respect freedom of religion or belief in territory under their control
and refrain from infringement upon this right, including by halting the seizure of
religious buildings of Jehovah’s Witnesses and the harassment of their
parishioners;
i) Armed groups of the ‘Luhansk people’s republic’ to ensure proper respect for
property rights of IDPs when conducting any inventory of abandoned property.
174. To the Government of the Russian Federation:
a) Implement General Assembly Resolution 71/205 of 19 December 2016, including
by ensuring proper and unimpeded access of international human rights
monitoring missions and human rights non-governmental organizations to
Crimea;
b) Uphold human rights in Crimea for all and respect obligations that apply to an
occupying power pursuant to international humanitarian law provisions;
c) Investigate all cases of enforced disappearance, torture and ill-treatment
involving officers of the Crimean branch of the FSB, bring perpetrators to
justice and ensure redress for victims;
d) Refrain from application of anti-extremism and anti-terrorism legislation to
criminalize peaceful religious conduct of devout Muslims in Crimea, and
immediately release all persons arrested and charged with such crimes;
44
e) Put an end to searches of houses indiscriminately affecting Crimean Tatars by
law enforcement agencies in Crimea;
f) Ensure that the rights to freedom of expression, peaceful assembly, thought,
conscience and religion can be exercised by any individual and group in Crimea,
without discrimination on any grounds, including race, nationality, political
views, ethnicity or sexual orientation;
g) Comply with the international humanitarian law prohibition against compelling
residents of the occupied territory of Crimea to serve in the armed forces of the
Russian Federation;
175. To the international community:
a) Continue using all diplomatic means to press all parties involved to end
hostilities, by emphasizing the human rights situation and suffering of civilians
caused by the active armed conflict;
b) Support the Ministry of Justice and other Government actors in carrying out
penitentiary reform in Ukraine which will improve material conditions and
provision of services, particularly medical services, in places of detention;
c) Ensure that the Media Freedom Guidelines developed for Ukraine by
international media experts and lawyers continue to adhere to international
standards and best practices in the domain of freedom of expression during any
review or amendment process;
d) Support the Government of Ukraine in devising laws and policies that promote
inclusiveness and social cohesion.
Annex 777
OHCHR, Situation of Human Rights in the Temporarily Occupied Autonomous Republic of
Crimea, No. 12-401/2016 (17 November 2016)
Office of the United Nations
High Commissioner for Human Rights
Situation of human rights in the temporarily
occupied Autonomous Republic of Crimea and the
city of Sevastopol (Ukraine)
I
Contents
Paragraphs Page
I. Executive summary ................................................................................................. 1–19 1
II. Introduction ............................................................................................................. 20–29 3
III. Methodology ........................................................................................................... 30–35 5
IV. Application of international law .............................................................................. 36–45 5
1. International human rights law ................................................................... 37–41 6
2. International humanitarian law ................................................................... 42–45 6
V. Population data and movements .............................................................................. 46–54 7
VI. Civil and Political Rights ........................................................................................ 55–169 8
A. Right to nationality ......................................................................................... 55–72 8
1. Ukrainian citizens having Crimean residency registration who rejected Russian
Federation citizenship ..................................................................................... 58–63 8
2. Ukrainian citizens without Crimean residency registration who are excluded from
Russian Federation citizenship ....................................................................... 64–70 9
3. Ukrainian citizens who were made to renounce Ukrainian citizenship ...... 71–72 10
B. Administration of justice and fair trial rights .................................................. 73–79 10
C. Right to life ..................................................................................................... 80–83 11
D. Right to physical and mental integrity ............................................................ 84–92 12
E. Right to liberty and security ........................................................................... 93–104 13
1. Arbitrary arrests and detentions ............................................................... 94–98 13
2. Enforced disappearances .......................................................................... 99-104 14
F. Right to private and family life ....................................................................... 105–110 15
G. Rights of detainees .......................................................................................... 111–119 15
1. Violations of the rights of prisoners in Crimea ........................................... 112–115 16
2. Transfer of prisoners to the Russian Federation ......................................... 116–119 16
H. Forced enlistment .......................................................................................... 120–122 17
I. Freedom of movement .................................................................................... 123–135 17
1. Restrictions imposed by the Russian Federation ........................................ 125–128 17
2. Restrictions imposed by Ukraine ................................................................ 129–135 18
J. Freedom of thought, conscience and religion ................................................. 136–145 19
K. Freedom of peaceful assembly ....................................................................... 146–153 20
L. Freedom of opinion and expression ................................................................ 154–161 21
M. Freedom of association ................................................................................... 162–169 23
VII. Economic, Social and Cultural Rights .................................................................... 170–219 24
A. Property rights ................................................................................................ 170–181 24
1. Nationalization of property ......................................................................... 171–176 24
2. Housing, land and property of formerly deported people ........................... 177–181 24
II
B. Right to maintain one’s identity, culture and tradition ................................... 182–191 25
1. Limitations of the right of Ukrainians and Crimean Tatars to express their
culture and identity ......................................................................................... 183–186 25
2. The ban of the Mejlis .................................................................................. 187–193 26
C. Right to education in one’s native language ................................................... 194–201 27
D. Right to health ................................................................................................ 202–214 28
1. Medical staff deficit in public hospitals ...................................................... 204–208 28
2. Impaired treatment of drug users ................................................................ 209–214 29
E. Access to water and other essential services ................................................... 215–219 29
VIII. Conclusions and Recommendations ....................................................................... 220–226 30
IX. End notes ................................................................................................................ i
1
I. Executive Summary
1. On 14 March 2014, following a request of the Government of Ukraine addressed
to the United Nations Secretary-General to establish a human rights mission in Ukraine, the
Office of the United Nations High Commissioner for Human Rights (OHCHR) deployed a
Human Rights Monitoring Mission in Ukraine (HRMMU). Since then, HRMMU has been
collecting and analyzing information on the human rights situation throughout Ukraine,
including in the Autonomous Republic of Crimea and the city of Sevastopol1 on the basis of
United Nations General Assembly resolutions 68/262, reaffirming the territorial integrity of
Ukraine and 71/205 referring to the Crimean peninsula as Ukrainian territory temporarily
occupied2 by the Russian Federation. According to the Constitution of Ukraine, Crimea and
the city of Sevastopol are separate administrative units of the Crimean peninsula having
their own governing institutions.
2. The present report was developed based on the mandate of OHCHR and
HRMMU, but also following a request by General Assembly resolution 71/2053 on the
“Situation of human rights in the Autonomous Republic of Crimea and the city of
Sevastopol (Ukraine)” for a dedicated thematic report of OHCHR on the “situation of
human rights in the temporarily occupied Autonomous Republic of Crimea and the city of
Sevastopol”. The report covers the period from 22 February 2014 to 12 September 2017.
HRMMU has not been provided access to Crimea by Russian Federation authorities since
its former Head of Mission accompanied the former Assistant Secretary-General for Human
Rights, Ivan Šimonović, on 21-22 March 2014. As a result, it has been monitoring human
rights developments in Crimea from mainland Ukraine.
3. Pro-Russian groups in Crimea rejected the ousting by Parliament of former
President of Ukraine Viktor Yanukovych on 22 February 2014, criticizing it as an
unconstitutional change of power. One of these groups was the ‘people’s militia’, a local
paramilitary formation created on 23 February 2014, and commonly referred to as the
‘Crimean self-defence’.4 With the support of Russian Federation troops5, the Crimean selfdefence
blocked key infrastructure, airports and military installations and took control of
strategic facilities. It has been accused of committing numerous human rights abuses with
impunity since the end of February 2014.
4. The President of the Russian Federation Vladimir Putin stated that in a meeting
with heads of security agencies during the night of 22 and 23 February 2014 he took the
decision to “start working on the return of Crimea to the Russian Federation”.6
5. On 27 February 2014, uniformed men without insignia took control of the
Parliament of Crimea. On the same day, the Parliament of Crimea dismissed the
Government of Crimea. On 11 March 2014, the Parliaments of Crimea and Sevastopol
adopted a joint Declaration of Independence stating that Crimea and Sevastopol will unite
to form an independent state - the ”Republic of Crimea” - and seek integration into the
Russian Federation if Crimean residents choose to join the Russian Federation at a
referendum scheduled for 16 March.7 According to the pro-Russian authorities in Crimea, a
large majority of voters backed Crimea’s “incorporation” into the Russian Federation. The
referendum was declared invalid by the Government of Ukraine and the United Nations
General Assembly. The United Nations Secretary-General Ban-Ki Moon expressed “deep
concern and disappointment”, adding that the referendum would only exacerbate an
“already complex and tense situation”.8 Subsequently, the Russian Federation and the
“Republic of Crimea” signed on 18 March 2014 a “treaty of accession” effectively
annexing the peninsula into the Russian Federation.
6. One consequence of this development was the imposition of Russian Federation
citizenship on residents of Crimea. This has resulted in regressive effects on the enjoyment
of human rights, particularly for those who refused to automatically adopt Russian
2
Federation citizenship, were ineligible to obtain it, or were required to forfeit their
Ukrainian citizenship in order to remain employed.
7. Since the beginning of occupation, Ukrainian laws were substituted by Russian
Federation laws, in violation of the obligation under international humanitarian law to
respect the existing law of the occupied territory.9 Among other implications, this led to the
arbitrary implementation of Russian Federation criminal law provisions designed to fight
terrorism, extremism and separatism, which have restricted the right to liberty and security
of the person and the space for the enjoyment of fundamental freedoms.
8. Laws and judicial decisions deriving from the implementation of the legal
framework of the Russian Federation in Crimea have further undermined the exercise of
fundamental freedoms. Mandatory re-registration requirements were imposed on NGOs,
media outlets and religious communities in Crimea. Russian Federation authorities have
denied a number of them the right to re-register, generally on procedural grounds, raising
concerns about the use of legal norms and procedures to silence dissent or criticism.
9. Most affected by these restrictions were individuals opposed to the March 2014
referendum or criticizing Russian Federation control of Crimea, such as journalists,
bloggers, supporters of the Mejlis,10 pro-Ukrainian and Maidan activists, as well as persons
with no declared political affiliation but advocating strict compliance with the tenets of
Islam, who are often accused of belonging to extremist groups banned in the Russian
Federation, such as Hizb ut-Tahrir. The rights of these people to freedom of opinion and
expression, association, peaceful assembly, movement, thought, conscience and religion,
were obstructed through acts of intimidation, pressure, physical attacks, warnings as well as
harassment through judicial measures, including prohibitions, house searches, detentions
and sanctions.
10. Russian Federation justice system applied in Crimea often failed to uphold fair
trial rights and due process guarantees. Court decisions have confirmed actions, decisions
and requests of investigating or prosecuting bodies, seemingly without proper judicial
oversight. Courts frequently ignored credible claims of human rights violations occurring in
detention. Judges have applied Russian Federation criminal law provisions to a wide variety
of peaceful assemblies, speech and activities, and in some cases retroactively to events that
preceded the temporary occupation of Crimea or occurred outside of the peninsula in
mainland Ukraine.
11. Grave human rights violations, such as arbitrary arrests and detentions, enforced
disappearances, ill-treatment and torture, and at least one extra-judicial execution were
documented. For a three-week period following the overthrow of Ukrainian authorities in
Crimea, human rights abuses occurring on the peninsula were attributed to members of the
Crimean self-defence and various Cossack groups. Following Crimea’s temporary
occupation, on 18 March 2014, representatives of the Crimean Federal Security Service of
the Russian Federation (FSB) and police were more frequently mentioned as perpetrators.
12. While those human rights violations and abuses have affected Crimean residents
of diverse ethnic backgrounds, Crimean Tatars were particularly targeted especially those
with links to the Mejlis, which boycotted the March 2014 referendum and initiated public
protests in favour of Crimea remaining a part of Ukraine. Intrusive law enforcement raids
of private properties have also disproportionately affected the Crimean Tatars and
interfered with their right to privacy under the justification of fighting extremism.
Furthermore, the ban of the Mejlis, imposed in April 2016 by the Supreme Court of
Crimea, has infringed on the civil, political and cultural rights of Crimean Tatars.
13. The Russian Federation authorities in Crimea have failed to effectively
investigate most allegations of human rights violations committed by the security forces or
armed groups acting under the direction or control of the State. Failure to prosecute these
acts and ensure accountability has denied victims proper remedy and strengthened
impunity, potentially encouraging the continued perpetration of human rights violations.
3
14. Since the beginning of the temporary occupation, all penitentiary institutions in
Crimea have been integrated into the penitentiary system of the Russian Federation, leading
to numerous transfers of detainees from Crimea to penal colonies in the Russian Federation,
contrary to provisions of international humanitarian law.11
15. Restrictions affecting freedom of movement to and from Crimea have been
imposed by the Russian Federation and Ukraine on the grounds of security or pursuant to
immigration rules. They include five-year exiles, deportations, prohibitions on entry of
individuals and public transportation, non-recognition of documents, and restrictive
regulations applicable to travel of children and transportation of personal belongings.
16. Large scale expropriation of public and private property has been conducted
without compensation or regard for international humanitarian law provisions protecting
property from seizures or destruction. Crimean Tatars who returned from deportation in the
1990s and built their houses on land plots without obtaining construction permits remain at
risk of seeing their security of tenure contested and being forcibly evicted.
17. The space for public manifestation of Ukrainian culture and identity has shrunk
significantly. Groups manifesting their attachment to national symbols, dates or historic
figures have been issued warnings or sanctioned by courts for violating public order or
conducting unauthorized rallies. Education in the Ukrainian language has almost
disappeared from Crimea, jeopardizing one of the pillars of an individual’s identity and
cultural affiliation.
18. The availability of health services in free-of-charge State medical institutions has
been impaired since March 2014 due to the numerous departures of doctors and other
medical staff to more lucrative private sector institutions in Crimea. This has resulted in
delayed treatment of the most economically disadvantaged, jeopardizing their right to life
and health. Retrogressive measures stemming from the implementation of Russian
Federation legislation have affected people suffering from drug dependence.
19. The right of the Crimean population to an adequate standard of living has been
affected by measures taken by Ukrainian authorities or implemented on mainland Ukraine,
including the interruption of water and energy supplies to the peninsula. Under international
humanitarian law, the Russian Federation as the occupying power is obliged to ensure to
the fullest extent of the means available to it sufficient hygiene and public health standards,
as well as the provision of food and medical care to the population. At the same time, this
does not exonerate Ukraine from its obligations under the International Covenant on
Economic, Social and Cultural Rights not to interfere with the enjoyment of the rights it
enshrines, and from respecting the requirement under international humanitarian law to
ensure that the basic needs of the population continue to be met under conditions of
occupation.
II. Introduction
20. The political events that marked the Maidan protests in Kyiv, and culminated in
the departure, on 21 February 2014, of then President of Ukraine Viktor Yanukovych and
the establishment of an interim Government of Ukraine on 23 February, affected Crimea.
The Crimean peninsula had also been the theatre of pro- and larger anti-Maidan rallies
since December 2013.12
21. The President of the Russian Federation Vladimir Putin stated that in a meeting
with heads of security agencies during the night of 22 and 23 February 2014 he took the
decision to “start working on the return of Crimea to the Russian Federation”.13
4
22. On 23 February 2014, demonstrations in Sevastopol led to the resignation of the
Kyiv-appointed authorities and the installation by the local parliament of a pro-Russian
“People’s Mayor” on 24 February.14
23. In Simferopol, the capital of the Autonomous Republic of Crimea, supporters of
Ukrainian unity, mainly Crimean Tatars, clashed on 26 February with pro-Russian residents
in front of the parliament. A stampede left two people dead and some 70 injured. On the
following night, armed groups without insignia took over the buildings of the local
government and parliament. On 27 February, members of the Parliament of Crimea, in the
presence of gunmen, dismissed the local Government and elected Sergey Aksenov as the
Head of Crimea.15
24. On 6 March 2014, the Parliament of Crimea adopted a resolution calling for a
referendum16 on the status of the peninsula, to be held on 16 March 2014, basing the
decision on the “absence of legitimate State organs in Ukraine”.17 In an Opinion18
concerning the compatibility of this resolution with constitutional principles, the European
Commission for Democracy through Law (Venice Commission) of the Council of Europe
noted that the referendum violated the Constitution of Ukraine, and asserted that
circumstances in Crimea did not allow for a referendum to be held in line with European
democratic standards.19 On 17 March 2014, United Nations Secretary-General Ban-Ki
Moon regretted that the referendum would only exacerbate an “already complex and tense
situation”20. Furthermore, during his mission to Crimea on 21 and 22 March 2014, former
UN Assistant Secretary-General for Human Rights Ivan Šimonović received information on
alleged cases of non-Ukrainian citizens participating in the referendum, as well as
individuals voting numerous times in different locations.21
25. According to the pro-Russian authorities in Crimea, an overwhelming majority of
the Crimean population voted in favour of joining the Russian Federation. Opponents
boycotted the poll, considering it as unlawful.22 The authorities of Ukraine declared these
developments unconstitutional and terminated the powers of Crimean institutions.23
26. On 18 March 2014 a “Treaty on the Accession of the Republic of Crimea to the
Russian Federation” (“Treaty on Accession”) was signed in Moscow, and on 21 March
2014, the Parliament of the Russian Federation ratified a Constitutional Law “On the
Accession of the Republic of Crimea to the Russian Federation and the Creation of the New
Constituent Entities of the Republic of Crimea and the City of Federal Importance
Sevastopol within the Russian Federation”.
27. On 15 April 2014, the Parliament of Ukraine passed a law designed to regulate
legal aspects related to the temporary occupation of Crimea.24 It defines principles applying
to legal and property rights, economic activity, social rights and benefits, freedom of
movement, and compensation for damages incurred from the temporary occupation.
28. The General Assembly of the United Nations adopted two resolutions on Crimea.
Resolution 68/26225 on the “Territorial integrity of Ukraine” of 27 March 2014 states that
the March 2014 referendum has “no validity” and cannot form the basis for any alteration
of the status of Crimea. Resolution 71/205 on the “Situation of human rights in the
Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)”, adopted on 19
December 201626, refers to Crimea as being under the “temporary occupation” of the
Russian Federation. It calls on the latter to abide by the Geneva Conventions. It also urges
the Russian Federation to ensure proper and unimpeded access of international human
rights monitoring missions and human rights non-governmental organizations (NGOs) to
the peninsula, and requests the United Nations Secretary-General to seek ways and means
to ensure safe and unfettered access to Crimea by established regional and international
human rights monitoring mechanisms. In addition, it requests the Office of the United
Nations High Commissioner for Human Rights (OHCHR) to prepare a dedicated thematic
report on the human rights situation in Crimea.
5
29. The present report was developed pursuant to General Assembly Resolution
71/205, and covers the period between 22 February 2014 and 12 September 2017. Since the
adoption of this resolution, OHCHR has been analyzing incidents occurring in Crimea
based on an international humanitarian law framework, as well as against international
human rights standards.
III. Methodology
30. HRMMU has a mandate inter alia to monitor and publicly report on the human
rights situation in Ukraine through teams based in various locations, including through a
presence in Crimea’s capital, Simferopol.27
31. Former Assistant Secretary-General for Human Rights Ivan Šimonović was the
last United Nations official to visit the Crimean peninsula, on 21 and 22 March 2014.28
32. On 18 September 2014, a letter addressed by HRMMU to the Head of Crimea
requested the opportunity to establish a sub-office in Simferopol, in line with its mandate
and General Assembly resolution 68/262. The response, received on 8 October 2014, stated
that HRMMU had been deployed on the territory of Ukraine upon the invitation of the
Government of Ukraine; that Crimea was part of the Russian Federation; and that questions
of international relations were not within the competence of Crimean institutions.
33. On 20 April 2017, following consultations with the Government of Ukraine,
OHCHR informed the Government of the Russian Federation of its intention to send a
mission of HRMMU to Crimea in order to prepare the report on the human rights situation
in Crimea requested by General Assembly resolution 71/205. While no formal response
was received, OHCHR was notified informally that it would not be granted access to
Crimea due to its mandate covering Ukraine and that any OHCHR mission would need to
be agreed upon directly with the Russian Federation authorities. A second notification
mentioning an OHCHR mission to Crimea, addressed to the Russian Federation on 13 June
2017, remained unanswered at the closing date of the present report.
34. In response, the Government of Ukraine, in its Notes Verbales of 30 March 2017,
19 July 2017, 28 July 2017 and 7 September 2017, reaffirmed its position on the need to
ensure safe and unfettered access to the Autonomous Republic of Crimea and the city of
Sevastopol by established regional and international human rights monitoring mechanisms
to enable them to carry out their mandate, expressed its readiness to provide HRMMU with
full freedom of movement throughout Ukraine, and confirmed its strong commitment to
properly implement resolution 71/205 of the United Nations General Assembly.
35. Given the lack of access to Crimea, HRMMU has monitored the human rights
situation in the peninsula from its presence in mainland Ukraine. HRMMU systematically
collects and analyzes information gathered through direct interviews and fact-finding
missions, including at the Administrative Boundary Line (ABL) between mainland Ukraine
and Crimea. This report only describes allegations of human rights violations and abuses
and violations of international humanitarian law that OHCHR could verify and corroborate
in accordance with its methodology. OHCHR is committed to the protection of its sources
and systematically assesses the potential risks of harm and retaliation against them.29
IV. Application of International Law
36. International human rights and humanitarian law are complementary bodies of
international law. In the case of occupation, humanitarian law and human rights law apply
concurrently and place protection obligations both on the occupying power and the State
whose territory is under occupation.
6
1. International Human Rights Law
37. Human rights are guaranteed by international treaties and agreements, as well as
customary law, which apply at all times, regardless of peace or war.
38. Under international law, the Russian Federation must respect its obligations under
international human rights law in Crimea from the moment it acquired “effective control”
over the territory.30
39. Ukraine considers that the occupation of Crimea started on 20 February 201431
and denies having human rights obligations in relation to this territory from the moment it
lost effective control over the peninsula. On 14 May 2015, the Parliament of Ukraine
adopted a Declaration on Derogation32 stating that the Russian Federation “shall bear full
responsibility for observance of human rights and performance of the respective
international obligations at the annexed and temporarily occupied territory.”
40. On 19 April 2017, the Government of Ukraine established an Intergovernmental
Commission on derogation in order to review periodically the territorial application of the
derogation. Its mandate includes the review of the necessity and proportionality of
derogation measures and making proposals to the Government on the continuation and
scope of the derogation.
41. OHCHR notes that States are allowed, in exceptional circumstances, namely in
times of public emergency threatening the life of the nation, to adjust their obligations
temporally under a treaty. However, under the International Covenant on Civil and Political
Rights, States have a continuing obligation to ensure respect for the rights recognized in the
Covenant in relation to the population of a territory controlled by de facto authorities or
armed groups within the limits of their effective power.33 Similarly, under the case law of
the European Court of Human Rights, a State that has lost effective control over a part of its
territory is nevertheless obliged under Article 1 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms to use all the legal and diplomatic
means available to continue to guarantee the enjoyment of the rights and freedoms defined
in the Convention to those living there, as the region is recognized under public
international law as part of its territory.34
2. International Humanitarian Law
42. Both the Russian Federation and Ukraine are parties to the 1907 Hague
Regulations, the Fourth Geneva Convention of 1949, and the 1977 Additional Protocol I to
the 1949 Geneva Conventions. This body of international law provides the primary basis
for rules governing occupation. The legal regime of an occupied territory is also regulated
by international customary law.
43. An occupying power does not acquire sovereignty over the occupied territory.
The occupying power must respect the laws in force in the occupied territory, unless they
constitute a threat to its security or an obstacle to the application of the Fourth Geneva
Convention.35
44. Under international law, States are responsible for violations of international
humanitarian law attributable to them, including: violations committed by their organs,
including their armed forces; violations committed by persons or entities they have
empowered to exercise elements of governmental authority; violations committed by
persons or groups acting in fact on their instructions, or under their direction or control; and
violations committed by private persons or groups which they acknowledge and adopt as
their own.36
45. In 2016, the Office of the Prosecutor of the International Criminal Court found
Crimea to be under the occupation of the Russian Federation and stated it will apply an
7
international armed conflict legal framework to the analysis of facts and alleged crimes
perpetrated there.37
V. Population data and movements
46. According to the last census conducted in Ukraine, in 2001, 125 nationalities
lived on the Crimean peninsula, which had a population of 2,401,209 (2,024,056 in Crimea
and 377,153 in Sevastopol).38 The census enumerated the population by ethnicity, finding
the largest national groups in Crimea and Sevastopol to be Russians, numbering 1,450,394
(60.40 per cent); Ukrainians 576,647 (24.12 per cent); and Crimean Tatars 245,291 (12.26
per cent).
47. There were also 35,157 Belarussians; 13,602 Tatars; 10,088 Armenians; 5,531
Jews; 4,562 Moldovans; 4,459 Poles; 4,377 Azeri; 3,087 Uzbeks; 3,036 Greeks; 3,027
Koreans; 2,790 Germans; 2,679 Chuvash; 2,594 Mordovians; 2,282 Bulgarians 2,137
Georgians; 1,905 Roma; and 1,192 Maris. In addition, 17,298 persons did not declare
themselves or belonged to ethnic groups numbering less than 1,000 individuals.
48. In September 2014, the Russian Federation conducted a census on the peninsula,
which was not recognized by the Government of Ukraine.39 According to its results, the
population of Crimea and Sevastopol had decreased by 4.8 per cent since 2001, down to
2,284,769, albeit with differences between the two administrative units: in Crimea, the
population decreased by 6.5 per cent, to 1,891,465, while that of Sevastopol grew by 4.1
per cent, to 393,304.
49. According to that same census, in the entire peninsula, the number of persons of
Russian nationality increased to 1,492,078 (65.31 per cent), the Ukrainians dropped to
344,515 (15.08 per cent) and the Crimean Tatars decreased to 232,340 (10.17 per cent). The
other communities diminished, except for the Tatars - a group culturally affiliated with the
Volga Tatars and the Crimean Tatars - whose numbers rose from 13,602 to 44,996.
50. Since the beginning of the occupation, the displacement of residents of Crimea -
mostly ethnic Ukrainians and Crimean Tatars - had multiple causes, notably the refusal to
live under Russian Federation jurisdiction, fear of persecution on ethnic or religious
grounds, threats or reported attacks, avoiding military conscription in the Russian
Federation army and enrolling in Ukrainian education institutions.
51. In April 2017, the State Emergency Service of Ukraine estimated the number of
internally displaced persons (IDPs) from Crimea living in mainland Ukraine at 22,822.40
Ukrainian NGOs estimate that between 50,000 and 60,000 former Crimean residents could
be displaced in mainland Ukraine.41
52. The demographic structure of Crimea continues to change, mainly as a result of a
continuous influx of Russian Federation citizens into Crimea, which started after the 2014
referendum. Most of them are pensioners, public servants and servicemen with their
families. Around 13,200 IDPs fleeing the conflict in eastern Ukraine had taken refuge in
Crimea at the end of 2014.42
53. According to the State Statistics Service of the Russian Federation, as of 1
January 2017, the population of the Crimean peninsula had increased by 56,152 since the
September 2014 census, to 2,340,921.43 During this period, the population of the city of
Sevastopol, where the Black Sea Fleet is based, rose from 393,304 to 428,753, which
constitutes an eight per cent increase.
54. OHCHR recalls that the 1949 Geneva Convention relative to the Protection on
Civilian Persons in Time of War provides in Article 49 that “The Occupying Power shall
not deport or transfer parts of its own civilian population into the territory it occupies”.
8
VI. Civil and Political Rights
A. Right to nationality
55. The adoption of the Treaty on Accession on 18 March 2014 had an immediate
consequence for the status of residents of Crimea and rights attached to it: all Ukrainian
citizens and stateless persons who were permanently residing on the peninsula, as
evidenced by a residency registration stamp in the passport, were automatically recognized
as citizens of the Russian Federation.44 An exception was made for persons who, within one
month of the entry into force of the treaty (i.e. by 18 April 2014), rejected Russian
Federation citizenship in writing.
56. The automatic citizenship rule led to the emergence of three vulnerable groups:
those who rejected in writing Russian Federation citizenship; those who, for lack of a
residency registration in Crimea, did not meet the legal criteria to become Russian
Federation citizens; and those who had to renounce their Ukrainian citizenship to keep their
employment. As of May 2015, the High Commissioner for Human Rights of the Russian
Federation (Ombudsperson) estimated that around 100,000 persons living in Crimea (about
4 per cent of the population) did not have Russian Federation citizenship.45
57. Imposing citizenship on the inhabitants of an occupied territory can be equated to
compelling them to swear allegiance to a power they may consider as hostile, which is
forbidden under the Fourth Geneva Convention.46 In addition to being in violation of
international humanitarian law, the automatic citizenship rule raises a number of important
concerns under international human rights law.
1. Ukrainian citizens having Crimean residency registration who rejected Russian
Federation citizenship
58. The procedure for rejecting Russian Federation citizenship, which had to be
completed by 18 April 2014, was marked by certain constraints: instructions from the
Russian Federal Migration Service (FMS) on the refusal procedure were only made
available on 1 April; information about FMS centres was not available until 4 April; only
two FMS centres were functioning on 9 April 2014; and some requirements in the
procedure evolved over time, such as the demand that both parents make the application on
behalf of their child.47
59. After 18 April 2014, FMS reported that 3,427 permanent residents of Crimea had
applied to opt out of automatically obtaining Russian Federation citizenship.48
60. Renouncing Russian Federation citizenship remains legally possible on the basis
of the 2002 law On Citizenship, except for people who were indicted, sentenced, have
outstanding obligations towards the Russian Federation, or have no other citizenship or
guarantee for the acquisition thereof.49
61. Residents of Crimea who opted out of Russian Federation citizenship became
foreigners. They could obtain residency permits through a simplified procedure, giving
them certain rights enjoyed by Russian Federation citizens, such as the right to pension,
free health insurance, social allowances, and the right to exercise professions for which
Russian Federation citizenship is not a mandatory requirement.50
62. However, overall, persons holding a residency permit and no Russian Federation
citizenship do not enjoy equality before the law and are deprived of important rights. They
cannot own agricultural land,51 vote and be elected, register a religious community, apply to
hold a public meeting, hold positions in the public administration and re-register their
private vehicle on the peninsula.52
9
63. OHCHR documented some cases of Crimean residents who had rejected Russian
Federation citizenship and faced discrimination. For instance, a man from Simferopol was
subjected to regular psychological harassment by his employer for having renounced
Russian Federation citizenship. In 2016, after two years of being pushed by his employer to
take back his formal rejection of Russian Federation citizenship, he was dismissed after
being told that his “anti-Russian” position disqualified him from continued employment.53
Two of his colleagues were also dismissed, including one who rejected Russian Federation
citizenship, and another who took up Russian Federation citizenship but publicly expressed
pro-Ukrainian views.
2. Ukrainian citizens without Crimean residency registration who are excluded from
Russian Federation citizenship
64. Ukrainian citizens living in Crimea whose passport stamps indicated they were
registered in mainland Ukraine could not become citizens of the Russian Federation. They
assumed the status of a foreigner. As such, they could no longer legally remain in Crimea
for more than 90 days within a period of 180 days from the moment they entered the
peninsula, according to Russian Federation legislation applicable to foreigners.
65. Non-compliance with immigration regulations imposed by the Russian Federation
can lead to court-ordered deportations. For instance, in 2016, a court in Sevastopol ordered
a Ukrainian citizen who had overstayed to be deported to mainland Ukraine although he
owned property in this city54; another court deported a Ukrainian citizen who had a wife
and children in Crimea.55
66. Under international humanitarian law, deportation or transfer of protected persons
from occupied territory to the territory of the occupying power or to that of any other
country, occupied or not, is prohibited regardless of the motive.56
67. Rules regulating stay were not consistently applied, sometimes favoring
individuals who supported Crimea’s accession to the Russian Federation. For example, the
Supreme Court of Crimea ruled not to deport a Ukrainian citizen who described himself as
“an active participant of the Russian Spring in Sevastopol” and claimed his deportation to
Ukraine would threaten his life and well-being.57 The Court accepted the argument that he
had a family in Crimea and that his deportation would interfere with his private and family
life.
68. Employment of Ukrainian citizens lacking Crimean residency registration is
prohibited. A quota system under Russian Federation law allows up to 5,000 foreigners to
reside and work in Crimea but this only applies to foreigners with non-Ukrainian passports
who were living in Crimea before March 2014 and held Ukrainian residence permits.58
69. In 2016, police raids against private businesses were conducted, resulting in the
opening of administrative proceedings against owners of catering institutions59 and private
entrepreneurs60 who were illegally employing Ukrainian citizens. People illegally employed
risk deportation and their employers face administrative sanctions of up to 800,000 RUB
(nearly USD 13,200) or closure of their business for up to 90 days.
70. Ukrainian citizens without residency registration in Crimea are excluded from
free health insurance and access to public hospitals. In one case documented by OHCHR, a
Ukrainian woman who had lived in Crimea for 10 years, but was registered in Kharkiv,
died in 2015 after a public hospital in Crimea refused to treat her due to the fact that she did
not have health insurance.61 According to Russian Federation legislation, she was a
foreigner and, as such, she did not have a Russian Federation passport affording the right to
free health insurance and access to public hospitals. The refusal to provide life-saving
medical treatment - including due to origin or status, such as citizenship - constitutes a
grave violation of the right to the highest attainable level of physical and mental health, and
10
a violation of the obligation, under international humanitarian law, to ensure that the health
system in place in an occupied territory continues to function adequately.
3. Ukrainian citizens who were made to renounce Ukrainian citizenship
71. Russian Federation law does not require Ukrainian citizens who apply for Russian
Federation citizenship to surrender their Ukrainian passports or relinquish their Ukrainian
citizenship. However, residents of Crimea who were employed in government and
municipal jobs before the referendum were obliged by law to give up their Ukrainian
citizenship no later than 18 April 2014, in addition to obtaining a passport of the Russian
Federation if they wanted to retain their employment.62 A law adopted by the Parliament of
Crimea further required them to possess “a copy of the document confirming denial of
existing citizenship of another State and the surrender of a passport of another State.”63
72. Before the Russian Federation occupied Crimea, 20,384 civil servants were
employed on the peninsula.64 According to the head of the FMS department for citizenship,
asylum and readmission in Crimea, as of 21 May 2015, 19,000 Crimean residents had
applied to renounce Ukrainian citizenship.65 While no information is provided about their
identity or profession, it is likely that civil servants constitute the bulk of this group. This is
contrary to the Fourth Geneva Convention, which prohibits an occupying power from
altering the status of public officials in the territories it occupies.66
B. Administration of justice and fair trial rights
73. The Treaty on Accession provided for a transition period until 1 January 2015 to
fully apply the legal framework of the Russian Federation in Crimea.67 In practice, the
gradual substitution of the Ukrainian legal system by that of the Russian Federation implied
that both systems coexisted, regulating different spheres and consequently causing
confusion for legal practitioners as well as legal uncertainty for rights-holders.68
74. OHCHR recalls that in accordance with international humanitarian law, the penal
laws in place in the occupied territory must remain in force and be applied by courts, with
the exception of norms that constitute a threat to the security of the occupying power, or an
obstacle to the application of relevant international humanitarian law provisions.69
75. As documented by OHCHR, the judicial and law enforcement authorities of the
Russian Federation in Crimea frequently violated the presumption of innocence; the right to
information without delay of the nature and cause of charge; the right to defend oneself or
be assisted by a lawyer of one’s own choice; the right to adequate time to prepare defence;
the right to trial without undue delay; the right to appeal or review; the right to a hearing by
an independent and impartial tribunal; and the right not to be compelled to testify against
oneself or confess guilt.
76. OHCHR documented cases demonstrating that allegations of torture and illtreatment
in post-referendum Crimea committed by State agents of the Russian Federation
during pre-trial investigations were often disregarded by courts. For instance, in March
2015, a court rejected the request of a defence lawyer to exclude evidence against his client
reportedly obtained under duress. The judge stated that torture allegations should be
examined together with other elements in order not to compromise the establishment of
facts and responsibility.70
77. Suspects were charged and some convicted in relation to acts which occurred
before the application of Russian Federation legislation in Crimea, in disregard of the
principle of non-retroactive application of criminal law enshrined in international human
rights and humanitarian law treaties.71 On 11 September 2017, a court in Crimea sentenced
a deputy chair of the Mejlis, Akhtem Chyigoz, to eight years of imprisonment on the basis
of Russian Federation legislation, after it found the accused guilty of organizing mass
protests, which were held on 26 February 2014 when the legal framework of Ukraine still
11
applied in Crimea. In addition, two individuals received prison sentences in 2015 and 2016
for allegedly injuring ’Berkut’ police officers during the Maidan protests in Kyiv, on 18
February 2014.72 Their convictions were based on Russian Federation legislation introduced
in Crimea after 18 March 2014.
78. Some judgments were passed in apparent disregard of the right to a hearing by a
competent, independent and impartial tribunal. In 2017, 10 Crimean Tatars arrested for
filming a police raid of the home of another Crimean Tatar man were judged in one day and
sentenced to five days of administrative arrest. No representatives of the prosecution were
present; two men were convicted in the absence of lawyers; and in at least one proceeding,
the judge ignored the public retraction of a witness statement supporting the claim that the
individuals were breaching public order and freedom of movement.73
79. Instances of intimidation of defence lawyers representing clients opposed to the
presence of the Russian Federation in Crimea have also been reported. On 25 January 2017,
a lawyer from the Russian Federation defending one of the deputy chairmen of the Mejlis
was forcefully brought to the FSB office in Simferopol for interrogation and asked to
disclose details of the case concerning his client. Despite being pressed to cooperate, he
refused, invoking his duty to uphold the attorney-client privilege, and was released after
two and a half hours. On 14 February 2017, an appellate court upheld a first instance
decision to enable the FSB investigator to interrogate him as a witness in a criminal case
against one of his clients.74 OHCHR reiterates that international administration of justice
standards explicitly protect the freedom of exercise of the profession of lawyer.75
C. Right to life
80. In February, March and April 2014, four persons were killed and two others died,
as described in this chapter, during incidents related to Crimea’s unrecognized accession to
the Russian Federation. While other deaths, including murders, have occurred in Crimea in
the three and a half years since the occupation began, OHCHR does not have credible
circumstantial evidence that they could be attributed to State agents of the Russian
Federation in Crimea.
81. In March 2014, a pro-Ukrainian Crimean Tatar activist, Mr. Reshat Ametov, was
abducted, tortured and summarily executed by people believed to be members of the
Crimean self-defence. He disappeared on 3 March after staging a one-man picket in front of
Crimea’s government building in Simferopol. Video footage shows him being led away by
three men in military-style jackets. On 15 March, his body was found in a village of the
Bilohirsk district, bearing signs of torture.76 The Crimean police opened a criminal
investigation. As of December 2014, more than 270 witnesses had been interrogated and
over 50 forensic analyses and 50 examinations had been carried out.77 OHCHR has serious
doubts about the effectiveness of these investigations. The suspects, members of the
Crimean self-defence, who were filmed abducting the victim, were only interrogated as
witnesses and later released. In 2015, the investigation was suspended due to the fact that
the individual suspected by the police to be the perpetrator was allegedly no longer in
Crimea.78 It resumed in 2016 but has since been conducted intermittently.79
82. Three killings occurred during armed incidents. On 18 March 2014, one
Ukrainian serviceman and one Crimean self-defence volunteer were killed during a
shooting incident in Simferopol.80 OHCHR does not have information about the
investigation conducted in relation to this case. On 6 April 2014, a Ukrainian Army naval
officer was killed by a Russian Federation serviceman in a dormitory in Novofedorivka.81 A
Russian Federation military tribunal in Crimea sentenced the perpetrator to two years of
imprisonment on 13 March 2015. The accused was convicted of homicide committed in
excess of the requirements of justifiable defence. In addition, the victim’s widow sued and
obtained from the Ministry of Defence of the Russian Federation 500,000 RUB (about USD
8,000) in compensation for the harm incurred.82
12
83. The impartiality of investigations carried out by the Crimean police is particularly
questionable in relation to the violence that occurred on 26 February 2014. On that date,
pro-Ukrainian and pro-Russian groups clashed in front of the parliament of Crimea,
resulting in the death of two pro-Russian demonstrators.83 The criminal proceedings
identified pro-Ukrainian supporters belonging to the Crimean Tatar community as being the
only suspects although the skirmishes involved representatives of pro-Russian groups as
well.84
D. Right to physical and mental integrity
84. The right to physical and mental integrity encompasses freedom from torture and
other inhuman treatment. The Russian Federation and Ukraine have both ratified
international conventions obliging them to prevent and redress torture, cruel and/or
inhuman or degrading treatment.85
85. Multiple and grave violations of the right to physical and mental integrity have
been committed by state agents of the Russian Federation in Crimea since 2014. The
absence of investigations suggests that their perpetrators have benefited from and continue
to enjoy impunity.
86. Victims and witnesses have accused the Crimean self-defence of violence against
pro-Ukrainian activists, mainly in 2014. Its members have reportedly been implicated in
attacks, abductions, enforced disappearances, one summary execution, arbitrary detention,
and torture and ill-treatment of individuals opposed to the March 2014 referendum, as well
as of Maidan supporters, members and affiliates of the Mejlis, journalists and Ukrainian
servicemen.86 On 11 June 2014, the Parliament of Crimea legalized the Crimean selfdefence
by turning it into a civil group with powers to assist the police.87
87. The Russian Federation has indicated that several criminal cases were opened in
which the suspects were members of the Crimean self-defence. These cases are connected
with a robbery, in April 2014, and incidents in which vehicles were taken illegally with the
threat of the use of firearms.88
88. Two legislative initiatives registered in the Crimean and Russian Federation
Parliaments in August 2014 proposing immunity from prosecution for actions committed
by the self-defence forces have not been pursued.
89. In view of the multiplicity of testimonies mentioning illicit acts committed by
members of the self-defence with apparent impunity, OHCHR has serious doubts that the
Russian Federation authorities have complied with their obligations to ensure
accountability through effective and impartial investigations. The duty to investigate and
prosecute is made more compelling by the fact that the existence of the self-defence group
has been legalized, and its members have been recognized as agents of the State.89
90. FSB and the Crimean police have also been accused of violating the right to
physical and mental integrity of persons holding dissenting views, in particular Crimean
Tatars and ethnic Ukrainians. Such violations have occurred prior to and during detention,
in penitentiary institutions and in places where people were illegally kept incommunicado.
91. In two cases documented by OHCHR in 2016, pro-Ukrainian supporters were
compelled by FSB officers to confess to terrorism-related crimes through torture with
elements of sexual violence. The victims were kept incommunicado, tied, blindfolded,
beaten up, subjected to forced nudity, electrocuted through electric wires placed on their
genitals, and threatened with rape with a soldering iron and wooden stick.90
92. Forced internment in a psychiatric institution has been used as a form of
harassment against political opponents, which may amount to torture or ill-treatment.
Procedurally, such placements are decided by a judge upon the request of the police or FSB
investigator. A deputy Chairman of the Mejlis, Mr. Ilmi Umerov, underwent an imposed
13
court-ordered ‘psychiatric assessment’ for three weeks91 after being charged in May 2016
with calls to violate the territorial integrity of the Russian Federation. In November and
December 2016 five Crimean Tatar men suspected of being members of Hizb ut-Tahrir, an
organization banned for terrorism in the Russian Federation, were also placed in a
psychiatric hospital for weeks. During the psychiatric assessment, doctors reportedly asked
them unrelated questions, including on their religious practice and political views.92
E. Right to liberty and security
93. The right to liberty and security of person exists to ensure that subjects of a State
can pursue their daily activities without harassment or apprehension of being restrained
without any lawful basis. It includes two key components: freedom from arbitrary arrest or
detention; and protection from enforced disappearances. Arbitrary deprivation of liberty
may amount to a violation of the requirement of common Article 3 of the Geneva
Conventions and Additional Protocol I that all civilians and persons hors de combat should
be treated humanely.
1. Arbitrary arrests and detentions
94. The Fourth Geneva Convention specifies that in an occupied territory, a civilian
may only be interned or placed in assigned residence for “imperative reasons of security”
(Article 78). Arbitrary detention is prohibited under customary international humanitarian
law93 and international human rights law protects individuals from arbitrary arrest and
detention by the State, as well as by private individuals or entities empowered or authorized
by the State to exercise powers of arrest or detention.94 According to the United Nations
Human Rights Committee, “arbitrariness is not to be equated with ‘against the law’, but
must be interpreted more broadly to include elements of inappropriateness, injustice, lack
of predictability and due process of law.”95 Any deprivation of liberty must therefore be
lawful, reasonable and necessary.
95. OHCHR documented multiple allegations of violations of the right to liberty as a
result of acts attributed to agents of the Russian Federation authorities in Crimea. While
most of them occurred in 2014, fresh claims of unlawful deprivation of liberty are regularly
recorded. Arbitrary arrests and detentions take different forms and appear to serve various
purposes, from instilling fear, to stifling opposition, and inflicting punishment.
96. In many cases, victims are neither charged nor tried, but detained by the police,
FSB or self-defence groups as a form of extra-judicial punishment or harassment. Detention
under such circumstances would usually last from several hours to several days, exceeding
the legal limits for temporary detention and ignoring procedural requirements, such as the
establishment of a protocol of arrest. Many of the victims were journalists, land or business
owners, and people arrested during so-called ‘prophylactic’ police operations at markets,
mosques, cafés, restaurants or places of entertainment. OHCHR noted a prevalence of
members of the Crimean Tatar community among people apprehended during police raids.
They were typically taken to the police centre to fight extremism (“Center E”),
photographed, fingerprinted and made to provide DNA samples before being released,
usually without any charges being pressed.96
97. In other cases, people deprived of liberty were charged with offences of
extremism, terrorism, territorial integrity violations, detained and tried. This form of
treatment has been commonly applied against political opponents, such as Crimean Tatar
figures linked to the Mejlis, practising Muslims accused of belonging to banned Islamic
groups, and journalists or individuals posting messages critical of the Russian Federation
authorities or expressing dissent on social media. Prosecutions often seemed to be tainted
by bias and a political agenda.97 The initial arrests were usually carried out by FSB and
followed by searches of victims’ houses and harassment of their families by law
14
enforcement. Victims were charged and subjected to lengthy pre-trial detention despite a
general lack of sufficient evidence.
98. In the most egregious cases, unlawful detentions were accompanied by physical
or psychological abuse amounting to torture. Many of the victims were people accused of
spying and planning terrorist acts, as well as political and civic activists supporting the
Maidan protests and pro-Ukrainian demonstrations in Crimea or seeking to assist Ukrainian
soldiers stationed in Crimea. On 9 March 2014, two members of a pro-Ukrainian
organization were abducted by the Crimean self-defence, detained in a secret location
without the presence of a lawyer for 11 days - and one of them tortured - before being
released.98 The arrests were made without reasonable suspicion, proper motivation and
court review, qualifying as violations of the right to liberty and security. In addition, the
torture allegations were not investigated, in denial of the right to an effective remedy.
2. Enforced disappearances
99. Enforced disappearance, as defined by the International Convention for the
Protection of All Persons from Enforced Disappearance,99 violates, or threatens to violate, a
range of international humanitarian law norms, most notably the prohibition of arbitrary
deprivation of liberty,100 torture and other cruel or inhuman treatment101 and murder.102 The
duty to prevent enforced disappearances is further supported by the requirement to record
the details of persons deprived of their liberty.103 The obligations placed on States by the
Convention arguably represent customary international law, which Ukraine (which has
ratified the Convention) and the Russian Federation (which has not done so) are required to
respect. OHCHR notes a precedent in the jurisprudence of the European Court of Human
Rights for holding an occupying power liable for violation of the right to liberty and
security arising from the failure of authorities to investigate the fate and whereabouts of
missing persons in its occupied territory.104
100. The first recorded case of enforced disappearance in Crimea occurred on 3 March
2014, less than a week after the establishment of a pro-Russian Government in Crimea, on
27 February.105 Since then, dozens of persons have gone missing, mostly in 2014. While the
majority of victims were released by perpetrators within hours or days, the whereabouts of
others are still unknown.
101. The highest number of enforced disappearances in a single month occurred in
March 2014, when at least 21 persons were abducted in Crimea. The victims included pro-
Ukrainian and Maidan activists, journalists, Crimean Tatars and former and active
Ukrainian servicemen. They were held incommunicado and often subjected to physical and
psychological abuse by armed individuals allegedly belonging to the Crimean self-defence
and one Cossack group. Most victims were released after being illegally held from a few
hours to several days, with no contact with their relatives or lawyers.106
102. OHCHR documented 10 cases of persons who disappeared and are still missing:
six Crimean Tatars, three ethnic Ukrainians and one Russian-Tatar - all men. Seven went
missing in 2014, two in 2015 and one in 2016.
103. On 1 October 2014, the Head of Crimea decided to create a ‘contact group’
focusing on the disappearances and other incidents involving Crimean Tatars. The group
convened for the first time on 14 October 2014 in the presence of investigative authorities
and the relatives of five missing Crimean Tatar men but achieved little beyond informationsharing
and the decision to transfer the investigations to the central Investigation
Department of the Russian Federation.107 Of the 10 disappearances mentioned, criminal
investigations were still ongoing in only one case as at 12 September 2017.108 They were
suspended in six cases due to the inability to identify suspects,109 and in three cases no
investigative actions have been taken as the disappearances were allegedly not reported.110
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104. In five cases, the possible involvement of State agents was raised by witnesses
who saw the victims being abducted by men dressed in uniform associated with the security
forces or the Crimean self-defence. Circumstances which may suggest political motives in
the other five cases include the profile of the victims who were pro-Ukrainian activists or
had links to the Mejlis.
F. Right to private and family life
105. OHCHR estimates that up to 150 police and FSB raids of private houses,
businesses, cafés, bars, restaurants, markets, schools, libraries, mosques and madrassas
(Islamic religious schools) have taken place since the beginning of Crimea’s occupation.
These actions have usually been carried out with the justification to search for weapons,
drugs or literature with extremist content forbidden under Russian Federation law.111
Several interlocutors shared their conviction that the objective pursued by such operations
was to instil fear, particularly in the Crimean Tatar community, in order to pre-empt or
discourage actions or statements questioning the established order since March 2014.
106. The searches were conducted on the basis of the Russian Federation’s antiextremism
law, which is very broad and has been used extensively in Crimea. The law
gives wide discretion to law enforcement agencies to interpret and apply its provisions,
which can be viewed as an infringement of the principles of legality, necessity and
proportionality.112 In her annual report for 2014, the Ombudsperson of the Russian
Federation stated in relation to Crimea that law enforcement officers should adopt “a wellbalanced
approach that rules out any arbitrary, excessively broad interpretation of the
notion of ‘extremism’”.113
107. OHCHR documented raids, which at times took place without search warrants
being presented, involved excessive use of force, and amounted to an arbitrary or unlawful
interference with an individual’s privacy, family and home, in violation of international
human rights law. According to victims, materials considered illegal were planted in homes
and false written testimonies declaring the presence of illegal substances were signed under
duress.114 On 4 and 5 September 2014, at least 10 houses belonging to Crimean Tatars were
searched by police officers and FSB officials in Simferopol, Nizhnegorsk,
Krasnoperekopsk and Bakhchisaray.115 The police found no weapons or drugs but
confiscated religious literature.
108. There are reports that some house raids were conducted at a time when only
Crimean Tatar women were present and that the absence of female officers among those
carrying out the search greatly disturbed them.116
109. As at 12 September 2017, 38 individuals from Crimea and the city of Sevastopol
(35 men and three women) were on a special list of people ‘believed to be involved in
extremism or terrorism’, administered by the Russian Federation Financial Monitoring
Service.117 According to the laws of the Russian Federation on preventing financing of
terrorism applied in Crimea, the bank accounts of individuals on this special list should be
constantly monitored and most of their bank transactions are suspended.
110. In view of the excessively broad interpretation of the Russian Federation’s antiextremism
law applying to Crimea, such limitations may amount to undue interference with
the right to private and family life and to the right to the peaceful enjoyment of one’s
possessions.
G. Rights of detainees
111. According to the Ministry of Justice of Ukraine, on 20 March 2014, 1,086
individuals were detained at Crimea’s only pre-trial detention facility in Simferopol, 1353
convicts were serving their sentences in a strict regime colony in Simferopol, 789 convicts
16
were held in a general regime colony in Kerch and 67 in a correction centre in Kerch. All
four institutions have been integrated into the penitentiary system of the Russian
Federation,118 which led to the transfer of hundreds of detainees held in Crimea to
penitentiary institutions in the Russian Federation.
1. Violations of the rights of prisoners in Crimea
112. After the Russian Federation took control of Crimea, local courts discontinued all
pending appeal proceedings under Ukrainian law, in violation of fair trial guarantees.119
Ukrainian penal legislation was repealed and prison sentences were requalified in
accordance with Russian Federation law, sometimes to the detriment of detainees.
113. Former detainees in Crimea complained to OHCHR about overcrowding, which
can amount to degrading treatment. Built for a maximum capacity of 817 people, the pretrial
detention centre in Simferopol had 1,066 detainees in March 2014,120 1,532 in
December 2015,121 and a similar level of overcrowding in 2016.122
114. Soon after the occupation started, correspondence between detainees in Crimea
and mainland Ukraine was blocked by the administration of the penitentiary service and all
family visits were denied violating the right of prisoners to be allowed to communicate with
family and friends at regular intervals.123
115. Pressure was exerted on detainees who refused to accept automatic Russian
Federation citizenship as prison officials recorded those who did or did not take Russian
Federation passports.124 A female detainee who rejected Russian Federation citizenship
complained that she was denied family visits and that sunflower oil was regularly poured
over her personal belongings as a harassment technique.125 Other detainees who refused
Russian Federation citizenship were placed in smaller cells or in solitary confinement.126
2. Transfer of prisoners to the Russian Federation
116. A sizeable number of Crimea’s prison population was transferred to the Russian
Federation.127 A key factor explaining this situation is the lack of specialized penitentiary
facilities in Crimea, which has led to the transfer of juveniles in conflict with the law,
people sentenced to life imprisonment, and prisoners suffering from serious physical and
mental illnesses. In addition, Crimea having no prisons for women, 240 female detainees
convicted by Crimean courts were sent to the Russian Federation between 18 March 2014
and 15 June 2016 to serve their sentences.128
117. Transfers of pre-trial detainees have also taken place. This is the case of
Ukrainian filmmaker Mr. Oleh Sientsov, who was arrested in Simferopol on 11 May 2014
on suspicion of "plotting terrorist acts”. On 23 May 2014, he was transferred to Moscow’s
Lefortovo prison and later to Rostov-on-Don (Russian Federation) where he was placed in
remand detention. Following his trial and conviction on 25 August 2015,129 he was
incarcerated in a high security penal colony in the Siberian region of Yakutia.
118. OHCHR notes that international humanitarian law strictly prohibits forcible
transfers of protected persons, including detainees, from occupied territory to the territory
of the occupying power, regardless of the motives of such transfers.130 In this regard, the
imposition of Russian Federation citizenship to residents of an occupied territory does not
alter their status as protected persons.
119. On 17 March 2017, negotiations between the Ombudspersons of Ukraine and the
Russian Federation enabled the return to mainland Ukraine of 12 detainees (11 men and a
woman) sentenced by Ukrainian courts before March 2014, and transferred from Crimea to
various penitentiary institutions in the Russian Federation after that date. OHCHR
interviewed each of them. Some detainees publicly expressing pro-Ukrainian sentiments
reported having been ill-treated and placed in solitary confinement.131 Others complained of
17
the absence of medical treatment. OHCHR documented the death of at least three male
prisoners transferred from Crimea to the penitentiary institution in Tlyustenkhabl, Adygea
region, who were suffering from serious ailments and did not receive necessary medical
care.132 Under international human rights and humanitarian law provisions, detainees must
be provided with the medical attention required by their state of health.133
H. Forced enlistment
120. Since the occupation began, residents of Crimea have been subjected to
conscription in the armed forces of the Russian Federation. Until 31 December 2016,
military service could only take place on the territory of the Crimean peninsula.134 Since
2017, conscripts can also be sent to serve on the territory of the Russian Federation. On 25
May 2017, 30 conscripts from Sevastopol were sent to the Russian Federation after
reportedly expressing the will to serve there.135
121. OHCHR spoke to several Crimean Tatars who left the peninsula to avoid serving
in the Russian Federation army. They stated they could not return to Crimea as they would
be prosecuted for avoiding the draft.136 On 12 April 2017, the Military Commissioner of the
Russian Federation in Crimea announced that a criminal case had been opened against a
resident of Crimea who refused to serve in the Russian Federation army.
122. OHCHR notes that under international humanitarian law, an occupying power is
prohibited from compelling protected persons to serve in its armed or auxiliary forces or to
exercise pressure or propaganda which aims at securing voluntary enlistment.137
I. Freedom of movement
123. The introduction by the Russian Federation of a State border at the ABL between
mainland Ukraine and Crimea, in violation of General Assembly resolution 68/262, has
adversely affected freedom of movement between mainland Ukraine and the Crimean
peninsula. Other legal restrictions, as per this section, have been imposed both by the
Governments of the Russian Federation and Ukraine.138
124. International human rights law guarantees freedom of movement to anyone
lawfully within the borders of a State and the right to leave and enter their own country.139
It also recognizes that a sovereign Government has the right to restrict freedom of
movement provided such a measure is necessary, reasonable and proportionate.
1. Restrictions imposed by the Russian Federation authorities
125. On 25 April 2014, the Russian Federation authorities established its ‘border’ at
the northern entrance to Crimea. Ukrainian activists, supporters and members of the Mejlis,
in particular, have frequently faced infringements on their movement, including intrusive
and lengthy interrogations whenever entering or leaving Crimea through the ABL.
126. In addition, citizens of Ukraine have been deported from Crimea for violating
Russian Federation immigration rules, which, pursuant to resolution 68/262, should not
apply to the territory of Crimea. For instance, the Crimea-born chairman of an NGO from
Evpatoriia providing free legal aid was convicted in January 2017 of “illegal stay” by a
Crimean court which ordered his deportation.140 In 2012, his Crimean passport registration
had been cancelled on procedural grounds, which disqualified him from obtaining Russian
Federation citizenship in March 2014. The court which ordered his deportation found him
to be a foreigner who violated immigration rules by staying in Crimea beyond the
authorized 90-day period. Following the ruling, the man was transferred from Crimea to the
region of Krasnodar (Russian Federation), detained for 27 days, and subsequently deported
to mainland Ukraine where he currently lives as an IDP. He is banned from entering
Crimea - where his wife and son live - until 19 December 2021, which violates his freedom
18
of movement and his right to family life.141 In addition, his forced transfer and deportation
contravene international humanitarian law rules applying to protected persons in situations
of occupation.142
127. OHCHR has information that 20 to 25 other Ukrainian citizens were deported
from Crimea to mainland Ukraine in 2016, and has reasons to believe that the total number
since the beginning of the occupation of Crimea may be significantly higher.143
128. Unlawful limitations to freedom of movement were also imposed against political
opponents and individuals criticizing the human rights situation on the peninsula who were
prohibited entry into the Russian Federation, consequently banning their access to Crimea.
On 22 April 2014, a Russian Federation officer at the ABL handed the former leader of the
Mejlis, Mr. Mustafa Dzhemilev, an unsigned document informing him of being banned
from entering the territory of the Russian Federation for five years. On 5 July 2014, the
current head of the Mejlis, Mr. Refat Chubarov, was issued an entry ban for allegedly
inciting inter-ethnic hatred.144 Other people subjected to similar prohibitions include in
2014 the director of Crimean Tatar news agency QHA, and in 2016 a Ukrainian journalist
and a defence lawyer.145
2. Restrictions imposed by Ukraine
129. Between March and December 2014, Ukraine suspended air, train and bus
connections to the peninsula. Older persons, persons with disabilities and children were the
most affected by the absence of public transportation. Some said they had no choice but to
walk across the ABL for more than two kilometres, sometimes in adverse weather
conditions.146 The only means of transport remaining are private cars and taxis that operate
between Ukraine’s mainland and Crimea.
130. According to Ukrainian legislation, Ukrainian citizens have the right to free and
unimpeded access to Crimea.147 However, crossing into the peninsula is permitted – for
Ukrainian citizens and foreigners alike – only through three crossing points located in the
region of Kherson, namely Kalanchak, Chaplynka or Chonhar. Foreign citizens violating
rules on access to Crimea are prohibited from entering Ukraine for a period of three
years.148
131. National legal requirements related to the travel of children have constricted
freedom of movement. Children below 16 years of age, if accompanied by only one parent,
must have notarized written consent of the other parent.149 This has created problems for
Crimean residents, as documents issued by the Russian Federation authorities in Crimea are
not recognized in Ukraine.
132. Specific requirements also apply to foreigners and stateless persons who may
only enter and leave Crimea with a special permission issued by Ukrainian authorities
following a lengthy procedure.
133. Another freedom of movement restriction applied to limitations in the
transportation of consumer goods and personal belongings to and from Crimea introduced
by Government decree No. 1035 of 16 December 2015. A court decision issued in June
2017 found the restrictions to be unlawful, although OHCHR observed through monitoring
of the ABL it conducted in August 2017 that posters informing travellers of transportation
limitations under decree No. 1035 were still present at the Chonhar crossing point.150
134. A so-called civil blockade of Crimea was initiated in September 2015 by the
Crimean Tatar leadership in mainland Ukraine to prevent trade with the Russian Federation
occupying Crimea and draw the attention of the international community to human rights
violations on the peninsula. The enforcement of the blockade was accompanied by
incidents, including physical attacks by blockade participants of people travelling from
Crimea, as well as confiscation of goods and personal items, violating human rights and
19
impacting freedom of movement across the ABL.151 On 17 January 2015, the organizers of
the ‘civil blockade’ of Crimea announced they had stopped enforcing their embargo. 152
135. OHCHR noticed security risks for travellers related to the presence of
insufficiently marked minefields on both sides of the road leading to the Kalanchak and
Chaplynka crossing points. Representatives of Ukraine’s State Border Guard Service said
they had no maps with mine locations. Although small triangular mine signs are visible, the
risk of accidentally walking into an ill-marked minefield remains.153
J. Freedom of thought, conscience and religion
136. It is a norm of customary international humanitarian law that the convictions and
religious practices of civilians and persons hors de combat must be respected.154 Article 58
of the Fourth Geneva Convention provides that the occupying power must permit ministers
of religion to give spiritual assistance to members of their religious communities, and
Article 15 of the First Protocol to this Convention states that an occupying power should
respect and protect civilian religious personnel. Furthermore, the International Covenant on
Civil and Political Rights and the European Convention on the Protection of Human Rights
and Fundamental Freedoms provide that everyone has the right to freedom of thought,
conscience and religion, and that the right to manifest one’s religion and beliefs may only
be subject to limitations, which are prescribed by law and are necessary to protect public
safety, order, health, morals or the rights and freedoms of others.155
137. After the start of the occupation, freedom of religion or belief in Crimea has been
jeopardized by a series of incidents targeting representatives of minority confessions and
religious facilities belonging to them. Limitations on religious freedom have also resulted
from the imposition of legal re-registration requirements, legislation increasing restrictions
on the activities of religious groups in the name of fighting extremism, and judicial
decisions.
138. The Parliament of the Russian Federation adopted legal amendments - commonly
referred to as the ’Yarovaya package’ – which came into force on 20 July 2016 as an antiterrorism
measure allowing the authorities to monitor extremist groups. The amendments
practically ban missionary groups and house prayers by making proselytizing, preaching,
praying, or disseminating religious materials outside of “specially designated places”, like
officially recognized religious institutions, a punishable crime.156
139. In the first year after adoption of the ’Yarovaya package’ eight persons from
Crimea - including four Jehovah’s Witnesses, three Protestants and one Muslim – were
fined 5,000 RUB each (USD 85) for conducting a missionary activity.157 In addition, eight
religious communities - two Jehovah’s Witness, one Catholic, one Lutheran, one
Pentecostal and one Hare Krishna - were fined in amounts ranging from 30,000 RUB (USD
525) to 50,000 RUB (USD 875) for violating the prohibition for a religious organization to
conduct activities ”without indicating its official full name”.158
140. The gravest and most frequent incidents involving representatives of minority
confessions were reported in 2014. For instance, on 1 June, men in Russian Cossack
uniforms broke into the local Ukrainian Orthodox Church of the Kyiv Patriarchate (UOCKP)
in the village of Perevalne, shouting and terrorizing churchgoers. The car of the priest
was damaged. The police were called but did not investigate the incident.159 On 21 July, a
house in the village of Mramorne belonging to the UOC-KP was burnt to the ground.160 A
pastor of the Protestant Church from Simferopol and his family left the peninsula after
reportedly being told by FSB officers that he could ‘disappear’.161 Greek-Catholic priests
faced threats and persecution, resulting in four out of six of them leaving Crimea. A Polish
citizen and the senior Roman Catholic priest in the Simferopol parish had to leave on 24
October, due to the non-renewal of Ukrainian residence permits. Most of the 23 Turkish
Imams and teachers on the peninsula have left for the same reason.162 On 26 April,
unknown persons threw Molotov cocktails at a mosque in the village of Skalyste, setting it
20
on fire. On 25 July, a Muslim cemetery in Otuz was damaged. Several mosques and
madrassas (Islamic schools) belonging to the Spiritual Administration of the Muslims of
Crimea (DUMK) were raided in 2014 by FSB officers searching for banned extremist
materials and members of radical groups.163 The raids have continued in the following years
but their frequency diminished after the DUMK leadership started cooperating with the
Russian Federation authorities in Crimea in 2015.
141. Pursuant to Russian Federation legislation imposed in Crimea, public
organizations in Crimea, including religious communities, were subjected to the obligation
to re-register to obtain legal status. The religious communities which applied for
registration had to submit the statutes of the organization, two records of community
meetings, a list of all the community members, and information on the “basis of the
religious belief”. Only Russian Federation citizens are allowed to register a religious
community.
142. Without registration, religious communities can congregate but cannot enter into
contracts to rent State-owned property, open bank accounts, employ people or invite
foreigners. The deadline for re-registration was extended twice and expired on 1 January
2016. The process has been lengthy and lacked transparency.164
143. Before the occupation of Crimea, there were 2,083 religious organizations in
Crimea and 137 in Sevastopol, both with and without legal entity status.165 As of 4
September 2017, 722 religious communities were registered in Crimea and 96 in
Sevastopol. They included the two largest religious organizations of the Christian Orthodox
and Muslim communities, as well as various Protestant, Jewish, Roman-Catholic and
Greek-Catholic communities, among other religious groups.
144. One of the religious communities registered in Crimea, the Jehovah’s Witnesses,
was declared illegal in an April 2017 decision of the Supreme Court of the Russian
Federation, which found that the group had violated the country’s anti-extremism law. On 1
June 2017, all 22 congregations in Crimea were de-registered, affecting the right to freedom
of religion of an estimated 8,000 believers. On 9 June 2017, a Jehovah Witness was told at
a military conscription centre in Crimea that he could not invoke his right to an alternative
civilian service under Russian Federation legislation unless he renounced his faith and
changed his religion.166 On 27 June, the head of the Jehovah Witnesses community in
Dzhankoy was summoned to court, charged with unlawful missionary activity, and died
later that day of a heart attack.167
145. The Ukrainian Orthodox Church of the Kyiv Patriarchate (UOC-KP) chose not to
re-register under Russian Federation law and thus has no legal recognition. Since 2014, five
UOC-KP churches have been either seized by paramilitary groups or closed due to nonrenewal
of their property leases.168 The activities of another UOC-KP church, located in
Simferopol, were disrupted on 31 August 2017, when court bailiffs stormed the building of
the church. The action was undertaken pursuant to a judgment, upheld by the Supreme
Court of the Russian Federation in February 2017, ordering to vacate premises in the
building used by a daughter company of the UOC-KP as office space and a shop. As of 12
September 2017, worship services were still held but fewer parishioners attended them.169
K. Freedom of peaceful assembly
146. Freedom of peaceful assembly guarantees the right of individuals to gather
peacefully in order to express an aim or issue in public. It is protected by various
international legal instruments and closely connected with other fundamental rights such as
freedom of speech, thought and association. Limitations are permitted in accordance with
international law, including administrative regulations, as long as they are proportionate
and not used to oppress the nature of free assembly.
21
147. The possibility to peacefully gather or hold a rally in Crimea has been
significantly reduced since March 2014. Restrictive legal measures placed additional
obstacles to the exercise of the right to peaceful assembly. According to legislation adopted
by the Parliament of Crimea in August 2014, the organizers of public assemblies must be
Russian Federation citizens and must officially request permission to hold an assembly no
more than 15 days and no fewer than 10 days prior to the planned event. In addition, a
resolution of the Government of Crimea of 4 July 2016 reduced from 665 to 366 the
number of locations throughout the ‘Republic of Crimea’ where public events could be
organized, without explaining the motives of this decision.170
148. Lengthy blanket prohibitions on holding public assemblies have been issued,
including an indefinite one decided by the Simferopol city authorities. In March 2016, a
ban on all public events on the territory of the city was decreed, with the exception of those
organized by the republican and local authorities.171 This measure was not taken in response
to a sudden deterioration of public order and clearly infringed on the freedom to hold
peaceful public assemblies.
149. Public events initiated by groups or individuals not affiliated with the Russian
Federation authorities in Crimea or which consider that Crimea remains a constituent part
of Ukraine have systematically been prohibited and prevented. On 23 September 2014, the
Prosecutor of Crimea issued a statement that “all actions aimed at the non-recognition of
Crimea as a part of the Russian Federation will be prosecuted.”172 Consequently, any
assembly demanding the return of Crimea to Ukraine or expressing loyalty to Ukraine has
been effectively outlawed.
150. Requests to hold peaceful public assemblies have often been rejected on
procedural technicalities, which appeared to be neither necessary to justify a ban nor
proportionate and responding to a general public interest. For example, the Simferopol city
authorities refused to grant permission for an assembly planned by the Crimean Tatar NGO
Kardashlyk for 23 August 2014 near the memorial complex for the victims of the Crimean
Tatar deportation. The motive provided was that the extremely high temperatures could
negatively affect the health of participants. Yet, other outdoor events planned on the same
day went ahead.173
151. In some cases, refusals to authorize public events were based on unsubstantiated
allegations that “extremist” or “separatist” messages would purportedly be disseminated
during their conduct. 174
152. Spontaneous gatherings have been met with sanctions. Crimean Tatars taking part
in unauthorized motorcades to commemorate the Crimean Tatar deportation were regularly
arrested, interrogated for hours, and fined.175 An elderly Crimean Tatar man holding a oneperson
picket in support of prosecuted Crimean Tatars was arrested in front of the building
of the Supreme Court of Crimea on 8 August 2017. He was charged with carrying out an
unauthorized public gathering and resisting police orders and sentenced by court to an
administrative fine of 10,000 RUB (USD 175) and 10 days of detention.
153. The European Court of Human Rights has found that restrictions imposed on
assemblies to prevent minor disorder are often disproportionate measures, and that
incidents of violence are better dealt with by way of subsequent prosecution or disciplinary
actions.176 In relation to blanket legal provisions which ban assemblies at specific times or
in particular locations, the Special Rapporteur on the rights to freedom of peaceful
assembly and of association stated that they require greater justification than restrictions on
individual assemblies.177
L. Freedom of opinion and expression and the media
154. Human rights law guarantees the right to hold opinions without interference.
Undue restrictions on the right to seek, receive and impart information and ideas of all
22
kinds gravely undermine freedom of expression, which is protected under Article 19 of the
International Covenant on Civil and Political Rights and Article 10 of the European
Convention on the Protection of Human Rights and Fundamental Freedoms.
155. The right to express one’s view or opinion has been significantly curtailed in
Crimea.178 In March 2014, analogue broadcasts of Ukrainian television channels were shut
off and the vacated frequencies started broadcasting Russian TV channels. Journalists were
attacked or ill-treated without any investigation being conducted into these incidents.179 In
June 2014, the only Ukrainian language newspaper, Krymska svitlytsia, was banned from
distribution and had to vacate its rented premises.
156. Official ‘warnings’ have often preceded the closing down of a media outlet. They
applied to views, articles or programmes whose content were deemed ‘extremist’. The
editor of the weekly Mejlis newspaper Avdet received several written and oral warnings
from FSB officers that the newspaper materials allegedly contained extremist content, such
as use of the terms ‘annexation’, and ‘temporary occupation’ of Crimea.180 The Crimean
Tatar ATR television channel was warned by Roskomnadzor, the Russian Federation media
regulatory body, against disseminating false rumours about repression on ethnic and
religious grounds and promoting extremism.181
157. ATR and Avdet were among the Crimean Tatar media outlets which were denied
re-registration according to Russian Federation legislation and had to cease operations on
the peninsula. When the deadline for re-registration expired on 1 April 2015,
Roskomnadzor reported that 232 media were authorized to work, a small fraction of the
approximately 3,000 media outlets previously registered under Ukrainian regulations.182 In
addition, other popular Crimean Tatar media outlets, such as Lale television channel,
Meydan and Lider radio stations, QHA news agency and 15minut Internet site, were denied
licenses to work. Procedural violations were cited as the main reasons for rejection.183
158. The minority language media that continued operating or registered as a new
media entity, have no political content or support the official position on the status of
Crimea. Crimean television has information and education programmes in the native
languages of national minorities, including Armenian, Bulgarian, Crimean Tatar, German,
Greek, and Ukrainian. Its programmes for the Crimean Tatar community include the
Crimean Tatar news Haberler, Netije, and Ekindi Subet; the talk-show Dilde, fikirde, işte
birlik; the educational programme Eglenip-Ogrenem; the cultural and religious programme
Selyam Aleykum; and the informational and cultural programme Tanysh-Belish.184
159. According to the United Nations Human Rights Committee “the penalization of a
media outlet [including online media], publishers or journalists solely for being critical of
the government or the political social system espoused by the government can never be
considered to be a necessary restriction of the freedom of expression.”185 Yet, provisions of
the Russian Federation penal code have regularly been used by the authorities in Crimea to
criminalize free speech and dissenting opinions of journalists and non-journalists alike.
160. On 7 July 2017, a court in Crimea convicted a Crimean Tatar man from
Sevastopol to one year and three months of prison for “publicly inciting hatred or enmity”.
During an eight months period in 2016, he had posted statements on Facebook mentioning
the “oppression” of the Crimean Tatars, referring to Crimea being “occupied” and
“annexed”, and quoting a Crimean Tatar leader who had organized the food and trade
blockade of Crimea in September 2015.186
161. People have also been charged under the accusation of advocating separatism. In
2017, the trials of a journalist from Crimea and a deputy chairman of the Mejlis, started.
Both men were charged with “public calls to violate the territorial integrity of the Russian
Federation” in connection with an article and a televised interview, respectively.187 If found
guilty, they face prison sentences of up to five years.
23
M. Freedom of association
162. Following the occupation of Crimea, most human right groups ceased to exist or
relocated elsewhere in Ukraine. Some did so in protest against the new situation, while
others felt compelled to do so, on account of personal threats and physical violence faced
by their members.
163. For instance, the director of the Yalta-based NGO Almenda left Crimea on 16
March 2014, one day after she was warned by members of the Crimean self-defence that
her safety was “no longer guaranteed.”188 Several members of the NGO Ukrainian House
were tortured and forcibly disappeared in connection with their role in organizing Maidan
events in Crimea and their subsequent opposition to Russian Federation presence.
164. Civic groups or non-governmental institutions which stayed but did not accept the
policies of the new authorities faced systematic obstruction of their activities, intimidation
and sometimes prosecution. In September 2014, the Crimean police organized searches,
seized property, and evicted the charitable organization Crimea Foundation from its
premises in Simferopol. The eviction also affected the central office of the Mejlis and the
Mejlis weekly newspaper Avdet.189
165. As other legal entities, NGOs were required to re-register under Russian
Federation law, which involved a number of constraints. Application documents included
inter alia a new version of the NGO statute and a formal decision by the NGO executive
body to align its founding documents with legislative requirements. If the NGO was not
registered at the local address of a founder who was a Crimean resident, applicants were
required to provide a letter from the owners of the intended rental premises of the NGO
guaranteeing that they did not object to such a registration.190
166. The re-registration of NGOs was further stymied by implementation of the
Russian Federation’s law on ‘foreign agents’ and ‘undesirable organizations’ in Crimea,
both of which have had a chilling effect on civic groups.191 Some decided not to seek
registration while others decided to forgo foreign funding rather than endure frequent
inspections and stigmatization.
167. The restrictive conditions placed by the legislation of the Russian Federation on
activities of civil society organizations have been reflected in the number of NGOs which
currently operate on the peninsula. As of 4 September 2017, 1,852 NGOs were registered in
Crimea and the city of Sevastopol192 compared to 4,090 in mid-March 2014.193
168. While the Russian Federation authorities in Crimea attempted to silence the
Mejlis, they selectively allowed the establishment of organizations representing the
Crimean Tatars, including Kyryym, Kyryym Birligi, the Crimean Tatar ’Inkishaf’ Society
and the Association of Crimean Tatar Businessmen.
169. Four national-cultural associations representing Ukrainians have been registered
in Crimea: the Simferopol-based Renaissance in Unity, Ukrainians of Simferopol,
Ukrainians of Yevpatoriia and Ukrainians of Yalta. The members of the unregistered
Simferopol-based Ukrainian Cultural Centre, which has been under constant surveillance
since 2014, were regularly called by the police or FSB for ‘informal talks’. Their public
activities, including paying tribute to Ukrainian literary, political or historic figures, were
often disrupted or prohibited. In May 2017, the Centre closed due to the absence of funds to
pay for the rent of its premises, and on 29 August 2017, its director left the peninsula for
mainland Ukraine following anonymous text message threats and information that the FSB
would arrest him.194
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VII. Economic, Social and Cultural Rights
A. Property rights
170. Following Crimea’s occupation, the Russian Federation authorities proceeded
with a large-scale nationalization of public and sometimes private property. Expropriation
was done in disregard of ownership rights and without compensation. Proper regulation of
housing, land and property issues are also central to the Crimean Tatars who, almost three
decades after returning from deportation, have not obtained security of tenure guarantees.
1. Property nationalization
171. Since the March 2014 referendum, many of the most economically valuable
assets in Crimea – from energy companies to mobile operators – have been expropriated,
often by force.
172. On 24 August 2014, the Crimean self-defence took over the Zaliv shipbuilding
company, preventing the management from entering the premises. A new administration
from Zelenodolsk (Tatarstan) was subsequently imposed on the firm.195 On 27 August
2014, members of the Crimean self-defence entered the headquarters of Ukrainian gas
company Krymgas and seized all documents and stamps. The entrances were blocked and
the employees were advised either to quit or to sign applications for transfer of their jobs to
a newly created gas company.196
173. Regulatory acts have been adopted to provide legitimacy to the nationalization
process.197 However, frequent amendments, which increased the number and nature of
property to be nationalized, undermined legal certainty and guarantees against arbitrariness.
For example, Resolution No. 2085-6/14, which originally focused on nationalization of
property without ownership or belonging to the State of Ukraine, was amended to include
111 individual property assets listed in a separate Annex called “List of property considered
as the property of the Republic of Crimea”. During 2014-2016, hotels, private apartments,
non-residential premises, markets, gas stations, land plots and movable property, were
added to the Annex by new resolutions, which contained no criteria for the nationalization
and, in most cases, no information on the owners of nationalized property.
174. On 27 February 2015 Crimea’s Parliament adopted Resolution No. 505-1/15
declaring an end to the nationalization process and prohibiting the inclusion of new
property into the Annex starting from 1 March 2015. However, this provision was
subsequently amended on 16 September 2015, allowing inclusion of land plots and some
new information in the List of nationalized property for “clarification purposes.” As of 12
September 2017, the Annex with the list of nationalized property had been amended 56
times and now contains 4,618 “nationalized” public and private real estate assets.198
175. Similar processes have taken place in the city of Sevastopol.199 With the purpose
of “restoring social fairness and maintaining public order”, the city authorities nationalized
13 companies and 30 real estate assets between February 2015 and July 2016.200
176. OHCHR recalls that, according to international humanitarian law, private
property, as well as the property of municipalities and institutions dedicated to religion,
charity and education, the arts and science may not be confiscated,201 and that immovable
public property must be administered according to the rule of usufruct.202
2. Housing, land and property of formerly deported people
177. The question of housing, land and property in Crimea is sensitive, particularly for
Crimean Tatars who returned from exile starting from the late 1980s. The unmanaged
25
return process and the perceived injustices in land allocation led to Crimean Tatars settling
on unoccupied or public land.203
178. While successive Governments of Ukraine took steps to facilitate repatriation to
Crimea and resolve some of the issues facing formerly deported persons, many problems
remained. In a decree issued by former President Viktor Yanukovych in 2010, the need to
solve “the burning problem of resettlement” of formerly deported persons was
acknowledged.204
179. After taking control of the peninsula, the Russian Federation authorities in
Crimea pledged to legalize the unauthorized appropriation of land or allocate alternative
land plots to Crimean Tatars.205 In 2015, they adopted a law enabling Russian Federation
citizens of Crimea who illegally built property on a seized plot of land to acquire this
land.206 There is no information on how this law has been implemented. Crimean Tatars
have expressed concern about the citizenship requirement prescribed by the law, which
automatically excludes from the process of legalization formerly deported persons who
were not residents of Crimea on 18 March 2014 or have returned from deportation after that
date. Other obstacles, including resistance from title owners of land plots and competing
interests among Crimean Tatar groups representing returnees have also adversely affected
the process of acquisition.
180. Additional concerns rose after several cities in Crimea allowed the demolition of
buildings constructed without necessary permits. The most recent decision applies to
Simferopol207 and envisages that buildings constructed on land plots located in areas of
restricted use, such as public areas and areas near utility facilities, will be torn down. The
demolition of such buildings, to be ordered by local administrations and special “demolition
commissions”, could result in evictions disproportionately affecting Crimean Tatars.
181. Forced evictions constitute a violation of a broad range of human rights, including
the right to adequate housing and freedom from arbitrary interference with home and
privacy.208 OHCHR recalls the importance of preventing forced evictions by inter alia
repealing legislation which allows for such practice and taking measures to ensure the right
to security of tenure for all residents.209
B. Right to maintain one’s identity, culture and tradition
182. The Russian Federation authorities in Crimea have denied various manifestations
of Ukrainian and Crimean Tatar culture and identity by groups perceived as hostile to the
Russian Federation and to Crimea’s status as a part of it. Pressure, intimidation and
prohibitive administrative or court decisions have been applied. Such actions violate Article
15 of the International Covenant on Economic, Social and Cultural Rights, which
guarantees the right of everyone to take part in cultural life, and Article 27 of the
International Covenant on Civil and Political Rights, which provides that in States where
ethnic, religious or linguistic minorities exist, persons belonging to such minorities should
not be denied the right, in community with other members of their group, to enjoy their
own culture, to profess and practice their own religion, or to use their own language.
1. Limitations of the right of Ukrainians and Crimean Tatars to express their culture
and identity
183. Following Crimea’s occupation, the Ukrainian and Crimean Tatar communities
have been constricted in their ability to display Ukrainian state and cultural symbols and
publicly celebrate important dates for their communities. Festivities and assemblies
organized by minority groups have only been allowed if those groups supported the
position of the Russian Federation on the status of Crimea.
26
184. On 18 February 2015, the Bakhchysarai authorities prohibited the local Mejlis
from carrying out a rally in commemoration of the anniversary of the death of Noman
Çelebicihan, an important figure in Crimean Tatar history. On 11 March 2015, a court in
Simferopol ordered 40 hours of corrective labour for three pro-Ukrainian activists and 20
hours for a fourth after they unfurled a Ukrainian flag bearing the inscription “Crimea is
Ukraine” during a rally to commemorate the anniversary of the national poet of Ukraine,
Taras Shevchenko, two days before.210 In June 2015, the city of Simferopol rejected an
application by the Mejlis’ to hold celebrations of the Crimean Tatar Flag Day.
185. Institutions promoting Ukrainian culture and traditions have been shut down. The
Museum of Ukrainian Vyshyvanka - a traditional Ukrainian embroidery - was closed in
February 2015, and books by contemporary Ukrainian authors have been removed from the
Franko Library located in Simferopol.211
186. The recognition under the constitution of the “Republic of Crimea” of Ukrainian
and Crimean Tatar as official languages on a par with the Russian language has been
largely declaratory. A draft law on the use of Crimea’s official languages was registered in
the Parliament of Crimea on 4 April 2017, but has yet to be discussed.212
2. The ban of the Mejlis
187. In 2016, the Russian Federation authorities in Crimea outlawed the Mejlis, a
development which many in the Crimean Tatar community perceived as an attack against
their culture and identity. While it is not supported by all Crimean Tatars, the Mejlis is
viewed by many as a self-governing body and traditional organ of an indigenous people. Its
members, forming an executive body, were elected by the Kurultai, the Crimean Tatars’
assembly.
188. On 26 April 2016, the Supreme Court of Crimea declared the Mejlis to be an
extremist organization and prohibited it from conducting any activities. The ruling was
followed by an instruction, in May 2016, by the Vice Prime Minister of Crimea addressed
to the heads of local governments in Crimea to report to the Prosecutor of Crimea any
violations committed by Mejlis members or activists.213
189. On 29 September 2016, the Supreme Court of the Russian Federation upheld the
ban, and supported the Prosecution which argued that the Crimean Tatar leadership of the
Mejlis had repeatedly violated Russian Federation legislation and caused prejudice to
residents of Crimea by organizing a trade blockade in 2015. The Mejlis was also accused of
orchestrating a cut-off in energy supplies to the peninsula - with adverse humanitarian
consequences for the population - caused by the sabotage of electricity pylons in mainland
Ukraine. OHCHR notes that the ruling confirms the significant restrictions already imposed
by the Russian Federation authorities in Crimea on this institution since 2014. It appears to
be based on prejudicial evidence and disregards the legitimate character of the Mejlis as an
elected organ representing the Crimean Tatar community.
190. In addition to prohibiting any public activity by or on behalf of the Mejlis, the
court decision implies that the estimated 2,500 members of the national and local Mejlis
bodies can incur criminal liability and face up to eight years in prison for belonging to an
organization recognized as extremist. While no criminal sanctions have been imposed so
far, some members of the Mejlis have been subjected to administrative sanctions. On 28
September 2016, eight of them were fined by courts in amounts ranging from 750 RUB
(USD 12) to 1,000 RUB (USD 15) for holding an “illegal meeting” of this organization.214
191. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding that the Russian Federation must “Refrain from maintaining or imposing
limitations on the ability of the Crimean Tatar community to conserve its representative
institutions, including the Mejlis“.215
27
192. On 25 August 2017, the Committee on the Elimination of Racial Discrimination
issued its Concluding Observations on the twenty-third and twenty-fourth periodic reports
of the Russian Federation.216 In these Concluding Observations, the Committee stated that
it was “particularly concerned” about the ban on the Mejlis and the “strict limitations on the
operation of Crimean Tatar representative institutions, such as the outlawing of the Mejlis
and the closure of several media outlets.”
193. As of 12 September 2017, the Mejlis remains a banned organization pursuant to
the decisions of the Supreme Courts of Crimea and the Russian Federation.
C. Right to education in native language
194. International human rights instruments ratified by both Ukraine and the Russian
Federation guarantee the right to education.217 States are obliged to prioritize the
introduction of compulsory, free primary education and must “take steps” towards the
realization of secondary, higher and fundamental education for all those within its
jurisdiction.218 Article 2 of the First Protocol to the European Convention on the Protection
of Human Rights and Fundamental Freedoms provides that states should respect the right of
parents to ensure education and teaching in conformity with their own religious and
philosophical convictions. Article 50 of the Fourth Geneva Convention provides that the
occupying power should, with the cooperation of the national and local authorities,
facilitate the proper working of all institutions devoted to the care and education of
children.
195. Shortly after the March 2014 referendum, schools and universities in Crimea
started functioning in accordance with the curriculum and educational standards of the
Russian Federation. The education and academic qualifications obtained in Ukrainian
educational establishments were recognized while a large-scale in-training programme for
over 20,000 Crimean teachers started in June 2014.219
196. Overall, the introduction of Russian Federation education standards has limited
the right of ethnic Ukrainians and Crimean Tatars to education in their native language.
While under Russian Federation law minority language instruction is available from grades
1 to 9, in senior classes of secondary schools (grades 10 and 11) all subjects must be taught
in Russian. Furthermore, there is no clear procedure regulating the education in a mother
tongue and no legally defined numeric threshold for opening schools or classes.
197. The number of students undergoing instruction in Ukrainian language has
dropped dramatically. In the 2013-2014 academic year, 12,694 students were educated in
the Ukrainian language. Following the occupation of Crimea, this number fell to 2,154 in
2014-2015, 949 in 2015-2016, and 371 in 2016-2017. In April 2015, the long-time director
of the only Ukrainian-language gymnasium in Simferopol left Crimea, allegedly due to
threats and harassment. Between 2013 and 2017, the number of Ukrainian schools
decreased from seven to one, and the number of classes from 875 to 28.220
198. OHCHR considers that the main reasons for this decrease include a dominant
Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean
residents to mainland Ukraine. Pressure from some teaching staff and school
administrations to discontinue teaching in Ukrainian language has also been reported.
199. At the university level, the Department of Ukrainian Philology in the Vernadskiy
Taurida National University was closed down in September 2014 and the majority of its
teaching staff laid off.221 The departments of Ukrainian philology, culture of the Ukrainian
language and theory and history of the Ukrainian language have been merged into one
department. By the end of 2014, Ukrainian as a language of instruction had been removed
from university-level education in Crimea.
28
200. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding unanimously that the Russian Federation must “Ensure the availability of
education in the Ukrainian language”.222
201. The number of students receiving their instruction in Crimean Tatar language has
remained stable, largely due to a high level of cultural awareness among the Crimean
Tatars. In the 2013-2014 academic year, when Ukraine’s curriculum was last applied in
Crimea, 5,551 Crimean Tatars were educated in their native language. In 2014-2015, the
figure was 5,146, in 2015-2016 it was 5,334, and in 2016-2017, 5,330 children were
educated in Crimean Tatar.223 Fifteen Crimean Tatar national schools were functioning in
2017, as in 2013.224
D. Right to health
202. The availability of health care treatment in Crimea has been affected by the
departure of numerous doctors and medical staff from medical State institutions. Drug users
have additionally suffered from a disruption in treatment caused by the implementation of
Russian Federation legislation.
203. In General Comment No. 14, the United Nations Committee on Economic Social
and Cultural Rights reminded all States parties to the International Covenant on Economic,
Social and Cultural Rights of the “minimum essential levels of each of the rights enunciated
in the Covenant, including essential primary health care.” Those minimum essential levels
include “the right of access to health facilities, goods and services on a non-discriminatory
basis, especially for vulnerable or marginalized groups,” including the provision of
essential drugs. Similarly, international humanitarian law obliges an occupying power to
ensure food, hygiene, public health and medical supplies for the inhabitants of occupied
territories.
1. Medical staff deficit in public hospitals
204. Crimea is confronted with an acute lack of medical personnel, an enduring
phenomenon which pre-dates the occupation by the Russian Federation but has been
aggravated after March 2014 due to the departure of many doctors to the private sector.
205. Since 2014, many doctors in Crimea have left public health care institutions for
private clinics on the peninsula, which provide higher salaries and better working
conditions. A similar situation prevails in the city of Sevastopol, where salaries in private
clinics in 2017 were two and a half times higher (40,000 RUB i.e. USD 660) than in public
hospitals (16,000 RUB i.e. USD 265).225 Physicians in public hospitals also criticized what
they viewed as excessive bureaucratic paperwork and a system of remuneration deriving
from new Russian Federation regulations, with the payment of a full doctor’s salary
depending on the result of multiple inspections and internal audits.226
206. In November 2016, 7,195 doctors and 17,283 other medical personnel were
employed in public medical centres in Crimea, with only 62.3 per cent of physicians’
positions occupied.
207. The Minister of Health of Crimea publicly acknowledged a lack of physicians,
pediatricians, general practitioners, emergency staff and laboratory technicians. For three
months in 2016, the main public hospital in Crimea’s second most populated district,
Kerch, had no doctor in its neurosurgical department. The situation is most worrying in the
districts of Rozdolne, Nyzhnohirskyi, Krasnoperekopsk, Pervomaysky and Armyansk, and
in the countryside, where only 40 per cent of the medical staff positions are filled.227
29
208. The shortage of medical personnel has had an impact on the quality of free public
health care services and created long waits, delaying treatment for the most economicallydisadvantaged
patients and jeopardizing their right to health.228
2. Impaired treatment of drug users
209. Retrogressive measures introduced in Crimea since the application of Russian
Federation legislation have undermined the right to health for those suffering from drug
dependence.
210. An estimated 21,100 injecting drug-users lived in Crimea in 2013. Substitution
Maintenance Therapy (SMT) for Crimean patients was terminated after the peninsula was
incorporated in the Russian Federation. The latter bans the medical use of methadone and
buprenorphine in the treatment of drug dependence and does not have maintenance therapy
programmes.229 Medicines given to patients in rehabilitation centres include
benzodiazepines, barbiturates, neuroleptics and anti-psychotic drugs, which are not
considered a reasonable alternative to the banned treatments among independent health care
experts.
211. As a result, 803 registered heroin addicts previously receiving Opioid Substitution
Therapy (OST) in Crimea no longer had access to this treatment.230 This has had major
detrimental effects, including changes in treatment, breaches of patient confidentiality, and
increased mandatory drug screening.231
212. Without methadone, users often relapse into taking heroin and risk an overdose.
The United Nations Special Envoy for HIV/AIDS evoked the possibility that by January
2015, up to 100 former OST recipients had died in Crimea due to complications related to
overdose or suicide,232 although in June 2014, Crimea’s health authorities were denying any
deaths.233
213. Comprehensive harm reduction strategies, which include OST, are essential to
prevent and treat HIV, hepatitis and tuberculosis among people who inject drugs. The ban
on OST opiates crippled Crimea’s HIV prevention programmes, which included inter alia
needle exchanges covering 14,000 people and OST for intravenous drug-users.
214. According to the Chief Doctor of Crimea’s Centre for the prevention and control
of AIDS, 1,417 newly diagnosed cases of HIV infection were recorded in Crimea for the
first nine months of 2016, including 25 per cent resulting from drug injection.234
E. Access to water and other essential services
215. The right to an adequate standard of living including in particular access to food,
water and other essential items, is included in several international human rights treaties.235
In addition, international humanitarian law prohibits the attack, destruction, removal, or
rendering useless objects indispensable to the survival of the civilian population, such as
foodstuffs, water installations and supplies and irrigation works.236
216. Until 2014, Crimea was 82 per cent dependent on water supplies via the North
Crimean Canal that links the Dnepr river in mainland Ukraine and the peninsula. The
eastern Crimean regions stretching from Sudak to Kerch have virtually no surface sources
of water. On 13 May 2014, the Ukrainian State Water Resources Agency informed that
Ukraine had shut off water supplies to Crimea via the North-Crimean Canal. While this
situation had no negative implications on drinking water,237 agricultural lands were
affected, and practically all rice plantations on the peninsula perished.238 According to the
Federal target programme on the socioeconomic development of Crimea, until 2020
“Crimea’s dependence on supply of water via the North Crimean Canal can be eventually
reduced or eliminated by searching for underground water sources, including manmade
ones”.239
30
217. Crimea was also dependent on supplies from mainland Ukraine for up to 85 per
cent of the electricity it consumed. Access to energy is a component of the right to adequate
housing, which is derived from the right to an adequate standard of living.240 On 21-22
November 2015, energy deliveries were disrupted after perpetrators believed to be
supporting the blockade of Crimea damaged four transmission towers in the region of
Kherson, which supplied electricity to Crimea. Although one of the power lines was later
repaired, energy supplies from mainland Ukraine have since not resumed due to the nonrenewal
of the contract between Ukraine’s energy company and the Russian Federation
authorities in Crimea, which expired on 1 January 2016.241
218. Following the power outage, for about three weeks, the interruption of energy
deliveries to Crimea caused widespread disruptions, affecting food conservation, lighting,
heating, public transportation and economic activity. Although the Russian Federation
authorities in Crimea redirected available energy resources to the most critical social
infrastructure, such as hospitals and schools, the impact of this situation has been acute,
particularly for people with limited mobility and low income.
219. Pursuant to the International Covenant on Economic, Social and Cultural Rights,
States parties must ensure the satisfaction of minimum essential levels of rights under the
Covenant in all circumstances.242 Under international humanitarian law, the Russian
Federation as the occupying power is obliged to ensure to the fullest extent of the means
available to it sufficient hygiene and public health standards, as well as the provision of
food and medical care to the population. At the same time, this does not exonerate Ukraine
from its obligations under the International Covenant not to interfere with the enjoyment of
the rights it enshrines, and from respecting the requirement under international
humanitarian law to ensure that the basic needs of the population continue to be met under
conditions of occupation.243
VIII. Conclusions and Recommendations
220. The human rights situation in Crimea has significantly deteriorated since the
beginning of its occupation by the Russian Federation. The imposition of a new citizenship
and legal framework and the resulting administration of justice have significantly limited
the enjoyment of human rights for the residents of Crimea. The Russian Federation has
extended its laws to Crimea in violation of international humanitarian law. In many cases,
they have been applied arbitrarily.
221. Russian Federation authorities in Crimea have supported groups and individuals
loyal to the Russian Federation, including among national and religious minorities, while
preventing any criticism or dissent and outlawing organized opposition, such as the Mejlis.
The space for civil society to operate, criticize or advocate has considerably shrunk. Media
outlets have been shut down, disproportionately affecting the Crimean Tatar and Ukrainian
communities, their right to information and to maintain their culture and identity.
222. Grave human rights violations affecting the right to life, liberty and security have
not been effectively investigated. The judiciary has failed to uphold the rule of law and
exercise proper administration of justice. There is an urgent need for accountability for
human rights violations and abuses and providing the victims with redress.
223. Moreover, the freedom of movement between mainland Ukraine and Crimea has
been restricted and the ABL has acquired many attributes of a State border.
224. Since the attempted alteration of the status of Crimea by the Russian Federation, a
development which was denounced by General Assembly resolution 68/262 and later
qualified as occupation in General Assembly resolution 71/205, the forcible integration of
the peninsula into the political, legal, socio-economic, educational, informational, cultural
and security spheres of the Russian Federation has been actively pursued, deepening the
divide between this territory of Ukraine and the rest of the country.
31
225. In July 2016, Crimea was administratively attached to the Southern Federal
District of the Russian Federation, further strengthening implementation of policies from
the central level and coordination with neighboring regions of the Russian Federation. The
peninsula has been integrated into the energy grid of the Russian Federation, which is also
building a rail-and-road bridge through the Kerch strait, creating a land corridor to Crimea.
This intensified integration is further compounded by population movements - from the
Russian Federation to Crimea and from Crimea to mainland Ukraine - which tend to favour
and strengthen pro-Russia sentiments on the peninsula.
226. In order to improve the human rights situation in Crimea, OHCHR recommends:
To the Government of the Russian Federation to:
a) Uphold human rights in Crimea for all and respect obligations that apply to an
occupying power pursuant to international humanitarian law provisions;
b) Ensure proper and unimpeded access of international human rights monitoring
missions and human rights non-governmental organizations to Crimea, pursuant
to General Assembly resolution 71/205;
c) Apply Ukrainian laws in Crimea, pursuant to General Assembly resolutions 68/262
and 71/205;
d) Ensure accountability for human rights violations and abuses through effective
investigations of allegations of ill-treatment, torture, abductions, disappearances
and killings involving members of the security forces and the Crimean selfdefence;
bring perpetrators to justice and provide redress for victims;
e) Comply with the international humanitarian law prohibition to compel residents of
the occupied territory of Crimea to serve in the armed forces of the Russian
Federation and to deport or transfer parts of the civilian population of the Russian
Federation into Crimea; return to Crimea all protected persons transferred to the
territory of the Russian Federation;
f) Ensure independent and impartial administration of justice, including due process
and fair trial rights, and that persons deprived of liberty benefit from all legal
guarantees, including equal treatment before the law, the right not to be
arbitrarily detained, the presumption of innocence and the prohibition from selfincrimination;
g) End the practice of retroactive application of penal laws to acts committed before
the occupation of Crimea, and refrain from using law enforcement bodies and the
justice system to pressure and intimidate opponents;
h) Uphold the right of defence counsel to perform their professional functions without
intimidation, harassment or improper interference;
i) End the practice of extracting confessions of guilt from persons in detention through
threats, torture, or ill-treatment, and refrain from practices such as forcible
psychiatric hospitalization, which may amount to ill-treatment;
j) Ensure adequate medical assistance to all individuals detained in penitentiary
institutions irrespective of their citizenship or any other grounds;
k) Enable unimpeded freedom of movement to and from Crimea, and end
deportations of Crimean residents pursuant to Russian Federation immigration
rules;
l) Ensure that the rights to freedom of expression, peaceful assembly, association,
thought, conscience and religion can be exercised by any individual and group in
Crimea, without discrimination on any grounds, including race, nationality,
political views or ethnicity;
32
m) Stop applying legislation on extremism, terrorism and separatism to criminalize
free speech and peaceful conduct, and release all persons arrested and charged for
expressing dissenting views, including regarding the status of Crimea;
n) Allow the development of independent and pluralistic media outlets, including
those representing minority communities, and refrain from placing legal and
administrative obstacles on their registration or operation;
o) Put an end to police actions, including house searches, summons, detentions, taking
of DNA samples, targeting disproportionately members of the Crimean Tatar
community;
p) Lift any limitations on the ability of the Crimean Tatar community to conserve its
representative institutions, including the Mejlis;
q) Ensure the availability of education in the Ukrainian language, and enable all
ethnic communities in Crimea, including the Crimean Tatars and Ukrainians, to
maintain and develop their culture, traditions and identity, and to commemorate
important events;
r) Ensure access of all Crimean residents, including those without Russian Federation
passports, to employment, health treatment, property and public services, without
discrimination;
s) End the ban on the use of Substitution Maintenance Therapy (SMT) for patients
suffering from drug dependence;
t) Respect the right to property and the prohibition to confiscate private property;
ensure security of tenure for the Crimean Tatars by putting in place a mechanism
facilitating recognition of their property rights.
To the Government of Ukraine to:
a) Use all legal and diplomatic means available to promote and guarantee the
enjoyment of the human rights of residents of Crimea;
b) Investigate, within practical limits, human rights violations and abuses committed
in Crimea as well as those perpetrated in mainland Ukraine in relation to the
‘civil blockade’ of Crimea;
c) Remove all non-necessary restrictions to freedom of movement to and from
Crimea, and ensure that the perimeter of the mined area near the Kalanchak and
Chaplynka crossing points in the Kherson region is visible and well protected;
d) Simplify access to civil documents, education and other public services to
residents of Crimea and IDPs;
e) Support dialogue between the Ombudspersons of Ukraine and the Russian
Federation to facilitate the voluntary transfer of Ukrainian prisoners held in
Crimea to penitentiary institutions in mainland Ukraine;
f) Refrain from actions that would raise obstacles to the enjoyment by residents of
Crimea of their human rights.
To the international community:
a) Insist on full cooperation of the Russian Federation with international and
regional monitoring mechanisms, including by granting unrestricted access to
their representatives to Crimea;
33
b) Remind the Russian Federation and Ukraine to strictly abide by international
human rights law and international humanitarian law in ensuring the protection
of the population of Crimea;
c) Raise cases of human rights violations and abuses in discussions with the Russian
Federation authorities at bilateral and multilateral forums.
i
IX. End notes
1 Hereafter referred to as ‘Crimea’.
2 All future references to the term “occupation” are to be interpreted in line with UN
General Assembly resolution 71/205 referring to the “temporary occupation” of Crimea.
3 The resolution 71/205 was adopted by the UN General Assembly on 19 of December
2016.
4 The people’s militia was registered on 29 July 2014. It is composed of former policemen
and army officers, Afghan war veterans and biker groups, tasked to ‘maintain order and
combat fascism’ on the peninsula; see Народное Ополчение Республика Крым, “Устав
Общественной Организации”, 9 сентября 2014, available at: http://narodnoeopolchenie.
ru/ustav-obshhestvennoy-organizatsii/.
5 Speaking to journalists, the President of the Russian Federation, Vladimir Putin, stated:
“Behind the backs of the Crimean self-defense units, there were our soldiers. They acted in
a very polite, but decisive and professional manner. There was no other way to help the
people of Crimea to express their free will”. Video conference, Ria Novosti, 17 April 2014.
6 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way
home”, available at: https://www.youtube.com/watch?v=c8nMhCMphYU.
7 The referendum question provided two alternatives: “1. Are you in favour of the
Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian
Federation?” or “2. Are you in favour of restoring the Constitution of the Republic of
Crimea of 1992 and of Crimea’s status as part of Ukraine?”
8 See the statement of the Spokesperson of the UN Secretary-General of 17 March 2014
http://www.un.org/apps/news/story.asp?NewsID=47366#.WcU48nRx3IU.
9 Article 45 of the Convention (IV) respecting the Laws and Customs of War on Land and
its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18
October 1907 and Article 64, Geneva Convention IV.
10 The Mejlis is a self-governing institution of the Crimean Tatar people holding executive
powers. Its members are chosen from among the members of an elected assembly, the
Kurultai.
11 Articles 49 and 76, Geneva Convention IV.
12 See “Human Rights Assessment Mission in Ukraine. Human Rights and Minority Rights
Situation”, OSCE report of the High Commissioner for National Minorities and the Office
for Democratic Institutions and Human Rights, The Hague/ Warsaw (12 May 2014), pp.
49-76.
13 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way
home”, available at: https://www.youtube.com/watch?v=c8nMhCMphYU.
14 https://www.theguardian.com/world/2014/feb/25/ukraine-sevastopol-installs-prorussian-
mayor.
15 According to the Constitution of the ‘Republic of Crimea’, adopted on 11 April 2014,
the Head of Crimea («Глава Республики Крым») who is the highest-ranking official of
Crimea may also act as the Prime Minister of Crimea. Starting from 14 April 2014, Sergey
Aksenov has been acting as the Head and the Prime Minister of Crimea. See:
http://glava.rk.gov.ru/rus/officially.htm
16 The referendum question provided two alternatives: “1. Are you in favour of the
Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian
Federation?” or “2. Are you in favour of restoring the Constitution of the Republic of
Crimea of 1992 and of Crimea’s status as part of Ukraine?”
17 http://www.crimea.gov.ru/act/11689.
ii
18 The Opinion was prepared following a request of the Secretary-General of the Council of
Europe of 7 March 2014.
19 See Paragraph 28 of Opinion no. 762 / 2014 on “Whether the decision taken by the
Supreme Council of the Autonomous Republic of Crimea in Ukraine to organize a
referendum on becoming a constituent territory of the Russian Federation or restoring
Crimea’s 1992 constitution is compatible with constitutional principles” (Venice, 21-22
March 2014).
20 See supra endnote 8.
21 OHCHR report on the human rights situation in Ukraine, 15April 2014, paragraph 82
22 According to the Crimean the election commission, 1,274 096 persons (83.1 per cent)
cast their ballots, of whom 1,233,002 (96.77 per cent) voted to join the Russian Federation,
31,997 (2.51 per cent) voted for Crimea to be part of Ukraine, and 9,097 votes (0.72 per
cent) were invalid; see http://archive.is/bvjR6. In Sevastopol, 274,101 persons (89.5 per
cent) cast their ballots, of whom 262,041 (95.6 per cent) voted to join the Russian
Federation, 9,250 (3.37 per cent) voted for Crimea to be part of Ukraine, and 2,810 votes
were invalid (1.03 per cent); see http://archive.is/zbExZ.
23 On 14 March 2014, the Constitutional Court of Ukraine ruled that the decision to hold a
referendum was unconstitutional, and on 15 March the Parliament of Ukraine terminated
the powers of the Parliament of Crimea.
24 The law “On Securing the Rights and Freedoms of Citizens and the Legal Regime in the
Temporarily Occupied Territory of Ukraine” entered into force on 22 November 2014.
25 The resolution was adopted by 101 countries, 11 voted against, 58 abstained and 24 were
absent.
26 The resolution was adopted by 70 countries, 26 voted against, 77 abstained and 21 were
absent.
27 Agreement between the Office of the High Commissioner for Human Rights and the
Government of Ukraine concerning the deployment of a short-term UN Human Rights
Monitoring Mission in Ukraine, done at Geneva on 31 July 2014.
28 The objectives of the visit were to discuss allegations of human rights violations,
protection concerns and the establishment of a sub-office of the HRMMU in Simferopol.
See OHCHR report on the human rights situation in Ukraine, 15 March to 2 April 2014,
paragraphs 80 to 93.
29 Gender-sensitive investigation methods, including regarding interviewing, security
arrangements, witness protection and safe handling of information were used by OHCHR.
See OHCHR manual on gender integration in monitoring available at
https://intranet.ohchr.org/Offices/Geneva/TESPRDD/RuleofLawEqualityandNon-
DiscriminationBranch/WomensHumanRightsAndGenderSection/Documents/Chapter15-
20pp.pdf.
30 Article 42 of the 1907 Hague Regulations states: “Territory is considered occupied when
it is actually placed under the authority of the hostile army. The occupation extends only to
the territory where such authority has been established and can be exercised.”
31 On 15 September 2015, Article 1 of the law of Ukraine “On Securing the Rights and
Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of
Ukraine” was amended to establish the beginning of the occupation of Crimea on 20
February 2014.
32 The Government of Ukraine exercised its right to derogate from its obligations under the
International Covenant on Civil and Political Rights in relation to the rights to liberty and
security (Article 9); fair trial (Article 14); effective remedy (Article 2(3)); respect for
private and family life (Article 17); and freedom of movement (Article 12) as well as
obligations enshrined in Article 5 (liberty and security), Article 6 (fair trial) Article 8
iii
(respect for private and family life) and Article 13 (effective remedy) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
33 Human Rights Committee, Concluding Observations on Moldova
(CCPR/C/MDA/CO/2(2009), paragraph 5).
34 Ilascu and Others v. Moldova and Russia, 48787/99, European Court of Human Rights, 8
July 2004, paragraph 331.
35 Article 43, 1907 Hague Regulations.
36 Henckaerts, Doswald-Beck, Customary International Humanitarian Law, Volume I. Rule
149, hereinafter, Customary IHL Rules; See also Article 3, Hague Convention (IV) and
Article 91, Additional Protocol I.
37 See Report of the International Criminal Court on Preliminary Examination Activities
(2016), paragraphs 155 to 158. Pursuant to two article 12(3) declarations lodged by the
Government of Ukraine on 17 April 2014 and 8 September 2015, the Court may exercise
jurisdiction over Rome Statute crimes committed on the territory of Ukraine since 21
November 2013.
38 http://2001.ukrcensus.gov.ua/eng/results/general/nationality/.
39 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
40 http://www.dsns.gov.ua/ua/Ostanni-novini/61047.html.
41 http://www.internal-displacement.org/europe-the-caucasus-and-centralasia/
ukraine/figures-analysis.
42http://www.gks.ru/free_doc/new_site/population/demo/perepis_krim/obsh_itog_kfo.docx
43 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
44 See Article 4 of the Russian Federation law “On the Accession of the Republic of Crimea
into the Russian Federation and the Creation of New Federal Subjects – the Republic of
Crimea and the City of Federal Significance Sevastopol” (21 March 2014).
45 See Annual Report of the High Commissioner for Human Rights of the Russian
Federation for 2014, Crimea chapter.
46 Article 45, 1907 Hague Regulations.
47 OHCHR report on the human rights situation in Ukraine, 2 April to 6 May 2014,
paragraph 127.
48 http://rian.com.ua/CIS_news/20140422/345528247.html.
49 Article 20, Federal Law No. 62-FZ "On Citizenship of the Russian Federation" (31 May
2002).
50http://helsinki.org.ua/advices/poluchenye-vyda-na-zhytelstvo-dlya-hrazhdanpozhelavshyh-
sohranyt-ukraynskoe-hrazhdanstvo-y-prozhyvayuschyh-postoyanno-naterrytoryy-
kryima/.
51 Article 3 of the Russian Federation Law “On circulation of agricultural land” (24 July
2002).
52 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016,
paragraph 197.
53 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15
February 2017, paragraphs 139 to 141.
54 Judgment of the Balaklava district court of the Republic of Crimea, 22 November 2016,
No. 5-207/2016, http://sudact.ru/regular/doc/s56ZvgkNvSgw/
55 Judgment of the Supreme court of the Republic of Crimea, 15 November 2016, No. 12-
2050/2016, http://sudact.ru/regular/doc/hbZ5VPzDk7l0/.
56 In addition, the occupying power may undertake total or partial evacuation of a given
area if the security of the population or imperative military reasons so demand. See Article
49, Geneva Convention IV.
57 Judgment of the Supreme court of the Republic of Crimea, 17 November 2016, No. 12-
401/2016, http://sudact.ru/regular/doc/Q9mwes1Qfjb/.
iv
58 See “Human Rights in Retreat. Abuses in Crimea”, Human Rights Watch, 17 November
2014, available at: https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea.
59 Judgment of the Supreme court of the Republic of Crimea, 2 November 2016, No. 12-
1696/2016, http://sudact.ru/regular/doc/55PTDREeCUZT/.
60 Judgment of the Sudak city court of the Republic of Crimea, 25 October 2016, No. 5-
131/2016, http://sudact.ru/regular/doc/MdwdkOOIxGdO/.
61 OHCHR report on the situation of human rights in Ukraine, 16 November 2015 to 15
February 2016, paragraph 195.
62 Article 4 of the Federal Constitutional Law “On the Accession of the Republic of Crimea
into the Russian Federation and the Creation of New Federal Subjects – the Republic of
Crimea and the City of Federal Significance Sevastopol” (21 March 2014).
63 Article 11 of the Law of the Republic of Crimea “On State Civil Service of the Republic
of Crimea” (29 May 2014).
64 This number includes 3,581 persons employed in the city of Sevastopol and 16,803 in the
Autonomous Republic of
Crimea. http://www.ukrstat.gov.ua/druk/publicat/kat_u/2014/bl/03/bl_ds_13.zip.
65 http://ru.krymr.com/content/news/27024784.html.
66 Article 54, Geneva Convention IV.
67 Article 6 of the Russian Federation law “On the Accession of the Republic of Crimea into
the Russian Federation and the Creation of New Federal Subjects – the Republic of Crimea
and the City of Federal Significance Sevastopol” (21 March 2014).
68 The Annual Report of the High Commissioner for Human Rights of the Russian
Federation for 2014 mentions in relation to Crimea that the “objective difficulties of the
transition period throughout 2014” have given rise to “a number of legal and law
enforcement grey areas” which have encouraged corruption schemes, Moscow, 2015, p. 96.
69 Article 64, Geneva Convention IV.
70 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraph 159
71 See Articles 64, 65, 67, and 70, Geneva Convention IV and Article 15, International
Covenant on Civil and Political Rights.
72 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraphs 158-159 and HRMMU report on the human rights situation in Ukraine, 16 May
to 15 August 2016, paragraph 157.
73 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 144.
74 Ibid. paragraph 145.
75 UN Basic Principles on the Role of Lawyers adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27
August to 7 September 1990, Principles 16 and 22.
76 OHCHR report on the human rights situation in Ukraine, 15 March to 2 April 2014,
paragraph 86.
77 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation,
Human Rights Committee, 18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 173.
78 http://khpg.org/en/index.php?id=1457018864.
79 HRMMU interview, 13 August 2017.
80 http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10716412/Ukrainesunlikeliest-
funeral-the-only-two-foes-to-die-in-Russias-Crimea-takeover-are-mournedtogether.
html.
81 http://www.independent.co.uk/news/world/europe/ukraine-naval-officer-shot-dead-byrussian-
solider-in-crimea-9243306.html.
82 https://ru.krymr.com/a/27740314.html.
v
83https://www.kyivpost.com/article/content/euromaidan/two-die-in-rallies-outside-crimeanparliament-
says-ex-head-of-mejlis-337708.html.
84 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 187.
85 See Article 2, Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment; Article 7, International Covenant on Civil and Political Rights;
and Article 3, European Convention for the Protection of Human Rights and Fundamental
Freedoms.
86 See OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraphs
299-303 and 309 and OHCHR report on the human rights situation in Ukraine, 18 August
to 16 September 2014, paragraph 165.
87 See Report by Nils Muiznieks, Commissioner for Human Rights of the Council of
Europe, following his Mission in Kyiv, Moscow and Ukraine, from 7 to 12 September
2014, paragraph 17.
88 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation,
Human Rights Committee, 18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 174.
89 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions, Principle 2.
90 HRMMU interviews, 7 September 2016 and 11 December 2016.
91 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2016, paragraph 158.
92 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15
February 2017, paragraph 133.
93 Rule 99, Customary International Humanitarian law.
94 Article 9, International Covenant on Civil and Political Rights;
UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and
security of person), 16 December 2014, CCPR/C/GC/35.
95 Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July
1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, paragraph 9.8.
96 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016,
paragraphs 183 to 185.
97 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 202.
98 HRMMU interview, 20 October 2014.
99 Article 2, Convention for the Protection of All Persons from Enforced Disappearance.
100 Rule 99, Customary International Humanitarian Law.
101 Rule 90, Ibid.
102 Rule 89, Ibid.
103 Rule 123, Ibid.
104 See Cyprus v. Turkey, 25781/94, Judgment, European Court of Human Rights, 10 May
2001, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59454.
105 Reshat Ametov, a pro-Ukrainian activist, was abducted in Simferopol and found dead
two weeks later.
106 The Ukrainian NGO CrimeaSOS estimates that between March 2014 and March 2017,
agents of the Russian Federation were directly or indirectly involved in at least 36 cases of
enforced disappearances. See Enforced Disappearance in Crimea Annexed by Russian
Federation 2014-2016, CrimeaSOS, p. 2.
107 OHCHR report on the human rights situation in Ukraine, 15 November 2014,
paragraphs 213-215.
108 Information provided by the Prosecutor’s office of the Republic of Crimea to
CrimeaSOS on 29 November 2016.
vi
109 Ibid.
110 Ibid.
111 The Federal List of Extremist Materials was introduced by Federal Law No. 114-FZ “On
Combating Extremist Activities” (25 July 2002).
112 See Opinion No. 660/2011on the Federal Law on Combating Extremist Activity of
Russian Federation, The European Commission For Democracy Through Law (Venice
Commission), 1 June 2012.
113 Annual Report of the High Commissioner for Human Rights of the Russian Federation
for 2014, Moscow, 2015, p. 99
114 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the Russian
Federation”, Report prepared by an Unofficial Turkish Delegation in Crimea on 27-30
April 2015 (5 June 2015), pp. 9-10.
115 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraphs 155-156.
116 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the
Russian Federation”, ibid. p. 9.
117 http://fedsfm.ru/documents/terrorists-catalog-portal-act
118 http://www.krim.fsin.su/news/detail.php?ELEMENT_ID=129921.
119 Article 14(5), International Covenant on Civil and Political Rights.
120 Statistics of the State Penitentiary Service of Ukraine as of 20 March 2014,
http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/735176.
121 Annual Report of the High Commissioner for Human Rights of the Russian Federation
for 2015, Moscow, p. 72
122 Report of the High Commissioner for Human Rights in the Republic of Crimea, 2016, p.
63, http://ombudsman.rk.gov.ru/file/doklad_2016.pdf.
123 Rule 58, United Nations Standard Minimum Rules for the Treatment of Prisoners (The
Nelson Mandela Rules).
124 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 150.
125 HRMMU interview, 21 March 2017.
126 Ibid.
127 One Ukrainian NGO claimed on 31 May 2016 that 2,200 prisoners had been transferred
from Crimea to the Russian Federation, https://hromadskeradio.org/programs/hromadskahvylya/
2200-krymskyh-uvyaznenyh-bulo-peremishcheno-na-terytoriyu-rosiyiadvokat#.
V01n6plSZF0.twitter.
128 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 181.
129 The trial started on 21 July 2015, and on 25 August 2015, a military tribunal sentenced
him to 20 years of imprisonment.
130 See Articles 49 and 76, Geneva Convention IV.
131 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 151.
132 Ibid. paragraph 152.
133 See Article 76, Geneva Convention IV; Article 10, International Covenant on Civil and
Political Rights; Article 3, European Convention on Human Rights and Fundamental
Freedoms, and Kudla v. Poland, 30210/96, European Court of Human Rights, 26 October
2000, paragraph 94.
134 Article 7, Treaty of Accession between the Republic of Crimea and the Russian
Federation (18 March 2014).
135 This figure was announced by the military commissioner of Sevastopol, Alexei
Astakhov, on 25 May 2017.
vii
136 HRMMU interviews, 20 November 2015 and 13 October 2016.
137 Article 51, Geneva Convention IV.
138 See OSCE Special Monitoring Mission to Ukraine thematic report, “Freedom of
movement across the administrative boundary line with Crimea” (21 June 2015), available
at: http://www.osce.org/ukraine-smm/165691.
139 See Article 12, International Covenant on Civil and Political Rights; and Articles 2 and
3, Protocol 4 to the European Convention on Human Rights and Fundamental Freedoms.
140 HRMMU interview, 5 May 2017.
141 See Article 23, International Covenant on Civil and Political Rights; Article 10,
Convention on the Right of the Child; Article 8, European Convention on Human Rights
and Fundamental Freedoms.
142 Article 49, Geneva Convention IV.
143 HRMMU interview, 26 May 2017.
144 The decision on the undesirability of stay of Mr. Dzhemilev and Mr. Chubarov in the
Russian Federation was taken pursuant to Article 27 of the Federal Law “On the Procedure
of Exit from the Russian Federation and Entry to the Russian Federation. See Annual
Report of the High Commissioner for Human Rights of the Russian Federation for 2014, p.
101.
145 HRMMU interview, 17 October 2016.
146 HRMMU interviews, 19 February 2015, 22 September 2015 and 3 February 2016.
147 See Article 10, Law of Ukraine “On Guaranteeing the rights and freedoms of citizens
and on the legal regime on the temporarily occupied territory of Ukraine”.
148 On 23 November 2016, 14 citizens of Uzbekistan and one Azeri citizen travelling from
Crimea to mainland Ukraine were stopped by Ukrainian border guards on the ABL and
issued with three-year entry bans to Ukraine for having accessed Crimea through the
Russian Federation, in violation of Ukrainian legislation.
149 See Government Regulation No. 367 of 4 June 2015.
150 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2017,
paragraph 148.
151 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2015, paragraphs 144 to 146.
152 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 198.
153 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 175.
154 Rule 104, Customary International Humanitarian Law.
155 See Article 18(3), International Covenant on Civil and Political Rights, and Article 9(2),
European Convention on Human Rights and Fundamental Freedoms.
156 Maximum fines amount to the equivalent of $780 for individuals or $15,000 for
organizations.
157 See Article 5.26, part 4 of the Code of Administrative Offenses of the Russian
Federation (“Carrying out missionary activity in violation of the requirements of the law”).
158 See Article 5.26, part 3, ibid.
159 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014,
paragraph 315.
160 OHCHR report on the human rights situation in Ukraine, 16 July to 16 August 2014,
paragraph 163.
161 OHCHR report on the human rights situation in Ukraine, 1 to 30 November 2014,
paragraph 84.
162 OHCHR report on the human rights situation in Ukraine 15 December 2014, paragraph
84.
viii
163 On 24 June 2014, the FSB raided a madrassa in the village of Kolchugino, in the
Simferopol district. On 13 August 2014, three madrassas in Simferopol were searched. On
22 September 2014, a seven-hour search was carried out at the Derekoi Mosque in Yalta.
164 See report of the Independent Expert on minority issues, Rita Izsák, concerning the
protection and promotion of the rights of religious minorities, A/68/268, paragraph 61: “It
is essential to ensure that all procedures for registration are accessible, inclusive, nondiscriminatory
and not unduly burdensome. Registration procedures designed to limit
beneficiaries due to political or social intolerance run afoul of human rights standards”.
See also report of the Special Rapporteur on freedom of religion or belief, Heiner
Bielefeldt, A/HRC/22/51, paragraph 42: “failure to register, or re-register periodically,
could lead to legal vulnerability that also exposes the religious minorities to political,
economic and social insecurity”.
165 The term “religious organizations” includes parishes, congregations, theological schools,
monasteries, and other constituent parts of a church or religious group.
166 http://khpg.org/en/index.php?id=1497831415.
167 https://uawire.org/news/jehovah-s-witness-follower-in-the-crimea-dies-after- his-trial.
168 The churches in Perevalne (Simferopol district) and Sevastopol were seized while those
in Krasnoperekopsk, Kerch and Saki were closed.
169 https://ru.krymr.com/a/news/28721834.html.
170 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraphs 165 to 167.
171 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraphs 199-200.
172 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October
2014, paragraph 212.
173 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraph 159.
174 According to the International Covenant on Civil and Political Rights (Article 21) and
the European Convention on Human Rights and Fundamental Freedoms (Article 11), state
authorities have a responsibility to respect and ensure freedom of peaceful assembly,
including by protecting assemblies from attacks or disruption by third parties. Any
restrictions of this right must be proportionate to achieve a legitimate aim that is
demonstrably necessary in a democratic society.
175 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015,
paragraph 175.
176 European Court of Human Rights, Stankov and the United Macedonian Organization
Ilinden v. Bulgaria (2001), paragraph 94.
177 See A/HRC/31/66 paragraph 30, and A/HRC/23/39, paragraph 63.
178 See Amnesty International “One Year On. Violations of the right to freedom, expression
and association in Crimea”, March 2015, pp 9-14.
179 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014,
paragraphs 298 to 301 and 303.
180 Ibid. paragraph 302.
181 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October
2014, paragraph 230.
182 Ministry of Foreign Affairs of the Russian Federation, submission to UNESCO, 14 April
2015, available at: http://russianunesco.ru/eng/article/2070).
183 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraphs 165-166.
ix
184 See Fourth Report submitted by the Russian Federation pursuant to Article 25,
paragraph 2 of the Framework Convention for the Protection of National Minorities
(Received on 20 December 2016), p. 28.
185 Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion
and expression, UN Doc. CCPR/C/GC/34 (12 September 2011), paragraph 42.
186 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August
2017,paragraph 139.
187 See Amnesty International Public statement, “Crimea: Rapidly Deteriorating Human
Rights Situation in the International Blind Spot”, 17 March 2017, p. 5.
188 HRMMU interview, 29 June 2014.
189 See “The situation of national minorities in Crimea following its annexation”, European
Parliament, Policy Department, Directorate General for External Policies, 2016, p.19,
available at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578003/EXPO_STU(2016)578
003_EN.pdf.
190 Russian Federal Law “On Amending the Federal Law ‘Enacting chapter 1 of the Civil
Code of the Russian Federation’ and Article 1202(3) of the Civil Code of the Russian
Federation” (5 May 2014), available at: http://base.garant.ru/70648870/.
191 Russian Federal Law “On Amending some legal acts of the Russian Federation” (23
May 2015) and Russian Federal Law “On Introducing Amendments to Certain Legislative
Acts of the Russian Federation Regarding the Regulation of Activities of Non-Commercial
Organizations Performing the Function of Foreign Agents” (20 July 2012).
192 This number includes “autonomous non-commercial organizations”, “national-cultural
autonomies” and “non-government organizations”. See http://unro.minjust.ru/NKOs.aspx.
193 http://rgo.informjust.ua/.
194 HRMMU interview, 3-4 September 2017
195 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraph 165.
196 Ibid.
197 See law “On special aspects of regulation of property and land matters in the Republic
of Crimea” (31 July 2014), Resolution of the ‘State Council of the Republic of Crimea’
“On aspects of administration of the property of the Republic of Crimea” (30 April 2014)
with subsequent amendments. Other legal acts seeking to facilitate the process of
nationalization include the law “On the administration and disposition of state-owned
property in the Republic of Crimea” (8 August 2014), and the Resolution of the ‘State
Council of the Republic of Crimea’ “On property nationalization of agricultural
companies, institutions and organizations in the Republic of Crimea” (26 March 2014).
198 This figure is based on information collected by OHCHR from open sources.
199 In the city of Sevastopol, nationalization was conducted in accordance with a Resolution
of the Sevastopol city government “On some aspects of the nationalization of property” (28
February 2015) with subsequent amendments.
200 See Resolutions of the Sevastopol city Government “On some aspects of the
nationalization of property” No. 118-ПП, 123-ПП, 662-ПП of 28 February 2015, 28
February 2015 and 8 July 2016 respectively.
201 Articles 46 and 56, 1907 Hague Regulations.
202 Ibid. Article 55.
203 See “The Integration of Formerly Deported People in Crimea, Ukraine”; Needs
Assessment of the OSCE High Commissioner on National Minorities, August 2013, pp. 9-
15.
204 Presidential Decree No. 615/2010 proposed taking “measures, in accordance with
established procedures, for facilitating the adoption of the Concept of the State ethnox
national policy and programmes for the period until 2015 for resettlement of Crimean
Tatars, other persons deported on the ground of ethnic origin, and their descendants who
have returned or are returning to Ukraine for permanent residence, their adaptation and
integration in Ukrainian society.”
205 On 10 May 2014, the Russian Federation Minister of Crimean Affairs stated at a press
conference that the Russian authorities would deal with cases of unauthorized acquisition
of land in Crimea "with full responsibility and caution”; see OHCHR report on the human
rights situation in Ukraine, 7 May to 7 June 2014, paragraph 320.
206 Law ‘On provision of land plots which are in state or municipal property and on certain
issues of land relations’ (15 January 2015), available at
http://crimea.gov.ru/textdoc/ru/7/act/66z.pdf.
207 Resolution No. 2206 “On the demolition of illegally constructed buildings in the
municipal district of Simferopol”, adopted on 23 September 2016.
208 See Article 11(1), International Covenant on Economic, Social and Cultural Rights;
Article 17(1), International Covenant on Civil and Political Rights; Article 1, European
Convention on Human Rights and Fundamental Freedoms; and UN Committee on
Economic, Social and Cultural Rights (CESCR); General Comment No. 7: The right to
adequate housing (Art. 11.1): forced evictions, 20 May 1997, E/1998/22
209 See Resolutions 1993/77 and 2004/28 of the United Nations Commission on Human
Rights.
210 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraph 163.
211 See “Report of the Human Rights Assessment Mission on Crimea (6-18 July
2015)”,OSCE Office for Democratic Institutions and Human Rights and High
Commissioner for National Minorities, paragraph 258, 17 September 2015, available at:
http://www.osce.org/odihr/report-of-the-human-rights-assessment-mission-oncrimea?
download=true
212 See law No.1236/30-10 (4 April 2017), which regulates the use of official languages in
the spheres of education, legislation, public relations, official correspondence and daily life.
213 OHCHR report on the human rights situation in Ukraine, 15 May to 16 August 2016,
paragraphs 176-177.
214 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2016, paragraphs 167 to 169.
215 See Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of all forms of racial
discrimination (Ukraine v. Russian Federation); Request for the indication of provisional
measures, 19 April 2017, General List No. 166, paragraph 106.
216 Committee on the Elimination of Racial Discrimination, CERD/C/RUS/CO/23-24.
217 See Article 26, International Covenant on Civil and Political Rights; Articles 2 and 13,
International Covenant on Economic, Social and Cultural Rights; Article 29, Convention on
the Right of the Child; Article 5, Convention on the Elimination of All Forms of Racial
Discrimination; Article 10, Convention on the Elimination of Discrimination Against
Women ; Articles 1, 2 and 5, UNESCO Convention against Discrimination in Education;
Articles 26 and 29, International Labor Organization Convention concerning Indigenous
and Tribal Peoples in Independent Countries, No. 169.
218 See Committee on Economic, Social and Cultural Rights, General Comment No. 13,
(twenty-first session, 1999), the right to education (article 13 of the Covenant),
E/C.12/1999/10, 8 December 1999, paragraphs 51-52.
219 See Information on the Situation in the Republic of Crimea (Russian Federation) in the
Fields of UNESCO Competence, Received from Russian Competent Authorities (As of 10
October 2014); 195 EX/5.INF.5, Paris, 21 October 2014, p.14.
xi
220 See “Situation with Access to Education in the Native Language in Crimea”, Crimean
Human Rights Group, available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pd
f.
221 The university was made a part of the Crimean Federal University (CFU) as the Taurida
Academy in Crimea. Following this, the Ukrainian authorities relocated the Vernadsky
Taurida National University to mainland Ukraine, and reopened it in Kyiv on 27 September
2016.
222 See Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of all forms of racial
discrimination (Ukraine v. Russian Federation); Request for the indication of provisional
measures, 19 April 2017, General List No. 166, paragraph 106.
223 According to the Crimean Tatar NGO Maarifchi, among 1st grade children in September
2016, 825 out of approximately 20,000 were educated in the Crimean Tatar language.
224 See “Situation with Access to Education in the Native Language in Crimea”, Crimean
Human Rights Group, available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pd
f.
225 https://www.15minut.org/news/172009-sevastopolskie-vrachi-uvolnyayutsya-iz-zanizkih-
zarplat-i-vysokih-cen-na-zhile.
226 HRMMU interview, 20 December 2016.
227 This information was mentioned by the Minister of Health of Crimea in November
2016. See http://podpricelom.com.ua/en/read/social-analitics-read/minister-medicalcenters-
crimea-staffed-doctors-one-third.html.
228 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015,
paragraph 186.
229 The Committee on Economic Social and Cultural Rights expressed its concern “about
the continued ban on the medical use of methadone and buprenorphine for treatment of
drug dependence” in the Russian Federation “and the fact that the Government does not
support opioid substitution therapy (OST) and needle and syringe programmes.” See fifth
periodic report of the Russian Federation (E/C.12/RUS/5), Concluding Observations, 1
June 2011, paragraph 29.
230 In Crimea, OST was legal since 2006.
231 See “Substitution maintenance treatment in Ukraine: Humanitarian and medical
mission 16-21 May 2014”, Expert report of the Pompidou Group, P-PG/ (2014) Misc. 1rev.
232 https://www.theguardian.com/world/2015/jan/20/ukrainian-drug-addicts-dying-due-totreatment-
ban-says-un.
233http://www.rferl.org/a/crimeas-methadone-ban-hitting-rehab-patientshard/
25429665.html.
234 http://podpricelom.com.ua/en/read/social-analitics-read/increase-hiv-incidencerecorded-
crimea.html.
235 See Article 11, International Covenant on Civil and Political Rights; Articles 24(2)(c)
and 27, Convention on the Right of the Child; and Article 28, CRPD; and Article 25,
Universal Declaration of Human Rights.
236 Article 54(2), Customary International Humanitarian Law.
237 OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraph 322.
238 http://tass.ru/en/economy/749184.
239 http://tass.ru/en/russia/790555.
240 Committee on Economic, Social and Cultural Rights, General Comment No 4, The Right
to Adequate Housing (Article 11(1) of the Covenant), 13 December 1991, paragraph 8(b),
E/1992/23, Annex 3.
xii
241 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 200.
242 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The
Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990,
E/1991/23.
243 Under international human rights law, the Government remains obliged to ensure the
satisfaction of minimum essential levels of social and economic rights (e.g. primary health
care, essential food stuff, basic shelter and housing and most basic forms of education); see
Committee on Economic, Social and Cultural Rights, General Comment No. 3, ibid.
Annex 778
OHCHR, Situation of Human Rights in the Temporarily Occupied Autonomous Republic of
Crimea and the City of Sevastopol, U.N. Doc. A/HRC/36/CRP.3 (25 September 2017)
GE.17-16782(E)
Human Rights Council
Thirty-sixth session
11-29 September 2017
Agenda item 10
Technical assistance and capacity-building
Situation of human rights in the temporarily occupied
Autonomous Republic of Crimea and the city of Sevastopol
(Ukraine)*
* Reproduced as received.
A/HRC/36/CRP.3
Distr.: Restricted
25 September 2017
English only
A/HRC/36/CRP.3
2
Contents
Page
I. Executive summary....................................................................................................................... 4
II. Introduction ................................................................................................................................... 6
III. Methodology ................................................................................................................................. 8
IV. Application of international law.................................................................................................... 9
1. International human rights law ............................................................................................. 9
2. International humanitarian law ............................................................................................. 9
V. Population data and movements.................................................................................................... 10
VI. Civil and Political Rights .............................................................................................................. 11
A. Right to nationality ............................................................................................................... 11
1. Ukrainian citizens having Crimean residency registration who rejected Russian Federation
citizenship..................................................................................................................... 11
2. Ukrainian citizens without Crimean residency registration who are excluded from Russian
Federation citizenship................................................................................................... 12
3. Ukrainian citizens who were made to renounce Ukrainian citizenship........................ 13
B. Administration of justice and fair trial rights........................................................................ 13
C. Right to life........................................................................................................................... 14
D. Right to physical and mental integrity .................................................................................. 15
E. Right to liberty and security.................................................................................................. 16
1. Arbitrary arrests and detentions ................................................................................. 16
2. Enforced disappearances ........................................................................................... 17
F. Right to private and family life............................................................................................. 18
G. Rights of detainees................................................................................................................ 19
1. Violations of the rights of prisoners in Crimea ............................................................ 19
2. Transfer of prisoners to the Russian Federation........................................................... 19
H. Forced enlistment ................................................................................................................. 20
I. Freedom of movement .......................................................................................................... 20
1. Restrictions imposed by the Russian Federation.......................................................... 21
2. Restrictions imposed by Ukraine.................................................................................. 21
J. Freedom of thought, conscience and religion ....................................................................... 22
K. Freedom of peaceful assembly ............................................................................................. 24
L. Freedom of opinion and expression...................................................................................... 25
M. Freedom of association ......................................................................................................... 26
VII. Economic, Social and Cultural Rights .......................................................................................... 27
A. Property rights ...................................................................................................................... 27
A/HRC/36/CRP.3
3
1. Nationalization of property .......................................................................................... 27
2. Housing, land and property of formerly deported people............................................. 28
B. Right to maintain one’s identity, culture and tradition ......................................................... 29
1. Limitations of the right of Ukrainians and Crimean Tatars to express their
culture and identity....................................................................................................... 29
2. The ban of the Mejlis.................................................................................................... 30
C. Right to education in one’s native language ......................................................................... 31
D. Right to health....................................................................................................................... 32
1. Medical staff deficit in public hospitals ....................................................................... 32
2. Impaired treatment of drug users.................................................................................. 32
E. Access to water and other essential services......................................................................... 33
VIII. Conclusions and Recommendations ............................................................................................. 34
IX. End notes ...................................................................................................................................... 38
A/HRC/36/CRP.3
4
I. Executive Summary
1. On 14 March 2014, following a request of the Government of Ukraine addressed to
the United Nations Secretary-General to establish a human rights mission in Ukraine, the
Office of the United Nations High Commissioner for Human Rights (OHCHR) deployed a
Human Rights Monitoring Mission in Ukraine (HRMMU). Since then, HRMMU has been
collecting and analyzing information on the human rights situation throughout Ukraine,
including in the Autonomous Republic of Crimea and the city of Sevastopol1 on the basis
of United Nations General Assembly resolutions 68/262, reaffirming the territorial integrity
of Ukraine and 71/205 referring to the Crimean peninsula as Ukrainian territory temporarily
occupied2 by the Russian Federation. According to the Constitution of Ukraine, Crimea and
the city of Sevastopol are separate administrative units of the Crimean peninsula having
their own governing institutions.
2. The present report was developed based on the mandate of OHCHR and HRMMU,
but also following a request by General Assembly resolution 71/2053 on the “Situation of
human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)”
for a dedicated thematic report of OHCHR on the “situation of human rights in the
temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol”. The
report covers the period from 22 February 2014 to 12 September 2017. HRMMU has not
been provided access to Crimea by Russian Federation authorities since its former Head of
Mission accompanied the former Assistant Secretary-General for Human Rights, Ivan
-22 March 2014. As a result, it has been monitoring human rights
developments in Crimea from mainland Ukraine.
3. Pro-Russian groups in Crimea rejected the ousting by Parliament of former
President of Ukraine Viktor Yanukovych on 22 February 2014, criticizing it as an
unconstitutional change of power. One of these groups was the ‘people’s militia’, a local
paramilitary formation created on 23 February 2014, and commonly referred to as the
‘Crimean self-defence’.4 With the support of Russian Federation troops5, the Crimean selfdefence
blocked key infrastructure, airports and military installations and took control of
strategic facilities. It has been accused of committing numerous human rights abuses with
impunity since the end of February 2014.
4. The President of the Russian Federation Vladimir Putin stated that in a meeting with
heads of security agencies during the night of 22 and 23 February 2014 he took the decision
to “start working on the return of Crimea to the Russian Federation”.6
5. On 27 February 2014, uniformed men without insignia took control of the
Parliament of Crimea. On the same day, the Parliament of Crimea dismissed the
Government of Crimea. On 11 March 2014, the Parliaments of Crimea and Sevastopol
adopted a joint Declaration of Independence stating that Crimea and Sevastopol will unite
to form an independent state - the ”Republic of Crimea” - and seek integration into the
Russian Federation if Crimean residents choose to join the Russian Federation at a
referendum scheduled for 16 March.7 According to the pro-Russian authorities in Crimea, a
large majority of voters backed Crimea’s “incorporation” into the Russian Federation. The
referendum was declared invalid by the Government of Ukraine and the United Nations
General Assembly. The United Nations Secretary-General Ban-Ki Moon expressed “deep
concern and disappointment”, adding that the referendum would only exacerbate an
“already complex and tense situation”.8 Subsequently, the Russian Federation and the
“Republic of Crimea” signed on 18 March 2014 a “treaty of accession” effectively
annexing the peninsula into the Russian Federation.
6. One consequence of this development was the imposition of Russian Federation
citizenship on residents of Crimea. This has resulted in regressive effects on the enjoyment
A/HRC/36/CRP.3
5
of human rights, particularly for those who refused to automatically adopt Russian
Federation citizenship, were ineligible to obtain it, or were required to forfeit their
Ukrainian citizenship in order to remain employed.
7. Since the beginning of occupation, Ukrainian laws were substituted by Russian
Federation laws, in violation of the obligation under international humanitarian law to
respect the existing law of the occupied territory.9 Among other implications, this led to the
arbitrary implementation of Russian Federation criminal law provisions designed to fight
terrorism, extremism and separatism, which have restricted the right to liberty and security
of the person and the space for the enjoyment of fundamental freedoms.
8. Laws and judicial decisions deriving from the implementation of the legal
framework of the Russian Federation in Crimea have further undermined the exercise of
fundamental freedoms. Mandatory re-registration requirements were imposed on NGOs,
media outlets and religious communities in Crimea. Russian Federation authorities have
denied a number of them the right to re-register, generally on procedural grounds, raising
concerns about the use of legal norms and procedures to silence dissent or criticism.
9. Most affected by these restrictions were individuals opposed to the March 2014
referendum or criticizing Russian Federation control of Crimea, such as journalists,
bloggers, supporters of the Mejlis,10 pro-Ukrainian and Maidan activists, as well as persons
with no declared political affiliation but advocating strict compliance with the tenets of
Islam, who are often accused of belonging to extremist groups banned in the Russian
Federation, such as Hizb ut-Tahrir. The rights of these people to freedom of opinion and
expression, association, peaceful assembly, movement, thought, conscience and religion,
were obstructed through acts of intimidation, pressure, physical attacks, warnings as well as
harassment through judicial measures, including prohibitions, house searches, detentions
and sanctions.
10. Russian Federation justice system applied in Crimea often failed to uphold fair trial
rights and due process guarantees. Court decisions have confirmed actions, decisions and
requests of investigating or prosecuting bodies, seemingly without proper judicial
oversight. Courts frequently ignored credible claims of human rights violations occurring in
detention. Judges have applied Russian Federation criminal law provisions to a wide variety
of peaceful assemblies, speech and activities, and in some cases retroactively to events that
preceded the temporary occupation of Crimea or occurred outside of the peninsula in
mainland Ukraine.
11. Grave human rights violations, such as arbitrary arrests and detentions, enforced
disappearances, ill-treatment and torture, and at least one extra-judicial execution were
documented. For a three-week period following the overthrow of Ukrainian authorities in
Crimea, human rights abuses occurring on the peninsula were attributed to members of the
Crimean self-defence and various Cossack groups. Following Crimea’s temporary
occupation, on 18 March 2014, representatives of the Crimean Federal Security Service of
the Russian Federation (FSB) and police were more frequently mentioned as perpetrators.
12. While those human rights violations and abuses have affected Crimean residents of
diverse ethnic backgrounds, Crimean Tatars were particularly targeted especially those with
links to the Mejlis, which boycotted the March 2014 referendum and initiated public
protests in favour of Crimea remaining a part of Ukraine. Intrusive law enforcement raids
of private properties have also disproportionately affected the Crimean Tatars and
interfered with their right to privacy under the justification of fighting extremism.
Furthermore, the ban of the Mejlis, imposed in April 2016 by the Supreme Court of
Crimea, has infringed on the civil, political and cultural rights of Crimean Tatars.
13. The Russian Federation authorities in Crimea have failed to effectively investigate
most allegations of human rights violations committed by the security forces or armed
A/HRC/36/CRP.3
6
groups acting under the direction or control of the State. Failure to prosecute these acts and
ensure accountability has denied victims proper remedy and strengthened impunity,
potentially encouraging the continued perpetration of human rights violations.
14. Since the beginning of the temporary occupation, all penitentiary institutions in
Crimea have been integrated into the penitentiary system of the Russian Federation, leading
to numerous transfers of detainees from Crimea to penal colonies in the Russian Federation,
contrary to provisions of international humanitarian law.11
15. Restrictions affecting freedom of movement to and from Crimea have been imposed
by the Russian Federation and Ukraine on the grounds of security or pursuant to
immigration rules. They include five-year exiles, deportations, prohibitions on entry of
individuals and public transportation, non-recognition of documents, and restrictive
regulations applicable to travel of children and transportation of personal belongings.
16. Large scale expropriation of public and private property has been conducted without
compensation or regard for international humanitarian law provisions protecting property
from seizures or destruction. Crimean Tatars who returned from deportation in the 1990s
and built their houses on land plots without obtaining construction permits remain at risk of
seeing their security of tenure contested and being forcibly evicted.
17. The space for public manifestation of Ukrainian culture and identity has shrunk
significantly. Groups manifesting their attachment to national symbols, dates or historic
figures have been issued warnings or sanctioned by courts for violating public order or
conducting unauthorized rallies. Education in the Ukrainian language has almost
disappeared from Crimea, jeopardizing one of the pillars of an individual’s identity and
cultural affiliation.
18. The availability of health services in free-of-charge State medical institutions has
been impaired since March 2014 due to the numerous departures of doctors and other
medical staff to more lucrative private sector institutions in Crimea. This has resulted in
delayed treatment of the most economically disadvantaged, jeopardizing their right to life
and health. Retrogressive measures stemming from the implementation of Russian
Federation legislation have affected people suffering from drug dependence.
19. The right of the Crimean population to an adequate standard of living has been
affected by measures taken by Ukrainian authorities or implemented on mainland Ukraine,
including the interruption of water and energy supplies to the peninsula. Under international
humanitarian law, the Russian Federation as the occupying power is obliged to ensure to
the fullest extent of the means available to it sufficient hygiene and public health standards,
as well as the provision of food and medical care to the population. At the same time, this
does not exonerate Ukraine from its obligations under the International Covenant on
Economic, Social and Cultural Rights not to interfere with the enjoyment of the rights it
enshrines, and from respecting the requirement under international humanitarian law to
ensure that the basic needs of the population continue to be met under conditions of
occupation.
II. Introduction
20. The political events that marked the Maidan protests in Kyiv, and culminated in the
departure, on 21 February 2014, of then President of Ukraine Viktor Yanukovych and the
establishment of an interim Government of Ukraine on 23 February, affected Crimea. The
Crimean peninsula had also been the theatre of pro- and larger anti-Maidan rallies since
December 2013. 12
A/HRC/36/CRP.3
7
21. The President of the Russian Federation Vladimir Putin stated that in a meeting with
heads of security agencies during the night of 22 and 23 February 2014 he took the decision
to “start working on the return of Crimea to the Russian Federation”.13
22. On 23 February 2014, demonstrations in Sevastopol led to the resignation of the
Kyiv-appointed authorities and the installation by the local parliament of a pro-Russian
“People’s Mayor” on 24 February.14
23. In Simferopol, the capital of the Autonomous Republic of Crimea, supporters of
Ukrainian unity, mainly Crimean Tatars, clashed on 26 February with pro-Russian residents
in front of the parliament. A stampede left two people dead and some 70 injured. On the
following night, armed groups without insignia took over the buildings of the local
government and parliament. On 27 February, members of the Parliament of Crimea, in the
presence of gunmen, dismissed the local Government and elected Sergey Aksenov as the
Head of Crimea. 15
24. On 6 March 2014, the Parliament of Crimea adopted a resolution calling for a
referendum16 on the status of the peninsula, to be held on 16 March 2014, basing the
decision on the “absence of legitimate State organs in Ukraine”.17 In an Opinion18
concerning the compatibility of this resolution with constitutional principles, the European
Commission for Democracy through Law (Venice Commission) of the Council of Europe
noted that the referendum violated the Constitution of Ukraine, and asserted that
circumstances in Crimea did not allow for a referendum to be held in line with European
democratic standards.19 On 17 March 2014, United Nations Secretary-General Ban-Ki
Moon regretted that the referendum would only exacerbate an “already complex and tense
situation”20. Furthermore, during his mission to Crimea on 21 and 22 March 2014, former
UN Assistant Secretary- received information on
alleged cases of non-Ukrainian citizens participating in the referendum, as well as
individuals voting numerous times in different locations. 21
25. According to the pro-Russian authorities in Crimea, an overwhelming majority of
the Crimean population voted in favour of joining the Russian Federation. Opponents
boycotted the poll, considering it as unlawful.22 The authorities of Ukraine declared these
developments unconstitutional and terminated the powers of Crimean institutions.23
26. On 18 March 2014 a “Treaty on the Accession of the Republic of Crimea to the
Russian Federation” (“Treaty on Accession”) was signed in Moscow, and on 21 March
2014, the Parliament of the Russian Federation ratified a Constitutional Law “On the
Accession of the Republic of Crimea to the Russian Federation and the Creation of the New
Constituent Entities of the Republic of Crimea and the City of Federal Importance
Sevastopol within the Russian Federation”.
27. On 15 April 2014, the Parliament of Ukraine passed a law designed to regulate legal
aspects related to the temporary occupation of Crimea.24 It defines principles applying to
legal and property rights, economic activity, social rights and benefits, freedom of
movement, and compensation for damages incurred from the temporary occupation.
28. The General Assembly of the United Nations adopted two resolutions on Crimea.
Resolution 68/26225 on the “Territorial integrity of Ukraine” of 27 March 2014 states that
the March 2014 referendum has “no validity” and cannot form the basis for any alteration
of the status of Crimea. Resolution 71/205 on the “Situation of human rights in the
Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)”, adopted on 19
December 201626, refers to Crimea as being under the “temporary occupation” of the
Russian Federation. It calls on the latter to abide by the Geneva Conventions. It also urges
the Russian Federation to ensure proper and unimpeded access of international human
rights monitoring missions and human rights non-governmental organizations (NGOs) to
the peninsula, and requests the United Nations Secretary-General to seek ways and means
A/HRC/36/CRP.3
8
to ensure safe and unfettered access to Crimea by established regional and international
human rights monitoring mechanisms. In addition, it requests the Office of the United
Nations High Commissioner for Human Rights (OHCHR) to prepare a dedicated thematic
report on the human rights situation in Crimea.
29. The present report was developed pursuant to General Assembly Resolution 71/205,
and covers the period between 22 February 2014 and 12 September 2017. Since the
adoption of this resolution, OHCHR has been analyzing incidents occurring in Crimea
based on an international humanitarian law framework, as well as against international
human rights standards.
III. Methodology
30. HRMMU has a mandate inter alia to monitor and publicly report on the human
rights situation in Ukraine through teams based in various locations, including through a
presence in Crimea’s capital, Simferopol.27
31. Former Assistant Secretary-
United Nations official to visit the Crimean peninsula, on 21 and 22 March 2014.28
32. On 18 September 2014, a letter addressed by HRMMU to the Head of Crimea
requested the opportunity to establish a sub-office in Simferopol, in line with its mandate
and General Assembly resolution 68/262. The response, received on 8 October 2014, stated
that HRMMU had been deployed on the territory of Ukraine upon the invitation of the
Government of Ukraine; that Crimea was part of the Russian Federation; and that questions
of international relations were not within the competence of Crimean institutions.
33. On 20 April 2017, following consultations with the Government of Ukraine,
OHCHR informed the Government of the Russian Federation of its intention to send a
mission of HRMMU to Crimea in order to prepare the report on the human rights situation
in Crimea requested by General Assembly resolution 71/205. While no formal response
was received, OHCHR was notified informally that it would not be granted access to
Crimea due to its mandate covering Ukraine and that any OHCHR mission would need to
be agreed upon directly with the Russian Federation authorities. A second notification
mentioning an OHCHR mission to Crimea, addressed to the Russian Federation on 13 June
2017, remained unanswered at the closing date of the present report.
34. In response, the Government of Ukraine, in its Notes Verbales of 30 March 2017, 19
July 2017, 28 July 2017 and 7 September 2017, reaffirmed its position on the need to
ensure safe and unfettered access to the Autonomous Republic of Crimea and the city of
Sevastopol by established regional and international human rights monitoring mechanisms
to enable them to carry out their mandate, expressed its readiness to provide HRMMU with
full freedom of movement throughout Ukraine, and confirmed its strong commitment to
properly implement resolution 71/205 of the United Nations General Assembly.
35. Given the lack of access to Crimea, HRMMU has monitored the human rights
situation in the peninsula from its presence in mainland Ukraine. HRMMU systematically
collects and analyzes information gathered through direct interviews and fact-finding
missions, including at the Administrative Boundary Line (ABL) between mainland Ukraine
and Crimea. This report only describes allegations of human rights violations and abuses
and violations of international humanitarian law that OHCHR could verify and corroborate
in accordance with its methodology. OHCHR is committed to the protection of its sources
and systematically assesses the potential risks of harm and retaliation against them.29
A/HRC/36/CRP.3
9
IV. Application of International Law
36. International human rights and humanitarian law are complementary bodies of
international law. In the case of occupation, humanitarian law and human rights law apply
concurrently and place protection obligations both on the occupying power and the State
whose territory is under occupation.
1. International Human Rights Law
37. Human rights are guaranteed by international treaties and agreements, as well as
customary law, which apply at all times, regardless of peace or war.
38. Under international law, the Russian Federation must respect its obligations under
international human rights law in Crimea from the moment it acquired “effective control”
over the territory.30
39. Ukraine considers that the occupation of Crimea started on 20 February 201431 and
denies having human rights obligations in relation to this territory from the moment it lost
effective control over the peninsula. On 14 May 2015, the Parliament of Ukraine adopted a
Declaration on Derogation32 stating that the Russian Federation “shall bear full
responsibility for observance of human rights and performance of the respective
international obligations at the annexed and temporarily occupied territory.”
40. On 19 April 2017, the Government of Ukraine established an Intergovernmental
Commission on derogation in order to review periodically the territorial application of the
derogation. Its mandate includes the review of the necessity and proportionality of
derogation measures and making proposals to the Government on the continuation and
scope of the derogation.
41. OHCHR notes that States are allowed, in exceptional circumstances, namely in
times of public emergency threatening the life of the nation, to adjust their obligations
temporally under a treaty. However, under the International Covenant on Civil and Political
Rights, States have a continuing obligation to ensure respect for the rights recognized in the
Covenant in relation to the population of a territory controlled by de facto authorities or
armed groups within the limits of their effective power.33 Similarly, under the case law of
the European Court of Human Rights, a State that has lost effective control over a part of its
territory is nevertheless obliged under Article 1 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms to use all the legal and diplomatic
means available to continue to guarantee the enjoyment of the rights and freedoms defined
in the Convention to those living there, as the region is recognized under public
international law as part of its territory.34
2. International Humanitarian Law
42. Both the Russian Federation and Ukraine are parties to the 1907 Hague Regulations,
the Fourth Geneva Convention of 1949, and the 1977 Additional Protocol I to the 1949
Geneva Conventions. This body of international law provides the primary basis for rules
governing occupation. The legal regime of an occupied territory is also regulated by
international customary law.
43. An occupying power does not acquire sovereignty over the occupied territory. The
occupying power must respect the laws in force in the occupied territory, unless they
constitute a threat to its security or an obstacle to the application of the Fourth Geneva
Convention.35
44. Under international law, States are responsible for violations of international
humanitarian law attributable to them, including: violations committed by their organs,
A/HRC/36/CRP.3
10
including their armed forces; violations committed by persons or entities they have
empowered to exercise elements of governmental authority; violations committed by
persons or groups acting in fact on their instructions, or under their direction or control; and
violations committed by private persons or groups which they acknowledge and adopt as
their own.36
45. In 2016, the Office of the Prosecutor of the International Criminal Court found
Crimea to be under the occupation of the Russian Federation and stated it will apply an
international armed conflict legal framework to the analysis of facts and alleged crimes
perpetrated there.37
V. Population data and movements
46. According to the last census conducted in Ukraine, in 2001, 125 nationalities lived
on the Crimean peninsula, which had a population of 2,401,209 (2,024,056 in Crimea and
377,153 in Sevastopol).38 The census enumerated the population by ethnicity, finding the
largest national groups in Crimea and Sevastopol to be Russians, numbering 1,450,394
(60.40 per cent); Ukrainians 576,647 (24.12 per cent); and Crimean Tatars 245,291 (12.26
per cent).
47. There were also 35,157 Belarussians; 13,602 Tatars; 10,088 Armenians; 5,531 Jews;
4,562 Moldovans; 4,459 Poles; 4,377 Azeri; 3,087 Uzbeks; 3,036 Greeks; 3,027 Koreans;
2,790 Germans; 2,679 Chuvash; 2,594 Mordovians; 2,282 Bulgarians 2,137 Georgians;
1,905 Roma; and 1,192 Maris. In addition, 17,298 persons did not declare themselves or
belonged to ethnic groups numbering less than 1,000 individuals.
48. In September 2014, the Russian Federation conducted a census on the peninsula,
which was not recognized by the Government of Ukraine.39 According to its results, the
population of Crimea and Sevastopol had decreased by 4.8 per cent since 2001, down to
2,284,769, albeit with differences between the two administrative units: in Crimea, the
population decreased by 6.5 per cent, to 1,891,465, while that of Sevastopol grew by 4.1
per cent, to 393,304.
49. According to that same census, in the entire peninsula, the number of persons of
Russian nationality increased to 1,492,078 (65.31 per cent), the Ukrainians dropped to
344,515 (15.08 per cent) and the Crimean Tatars decreased to 232,340 (10.17 per cent). The
other communities diminished, except for the Tatars - a group culturally affiliated with the
Volga Tatars and the Crimean Tatars - whose numbers rose from 13,602 to 44,996.
50. Since the beginning of the occupation, the displacement of residents of Crimea -
mostly ethnic Ukrainians and Crimean Tatars - had multiple causes, notably the refusal to
live under Russian Federation jurisdiction, fear of persecution on ethnic or religious
grounds, threats or reported attacks, avoiding military conscription in the Russian
Federation army and enrolling in Ukrainian education institutions.
51. In April 2017, the State Emergency Service of Ukraine estimated the number of
internally displaced persons (IDPs) from Crimea living in mainland Ukraine at 22,822.40
Ukrainian NGOs estimate that between 50,000 and 60,000 former Crimean residents could
be displaced in mainland Ukraine.41
52. The demographic structure of Crimea continues to change, mainly as a result of a
continuous influx of Russian Federation citizens into Crimea, which started after the 2014
referendum. Most of them are pensioners, public servants and servicemen with their
families. Around 13,200 IDPs fleeing the conflict in eastern Ukraine had taken refuge in
Crimea at the end of 2014.42
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11
53. According to the State Statistics Service of the Russian Federation, as of 1 January
2017, the population of the Crimean peninsula had increased by 56,152 since the September
2014 census, to 2,340,921.43 During this period, the population of the city of Sevastopol,
where the Black Sea Fleet is based, rose from 393,304 to 428,753, which constitutes an
eight per cent increase.
54. OHCHR recalls that the 1949 Geneva Convention relative to the Protection on
Civilian Persons in Time of War provides in Article 49 that “The Occupying Power shall
not deport or transfer parts of its own civilian population into the territory it occupies”.
VI. Civil and Political Rights
A. Right to nationality
55. The adoption of the Treaty on Accession on 18 March 2014 had an immediate
consequence for the status of residents of Crimea and rights attached to it: all Ukrainian
citizens and stateless persons who were permanently residing on the peninsula, as
evidenced by a residency registration stamp in the passport, were automatically recognized
as citizens of the Russian Federation.44 An exception was made for persons who, within one
month of the entry into force of the treaty (i.e. by 18 April 2014), rejected Russian
Federation citizenship in writing.
56. The automatic citizenship rule led to the emergence of three vulnerable groups:
those who rejected in writing Russian Federation citizenship; those who, for lack of a
residency registration in Crimea, did not meet the legal criteria to become Russian
Federation citizens; and those who had to renounce their Ukrainian citizenship to keep their
employment. As of May 2015, the High Commissioner for Human Rights of the Russian
Federation (Ombudsperson) estimated that around 100,000 persons living in Crimea (about
4 per cent of the population) did not have Russian Federation citizenship.45
57. Imposing citizenship on the inhabitants of an occupied territory can be equated to
compelling them to swear allegiance to a power they may consider as hostile, which is
forbidden under the Fourth Geneva Convention.46 In addition to being in violation of
international humanitarian law, the automatic citizenship rule raises a number of important
concerns under international human rights law.
1. Ukrainian citizens having Crimean residency registration who rejected Russian
Federation citizenship
58. The procedure for rejecting Russian Federation citizenship, which had to be
completed by 18 April 2014, was marked by certain constraints: instructions from the
Russian Federal Migration Service (FMS) on the refusal procedure were only made
available on 1 April; information about FMS centres was not available until 4 April; only
two FMS centres were functioning on 9 April 2014; and some requirements in the
procedure evolved over time, such as the demand that both parents make the application on
behalf of their child.47
59. After 18 April 2014, FMS reported that 3,427 permanent residents of Crimea had
applied to opt out of automatically obtaining Russian Federation citizenship.48
60. Renouncing Russian Federation citizenship remains legally possible on the basis of
the 2002 law On Citizenship, except for people who were indicted, sentenced, have
outstanding obligations towards the Russian Federation, or have no other citizenship or
guarantee for the acquisition thereof.49
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12
61. Residents of Crimea who opted out of Russian Federation citizenship became
foreigners. They could obtain residency permits through a simplified procedure, giving
them certain rights enjoyed by Russian Federation citizens, such as the right to pension,
free health insurance, social allowances, and the right to exercise professions for which
Russian Federation citizenship is not a mandatory requirement.50
62. However, overall, persons holding a residency permit and no Russian Federation
citizenship do not enjoy equality before the law and are deprived of important rights. They
cannot own agricultural land,51 vote and be elected, register a religious community, apply
to hold a public meeting, hold positions in the public administration and re-register their
private vehicle on the peninsula.52
63. OHCHR documented some cases of Crimean residents who had rejected Russian
Federation citizenship and faced discrimination. For instance, a man from Simferopol was
subjected to regular psychological harassment by his employer for having renounced
Russian Federation citizenship. In 2016, after two years of being pushed by his employer to
take back his formal rejection of Russian Federation citizenship, he was dismissed after
being told that his “anti-Russian” position disqualified him from continued employment.53
Two of his colleagues were also dismissed, including one who rejected Russian Federation
citizenship, and another who took up Russian Federation citizenship but publicly expressed
pro-Ukrainian views.
2. Ukrainian citizens without Crimean residency registration who are excluded from
Russian Federation citizenship
64. Ukrainian citizens living in Crimea whose passport stamps indicated they were
registered in mainland Ukraine could not become citizens of the Russian Federation. They
assumed the status of a foreigner. As such, they could no longer legally remain in Crimea
for more than 90 days within a period of 180 days from the moment they entered the
peninsula, according to Russian Federation legislation applicable to foreigners.
65. Non-compliance with immigration regulations imposed by the Russian Federation
can lead to court-ordered deportations. For instance, in 2016, a court in Sevastopol ordered
a Ukrainian citizen who had overstayed to be deported to mainland Ukraine although he
owned property in this city54; another court deported a Ukrainian citizen who had a wife
and children in Crimea.55
66. Under international humanitarian law, deportation or transfer of protected persons
from occupied territory to the territory of the occupying power or to that of any other
country, occupied or not, is prohibited regardless of the motive.56
67. Rules regulating stay were not consistently applied, sometimes favoring individuals
who supported Crimea’s accession to the Russian Federation. For example, the Supreme
Court of Crimea ruled not to deport a Ukrainian citizen who described himself as “an active
participant of the Russian Spring in Sevastopol” and claimed his deportation to Ukraine
would threaten his life and well-being.57 The Court accepted the argument that he had a
family in Crimea and that his deportation would interfere with his private and family life.
68. Employment of Ukrainian citizens lacking Crimean residency registration is
prohibited. A quota system under Russian Federation law allows up to 5,000 foreigners to
reside and work in Crimea but this only applies to foreigners with non-Ukrainian passports
who were living in Crimea before March 2014 and held Ukrainian residence permits.58
69. In 2016, police raids against private businesses were conducted, resulting in the
opening of administrative proceedings against owners of catering institutions59 and private
entrepreneurs60 who were illegally employing Ukrainian citizens. People illegally
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13
employed risk deportation and their employers face administrative sanctions of up to
800,000 RUB (nearly USD 13,200) or closure of their business for up to 90 days.
70. Ukrainian citizens without residency registration in Crimea are excluded from free
health insurance and access to public hospitals. In one case documented by OHCHR, a
Ukrainian woman who had lived in Crimea for 10 years, but was registered in Kharkiv,
died in 2015 after a public hospital in Crimea refused to treat her due to the fact that she did
not have health insurance.61 According to Russian Federation legislation, she was a
foreigner and, as such, she did not have a Russian Federation passport affording the right to
free health insurance and access to public hospitals. The refusal to provide life-saving
medical treatment - including due to origin or status, such as citizenship - constitutes a
grave violation of the right to the highest attainable level of physical and mental health, and
a violation of the obligation, under international humanitarian law, to ensure that the health
system in place in an occupied territory continues to function adequately.
3. Ukrainian citizens who were made to renounce Ukrainian citizenship
71. Russian Federation law does not require Ukrainian citizens who apply for Russian
Federation citizenship to surrender their Ukrainian passports or relinquish their Ukrainian
citizenship. However, residents of Crimea who were employed in government and
municipal jobs before the referendum were obliged by law to give up their Ukrainian
citizenship no later than 18 April 2014, in addition to obtaining a passport of the Russian
Federation if they wanted to retain their employment.62 A law adopted by the Parliament of
Crimea further required them to possess “a copy of the document confirming denial of
existing citizenship of another State and the surrender of a passport of another State.”63
72. Before the Russian Federation occupied Crimea, 20,384 civil servants were
employed on the peninsula.64 According to the head of the FMS department for citizenship,
asylum and readmission in Crimea, as of 21 May 2015, 19,000 Crimean residents had
applied to renounce Ukrainian citizenship.65 While no information is provided about their
identity or profession, it is likely that civil servants constitute the bulk of this group. This is
contrary to the Fourth Geneva Convention, which prohibits an occupying power from
altering the status of public officials in the territories it occupies.66
B. Administration of justice and fair trial rights
73. The Treaty on Accession provided for a transition period until 1 January 2015 to
fully apply the legal framework of the Russian Federation in Crimea.67 In practice, the
gradual substitution of the Ukrainian legal system by that of the Russian Federation implied
that both systems coexisted, regulating different spheres and consequently causing
confusion for legal practitioners as well as legal uncertainty for rights-holders.68
74. OHCHR recalls that in accordance with international humanitarian law, the penal
laws in place in the occupied territory must remain in force and be applied by courts, with
the exception of norms that constitute a threat to the security of the occupying power, or an
obstacle to the application of relevant international humanitarian law provisions.69
75. As documented by OHCHR, the judicial and law enforcement authorities of the
Russian Federation in Crimea frequently violated the presumption of innocence; the right to
information without delay of the nature and cause of charge; the right to defend oneself or
be assisted by a lawyer of one’s own choice; the right to adequate time to prepare defence;
the right to trial without undue delay; the right to appeal or review; the right to a hearing by
an independent and impartial tribunal; and the right not to be compelled to testify against
oneself or confess guilt.
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14
76. OHCHR documented cases demonstrating that allegations of torture and illtreatment
in post-referendum Crimea committed by State agents of the Russian Federation
during pre-trial investigations were often disregarded by courts. For instance, in March
2015, a court rejected the request of a defence lawyer to exclude evidence against his client
reportedly obtained under duress. The judge stated that torture allegations should be
examined together with other elements in order not to compromise the establishment of
facts and responsibility.70
77. Suspects were charged and some convicted in relation to acts which occurred before
the application of Russian Federation legislation in Crimea, in disregard of the principle of
non-retroactive application of criminal law enshrined in international human rights and
humanitarian law treaties.71 On 11 September 2017, a court in Crimea sentenced a deputy
chair of the Mejlis, Akhtem Chyigoz, to eight years of imprisonment on the basis of
Russian Federation legislation, after it found the accused guilty of organizing mass protests,
which were held on 26 February 2014 when the legal framework of Ukraine still applied in
Crimea. In addition, two individuals received prison sentences in 2015 and 2016 for
allegedly injuring ’Berkut’ police officers during the Maidan protests in Kyiv, on 18
February 2014.72 Their convictions were based on Russian Federation legislation introduced
in Crimea after 18 March 2014.
78. Some judgments were passed in apparent disregard of the right to a hearing by a
competent, independent and impartial tribunal. In 2017, 10 Crimean Tatars arrested for
filming a police raid of the home of another Crimean Tatar man were judged in one day and
sentenced to five days of administrative arrest. No representatives of the prosecution were
present; two men were convicted in the absence of lawyers; and in at least one proceeding,
the judge ignored the public retraction of a witness statement supporting the claim that the
individuals were breaching public order and freedom of movement.73
79. Instances of intimidation of defence lawyers representing clients opposed to the
presence of the Russian Federation in Crimea have also been reported. On 25 January 2017,
a lawyer from the Russian Federation defending one of the deputy chairmen of the Mejlis
was forcefully brought to the FSB office in Simferopol for interrogation and asked to
disclose details of the case concerning his client. Despite being pressed to cooperate, he
refused, invoking his duty to uphold the attorney-client privilege, and was released after
two and a half hours. On 14 February 2017, an appellate court upheld a first instance
decision to enable the FSB investigator to interrogate him as a witness in a criminal case
against one of his clients.74 OHCHR reiterates that international administration of justice
standards explicitly protect the freedom of exercise of the profession of lawyer.75
C. Right to life
80. In February, March and April 2014, four persons were killed and two others died, as
described in this chapter, during incidents related to Crimea’s unrecognized accession to the
Russian Federation. While other deaths, including murders, have occurred in Crimea in the
three and a half years since the occupation began, OHCHR does not have credible
circumstantial evidence that they could be attributed to State agents of the Russian
Federation in Crimea.
81. In March 2014, a pro-Ukrainian Crimean Tatar activist, Mr. Reshat Ametov, was
abducted, tortured and summarily executed by people believed to be members of the
Crimean self-defence. He disappeared on 3 March after staging a one-man picket in front of
Crimea’s government building in Simferopol. Video footage shows him being led away by
three men in military-style jackets. On 15 March, his body was found in a village of the
Bilohirsk district, bearing signs of torture.76 The Crimean police opened a criminal
investigation. As of December 2014, more than 270 witnesses had been interrogated and
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15
over 50 forensic analyses and 50 examinations had been carried out.77 OHCHR has serious
doubts about the effectiveness of these investigations. The suspects, members of the
Crimean self-defence, who were filmed abducting the victim, were only interrogated as
witnesses and later released. In 2015, the investigation was suspended due to the fact that
the individual suspected by the police to be the perpetrator was allegedly no longer in
Crimea.78 It resumed in 2016 but has since been conducted intermittently.79
82. Three killings occurred during armed incidents. On 18 March 2014, one Ukrainian
serviceman and one Crimean self-defence volunteer were killed during a shooting incident
in Simferopol.80 OHCHR does not have information about the investigation conducted in
relation to this case. On 6 April 2014, a Ukrainian Army naval officer was killed by a
Russian Federation serviceman in a dormitory in Novofedorivka.81 A Russian Federation
military tribunal in Crimea sentenced the perpetrator to two years of imprisonment on 13
March 2015. The accused was convicted of homicide committed in excess of the
requirements of justifiable defence. In addition, the victim’s widow sued and obtained from
the Ministry of Defence of the Russian Federation 500,000 RUB (about USD 8,000) in
compensation for the harm incurred.82
83. The impartiality of investigations carried out by the Crimean police is particularly
questionable in relation to the violence that occurred on 26 February 2014. On that date,
pro-Ukrainian and pro-Russian groups clashed in front of the parliament of Crimea,
resulting in the death of two pro-Russian demonstrators.83 The criminal proceedings
identified pro-Ukrainian supporters belonging to the Crimean Tatar community as being the
only suspects although the skirmishes involved representatives of pro-Russian groups as
well.84
D. Right to physical and mental integrity
84. The right to physical and mental integrity encompasses freedom from torture and
other inhuman treatment. The Russian Federation and Ukraine have both ratified
international conventions obliging them to prevent and redress torture, cruel and/or
inhuman or degrading treatment.85
85. Multiple and grave violations of the right to physical and mental integrity have been
committed by state agents of the Russian Federation in Crimea since 2014. The absence of
investigations suggests that their perpetrators have benefited from and continue to enjoy
impunity.
86. Victims and witnesses have accused the Crimean self-defence of violence against
pro-Ukrainian activists, mainly in 2014. Its members have reportedly been implicated in
attacks, abductions, enforced disappearances, one summary execution, arbitrary detention,
and torture and ill-treatment of individuals opposed to the March 2014 referendum, as well
as of Maidan supporters, members and affiliates of the Mejlis, journalists and Ukrainian
servicemen.86 On 11 June 2014, the Parliament of Crimea legalized the Crimean selfdefence
by turning it into a civil group with powers to assist the police.87
87. The Russian Federation has indicated that several criminal cases were opened in
which the suspects were members of the Crimean self-defence. These cases are connected
with a robbery, in April 2014, and incidents in which vehicles were taken illegally with the
threat of the use of firearms.88
88. Two legislative initiatives registered in the Crimean and Russian Federation
Parliaments in August 2014 proposing immunity from prosecution for actions committed
by the self-defence forces have not been pursued.
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89. In view of the multiplicity of testimonies mentioning illicit acts committed by
members of the self-defence with apparent impunity, OHCHR has serious doubts that the
Russian Federation authorities have complied with their obligations to ensure
accountability through effective and impartial investigations. The duty to investigate and
prosecute is made more compelling by the fact that the existence of the self-defence group
has been legalized, and its members have been recognized as agents of the State.89
90. FSB and the Crimean police have also been accused of violating the right to physical
and mental integrity of persons holding dissenting views, in particular Crimean Tatars and
ethnic Ukrainians. Such violations have occurred prior to and during detention, in
penitentiary institutions and in places where people were illegally kept incommunicado.
91. In two cases documented by OHCHR in 2016, pro-Ukrainian supporters were
compelled by FSB officers to confess to terrorism-related crimes through torture with
elements of sexual violence. The victims were kept incommunicado, tied, blindfolded,
beaten up, subjected to forced nudity, electrocuted through electric wires placed on their
genitals, and threatened with rape with a soldering iron and wooden stick.90
92. Forced internment in a psychiatric institution has been used as a form of harassment
against political opponents, which may amount to torture or ill-treatment. Procedurally,
such placements are decided by a judge upon the request of the police or FSB investigator.
A deputy Chairman of the Mejlis, Mr. Ilmi Umerov, underwent an imposed court-ordered
‘psychiatric assessment’ for three weeks91 after being charged in May 2016 with calls to
violate the territorial integrity of the Russian Federation. In November and December 2016
five Crimean Tatar men suspected of being members of Hizb ut-Tahrir, an organization
banned for terrorism in the Russian Federation, were also placed in a psychiatric hospital
for weeks. During the psychiatric assessment, doctors reportedly asked them unrelated
questions, including on their religious practice and political views.92
E. Right to liberty and security
93. The right to liberty and security of person exists to ensure that subjects of a State can
pursue their daily activities without harassment or apprehension of being restrained without
any lawful basis. It includes two key components: freedom from arbitrary arrest or
detention; and protection from enforced disappearances. Arbitrary deprivation of liberty
may amount to a violation of the requirement of common Article 3 of the Geneva
Conventions and Additional Protocol I that all civilians and persons hors de combat should
be treated humanely.
1. Arbitrary arrests and detentions
94. The Fourth Geneva Convention specifies that in an occupied territory, a civilian may
only be interned or placed in assigned residence for “imperative reasons of security”
(Article 78). Arbitrary detention is prohibited under customary international humanitarian
law93 and international human rights law protects individuals from arbitrary arrest and
detention by the State, as well as by private individuals or entities empowered or authorized
by the State to exercise powers of arrest or detention.94 According to the United Nations
Human Rights Committee, “arbitrariness is not to be equated with ‘against the law’, but
must be interpreted more broadly to include elements of inappropriateness, injustice, lack
of predictability and due process of law.”95 Any deprivation of liberty must therefore be
lawful, reasonable and necessary.
95. OHCHR documented multiple allegations of violations of the right to liberty as a
result of acts attributed to agents of the Russian Federation authorities in Crimea. While
most of them occurred in 2014, fresh claims of unlawful deprivation of liberty are regularly
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17
recorded. Arbitrary arrests and detentions take different forms and appear to serve various
purposes, from instilling fear, to stifling opposition, and inflicting punishment.
96. In many cases, victims are neither charged nor tried, but detained by the police, FSB
or self-defence groups as a form of extra-judicial punishment or harassment. Detention
under such circumstances would usually last from several hours to several days, exceeding
the legal limits for temporary detention and ignoring procedural requirements, such as the
establishment of a protocol of arrest. Many of the victims were journalists, land or business
owners, and people arrested during so-called ‘prophylactic’ police operations at markets,
mosques, cafés, restaurants or places of entertainment. OHCHR noted a prevalence of
members of the Crimean Tatar community among people apprehended during police raids.
They were typically taken to the police centre to fight extremism (“Center E”),
photographed, fingerprinted and made to provide DNA samples before being released,
usually without any charges being pressed.96
97. In other cases, people deprived of liberty were charged with offences of extremism,
terrorism, territorial integrity violations, detained and tried. This form of treatment has been
commonly applied against political opponents, such as Crimean Tatar figures linked to the
Mejlis, practising Muslims accused of belonging to banned Islamic groups, and journalists
or individuals posting messages critical of the Russian Federation authorities or expressing
dissent on social media. Prosecutions often seemed to be tainted by bias and a political
agenda.97 The initial arrests were usually carried out by FSB and followed by searches of
victims’ houses and harassment of their families by law enforcement. Victims were charged
and subjected to lengthy pre-trial detention despite a general lack of sufficient evidence.
98. In the most egregious cases, unlawful detentions were accompanied by physical or
psychological abuse amounting to torture. Many of the victims were people accused of
spying and planning terrorist acts, as well as political and civic activists supporting the
Maidan protests and pro-Ukrainian demonstrations in Crimea or seeking to assist Ukrainian
soldiers stationed in Crimea. On 9 March 2014, two members of a pro-Ukrainian
organization were abducted by the Crimean self-defence, detained in a secret location
without the presence of a lawyer for 11 days - and one of them tortured - before being
released.98 The arrests were made without reasonable suspicion, proper motivation and
court review, qualifying as violations of the right to liberty and security. In addition, the
torture allegations were not investigated, in denial of the right to an effective remedy.
2. Enforced disappearances
99. Enforced disappearance, as defined by the International Convention for the
Protection of All Persons from Enforced Disappearance,99 violates, or threatens to violate, a
range of international humanitarian law norms, most notably the prohibition of arbitrary
deprivation of liberty,100 torture and other cruel or inhuman treatment101 and murder.102 The
duty to prevent enforced disappearances is further supported by the requirement to record
the details of persons deprived of their liberty.103 The obligations placed on States by the
Convention arguably represent customary international law, which Ukraine (which has
ratified the Convention) and the Russian Federation (which has not done so) are required to
respect. OHCHR notes a precedent in the jurisprudence of the European Court of Human
Rights for holding an occupying power liable for violation of the right to liberty and
security arising from the failure of authorities to investigate the fate and whereabouts of
missing persons in its occupied territory.104
100. The first recorded case of enforced disappearance in Crimea occurred on 3 March
2014, less than a week after the establishment of a pro-Russian Government in Crimea, on
27 February.105 Since then, dozens of persons have gone missing, mostly in 2014. While the
majority of victims were released by perpetrators within hours or days, the whereabouts of
others are still unknown.
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101. The highest number of enforced disappearances in a single month occurred in March
2014, when at least 21 persons were abducted in Crimea. The victims included pro-
Ukrainian and Maidan activists, journalists, Crimean Tatars and former and active
Ukrainian servicemen. They were held incommunicado and often subjected to physical and
psychological abuse by armed individuals allegedly belonging to the Crimean self-defence
and one Cossack group. Most victims were released after being illegally held from a few
hours to several days, with no contact with their relatives or lawyers.106
102. OHCHR documented 10 cases of persons who disappeared and are still missing: six
Crimean Tatars, three ethnic Ukrainians and one Russian-Tatar - all men. Seven went
missing in 2014, two in 2015 and one in 2016.
103. On 1 October 2014, the Head of Crimea decided to create a ‘contact group’ focusing
on the disappearances and other incidents involving Crimean Tatars. The group convened
for the first time on 14 October 2014 in the presence of investigative authorities and the
relatives of five missing Crimean Tatar men but achieved little beyond information-sharing
and the decision to transfer the investigations to the central Investigation Department of the
Russian Federation.107 Of the 10 disappearances mentioned, criminal investigations were
still ongoing in only one case as at 12 September 2017.108 They were suspended in six cases
due to the inability to identify suspects,109 and in three cases no investigative actions have
been taken as the disappearances were allegedly not reported.110
104. In five cases, the possible involvement of State agents was raised by witnesses who
saw the victims being abducted by men dressed in uniform associated with the security
forces or the Crimean self-defence. Circumstances which may suggest political motives in
the other five cases include the profile of the victims who were pro-Ukrainian activists or
had links to the Mejlis.
F. Right to private and family life
105. OHCHR estimates that up to 150 police and FSB raids of private houses, businesses,
cafés, bars, restaurants, markets, schools, libraries, mosques and madrassas (Islamic
religious schools) have taken place since the beginning of Crimea’s occupation. These
actions have usually been carried out with the justification to search for weapons, drugs or
literature with extremist content forbidden under Russian Federation law.111 Several
interlocutors shared their conviction that the objective pursued by such operations was to
instil fear, particularly in the Crimean Tatar community, in order to pre-empt or discourage
actions or statements questioning the established order since March 2014.
106. The searches were conducted on the basis of the Russian Federation’s antiextremism
law, which is very broad and has been used extensively in Crimea. The law
gives wide discretion to law enforcement agencies to interpret and apply its provisions,
which can be viewed as an infringement of the principles of legality, necessity and
proportionality.112 In her annual report for 2014, the Ombudsperson of the Russian
Federation stated in relation to Crimea that law enforcement officers should adopt “a wellbalanced
approach that rules out any arbitrary, excessively broad interpretation of the
notion of ‘extremism’”.113
107. OHCHR documented raids, which at times took place without search warrants being
presented, involved excessive use of force, and amounted to an arbitrary or unlawful
interference with an individual’s privacy, family and home, in violation of international
human rights law. According to victims, materials considered illegal were planted in homes
and false written testimonies declaring the presence of illegal substances were signed under
duress.114 On 4 and 5 September 2014, at least 10 houses belonging to Crimean Tatars were
searched by police officers and FSB officials in Simferopol, Nizhnegorsk,
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Krasnoperekopsk and Bakhchisaray.115 The police found no weapons or drugs but
confiscated religious literature.
108. There are reports that some house raids were conducted at a time when only
Crimean Tatar women were present and that the absence of female officers among those
carrying out the search greatly disturbed them.116
109. As at 12 September 2017, 38 individuals from Crimea and the city of Sevastopol (35
men and three women) were on a special list of people ‘believed to be involved in
extremism or terrorism’, administered by the Russian Federation Financial Monitoring
Service.117 According to the laws of the Russian Federation on preventing financing of
terrorism applied in Crimea, the bank accounts of individuals on this special list should be
constantly monitored and most of their bank transactions are suspended.
110. In view of the excessively broad interpretation of the Russian Federation’s antiextremism
law applying to Crimea, such limitations may amount to undue interference with
the right to private and family life and to the right to the peaceful enjoyment of one’s
possessions.
G. Rights of detainees
111. According to the Ministry of Justice of Ukraine, on 20 March 2014, 1,086
individuals were detained at Crimea’s only pre-trial detention facility in Simferopol, 1353
convicts were serving their sentences in a strict regime colony in Simferopol, 789 convicts
were held in a general regime colony in Kerch and 67 in a correction centre in Kerch. All
four institutions have been integrated into the penitentiary system of the Russian
Federation,118 which led to the transfer of hundreds of detainees held in Crimea to
penitentiary institutions in the Russian Federation.
1. Violations of the rights of prisoners in Crimea
112. After the Russian Federation took control of Crimea, local courts discontinued all
pending appeal proceedings under Ukrainian law, in violation of fair trial guarantees.119
Ukrainian penal legislation was repealed and prison sentences were requalified in
accordance with Russian Federation law, sometimes to the detriment of detainees.
113. Former detainees in Crimea complained to OHCHR about overcrowding, which can
amount to degrading treatment. Built for a maximum capacity of 817 people, the pre-trial
detention centre in Simferopol had 1,066 detainees in March 2014,120 1,532 in December
2015,121 and a similar level of overcrowding in 2016.122
114. Soon after the occupation started, correspondence between detainees in Crimea and
mainland Ukraine was blocked by the administration of the penitentiary service and all
family visits were denied violating the right of prisoners to be allowed to communicate with
family and friends at regular intervals.123
115. Pressure was exerted on detainees who refused to accept automatic Russian
Federation citizenship as prison officials recorded those who did or did not take Russian
Federation passports.124 A female detainee who rejected Russian Federation citizenship
complained that she was denied family visits and that sunflower oil was regularly poured
over her personal belongings as a harassment technique.125 Other detainees who refused
Russian Federation citizenship were placed in smaller cells or in solitary confinement.126
2. Transfer of prisoners to the Russian Federation
116. A sizeable number of Crimea’s prison population was transferred to the Russian
Federation.127 A key factor explaining this situation is the lack of specialized penitentiary
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facilities in Crimea, which has led to the transfer of juveniles in conflict with the law,
people sentenced to life imprisonment, and prisoners suffering from serious physical and
mental illnesses. In addition, Crimea having no prisons for women, 240 female detainees
convicted by Crimean courts were sent to the Russian Federation between 18 March 2014
and 15 June 2016 to serve their sentences.128
117. Transfers of pre-trial detainees have also taken place. This is the case of Ukrainian
filmmaker Mr. Oleh Sientsov, who was arrested in Simferopol on 11 May 2014 on
suspicion of "plotting terrorist acts”. On 23 May 2014, he was transferred to Moscow’s
Lefortovo prison and later to Rostov-on-Don (Russian Federation) where he was placed in
remand detention. Following his trial and conviction on 25 August 2015,129 he was
incarcerated in a high security penal colony in the Siberian region of Yakutia.
118. OHCHR notes that international humanitarian law strictly prohibits forcible transfers
of protected persons, including detainees, from occupied territory to the territory of the
occupying power, regardless of the motives of such transfers.130 In this regard, the
imposition of Russian Federation citizenship to residents of an occupied territory does not
alter their status as protected persons.
119. On 17 March 2017, negotiations between the Ombudspersons of Ukraine and the
Russian Federation enabled the return to mainland Ukraine of 12 detainees (11 men and a
woman) sentenced by Ukrainian courts before March 2014, and transferred from Crimea to
various penitentiary institutions in the Russian Federation after that date. OHCHR
interviewed each of them. Some detainees publicly expressing pro-Ukrainian sentiments
reported having been ill-treated and placed in solitary confinement.131 Others complained of
the absence of medical treatment. OHCHR documented the death of at least three male
prisoners transferred from Crimea to the penitentiary institution in Tlyustenkhabl, Adygea
region, who were suffering from serious ailments and did not receive necessary medical
care.132 Under international human rights and humanitarian law provisions, detainees must
be provided with the medical attention required by their state of health.133
H. Forced enlistment
120. Since the occupation began, residents of Crimea have been subjected to conscription
in the armed forces of the Russian Federation. Until 31 December 2016, military service
could only take place on the territory of the Crimean peninsula.134 Since 2017, conscripts
can also be sent to serve on the territory of the Russian Federation. On 25 May 2017, 30
conscripts from Sevastopol were sent to the Russian Federation after reportedly expressing
the will to serve there.135
121. OHCHR spoke to several Crimean Tatars who left the peninsula to avoid serving in
the Russian Federation army. They stated they could not return to Crimea as they would be
prosecuted for avoiding the draft.136 On 12 April 2017, the Military Commissioner of the
Russian Federation in Crimea announced that a criminal case had been opened against a
resident of Crimea who refused to serve in the Russian Federation army.
122. OHCHR notes that under international humanitarian law, an occupying power is
prohibited from compelling protected persons to serve in its armed or auxiliary forces or to
exercise pressure or propaganda which aims at securing voluntary enlistment.137
I. Freedom of movement
123. The introduction by the Russian Federation of a State border at the ABL between
mainland Ukraine and Crimea, in violation of General Assembly resolution 68/262, has
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adversely affected freedom of movement between mainland Ukraine and the Crimean
peninsula. Other legal restrictions, as per this section, have been imposed both by the
Governments of the Russian Federation and Ukraine.138
124. International human rights law guarantees freedom of movement to anyone lawfully
within the borders of a State and the right to leave and enter their own country.139 It also
recognizes that a sovereign Government has the right to restrict freedom of movement
provided such a measure is necessary, reasonable and proportionate.
1. Restrictions imposed by the Russian Federation authorities
125. On 25 April 2014, the Russian Federation authorities established its ‘border’ at the
northern entrance to Crimea. Ukrainian activists, supporters and members of the Mejlis, in
particular, have frequently faced infringements on their movement, including intrusive and
lengthy interrogations whenever entering or leaving Crimea through the ABL.
126. In addition, citizens of Ukraine have been deported from Crimea for violating
Russian Federation immigration rules, which, pursuant to resolution 68/262, should not
apply to the territory of Crimea. For instance, the Crimea-born chairman of an NGO from
Evpatoriia providing free legal aid was convicted in January 2017 of “illegal stay” by a
Crimean court which ordered his deportation.140 In 2012, his Crimean passport registration
had been cancelled on procedural grounds, which disqualified him from obtaining Russian
Federation citizenship in March 2014. The court which ordered his deportation found him
to be a foreigner who violated immigration rules by staying in Crimea beyond the
authorized 90-day period. Following the ruling, the man was transferred from Crimea to the
region of Krasnodar (Russian Federation), detained for 27 days, and subsequently deported
to mainland Ukraine where he currently lives as an IDP. He is banned from entering
Crimea - where his wife and son live - until 19 December 2021, which violates his freedom
of movement and his right to family life.141 In addition, his forced transfer and deportation
contravene international humanitarian law rules applying to protected persons in situations
of occupation.142
127. OHCHR has information that 20 to 25 other Ukrainian citizens were deported from
Crimea to mainland Ukraine in 2016, and has reasons to believe that the total number since
the beginning of the occupation of Crimea may be significantly higher.143
128. Unlawful limitations to freedom of movement were also imposed against political
opponents and individuals criticizing the human rights situation on the peninsula who were
prohibited entry into the Russian Federation, consequently banning their access to Crimea.
On 22 April 2014, a Russian Federation officer at the ABL handed the former leader of the
Mejlis, Mr. Mustafa Dzhemilev, an unsigned document informing him of being banned
from entering the territory of the Russian Federation for five years. On 5 July 2014, the
current head of the Mejlis, Mr. Refat Chubarov, was issued an entry ban for allegedly
inciting inter-ethnic hatred.144 Other people subjected to similar prohibitions include in
2014 the director of Crimean Tatar news agency QHA, and in 2016 a Ukrainian journalist
and a defence lawyer.145
2. Restrictions imposed by Ukraine
129. Between March and December 2014, Ukraine suspended air, train and bus
connections to the peninsula. Older persons, persons with disabilities and children were the
most affected by the absence of public transportation. Some said they had no choice but to
walk across the ABL for more than two kilometres, sometimes in adverse weather
conditions.146 The only means of transport remaining are private cars and taxis that operate
between Ukraine’s mainland and Crimea.
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130. According to Ukrainian legislation, Ukrainian citizens have the right to free and
unimpeded access to Crimea.147 However, crossing into the peninsula is permitted – for
Ukrainian citizens and foreigners alike – only through three crossing points located in the
region of Kherson, namely Kalanchak, Chaplynka or Chonhar. Foreign citizens violating
rules on access to Crimea are prohibited from entering Ukraine for a period of three
years.148
131. National legal requirements related to the travel of children have constricted
freedom of movement. Children below 16 years of age, if accompanied by only one parent,
must have notarized written consent of the other parent.149 This has created problems for
Crimean residents, as documents issued by the Russian Federation authorities in Crimea are
not recognized in Ukraine.
132. Specific requirements also apply to foreigners and stateless persons who may only
enter and leave Crimea with a special permission issued by Ukrainian authorities following
a lengthy procedure.
133. Another freedom of movement restriction applied to limitations in the transportation
of consumer goods and personal belongings to and from Crimea introduced by Government
decree No. 1035 of 16 December 2015. A court decision issued in June 2017 found the
restrictions to be unlawful, although OHCHR observed through monitoring of the ABL it
conducted in August 2017 that posters informing travellers of transportation limitations
under decree No. 1035 were still present at the Chonhar crossing point.150
134. A so-called civil blockade of Crimea was initiated in September 2015 by the
Crimean Tatar leadership in mainland Ukraine to prevent trade with the Russian Federation
occupying Crimea and draw the attention of the international community to human rights
violations on the peninsula. The enforcement of the blockade was accompanied by
incidents, including physical attacks by blockade participants of people travelling from
Crimea, as well as confiscation of goods and personal items, violating human rights and
impacting freedom of movement across the ABL.151 On 17 January 2015, the organizers of
the ‘civil blockade’ of Crimea announced they had stopped enforcing their embargo. 152
135. OHCHR noticed security risks for travellers related to the presence of insufficiently
marked minefields on both sides of the road leading to the Kalanchak and Chaplynka
crossing points. Representatives of Ukraine’s State Border Guard Service said they had no
maps with mine locations. Although small triangular mine signs are visible, the risk of
accidentally walking into an ill-marked minefield remains.153
J. Freedom of thought, conscience and religion
136. It is a norm of customary international humanitarian law that the convictions and
religious practices of civilians and persons hors de combat must be respected.154 Article 58
of the Fourth Geneva Convention provides that the occupying power must permit ministers
of religion to give spiritual assistance to members of their religious communities, and
Article 15 of the First Protocol to this Convention states that an occupying power should
respect and protect civilian religious personnel. Furthermore, the International Covenant on
Civil and Political Rights and the European Convention on the Protection of Human Rights
and Fundamental Freedoms provide that everyone has the right to freedom of thought,
conscience and religion, and that the right to manifest one’s religion and beliefs may only
be subject to limitations, which are prescribed by law and are necessary to protect public
safety, order, health, morals or the rights and freedoms of others.155
137. After the start of the occupation, freedom of religion or belief in Crimea has been
jeopardized by a series of incidents targeting representatives of minority confessions and
religious facilities belonging to them. Limitations on religious freedom have also resulted
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from the imposition of legal re-registration requirements, legislation increasing restrictions
on the activities of religious groups in the name of fighting extremism, and judicial
decisions.
138. The Parliament of the Russian Federation adopted legal amendments - commonly
referred to as the ’Yarovaya package’ – which came into force on 20 July 2016 as an antiterrorism
measure allowing the authorities to monitor extremist groups. The amendments
practically ban missionary groups and house prayers by making proselytizing, preaching,
praying, or disseminating religious materials outside of “specially designated places”, like
officially recognized religious institutions, a punishable crime.156
139. In the first year after adoption of the ’Yarovaya package’ eight persons from Crimea
- including four Jehovah’s Witnesses, three Protestants and one Muslim – were fined 5,000
RUB each (USD 85) for conducting a missionary activity.157 In addition, eight religious
communities - two Jehovah’s Witness, one Catholic, one Lutheran, one Pentecostal and one
Hare Krishna - were fined in amounts ranging from 30,000 RUB (USD 525) to 50,000
RUB (USD 875) for violating the prohibition for a religious organization to conduct
activities ”without indicating its official full name”.158
140. The gravest and most frequent incidents involving representatives of minority
confessions were reported in 2014. For instance, on 1 June, men in Russian Cossack
uniforms broke into the local Ukrainian Orthodox Church of the Kyiv Patriarchate (UOCKP)
in the village of Perevalne, shouting and terrorizing churchgoers. The car of the priest
was damaged. The police were called but did not investigate the incident.159 On 21 July, a
house in the village of Mramorne belonging to the UOC-KP was burnt to the ground.160 A
pastor of the Protestant Church from Simferopol and his family left the peninsula after
reportedly being told by FSB officers that he could ‘disappear’.161 Greek-Catholic priests
faced threats and persecution, resulting in four out of six of them leaving Crimea. A Polish
citizen and the senior Roman Catholic priest in the Simferopol parish had to leave on 24
October, due to the non-renewal of Ukrainian residence permits. Most of the 23 Turkish
Imams and teachers on the peninsula have left for the same reason.162 On 26 April,
unknown persons threw Molotov cocktails at a mosque in the village of Skalyste, setting it
on fire. On 25 July, a Muslim cemetery in Otuz was damaged. Several mosques and
madrassas (Islamic schools) belonging to the Spiritual Administration of the Muslims of
Crimea (DUMK) were raided in 2014 by FSB officers searching for banned extremist
materials and members of radical groups.163 The raids have continued in the following years
but their frequency diminished after the DUMK leadership started cooperating with the
Russian Federation authorities in Crimea in 2015.
141. Pursuant to Russian Federation legislation imposed in Crimea, public organizations
in Crimea, including religious communities, were subjected to the obligation to re-register
to obtain legal status. The religious communities which applied for registration had to
submit the statutes of the organization, two records of community meetings, a list of all the
community members, and information on the “basis of the religious belief”. Only Russian
Federation citizens are allowed to register a religious community.
142. Without registration, religious communities can congregate but cannot enter into
contracts to rent State-owned property, open bank accounts, employ people or invite
foreigners. The deadline for re-registration was extended twice and expired on 1 January
2016. The process has been lengthy and lacked transparency.164
143. Before the occupation of Crimea, there were 2,083 religious organizations in Crimea
and 137 in Sevastopol, both with and without legal entity status.165 As of 4 September 2017,
722 religious communities were registered in Crimea and 96 in Sevastopol. They included
the two largest religious organizations of the Christian Orthodox and Muslim communities,
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as well as various Protestant, Jewish, Roman-Catholic and Greek-Catholic communities,
among other religious groups.
144. One of the religious communities registered in Crimea, the Jehovah’s Witnesses,
was declared illegal in an April 2017 decision of the Supreme Court of the Russian
Federation, which found that the group had violated the country’s anti-extremism law. On 1
June 2017, all 22 congregations in Crimea were de-registered, affecting the right to freedom
of religion of an estimated 8,000 believers. On 9 June 2017, a Jehovah Witness was told at
a military conscription centre in Crimea that he could not invoke his right to an alternative
civilian service under Russian Federation legislation unless he renounced his faith and
changed his religion.166 On 27 June, the head of the Jehovah Witnesses community in
Dzhankoy was summoned to court, charged with unlawful missionary activity, and died
later that day of a heart attack.167
145. The Ukrainian Orthodox Church of the Kyiv Patriarchate (UOC-KP) chose not to reregister
under Russian Federation law and thus has no legal recognition. Since 2014, five
UOC-KP churches have been either seized by paramilitary groups or closed due to nonrenewal
of their property leases.168 The activities of another UOC-KP church, located in
Simferopol, were disrupted on 31 August 2017, when court bailiffs stormed the building of
the church. The action was undertaken pursuant to a judgment, upheld by the Supreme
Court of the Russian Federation in February 2017, ordering to vacate premises in the
building used by a daughter company of the UOC-KP as office space and a shop. As of 12
September 2017, worship services were still held but fewer parishioners attended them.169
K. Freedom of peaceful assembly
146. Freedom of peaceful assembly guarantees the right of individuals to gather
peacefully in order to express an aim or issue in public. It is protected by various
international legal instruments and closely connected with other fundamental rights such as
freedom of speech, thought and association. Limitations are permitted in accordance with
international law, including administrative regulations, as long as they are proportionate
and not used to oppress the nature of free assembly.
147. The possibility to peacefully gather or hold a rally in Crimea has been significantly
reduced since March 2014. Restrictive legal measures placed additional obstacles to the
exercise of the right to peaceful assembly. According to legislation adopted by the
Parliament of Crimea in August 2014, the organizers of public assemblies must be Russian
Federation citizens and must officially request permission to hold an assembly no more
than 15 days and no fewer than 10 days prior to the planned event. In addition, a resolution
of the Government of Crimea of 4 July 2016 reduced from 665 to 366 the number of
locations throughout the ‘Republic of Crimea’ where public events could be organized,
without explaining the motives of this decision.170
148. Lengthy blanket prohibitions on holding public assemblies have been issued,
including an indefinite one decided by the Simferopol city authorities. In March 2016, a
ban on all public events on the territory of the city was decreed, with the exception of those
organized by the republican and local authorities.171 This measure was not taken in
response to a sudden deterioration of public order and clearly infringed on the freedom to
hold peaceful public assemblies.
149. Public events initiated by groups or individuals not affiliated with the Russian
Federation authorities in Crimea or which consider that Crimea remains a constituent part
of Ukraine have systematically been prohibited and prevented. On 23 September 2014, the
Prosecutor of Crimea issued a statement that “all actions aimed at the non-recognition of
Crimea as a part of the Russian Federation will be prosecuted.”172 Consequently, any
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assembly demanding the return of Crimea to Ukraine or expressing loyalty to Ukraine has
been effectively outlawed.
150. Requests to hold peaceful public assemblies have often been rejected on procedural
technicalities, which appeared to be neither necessary to justify a ban nor proportionate and
responding to a general public interest. For example, the Simferopol city authorities
refused to grant permission for an assembly planned by the Crimean Tatar NGO
Kardashlyk for 23 August 2014 near the memorial complex for the victims of the Crimean
Tatar deportation. The motive provided was that the extremely high temperatures could
negatively affect the health of participants. Yet, other outdoor events planned on the same
day went ahead.173
151. In some cases, refusals to authorize public events were based on unsubstantiated
allegations that “extremist” or “separatist” messages would purportedly be disseminated
during their conduct. 174
152. Spontaneous gatherings have been met with sanctions. Crimean Tatars taking part in
unauthorized motorcades to commemorate the Crimean Tatar deportation were regularly
arrested, interrogated for hours, and fined.175 An elderly Crimean Tatar man holding a oneperson
picket in support of prosecuted Crimean Tatars was arrested in front of the building
of the Supreme Court of Crimea on 8 August 2017. He was charged with carrying out an
unauthorized public gathering and resisting police orders and sentenced by court to an
administrative fine of 10,000 RUB (USD 175) and 10 days of detention.
153. The European Court of Human Rights has found that restrictions imposed on
assemblies to prevent minor disorder are often disproportionate measures, and that
incidents of violence are better dealt with by way of subsequent prosecution or disciplinary
actions.176 In relation to blanket legal provisions which ban assemblies at specific times or
in particular locations, the Special Rapporteur on the rights to freedom of peaceful
assembly and of association stated that they require greater justification than restrictions on
individual assemblies.177
L. Freedom of opinion and expression and the media
154. Human rights law guarantees the right to hold opinions without interference. Undue
restrictions on the right to seek, receive and impart information and ideas of all kinds
gravely undermine freedom of expression, which is protected under Article 19 of the
International Covenant on Civil and Political Rights and Article 10 of the European
Convention on the Protection of Human Rights and Fundamental Freedoms.
155. The right to express one’s view or opinion has been significantly curtailed in
Crimea.178 In March 2014, analogue broadcasts of Ukrainian television channels were shut
off and the vacated frequencies started broadcasting Russian TV channels. Journalists were
attacked or ill-treated without any investigation being conducted into these incidents.179 In
June 2014, the only Ukrainian language newspaper, Krymska svitlytsia, was banned from
distribution and had to vacate its rented premises.
156. Official ‘warnings’ have often preceded the closing down of a media outlet. They
applied to views, articles or programmes whose content were deemed ‘extremist’. The
editor of the weekly Mejlis newspaper Avdet received several written and oral warnings
from FSB officers that the newspaper materials allegedly contained extremist content, such
as use of the terms ‘annexation’, and ‘temporary occupation’ of Crimea.180 The Crimean
Tatar ATR television channel was warned by Roskomnadzor, the Russian Federation media
regulatory body, against disseminating false rumours about repression on ethnic and
religious grounds and promoting extremism.181
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157. ATR and Avdet were among the Crimean Tatar media outlets which were denied reregistration
according to Russian Federation legislation and had to cease operations on the
peninsula. When the deadline for re-registration expired on 1 April 2015, Roskomnadzor
reported that 232 media were authorized to work, a small fraction of the approximately
3,000 media outlets previously registered under Ukrainian regulations.182 In addition, other
popular Crimean Tatar media outlets, such as Lale television channel, Meydan and Lider
radio stations, QHA news agency and 15minut Internet site, were denied licenses to work.
Procedural violations were cited as the main reasons for rejection.183
158. The minority language media that continued operating or registered as a new media
entity, have no political content or support the official position on the status of Crimea.
Crimean television has information and education programmes in the native languages of
national minorities, including Armenian, Bulgarian, Crimean Tatar, German, Greek, and
Ukrainian. Its programmes for the Crimean Tatar community include the Crimean Tatar
news Haberler, Netije, and Ekindi Subet; the talk-show Dilde, fikirde, ; the
educational programme Eglenip-Ogrenem; the cultural and religious programme Selyam
Aleykum; and the informational and cultural programme Tanysh-Belish.184
159. According to the United Nations Human Rights Committee “the penalization of a
media outlet [including online media], publishers or journalists solely for being critical of
the government or the political social system espoused by the government can never be
considered to be a necessary restriction of the freedom of expression.”185 Yet, provisions of
the Russian Federation penal code have regularly been used by the authorities in Crimea to
criminalize free speech and dissenting opinions of journalists and non-journalists alike.
160. On 7 July 2017, a court in Crimea convicted a Crimean Tatar man from Sevastopol
to one year and three months of prison for “publicly inciting hatred or enmity”. During an
eight months period in 2016, he had posted statements on Facebook mentioning the
“oppression” of the Crimean Tatars, referring to Crimea being “occupied” and “annexed”,
and quoting a Crimean Tatar leader who had organized the food and trade blockade of
Crimea in September 2015.186
161. People have also been charged under the accusation of advocating separatism. In
2017, the trials of a journalist from Crimea and a deputy chairman of the Mejlis, started.
Both men were charged with “public calls to violate the territorial integrity of the Russian
Federation” in connection with an article and a televised interview, respectively.187 If found
guilty, they face prison sentences of up to five years.
M. Freedom of association
162. Following the occupation of Crimea, most human right groups ceased to exist or
relocated elsewhere in Ukraine. Some did so in protest against the new situation, while
others felt compelled to do so, on account of personal threats and physical violence faced
by their members.
163. For instance, the director of the Yalta-based NGO Almenda left Crimea on 16 March
2014, one day after she was warned by members of the Crimean self-defence that her safety
was “no longer guaranteed.”188 Several members of the NGO Ukrainian House were
tortured and forcibly disappeared in connection with their role in organizing Maidan events
in Crimea and their subsequent opposition to Russian Federation presence.
164. Civic groups or non-governmental institutions which stayed but did not accept the
policies of the new authorities faced systematic obstruction of their activities, intimidation
and sometimes prosecution. In September 2014, the Crimean police organized searches,
seized property, and evicted the charitable organization Crimea Foundation from its
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premises in Simferopol. The eviction also affected the central office of the Mejlis and the
Mejlis weekly newspaper Avdet.189
165. As other legal entities, NGOs were required to re-register under Russian Federation
law, which involved a number of constraints. Application documents included inter alia a
new version of the NGO statute and a formal decision by the NGO executive body to align
its founding documents with legislative requirements. If the NGO was not registered at the
local address of a founder who was a Crimean resident, applicants were required to provide
a letter from the owners of the intended rental premises of the NGO guaranteeing that they
did not object to such a registration.190
166. The re-registration of NGOs was further stymied by implementation of the Russian
Federation’s law on ‘foreign agents’ and ‘undesirable organizations’ in Crimea, both of
which have had a chilling effect on civic groups.191 Some decided not to seek registration
while others decided to forgo foreign funding rather than endure frequent inspections and
stigmatization.
167. The restrictive conditions placed by the legislation of the Russian Federation on
activities of civil society organizations have been reflected in the number of NGOs which
currently operate on the peninsula. As of 4 September 2017, 1,852 NGOs were registered in
Crimea and the city of Sevastopol192 compared to 4,090 in mid-March 2014.193
168. While the Russian Federation authorities in Crimea attempted to silence the Mejlis,
they selectively allowed the establishment of organizations representing the Crimean
Tatars, including Kyryym, Kyryym Birligi, the Crimean Tatar ’Inkishaf’ Society and the
Association of Crimean Tatar Businessmen.
169. Four national-cultural associations representing Ukrainians have been registered in
Crimea: the Simferopol-based Renaissance in Unity, Ukrainians of Simferopol, Ukrainians
of Yevpatoriia and Ukrainians of Yalta. The members of the unregistered Simferopol-based
Ukrainian Cultural Centre, which has been under constant surveillance since 2014, were
regularly called by the police or FSB for ‘informal talks’. Their public activities, including
paying tribute to Ukrainian literary, political or historic figures, were often disrupted or
prohibited. In May 2017, the Centre closed due to the absence of funds to pay for the rent
of its premises, and on 29 August 2017, its director left the peninsula for mainland Ukraine
following anonymous text message threats and information that the FSB would arrest
him.194
VII. Economic, Social and Cultural Rights
A. Property rights
170. Following Crimea’s occupation, the Russian Federation authorities proceeded with a
large-scale nationalization of public and sometimes private property. Expropriation was
done in disregard of ownership rights and without compensation. Proper regulation of
housing, land and property issues are also central to the Crimean Tatars who, almost three
decades after returning from deportation, have not obtained security of tenure guarantees.
1. Property nationalization
171. Since the March 2014 referendum, many of the most economically valuable assets in
Crimea – from energy companies to mobile operators – have been expropriated, often by
force.
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172. On 24 August 2014, the Crimean self-defence took over the Zaliv shipbuilding
company, preventing the management from entering the premises. A new administration
from Zelenodolsk (Tatarstan) was subsequently imposed on the firm.195 On 27 August
2014, members of the Crimean self-defence entered the headquarters of Ukrainian gas
company Krymgas and seized all documents and stamps. The entrances were blocked and
the employees were advised either to quit or to sign applications for transfer of their jobs to
a newly created gas company.196
173. Regulatory acts have been adopted to provide legitimacy to the nationalization
process.197 However, frequent amendments, which increased the number and nature of
property to be nationalized, undermined legal certainty and guarantees against arbitrariness.
For example, Resolution No. 2085-6/14, which originally focused on nationalization of
property without ownership or belonging to the State of Ukraine, was amended to include
111 individual property assets listed in a separate Annex called “List of property considered
as the property of the Republic of Crimea”. During 2014-2016, hotels, private apartments,
non-residential premises, markets, gas stations, land plots and movable property, were
added to the Annex by new resolutions, which contained no criteria for the nationalization
and, in most cases, no information on the owners of nationalized property.
174. On 27 February 2015 Crimea’s Parliament adopted Resolution No. 505-1/15
declaring an end to the nationalization process and prohibiting the inclusion of new
property into the Annex starting from 1 March 2015. However, this provision was
subsequently amended on 16 September 2015, allowing inclusion of land plots and some
new information in the List of nationalized property for “clarification purposes.” As of 12
September 2017, the Annex with the list of nationalized property had been amended 56
times and now contains 4,618 “nationalized” public and private real estate assets.198
175. Similar processes have taken place in the city of Sevastopol.199 With the purpose of
“restoring social fairness and maintaining public order”, the city authorities nationalized 13
companies and 30 real estate assets between February 2015 and July 2016.200
176. OHCHR recalls that, according to international humanitarian law, private property,
as well as the property of municipalities and institutions dedicated to religion, charity and
education, the arts and science may not be confiscated,201 and that immovable public
property must be administered according to the rule of usufruct.202
2. Housing, land and property of formerly deported people
177. The question of housing, land and property in Crimea is sensitive, particularly for
Crimean Tatars who returned from exile starting from the late 1980s. The unmanaged
return process and the perceived injustices in land allocation led to Crimean Tatars settling
on unoccupied or public land.203
178. While successive Governments of Ukraine took steps to facilitate repatriation to
Crimea and resolve some of the issues facing formerly deported persons, many problems
remained. In a decree issued by former President Viktor Yanukovych in 2010, the need to
solve “the burning problem of resettlement” of formerly deported persons was
acknowledged.204
179. After taking control of the peninsula, the Russian Federation authorities in Crimea
pledged to legalize the unauthorized appropriation of land or allocate alternative land plots
to Crimean Tatars.205 In 2015, they adopted a law enabling Russian Federation citizens of
Crimea who illegally built property on a seized plot of land to acquire this land.206 There is
no information on how this law has been implemented. Crimean Tatars have expressed
concern about the citizenship requirement prescribed by the law, which automatically
excludes from the process of legalization formerly deported persons who were not residents
of Crimea on 18 March 2014 or have returned from deportation after that date. Other
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obstacles, including resistance from title owners of land plots and competing interests
among Crimean Tatar groups representing returnees have also adversely affected the
process of acquisition.
180. Additional concerns rose after several cities in Crimea allowed the demolition of
buildings constructed without necessary permits. The most recent decision applies to
Simferopol207 and envisages that buildings constructed on land plots located in areas of
restricted use, such as public areas and areas near utility facilities, will be torn down. The
demolition of such buildings, to be ordered by local administrations and special “demolition
commissions”, could result in evictions disproportionately affecting Crimean Tatars.
181. Forced evictions constitute a violation of a broad range of human rights, including
the right to adequate housing and freedom from arbitrary interference with home and
privacy.208 OHCHR recalls the importance of preventing forced evictions by inter alia
repealing legislation which allows for such practice and taking measures to ensure the right
to security of tenure for all residents.209
B. Right to maintain one’s identity, culture and tradition
182. The Russian Federation authorities in Crimea have denied various manifestations of
Ukrainian and Crimean Tatar culture and identity by groups perceived as hostile to the
Russian Federation and to Crimea’s status as a part of it. Pressure, intimidation and
prohibitive administrative or court decisions have been applied. Such actions violate Article
15 of the International Covenant on Economic, Social and Cultural Rights, which
guarantees the right of everyone to take part in cultural life, and Article 27 of the
International Covenant on Civil and Political Rights, which provides that in States where
ethnic, religious or linguistic minorities exist, persons belonging to such minorities should
not be denied the right, in community with other members of their group, to enjoy their
own culture, to profess and practice their own religion, or to use their own language.
1. Limitations of the right of Ukrainians and Crimean Tatars to express their culture
and identity
183. Following Crimea’s occupation, the Ukrainian and Crimean Tatar communities have
been constricted in their ability to display Ukrainian state and cultural symbols and publicly
celebrate important dates for their communities. Festivities and assemblies organized by
minority groups have only been allowed if those groups supported the position of the
Russian Federation on the status of Crimea.
184. On 18 February 2015, the Bakhchysarai authorities prohibited the local Mejlis from
carrying out a rally in commemoration of the anniversary of the death of Noman
Çelebicihan, an important figure in Crimean Tatar history. On 11 March 2015, a court in
Simferopol ordered 40 hours of corrective labour for three pro-Ukrainian activists and 20
hours for a fourth after they unfurled a Ukrainian flag bearing the inscription “Crimea is
Ukraine” during a rally to commemorate the anniversary of the national poet of Ukraine,
Taras Shevchenko, two days before.210 In June 2015, the city of Simferopol rejected an
application by the Mejlis’ to hold celebrations of the Crimean Tatar Flag Day.
185. Institutions promoting Ukrainian culture and traditions have been shut down. The
Museum of Ukrainian Vyshyvanka - a traditional Ukrainian embroidery - was closed in
February 2015, and books by contemporary Ukrainian authors have been removed from the
Franko Library located in Simferopol.211
186. The recognition under the constitution of the “Republic of Crimea” of Ukrainian and
Crimean Tatar as official languages on a par with the Russian language has been largely
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declaratory. A draft law on the use of Crimea’s official languages was registered in the
Parliament of Crimea on 4 April 2017, but has yet to be discussed.212
2. The ban of the Mejlis
187. In 2016, the Russian Federation authorities in Crimea outlawed the Mejlis, a
development which many in the Crimean Tatar community perceived as an attack against
their culture and identity. While it is not supported by all Crimean Tatars, the Mejlis is
viewed by many as a self-governing body and traditional organ of an indigenous people. Its
members, forming an executive body, were elected by the Kurultai, the Crimean Tatars’
assembly.
188. On 26 April 2016, the Supreme Court of Crimea declared the Mejlis to be an
extremist organization and prohibited it from conducting any activities. The ruling was
followed by an instruction, in May 2016, by the Vice Prime Minister of Crimea addressed
to the heads of local governments in Crimea to report to the Prosecutor of Crimea any
violations committed by Mejlis members or activists.213
189. On 29 September 2016, the Supreme Court of the Russian Federation upheld the
ban, and supported the Prosecution which argued that the Crimean Tatar leadership of the
Mejlis had repeatedly violated Russian Federation legislation and caused prejudice to
residents of Crimea by organizing a trade blockade in 2015. The Mejlis was also accused of
orchestrating a cut-off in energy supplies to the peninsula - with adverse humanitarian
consequences for the population - caused by the sabotage of electricity pylons in mainland
Ukraine. OHCHR notes that the ruling confirms the significant restrictions already imposed
by the Russian Federation authorities in Crimea on this institution since 2014. It appears to
be based on prejudicial evidence and disregards the legitimate character of the Mejlis as an
elected organ representing the Crimean Tatar community.
190. In addition to prohibiting any public activity by or on behalf of the Mejlis, the court
decision implies that the estimated 2,500 members of the national and local Mejlis bodies
can incur criminal liability and face up to eight years in prison for belonging to an
organization recognized as extremist. While no criminal sanctions have been imposed so
far, some members of the Mejlis have been subjected to administrative sanctions. On 28
September 2016, eight of them were fined by courts in amounts ranging from 750 RUB
(USD 12) to 1,000 RUB (USD 15) for holding an “illegal meeting” of this organization.214
191. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding that the Russian Federation must “Refrain from maintaining or imposing
limitations on the ability of the Crimean Tatar community to conserve its representative
institutions, including the Mejlis“.215
192. On 25 August 2017, the Committee on the Elimination of Racial Discrimination
issued its Concluding Observations on the twenty-third and twenty-fourth periodic reports
of the Russian Federation.216 In these Concluding Observations, the Committee stated that
it was “particularly concerned” about the ban on the Mejlis and the “strict limitations on the
operation of Crimean Tatar representative institutions, such as the outlawing of the Mejlis
and the closure of several media outlets.”
193. As of 12 September 2017, the Mejlis remains a banned organization pursuant to the
decisions of the Supreme Courts of Crimea and the Russian Federation.
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C. Right to education in native language
194. International human rights instruments ratified by both Ukraine and the Russian
Federation guarantee the right to education.217 States are obliged to prioritize the
introduction of compulsory, free primary education and must “take steps” towards the
realization of secondary, higher and fundamental education for all those within its
jurisdiction.218 Article 2 of the First Protocol to the European Convention on the Protection
of Human Rights and Fundamental Freedoms provides that states should respect the right of
parents to ensure education and teaching in conformity with their own religious and
philosophical convictions. Article 50 of the Fourth Geneva Convention provides that the
occupying power should, with the cooperation of the national and local authorities,
facilitate the proper working of all institutions devoted to the care and education of
children.
195. Shortly after the March 2014 referendum, schools and universities in Crimea started
functioning in accordance with the curriculum and educational standards of the Russian
Federation. The education and academic qualifications obtained in Ukrainian educational
establishments were recognized while a large-scale in-training programme for over 20,000
Crimean teachers started in June 2014.219
196. Overall, the introduction of Russian Federation education standards has limited the
right of ethnic Ukrainians and Crimean Tatars to education in their native language. While
under Russian Federation law minority language instruction is available from grades 1 to 9,
in senior classes of secondary schools (grades 10 and 11) all subjects must be taught in
Russian. Furthermore, there is no clear procedure regulating the education in a mother
tongue and no legally defined numeric threshold for opening schools or classes.
197. The number of students undergoing instruction in Ukrainian language has dropped
dramatically. In the 2013-2014 academic year, 12,694 students were educated in the
Ukrainian language. Following the occupation of Crimea, this number fell to 2,154 in 2014-
2015, 949 in 2015-2016, and 371 in 2016-2017. In April 2015, the long-time director of the
only Ukrainian-language gymnasium in Simferopol left Crimea, allegedly due to threats
and harassment. Between 2013 and 2017, the number of Ukrainian schools decreased from
seven to one, and the number of classes from 875 to 28.220
198. OHCHR considers that the main reasons for this decrease include a dominant
Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean
residents to mainland Ukraine. Pressure from some teaching staff and school
administrations to discontinue teaching in Ukrainian language has also been reported.
199. At the university level, the Department of Ukrainian Philology in the Vernadskiy
Taurida National University was closed down in September 2014 and the majority of its
teaching staff laid off.221 The departments of Ukrainian philology, culture of the Ukrainian
language and theory and history of the Ukrainian language have been merged into one
department. By the end of 2014, Ukrainian as a language of instruction had been removed
from university-level education in Crimea.
200. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding unanimously that the Russian Federation must “Ensure the availability of
education in the Ukrainian language”.222
201. The number of students receiving their instruction in Crimean Tatar language has
remained stable, largely due to a high level of cultural awareness among the Crimean
Tatars. In the 2013-2014 academic year, when Ukraine’s curriculum was last applied in
Crimea, 5,551 Crimean Tatars were educated in their native language. In 2014-2015, the
figure was 5,146, in 2015-2016 it was 5,334, and in 2016-2017, 5,330 children were
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educated in Crimean Tatar.223 Fifteen Crimean Tatar national schools were functioning in
2017, as in 2013.224
D. Right to health
202. The availability of health care treatment in Crimea has been affected by the
departure of numerous doctors and medical staff from medical State institutions. Drug users
have additionally suffered from a disruption in treatment caused by the implementation of
Russian Federation legislation.
203. In General Comment No. 14, the United Nations Committee on Economic Social
and Cultural Rights reminded all States parties to the International Covenant on Economic,
Social and Cultural Rights of the “minimum essential levels of each of the rights enunciated
in the Covenant, including essential primary health care.” Those minimum essential levels
include “the right of access to health facilities, goods and services on a non-discriminatory
basis, especially for vulnerable or marginalized groups,” including the provision of
essential drugs. Similarly, international humanitarian law obliges an occupying power to
ensure food, hygiene, public health and medical supplies for the inhabitants of occupied
territories.
1. Medical staff deficit in public hospitals
204. Crimea is confronted with an acute lack of medical personnel, an enduring
phenomenon which pre-dates the occupation by the Russian Federation but has been
aggravated after March 2014 due to the departure of many doctors to the private sector.
205. Since 2014, many doctors in Crimea have left public health care institutions for
private clinics on the peninsula, which provide higher salaries and better working
conditions. A similar situation prevails in the city of Sevastopol, where salaries in private
clinics in 2017 were two and a half times higher (40,000 RUB i.e. USD 660) than in public
hospitals (16,000 RUB i.e. USD 265).225 Physicians in public hospitals also criticized what
they viewed as excessive bureaucratic paperwork and a system of remuneration deriving
from new Russian Federation regulations, with the payment of a full doctor’s salary
depending on the result of multiple inspections and internal audits.226
206. In November 2016, 7,195 doctors and 17,283 other medical personnel were
employed in public medical centres in Crimea, with only 62.3 per cent of physicians’
positions occupied.
207. The Minister of Health of Crimea publicly acknowledged a lack of physicians,
pediatricians, general practitioners, emergency staff and laboratory technicians. For three
months in 2016, the main public hospital in Crimea’s second most populated district,
Kerch, had no doctor in its neurosurgical department. The situation is most worrying in the
districts of Rozdolne, Nyzhnohirskyi, Krasnoperekopsk, Pervomaysky and Armyansk, and
in the countryside, where only 40 per cent of the medical staff positions are filled.227
208. The shortage of medical personnel has had an impact on the quality of free public
health care services and created long waits, delaying treatment for the most economicallydisadvantaged
patients and jeopardizing their right to health.228
2. Impaired treatment of drug users
209. Retrogressive measures introduced in Crimea since the application of Russian
Federation legislation have undermined the right to health for those suffering from drug
dependence.
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210. An estimated 21,100 injecting drug-users lived in Crimea in 2013. Substitution
Maintenance Therapy (SMT) for Crimean patients was terminated after the peninsula was
incorporated in the Russian Federation. The latter bans the medical use of methadone and
buprenorphine in the treatment of drug dependence and does not have maintenance therapy
programmes.229 Medicines given to patients in rehabilitation centres include
benzodiazepines, barbiturates, neuroleptics and anti-psychotic drugs, which are not
considered a reasonable alternative to the banned treatments among independent health care
experts.
211. As a result, 803 registered heroin addicts previously receiving Opioid Substitution
Therapy (OST) in Crimea no longer had access to this treatment.230 This has had major
detrimental effects, including changes in treatment, breaches of patient confidentiality, and
increased mandatory drug screening.231
212. Without methadone, users often relapse into taking heroin and risk an overdose. The
United Nations Special Envoy for HIV/AIDS evoked the possibility that by January 2015,
up to 100 former OST recipients had died in Crimea due to complications related to
overdose or suicide,232 although in June 2014, Crimea’s health authorities were denying any
deaths.233
213. Comprehensive harm reduction strategies, which include OST, are essential to
prevent and treat HIV, hepatitis and tuberculosis among people who inject drugs. The ban
on OST opiates crippled Crimea’s HIV prevention programmes, which included inter alia
needle exchanges covering 14,000 people and OST for intravenous drug-users.
214. According to the Chief Doctor of Crimea’s Centre for the prevention and control of
AIDS, 1,417 newly diagnosed cases of HIV infection were recorded in Crimea for the first
nine months of 2016, including 25 per cent resulting from drug injection.234
E. Access to water and other essential services
215. The right to an adequate standard of living including in particular access to food,
water and other essential items, is included in several international human rights treaties.235
In addition, international humanitarian law prohibits the attack, destruction, removal, or
rendering useless objects indispensable to the survival of the civilian population, such as
foodstuffs, water installations and supplies and irrigation works.236
216. Until 2014, Crimea was 82 per cent dependent on water supplies via the North
Crimean Canal that links the Dnepr river in mainland Ukraine and the peninsula. The
eastern Crimean regions stretching from Sudak to Kerch have virtually no surface sources
of water. On 13 May 2014, the Ukrainian State Water Resources Agency informed that
Ukraine had shut off water supplies to Crimea via the North-Crimean Canal. While this
situation had no negative implications on drinking water,237 agricultural lands were
affected, and practically all rice plantations on the peninsula perished.238 According to the
Federal target programme on the socioeconomic development of Crimea, until 2020
“Crimea’s dependence on supply of water via the North Crimean Canal can be eventually
reduced or eliminated by searching for underground water sources, including manmade
ones”.239
217. Crimea was also dependent on supplies from mainland Ukraine for up to 85 per cent
of the electricity it consumed. Access to energy is a component of the right to adequate
housing, which is derived from the right to an adequate standard of living.240 On 21-22
November 2015, energy deliveries were disrupted after perpetrators believed to be
supporting the blockade of Crimea damaged four transmission towers in the region of
Kherson, which supplied electricity to Crimea. Although one of the power lines was later
repaired, energy supplies from mainland Ukraine have since not resumed due to the nonA/
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renewal of the contract between Ukraine’s energy company and the Russian Federation
authorities in Crimea, which expired on 1 January 2016.241
218. Following the power outage, for about three weeks, the interruption of energy
deliveries to Crimea caused widespread disruptions, affecting food conservation, lighting,
heating, public transportation and economic activity. Although the Russian Federation
authorities in Crimea redirected available energy resources to the most critical social
infrastructure, such as hospitals and schools, the impact of this situation has been acute,
particularly for people with limited mobility and low income.
219. Pursuant to the International Covenant on Economic, Social and Cultural Rights,
States parties must ensure the satisfaction of minimum essential levels of rights under the
Covenant in all circumstances.242 Under international humanitarian law, the Russian
Federation as the occupying power is obliged to ensure to the fullest extent of the means
available to it sufficient hygiene and public health standards, as well as the provision of
food and medical care to the population. At the same time, this does not exonerate Ukraine
from its obligations under the International Covenant not to interfere with the enjoyment of
the rights it enshrines, and from respecting the requirement under international
humanitarian law to ensure that the basic needs of the population continue to be met under
conditions of occupation.243
VIII. Conclusions and Recommendations
220. The human rights situation in Crimea has significantly deteriorated since the
beginning of its occupation by the Russian Federation. The imposition of a new
citizenship and legal framework and the resulting administration of justice have
significantly limited the enjoyment of human rights for the residents of Crimea. The
Russian Federation has extended its laws to Crimea in violation of international
humanitarian law. In many cases, they have been applied arbitrarily.
221. Russian Federation authorities in Crimea have supported groups and
individuals loyal to the Russian Federation, including among national and religious
minorities, while preventing any criticism or dissent and outlawing organized
opposition, such as the Mejlis. The space for civil society to operate, criticize or
advocate has considerably shrunk. Media outlets have been shut down,
disproportionately affecting the Crimean Tatar and Ukrainian communities, their
right to information and to maintain their culture and identity.
222. Grave human rights violations affecting the right to life, liberty and security
have not been effectively investigated. The judiciary has failed to uphold the rule of
law and exercise proper administration of justice. There is an urgent need for
accountability for human rights violations and abuses and providing the victims with
redress.
223. Moreover, the freedom of movement between mainland Ukraine and Crimea
has been restricted and the ABL has acquired many attributes of a State border.
224. Since the attempted alteration of the status of Crimea by the Russian
Federation, a development which was denounced by General Assembly resolution
68/262 and later qualified as occupation in General Assembly resolution 71/205, the
forcible integration of the peninsula into the political, legal, socio-economic,
educational, informational, cultural and security spheres of the Russian Federation
has been actively pursued, deepening the divide between this territory of Ukraine and
the rest of the country.
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225. In July 2016, Crimea was administratively attached to the Southern Federal
District of the Russian Federation, further strengthening implementation of policies
from the central level and coordination with neighboring regions of the Russian
Federation. The peninsula has been integrated into the energy grid of the Russian
Federation, which is also building a rail-and-road bridge through the Kerch strait,
creating a land corridor to Crimea. This intensified integration is further
compounded by population movements - from the Russian Federation to Crimea and
from Crimea to mainland Ukraine - which tend to favour and strengthen pro-Russia
sentiments on the peninsula.
226. In order to improve the human rights situation in Crimea, OHCHR
recommends:
To the Government of the Russian Federation to:
a) Uphold human rights in Crimea for all and respect obligations that
apply to an occupying power pursuant to international humanitarian law provisions;
b) Ensure proper and unimpeded access of international human rights
monitoring missions and human rights non-governmental organizations to Crimea,
pursuant to General Assembly resolution 71/205;
c) Apply Ukrainian laws in Crimea, pursuant to General Assembly
resolutions 68/262 and 71/205;
d) Ensure accountability for human rights violations and abuses through
effective investigations of allegations of ill-treatment, torture, abductions,
disappearances and killings involving members of the security forces and the Crimean
self-defence; bring perpetrators to justice and provide redress for victims;
e) Comply with the international humanitarian law prohibition to compel
residents of the occupied territory of Crimea to serve in the armed forces of the
Russian Federation and to deport or transfer parts of the civilian population of the
Russian Federation into Crimea; return to Crimea all protected persons transferred
to the territory of the Russian Federation;
f) Ensure independent and impartial administration of justice, including
due process and fair trial rights, and that persons deprived of liberty benefit from all
legal guarantees, including equal treatment before the law, the right not to be
arbitrarily detained, the presumption of innocence and the prohibition from selfincrimination;
g) End the practice of retroactive application of penal laws to acts
committed before the occupation of Crimea, and refrain from using law enforcement
bodies and the justice system to pressure and intimidate opponents;
h) Uphold the right of defence counsel to perform their professional
functions without intimidation, harassment or improper interference;
i) End the practice of extracting confessions of guilt from persons in
detention through threats, torture, or ill-treatment, and refrain from practices such as
forcible psychiatric hospitalization, which may amount to ill-treatment;
j) Ensure adequate medical assistance to all individuals detained in
penitentiary institutions irrespective of their citizenship or any other grounds;
k) Enable unimpeded freedom of movement to and from Crimea, and end
deportations of Crimean residents pursuant to Russian Federation immigration rules;
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l) Ensure that the rights to freedom of expression, peaceful assembly,
association, thought, conscience and religion can be exercised by any individual and
group in Crimea, without discrimination on any grounds, including race, nationality,
political views or ethnicity;
m) Stop applying legislation on extremism, terrorism and separatism to
criminalizee free speech and peaceful conduct, and release all persons arrested and
charged for expressing dissenting views, including regarding the status of Crimea;
n) Allow the development of independent and pluralistic media outlets,
including those representing minority communities, and refrain from placing legal
and administrative obstacles on their registration or operation;
o) Put an end to police actions, including house searches, summons,
detentions, taking of DNA samples, targeting disproportionately members of the
Crimean Tatar community;
p) Lift any limitations on the ability of the Crimean Tatar community to
conserve its representative institutions, including the Mejlis;
q) Ensure the availability of education in the Ukrainian language, and
enable all ethnic communities in Crimea, including the Crimean Tatars and
Ukrainians, to maintain and develop their culture, traditions and identity, and to
commemorate important events;
r) Ensure access of all Crimean residents, including those without Russian
Federation passports, to employment, health treatment, property and public services,
without discrimination;
s) End the ban on the use of Substitution Maintenance Therapy (SMT) for
patients suffering from drug dependence;
t) Respect the right to property and the prohibition to confiscate private
property; ensure security of tenure for the Crimean Tatars by putting in place a
mechanism facilitating recognition of their property rights.
To the Government of Ukraine to:
a) Use all legal and diplomatic means available to promote and guarantee
the enjoyment of the human rights of residents of Crimea;
b) Investigate, within practical limits, human rights violations and abuses
committed in Crimea as well as those perpetrated in mainland Ukraine in relation to
the ‘civil blockade’ of Crimea;
c) Remove all non-necessary restrictions to freedom of movement to and
from Crimea, and ensure that the perimeter of the mined area near the Kalanchak
and Chaplynka crossing points in the Kherson region is visible and well protected;
d) Simplify access to civil documents, education and other public services to
residents of Crimea and IDPs;
e) Support dialogue between the Ombudspersons of Ukraine and the
Russian Federation to facilitate the voluntary transfer of Ukrainian prisoners held in
Crimea to penitentiary institutions in mainland Ukraine;
f) Refrain from actions that would raise obstacles to the enjoyment by
residents of Crimea of their human rights.
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To the international community:
a) Insist on full cooperation of the Russian Federation with international
and regional monitoring mechanisms, including by granting unrestricted access to
their representatives to Crimea;
b) Remind the Russian Federation and Ukraine to strictly abide by international
human rights law and international humanitarian law in ensuring the protection of the
population of Crimea;
c) Raise cases of human rights violations and abuses in discussions with the
Russian Federation authorities at bilateral and multilateral forums.
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IX. End notes
1 Hereafter referred to as ‘Crimea’.
2 All future references to the term “occupation” are to be interpreted in line with UN General Assembly resolution
71/205 referring to the “temporary occupation” of Crimea.
3 The resolution 71/205 was adopted by the UN General Assembly on 19 of December 2016..
4 The people’s militia was registered on 29 July 2014. It is composed of former policemen and army officers, Afghan
war veterans and biker groups, tasked to ‘maintain order and combat fascism’ on the peninsula; see
available at: http://narodnoe-opolchenie.ru/ustav-obshhestvennoy-organizatsii/.
5 Speaking to journalists, the President of the Russian Federation, Vladimir Putin, stated: “Behind the backs of the
Crimean self-defense units, there were our soldiers. They acted in a very polite, but decisive and
professional manner. There was no other way to help the people of Crimea to express their free will”.
Video conference, Ria Novosti, 17 April 2014.
6 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way home”, available at:
https://www.youtube.com/watch?v=c8nMhCMphYU.
7 The referendum question provided two alternatives: “1. Are you in favour of the Autonomous Republic of Crimea
reuniting with Russia as a constituent part of the Russian Federation?” or “2. Are you in favour of
restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of
Ukraine?”
8 See the statement of the Spokesperson of the UN Secretary-General of 17 March 2014
http://www.un.org/apps/news/story.asp?NewsID=47366#.WcU48nRx3IU.
9 Article 45 of the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 and Article 64,
Geneva Convention IV.
10 The Mejlis is a self-governing institution of the Crimean Tatar people holding executive powers. Its members are
chosen from among the members of an elected assembly, the Kurultai.
11 Articles 49 and 76, Geneva Convention IV.
12 See “Human Rights Assessment Mission in Ukraine. Human Rights and Minority Rights Situation”, OSCE report
of the High Commissioner for National Minorities and the Office for Democratic Institutions and
Human Rights, The Hague/ Warsaw (12 May 2014), pp. 49-76.
13 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way home”, available at:
https://www.youtube.com/watch?v=c8nMhCMphYU.
14 https://www.theguardian.com/world/2014/feb/25/ukraine-sevastopol-installs-pro-russian-mayor.
15 According to the Constitution of the ‘Republic of Crimea’, adopted on 11 April 2014, the Head of Crimea
(« ») who is the highest-ranking official of Crimea may also act as the
Prime Minister of Crimea. Starting from 14 April 2014, Sergey Aksenov has been acting as the Head
and the Prime Minister of Crimea. See: http://glava.rk.gov.ru/rus/officially.htm
16 The referendum question provided two alternatives: “1. Are you in favour of the Autonomous Republic of Crimea
reuniting with Russia as a constituent part of the Russian Federation?” or “2. Are you in favour of
restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of
Ukraine?”
17 http://www.crimea.gov.ru/act/11689.
18 The Opinion was prepared following a request of the Secretary-General of the Council of Europe of 7 March
2014.
19 See Paragraph 28 of Opinion no. 762 / 2014 on “Whether the decision taken by the Supreme Council of the
Autonomous Republic of Crimea in Ukraine to organize a referendum on becoming a constituent
territory of the Russian Federation or restoring Crimea’s 1992 constitution is compatible with
constitutional principles” (Venice, 21-22 March 2014).
20 See supra endnote 8.
21 OHCHR report on the human rights situation in Ukraine, 15April 2014, paragraph 82
22 According to the Crimean the election commission, 1,274 096 persons (83.1 per cent) cast their ballots, of whom
1,233,002 (96.77 per cent) voted to join the Russian Federation, 31,997 (2.51 per cent) voted for
Crimea to be part of Ukraine, and 9,097 votes (0.72 per cent) were invalid; see http://archive.is/bvjR6.
In Sevastopol, 274,101 persons (89.5 per cent) cast their ballots, of whom 262,041 (95.6 per cent)
A/HRC/36/CRP.3
39
voted to join the Russian Federation, 9,250 (3.37 per cent) voted for Crimea to be part of Ukraine, and
2,810 votes were invalid (1.03 per cent); see http://archive.is/zbExZ.
23 On 14 March 2014, the Constitutional Court of Ukraine ruled that the decision to hold a referendum was
unconstitutional, and on 15 March the Parliament of Ukraine terminated the powers of the Parliament
of Crimea.
24 The law “On Securing the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied
Territory of Ukraine” entered into force on 22 November 2014.
25 The resolution was adopted by 101 countries, 11 voted against, 58 abstained and 24 were absent.
26 The resolution was adopted by 70 countries, 26 voted against, 77 abstained and 21 were absent.
27 Agreement between the Office of the High Commissioner for Human Rights and the Government of Ukraine
concerning the deployment of a short-term UN Human Rights Monitoring Mission in Ukraine, done
at Geneva on 31 July 2014.
28 The objectives of the visit were to discuss allegations of human rights violations, protection concerns and the
establishment of a sub-office of the HRMMU in Simferopol. See OHCHR report on the human rights
situation in Ukraine, 15 March to 2 April 2014, paragraphs 80 to 93.
29 Gender-sensitive investigation methods, including regarding interviewing, security arrangements, witness
protection and safe handling of information were used by OHCHR. See OHCHR manual on gender
integration in monitoring available at
https://intranet.ohchr.org/Offices/Geneva/TESPRDD/RuleofLawEqualityandNon-
DiscriminationBranch/WomensHumanRightsAndGenderSection/Documents/Chapter15-20pp.pdf.
30 Article 42 of the 1907 Hague Regulations states: “Territory is considered occupied when it is actually placed
under the authority of the hostile army. The occupation extends only to the territory where such
authority has been established and can be exercised.”
31 On 15 September 2015, Article 1 of the law of Ukraine “On Securing the Rights and Freedoms of Citizens and the
Legal Regime in the Temporarily Occupied Territory of Ukraine” was amended to establish the
beginning of the occupation of Crimea on 20 February 2014.
32 The Government of Ukraine exercised its right to derogate from its obligations under the International Covenant
on Civil and Political Rights in relation to the rights to liberty and security (Article 9); fair trial
(Article 14); effective remedy (Article 2(3)); respect for private and family life (Article 17); and
freedom of movement (Article 12) as well as obligations enshrined in Article 5 (liberty and security),
Article 6 (fair trial) Article 8 (respect for private and family life) and Article 13 (effective remedy) of
the European Convention for the Protection of Human Rights and Fundamental Freedoms.
33 Human Rights Committee, Concluding Observations on Moldova (CCPR/C/MDA/CO/2(2009), paragraph 5).
34 Ilascu and Others v. Moldova and Russia, 48787/99, European Court of Human Rights, 8 July 2004, paragraph
331.
35 Article 43, 1907 Hague Regulations.
36 Henckaerts, Doswald-Beck, Customary International Humanitarian Law, Volume I. Rule 149, hereinafter,
Customary IHL Rules; See also Article 3, Hague Convention (IV) and Article 91, Additional Protocol
I.
37 See Report of the International Criminal Court on Preliminary Examination Activities (2016), paragraphs 155 to
158. Pursuant to two article 12(3) declarations lodged by the Government of Ukraine on 17 April
2014 and 8 September 2015, the Court may exercise jurisdiction over Rome Statute crimes committed
on the territory of Ukraine since 21 November 2013.
38 http://2001.ukrcensus.gov.ua/eng/results/general/nationality/.
39 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
40 http://www.dsns.gov.ua/ua/Ostanni-novini/61047.html.
41 http://www.internal-displacement.org/europe-the-caucasus-and-central-asia/ukraine/figures-analysis.
42http://www.gks.ru/free_doc/new_site/population/demo/perepis_krim/obsh_itog_kfo.docx
43 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
44 See Article 4 of the Russian Federation law “On the Accession of the Republic of Crimea into the Russian
Federation and the Creation of New Federal Subjects – the Republic of Crimea and the City of
Federal Significance Sevastopol” (21 March 2014).
45 See Annual Report of the High Commissioner for Human Rights of the Russian Federation for 2014, Crimea
chapter.
46 Article 45, 1907 Hague Regulations.
47 OHCHR report on the human rights situation in Ukraine, 2 April to 6 May 2014, paragraph 127.
A/HRC/36/CRP.3
40
48 http://rian.com.ua/CIS_news/20140422/345528247.html.
49 Article 20, Federal Law No. 62-FZ "On Citizenship of the Russian Federation" (31 May 2002).
50http://helsinki.org.ua/advices/poluchenye-vyda-na-zhytelstvo-dlya-hrazhdan-pozhelavshyh-sohranyt-ukraynskoehrazhdanstvo-
y-prozhyvayuschyh-postoyanno-na-terrytoryy-kryima/.
51 Article 3 of the Russian Federation Law “On circulation of agricultural land” (24 July 2002).
52 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016, paragraph 197.
53 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15 February 2017, paragraphs 139
to 141.
54 Judgment of the Balaklava district court of the Republic of Crimea, 22 November 2016, No. 5-207/2016,
http://sudact.ru/regular/doc/s56ZvgkNvSgw/
55 Judgment of the Supreme court of the Republic of Crimea, 15 November 2016, No. 12-2050/2016,
http://sudact.ru/regular/doc/hbZ5VPzDk7l0/.
56 In addition, the occupying power may undertake total or partial evacuation of a given area if the security of the
population or imperative military reasons so demand. See Article 49, Geneva Convention IV.
57 Judgment of the Supreme court of the Republic of Crimea, 17 November 2016, No. 12-401/2016,
http://sudact.ru/regular/doc/Q9mwes1Qfjb/.
58 See “Human Rights in Retreat. Abuses in Crimea”, Human Rights Watch, 17 November 2014, available at:
https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea.
59 Judgment of the Supreme court of the Republic of Crimea, 2 November 2016, No. 12-1696/2016,
http://sudact.ru/regular/doc/55PTDREeCUZT/.
60 Judgment of the Sudak city court of the Republic of Crimea, 25 October 2016, No. 5-131/2016,
http://sudact.ru/regular/doc/MdwdkOOIxGdO/.
61 OHCHR report on the situation of human rights in Ukraine, 16 November 2015 to 15 February 2016, paragraph
195.
62 Article 4 of the Federal Constitutional Law “On the Accession of the Republic of Crimea into the Russian
Federation and the Creation of New Federal Subjects – the Republic of Crimea and the City of
Federal Significance Sevastopol” (21 March 2014).
63 Article 11 of the Law of the Republic of Crimea “On State Civil Service of the Republic of Crimea” (29 May
2014).
64 This number includes 3,581 persons employed in the city of Sevastopol and 16,803 in the Autonomous Republic
of Crimea. http://www.ukrstat.gov.ua/druk/publicat/kat_u/2014/bl/03/bl_ds_13.zip.
65 http://ru.krymr.com/content/news/27024784.html.
66 Article 54, Geneva Convention IV.
67 Article 6 of the Russian Federation law “On the Accession of the Republic of Crimea into the Russian Federation
and the Creation of New Federal Subjects – the Republic of Crimea and the City of Federal
Significance Sevastopol” (21 March 2014).
68 The Annual Report of the High Commissioner for Human Rights of the Russian Federation for 2014 mentions in
relation to Crimea that the “objective difficulties of the transition period throughout 2014” have given
rise to “a number of legal and law enforcement grey areas” which have encouraged corruption
schemes, Moscow, 2015, p. 96.
69 Article 64, Geneva Convention IV.
70 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015, paragraph 159
71 See Articles 64, 65, 67, and 70, Geneva Convention IV and Article 15, International Covenant on Civil and
Political Rights.
72 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015, paragraphs 158-159 and
HRMMU report on the human rights situation in Ukraine, 16 May to 15 August 2016, paragraph 157.
73 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017, paragraph 144.
74 Ibid. paragraph 145.
75 UN Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Principles 16
and 22.
76 OHCHR report on the human rights situation in Ukraine, 15 March to 2 April 2014, paragraph 86.
77 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation, Human Rights Committee,
18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 173.
78 http://khpg.org/en/index.php?id=1457018864.
79 HRMMU interview, 13 August 2017.
A/HRC/36/CRP.3
41
80 http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10716412/Ukraines-unlikeliest-funeral-the-only-twofoes-
to-die-in-Russias-Crimea-takeover-are-mourned-together.html.
81 http://www.independent.co.uk/news/world/europe/ukraine-naval-officer-shot-dead-by-russian-solider-in-crimea-
9243306.html.
82 https://ru.krymr.com/a/27740314.html.
83https://www.kyivpost.com/article/content/euromaidan/two-die-in-rallies-outside-crimean-parliament-says-ex-headof-
mejlis-337708.html.
84 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15 February 2016, paragraph 187.
85 See Article 2, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;
Article 7, International Covenant on Civil and Political Rights; and Article 3, European Convention
for the Protection of Human Rights and Fundamental Freedoms.
86 See OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraphs 299-303 and 309 and
OHCHR report on the human rights situation in Ukraine, 18 August to 16 September 2014, paragraph
165.
87 See Report by Nils Muiznieks, Commissioner for Human Rights of the Council of Europe, following his Mission
in Kyiv, Moscow and Ukraine, from 7 to 12 September 2014, paragraph 17.
88 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation, Human Rights Committee,
18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 174.
89 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,
Principle 2.
90 HRMMU interviews, 7 September 2016 and 11 December 2016.
91 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November 2016, paragraph 158.
92 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15 February 2017, paragraph 133.
93 Rule 99, Customary International Humanitarian law.
94 Article 9, International Covenant on Civil and Political Rights;
UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and security of
person), 16 December 2014, CCPR/C/GC/35
95 Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR,
A/49/40 (vol. II), p. 181, paragraph 9.8.
96 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016, paragraphs 183 to 185.
97 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15 February 2016, paragraph 202.
98 HRMMU interview, 20 October 2014.
99 Article 2, Convention for the Protection of All Persons from Enforced Disappearance.
100 Rule 99, Customary International Humanitarian Law.
101 Rule 90, Ibid.
102 Rule 89, Ibid.
103 Rule 123, Ibid.
104 See Cyprus v. Turkey, 25781/94, Judgment, European Court of Human Rights, 10 May 2001,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59454.
105 Reshat Ametov, a pro-Ukrainian activist, was abducted in Simferopol and found dead two weeks later.
106 The Ukrainian NGO CrimeaSOS estimates that between March 2014 and March 2017, agents of the Russian
Federation were directly or indirectly involved in at least 36 cases of enforced disappearances. See
Enforced Disappearance in Crimea Annexed by Russian Federation 2014-2016, CrimeaSOS, p. 2.
107 OHCHR report on the human rights situation in Ukraine, 15 November 2014, paragraphs 213-215.
108 Information provided by the Prosecutor’s office of the Republic of Crimea to CrimeaSOS on 29 November 2016.
109 Ibid.
110 Ibid.
111 The Federal List of Extremist Materials was introduced by Federal Law No. 114-FZ “On Combating Extremist
Activities” (25 July 2002).
112 See Opinion No. 660/2011on the Federal Law on Combating Extremist Activity of Russian Federation, The
European Commission For Democracy Through Law (Venice Commission), 1 June 2012.
113 Annual Report of the High Commissioner for Human Rights of the Russian Federation for 2014, Moscow, 2015,
p. 99
114 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the Russian Federation”, Report
prepared by an Unofficial Turkish Delegation in Crimea on 27-30 April 2015 (5 June 2015), pp. 9-
10.
A/HRC/36/CRP.3
42
115 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September 2014, paragraphs 155-156.
116 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the Russian Federation”, ibid. p. 9.
117 http://fedsfm.ru/documents/terrorists-catalog-portal-act
118 http://www.krim.fsin.su/news/detail.php?ELEMENT_ID=129921.
119 Article 14(5), International Covenant on Civil and Political Rights.
120 Statistics of the State Penitentiary Service of Ukraine as of 20 March 2014,
http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/735176.
121 Annual Report of the High Commissioner for Human Rights of the Russian Federation for 2015, Moscow, p. 72
122 Report of the High Commissioner for Human Rights in the Republic of Crimea, 2016, p. 63,
http://ombudsman.rk.gov.ru/file/doklad_2016.pdf.
123 Rule 58, United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules).
124 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017, paragraph 150.
125 HRMMU interview, 21 March 2017.
126 Ibid.
127 One Ukrainian NGO claimed on 31 May 2016 that 2,200 prisoners had been transferred from Crimea to the
Russian Federation, https://hromadskeradio.org/programs/hromadska-hvylya/2200-krymskyhuvyaznenyh-
bulo-peremishcheno-na-terytoriyu-rosiyi-advokat#.V01n6plSZF0.twitter.
128 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016, paragraph 181.
129 The trial started on 21 July 2015, and on 25 August 2015, a military tribunal sentenced him to 20 years of
imprisonment.
130 See Articles 49 and 76, Geneva Convention IV.
131 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017, paragraph 151.
132 Ibid. paragraph 152.
133 See Article 76, Geneva Convention IV; Article 10, International Covenant on Civil and Political Rights; Article
3, European Convention on Human Rights and Fundamental Freedoms, and Kudla v. Poland,
30210/96, European Court of Human Rights, 26 October 2000, paragraph 94.
134 Article 7, Treaty of Accession between the Republic of Crimea and the Russian Federation (18 March 2014).
135 This figure was announced by the military commissioner of Sevastopol, Alexei Astakhov, on 25 May 2017.
136 HRMMU interviews, 20 November 2015 and 13 October 2016.
137 Article 51, Geneva Convention IV.
138 See OSCE Special Monitoring Mission to Ukraine thematic report, “Freedom of movement across the
administrative boundary line with Crimea” (21 June 2015), available at: http://www.osce.org/ukrainesmm/
165691.
139 See Article 12, International Covenant on Civil and Political Rights; and Articles 2 and 3, Protocol 4 to the
European Convention on Human Rights and Fundamental Freedoms.
140 HRMMU interview, 5 May 2017.
141 See Article 23, International Covenant on Civil and Political Rights; Article 10, Convention on the Right of the
Child; Article 8, European Convention on Human Rights and Fundamental Freedoms.
142 Article 49, Geneva Convention IV.
143 HRMMU interview, 26 May 2017.
144 The decision on the undesirability of stay of Mr. Dzhemilev and Mr. Chubarov in the Russian Federation was
taken pursuant to Article 27 of the Federal Law “On the Procedure of Exit from the Russian
Federation and Entry to the Russian Federation. See Annual Report of the High Commissioner for
Human Rights of the Russian Federation for 2014, p. 101.
145 HRMMU interview, 17 October 2016.
146 HRMMU interviews, 19 February 2015, 22 September 2015 and 3 February 2016.
147 See Article 10, Law of Ukraine “On Guaranteeing the rights and freedoms of citizens and on the legal regime on
the temporarily occupied territory of Ukraine”.
148 On 23 November 2016, 14 citizens of Uzbekistan and one Azeri citizen travelling from Crimea to mainland
Ukraine were stopped by Ukrainian border guards on the ABL and issued with three-year entry bans
to Ukraine for having accessed Crimea through the Russian Federation, in violation of Ukrainian
legislation.
149 See Government Regulation No. 367 of 4 June 2015.
150 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2017, paragraph 148.
151 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November 2015, paragraphs 144 to
146.
A/HRC/36/CRP.3
43
152 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15 February 2016, paragraph
198.
153 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016, paragraph 175.
154 Rule 104, Customary International Humanitarian Law.
155 See Article 18(3), International Covenant on Civil and Political Rights, and Article 9(2), European Convention
on Human Rights and Fundamental Freedoms.
156 Maximum fines amount to the equivalent of $780 for individuals or $15,000 for organizations.
157 See Article 5.26, part 4 of the Code of Administrative Offenses of the Russian Federation (“Carrying out
missionary activity in violation of the requirements of the law”).
158 See Article 5.26, part 3, ibid.
159 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014, paragraph 315.
160 OHCHR report on the human rights situation in Ukraine, 16 July to 16 August 2014, paragraph 163.
161 OHCHR report on the human rights situation in Ukraine, 1 to 30 November 2014, paragraph 84.
162 OHCHR report on the human rights situation in Ukraine 15 December 2014, paragraph 84
163 On 24 June 2014, the FSB raided a madrassa in the village of Kolchugino, in the Simferopol district. On 13
August 2014, three madrassas in Simferopol were searched. On 22 September 2014, a seven-hour
search was carried out at the Derekoi Mosque in Yalta.
164 See report of the Independent Expert on minority issues, Rita Izsák, concerning the protection and promotion of
the rights of religious minorities, A/68/268, paragraph 61: “It is essential to ensure that all procedures
for registration are accessible, inclusive, non-discriminatory and not unduly burdensome. Registration
procedures designed to limit beneficiaries due to political or social intolerance run afoul of human
rights standards”. See also report of the Special Rapporteur on freedom of religion or belief, Heiner
Bielefeldt, A/HRC/22/51, paragraph 42: “failure to register, or re-register periodically, could lead to
legal vulnerability that also exposes the religious minorities to political, economic and social
insecurity”.
165 The term “religious organizations” includes parishes, congregations, theological schools, monasteries, and other
constituent parts of a church or religious group.
166 http://khpg.org/en/index.php?id=1497831415
167 https://uawire.org/news/jehovah-s-witness-follower-in-the-crimea-dies-after- his-trial.
168 The churches in Perevalne (Simferopol district) and Sevastopol were seized while those in Krasnoperekopsk,
Kerch and Saki were closed.
169 https://ru.krymr.com/a/news/28721834.html.
170 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016, paragraphs 165 to 167.
171 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15 February 2016, paragraphs
199-200.
172 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October 2014, paragraph 212.
173 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September 2014, paragraph 159.
174 According to the International Covenant on Civil and Political Rights (Article 21) and the European Convention
on Human Rights and Fundamental Freedoms (Article 11), state authorities have a responsibility to
respect and ensure freedom of peaceful assembly, including by protecting assemblies from attacks or
disruption by third parties. Any restrictions of this right must be proportionate to achieve a legitimate
aim that is demonstrably necessary in a democratic society.
175 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015, paragraph 175.
176 European Court of Human Rights, Stankov and the United Macedonian Organization Ilinden v. Bulgaria (2001),
paragraph 94.
177 See A/HRC/31/66 paragraph 30, and A/HRC/23/39, paragraph 63.
178 See Amnesty International “One Year On. Violations of the right to freedom, expression and association in
Crimea”, March 2015, pp 9-14.
179 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014, paragraphs 298 to 301 and 303.
180 Ibid. paragraph 302.
181 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October 2014, paragraph 230.
182 Ministry of Foreign Affairs of the Russian Federation, submission to UNESCO, 14 April 2015, available at:
http://russianunesco.ru/eng/article/2070).
183 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015, paragraphs 165-166.
184 See Fourth Report submitted by the Russian Federation pursuant to Article 25, paragraph 2 of the Framework
Convention for the Protection of National Minorities (Received on 20 December 2016), p. 28.
A/HRC/36/CRP.3
44
185 Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, UN Doc.
CCPR/C/GC/34 (12 September 2011), paragraph 42.
186 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2017, paragraph 139.
187 See Amnesty International Public statement, “Crimea: Rapidly Deteriorating Human Rights Situation in the
International Blind Spot”, 17 March 2017, p. 5.
188 HRMMU interview, 29 June 2014.
189 See “The situation of national minorities in Crimea following its annexation”, European Parliament, Policy
Department, Directorate General for External Policies, 2016, p.19, available at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578003/EXPO_STU(2016)578003_EN.p
df.
190 Russian Federal Law “On Amending the Federal Law ‘Enacting chapter 1 of the Civil Code of the Russian
Federation’ and Article 1202(3) of the Civil Code of the Russian Federation” (5 May 2014), available
at: http://base.garant.ru/70648870/.
191 Russian Federal Law “On Amending some legal acts of the Russian Federation” (23 May 2015) and Russian
Federal Law “On Introducing Amendments to Certain Legislative Acts of the Russian Federation
Regarding the Regulation of Activities of Non-Commercial Organizations Performing the Function of
Foreign Agents” (20 July 2012).
192 This number includes “autonomous non-commercial organizations”, “national-cultural autonomies” and “nongovernment
organizations”. See http://unro.minjust.ru/NKOs.aspx.
193 http://rgo.informjust.ua/.
194 HRMMU interview, 3-4 September 2017
195 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September 2014, paragraph 165.
196 Ibid.
197 See law “On special aspects of regulation of property and land matters in the Republic of Crimea” (31 July
2014), Resolution of the ‘State Council of the Republic of Crimea’ “On aspects of administration of
the property of the Republic of Crimea” (30 April 2014) with subsequent amendments. Other legal
acts seeking to facilitate the process of nationalization include the law “On the administration and
disposition of state-owned property in the Republic of Crimea” (8 August 2014), and the Resolution
of the ‘State Council of the Republic of Crimea’ “On property nationalization of agricultural
companies, institutions and organizations in the Republic of Crimea” (26 March 2014).
198 This figure is based on information collected by OHCHR from open sources.
199 In the city of Sevastopol, nationalization was conducted in accordance with a Resolution of the Sevastopol city
government “On some aspects of the nationalization of property” (28 February 2015) with subsequent
amendments.
200 See Resolutions of the Sevastopol city Government “On some aspects of the nationalization of property” No.
118-, 123-, 662- of 28 February 2015, 28 February 2015 and 8 July 2016 respectively.
201 Articles 46 and 56, 1907 Hague Regulations.
202 Ibid. Article 55.
203 See “The Integration of Formerly Deported People in Crimea, Ukraine”; Needs Assessment of the OSCE High
Commissioner on National Minorities, August 2013, pp. 9-15.
204 Presidential Decree No. 615/2010 proposed taking “measures, in accordance with established procedures, for
facilitating the adoption of the Concept of the State ethno-national policy and programmes for the
period until 2015 for resettlement of Crimean Tatars, other persons deported on the ground of ethnic
origin, and their descendants who have returned or are returning to Ukraine for permanent residence,
their adaptation and integration in Ukrainian society.”
205 On 10 May 2014, the Russian Federation Minister of Crimean Affairs stated at a press conference that the
Russian authorities would deal with cases of unauthorized acquisition of land in Crimea "with full
responsibility and caution”; see OHCHR report on the human rights situation in Ukraine, 7 May to 7
June 2014, paragraph 320.
206 Law ‘On provision of land plots which are in state or municipal property and on certain issues of land relations’
(15 January 2015), available at http://crimea.gov.ru/textdoc/ru/7/act/66z.pdf.
207 Resolution No. 2206 “On the demolition of illegally constructed buildings in the municipal district of
Simferopol”, adopted on 23 September 2016.
208 See Article 11(1), International Covenant on Economic, Social and Cultural Rights; Article 17(1), International
Covenant on Civil and Political Rights; Article 1, European Convention on Human Rights and
Fundamental Freedoms; and UN Committee on Economic, Social and Cultural Rights (CESCR);
A/HRC/36/CRP.3
45
General Comment No. 7: The right to adequate housing (Art. 11.1): forced evictions, 20 May 1997,
E/1998/22
209 See Resolutions 1993/77 and 2004/28 of the United Nations Commission on Human Rights.
210 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015, paragraph 163.
211 See “Report of the Human Rights Assessment Mission on Crimea (6-18 July 2015)”,OSCE Office for
Democratic Institutions and Human Rights and High Commissioner for National Minorities,
paragraph 258, 17 September 2015, available at: http://www.osce.org/odihr/report-of-the-humanrights-
assessment-mission-on-crimea?download=true
212 See law No.1236/30-10 (4 April 2017), which regulates the use of official languages in the spheres of education,
legislation, public relations, official correspondence and daily life.
213 OHCHR report on the human rights situation in Ukraine, 15 May to 16 August 2016, paragraphs 176-177.
214 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November 2016, paragraphs 167 to
169.
215 See Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of all forms of racial discrimination (Ukraine v. Russian
Federation); Request for the indication of provisional measures, 19 April 2017, General List No. 166,
paragraph 106.
216 Committee on the Elimination of Racial Discrimination, CERD/C/RUS/CO/23-24.
217 See Article 26, International Covenant on Civil and Political Rights; Articles 2 and 13, International Covenant on
Economic, Social and Cultural Rights; Article 29, Convention on the Right of the Child; Article 5,
Convention on the Elimination of All Forms of Racial Discrimination; Article 10, Convention on the
Elimination of Discrimination Against Women ; Articles 1, 2 and 5, UNESCO Convention against
Discrimination in Education; Articles 26 and 29, International Labor Organization Convention
concerning Indigenous and Tribal Peoples in Independent Countries, No. 169.
218 See Committee on Economic, Social and Cultural Rights, General Comment No. 13, (twenty-first session, 1999),
the right to education (article 13 of the Covenant), E/C.12/1999/10, 8 December 1999, paragraphs 51-
52.
219 See Information on the Situation in the Republic of Crimea (Russian Federation) in the Fields of UNESCO
Competence, Received from Russian Competent Authorities (As of 10 October 2014); 195
EX/5.INF.5, Paris, 21 October 2014, p.14.
220 See “Situation with Access to Education in the Native Language in Crimea”, Crimean Human Rights Group,
available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pdf.
221 The university was made a part of the Crimean Federal University (CFU) as the Taurida Academy in Crimea.
Following this, the Ukrainian authorities relocated the Vernadsky Taurida National University to
mainland Ukraine, and reopened it in Kyiv on 27 September 2016.
222 See Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of all forms of racial discrimination (Ukraine v. Russian
Federation); Request for the indication of provisional measures, 19 April 2017, General List No. 166,
paragraph 106.
223 According to the Crimean Tatar NGO Maarifchi, among 1st grade children in September 2016, 825 out of
approximately 20,000 were educated in the Crimean Tatar language.
224 See “Situation with Access to Education in the Native Language in Crimea”, Crimean Human Rights Group,
available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pdf.
225 https://www.15minut.org/news/172009-sevastopolskie-vrachi-uvolnyayutsya-iz-za-nizkih-zarplat-i-vysokih-cenna-
zhile.
226 HRMMU interview, 20 December 2016.
227 This information was mentioned by the Minister of Health of Crimea in November 2016. See
http://podpricelom.com.ua/en/read/social-analitics-read/minister-medical-centers-crimea-staffeddoctors-
one-third.html.
228 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015, paragraph 186.
229 The Committee on Economic Social and Cultural Rights expressed its concern “about the continued ban on the
medical use of methadone and buprenorphine for treatment of drug dependence” in the Russian
Federation “and the fact that the Government does not support opioid substitution therapy (OST) and
needle and syringe programmes.” See fifth periodic report of the Russian Federation (E/C.12/RUS/5),
A/HRC/36/CRP.3
46
Concluding Observations, 1 June 2011, paragraph 29.
230 In Crimea, OST was legal since 2006.
231 See “Substitution maintenance treatment in Ukraine: Humanitarian and medical mission 16-21 May 2014”,
Expert report of the Pompidou Group, P-PG/ (2014) Misc. 1rev.
232 https://www.theguardian.com/world/2015/jan/20/ukrainian-drug-addicts-dying-due-to-treatment-ban-says-un.
233http://www.rferl.org/a/crimeas-methadone-ban-hitting-rehab-patients-hard/25429665.html.
234 http://podpricelom.com.ua/en/read/social-analitics-read/increase-hiv-incidence-recorded-crimea.html.
235 See Article 11, International Covenant on Civil and Political Rights; Articles 24(2)(c) and 27, Convention on the
Right of the Child; and Article 28, CRPD; and Article 25, Universal Declaration of Human Rights.
236 Article 54(2), Customary International Humanitarian Law.
237 OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraph 322.
238 http://tass.ru/en/economy/749184.
239 http://tass.ru/en/russia/790555.
240 Committee on Economic, Social and Cultural Rights, General Comment No 4, The Right to Adequate Housing
(Article 11(1) of the Covenant), 13 December 1991, paragraph 8(b), E/1992/23, Annex 3.
241 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016, paragraph 200.
242 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties'
Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23.
243 Under international human rights law, the Government remains obliged to ensure the satisfaction of minimum
essential levels of social and economic rights (e.g. primary health care, essential food stuff, basic
shelter and housing and most basic forms of education); see Committee on Economic, Social and
Cultural Rights, General Comment No. 3, ibid.
_________________________
Annex 779
OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2017–15 February
2018)
Office of the United Nations High Commissioner
for Human Rights
Report on the human rights situation in Ukraine
16 November 2017 to 15 February 2018
Contents
Paragraphs Page
I. Executive summary ............................................................................................ 1–16 1
II. Rights to life, liberty, security and physical integrity ........................................... 17–41 3
A. Conduct of hostilities and civilian casualties ............................................... 17–24 3
B. Deprivation of liberty, enforced disappearance and abduction, torture and ill-treatment,
and conflict-related sexual violence ........................................................... 25–41 6
1. Access to places of detention ........................................................... 25–27 6
2. Deprivation of liberty, enforced dis-appearance and abduction, torture
and ill-treatment, and conflict related sexual violence ......................... 28–35 6
3. Situation of pre-conflict prisoners ................................................... 36–41 7
III. Accountability and administration of justice ........................................................ 42–55 9
A. Accountability for human rights violations and abuses committed in the east 42 9
B. Fair trial rights ............................................................................................ 43–48 9
C. High-profile cases of violence related to riots and public disturbances ......... 49–55 10
1. Accountability for the killings of protesters at Maidan ..................... 50–53 10
2. Accountability for the 2 May 2014 violence in Odesa....................... 54–55 10
IV. Simultaneous release of detainees under the Minsk agreements ........................... 56–82 11
A. Detention in preparation for simultaneous release ........................................ 60–62 11
B. Allegations of human rights violations and abuses ....................................... 63–72 11
C. Accountability and fair trial rights ............................................................... 73–82 13
V. Democratic/civic space and fundamental freedoms .............................................. 83–106 14
A. Democratic/civic space ............................................................................... 83–97 14
1. Freedom of opinion and expression, and freedom of the media ........ 84–90 15
2. Discrimination, hate speech and manifestations of intolerance ........ 91–97 16
B. Freedom of religion or belief ...................................................................... 98–99 17
C. Freedom of movement ................................................................................ 100–106 17
VI. Economic and social rights ................................................................................. 107–121 19
A. Right to an adequate standard of living........................................................ 107–111 19
B. Right to social security and social protection ............................................... 112–117 20
C. Housing, land and property rights ............................................................... 118–121 21
VII. Human rights in the Autonomous Republic of Crimea and the city of Sevastopol . 122–130 21
A. Freedom of peaceful assembly .................................................................... 124 22
B. Freedom of opinion and expression ............................................................. 125 22
C. Right to education in native language ......................................................... 126–128 22
D. Forced conscription .................................................................................... 129 23
E. Access to public services in mainland Ukraine ............................................ 130 23
VIII. Legal developments and institutional reforms ...................................................... 131–138 24
A. New legal framework concerning territory not controlled by the
Government in certain areas of Donetsk and Luhansk regions .................... 131–133 24
B. Status of civilian victims ............................................................................. 134–135 24
C. Law on Education ....................................................................................... 136 25
D. Draft legislation on missing persons ............................................................ 137–138 25
IX. Technical cooperation and capacity-building ....................................................... 139–143 25
X. Conclusions and recommendations .................................................................... 144–153 26
Annex I: Endnotes .......................................................................................................................... (i)
Annex II: Simultaneous release of detainees under the Minsk agreements ........................................ (xv)
1
I. Executive summary
1. This twenty-first report on the situation of human rights in Ukraine by the United
Nations High Commissioner for Human Rights (OHCHR) is based on the work of the United
Nations Human Rights Monitoring Mission in Ukraine1 and covers the period from 16 November
2017 to 15 February 2018.
2. This report is based on data collected by OHCHR through 276 in-depth interviews with
victims and witnesses of human rights violations and abuses, and visits in both governmentcontrolled
and armed-group-controlled territory. OHCHR also carried out 546 activities to
facilitate the protection of human rights connected with the cases documented, including trial
monitoring, visit of places of detention, advocacy with duty-bearers, humanitarian organizations
and non-governmental organizations (NGOs), and cooperation with United Nations human rights
mechanisms.2
3. During the period under review, OHCHR documented 205 cases involving violations
and abuses of the right to life, deprivation of liberty, enforced disappearance, torture and illtreatment,
sexual violence, fair trial rights, fundamental freedoms, and economic and social
rights. In 66 out of these 205 cases, the alleged violation or abuse occurred within the reporting
period; the Government of Ukraine bore responsibility for 38 of these cases, and armed groups
for 28 cases. The overall continuation of human rights violations and abuses suffered by the
civilian population in the conflict area, Crimea and across Ukraine, underscores the cumulative
impact and the human cost of the ongoing conflict.
4. Out of the total 205 documented cases, 121 cases involved credible allegations of
torture, ill-treatment and/or sexual violence, committed in the context of unlawful or arbitrary
detention. Fifteen of these cases occurred during the reporting period, on both sides of the contact
line. OHCHR interviewed 113 persons held in 13 detention facilities in government-controlled
territory.3 While OHCHR continued to enjoy unimpeded access to official places of detention
and conflict-related detainees in government-controlled territory, it continued to be denied such
access in territory controlled by the armed groups of the self-proclaimed ‘Donetsk people’s
republic’ and the self-proclaimed ‘Luhansk people’s republic’.4 This persistent denial of access
raises serious concerns regarding detention conditions and possible further human rights abuses,
including ill-treatment and torture. First-hand information received from a number of former
detainees, including some individuals released as part of a simultaneous release on 27 December
2017, supports these concerns.
5. OHCHR also documented a total of 73 conflict-related civilian casualties, namely 12
deaths and 61 injuries. While this represents an overall decrease of 16 per cent compared with the
previous reporting period, the number of civilian casualties resulting from shelling and light
weapons fire increased by 66.7 per cent, indicating that the armed hostilities continued
endangering the population on a daily basis. OHCHR was not able to attribute all civilian
casualties to a specific party to the conflict. Yet, of the 47 civilian casualties resulting from
shelling and small arms/light weapons fire, 35 (2 killed and 33 injured) were recorded in territory
controlled by armed groups, and are likely attributable to the Government, and 12 (1 killed and
11 injured) were recorded in territory controlled by the Government, and are likely attributable to
armed groups. Twenty-six civilian casualties could not be attributed to any party.5
6. OHCHR noted a lack of significant progress in achieving accountability for grave
human rights violations in the killing of protestors at Maidan and the 2 May 2014 violence in
We are human beings, not animals. We only want peace!!
- Resident of a village near the contact line.
2
Odesa. Furthermore, in conflict-related investigations and proceedings, OHCHR observed an
unwillingness, both within law enforcement institutions and politically, to effectively investigate
human rights violations alleged to have been perpetrated by State actors.
7. During the reporting period, under the framework of the “all for all” simultaneous
release foreseen in the Minsk agreements,6 the Government of Ukraine released 234 conflictrelated
detainees while armed groups released 75 individuals. As of 15 February 2018, OHCHR
had interviewed 64 of these individuals, on both sides of the contact line. All of those
interviewed described having been subjected to inhumane conditions of detention, torture or illtreatment,
sexual violence, threats of violence, and/or violations of fair trial guarantees. These
violations and abuses (most of which occurred prior to the reporting period) are emblematic of
systemic human rights issues which have been further exacerbated by the conflict. Furthermore,
the ad hoc procedures applied for the simultaneous release raise concerns regarding
accountability and access to justice.
8. Mindful of the approaching commencement of the campaign year ahead of 2019
parliamentary and presidential elections, OHCHR has been monitoring the situation regarding
freedoms of opinion and expression, and of peaceful assembly, as well as non-discrimination, as
essential foundations of any functioning democratic system. OHCHR documented nine cases
involving physical attacks or use of force against journalists and media professionals, and ten
attacks on individuals, peaceful assemblies and social events. These attacks were either
perpetrated by State actors or members of extreme right-wing groups acting with impunity.
OHCHR notes that the proliferation of intolerance threatens constitutional democracy, rule of
law and inclusiveness.
9. Restrictions on freedom of movement further isolated residents in villages located close
to the contact line, cut off their access to basic goods, services, such as markets, education and
healthcare facilities, and humanitarian aid, which has further intensified the general hardship for
the population. While conditions at the Stanytsia Luhanska crossing route improved due to ramp
repairs made by the International Committee of the Red Cross (ICRC), the average 35,000 daily
crossings of the contact line registered created long queues at the five official crossing routes,
with people exposed to a dangerous environment due to shelling nearby the checkpoints and
mine-contamination, amid freezing temperatures and with inadequate access to basic hygiene,
heating and medical facilities.
10. Freedom of religion or belief continued to be infringed upon in territory controlled by
armed groups, with particular targeting of Jehovah’s Witnesses. OHCHR has been monitoring
the implementation of a ‘law’ adopted in territory controlled by ‘Luhansk people’s republic’ on 2
February, which bans all “religious groups” not directly linked to “traditional” religions.
11. The cumulative effects of the armed hostilities, infringements on freedom of movement
and the declining socio-economic situation continued to further cement hardship, particularly for
people living in conflict-affected areas close to the contact line. Villages situated in these zones
remained isolated, with limited or no access to basic goods and services, including essential
medical and emergency services. Furthermore, as we move towards the fifth year of the conflict,
there was no progress in establishing a restitution and compensation mechanism for destroyed or
damaged property remained one of the most pressing unaddressed socio-economic issues
deriving from the conflict. Such a mechanism will be crucial for peace, stability and
reconciliation.
12. Pensioners residing in territory controlled by armed groups continued to face restrictions
in accessing their pensions due to the Government policy of linking pension payments with
internally displaced persons (IDPs) and residence registration. In this respect, OHCHR welcomes
recent Supreme Court decisions invalidating the termination of pension payments in individual
cases, that had been based on Cabinet of Ministers resolution no. 365. OHCHR also welcomes
the decision of the Kyiv Circuit Administrative Court recognizing the resolution as unlawful and
3
providing for its cancellation, and is hopeful that this leads to a change in policy so as to ensure
equal access to pensions by all Ukrainian pensioners.
13. OHCHR continued monitoring the human rights situation in the Autonomous Republic
of Crimea and the city of Sevastopol despite lack of access to the peninsula, on the basis of
United Nations General Assembly resolutions noting the territorial integrity of Ukraine and
Crimea being under the temporary occupation of the Russian Federation.7 The Russian
Federation authorities in Crimea continued to restrict fundamental freedoms, disproportionately
affecting the Crimean Tatar community, and to forcibly conscript male residents of Crimea into
the Russian Federation armed forces. OHCHR also noted a dramatic decrease, by 97 per cent, of
the number of students receiving education in Ukrainian language since the occupation of the
peninsula in 2014.
14. On 18 January 2018, the Parliament of Ukraine adopted a law8 describing the conflict in
the east as an armed aggression and providing a new legal framework to re-establish control over
certain areas of Donetsk and Luhansk regions, considered to be occupied by the Russian
Federation. While several key recommendations jointly made by OHCHR and the United
Nations High Commissioner for Refugees (UNHCR) were integrated into the law, it retains
elements that may adversely impact human rights, notably the possibility for the Government and
military authorities to use “special powers” restricting fundamental freedoms in “security zones”
adjacent to the “area of hostilities”.
15. Parliament also adopted legislative amendments granting stronger social protection to
participants in the Maidan events who sustained injuries which did not qualify as disabilities, and
to civilians who acquired disability in connection to the conflict in eastern Ukraine. While
welcoming this development, OHCHR notes that this protection only extends to individuals in
territory not controlled by the Government who sustained injuries before 1 December 2014.
16. As part of its human rights promotion mandate, and in addition to a range of advocacy
measures undertaken to address human rights protection needs, OHCHR participated in 12
capacity-building and awareness-raising events for representatives of Government ministries,
prosecution offices, the Security Service, National Police, the State Border Guards Service, the
Ombudsperson’s office, military personnel and chaplains, and the Pastoral Care Council, as well
as for civil society.
II. Rights to life, liberty, security and physical integrity
A. Conduct of hostilities and civilian casualties9
17. The ongoing armed conflict in eastern Ukraine continued to severely impact the lives of
civilians during the reporting period. From 16 November 2017 to 15 February 2018, OHCHR
documented 73 conflict-related civilian casualties (12 killed and 61 injured),10 reflecting a 16 per
cent decrease compared with the previous reporting period, when it recorded 87 civilian
casualties (15 killed and 72 injured).11 This is due to fewer civilian deaths and injuries resulting
from mine-related incidents and incautious handling of explosive remnants of war (ERW) (see
para. 22 below). At the same time, the number of civilian casualties caused by shelling and small
arms and light weapons (SALW) fire has increased (see para. 19 below).
Our only dream was to survive this night and sleep in our house,
not in the dark and cold basement.
- Resident of a village near the contact line.
4
18. Despite the slight reduction in civilian casualties, OHCHR remains concerned about the
persistent use of heavy weapons and small arms fire by parties to the conflict, combined with the
widespread presence of unexploded ordnance, mines, and booby traps. This situation continued
to pose serious risk to civilians residing near or attempting to cross the 457 km contact line
between Government and armed group-controlled areas.12
19. Most civilian casualties continued to be caused by the use of indirect and/or explosive
weapons systems. OHCHR documented 40 civilian casualties (2 killed and 38 injured) caused by
shelling from various weapons systems – including mortars, howitzers and multiple launch rocket
systems (MLRS) – and light weapons fire.13 This represents a 66.7 per cent increase compared
with the previous reporting period (16 August to 15 November 2017), when OHCHR recorded 24
civilian casualties caused by shelling and light weapons fire (2 killed and 22 injured). In addition,
small arms fire caused seven civilian casualties (one killed and six injured).14 Of the total of 47
casualties from shelling, light weapons and small arms fire, more than two thirds – 35 (2 killed
and 33 injured) occurred in territory controlled by armed groups, and are likely attributable to the
Government, based on the geographic location where they occurred. Twelve civilian casualties (1
killed and 11 injured) were recorded in territory controlled by the Government, and are likely
attributable to the armed groups, based on the geographic location where they occurred.
20. The parties to the conflict continued to employ indirect and/or explosive weapons with
wide area effects, including MLRS, in areas populated and used by civilians.15 This may
constitute a violation of international humanitarian law prohibitions on indiscriminate attacks and
of the obligation to take all feasible precautions to avoid harm to the civilian population and
damage to civilian objects.16 For example, on 18 December, shelling hit the central area of
Novoluhanske – a town in government-controlled territory, with approximately 3,500 residents –
injuring eight civilians and damaging numerous civilian homes. At least two shells landed close
to a school, and a third in the school yard, while 20 children were present. Another shell hit a
kindergarten which was empty at the time. Both educational facilities are situated 120 metres
from a dormitory used by the Ukrainian Armed Forces, raising additional concerns about the
placement of military objectives in proximity to civilian facilities (discussed below).
21. Civilians continued to be killed and injured by explosive remnants of war, with leftover
devices causing more fatalities than shelling during the reporting period.17 Between 16 November
2017 and 15 February 2018, OHCHR documented 23 civilian casualties (9 killed and 14 injured)
due to civilians handling ERW, mostly abandoned explosive ordnance in the form of hand
grenades.18 This accounted for almost one third (31.5 per cent) of all civilian casualties during the
reporting period.
22. Moreover, the detonation of booby traps injured three civilians (all men). The use of
victim-activated devices – which cannot distinguish between civilians and persons taking active
part in hostilities – may amount to an indiscriminate attack, in violation of international
humanitarian law, particularly when placed in areas known to be used by civilians.19 In addition,
these devices limit freedom of movement for civilians.20 While OHCHR observed and received
reports of signs warning of the presence of mines, these did not always clearly indicate where the
mines may be, and were often not considered as reliable by the local population.21
23. Shelling and SALW fire exchanges also damaged civilian homes, schools and medical
facilities.22 OHCHR observed the presence of military personnel and weapons in residential areas
on both sides of the contact line, including in proximity to education and health-care facilities.23
OHCHR emphasizes that even where military equipment or soldiers are present in areas used by
civilians, attacks that do not distinguish civilians and civilian objects from military objectives or
cause disproportionate civilian casualties and damage to civilian objects are prohibited and may
amount to war crimes.24 Further, OHCHR documented cases in which Ukrainian Armed Forces
used civilian homes for lengthy periods, sometimes without the consent of the owners, and left
the properties in a damaged condition.25 The use of civilian homes by parties to the conflict
increases the risk of being targeted in the hostilities and endangers civilian lives. It also
contributes to the displacement of civilians and prevents returns.
5
24. Moreover, damages to key critical water and electricity infrastructure, and delays in
negotiating “windows of silence” for repairs and maintenance, disrupted the supply of water and
electricity to conflict-affected areas.26 The Donetsk Filtration Station, in particular, was shelled
on eight occasions, with potentially devastating consequences for the population and the
environment given the toxic chlorine gas stored in that facility.27 On 18-19 December, the
Donetsk Filtration Station came under shelling and heavy machine gun fire for over 24 hours,
forcing the evacuation of staff without security guarantees.28 In this context, OHCHR remains
concerned by the withdrawal, as of 18 December 2017, of Russian Federation representatives
from the Joint Centre for Control and Coordination. It has continued to monitor the potential
implications regarding the ability of parties to the conflict to negotiate “windows of silence” to
enable maintenance and repairs of critical civilian infrastructure as well as the safe provision of
humanitarian assistance.29
6
B. Deprivation of liberty, enforced disappearance and abduction, torture and
ill-treatment, and conflict-related sexual violence
1. Access to places of detention
25. OHCHR continued to enjoy unimpeded access to official places of detention in
government-controlled territory. It conducted 113 confidential interviews with individuals in pretrial
detention facilities (SIZOs), in Bakhmut, Kharkiv, Kherson, Kyiv, Mariupol, Mykolaiv,
Odesa and Starobilsk, as well as with convicts in penal colonies in Kharkiv, Kherson and Odesa
regions.
26. In both the ‘Donetsk people’s republic’ and the ‘Luhansk people’s republic’, OHCHR
continued to be denied access to places of deprivation of liberty to meet with detainees, despite
repeated requests. This persistent denial continued to raise serious concerns regarding detention
conditions and possible further human rights abuses, including torture and ill-treatment. Firsthand
information received by OHCHR from a number of detainees, including some of those
released by armed groups within “all for all” simultaneous release under the Minsk agreements
(see Annex II), supports these concerns.
27. In the absence of access to places of deprivation of liberty in the areas controlled by the
armed groups, this report cannot reflect the actual number of cases of deprivation of liberty,
enforced disappearance and abduction, torture, ill-treatment and sexual violence.
2. Unlawful/arbitrary deprivation of liberty, enforced disappearance and abduction,
torture, ill-treatment and sexual violence
28. Within the reporting period, OHCHR documented 115 cases of credible allegations of
unlawful or arbitrary detention, torture, ill-treatment and/or sexual violence committed on both
sides of the contact line. Fifteen of these cases involve human rights violations or abuses which
were allegedly committed during the reporting period. Three cases involved the State Security
Service (SBU), and twelve involved armed groups.
29. In four cases,30 which occurred between September and December 2017 in governmentcontrolled
territory, the victims were allegedly abducted by a group of unidentified, masked
individuals, either in civilian clothes or camouflage without insignia or emblems, in a public
space, during daytime. These cases illustrate a pattern re-emerging since September 2017
(previously identified in 2014-2015)31 of arbitrary deprivation of liberty, torture and ill-treatment
of individuals detained in government-controlled territory, in a manner which prevents victims
from effectively raising complaints and thus precludes official investigations into allegations of
human rights violations. One victim noted about his abductors: “I thought they were bandits – the
whole scene just looked like that”32. The victims reported being blindfolded or hooded,
handcuffed and transported to an unknown location (building, basement, garage) where they
were allegedly subjected to beatings, violent threats (including of rape), mock execution, or rape,
while being coerced into confessing to cooperating with the Federal Security Service of the
Russian Federation (FSB) or armed groups. This lasted from a few hours to a few days or weeks,
It is very difficult… Not just for him, but for us too…
You never know how to behave around him now.
He does not tell me anything about what happened to him there.
Maybe they beat him, maybe they did not.
I can’t know for sure what exactly happened to him there,
but they surely broke my son’s soul.
- Mother of torture victim.
7
during which the victim remained blindfolded or the perpetrators covered their faces.33 The
victim would then either be transferred to SBU or “released” on a public street where they would
be immediately arrested by SBU. At that point, the detention would reportedly be properly
registered, relatives were notified of the detention, and the detainee was notified of suspicion and
interrogated. The victims, who remain in detention, did not allege being subjected to torture or
ill-treatment during official detention.
30. The victims reported that once handed over to an official place of detention, they went
through a medical examination, as required by law and existing regulations34; however, in three
cases they were not asked in detail how they received bruises or other visible injuries. In one
case, the medical staff simply accepted the “explanation” that the detainee sustained injuries prior
to apprehension by “falling from a tree” or “stairs”35, not questioning the credibility of this
statement. The failure of medical staff to inquire about injuries and probe further for explanations
has been consistently documented by OHCHR, as well as detainees’ reluctance to tell medical
staff the true nature of their injuries for fear of repercussions.36 These cases highlight the need to
develop the capacity of medical staff, particularly in detention facilities, to conduct examinations
in accordance with the Istanbul Protocol standards.37
Territory controlled by armed groups
31. OHCHR documented a rising number of cases of civilians arbitrarily deprived of their
liberty by armed groups - a trend observed since summer 2017. OHCHR registered seven new
cases38 which occurred within the reporting period in territory controlled by ‘Donetsk people’s
republic’ and ‘Luhansk people’s republic’, and 18 cases that occurred earlier.39 The victims were
mainly detained by the ‘ministry of state security’ (‘MGB’) or ‘department of combating
organized crime’ (‘UBOP’) at checkpoints, in their home, or at their workplace. Detentions at
checkpoints were often followed by house searches and seizure of property.40
32. On 15 January 2018, ‘MGB’ of ‘Donetsk people’s republic’ recognized that in 2017 it
detained 246 individuals under “suspicion of espionage and state treason”, 148 of whom were
living and working in armed-group-controlled territory.41 There is no data available for territory
controlled by the ‘Luhansk people’s republic’.
33. Detention by ‘MGB’ and ‘UBOP’ of ‘Donetsk people’s republic’ commonly started
with a 30-day ‘administrative arrest’, during which individuals were held incommunicado.42
After the 30 days expire, access to a lawyer would then usually be granted, and relatives would
more likely to be notified of the detention. However, after the initial 30-day ‘administrative
arrest’, the ‘prosecutor’ would often issue an ‘order’ with new ‘grounds’ for ‘administrative
arrest’ and detention.43
34. Individuals detained by ‘MGB’ of ‘Luhansk people’s republic’ were also held
incommunicado for an initial period. In most cases, despite appeals from relatives, ‘MGB’ did
not confirm the detention and/or provide information about the place of detention.44 OHCHR
reiterates that such practices amount to enforced disappearance. Furthermore, in the absence of
access to detainees by international organizations, incommunicado detention raises serious
concerns that detainees may be subjected to torture or ill-treatment.45
35. Of concern, on 2 February 2018, the ‘people’s council’ of the ‘Luhansk people’s
republic’ amended the ‘martial law’46 to introduce the notion of ‘preventive arrest’, which can be
applied for up to 30 days and then extended to 60 days. It is worrisome that such ‘arrest’ can be
applied on the basis of a decision of the ‘minister of state security’ or the ‘minister of the
interior’, in agreement with the ‘prosecutor general’, and may be based on allegations that a
person may have been involved in crimes against the security of the ‘republic’.
3. Situation of pre-conflict prisoners
36. OHCHR welcomes the transfer, on 7 February 2018, of 20 pre-conflict prisoners from
seven penitentiary facilities located in territory controlled by ‘Donetsk people’s republic’ to
government-controlled territory.47 Since August 2015, 186 people (including four women) have
8
been transferred to government-controlled territory. To date, these transfers have been
undertaken under the auspices of the Office of the Ombudsperson of Ukraine through a dialogue
with representatives of the ‘Donetsk people’s republic’, representing an example of a human
rights confidence-building measure. OHCHR is aware of at least 104 current prisoners who have
requested to be transferred to government-controlled territory.
37. As pre-conflict prisoners previously transferred,48 the recently transferred individuals
reported the overall conditions of detention as poor, with insufficient food of substandard
quality49 and electricity cuts during the day. Medical care was also reported as insufficient due to
shortage of medical staff or staff’s reluctance to provide medical care. Some detainees alleged
that they had to receive permission from prison ‘administration’ prior to receiving treatment.
Lack of medication (particularly specialized treatment for diabetes), was the biggest challenge;
the only way to obtain the required medication was to find another prisoner who had a similar
diagnosis and ask his/her relatives to bring additional supplies. Given these conditions, parcels
from relatives were of particular significance to prisoners. The main reason that pre-conflict
prisoners request to be transferred it to have easier communication and contact with relatives,
including through visits. OHCHR notes that since 11 January 2018, it has become particularly
challenging for pre-conflict prisoners to maintain contacts with their families as the service of the
main Ukrainian mobile operator, Vodafone, became sporadic in Luhansk or absent in Donetsk
(see “Adequate standard of living” below).
38. Criteria used by the armed groups to select individuals for transfer remained unclear.
Transferred prisoners reported that ‘authorities’ in territory controlled by ‘Donetsk people’s
republic’ continued to deny transfer requests by pre-conflict prisoners officially registered in
government-controlled territory of Donetsk region or in Crimea. Several transferred prisoners
reported they had been placed in solitary confinement for up to 15 days for repeatedly requesting
to be transferred to government-controlled territory.
39. As of 15 February 2018, ‘Luhansk people’s republic’ had not taken practical steps to
transfer pre-conflict prisoners, disregarding the appeals to the ‘authorities’ of at least 64
prisoners, as confirmed to OHCHR. This is of particular concern considering the reports about
deteriorating medical care provision in the penitentiary institutions. Furthermore, crossing the
contact line in Luhansk region is arduous (there are no direct vehicle crossings – only a
footbridge), making family visits very challenging.50
40. Particular attention should be given to prisoners that remain in custody in either the
‘Donetsk people’s republic’ or ‘Luhansk people’s republic’ who, after the conflict started, were
either acquitted by a court in government-controlled territory,51 have served their sentence, or
have appealed the sentence of the first-instance court. Additionally, OHCHR was informed of a
few pre-conflict detainees who were never sentenced but were transported to Donetsk city for
forensic expertise in early 2014, before the outbreak of the conflict. They have remained trapped
in SIZOs for almost four years, which amounts to an arbitrary deprivation of liberty.
41. In government-controlled territory, OHCHR continued following ongoing penitentiary
reform. While it is a welcome step that all medical professionals are to be shifted from the
subordination of the penitentiary administration to the Ministry of Health, it has not yet been
completed.52 Due to uncertainty of employment contracts, medical professionals working in
SIZOs have started leaving their jobs, which may negatively affect the provision of healthcare in
these facilities. Furthermore, it remains difficult to provide specialized medical services to
detainees/prisoners due to a lack of necessary transportation and guarded wards in general
hospitals. At the same time, the procurement of medication for prisoners with HIV and multiresistant
tuberculosis has improved.
9
III. Accountability and administration of justice
A. Accountability for human rights violations and abuses committed in the
east
42. There have been a few positive developments in efforts to investigate and prosecute
State actors responsible for various human rights violations.53 Yet, a large number of
investigations remain to be undertaken into human rights violations allegedly perpetrated by
military and security forces. OHCHR has observed that some cases that occurred in the earlier
stages of the conflict have still not been investigated or adequately investigated.54
B. Fair trial rights
43. Individuals standing trial on criminal charges related to the armed conflict continued to
experience violations of judicial safeguards and procedural guarantees.
44. Individuals charged with affiliation or links with armed groups are remanded in custody
following their arrest. Yet courts often failed to carefully examine the circumstances of arrest,
including the possible use of torture.55 OHCHR monitored some of the trials and observed a lack
of equality of arms in a number of cases, with courts disregarding arguments of the defence
counsel and relying solely on article 176(5) of the Criminal Procedure Code,56 thus avoiding the
requirement to assess whether pre-trial detention is reasonable and necessary, and amounting to
arbitrary detention. This was also observed when courts determined extensions of pre-trial
detention.
45. International human rights law requires that any detention related to criminal charges be
subject to judicial control.57 This includes appearance before a judge immediately after arrest,58
as well as periodic judicial review of the lawfulness of continuing detention pending trial. Pretrial
detention must be based on an individualized determination of the reasonable and necessary
nature of the measure. Furthermore, individuals remanded in custody must be tried as
expeditiously as possible, to the extent consistent with their rights of defence, to prevent
prolonged pre-trial detention, which may jeopardize the presumption of innocence.59
46. At least 25 individuals arrested on suspicion of affiliation with, or links to, armed
groups were deprived of access to a lawyer of their choice.60 The right of an accused to defend
him/herself and to have the assistance of counsel of his/her choice is one of the minimum
guarantees to which every accused person is entitled.61
47. OHCHR continued to monitor conflict-related cases where undue pressure was exerted
against the judiciary. The case against Nelia Shtepa, former mayor of Sloviansk, is a particularly
egregious example. In its monitoring of her trial, OHCHR observed intimidation and pressure on
the judges from law enforcement62 as well as right-wing groups. Consequently, judges in Kharkiv
courts were reluctant to deal with the case, and at least 19 judges either recused themselves, were
disqualified or dismissed, took sick or paternity leaves under the prosecution’s pressure or quit
their career entirely. This has resulted in a fourth re-trial, in violation of the right to be tried
without undue delay.63
48. OHCHR is concerned about attempts by law enforcement agencies to preclude the
release of conflict-related detainees who have served their sentences. OHCHR documented a
case of four police officers facing reprisals from the SBU for permitting Serhii Yudaiev64 to leave
SBU has a green light to do whatever they want.
- Law enforcement to conflict-related detainee.
10
the court building following his conviction and release under amnesty.65 The head of the convoy
unit was discharged from service for failing to preclude Yudaiev’s release while two other
officers present in the convoy received official reprimands. In addition, an officer who escorted
Yudaiev out of the courtroom was charged with “abuse of authority” and placed in pre-trial
detention.
C. High-profile cases of violence related to riots and public disturbances
49. OHCHR continued monitoring developments in criminal proceedings involving human
rights violations committed during the Maidan protests in Kyiv and in the context of the 2 May
2014 violence in Odesa.
1. Accountability for the killings of protesters at Maidan
50. There were few developments in the trial of five former Berkut special police officers
accused of killing 48 protesters on 20 February 2014 at Independence square (Maidan), Kyiv.
Two accused have been detained since April 2014, and three since February 2015. The
Sviatoshynskyi district court of Kyiv continued to examine testimonies of victims and witnesses.
51. The investigations and prosecutions into grave human rights violations perpetrated
overnight from 18 to 19 February 2014, at Maidan and in adjacent areas, have suffered from
serious shortcomings. Despite apparent coordination between SBU,66 ‘titushky’67 and police68
regarding attacks on Maidan protesters, this has not been reflected in the criminal charges. A due
examination of the nexus could impact the ultimate qualification of the human rights violations.
In a separate case, the engagement of ‘titushky’ by (former) senior Government officials is
evident from the distribution of Kalashnikov assault rifles from the armoury of the Ministry of
Internal Affairs, and raises questions with regards to the individual criminal liability of former
senior officials for crimes committed by the ‘titushky’.69
52. OHCHR is further concerned with what appears to be special treatment afforded to the
‘titushky’, resulting in denial of justice to victims of their crimes. For example, the
Shevchenkivskyi district court of Kyiv70 released a ‘titushky’ gang leader from custody into
house arrest, and then released him from house arrest although he continued committing crimes,
including violent acts, endangering public safety.71 Furthermore, these additional crimes were
committed when he was supposedly under the protection of the State Protection Service (on 9
October 2015 and 5 May 2016). On 26 December, in a separate case, the same court released two
‘titushky’ under house arrest (the third defendant was already under house arrest). All are
accused of the attempted murder of eight protesters.72
53. On a positive note, OHCHR welcomes reported developments in the investigation of the
killing of 13 law enforcement officers during Maidan protests.73 Almost four years after the
events, the Prosecutor General’s Office reported that only one individual has been charged with
shooting dead two law enforcement officers and injuring a third.74
2. Accountability for the 2 May 2014 violence in Odesa
54. The investigation and trials related to the 2 May 2014 violence in Odesa continued to be
one-sided, undermining the rights of victims and the accused. The two acquitted defendants
(members of ‘pro-federalism’ groups) who were immediately rearrested on 18 September 2017
remained in detention pending trial for new charges.75 At a meeting with OHCHR on 24
November 2018, the Odesa Prosecution Office confirmed that on 18 October 2017, the Court of
Appeal of Odesa region ruled that the detaining authority had failed to provide one of the
defendants with access to his contracted lawyer and ordered the prosecutor to launch a criminal
investigation into this fact.76 The prosecutor, however, refused to do so.77
55. OHCHR is also concerned with the lack of progress in investigations into harassment of
and pressure on judges dealing with the mass disorder cases by ‘pro-unity’ activists, despite the
identification of some alleged perpetrators by victims or witnesses.78
11
IV. Simultaneous release of detainees under the Minsk agreements
56. On 27 December 2017, a simultaneous release took place as part of the “all for all”
release envisaged by the Minsk agreements79: 233 individuals were released by the Government
of Ukraine and 74 individuals were released by armed groups.
57. The Government released 157 individuals (including 15 women) to the ‘Donetsk
people’s republic’ and 76 (including three women) to the ‘Luhansk people’s republic’. All the
detainees had been either in the custody of law enforcement agencies (detained under suspicion
of being a member of or otherwise affiliated with armed groups and tried in courts) or had
already started served their sentences (mostly under article 258-3 of the Criminal Code, aiding
terrorist organizations).
58. Of the 74 detainees released by armed groups,80 41 were civilians81 and 33 were
members of the Ukrainian forces (Ukrainian Armed Forces and National Guard). The ‘Donetsk
people’s republic’ released 58 individuals (including five women) and the ‘Luhansk people’s
republic’ released 16 (all men).
59. On 20 January 2018, further releases occurred. The Government of Ukraine released one
female civilian, while the ‘Donetsk people’s republic’ released a male member of the Ukrainian
Armed Forces,82 bringing the total of people released under the framework of the simultaneous
release to 309. (In addition to the discussion in this chapter, a more detailed description of the
simultaneous release and related human rights concerns can be found in Annex II.)
A. Detention in preparation for simultaneous release
60. Before their simultaneous release, all 234 individuals in Government custody were held
in various detention facilities across Ukraine, although some had already been officially released
from detention on remand by court order.
61. Ahead of the planned simultaneous release, 177 individuals were transported to “Zelenyi
Hai” sanatorium near Sviatohirsk (Donetsk region).83 Guarded by armed SBU officers, they were
not allowed to leave the premises, but could move freely inside the building and were allowed up
to two hours walk a day on the premises of the sanatorium. Some detainees were not informed
where and why they were being taken. Some could not inform their relatives or lawyers of their
whereabouts.84
62. Other detainees (mainly those held in western Ukraine) were first transported to
Lukianivske SIZO in Kyiv, where some 30 of them were put in a cell, with only 18 beds.85 After
10 days, they were transferred to Kharkiv SIZO where they were joined by other detainees
waiting to be released. While approximately 40 of them were in one cell, some reported there
was enough space.86 On the morning of 27 December 2017, they were transported to the Zaitseve
checkpoint where they were joined by the group held in “Zelenyi Hai”.
B. Allegations of human rights violations and abuses
63. In order to protect individuals and their families through strict adherence to the
principles of confidentiality and informed consent, the report presents an overall analysis of the
issues rather than detailed information on individual cases.87
We’ll give you 8 years and then, maybe, will exchange.
Do not count on court, you are staying here as hostage.
- Law enforcement to conflict-related detainee.
12
64. Of the 234 individuals released by the Government, OHCHR had already been
monitoring 142 cases prior to the simultaneous release, having interviewed individuals in
detention facilities and observed related court hearings. After the simultaneous release, OHCHR
undertook further interviews, and as of as of 15 February 2018, it had interviewed 64 of the
released individuals, on both sides of the contact line. All of those interviewed described having
been subjected to torture or ill-treatment, sexual violence, threats of violence, inhumane
conditions of detention and/or violations of fair trial guarantees. These violations and abuses
(most of which occurred before the reporting period) are emblematic of systemic human rights
issues which have been further exacerbated by the conflict.
65. The analysis of interviews conducted before and after the simultaneous release suggests
that cases of incommunicado detention and torture were more common in 2014 and 2015 than
afterwards. During that period, “volunteer battalions” were often involved in apprehensions.
Torture was most often reported by detainees held in Kharkiv SBU, particularly in 2015.
Methods used included suffocation with a gas mask, dislocation of joints, electric shock and
mock execution. Detainees also received death threats and threats of a sexual nature, both against
themselves and their families, and were denied access to medical care. The torture would usually
continue until the detainees signed self-incriminating statements.88 Members of armed groups
were reportedly usually subjected to more violence. Released detainees also told OHCHR they
were subjected to excessive use of force during apprehension and not granted access to legal
counsel until they “confessed”.
66. Interviews with released detainees also suggest that individuals (especially women)
detained by the Government in late 2016 and 2017 were less likely than before to be subjected to
physical violence.89 At the same time, because the detainees were often blindfolded or hooded, or
the perpetrators covered their faces, it was almost impossible to identify the perpetrators, which
significantly restricted the possibility of successfully lodging complaints.
Territory controlled by armed groups
67. Of the 75 individuals released by armed groups, 41 were civilians: 2 had been arbitrarily
detained since December 2014, 13 since 2015, 17 since 2016, and 9 since February-March 2017.
OHCHR interviewed 20 of the released civilians. They had been detained either in their homes,
or while at work or on the street, usually by armed men wearing no insignia. In 18 cases, they
were transferred to ‘MGB’ of ‘Donetsk people’s republic’ or ‘Luhansk people’s republic’, which
reportedly ‘investigated’ the cases.90 During the initial period of detention - at least for one month
- each person was held incommunicado, denied access to a lawyer or communication with
relatives.91 During this time, in the majority of documented cases, the detainees were kept either
in the basements of ‘MGB’ buildings or in premises generally not intended for detention, and
regularly brought to ‘MGB officers’ for interrogation.92 Detainees were often hooded or
blindfolded and handcuffed and/or strapped to a chair. In all documented cases, ‘MGB officers’
threatened severe physical violence or rape against them or their relatives if they refused to
“cooperate”.93 Such threats were usually accompanied by blows to the head or body, making
victims believe the threats were imminent and credible.
68. In 15 out of 20 documented cases, physical violence amounting to torture was used
during interrogation, until the detainee “confessed” and wrote, signed and/or was videotaped
providing self-incriminating testimonies. The most common methods of torture were mock
executions,94 electrocution,95 beatings96 and suffocation by placing a bag over the head.97
69. During the overall time of detention in territory controlled by armed groups, each
individual was held in at least two different places, including premises not intended for detention.
Conditions of detention varied from normal to those amounting to inhumane and degrading
treatment; facilities most commonly used are described below.
70. In territory controlled by ‘Donetsk people’s republic’, detained civilians were
predominantly held in the following places: basement of the ‘MGB’ building on 26 Shevchenka
Street, Donetsk city SIZO, unofficial place of detention Izoliatsiia on 3 Svitloho Shliakhu, ‘IVS’
temporary detention facility in Donetsk , penal colony No. 32 in Makiivka.
13
71. In territory controlled by ‘Luhansk people’s republic’, civilians reported being held in
the ‘MGB’ building in Luhansk city, Luhansk SIZO, and the ‘commandant’s offices’ in Luhansk
and Stakhanov. In the ‘MGB’ building, detainees were always hooded and handcuffed when
interrogated.
72. Thirty-three people released by armed groups on 27 December were members of the
Ukrainian forces. One had been detained since August 2014, 15 since 2015, 16 since 2016, and 1
since March 2017. OHCHR interviewed 18 of the released military personnel. Most were
captured at military positions or near checkpoints. All those interviewed had been beaten upon
capture. Some were interrogated and tortured.98 Mock executions were also reported as
common99 and often repeated.100 The members of the Ukrainian armed forces were held in
various places and moved among two or three different facilities.101 Conditions of detention
varied, and in most cases amounted to inhumane and degrading treatment.
C. Accountability and fair trial rights
73. OHCHR is concerned that the simultaneous release may have negative consequences on
accountability for human rights violations. First, the release of individuals alleged to be
perpetrators of human rights violations102 deprives victims of justice and redress.103 Second,
many conflict-related detainees who were released were subjected to human rights violations
during their detention and prosecution. Some who filed complaints faced obstruction from law
enforcement, which lacked willingness to duly investigate the allegations while the complainants
remained in government-controlled territory.104 Their release to armed-group-controlled territory
may lead to closure of the cases, depriving them of access to justice.
74. OHCHR examined the legal procedures applied by the Government in preparation for
the “all for all” simultaneous release on 27 December 2017.105 Following the release, OHCHR
interviewed 26 persons (out of the 234 detainees released by the Government) who stated that the
main reason they had agreed to participate in the release was because it was their only option for
liberty due to protracted court proceedings during which mandatory pre-trial detention is applied
against all individuals charged with affiliation or links with the armed groups under article 176(5)
of the Criminal Procedure Code.106
75. OHCHR is concerned that the simultaneous release may have been used to compel
conflict-related detainees, who saw no prospect of justice or fair hearing, to plead guilty, even in
otherwise poorly substantiated cases, thus effectively denying them access to justice.107 Between
13 and 21 December 2017, at least 39 individuals were convicted by courts prior to the
simultaneous release based on inter alia plea bargains and retractions of appeals. Eighteen
individuals interviewed by OHCHR stated they were offered plea bargains in order to be included
in the release process.
76. Individuals who were released but whose trials were not completed or whose cases were
not closed may risk re-arrest108 should they return to government-controlled territory, or
convictions following trials held in absentia.109 At least four individuals received suspended
sentences with a probation period during which they are obliged to report to law enforcement
authorities. In addition, they are deprived of the possibility to pursue remedies for alleged human
rights violations perpetrated against them by State actors. The ability to travel across the contact
line is of importance for both those who received suspended sentences and those with pending
trials. However, many individuals did not have their identity documents returned to them upon
release. Others may face restrictions on their movement imposed by armed groups.110
Territory controlled by armed groups
77. Interviews of individuals detained by armed groups and released to governmentcontrolled
territory provided further insight into the system of ‘prosecution’ in the two
‘republics’.111 ‘Trials’ in conflict-related cases are reportedly carried out in closed sessions,
allegedly in order not to disclose ‘classified information’.112
14
78. Interviews with Ukrainian soldiers and civilians believed to be affiliated with
Government forces113 who were detained in territory controlled by ‘Donetsk people’s republic’
and ‘Luhansk people’s republic’ revealed that their cases were often not subject to any review.
OHCHR documented 19114 conflict-related cases where persons were subjected to indefinite
detention in breach of international human rights and international humanitarian law.115 Those
Ukrainian soldiers and civilians detained for over two years reported no periodic review
regarding the necessity or appropriateness of their continued detention, nor were ‘charges’
brought against them during this period.116 Ukrainian soldiers detained in Donetsk for up to over
three years were approached by ‘prosecution’ in September 2017 only - a few months before the
simultaneous release - when their detention was formalized by a ‘measure of restraint’ of
custodial detention imposed by the ‘prosecutor general’s office’.
79. ‘Pre-trial’ detention proceedings of individuals ‘charged’ with espionage or other
conflict-related crimes by ‘military tribunals’ in territory controlled by ‘Donetsk people’s
republic’ appear to have followed a pro-forma basis.117 Furthermore, even such perfunctory
review of legality of detention was delayed. Time spent in incommunicado detention, to which
many were reportedly subjected prior to acknowledged ‘arrest’, seems not to have been taken
into account by a ‘military tribunal’ when calculating the ‘sentence’.118 Such practice contributed
to unacknowledged detention during which individuals were exposed to torture, including with a
view to force self-incriminating statements which served as basis for subsequent ‘prosecution’.119
80. Accounts by conflict-related detainees suggest that their degree of culpability in the
imputed ‘crime’ was already considered established at the time of their ‘arrest’, amounting to a
presumption of guilt. Subsequent ‘investigations’ and ‘trials’ seemed to serve merely to create a
veneer of legality to the ‘prosecution’ of individuals believed to be associated with Ukrainian
military or security forces.120
81. Released detainees informed OHCHR that some appointed lawyers did not make any
real effort to present their case. The account of at least one victim suggests that he was
intimidated by ‘MGB’ of ‘Donetsk people’s republic’ in the presence of the appointed lawyer,
with no reaction from the latter.121 Some lawyers assigned to detainees advised that only
‘convicts’ were eligible for the simultaneous release under the Minsk agreements, leading at least
four detainees to plead guilty even though they had never admitted to committing the charged
offences. At the same time, detainees released from ‘Donetsk people’s republic’ who had been
‘prosecuted’ noted that lawyers facilitated contacts with their families.122
82. Deprived of access to the Ukrainian judiciary and of effective ‘legal representation’ in
proceedings before ‘courts’ in armed-group-controlled territory,123 and fearing repercussions for
withdrawing statements given under duress,124 conflict-related detainees have stood ‘trials’ with
no chance of presenting their defence.125 Conflict-related ‘trials’ were heard by a ‘military
tribunal’ as a chamber of the ‘supreme court’ of ‘Donetsk people’s republic’, whose ‘verdicts’
entered into force immediately, with limited opportunities to ‘appeal’.
V. Democratic/civic space and fundamental freedoms
A. Democratic/civic space
83. OHCHR noted developments relating to freedom of opinion and expression and freedom
of the media, and discrimination, hate speech and manifestations of intolerance that may result in
diminishing democratic/civic and political space throughout Ukraine. The lack of investigation
and accountability in cases where there have been infringement of these rights is of particular
concern as Ukraine is moving towards the presidential and parliamentary elections, scheduled
respectively for March and October in 2019.
15
1. Freedom of opinion and expression, and freedom of the media
84. Within the reporting period, OHCHR documented 18 cases involving infringements on
freedom of opinion and expression and/or freedom of the media. Ten of these cases relate to
human rights violations or abuses allegedly committed during the reporting period; in seven
cases, State actors either perpetrated the violation or failed to prevent or to investigate the act,
while the remaining three cases can be attributed to the armed groups.
85. OHCHR examined nine cases (six occurred within the reporting period) of physical
attacks on journalists and other incidents obstructing journalistic activity and the work of media
outlets. In five cases, the victims and their legal defenders complained of protracted and
ineffective investigations, also noting a lack of transparency. In five of these cases, the attacks
were perpetrated by members of extreme right-wing groups126 and law enforcement was present
but did not prevent or stop the unlawful actions.127 In total, in 2017 the National Union of
Journalists in Ukraine documented 90 incidents of physical violence against media
professionals.128
86. OHCHR is concerned about lack of progress in investigations into acts of violence
against journalists, which fosters an atmosphere of impunity and fear. For instance, there has
been no accountability for the killing of journalists Oles Buzyna (on 16 April 2015) and Pavlo
Sheremet (on 20 July 2016).129
87. The National Police reported no developments in the criminal investigation against the
Myrotvorets website, opened for “obstruction of lawful professional activity of journalists” and
“violation of personal privacy”.130 The web-portal positions itself as the “centre for research of
signs of crimes against the national security of Ukraine, peace, humanity and international order”.
OHCHR notes that no alleged perpetrators have been identified in the criminal investigation
despite public information regarding the head of the centre.131 OHCHR further notes that the
project was presented in 2015 by a people’s deputy holding a position of adviser to the Ministry
of Interior of Ukraine. Meanwhile, the personal data (including home addresses and passport
data) of individuals, including media professionals and NGO activists, continued to be published
on the Myrotvorets website, in violation of right to privacy and presumption of innocence.132
OHCHR notes that a State bank has reportedly refused to provide services for an individual based
on information published about the person on the Myrotvorets website.133
88. OHCHR cautions the Government against broad application of legislative provisions
aimed at protecting Ukraine’s national security and territorial integrity.134 Between 1 January
2017 and 14 February 2018, the State Committee on TV and Radio Broadcasting banned 30
books published in the Russian Federation, including the Russian translation of a book on
‘Stalingrad’ by British historian Antony Beevor.135 Though the number of banned books is low
compared with the number of publications allowed for import from the Russian Federation (over
10,000), OHCHR cautions the Government against disproportionate restrictions on freedom of
expression.
Territory controlled by armed groups
89. The space for expressing critical opinion remained highly restricted in territory
controlled by armed groups. OHCHR documented three incidents when attempts to express
critical opinions were stifled by psychological pressure and threats to physical integrity.136
90. At least five persons released by armed groups in the simultaneous release on 27
December 2017 were being detained inter alia for their critical publications on social media.
There is little understanding that the freedom of speech is a value in itself,
and that it should be protected as the right to life or the right to health.
- Lawyer.
16
OHCHR remains concerned that as of 15 February, at least two bloggers remained detained by
armed groups in ‘Donetsk people’s republic’.
2. Discrimination, hate speech and manifestations of intolerance
91. OHCHR documented 14 cases of discrimination, hate speech and/or violence targeting
persons belonging to minority groups or holding alternative, minority social or political opinions.
Twelve of these cases occurred within the reporting period; in two cases, law enforcement
elements were involved, while in eight cases, perpetrators were members of extreme right-wing
groups who appeared to act with impunity, the police being reluctant to properly classify and
investigate such crimes. OHCHR notes that the proliferation of intolerance threatens
constitutional democracy, rule of law and inclusiveness.
92. In December 2017, during two raids targeting several homes belonging to Roma people
in Zolotonosha (Cherkasy region) and Boryslav (Lviv region), police were physically aggressive;
beating people, damaging or destroying private possessions, and treating the Roma in a
humiliating manner.137 In Zolotonosha, tensions between Roma and other residents rose from 7 to
9 January, resulting in intimidation and harassment of Roma people, including incitement to
violence.138 In Lviv region, OHCHR was informed of actions by local activists including
incitement to violence against Roma, labelling them as criminals.139
93. OHCHR also documented ten acts of intolerance including violence by members of
extreme right-wing groups against individuals belonging to minority social groups and/or people
holding alternative, minority social or political opinions, eight of which occurred during the
reporting period. OHCHR documented physical attacks on individuals,140 peaceful assemblies
and social events deemed to be propagating ideas and values contrary to theirs.141 Such attacks
also may extend to those perceived to belong to minority social groups or to hold alternative
social opinions.142 OHCHR is concerned that police did not take appropriate measures to ensure
the security of those assemblies or to properly classify these attacks and conduct
investigations.143
94. On 28 January 2018, National Brigades – a paramilitary formation – held a march in the
centre of Kyiv, during which they took an “oath” to “protect” the nation when the government
“can’t or won’t”.144 OHCHR notes with concern the extreme right-wing ideology of this group,
its public proclamation to resort to violence when it deems it necessary, and its ties to the
political party National Corps. OHCHR is concerned that the proliferation of extreme ideologies
propagates discrimination and intolerance and threatens constitutional democracy and rule of
law.
95. A “campaign” of intolerance against the Ukrainian Orthodox Church (Moscow
Patriarchate) (hereinafter “UOC(MP)”), led by extreme right-wing group C14,145 began during
the reporting period. On 8 January 2018, several dozen members of C14 blocked the entrance
and road to the Kyiv Pechersk Lavra to protest against the priests’ refusals to conduct services
commemorating fallen Ukrainian soldiers and civilians who were not baptized by UOC(MP).146
Members of C14 behaved aggressively, inciting violence and physically threatening those
expressing opposing views. While the incident continued for over an hour, law enforcement
authorities did not intervene. The same day, C14 announced on social media that this action was
only the beginning of a protest campaign, and threatened to conduct further, larger “protests” in
multiple locations.147 Since then, C14 and other extreme right-wing groups broke into the Kyiv
office of the news website of the Union of Orthodox Journalists, which publishes information on
I felt threatened and afraid; I did not trust the police.
- Demonstrator detained by the police for several hours.
17
UOC(MP),148 and two arson attempts were committed against Tithes Chapel in Kyiv and
St. Volodymyr church in Lviv, both belonging to UOC(MP).149 OHCHR is concerned that law
enforcement agencies did not take effective measures to prevent such acts, to thoroughly
investigate them and to bring those responsible to justice.
96. OHCHR is concerned with expressions of intolerance voiced by some local Government
authorities, such as the Ivano-Frankivsk City Council’s resolution on 15 December, calling upon
the Parliament of Ukraine to discriminate against the LGBT community.150
97. Such statements not only contravene core obligations of States with respect to protecting
the human rights of LGBT persons,151 but also violate anti-discrimination provisions set out in
national legislation.152 OHCHR calls on all members of the Government, including local
authorities, as well as on all political parties, to refrain from and sanction calls for any forms of
discrimination, intolerance and hatred, and to strenuously adhere to the principle of nondiscrimination
in word and action.
B. Freedom of religion or belief
98. OHCHR also documented new instances of interference with freedom of religion in
territory controlled by armed groups.153 OHCHR is concerned with the adoption, on 2 February,
in territory controlled by ‘Luhansk people’s republic’, of a ‘law’ which bans all “religious
groups” not directly linked to traditional religions, thus limiting freedom of religion.154
99. In territory controlled by the armed groups, Jehovah’s Witnesses continued to be
targeted by various actions. OHCHR documented two new instances of “expropriation” of
buildings belonging to the community, bringing the total number of expropriated Kingdom Halls
to 14.155 Two religious publications of Jehovah’s Witnesses were declared “extremist” by the
‘Donetsk people’s republic’156 while a ‘court’ in ‘Luhansk people’s republic’ issued a ‘decision’
stating that actions of Jehovah’s Witnesses “infringe the right to religious self-determination of
others”.157 OHCHR is concerned that such labelling exposes Jehovah’s Witnesses to possible
administrative or criminal sanctions and further harassment.158
C. Freedom of movement
100. The number of crossings of the contact line through five official crossing points
remained at the same level as in previous months. A total of 1,042,000 crossings were registered
in November 2017, 1,089,000 in December 2017, and 748,000 in January 2018. As of 15
February 2018, 670,000 crossings had been registered.159 The drop in the number of crossings in
January may be attributed to the New Year/Orthodox Christmas holidays, as observed in prior
years.160
101. Basic facilities and services available at crossing routes161 were insufficient for the
number of people crossing the contact line daily. Entry-exit checkpoints (EECPs) do not hold
legal status and do not fall under the authority of any single state agency which would be
responsible for maintaining an adequate level of facilities and services. At the end of October
2017, the Prime Minister of Ukraine directed the military-civil administrations in Luhansk and
Donetsk regions to hand over assets to designated communal enterprises tasked with maintaining
decent conditions at checkpoints. This order has not been implemented.
My husband will stay in Travneve,
I will come to Holmivskii because I am too scared to stay there.
Because of this conflict, we will end up with a contact line between us and getting divorced.
- Resident of a village near the contact line.
18
102. Limited availability of medical assistance at crossing routes is of particular concern.162
During the reporting period, at least two medical emergencies occurred at crossing routes, both of
which resulted in deaths.163 Furthermore, there are heightened security risks present near the
contact line, due to armed hostilities as well as mine and ERW contamination. For example, on
21 January, a bus carrying civilians came under small arms fire near the Olenivka checkpoint
(armed-group controlled) along the Novotroitske crossing route, killing one person and injuring
another. Thus it is imperative that timely and adequate medical aid is available at crossing routes.
103. The physical challenges of crossing routes remained particularly daunting for persons
with disabilities and the elderly, who generally make up a significant proportion of those crossing
the contact line.164 Due to the long queues, civilians must endure these conditions for long
periods, sometimes for up to 10 hours, amid freezing temperatures.165 Following numerous
appeals from the international community, the parties to the conflict finally agreed upon
conditions which enabled ICRC to repair the wooden ramps connecting the broken parts of the
bridge at the Stanytsia Luhanska crossing route, on 10 December 2017.166 While this is an
important improvement, manoeuvring up and down the steep ramps at this sole crossing route in
the entire Luhansk region remains difficult for people with disabilities, elderly people and
families with children.
104. OHCHR notes that the 14 April 2017 Temporary Order167 which indefinitely extended
the validity of the permits to cross the contact line, remained unimplemented. Individuals must
therefore apply for extensions of their electronic permits, creating an unnecessary barrier,
especially for persons without access to computers or the internet.
105. On 15 December 2017, the ‘head’ of the ‘Donetsk people’s republic’ adopted a
‘decree’168 prohibiting ‘civil servants’ from traveling to government-controlled territory. Despite
an ‘explanatory note’169 limiting its applicability, implementation of the ‘decree’ remains
unclear.170 OHCHR documented four cases where employees of kindergartens and social
institutions were required to sign a declaration that they had read the ‘decree’ restricting the
freedom of movement of ‘civil servants’.
106. OHCHR also documented two cases where ‘authorities’ of ‘Donetsk people’s republic’
and ‘Luhansk people’s republic’ ‘deported’ civilians from territory under their control.171
OHCHR recalls that international humanitarian law prohibits parties to the conflict from ordering
19
the displacement of civilians, in whole or in part, for reasons related to the conflict, unless
required for the security of civilians or imperative military reasons.172
VI. Economic and social rights
A. Right to an adequate standard of living
107. The living conditions of approximately 600,000173 civilians (including 100,000 children)
who reside close to the contact line, on both sides, worsened due to damages to key civilian
infrastructure and private housing, restrictions on freedom of movement, limited access to basic
services, the high level of unemployment, lack of public transportation, and a generally
deteriorating economic environment.174 Moreover, these conditions significantly isolated these
communities.
108. Incidents of indiscriminate shelling affecting critical water and power supply systems, as
well as sanitation facilities, continued to put staff of these facilities at risk, limit access to safe
water, and as a knock-on effect, disrupt heating systems affecting hundreds of thousands of
civilians on both sides of the contact line (see also paragraph 24 above). At least 27 incidents
affecting water and sanitation facilities were recorded between November and December 2017.175
The Donetsk Filtration Station, which supplies water for 345,000 people on both sides of the
contact line, comes under fire more than other infrastructure, with 13 security incidents involving
shelling and SALW fire occurring during the reporting period.176
109. Access to basic services in isolated communities at the contact line remains a major
concern. For example, in Katerynivka village, located between Popasna and Zolote (governmentcontrolled
territory, Luhansk region), restrictions on freedom of movement and lack of public
transportation aggravated the humanitarian situation of the remaining 310 residents.177 There is
only one shop in the village, where products are overpriced, and there is no post office. Residents
can only leave the village through the Zolote checkpoint.178 The electricity supply is regularly
disrupted due to the ongoing hostilities, yet electricians are unable to provide full services to the
village for security and/or financial reasons.179 Ambulances, emergency services, police and other
essential services do not have full access throughout Katerynivka due to restrictions on
movement imposed by the Ukrainian Armed Forces, and rarely visit.180 Residents expressed
feeling isolated and forgotten by local authorities who fail to respond to their numerous
appeals.181
110. Following the escalation of hostilities in November 2017 in the vicinity of
Novoluhanske village (Donetsk region), residents of the affected villages of Travneve,
Dolomitne and Hladosove no longer had access to basic facilities and services, and their freedom
of movement was restricted by Ukrainian Armed Forces-controlled checkpoints. Residents of
Travneve and Hladosove villages lacked electricity from 16 November 2017 to 5 January 2018
due to damaged power lines in territory controlled by armed groups of the ‘Donetsk people’s
republic’.182 There are no shops or schools in those villages, and access to basic health care is
limited. Restrictions on movement hindered residents’ ability to obtain goods and services
elsewhere.
111. On 11 January 2018, the only Ukrainian mobile network operating in territory controlled
by the armed groups stopped operating due to damages of fibre-optic communication lines.183
The breakdown in mobile network services cut off communication between families separated by
the contact line, disrupted businesses,184 and further prevented access to emergency and medical
Please, give us a road, so we can fetch bread!
- Resident of a village near the contact line.
20
services. In order to reach mobile reception, people tend to take risks, travelling to areas close to
the contact line.
B. Right to social security and social protection
Internally displaced persons
112. Out of 1,492,851 internally displaced persons (IDPs) registered in Ukraine,185 6,000
reside in 215 collective centres186 located throughout the country. Living conditions in many of
these centres are inadequate, with limited access to potable water, unsafe electrical wiring, and
unresolved issues of legal tenure leaving IDPs at risk of eviction.187 In addition, due to low
income of IDPs, ownership disputes over the buildings between various state institutions, and
poor communication between IDPs and local authorities, debts for utility bills accumulate and
can lead to disruptions in supply. For example, during the reporting period, electricity to Teteriv
sanatorium, in Zhytomyr region, was cut twice by the company supplying electricity due to
debts, leaving 188 IDPs (including 88 children) without power, water and heating for up to 24
hours. OHCHR intervention led to restoration of services in both instances, but long-term
solutions are needed.
113. OHCHR welcomes the amendments introduced to the Cabinet of Ministers’ decree No.
1085, which expand the lists of settlements located at the contact line and those where State
authorities temporarily do not exercise their functions.188 This will enable over 100,000 IDPs
from heavily affected areas to receive financial assistance, of which they had been deprived for
almost nine months.189
Payment of pensions
114. OHCHR welcomes the Supreme Court decisions issued in January and February 2018190
in individual cases concerning termination of IDPs’ pension payments based on the rules
established by Cabinet of Ministers resolution no. 365.191 The Supreme Court underlined that
pensions could only be terminated on the basis of an exhaustive list of grounds foreseen in the
law,192 which has a higher legal force than the resolution.
115. OHCHR further welcomes the decision of the Kyiv Circuit Administrative Court on 14
December 2017 declaring resolution no. 365 as unlawful and ordering its cancellation.193 This
judgment, which requires a change of policy, has been appealed by the Cabinet of Ministers.
116. On 13 February 2018, the European Court of Human Rights issued a judgment
regarding claims submitted by seven Ukrainian nationals from Donetsk whose pension payments
had been suspended.194 The Court held that the claimants had not been disproportionately
restricted in their right of access to a court, and that they had failed to exhaust all domestic
remedies available to challenge the suspension of their pensions before Ukrainian institutions.
Thus, on the issue of protection of property, the Court did not assess whether the system for
payment of pensions put in place by the Government ensured practical and effective access to
social benefits for residents of territory not under Government control. Nevertheless, the Court
indicated that the existence of such a system, prompted by an objective fact of hostilities in the
region, cannot give rise to claims of unfavourable treatment when comparing the treatment of
residents of territory controlled by armed groups with that of residents in government-controlled
territory.
117. OHCHR reiterates that the current system, which links the right to pension with IDP
registration,195 has led to a significant reduction in the number of people from armed-groupcontrolled
territory receiving pensions. While 1,278,000 pensioners were registered in this
territory in August 2014, 956,000 persons were receiving pensions as of January 2016, and only
504,900 people as of November 2017.196 While some pensioners residing in territory controlled
by armed groups may receive financial assistance from the self-proclaimed ‘republics’, this does
not replace their right to a pension, which is both a form of property and a type of social
insurance provided exclusively by the State.
21
C. Housing, land and property rights
118. There has been no progress in establishing a restitution and compensation mechanism
for property destroyed and/or damaged due to the armed conflict. While a few courts have
recognized the right of some property owners to compensation in civil cases brought against the
Government, the time prescribed to execute decisions had not yet run197 and no compensation had
therefore been paid as of 15 February 2018.198
119. OHCHR notes that, due to the high number of houses damaged or destroyed and the
costs associated with filing complaints, not all those affected will be able to bring court claims,
highlighting the need for an effective and comprehensive administrative mechanism. OHCHR
further notes that this need has become even more urgent due to the three-year statute of
limitations for civil cases. Thus, in 2018, owners whose property was damaged or destroyed in
2014-2015 may lose one of the avenues to claim restitution or compensation.
120. Furthermore, in villages close to the contact line where there is extensive military
presence,199 OHCHR documented incidents of looting of private houses and ineffective and/or
protracted investigations, particularly when there are reasonable grounds to believe that members
of the Ukrainian Armed Forces may have been involved.200
Territory controlled by armed groups
121. OHCHR has previously expressed concerns over the system of ‘external management’
imposed on private enterprises and the ‘nationalization’ of 109 markets in territory controlled by
‘Donetsk people’s republic’.201 During the reporting period, OHCHR documented the arbitrary
confiscation of private property applied against one individual in ‘Donetsk people’s republic’.202
OHCHR reiterates that everyone has the right to the peaceful enjoyment of one’s possessions.203
VII. Human rights in the Autonomous Republic of Crimea and the
city of Sevastopol
122. On 19 December 2017, the United Nations General Assembly adopted resolution 72/190
on the “Situation of human rights in the Autonomous Republic of Crimea and the city of
Sevastopol, Ukraine”.204 Recalling General Assembly resolution 68/262 (27 March 2014) on the
territorial integrity of Ukraine, and echoing resolution 71/205 (19 December 2016), resolution
72/190 urges the Russian Federation to comply with its obligations as an occupying power in
Crimea, and to ensure human rights protection and unimpeded access of human rights monitoring
missions and NGOs to the peninsula.205 The Russian Federation continued to deny OHCHR
access to Crimea, not recognizing the above-mentioned General Assembly resolutions. OHCHR
therefore continued to monitor the human rights situation in Crimea from mainland Ukraine and
through regular fact-finding missions to areas adjacent to Crimea, including the administrative
boundary line with the peninsula.
123. During the reporting period, the Russian Federation continued to apply its laws in
violation of the obligation under international humanitarian law to respect the legislation of the
occupied territory.206 Peaceful protest actions initiated by Crimean Tatar activists were
sanctioned. OHCHR observed persistent problems in the administration of justice and the
enjoyment of fundamental freedoms in Crimea, and was able to document 18 cases of human
rights violations.
Shut up now, you don't have any rights here!
- Police officer to journalist.
22
A. Freedom of peaceful assembly
124. During the reporting period, 78 Crimean Tatar and two other Muslim men were fined207
for holding one-person pickets, on 14 October 2017, in protest against the arrest of other Crimean
Tatar men for alleged membership in terrorist or extremist organizations.208 They were found
guilty of violating Russian Federation law on public assemblies by holding organized actions,
requiring pre-authorization for their conduct, portrayed as individual initiatives, which do not
require prior authorization.209 OHCHR notes that the judgments offer no evidence that public
actions in the form of single pickets could harm the interests of national security or public safety,
public order, the protection of public health or morals, or the protection of the rights and
freedoms of others, which are the only permissible grounds to restrict the exercise of the right to
peaceful assembly under international human rights law.
B. Freedom of opinion and expression
125. On 18 December 2017, the Supreme Court of Crimea upheld a conviction against
freelance journalist Mykola Semena, charged in April 2016 for writing (under a pseudonym) an
article alleged to contain calls to violate the territorial integrity of the Russian Federation.210 The
Supreme Court maintained the suspended two-and-a-half year sentence but shortened the period
of time during which Mr. Semena is prohibited from working as a journalist from three to two
years. OHCHR noted that parts of the article appear to encourage the use of force to return
control of Crimea to Ukraine,211 and that Article 64(2) of Geneva Convention (IV) provides the
Occupying Power with the right to subject the population of the occupied territory to provisions
which are “essential to ensure the security of the Occupying Power”. At the same time, the
verdict was based solely on a linguistic expert’s report, which was endorsed by the court without
any assessment. This contravenes the due process principle that “all legal matters must be
resolved exclusively by the courts”.212 Furthermore, an alternative linguistic expertise presented
by the defence was dismissed by the court in a formalistic manner without sufficient legal
justification, which may amount to a violation of fair trial guarantees.213
C. Right to education in native language
126. The number of students taught in Ukrainian language in Crimea has drastically
decreased, falling by 97 per cent since 2014.214 In the current academic year, 318 students (0.2
per cent of children attending public schools in Crimea215) are educated in Ukrainian language.216
In addition, the number of children taught Ukrainian as a subject, a selective course, or within
extracurricular activities, has sharply fallen, by approximately 50 per cent (from 12,892 in 2016-
2017 to 6,400 in the current academic year).
127. About 5,600 students (3 per cent of students enrolled in public schools) receive
education in Crimean Tatar - a number which has remained stable over the years.217 Currently,
21,600 students study Crimean Tatar as a subject, a selective course, or within extracurricular
activities – an increase of 12 per cent, from 19,254 students in 2016-2017.
23
128. On 28 December, the Russian authorities, through the Ministry of Education of Crimea,
disseminated to municipalities a “Road map on the choice of language in education”.218 This
document offers a mechanism for parents to request education in native language for their
children. In particular, parents must be informed by school administrations of the right to choose
a language of instruction, the possibilities of learning in languages other than Russian, and the
availability of appropriate teachers. OHCHR welcomes this step, which has the potential to
increase access to education in one’s mother tongue, provided that the roadmap is effectively
implemented in public schools.
D. Forced conscription
129. The Russian Federation continued to compel Crimean residents into its armed forces,
conscripting at least 4,800 men within two campaigns in 2017, in violation of international
humanitarian law.219 In addition, courts in Crimea started to hear cases on charges of draft
evasion.220 At least two guilty verdicts were passed, sentencing two Crimean residents to a
criminal fine of 25,000 RUB each (approximately 430 USD).221 It should be noted that the
Criminal Code of the Russian Federation also prescribes the possibility of incarcerating a person
for up to two years for evading the military draft222 and does not absolve those convicted from
the obligation to undergo military service.
E. Access to public services in mainland Ukraine
130. OHCHR noted a persistent pattern of restricted access to some public services in
mainland Ukraine, particularly banking services, for people originating from Crimea. In
November 2014, the National Bank of Ukraine decreed that people with residence in Crimea had
become “non-residents” of Ukraine for the purpose of banking transactions.223 This restriction
affects people living in Crimea - but not registered IDPs – as well as those who had left the
peninsula for mainland Ukraine before the Russian Federation occupation. As a result, Ukrainian
citizens who were residing in mainland Ukraine before 2014 but had a passport registration
24
indicating a locality in Crimea as their place of residence often felt compelled to obtain IDP
status to be able to open a bank account for employment purposes.224 However, the IDP status
carries more stringent civil registration requirements, often applied arbitrarily, for example to
renew a national passport.225
VIII. Legal developments and institutional reforms
A. New legal framework concerning territory not controlled by the
Government in certain areas of Donetsk and Luhansk regions
131. On 18 January 2018, Parliament adopted a law providing a new framework to reestablish
control over certain areas of Donetsk and Luhansk regions, defining these areas as
occupied by the Russian Federation.226 While outlining the structure of the military operation on
countering armed aggression, the law allows the anti-terrorist operation to continue in parallel
with the military-led one. It also distinguishes several geographical areas with different
applicable regimes relating to the security operation, namely “area of exercise of the security and
defence measures” and “area of hostilities” but does not define them. In addition, areas
“adjacent” to an “area of hostilities” are defined as “security zones”, to be determined by the
military commander,227 where the Government and defence authorities engaged in the security
operation are vested with “special powers”.228 OHCHR invites the Government to ensure that the
principle of proportionality is observed at all times during the exercise of such powers. OHCHR
will carefully monitor implementation of the final text of the law.
132. Several key recommendations jointly made by OHCHR and UNHCR were taken into
account during the revision.229 In particular, the law confirms that the provisions of the 2014
law230 which previously applied exclusively to Crimea, may not apply to the situation in certain
areas of the Donetsk and Luhansk regions unless amendments are made. However, there is no
timeframe for adopting the amendments to the 2014 law necessary to meet the legal certainty
criteria for people to claim rights. As was recommended, the law clarifies that the rules on
transfer of jurisdiction of courts will remain regulated by the existing legislation relating to the
anti-terrorist operation.231 Also, the general rule proclaiming null and void acts issued in areas of
Donetsk and Luhansk regions which are not under Government control foresees an exception, in
line with international jurisprudence, for birth- and death-related documents that “shall be
attached to the applications for registration of birth or death”. OHCHR notes that a similar
exception should be made for documents issued in Crimea. Furthermore, the law authorizes the
Cabinet of Ministers - instead of the military commander - to define the procedure regulating
movement of persons and goods across the contact line. It also prevents the authorities from
denying individuals entry to government-controlled territory in situations threatening the life of
civilians.
133. Despite some positive changes, the law still lacks clarity as to the human rights
consequences of the transition from an anti-terrorist legal framework to this new one.232
B. Status of civilian victims
134. On 14 November 2017, Parliament amended legislation granting participants in the
Maidan events who sustained injuries which did not lead to disability the status of “victims of the
Revolution of Dignity” and entitling them to the same social protection guarantees as persons
having former combatant status.233 The amendments also extend to civilians who acquired
disability in connection to the conflict in eastern Ukraine the same social guarantees as those
applying to war veterans with disabilities. However, these guarantees will apply to civilians in
territory not controlled by the Government only if they were injured before 1 December 2014.
There are no time limitations for civilians injured in government-controlled territory.
25
135. OHCHR welcomes the decision to provide strong social protection guarantees to
civilian victims of the conflict with disabilities on both sides of the contact line. It regrets,
however, that temporal restrictions were imposed on persons residing in territory not under
Government control, which will result in the exclusion of hundreds of civilian victims.234
OHCHR also notes that the situation of civilians who sustained conflict-related injuries which
did not lead to disability remains to be addressed, and stresses the need for a comprehensive
policy to guarantee the right to remedy and reparation for all civilian victims of the conflict,
regardless of the perpetrator and the location where they were injured, in accordance with United
Nations Basic Principles.235
C. Law on Education
136. On 8 December 2017, following a request by the Government of Ukraine, the Council
of Europe’s European Commission for Democracy through Law (Venice Commission) adopted
an Opinion236 on article 7 of the framework Law on Education,237 which reflects concerns
previously raised by OHCHR in relation to minority language education.238 The Commission
noted, in particular, that the law would “considerably reduce”239 the amount of minority language
education and that article 7 treats less favourably minority languages that are not official
languages of the European Union, such as Russian.240 The Commission recommends amending
Article 7 as an “appropriate solution” to avoid “discriminatory treatment” of minority languages
that are not official European Union languages.241 The Commission further recommends that the
Government ensure a sufficient proportion of education is available in minority languages when
implementing the Education law, introduce an appropriate transitional period for its
implementation, and exempt private schools from the new language rules.242
D. Draft legislation on missing persons
137. On 18 January, Parliament adopted in first reading a draft law243 providing for the
establishment of a Commission on Missing Persons for tracing missing persons and identifying
human remains. This text, as well as an alternative one, was registered in Parliament in
November-December 2016244 to address the situation of persons unaccounted for as a result of
armed conflict, public disturbances, and natural or man-made disasters. As recommended by the
lead Parliamentary Committee245 and prompted by OHCHR and other actors’ advocacy, the
document will be revised in preparation for the second reading to incorporate key aspects
contained in the alternative proposal,246 specifically the concept of “enforced disappearance” and
provision of financial assistance to family members of missing persons.
138. OHCHR welcomes this significant step toward streamlining relevant national
procedures. It stresses the importance of ensuring sufficient capacity for the Commission to be
able to deliver its mandate effectively, in line with international standards,247 and to allow
involvement of families of missing persons in the Commission’s work. It is also essential to
provide effective remedies for violations of the right of relatives to know the fate of missing
persons and to guarantee support, rehabilitation and reintegration of missing persons returning
after a prolonged period of absence.
IX. Technical cooperation and capacity-building
139. OHCHR continued engaging with the Government and civil society to support them in
the protection and promotion of international human rights standards within Ukraine, as well as
the application of international humanitarian law. OHCHR assistance focused on implementation
of recommendations dealing with torture from the United Nations Subcommittee on Prevention
of Torture248 and OHCHR past reports, development of the country strategy to prevent and
26
address conflict-related sexual violence, and equal access of all Ukrainian citizens to pension
payments regardless of residence registration or IDP status.
140. Throughout the reporting period, OHCHR promoted the implementation of the Istanbul
Protocol and strengthening measures to prevent and address torture and conflict-related sexual
violence through various trainings and presentations. OHCHR participated in four workshops249
which were part of a series of regional workshops organized by the Office of the Prosecutor
General of Ukraine to promote the United Nations Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Istanbul Protocol). OHCHR’s presentations focused on the identification, documentation and
investigation of torture and other cruel, inhuman or degrading treatment or punishment, in
accordance with international practices and standards. OHCHR also conducted training sessions
on international human rights standards and ethical concerns regarding torture and ill-treatment
for military personnel deployed to the “anti-terrorism operation” area as part of civil-military
cooperation units,250 military chaplains who regularly provide pastoral care to soldiers deployed
at the contact line,251 and members of the Pastoral Care Council (advisory body to the Ministry of
Justice).252
141. In November, an international expert on conflict-related sexual violence contracted by
OHCHR and UN Women concluded her visit to Ukraine and presented to key stakeholders,
including the Vice-Prime Minister, the preliminary draft of a national strategy to prevent and
address conflict-related sexual violence.253 OHCHR, together with UN Women and the expert,
are finalizing the strategy with a view to integrating it into a revised version of the National
Action Plan on the Implementation of the United Nations Security Council Resolution 1325.
142. OHCHR continued to raise awareness of and provide consultations to various
stakeholders on the issue of payment of pensions to Ukrainian citizens with residence registration
in territory controlled by armed groups.254 In partnership with other United Nations agencies, and
under the auspices of the United Nations Resident Coordinator’s Office, OHCHR developed a
briefing note providing an overview of the issue, with statistical data, reflecting the human cost
of current Government policies, and highlighting the legal obligations of the Government in this
area. The briefing note was shared with the Prime Minister of Ukraine, key State officials, civil
society and the international community.
143. In addition, during the reporting period, OHCHR – with the help of Justice Rapid
Response – continued to engage and facilitate the assistance of international forensic experts to
conduct a forensic re-examination related to the deaths resulting from the fire in the House of
Trade Unions in Odesa on 2 May 2014. Such assistance was solicited by the Office of the
Prosecutor General.
X. Conclusions and recommendations
144. As Ukraine is about to enter the fifth year of armed hostilities, civilians continue to pay
the costs of this conflict. Families, friends and business ties continue to be artificially divided by
the contact line, adding to the hardship borne by the population. The parties involved in
hostilities need to adhere to the ceasefire, to protect civilian lives and critical civilian
infrastructure, to alleviate hardships caused by the conflict, and to facilitate freedom of
movement across the contact line.
These villages (on both sides of the contact line) are tied together
like a big ball of yarn.
- Resident of a village near the contact line.
27
145. With the simultaneous release of detainees under the framework of the Minsk
Agreements, more information has come to light regarding serious human rights violations and
abuses perpetrated on both sides of the contact line - arbitrary deprivation of liberty,
incommunicado detention, torture and ill-treatment. These violations and abuses cause grave
suffering for victims and their families, feed division and increase the challenges which shall be
faced in future peace and reconciliation efforts.
146. Violations and abuses perpetrated in conflict-related cases remain essentially
unaddressed, and a systemic lack of accountability deprives victims and the society as a whole of
the right to know. It also fuels a climate of impunity.
147. Such a climate is particularly worrisome as Ukraine prepares for the 2019 presidential
and parliamentary elections. Ukrainian law enforcement authorities must address with resolve
any manifestations of intolerance, threats and violence, including against persons belonging to
minority groups and individuals holding alternative, minority social or political opinions. Respect
for fundamental freedoms and protection of minorities will serve as a bulwark against extreme
ideologies that threaten constitutional democracy ahead of the elections.
148. The residents of the Crimean peninsula continue to be subjected to the legal and
governance framework of the Russian Federation, in violation of international humanitarian law.
OHCHR recalls the United Nations General Assembly’s request that the Russian Federation
comply with its obligations as an occupying power in Crimea.
149. OHCHR notes that most of its past recommendations have yet to be implemented and
remain valid. OHCHR therefore reiterates and further recommends:
150. Recommendations to the Ukrainian authorities:
a) Government of Ukraine to investigate all potential violations of international
humanitarian law, or at the minimum – and as obligated by international law – of
serious violations of international humanitarian law, and ensure accountability through
disciplinary or criminal proceedings, as appropriate.
b) Government of Ukraine to ensure that the right to remedy of victims of serious
violations of international humanitarian law and gross violations and abuses of
international human rights law is fulfilled through equal and effective access to justice
and reparations, including restitution, compensation and rehabilitation, without
discrimination.
c) Where military presence within civilian areas is justified due to military necessity,
Government of Ukraine to take all possible steps to protect the civilian population,
including making available adequate alternative accommodation, as well as
compensation for the use of property and any damages.
d) Government of Ukraine to ensure investigations, in an effective and timely manner,
and prosecute allegations of torture and ill-treatment, arbitrary and incommunicado
detention, sexual- and gender-based violence, including those allegedly committed by
State actors, persons or groups of persons acting with their authorization, support or
acquiescence; and consider establishing an inter-agency group in charge of investigation
of such cases, as civilian investigative bodies do not have access to many alleged places of
detention or where the victims were last seen.
e) Government of Ukraine to ensure that individuals charged with affiliation or links
with the armed groups are remanded in custody pending trial only after individual
determination of reasonableness and necessity thereof.
f) Government of Ukraine to ensure that complaints by conflict-related detainees
regarding arbitrary arrest and/or detention, torture and ill-treatment, are properly
addressed by law enforcement authorities.
28
g) Government of Ukraine to ensure investigations by the National Police of all
allegations of pressure on judges.
h) Government of Ukraine to facilitate the free and unimpeded passage of civilians
across the contact line by increasing the number of crossing routes and entry-exit
checkpoints; lift unnecessary and disproportionate restrictions on, and ease freedom of
movement at all checkpoints, including ‘internal’ checkpoints; and ensure that persons
with residence registered in territory controlled by armed groups are not subjected to
additional discriminatory checks.
i) Government of Ukraine to allocate sufficient funds to designated enterprises to
maintain an adequate level of services and conditions at entry-exit checkpoints with
facilities that provide safe and dignified conditions, in particular for persons with
disabilities, including access to adequate water, sanitation, shelter, medical services and
information.
j) Government of Ukraine to ensure the full implementation of the Temporary Order
on Control of the Movement of People along the Contact Line in Donetsk and Luhansk
regions introduced on 14 April 2017 allowing for non-expiry of permits.
k) Ensure the Prosecutor’s Office, National Police and Military Prosecutor’s office
conduct transparent, timely and effective investigation of attacks on media professionals
and media outlets, threats to physical integrity and other criminal actions that can be
qualified as preclusion of lawful professional activity of journalists.
l) National Police to ensure prompt, effective and unbiased investigation of alleged
violations in connection with the operations of the Myrotvorets website.
m) Security Service of Ukraine to ensure that any restriction on freedom of expression
is imposed only as a specific and individualized response to a precise threat to national
security, and is both necessary and proportionate.
n) Ministry of Internal Affairs and National Police to ensure that law enforcement
officials involved in policing of public assemblies know and apply international human
rights standards, and take all appropriate measures to secure such assemblies without
discrimination, including gatherings of persons belonging to minority groups.
o) Government of Ukraine to guarantee that residents of all villages adjacent to the
contact line can access basic services and receive social payments and pensions.
p) Government of Ukraine to ensure that IDPs living in collective centres enjoy an
adequate standard of living, including safe access to drinking water, electricity and
heating, as well as appropriate access to basic services and employment opportunities.
q) Government of Ukraine, Parliament and other relevant State bodies to eliminate
obstacles preventing all citizens from enjoying equal access to pensions regardless of
their place of residence or IDP registration.
r) Government of Ukraine, Parliament and regional authorities to ensure that
persons with disabilities residing near the contact line have equal access to quality health
services, including by facilitating freedom of movement and providing accessible
transportation.
s) Ministry of Temporarily Occupied Territories and Internally Displaced Persons,
Ministry of Social Policy and other relevant state bodies to ensure that IDPs with
disabilities are provided with adequate accommodation, access to in-home and other
services, and means for inclusion in the community.
t) Government of Ukraine to establish independent, transparent and nondiscriminatory
procedures of documentation and verification of housing, land and
property ownership; create a registry of damaged or destroyed housing and other
29
property; and set up a comprehensive legal mechanism for restitution and
compensation.
u) Office of the Prosecutor General and other law enforcement agencies to ensure
appropriate classification, investigation and prosecution of crimes committed on the
basis of religious affiliation, ethnicity, sexual orientation, gender identity, beliefs, views
or opinions, including crimes perpetrated by members of extreme right-wing groups.
v) Government of Ukraine to ensure that the language provision in the Law on
Education does not lead to violations of the rights of minorities or discrimination against
certain minority groups.
w) Government of Ukraine to simplify access to banking services and IDs in mainland
Ukraine for people originating from Crimea and territory controlled by armed groups.
x) Government of Ukraine to develop a comprehensive policy to guarantee adequate,
effective, prompt and appropriate remedies, including reparation, to civilian victims of
the conflict, especially those injured and the families of those killed, in accordance with
United Nations Basic Principles255.
y) Parliament to ensure the revision of the procedure for selection and appointment of
the Ombudsperson, in line with the recommendations of the Sub-Committee on
Accreditation of the Global Alliance of National Human Rights Institutions; in
particular the procedure should include requirements to publicize vacancies broadly,
assess candidates on the basis of predetermined, objective and publicly available
criteria, and promote broad consultation and/or participation in the screening, selection
and appointment process.
z) Government of Ukraine to establish an independent and impartial centralized
State authority for tracing missing persons and identifying human remains, with
sufficient capacity and reach to deliver its mandate effectively, and ensure effective
investigation and prosecution of enforced disappearance.
aa) Government of Ukraine to provide effective remedies for violations of the right of
relatives to know the fate of missing persons; in particular, introduce guarantees
responding to their material, financial and psychological needs; and ensure support,
rehabilitation and reintegration of missing persons returning after a prolonged period of
absence.
151. To all parties involved in the hostilities in Donetsk and Luhansk regions, including
the Ukrainian Armed Forces, and armed groups of the self-proclaimed ‘Donetsk people’s
republic’ and ‘Luhansk people’s republic:
a) Bring to an end the conflict by adhering to the ceasefire and implementing other
obligations foreseen in the Minsk agreements, in particular regarding withdrawal of
prohibited weapons and disengagement of forces and hardware;256 until such
implementation, agree on and fully respect “windows of silence” to allow for crucial
repairs to and maintenance of civilian infrastructure in a timely manner.
b) Take all feasible precautions to minimize harm to the civilian population during
operations in areas populated by civilians, including by: locating military objectives
such as armed forces and weapons systems outside of densely populated areas, or when
such relocation of military objects from civilian areas is not feasible due to military
necessity, removing civilians – with their consent – from the vicinity of military objects
to ensure their safety; immediately ceasing the use of weapons with indiscriminate
effects in areas populated and used by civilians, particularly those with a wide impact
area or the capacity to deliver multiple munitions over a wide area; and strictly comply
with international humanitarian law, in particular, refrain from deliberately targeting
civilians or civilian objects, including objects indispensable to the survival of the civilian
population, such as drinking water installations and supplies.
30
c) Investigate any attack that may have caused incidental loss of civilian life, injury to
civilians, or damage to civilian objects; establish whether such attack was excessive in
relation to any anticipated concrete and direct military advantage; and hold those
responsible to account.
d) Armed groups of the self-proclaimed ‘Donetsk people’s republic’ and the selfproclaimed
‘Luhansk people’s republic’ to ensure that all instructions and directives
issued in relation to the conduct of hostilities are compliant with international
humanitarian law, and provide training in international humanitarian law to its
members.
e) Ensure unimpeded access for OHCHR and other independent international
observers to all places of deprivation of liberty, and allow private, confidential
interviews with detainees; keep a detailed register of every person deprived of liberty
and inform their families where they are held.
f) Treat all persons detained, including those held in connection with the conflict and
soldiers and fighters, humanely in all circumstances.
g) Enable and facilitate the voluntary transfer of all pre-conflict detainees to
government-controlled territory, regardless of their registered place of residence, in
order to enable contact with their families.
h) Armed groups of ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ to
respect freedom of religion or belief in territory under their control, and refrain from
infringement upon this right, including by lifting the existing prohibition of Jehovah’s
Witnesses, halting seizures of their religious buildings and the harassment of their
members.
152. To the Government of the Russian Federation:
a) Implement General Assembly Resolution 72/190 of 19 December 2017, including by
ensuring proper and unimpeded access of international human rights monitoring
missions and human rights non-governmental organizations to Crimea.
b) Ensure that the right to freedom of peaceful assembly can be exercised by all
Crimean residents in any form including single-person pickets, without any restrictions
other than those permissible by international human rights law, and without
discrimination on any grounds.
c) Refrain from sanctioning free speech and peaceful conduct, and release all persons
arrested and charged for expressing dissenting views, including regarding the status of
Crimea;
d) Comply with the international humanitarian law obligation not to compel residents
of the occupied territory of Crimea to serve in the armed forces of the Russian
Federation; quash all guilty verdicts in this regard and discontinue all criminal
proceedings initiated against protected persons in Crimea for evading military service in
the armed forces of the Russian Federation;
e) Ensure the availability of education in Ukrainian language.
153. To the international community:
a) Encourage the parties to the conflict to pursue all available political and practical
avenues to continue simultaneous release of conflict-related detainees pursuant to the
Minsk agreements.
b) In light of the upcoming presidential and parliamentary elections, as well as
attacks on journalists and other individuals documented by OHCHR, strengthen their
engagement in combatting discrimination and manifestations of intolerance towards
31
ethnic, political, sexual and other minorities in Ukraine, linking prospects of cooperation
to progress in this regard.
i
ANNEX I
Endnotes
1 OHCHR was deployed on 14 March 2014 to monitor and report on the human rights situation throughout Ukraine and to
propose recommendations to the Government and other actors to address human rights concerns. For further details, see
paras. 7–8 of the report of the United Nations High Commissioner for Human Rights on the situation of human rights in
Ukraine of 19 September 2014 (A/HRC/27/75).
2 United Nations Human Rights Council Special Procedures mandate holders and Human Rights Treaty Bodies.
3 The majority of human rights violations documented by OHCHR during the reporting period involve incidents which
occurred prior to the reporting period.
4 Hereinafter ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’.
5 Three civilian casualties (all injuries) were caused by booby traps, whilst 23 (9 killed and 14 injured) were caused by
imprudent handling of ERW, mostly hand grenades.
6 “Release and exchange of all hostages and unlawfully detained persons, based on the principle “all for all” is foreseen in
para 6 of the Package of Measures for the Implementation of the Minsk Agreements. English translation available at
https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf. The Working Group on
Humanitarian Issues reached the decision on the simultaneous release at the end of November 2017, after a year of tense
discussions in Minsk.
7 See U.N. General Assembly resolution 68/262 of 27 March 2014 on the territorial integrity of Ukraine, resolution
71/205 of 19 December 2016 referring to Crimea as being occupied by the Russian Federation and resolution 72/190 of
19 December 2017 urging the Russian Federation to comply with its obligations as an occupying power in Crimea.
8 Law “On particular aspects of public policy aimed at safeguarding the sovereignty of Ukraine over the temporarily
occupied territory of the Donetsk and Luhansk regions of Ukraine” (draft law no.1763). See also OHCHR Report on the
human rights situation in Ukraine, 16 May to 15 August 2017 (hereinafter “OHCHR 19th Report”), paras. 148-154.
9 OHCHR documents civilian casualties by consulting a broad range of sources and types of information which were
evaluated for credibility and reliability. In analysis of each incident, OHCHR exercises due diligence to corroborate
information from as wide a range of sources as possible, including OSCE public reports, victim and witness accounts,
military actors, community leaders, medical professionals, and other interlocutors. In some instances, documentation may
take weeks or months before conclusions can be drawn, meaning that numbers on civilian casualties may be revised as
more information becomes available. OHCHR does not claim that the statistics presented in this report are complete.
Civilian casualties may be underreported given limitations inherent in the operating environment, including gaps in
coverage of certain geographic areas and time periods.
10 The deaths of 11 men and 1 woman, and the injury of 31 men, 24 women, 4 girls and 2 boys.
11 Between 16 August to 15 November 2017, OHCHR documented 87 civilian casualties: 15 killed (14 man and 1 boy)
and 72 injured (42 men, 19 women, 10 boys and 1 girl).
12 OHCHR recalls that the parties committed to withdraw heavy weapons under the Minsk agreements. During the
reporting period, hostilities intensified between 2 to 20 December, particularly in Donetsk region. Hostilities substantially
reduced between 23 December and 10 January as a result of a re-commitment to the ceasefire negotiated by the Trilateral
Contact Group and other signatories to the Minsk agreements for the Christmas and New Year period. OSCE SMM
recorded almost 16,000 ceasefire violations the week of 11 to 17 December and over 10,000 ceasefire violations from 18
to 24 December. This fell to approximately 2,000 ceasefire violations recorded the week of 25 to 31 December 2017 and
just under 4,000 ceasefire violations from 1 to 7 January 2018. See OSCE daily and spot reports at
http://www.osce.org/ukraine-smm/reports/; OSCE press statement on re-commitment at http://www.osce.org/specialmonitoring-
mission-to-ukraine/364031.
13 Civilian casualties due to shelling and light weapons are compiled together because a number of casualties stemmed
from fragmentation injuries which could have been caused by either, specifically 1 death (a man) and 18 injuries (11 men
and 7 women). In addition, OHCHR recorded 1 death (a man) and 21 injuries (11 women, 8 men and 2 girls) caused by
shelling from guns, mortars, howitzers and MLRS.
14 Specifically, the death of 1 man and the injury of 4 men and 1 woman.
15 For example, actors used a Grad multiple rocket launch system to shell Novoluhanske – a town populated by
approximately 3,500 civilians – on 18 December. On 29 November, SMM located in government-controlled Svitlodarsk
recorded approximately 70 undetermined explosions and heavy-machine-gun and small-arms fire, all 2-5km south-east
and south, and 24 explosions assessed as 122mm MLRS munitions, 4-5km to the northeast. OSCE SMM daily report at
http://www.osce.org/special-monitoring-mission-to-ukraine/360141. Overnight on 4-5 December, SMM in armed-groupcontrolled
Kadiivka (formerly Stakhanov) recorded approximately 200 undetermined explosions 6-18km away, and
approximately 100 explosions assessed as outgoing rounds of 122mm MLRS munition 6-9km away. OSCE SMM daily
report at http://www.osce.org/special-monitoring-mission-to-ukraine/360961. In Novoluhanske on 20 December, SMM
documented a fresh crater in a field assessed as caused by a 122mm MLRS munition. The crater was located 50m from
the nearest house. OSCE SMM daily report at http://www.osce.org/special-monitoring-mission-to-ukraine/364021.
16 ICRC, Customary International Humanitarian Law Database, Rules 11, 12, 15, 17.
17 Explosive remnants of war include both unexploded ordnance (UXO) and abandoned explosive ordnance (AXO).
18 This is a 28.1 per cent decrease compared with the previous reporting period (16 August to 15 November 2017) when
OHCHR recorded 32 civilian casualties caused by ERW incautious handling: 6 killed and 26 injured. During the
reporting period, most of such civilian casualties resulted from incautious handling of hand grenades or their use in
interpersonal conflicts, with perpetrators often being intoxicated by alcohol, or from attempts to dismantle AXOs (shells
or cartridges for small arms).
ii
19 Protocol II (as amended on 3 May 1996) to the 1980 Convention on Certain Conventional Weapons also restricts the
indiscriminate and disproportionate use of booby-trap devices (defined as any device or material which is designed,
constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an
apparently harmless object or performs an apparently safe act) and – as in international humanitarian law – requires that
all feasible precautions be taken to protect civilians from the effects of booby traps (including taking into account
measures to protect civilians and the availability and feasibility of using alternatives). It further prohibits the use of booby
traps attached to, or associated with, a wide range of specific items, and in any area with a concentration of civilians akin
to that found in a city, town, or village where combat between ground forces is not taking place or does not appear to be
imminent. Ukraine consented to be bound by Protocol II on 15 December 1999. The protocol binds all parties to the
conflict in a non-international armed conflict. See Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 CCW Convention as amended on 3 May
1996), Articles 1,2,3,7. See ICRC, Customary International Humanitarian Law Database, Rules 1, 11 and 12.
20 See also “Freedom of movement” and “Right to adequate standard of living” sections.
21 OHCHR interview.
22 For example, OHCHR documented shelling damage to civilian homes (houses and apartments), a school, kindergarten
and medical post in government-controlled Novoluhanske on 18 December and to a kindergarten in armed-groupcontrolled
Holmivskyi on 17-18 December. Shelling of armed-group-controlled Kadiivka (formerly Stakhanov) on 19
December shattered the windows of a polyclinic and damaged civilian homes. OCHA reported an increase of reported
incidents against education facilities during December. Humanitarian Snapshot (as of 23 January 2018) at
https://www.humanitarianresponse.info/en/operations/ukraine/infographic/ukraine-humanitarian-snapshot-23-january-
2018.
23 Presence of military or armed groups and their use or occupation of civilian property was documented by OHCHR in
Bolotene on 13 December, Druzhba on 6 December, Lopaskyne on 14 December, Lobacheve on 14 December,
Novhorodske on 5 December, Novoluhanske on 4, 8, 21 December and 23 January, Novooleksandrivka on 17 January,
Novoselivka Druha on 6 December, Pankivka on 7 December 2017), Syze on 13 December, Travneve on 23 January,
Trokhizbenka on 14 December, Verkhnotoretske on 6 December and 26 January, and Zolote-4 on 17 January, Pisky,
Pervomaiske and Vodiane (Yasynuvata district) on 14 February. In addition, OHCHR observed that the UAF occupied
homes in Travneve in late November and marked houses in Travneve and Hladosove with civilians present with circles
while empty houses were marked with crosses. In Katerynivka, OHCHR observed renewed military presence on 8
February. According to local residents, UAF returned their positions back inside the village at the end of December and
occupied civilian homes.
24 ICRC Customary International Humanitarian Law Study, Rules 11, 12, 14, 156. See also Rule 15, requiring parties to
take all feasible precautions to avoid – and in any event minimize – incidental loss of civilian life, injury to civilians and
damage to civilian objects during the conduct of military operations.
25 OHCHR documented such examples in Bolotene (13 December), Katerynivka (8 February), Pervomaiske (14
February), Pisky (14 February), Novoselivka Druha (6 December), Syze (13 December), Verkhnotoretske (26 January)
and Vodiane (14 February). See also “Housing, land, and property rights” section below.
26 For example, OHCHR observed that the electricity supply to areas of Zolote-4 was cut by shelling on 18 November,
denying electricity to one street and a hamlet during sub-zero temperatures. Repair teams refused to go to the area
because of the inability to organize a “window of silence” as a result of the departure of Russian soldiers from the Joint
Centre for Control and Coordination (formed in September 2014, provides a mechanism for monitoring the ceasefire and
resolving issues linked to stabilization of the area around the contact line, including the coordination of “windows of
silence”; hereinafter JCCC). The electricity supply resumed on 27 November. Similarly, the populations of
Novoluhanske, Hladosove and Travneve had limited access to electricity after 16 November and 28 December due to
shelling damages to infrastructure. On 19 December, one of two power lines to the First Lift Pumping Station was
damaged by shelling and cannot be repaired without a window of silence. If the remaining power line is damaged,
electricity supply to the pumping station will be cut. The station supplies water to five filtration stations, which in turn
process water for over 1 million people on both sides of the contact line. Information provided by WASH Cluster.
27 WASH Incident Reports at https://www.humanitarianresponse.info/en/operations/ukraine/water-sanitation-andhygiene.
OHCHR has consistently raised the risks surrounding direct or indirect damage to the Donetsk Filtration Station
(DFS) (located in “no man’s land” approximately 15 km north of Donetsk city) from use of explosive weapons. See, e.g.,
OHCHR Report on the human rights situation in Ukraine, 16 August to 15 November 2017 (hereinafter “OHCHR 20th
Report”), para. 24. During the reporting period, in addition to the shelling and shooting in the vicinity of the DFS on 19
December, the facility came under fire on 1-2 December (shelling leaving behind unexploded ordnance); 3 December
(shelling); 12 December (a machine-gun bullet entered a room where an employee was present) and 17-18 December (a
shell landed next to a chlorine pipe). Other facilities were also impacted by the hostilities. On 26 January, the First Lift
Pumping Station of the South Donbas Water Pipeline was reconnected to a reserve power line as a result of shelling and
damage to a power converter. A repair brigade was unable to repair the power converter on the same day after small arms
fire in the area posed a risk. On 12 December, a shell hit the grounds of Horlivka Filter Station No.2 (armed-groupcontrolled
territory), which supplies water to 184,000 people on both sides of the contact line. On 31 December, the
Holmivskyi Waste Water Treatment Plant, which provides treats water supply for 7,800 people, lost power due to shelling
damage to a power cable which connected the substation to the power line. The cable was repaired a few days later.
28 Projectiles landed on the grounds of the DFS, requiring evacuation of approximately 70 staff to the bomb shelter. The
evacuation had to be completed without any security guarantees due to difficulties coordinating a “window of silence”
following the withdrawal of the Russian Federation from the JCCC. (Source: Wash Cluster.) See also
http://www.osce.org/special-monitoring-mission-to-ukraine/363681?download=true. OHCHR is unable to determine
which party to the conflict fired the projectiles that landed in the vicinity of the Donetsk Filtration Station.
iii
29 Comment by the Information and Press Department of the Russian Federation Ministry of Foreign Affairs, available at
http://www.mid.ru/en/web/guest/maps/ua/-/asset_publisher/ktn0ZLTvbbS3/content/id/2993360.
30 OHCHR interviews, November 2017 – January 2018.
31 OHCHR previously reported on such pattern, which were more common in 2014-2015. Then, the authorities justified
such practice by the fact that due to hostilities it was impossible to immediately deliver a detainee to an official place of
detention.
32 OHCHR interview, 27 December 2017.
33 Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution
1992/32, E/CN.4/1995/34, para. 926(d) reminds “Each interrogation should be initiated with the identification of all
persons present. All interrogation sessions should be recorded and the identity of all persons present should be included in
the records. Evidence from non-recorded interrogations should be excluded from court proceedings. The practice of
blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of
identifying their torturers.”
34 To improve the legal framework on medical care provision in places of deprivation of liberty, Ministry of Justice and
Ministry of Health issued a joint order No. 1517/5/503 dated 10 May 2017, which amended previously existing
mechanisms of identification and registration of bodily injuries of the convicted detainees, as well as those who just
arrived to the detention facilities. This amended order foresees mandatory registration of bodily injuries and notification
of authorities about them, medical examination of the detainees without presence of non-medical staff, free choice of a
doctor and confidentiality of medical records.
35 Detainees often tell OHCHR during interviews that they are compelled/threatened to provide such explanations by the
law enforcement bodies that detained an individual.
36 For example, see OHCHR Report on human rights situation in Ukraine, covering the period from 16 August to 15
November 2017, para 62; CAT/OP/UKR/3, Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment Visit to Ukraine undertaken from 19 to 25 May and from 5 to 9 September 2016:
observations and recommendations addressed to the State party.
37 Chapters IV, V and VI of the Istanbul Protocol detail that medical examination and psychological evaluation should be
thorough, even if the victim does not have any immediate complaints and acute symptoms at the time of examination.
Istanbul protocol highlights the importance of interviewing the alleged victim and recording the answers regarding how
injuries were received, healing process, etc.
38 Seven cases involving 12 individuals.
39 In one emblematic case recorded during the reporting period, a victim was detained at an armed-group-controlled
checkpoint in August 2017, hooded and handcuffed, and brought to the ‘MGB’ building in Donetsk. On the way, he was
pressured to confess to being a spy and threatened. At ‘MGB’ he was interrogated for ten hours, after which he was told
to sign a document stating he had not been under pressure. When he refused, an ‘MGB officer’ gave him two options: to
sign the document, hand over his personal belongings including passport and leave the building, or to not sign it and end
up in the basement. The victim chose the first option and was released. Following this, he was twice summoned to ‘MGB’
for interrogation. At the end November, he appealed to ‘MGB’ to return his passport, and later to the ‘general prosecutor’.
On 6 December, after the victim and his lawyer filed a complaint at ‘MGB’, he was arrested on his way home. ‘MGB
officers’ took him to a field, searched him, and told him to sign documents or they would take him to a minefield and he
would be just another civilian casualty. He protested, but the ‘officers’ threatened him with beatings and death. The
victim signed: 1) a statement confirming he received his documents back from ‘MGB’; 2) an admission of verbally
‘consenting’ to cooperate with SBU to defame the ‘Donetsk people’s republic’; and 3) a ‘notice’ of ‘deportation’ from
‘DPR’ for 5 years. He was then taken to a checkpoint, given his documents and acellphone, transferred to governmentcontrolled
territory.
40 OHCHR documented four such cases during the reporting period. This is in line with previous recorded cases.
41 https://dan-news.info/obschestvo/sotrudniki-mgb-dnr-v-2017-godu-zaderzhali-po-podozreniyu-v-shpionazhe-igosizmene-
pochti-250-chelovek.html.
42 See also OHCHR Report on the human rights situation in Ukraine, 16 February to 15 May 2017 (hereinafter “OHCHR
18th Report”), paras. 43-44; OHCHR 20th Report, paras. 40-44.
43 In a few rare instances, the person was released shortly after the apprehension.
44 In an emblematic case recorded during the reporting period, a couple disappeared while crossing an armed-groupcontrolled
checkpoint on 16 October 2017. Relatives appealed to ‘MGB’, ‘police’ and the ‘general prosecutor’ without
response. On 28 November, relatives found out that the couple was detained by ‘MGB’, however could not confirm their
whereabouts.
45 “Torture is most frequently practised during incommunicado detention. Incommunicado detention should be made
illegal and persons held incommunicado should be released without delay. Legal provisions should ensure that detainees
be given access to legal counsel within 24 hours of detention. Security personnel who do not honour such provisions
should be punished. […] In all circumstances, a relative of the detainee should be informed of the arrest and place of
detention within 18 hours.” Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1992/32,
E/CN.4/1995/34, para. 926(d).
46 It was introduced in 2014 and has not been lifted.
47 All 20 prisoners were convicted before the outbreak of the conflict. They were held in the following colonies: No. 32
Makiivka, No. 52 Yenakiieve, No. 97 Makiivka, No. 28 Torez, No. 33 Kirovske, No. 124 Donetsk and No. 3 Zhdanivka
for individuals with tuberculosis. OHCHR interviewed 14 out of these 20 prisoners.
48 See, e.g., OHCHR 20th Report, paras. 63-64.
iv
49 Prisoners reported that food was “often rotten” and “sometimes dangerous for consumption”; if the food was of better
quality, the portions were small and insufficient. The situation was particularly bad in 2014-2015 in some colonies,
“amounting to starvation”.
50 There is only one official crossing route across the contact line in Luhansk region. It is open only for pedestrians (no
vehicles), who must walk across wooden ramps connecting pieces of a broken bridge. It is particularly difficult for
persons with disabilities, families with children or the elderly to traverse.
51 Armed groups do not acknowledge court decisions by the Ukrainian judiciary, resulting in arbitrary and prolonged
detention.
52 Instead the Ministry of Justice created the “Medical center of the State Correctional Service of Ukraine”.
53 For example, the Military Prosecutor’s offices of Kharkiv and Mariupol garrisons are conducting investigations into
allegations of illegal arrest and detention and use of unlawful methods of interrogation by SBU officers; four UAF
soldiers are currently standing trial in Svativskyi district court of Luhansk region on charges of abduction and killing a
civilian in June 2014 in Kreminna district, Luhansk region; five members of former ‘Donbas’ volunteer battalion, three
members of ‘Dnipro-1’ battalion and three members of ‘Right Sector’ are on trial before Krasnoarmiisk town-district
court of Donetsk region for crimes perpetrated against civilians in 2014-2015 and early 2016; an SBU officer accused of
beating to death a resident of Avdiivka in March 2017 is on trial before Druzkivskyi town court of Donetsk region; the
trial against 2 SBU officers, accused of causing a death of a civilian arrested at a checkpoint by torturing him and failing
to enable his immediate access to medical aid in November 2014 is nearing completion in Izium town-district court of
Kharkiv region.
54 See, e.g., the case of Dmytro Shabratskyi (see OHCHR thematic report on Accountability for killings, Annex I, paras
117-118). Despite a forensic report finding that he died of a gunshot wound to the head and mine-blast trauma, police
classified the death as suicide and closed the case. The victim’s family had to obtain a court order to reopen the case,
however even then there was no proper investigation into his death. For example, ballistic tests of a rifle found next to the
body were not conducted. In the case of Roman Postolenko, a civilian killed by the State Border Guard Service patrol (see
OHCHR thematic report on Accountability for killings, Annex I, paras 11-14), all the alleged perpetrators were granted
witness status, leaving the victim’s family without access to compensation or redress, as according to the investigation,
the soldiers acted within their functions when they opened fire. OHCHR notes that during investigation, the case was
closed twice by the Prosecutor and ordered re-opened by the court, showing a reluctance to investigate the killing as a
crime perpetrated by state actors.
55 OHCHR has consistently documented and reported on the use of torture to illicit “confessions”. See, e.g., paras. 29, 65
and 68 above, OHCHR 20th Report, paras. 47-50. OHCHR 19th Report, paras. 52-55.
56 Article 176(5) envisages custodial detention as the only possible measure of restraint for individuals accused inter alia
of affiliation or links with armed groups.
57 ICCPR, art. 9 and 14.
58 “The physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received
in custody… It thus serves as a safeguard for the right to security of person and the prohibition against torture and cruel,
inhuman or degrading treatment”. General Comment no. 35 Article 9 (Liberty and security of person), para. 34.
59 Human Rights Committee, General Comment no. 35 Article 9 (Liberty and security of person), para. 37.
60 OHCHR consistently receives allegations that detainees are prohibited from contact with a lawyer during the initial
period of arrest and detention.
61 International Covenant on Civil and Political Rights, art. 14; European Convention on Human Rights, art. 6.
62 See, e.g., OHCHR 20th Report, paras. 71 and 77.
63 In January 2018, the trial of Nelia Shtepa came to a halt after a number of Leninskyi district court of Kharkiv judges
recused themselves from the case. The case was then transferred to Zhovtnevyi district court of Kharkiv for the fourth retrial,
raising serious concerns about violation of the right to trial without undue delay.
64 Serhii Yudaiev was charged with rioting and hooliganism in connection with alleged participation in the takeover of the
Kharkiv regional state administration on 6-7 April 2014. Despite the minor gravity of the charges, he was detained for 3.5
years, since May 2014.
65 Verdict, Kyivskyi district court of Kharkiv, 6 November 2017, at http://reyestr.court.gov.ua/Review/70066827. The
SBU reportedly presented the convict with new charges that would allow them to demand continuation of his custodial
detention.
66 The former SBU Head of Kyiv city and region is currently tried before the Shevchenkivskyi district court of Kyiv on
charges of organizing the killing of 10 persons in a manner endangering others and organizing the infliction of bodily
injuries by a group in a manner causing special suffering, resulting in the death of one person and a total of 22 victims.
67 Armed civilians, sometimes wearing camouflage and masks, often with criminal records, who were engaged by law
enforcement to attack protestors.
68 The timing of the gathering of ‘titushky’ at Sofiiska square in Kyiv coincides with the beginning of the ‘anti-terrorist
operation’ in the city centre. Similarly, they left the scene approximately at the time when the active phase of the
‘operation’ was over; video footage from security cameras at the scene shows that ‘titushky’ left the crossroads at 3:00
hrs, after the active phase of the ‘anti-terrorist operation’ at Maidan had ended for five hours (see reconstruction of events
at http://talio.org/en/events/vasiltsov_and_veremiy). The place of their deployment is also hardly accidental – Sofiiska
square is just a few blocks from Maidan in the direct path of protesters retreating from Maidan after their anticipated
dispersal by police and security forces in the course of the ‘anti-terrorist operation’. Interestingly, attacks on unarmed
protesters have been perpetrated right in the immediate vicinity of Kyiv regional police, with no interventions from their
side. The purpose of the deployment of ‘titushky’ was also similar to that of the ‘anti-terrorist operation’. As a result two
individuals have been shot dead (Vitalii Vasyltsov and Viacheslav Veremii) and at least six others have sustained gunshot
wounds. Many more have been physically abused.
v
69 The investigation found that senior officials of the Ministry of Internal Affairs (MoIA) organized the illegal transfer of
automatic firearms and ammunition to ‘titushky’ on 20 February 2014 for use against the protests, and identified 12
suspects including the former Minister of Internal Affairs, former head of MoIA supplies department and former Head of
Kyiv police (http://rrg.gp.gov.ua/reestr-kriminalnih-provadzhen/golovne-slidche-upravlinnja-generalnoi-prokuraturiukraini/
postachannya-ta-zastosuvannya-spetszaso/). A former member of the MoIA special unit combatting organized
crime carried the firearms to ‘titushky’ from the armoury.
70 On 22 December 2017, the Shevchenkivskyi district court of Kyiv sentenced the gang leader to a four-year suspended
sentence with a two-year probation period (verdict available at http://reyestr.court.gov.ua/Review/71189809) and released
him. The court established that he was paid USD 20,000 to organize 200-300 young, athletically-built men to “protect
public order”, and they were provided with bats (by an unknown individual) prior to their deployment at Sofiiska square
(few blocks from Maidan Independence Square). When they noticed journalist Viacheslav Veremii videotaping them
from a taxi, the accused together with other ‘titushky’ dragged him out and severely beat him with bats. When he tried to
escape, one shot him in the back, causing his death. Despite these facts, the court accepted the defence’s arguments that
the accused ordered others not to touch the victim and the shooter acted on his own initiative, thus accepting the
qualification of the crime as “hooliganism”.
71 The gang leader was arrested on 29 March 2014 and remanded in custody on charges of killing Viacheslav Veremii,
however, on 27 May 2014, due to threats he allegedly received while in detention, he was placed under house arrest as
well as provided with protection by the State Protection Service. Shortly after, the prosecutor changed the qualification of
crime from murder to hooliganism. On 22 August 2014, the accused was released from house arrest under personal
recognizance. On 19 October 2014, the Shevchenkivskyi district court of Kharkiv granted the prosecutor’s motion to hold
the trial in closed sessions (video of hearing available at https://www.youtube.com/watch?v=JA4OCzQCX0A). Pending
trial, he committed two other crimes. On 17 March 2016, the Kyievo-Sviatoshynskyi district court of Kyiv region
convicted him of illegal possession of weapons and imposed a three-year suspended sentence (court decision at
http://reyestr.court.gov.ua/Review/56651650). A second trial on hooliganism charges stemming from a raid on a gas
station during which a few people were beaten and one was shot with a “traumatic pistol” is ongoing before the
Solomianskyi district court of Kyiv (criminal proceeding no. 760/4865/17-к). The above did not persuade the
Shevchenkivskyi district court of Kyiv dealing with the case of the killing of Viacheslav Veremii to change the measure
of restraint for Yurii Krysin.
72 Court decision available at http://reyestr.court.gov.ua/Review/71231699. The three ‘titushky’ are accused of attempting
to murder six protesters using firearms, attacking and intimidating protesters using bats and sticks, and carrying out a
“joint criminal intention aimed at counteracting peaceful protests” together with unidentified individuals between 22:30
hrs on 18 February to 2:30 hrs on 19 February 2014.
73 See OHCHR thematic report on accountability for killings in Ukraine from January 2014 to May 2016, Annex I, table 1.
74 Briefing of the Prosecutor General’s Office, 12 February 2018. See also briefing of the Head of the Special
Investigations Department of the Prosecutor General’s Office, 20 February 2018 at:
https://www.youtube.com/watch?v=yVsd_zkA0Rc.
75 See OHCHR 20th Report, para. 90.
76 Ruling dated 18 October 2017, available at: http://reyestr.court.gov.ua/Review/69748019.
77 OHCHR meeting, 21 December 2017.
78 On 9 January 2018, OHCHR received a response (dated 26 December 2017) from the Malynovskyi district police
department stating that criminal investigations into pressure on a panel of judges of the Malynovskyi district court of
Odesa on 30 November 2015 and attacks on a defence lawyer on 18 July 2016 and 12 May 2017 have been ongoing, and
the criminal investigation into pressure on judges of the Court of appeal of Odesa region on 7 June 2016 was closed on 16
December 2016 due to absence of corpus delicti. See OHCHR Report on the human rights situation in Ukraine, 16
November 2015 to 15 February 2016 (hereinafter “OHCHR 13th Report”), para. 100; OHCHR report on the human rights
situation in Ukraine, 16 May to 15 August 2016 (hereinafter “OHCHR 15th Report”), paras. 87-89.
79 “Release and exchange of all hostages and unlawfully detained persons, based on the principle “all for all” is foreseen
in para 6 of the Package of measures for the Implementation of the Minsk agreements. English translation available at
https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf. The Working Group on
Humanitarian Issues reached the decision on the simultaneous release at the end of November 2017, after a year of tense
discussions in Minsk.
80 One woman decided to stay in Donetsk for family reasons.
81 Some civilians had previously been members of volunteer battalions but were not taking part in hostilities at the time of
their apprehension.
82 Thus, in total, during the reporting period, the Government of Ukraine released 234 individuals (including 19 women),
while armed groups released 75 (including 5 women) within the framework of the simultaneous release.
83 Some were brought to “Zelenyi Hai” as early as 15 December 2017, while others were transferred to this facility even a
few days before the release on 27 December.
84 OHCHR interviews, November-January 2018. Government informed OHCHR that these restrictive measures were
taken to ensure the safety of the detainees.
85 Transitory cells in SIZOs across Ukraine generally have poor conditions.
86 OHCHR interview, 6 February 2018.
87 Many released detainees have credible fears of retaliation, and some individuals or their families have received threats.
Additionally, OHCHR strives to maintain the highest protection of victims through strict adherence to the principles of
confidentiality and informed consent.
88 “OHCHR documented the cases of eight individuals detained and tortured by SBU in Kharkiv in 2015. For example,
three of these individuals were arrested separately in May 2015, handcuffed and had bags placed over their heads. They
were taken to the Kharkiv SBU building, where they were interrogated and tortured separately for hours by methods
vi
including suffocation with a gas mask, dislocation of joints, electric shock, and mock execution. The detainees also
received death threats and threats of a sexual nature against their families. SBU officers forced these men to sign selfincriminating
statements and refused them access to a lawyer. They were transferred to a hospital where a doctor refused
to document visible injuries. In another example, also in May 2015, a man was arrested by SBU. On the way to the
Kharkiv SBU building, the perpetrators stopped the vehicle and tortured him with electric current. Upon reaching the
SBU building, the victim was further tortured until he “confessed” to planning terrorist acts. As of 15 August 2017, all
four of these victims remained in pre-trial detention. The Military Prosecutor’s Office has launched an investigation into
these allegations.” OHCHR 19th Report, para 58.
89 OHCHR interviews, 26 August 2016, 13 April 2017, 20, 27 September 2017, 2 and 3 February 2018.
90 In two cases, victims (former members of battalions) could not identify the affiliation of ‘investigators’.
91 So-called ‘administrative arrest’.
92 The interrogation, often with torture, was conducted in ‘MGB’ buildings in Donetsk and Luhansk and in ‘MGB’ and
Izoliatsiia detention facility in Donetsk.
93 Some threats recanted by interviewed victims were: “we will put you inside a basin with chlorine”, “I will cut your leg
and will leave you forever in MGB basement”, “send you to the frontline”, “you don’t want to be disabled, do you?”, “I
will go pick up a drill and drill through your legs”, “we have three main directions: to threaten, frighten, prevent access”,
“we will put you back in the cell and deal with your wife”, “everything that was until now –were just flowers. You will be
placed into the cell with faggots and get raped [the word used in Russian ‘tebia opustiat’ is a prison jargon that means
someone will be beaten, raped and urinated on]”, “they threatened to bring my wife, torture her on the table [with electric
shock], put her in the next cell, rape her and make me listen to how she screams”.
94 Mock execution was very common and often used repeatedly. Some examples from victims’ interviews include: “I was
facing the wall and the guards shot above my head. I was scared to death”; “Somebody leaned in and said ‘You must
remember this sound for the rest of your life. Then I heard the bolt reload and two people talking: ‘Wait… what if the
cartridge is real?’ - ‘I am not sure if it is real or blank’. Then the gun was fired into my direction”; “I was taken outside
with a plastic bag over my head and told to pray. Then I heard someone loading a gun. Then they told me they changed
their mind. On another day, I was put in a coffin and told to get ready to die, then I heard someone nailing it. After
approximately an hour, I dared to open it, and was beaten for that.”
95 Electric shocks were administered on the neck, ears, feet, legs, arms and genitals. For example, a female detainee
described one of her evenings in Izoliatsiia detention facility: “One evening a number of men came to the room. They put
a bag on my head and forced me into a different room. There I was put on a metal table face down and tied with duct tape.
My socks were taken off and someone connected wires to my toes and turned on electricity. It was extremely painful
through my whole body. They demanded I confess to cooperating with some people from the government-controlled side.
I was electrocuted twice”. Another detainee in Izoliatsiia stated “On many occasions my cellmates were taken out
somewhere, tortured with electricity and returned with burns on their ears, fingers and genitals”. A detainee from Luhansk
said “they would attach one wire to the handcuffs, and another wire to parts of the body - a nose, ears, genitals”.
96 Detainees were beaten both by hand and with objects, on all body parts, for example, hits to the head with a book, hits
on the soles of feet, stepping on bare toes, and blows to the chest causing difficulty breathing.
97 Suffocation was done almost to the point of unconsciousness or triggering seizures. For example, a detainee held in
Luhansk witnessed “a person would be forced to wear a gas mask, and an air hole would be closed, causing a person to
suffocate.”
98 For example: “They started asking about military positions, then twisted my arms and led me downstairs, intentionally
pushing me against the walls, so I would hit my head. Then they slammed my head against the boiler. Then six or seven
men brought me to a room, forced to undress and made me kneel facing the wall. Then they hit me a few times, racked
the slide and put a machine gun to my head saying I can make my last wish. Then someone entered the room and I heard
a dialog: ‘Oh, don’t do it, his blood will be everywhere’ – ‘No worries, I will clean the floor’. Then I heard click of a slide
and was ordered to get dressed. They twisted my hands and led me upstairs. Again, they were slamming me against the
walls and the boiler.”
99 The majority of individuals interviewed mentioned being subjected to mock execution, in many cases repeatedly.
100 An example provided by an interviewee: “We were brought inside a building of a former club or school. For the next
two days, the captors took turns beating us repeatedly. They encouraged others to participate in the beatings, saying ‘Hey,
who wants to see a live ukrop [derogatory name used for Ukrainians]?’ As a result of beating, I lost most of my teeth.”
101 In Donetsk and its vicinity, members of Ukrainian forces were predominantly held in basements of the former SBU
building on 62 Shchorsa Street, the ‘MGB’ building on Shevchenka Street, buildings at 7 Artema Street and 14
Molodizhna Street, and the Cossack’s base at 25 Maiskaia Street. Most were then moved to Makiivka penal colony No.
97. In Luhansk region, they were held in the basement of the ‘MGB’ building in Luhansk, SIZO No.1, and the
‘commandant’s office’ in Luhansk. Interviewees could not specifically identify other places where they were held for
short periods of time, such as a basement in Pervomaisk.
102 At least 10 individuals transferred to armed-group-controlled territory who were charged with or convicted of crimes
against life and liberty of individuals or against their property. At least seven others were facing similar charges in
addition to those related to their affiliation or links with armed groups. A person convicted for killing two Ukrainian
soldiers was pardoned by the President and transferred to armed-group-controlled territory on 20 January 2018.
103 For example, on 6 July 2017, a former police officer in Druzhkivka was found guilty of robbery, brigandism and
unlawful expropriation of a vehicle as part of an armed group of the ‘Donetsk people’s republic’ that abducted a local
businessman and tortured him together with others in the basement of the building of the so-called ‘Druzhkivka NKVD’
or ‘Komendatura’ in June-July 2014. He was the only member of the armed group who stood trial for crimes perpetrated
against civilians when Druzhkivka was under the armed group’s control. He was initially charged and tried only under art.
260 of the Criminal Code (membership in illegal armed formation), however due to victims’ appeals, the charges were
requalified and the perpetrator was convicted and sentenced to 12 years in prison by Druzhkivka City Court of Donetsk
vii
region. On 5 February, local authorities informed the victims they should not expect to receive compensation for damages
awarded by the court since the perpetrator was released under the simultaneous release framework.
104 OHCHR is aware of at least ten individuals transferred to armed-group-controlled territory under the simultaneous
release framework, who complained of human rights violations in relation to their detention and subsequent prosecution
and confirmed their intention to pursue cases against the perpetrators.
105 The “release and exchange of all hostages and unlawfully detained persons”, Package of Measures for the
Implementation of the Minsk Agreements, para 6, English translation available at
https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf.
106 Through trial monitoring, OHCHR documented that some detainees spent years in detention awaiting trial under art.
176(5) of the Criminal Procedure Code of Ukraine, despite the failure of prosecution to establish the necessity of
imposing detention on remand on conflict-related detainees. Further, OHCHR noted that in some cases, detainees who
agreed to be released and transferred to armed-group-controlled territory had no family in or links to that territory.
107 Courts do not examine the merits of a case when parties agree to a plea bargain, but suspend the trial once the
defendant pleads guilty. The court practice is to only examine the “voluntariness” of the plea bargain agreement and
grounds its decision on the statements (“confession”) of the defendant. However, according to criminal procedure law, the
court cannot ground its decision exclusively on the statements (confession) of the defendant.
108 At least three individuals who were released from custody by court order for the purpose of being exchanged were then
re-arrested upon being excluded from the exchange. OHCHR interviews, 12 and 17 January 2018.
109 OHCHR notes that the existing procedure of trials in absentia does not correspond to ECtHR case law, in particular
due to the lack of provision for a full retrial with the defendant’s present. OHCHR further notes that courts issued rulings
on compelled appearance (“pryvid”) in relation to at least 20 released individuals and at least five other individuals have
been put on a wanted list.
110 OHCHR is concerned with reports that some individuals transferred to armed-groups-controlled territory in the
framework of the simultaneous release were re-arrested. For example, the mother of released detainee Serhii
Babych, who is facing trial in Krasnoarmiisk City District Court of Donetsk Region and was transferred to armedgroups-
controlled territory on 27 December without legal clearance, and lost contact with her son on 6 January 2018.
The man was reportedly ‘arrested’ by ‘MGB’ in Donetsk. Following his conditional release on 26 January, he was
reportedly banned from travelling to territory controlled by the Government, thus preventing him from attending
court.
111 OHCHR continued to have limited access to monitor ‘trials’ of individuals ‘accused’ of conflict-related offences in
‘courts’ in Donetsk. The ‘trials’ were held behind closed doors and OHCHR was excluded from them.
112 OHCHR interview, 21 November 2017. OHCHR notes that “publicity of hearings ensures the transparency of
proceedings and thus provides an important safeguard for the interest of the individual and of society at large” (HRC
General comment no. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, para 28).
113 They are mostly ‘charged’ with espionage under art. 321 of the ‘criminal code’ of ‘Donetsk people’s republic’.
114 At least two civilians detained by the armed groups of ‘Donetsk people’s republic’ stated that they have been detained
without being formally ‘charged’. At least 17 interviewed Ukrainian soldiers detained in both ‘republics’ have also been
detained without any ‘charges’ brought against them.
115 Initial interviews, 28 December 2017, 11 and 14 January 2018.
116 The armed groups of ‘Donetsk people’s republic’ formally initiated ‘investigation’ against at least 10 Ukrainian
soldiers interviewed by OHCHR under article 230 (‘aiding and abetting terrorism’) of their ‘criminal code’ only in
September 2017. One interviewee told OHCHR that ‘investigation’ against captured Ukrainian soldiers was merely a
formality that would enable their release. The armed groups of ‘Luhansk people’s republic’ have not charged or tried
none of six captured soldiers interviewed by OHCHR irrespective of the duration of their detention.
117 For example, on 27 November 2017, the ‘military tribunal’ of ‘Donetsk people’s republic’ ‘ruled’ to extend detention
pending ‘trial’ of a defendant with the substantiation going beyond the ‘prosecutor’s’ arguments. The ‘judge’ noted that
since the ‘hearings on the merits’ had not started, it was difficult to assess to what extent the ‘accused’ facilitated the
‘investigation’ and therefore, there were no grounds to change his ‘measure of restraint’. OHCHR trial monitoring, 27
November 2017.
118 OHCHR interviews, 4 and 5 January 2018.
119 Torture is prohibited under both IHL and IHRL. Article 14.3(g), ICCPR; Articles 75.4(f), Protocols I and art. 6.2(f),
Protocol II Additional to the Geneva Conventions of 12 August 1949.
120 Accounts of at least 18 civilians interviewed by OHCHR after their release on 27 December 2017 suggest that they
have been detained due to alleged links with Ukrainian military and/or security forces.
121 OHCHR interview, 16 January 2018.
122 In territory controlled by ‘Donetsk people’s republic’, those who were detained without a view towards ‘prosecution’
were not provided with lawyers.
123 Of the 18 conflict-related detainees interviewed by OHCHR, none were provided with a lawyer immediately upon
being detained. One detainee told OHCHR that he never had a confidential meeting with his assigned lawyer, who only
signed documents and was inactive during the ‘trial’ (OHCHR interview, 11 January 2018). In some cases, assigned
lawyers witnessed intimidation of their client (conflict-related detainee), however, did nothing (OHCHR interview, 15
January 2018). Lawyers of conflict-related detainees refrain from challenging legality of detention of their client during
‘pre-trial’ and ‘trial’ stages (OHCHR trial monitoring, 27 November 2017). OHCHR is concerned that lawyers from
government-controlled territory are not allowed to participate in the ‘proceedings’.
124 At least seven individuals reportedly tried to present their case but then changed their mind fearing repercussions from
the ‘MGB’. Others accepted the ‘charges’ being promised to be included in the simultaneous release.
125 These conclusions are based on interviews of ‘convicted’ detainees released on 27 December 2017, due to OHCHR’s
lack of access to ‘court hearings’.
viii
126 “Extreme right-wing groups” is an umbrella term encompassing political parties, movements and groups who blame
vulnerable groups for societal problems and incite intolerance and violence against them. Extreme right-wing groups
bring into question fundamental principle of non-discrimination by propagating an ideology based on racism, racial
discrimination, xenophobia and related intolerance. The same groups are also involved in attacks against individuals
based on their gender identity and sexual orientation. See Reports of the Special Rapporteur on contemporary forms of
racism, racial discrimination, xenophobia and related intolerance (A/HRC/35/42 of 26 April 2017 and A/HRC/18/44 of
21 July 2011).
127 The cases are as follows. 1) In 2015, SBU officers reportedly attacked a journalist and cameraman for Radio Liberty
attempting to film near the SBU building in Kyiv. The Military Prosecutor opened a criminal investigation under art. 171
(“preclusion of professional and legal activity of journalists”), but closed it four times. Each time, a court ruled to reopen
it. 2) On 15 September 2017, a Radio Liberty TV crew was attacked in Kyiv, allegedly by a state guard officer while
filming near the venue of the wedding of the General Prosecutor’s son. A criminal case was opened under art. 345-1
(“threats or violence towards a journalist”). 3) On 24 October 2017, one journalist was beaten and two others attacked and
apprehended by police while reporting on a trial in Sviatoshynskyi district court in Kyiv. A criminal case was opened
under art. 171. 4) On 3 December, activists of a right-wing group (Bratstvo Korchinskoho) blocked a business centre in
Kyiv in which ‘News One’ TV channel is located. For up to seven hours, the building was completely blocked with sand
bags, barbed wire and barrels. Police present on the ground did not intervene. A criminal case was opened under art. 356
(“unauthorized actions”), but was closed on 1 February 2018. 5) On 12 December 2017, a journalist of ‘News One’ TV
channel was hit while polling members of the public on a Kyiv street. An alleged perpetrator, who was a member of a
right-wing organization (Right Sector), posted about the attack on Facebook. 6) On 25 January 2018, around 50 members
of an extreme right-wing groups stormed in the office of the Union of Orthodox Journalists affiliated with Moscow
Patriarchate, insulted members of the Union and searched their computers. Police at the scene did not intervene. C-14
posted video of its members storming the office on Facebook. 7) On 3 February 2018, a female reporter was blocked,
interrogated and threatened by members of extreme right-wing group C-14. The police present did not intervene. 8) On 8
February 2018, the (rented) office of media holding ‘Vesti’ was blocked and occupied by the “state agency on the search
and management of the assets”, under the pretext of an ownership dispute regarding the office. Reportedly, the holding
received no prior notifications, all their equipment remained in the office as well as the personal belongings of media
professionals. 9) On 13 February members of a right-wing organization (Rights Sector) physically forced a journalist
from a court room in Odesa, calling him a ‘separatist’. The police present did not intervene. A criminal investigation was
opened under art. 171.
128 In 14 cases, the alleged perpetrators were civil servants, state officials or members of Parliament and eight cases
allegedly involved police officers or state guards. The majority of incidents (29) took place in Kyiv region. Female media
professionals were subjected to physical violence in 24 cases. Data obtained during the country-wide monitoring by the
National Union of Journalists of Ukraine, available in its official journal ‘A journalist of Ukraine’, No. 1-2, 2018.
129 In the case of Oles Buzyna, although one investigation was completed and the case transferred to a court, another
investigation was launched on 24 June 2017 to identify additional suspects. In the case of Pavlo Sheremet, no suspects
have been identified.
130 Since August 2014, the website has been publicly posting the personal data of thousands of people, including media
professionals, NGO activists, labelling them as supporters of armed groups and ‘terrorism’. Criminal cases regarding
Myrotvorets are investigated under arts. 171 and 182 of the Criminal Code.
131 The head of Myrotvorets is named on the website itself and is widely quoted in media.
132 OHCHR interviews, 8 February 2018.
133 Ukrainian media published a letter from a state bank which says that “negative information” was found about a client
on Myrotvorets website. Notably, the letter asserts that “SBU, Headquarters of the Ukrainian Armed Forces, State Border
Guard Service, Ministry of Internal Affairs and State Penitentiary Service of Ukraine” are “partners” of Myrotvorets.
Copy of letter available at https://ubr.ua/finances/banking-sector/ukraintsam-aktivno-blokirujut-scheta-iz-za-sajtamirotvorets-
3864782.
134 In particular, the law ‘On amending certain laws of Ukraine on restriction of access to Ukrainian market of foreign
print materials of anti-Ukrainian content’ available at http://zakon0.rada.gov.ua/laws/show/1780-19.
135 State Committee on TV and Radio Broadcasting of Ukraine decisions available at
http://comin.kmu.gov.ua/control/uk/publish/article?art_id=142069&cat_id=140366 and
https://www.radiosvoboda.org/a/28981382.html.
136 OHCHR interviews, 28 December 2017, 16 January 2018, 14 February 2018.
137 OHCHR was informed that on 7 December in Zolotonosha, police officers wearing balaclavas without any official
insignia forcefully broke into the houses of Roma families, without presenting any procedural documents authorizing
such actions. They treated the Roma in a humiliating manner, beat people and damaged or destroyed property. Three
Roma men were subsequently detained on the basis of drug-trafficking allegations. OHCHR interview, 13 December
2017. See also Letter by Coalition of Roma Civil Society Organizations to Minister of Internal Affairs of 12 December
2017 and Letter by Cherkassy Regional Civil Society Organization “Romani Rota” of 11 December 2017 at
http://legalspace.org/ua/napryamki/posilennya-romskikh-gromad/item/10616-dii-politsii-u-zolotonoshi-ta-boryslavishchodo-
romiv-ie-porushenniam-prav-liudyny-pravozakhysnyky). On 11 December in Boryslav, in another raid, police
broke into the homes of Roma, forced the women to kneel and detained some of the men. The police refused to present
identification documents or procedural documents authorizing the searches. During interrogations - conducted without
allowing access to lawyers - police collected fingerprints and photographed each man. In the aftermath, police announced
that the raids part of an investigation of a double murder. OHCHR interview, 14 December 2017.
138 A local Roma activist reported that from on 7 January, a conflict occurred between local residents, one of whom
belong to the Roma community (see statement at https://www.facebook.com/radiochiriklo/posts/1209393582526717). On
8 January, a statement calling upon local residents to assemble and discuss the possibility to evict Roma was disseminated
ix
in the city, and on 9 January around 200 residents gathered in the city centre shouting anti-Roma slogans and inciting
violence against them. Later that same day, around twenty cars of people gathered at the activist’s residence and began
throwing stones at it, however police arrived and calmed the situation. Afterwards, a working group was established
under the auspices of local administration to settle disputes involving Roma in the city. The Roma community in
Zolotonosha is worried that further tensions and discriminatory acts may lead to violence and/or forced eviction. Further
OHCHR was informed that an anti-Roma information campaign has been launched in local media, which heats up already
fragile situation. OHCHR interview, 2 February 2018.
139 OHCHR interview, 22 January 2017. OHCHR also observed open calls to join formations to fight “Roma muggers”
disseminated via social media. See, e.g., Facebook group “L.O.V.C.I.” (Л.О.В.Ц.І.) created to form a group of volunteers
to patrol the city streets and fight “Roma muggers” at
https://www.facebook.com/groups/2092767147613075/?pnref=story.
140 OHCHR interviewed Stanislav Serhiienko, a left-wing activist, who was physically attacked for his political views on
20 April 2017 by members of extreme right-wing groups. Shortly after, a video of the attack was posted on YouTube in
which it was mentioned inter alia that the people “like him” will not be tolerated. Police were reluctant to properly
investigate the case, including by postponing the forensic examination of the victim, showing reluctance to accept
evidence from the victim and twice changing the investigator in the case. Further, on 19 January 2018, the leader of C14
posted a video on Facebook in which he acknowledged that his group was involved in the attack. OHCHR interview, 13
February 2018. On 7 February, a group of people attacked two members of the Communist Party of Ukraine and of the
Anti-Fascist Committee of Ukraine to rob them of political material (stickers calling to “resist the Nazi occupation” and
commemorating a young victim of violence in Odesa on 2 May 2014). The attack resulted in bodily injuries, including a
concussion. The victims also received death threats. Approximately two hours after the attack, the head of the Kyiv cell of
National Corps posted a video of the attack on Facebook, acknowledging involvement of National Corps in the attack
(available at https://www.facebook.com/serhiifilimonov/posts/953784998121729?pnref=story). As of 15 February, the
victims had no information whether a criminal investigation had been launched or an investigator appointed, and forensic
expertise was not appointed despite the victims’ requests. Allegedly, the police unofficially urged the victim to refrain
from any events by Anti-Fascist Committee of Ukraine. OHCHR interview, 21 February 2018.
141 On 22 December, a session of the Gender Club organized by students of the National Pedagogical University was
disrupted by a group of people wearing balaclavas who attacked participants with pepper spray, causing chemical burns to
three victims. OHCHR was informed that police did not launch an investigation into the attack due to the minor injuries
of victims and the University administration is reluctant to take any measures to ensure security of participants of the
Gender Club or to create a safe learning environment where all students feel respected and comfortable expressing their
opinions and belief. OHCHR interview, 18 January 2018. Previous sessions of the Gender Club were disrupted by
members of extreme right-wing groups such as Tradition and Order. See OHCHR 20th Report, para 131. On 19 January,
a commemoration for slain human rights activists Stanislav Markelov and Anastasiya Baburova was disrupted by
members of C14, Sokil, and Tradition and Order. Police did not take appropriate measures to ensure the security of
participants, despite a specific request from the Ombudsperson, and ignored requests by the organizers to separate them
from the aggressive protestors. Statement of Centre for Civilian Liberties at http://ccl.org.ua/statements/zvernennyatsentru-
hromadyanskyh-svobod/; letter of the Ombudsperson to Head of National Police concerning the State’s positive
obligations to ensure security of participants of the commemoration at http://www.ombudsman.gov.ua/ua/allnews/
pr/18118-ve-upovnovazhenij-privernula-uvagu-kerivnitstva-natspolitsiii-do-vazhlivo/. Furthermore, police detained
participants of the commemoration without justification, whereas none of the counter-demonstrators were detained.
142 During the attack on the commemoration for the human rights activities (see footnote above), a British tourist on a
nearby street was attacked and sustained serious facial and head injuries. He believes he was targeted by extremists due to
his “nonstandard appearance”. https://www.facebook.com/LiamAnthonyTong/posts/2235174779833442;
https://www.rferl.org/a/ukraine-british-tourist-beaten-attacked-kyiv/28986994.html.
143 For example, OHCHR is monitoring a case involving multiple attacks on a member of the LGBTI community in
October 2017 in Kyiv and Vinnitsa by members of the Radical Party. Despite the victim’s persistence in filing complaints
with police and demanding action, his injuries were not documented and there has been no investigation. In November, he
complained to prosecution about the failure to investigate, yet his complaint was transferred to the same police against
whom he complained.
144 See https://www.facebook.com/ndrugua/.
145 Extreme right-wing group propagating nationalism and intolerance to individuals holding alternative, minority social
or political opinions.
146 They had been baptized by the priests of Ukrainian Orthodox Church of the Kyiv Patriarchate.
147 https://www.facebook.com/c14news/.
148 On 25 January, C14 forcefully entered the office in Kyiv. Video posted on C14’s Facebook page shows its members
searching the premises for “anti-Ukrainian documents” while insulting and threatening the journalists. They left after
police arrived, reportedly taking private property, yet no one was arrested. See Statement of the Union of Orthodox
Journalists at http://uoj.org.ua/en/novosti/sobytiya/uoj-statement-regarding-the-assault-on-editorial-office. Within the
comments provided on this report by the Government of Ukraine, the Ministry of Culture referred to the Union of
Orthodox Journalists as “a provocative structure, continuously working to create disorder and spread hate rhetoric”.
OHCHR is not aware of incidents where affiliated journalists have been spreading hate rhetoric. Regardless, OHCHR
notes that such assessment shall not justify lack of actions by law enforcement agencies regarding attacks against media
professionals and restrictions on freedom of opinion and expression.
149 In Kyiv, on 25 January, two individuals were arrested by police for the arson attack against the Tithes chapel, and on 3
February, C14 and other extreme right-wing groups held a demonstration to support the accused and demand demolition
of the chapel. In Lviv, on 28 January, members of Svoboda Party attempted to disrupt religious services in the St.
x
Volodymyr Church, and on 3 February, the church was significantly damaged in an arson attack. OHCHR interview, 8
February 2018.
150 See statement at http://www.namvk.if.ua/dt/188112/. A similar statement calling for discrimination was adopted by the
Poltava City Council on 19 September 2017. See OHCHR 20th Report, para. 131
151 See, e.g., art. 7, Universal Declaration of Human Rights and art. 26, International Covenant on Civil and
Political Rights.
152 Art. 12, Law of Ukraine “On the Principles of Prevention and Countering Discrimination in Ukraine”, No. 5207-VI of
6 September 2012 (entry into force on 4 October 2012).
153 OHCHR previously documented harassment of Jehovah’s Witnesses, seizure of religious materials, and arbitrary
searches and seizures of religious buildings. Jehovah’s Witnesses remain un-registered in territory controlled by ‘Donetsk
people’s republic’ due to the lack of registration procedure, leaving them vulnerable for further actions infringing upon
their right to exercise freedom of religion. See OHCHR 20th Report, para. 110; OHCHR 19th Report, para. 105-106.
154 The law prohibits “religious groups” of five or more persons which do not fall under one of the “traditional” religions.
See https://mklnr.su/religiya/novosti-religiya/1858-zakon-lnr-o-svobode-sovesti-i-religioznyh-obedineniyah-zapretildeyatelnost-
religioznyh-grupp-v-respublike.html.
155 On 22 November, the Jehovah’s Witnesses’ Kingdom Hall in Debaltseve (territory controlled by armed groups of the
‘Donetsk people’s republic’) was sealed and expropriated as “abandoned” property, and on 25 November, the Kingdom
Hall in Krasnodon (territory controlled by armed groups of the ‘Luhansk people’s republic’) was sealed and
‘expropriated’ based on lack of ‘registration’ and the minister was ‘fined’ for violating the procedure for organizing or
holding public events. OHCHR also notes that an appeal by the Jehovah’s Witnesses community against the expropriation
of their Kingdom Hall in Horlivka has not been addressed and the premises remained sealed. OHCHR interview, 1
December 2017.
156 See list of extremist publications ‘adopted’ by the ‘ministry of justice’ of ‘Donetsk people’s republic’ at
http://www.minjust-dnr.ru/wp-content/uploads/2016/08/SPISOK-EKSTR.-MATERIALOV-na-sajt-po-sostoyaniyu-na-
21.12.2017.pdf.
157 In November, a parishioner previously arrested during a joint worship was found guilty of organising an unauthorised
public gathering and ‘fined’ 5,000 RUB. The victim ‘appealed’ the decision, however it was upheld. OHCHR interview,
26 January 2018.
158 Article 7 of the “law on counteracting extremist activities” of ‘Donetsk people’s republic’ declares that “persons
responsible for the preparation, dissemination or illegal storage of extremist material with the purpose of subsequent
dissemination, are punished under administrative or criminal law,” at http://dnrsovet.su/zakon-donetskoj-narodnojrespubliki-
o-protivodejstvii-ekstremistskoj-deyatelnosti/.
159 Information provided by State Border Guard Service of Ukraine on 16 February 2018.
160 See, e.g., OCHA Humanitarian Snapshot as of 15 February 2018 at
https://www.humanitarianresponse.info/en/node/160154.
161 Such as toilets facilities, drinking water, shelter and medical services.
162 For example, an ambulance is present at the government-controlled checkpoint at Stanytsia Luhanska EECP from 9
a.m. to 4 p.m. while civilians begin queuing as early as 4 a.m. Moreover, it is not always present at the Stanytsia
Luhanska EECP during working hours due to lack of funding.
163 On 15 November 2017, an elderly man died in the early morning at an armed-group-controlled checkpoint at the
Stanytsia Luhanska crossing route. Since it happened before 9:00 hrs, there were no medical personnel to provide
assistance which could possibly have saved his life. On 14 January 2018, a man (aged 65) from Alchevsk was found dead
(due to heart attack) on a bus while it was stopped at an armed-group-controlled checkpoint along the Maiorsk crossing
route. OSCE SMM Daily report, 16 January 2018.
164 At Stanytsia Luhanska EECP, for example, OHCHR observed that wheelchairs were only available on the
government-controlled side of the crossing route. Even there, their number of was insufficient and they were not serviced
beyond the so-called “0” checkpoint. Persons with disabilities had to find physical assistance from other persons in order
to get to and cross the ramps between the “0” checkpoints, a distance of approximately 500 meters. OHCHR observed
persons with disabilities paying to be transported on luggage trolleys. At the crossing routes in Donetsk region, on the
other hand, persons crossing the contact line are not permitted to walk between the ‘0’ checkpoints. There are buses
available; however, they are not equipped for wheelchairs. Therefore, persons with disabilities must pay extra for carriers
and taxis to take them across.
165 OHCHR interviews at Maiorsk crossing route, 1 November 2017, and Stanytsia Luhanska crossing route, 13
December 2017.
166 See also OHCHR 20th Report, para. 95.
167 Anti-terrorist Centre of the Security Service of Ukraine, Decree “On approving the temporary order on the control of
movement of people across the contact line in the Donetsk and Luhansk regions” no.222ог of 14 April 2017.
168 The ban (available at http://www.mgbdnr.ru/news.php?id=20180115_00&img_num=0) was reportedly initiated by
‘MGB’ to protect residents of ‘Donetsk people’s republic’ from the risk of being arrested in territory controlled by the
Government.
169 An explanatory note published on 18 January 2018 stated that the ban applied to ‘senior officials’, ‘ministers’ and their
deputies, employees of ‘ministries’ and ‘administrations’ (except for technical staff), managers and their deputies at
‘state’ and ‘municipal’ enterprises, heads of hospitals and hospital departments, and principals of universities, schools and
kindergartens. Available at https://dnr-online.ru/poyasnenie-k-ukazu-glavy-dnr-aleksandra-zaxarchenko-363/.
170 The ‘decree’ states it applies to all ‘state officials’, ‘officials’ of ‘local self-government’ and employees of enterprises,
institutions, and organizations of ‘state’ and ‘municipal’ property (including teachers, doctors, librarians, postal carriers,
etc.).
xi
171 In one case, a conflict-related detainee who was transferred to armed-group-controlled territory under the framework
of the simultaneous release was afterwards reportedly ‘expelled’ by ‘authorities’ of ‘Luhansk people’s republic’ back to
government-controlled territory with a 10-year ‘entry ban’ under the pre-text that he had previously agreed to cooperate
with SBU. While two such cases were documented, OHCHR believes that the number of expulsions may be higher.
172 Additional Protocol II, art. 17; ICRC Customary International Humanitarian Law Study, Rule 129. In Resolution No.
2675 (XXV) adopted in 1970 on basic principles for the protection of civilian populations in armed conflicts, the United
Nations General Assembly affirmed that “civilian populations, or individual members thereof, should not be the object of
… forcible transfers…”.
173 2018 Humanitarian Needs Overview, available at
https://www.humanitarianresponse.info/system/files/documents/files/ukraine_humanitarian_needs_overview_2018_en_1.
pdf.
174 See also OHCHR 20th Report, paras. 111-117.
175 WASH Cluster Ukraine Alert Bulletin, Issue 12, at
https://www.humanitarianresponse.info/system/files/documents/files/12._wash_cluster_alert_bulletin._issue_12.pdf.
176 WASH Incident Reports at https://www.humanitarianresponse.info/en/operations/ukraine/water-sanitation-andhygiene.
177 The number is approximate since there is no local authority to maintain the population record. It is based on
information provided to OHCHR by local community activists.
178 The other road running from western Katerynivka to Popasna (three km away) is blocked by UAF. Residents must
travel to and cross the Zolote checkpoint in order to take a bus to Sievierodonetsk, Lysychansk or the nearest district
centre – Popasna, where they can access basic services and receive social payments and pensions. During winter,
however, buses depart before the Zolote checkpoint opens, therefore Katerynivka residents cannot use them.
179 OHCHR notes that when electricity disruptions occur, repair brigades of the Luhansk Energy Union refuse to come to
the village, claiming that they have no petrol. In such cases, locals either hired a taxi or drove members of the repair
brigade in their own cars from Hirske or Popasna.
180 Similar situation was observed by OHCHR in Hladosove (23 January 2018), Novoluhanske (23 January 2018),
Novooleksandrivka (17 January 2018), Pisky (14 February 2018), Travneve (23 January 2018), Verkhnotoretske (27
January 2017) and Zolote-4 (17 January 2018). OHCHR also received information of such conditions in Chihari and
Dacha.
181 OHCHR notes that the Government attempted to mitigate this situation by facilitating visits of representatives of the
postal service and allowing an ambulance to attend to patients in the village (there is only one ambulance car located in
Hirske servicing Katerynivka and therefore it does not arrive timely to the village). However, Koshanivka (an isolated
part of Katerynivka) is not accessed by these services. Also, on 13 December 2017 the Cabinet of Ministers adopted the
state targeted program on recovery and peacebuilding in the east. Its aim is to restore infrastructure and services in many
areas of eastern Ukraine that have been negatively impacted by the conflict (https://www.kmu.gov.ua/ua/npas/prozatverdzhennya-
derzhavnoyi-cilov).
182 Some electricity was provided through generators, however it was not regularly available. Other settlements
experienced similar issues, for example, from 18 to 27 November 2017, the electricity supply to parts of Zolote-4 was cut
due to damaged power lines. Without electricity, many homes do not have heating, which is dangerous for families with
children and the elderly due to freezing winter temperatures.
183 While another local mobile provider is available, it cannot provide full, reliable coverage, including to governmentcontrolled
territory, and is facing difficulties due to the sudden volume of customers and calls.
184 For example, shopkeepers in Oleksandrivka (20km southwest of Donetsk) could not arrange delivery of supplies
including bread due to lack of mobile service. OSCE SMM Daily Report of 14 January 2018, available at
http://www.osce.org/special-monitoring-mission-to-ukraine/366516.
185 Ministry of Social Policy of Ukraine, 22 January 2018, available at http://www.msp.gov.ua/news/14678.html.
186 Information provided by Shelter Cluster, at
https://www.sheltercluster.org/sites/default/files/docs/annual_report_approvedforpublication.pdf.
187 OHCHR interviews.
188 Decree No.1085, available at http://zakon5.rada.gov.ua/laws/show/1085-2014-%D1%80.
189 According to Cabinet of Ministers Resolution No. 505, IDPs from the settlements determined in its Decree No. 1085
are eligible for targeted assistance. Resolution available at http://zakon0.rada.gov.ua/laws/show/505-2014-%D0%BF.
In addition, on 15 November 2017, the Cabinet of Ministers, by its Resolution No. 909-p, adopted the Strategy for
integration of IDPs and implementation of durable solutions relating to internal displacement. Its aim is to create a
background for the integration of IDPs into the hosting communities and ensuring State support to these category of
people. The document is available at http://zakon3.rada.gov.ua/laws/show/909-2017-%D1%80.
190 OHCHR is aware of 10 Supreme Court decisions. See, e.g., http://reyestr.court.gov.ua/Review/71911075;
http://reyestr.court.gov.ua/Review/71911456; http://reyestr.court.gov.ua/Review/72028721.
191 Resolution no. 365 of 8 June 2016 introduced the verification and identification procedure for IDP-pensioners.
192 Law of Ukraine ‘On Mandatory State Pension Insurance’ no.1058-IV of 9 July 2003.
193 Decision available at http://reyestr.court.gov.ua/Review/7108322.
194 Tsezar and Others v. Ukraine (Applications nos. 73590/14, 73593/14, 73820/14, 4635/15, 5200/15, 5206/15 and
7289/15), ECtHR, 13 February 2018. The applicants had brought their claims based on inability to access court in region
no longer controlled by the Government (right to access courts, Article 6-1), the suspension of pensions (protection of
property, Article 1 of Protocol No. 1), and discrimination based on the place of residence (prohibition of discrimination,
Article 14 in conjunction with Article 6 and Article 1 of Protocol No. 1).
195 See, e.g., OHCHR Report on the human rights situation in Ukraine, 16 November 2016 to 15 February 2017, para.
108; OHCHR 18th Report, paras. 117-119; OHCHR 19th Report, para 118.
xii
196 Pension Fund of Ukraine, at http://www.pfu.gov.ua/pfu/control/uk/publish/article?art_id=304887&cat_id=94750.
197 The allowed term for executive proceedings is 2-6 months. Law of Ukraine “On executive proceedings”, art. 25.
198 The NGO “Right to Protection” provided legal assistance in several civil cases where courts awarded compensation,
before the Dzerzhynsk city court of Donetsk region on 14 December 2017 (http://reyestr.court.gov.ua/Review/71062112),
Selidove court of Donetsk region on 10 November 2017 (http://reyestr.court.gov.ua/Review/70222046) and 28 November
2017 (http://reyestr.court.gov.ua/Review/66201646), and the Appeal court of Donetsk region on 29 November 2017
(http://www.reyestr.court.gov.ua/Review/70573400) and 13 December 2017
(http://reyestr.court.gov.ua/Review/70989960).
199 See also “Conduct of Hostilities and Civilian Casualties” section.
200 During the reporting period, OHCHR documented cases of ineffective investigations into complaints of looting against
UAF servicemen regarding civilian homes in Hirske, Kriakivka, Pervomaiske, Pisky, Zhovanka. Allegations of looting
were also received regarding homes in Novoselivka Druha, Syze and Verkhnotoretske (OHCHR interview, 6 December
2017). While the majority of cases of theft and damage to civilian homes documented by OHCHR occurred in territory
controlled by Government, it is likely that similar acts are being carried out in armed-group-controlled territory but are
under-reported due to safety concerns of victims.
201 See OHCHR 20th Report, para. 129; 19th OHCHR Report, para. 124.
202 https://old.dnr-online.ru/wp-content/uploads/2017/12/Ukaz_N343_06122017.pdf.
203 “Everyone has the rights to own property alone as well as in association with others, and no one shall be arbitrary
deprived of his or her property.” Art 17, Universal Declaration of Human Rights. “Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general principles of international law.” Art. 1, Protocol 1 to the
European Convention on Human Rights.
204 A/RES/72/190 at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/72/190.
205 The resolution also requests OHCHR to prepare a second dedicated thematic report on the situation of human rights in
Crimea and to update the Human Rights Council on the issue.
206 Article 43 of the Regulations concerning the Laws and Customs of War on Land, Annex to Convention (IV) respecting
the Laws and Customs of War on Land The Hague, 18 October 1907 and Article 64, Geneva Convention IV of 1949.
207 Administrative fines of 10,000-15,000 RUB (165-250 USD) each. Two of the verdicts were reversed on appeal.
208 See OHCHR 20th Report, paras. 144-145.
209 According to Russian Federation legislation applied in Crimea, one-person pickets do not require pre-authorization,
however the Constitutional Court of the Russian Federation has ruled that when several one-person pickets are held
simultaneously and are similar to one another with “sufficient obviousness” in respect of the items used, common goals,
slogans and timing, such pickets may be considered as one single public picket carried out by a group of individuals, to
which pre-authorization requirements for their conduct will apply. (Judgment of the Constitutional Court of the Russian
Federation, 14 February 2013 No. 4-П, par. 2.5; https://rg.ru/2013/02/27/mitingi-dok.html).
210 The article can be found at https://ru.krymr.com/a/27240750.html. See also OHCHR 20th Report, paras. 140-141.
211 The article inter alia states: “The blockade must be the first step, a signal for the liberation; it must be a strictly
military operation. [«Блокада должна быть первым шагом, предвестием освобождения, это должна быть четкая
боевая операция»]. In an earlier version, which was later edited, the article mentioned that the blockade should be
conducted through all necessary means, including “the neutralization and destruction of the Russian ferry through the
Kerch Strait, […], the occupiers’ telecommunications, the neutralization of the military command’s fighting ability” and
that “The war should be carried out by military means and decisively”. [Блокада […] должна сопровождаться всеми
нужными мероприятиями, в том числе и операцией по нейтрализации и выводу из строя российской переправы
через Керченский пролив, коммуникаций оккупантов, нейтрализации боеспособности их штабов. Война должна
вестись военными средствами и решительно].
212 See Dmitriyevskiy v. Russia, no. 42168/06, ECtHR, 3 October 2017, para. 113.
213 “The obligation to provide reasons for a decision is an essential procedural safeguard under Article 6 § 1 of the
Convention, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of
objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public.”
Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, ECtHR, 8 October 2013, para. 67.
214 Before Crimea’s unrecognized accession to the Russian Federation, there were 7 Ukrainian-language schools, 875
Ukrainian-language classes, and a total of 12,694 students receiving education in Ukrainian language. (Note: This and
further statistics on education do not include information regarding schools in Sevastopol, a separate administrative unit
from the Autonomous Republic of Crimea.) OHCHR considers the main reasons for this decrease to be a dominant
Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean residents, as well as pressure
from some teaching staff and school administrations to discontinue teaching in Ukrainian language. See OHCHR Report
on the “Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol
(Ukraine)”, paras. 197-198.
215 196,500 students are currently enrolled in public schools in Crimea.
216 The 318 students receive education in 9 classes available in a single Ukrainian-language school and 7 Russianlanguage
schools with 13 classes with instruction in Ukrainian. In the 2016/2017 academic year, in addition to nine
classes in the same single Ukrainian language school, 19 classes with Ukrainian as the language of instruction were
available in 12 Russian-language schools.
217 5,146 students received education in Crimean Tatar in the 2014-2015 academic year, 5,334 in 2015-2016, and 5,330 in
2016-2017. The number of classes available has also remained stable. Fifteen public schools currently use Crimean Tatar
as the language of instruction in 202 of their classes, and an additional 133 Crimean Tatar classes function in 31 Russianlanguage
schools. In 2016-2017, there were 201 classes in 15 Crimean Tatar schools and 137 Crimean Tatar classes in 37
xiii
Russian-language schools. See also OHCHR report “Situation of human rights in the temporarily occupied Autonomous
Republic of Crimea and the city of Sevastopol (Ukraine)”, para. 201.
218 Letter of the Ministry of Education, Science, and Youth of the Republic of Crimea on the Roadmap on the Choice of
the Language of Instruction (Learning) in educational institutions of the Republic of Crimea of 28 December 2017,
available at http://monm.rk.gov.ru/file/scan01275220171228104654.pdf.
219 This constitutes a violation of art. 51 of the IV Geneva Convention prohibiting an occupying power from compelling
protected persons into its armed or auxiliary forces.
220 There have been at least seven accused in 2017 whose cases have been heard by courts in Crimea on charges under art.
328 of the Criminal Code of the Russian Federation (military draft evasion).
221 Judgment with a guilty verdict of Gagarinskyi district court in Sevastopol, 31 October 2017; Judgement with a guilty
verdict of Simferopol district court, 16 October 2017, upheld by the Supreme Court of Crimea on 28 November 2017.
222 Article 328 of the Criminal Code of the Russian Federation.
223 Decree 699 of 3 November 2014, available at http://zakon0.rada.gov.ua/laws/show/v0699500-14, which refers back to
the Law of Ukraine “On Creation of the Free Economic Zone ‘Crimea’ and the Particularities of the Conduct of Business
Activity on the Temporarily Occupied Territory of Ukraine” of 12 August 2014, available at
http://zakon2.rada.gov.ua/laws/show/1636-18?info=1. The decree has been regularly challenged in Ukrainian courts. In
its most recent decision on the matter, the High Administrative Court of Ukraine upheld the decree on 8 November 2017
(decision available at http://reyestr.court.gov.ua/Review/70163446). According to art. 1 of Decree 699, former Crimean
residents are exempt from the restrictions of the decree if they have a valid IDP certificate and proof of residence in
mainland Ukraine.
224 In one case, a woman registered in Crimea who left Simferopol for Kyiv in 2008, lived in Germany from 2013 to 2015
and returned to Ukraine in 2015, had no choice but to register as an IDP to be able to open a bank account in Kyiv.
OHCHR interview, 12 January 2018. Another person from Crimea who moved to Kyiv in 2009 had to register as an IDP
to open a bank account in 2014. OHCHR interview, 22 December 2017.
225 OHCHR interviews, 27 November and 22 December 2017. For example, in 2016, a former Crimean resident who
relocated to mainland Ukraine in 2009 was denied the possibility to complete a routine procedure for mandatory
replacement of a passport photo upon reaching the age of 25 both in her current place of residence (Kyiv) or former place
of registration, Irpin (also in mainland Ukraine) because her passport still indicated registration in Crimea. She had to
challenge the refusal, but was only able to apply for the photo replacement in Irpin (and not Kyiv), and only upon
verification of her IDP status and the submission of additional documents which are not normally required for such
procedure.
226 Draft Law no. 7163 “On Particular Aspects of Public Policy Aimed at Safeguarding the Sovereignty of Ukraine over
the Temporarily Occupied Territory of the Donetsk and Luhansk regions of Ukraine”, adopted 18 January 2018, signed
by the President 20 February, and entered into force 24 February. See also OHCHR 20th Report, paras. 149-154.
227 Article 8 states that geographical limits of the ‘security zones’ are to be defined by the Head of the General Staff of the
Armed Forces of Ukraine on the submission of the Commander of the joint forces.
228 Article 12(6) provides an exhaustive list of “special powers”: use of weapons, authority to stop and check persons, to
conduct searches, to detain persons, to limit movement in the streets, to access private property, including houses, and to
use private vehicles and means of communication.
229 Advocacy letter by OHCHR and UNHCR dated 19 October 2017.
230 Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily
Occupied Territory of Ukraine” no.1207-VII of 15 April 2014.
231 Law of Ukraine ‘On administration of justice and criminal proceedings in connection to the conduct of the antiterrorist
operation’, No.1632-VII of 12 August 2014.
232 See OHCHR 20th Report, para. 154.
233 Law “On the status of war veterans and their social protection guarantees” no.3551-XII, 22 October 1993.
234 OHCHR estimates based on its regular recording of civilian casualties.
235 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law.
236 Opinion No. 902/2017 of the European Commission for Democracy through Law (Venice Commission) - Ukraine -
Opinion on the Provisions of the Law on Education of 5 September 2017 which concern the use of the State language and
minority and other languages in Education, adopted by the Venice Commission at its 113th Plenary Session (8-9
December 2017), hereinafter “Venice Commission Opinion”.
237 The law on Education was adopted on 5 September 2017 and entered into force on 28 September 2017. Article 7 drew
criticism from representatives of various national minorities for reducing the scope of education in minority languages at
the secondary level. See OHCHR 20th Report, para. 160.
238 OHCHR 20th Report, paras. 155-160.
239 Venice Commission Opinion, para. 87.
240 “Paragraph 4 of Article 7 provides no solution for languages which are not official languages of the EU, in particular
the Russian language, as the most widely used language apart from the state language. The less favourable treatment of
these languages is difficult to justify and therefore raises issues of discrimination”; Venice Commission Opinion, para.
124.
241 Ibid., para. 125.
242 Ibid., para. 126.
243 Draft law ‘On the legal status of missing persons’, No.5435 of 22 November 2016.
244 See OHCHR Report on the human rights situation in Ukraine, 16 November 2016 to 15 February 2017, paras.150-152.
245 The Parliamentary Committee on human rights, national minorities and inter-ethnic relations.
246 Draft law ‘On the legal status of missing persons’, No.5435-1 of 5 December 2016.
xiv
247 See ICRC, Guiding principles / Model law on the missing (February 2009); Human Rights Council Advisory
Committee, Report on best practices in the matter of missing persons (A/HRC/16/70), 21 February 2011.
248 Contained in its 2017 report on its visit to Ukraine in 2016.
249 OHCHR participated in workshops in Sievierodonetsk (23 November), Odesa (27 November), Ivano-Frankivsk (15
December, via Skype) and Kharkiv (15 December) conducted for the benefit of representatives of various prosecution
officers, penitentiary institutions, National Police, the regional forensic bureau and the Ministry of Justice.
250 On 22 November in Kyiv, OHCHR delivered a session inter alia on prevention of arbitrary and unlawful detention,
torture and conflict-related sexual violence. The session laid the foundation for further strengthening of OHCHR
cooperation with the civil-military units in the field through its office in Kramatorsk.
251 On 11 December in Kyiv, OHCHR delivered a presentation on torture prevention for approximately 50 military
chaplains of the Ukrainian Greek Catholic Church who regularly go to the contact line as volunteers or staff of the
security and defence structures to provide pastoral care to the soldiers.
252 On 28 November in Kyiv, OHCHR participated in a seminar organized by the Ministry of Justice and the Office of the
Ombudsperson with a view to develop guidance for chaplains confronted with torture in prisons.
253 The consultant was retained to provide strategic advice to the Government, civil society and the United Nations system
on preventing and addressing conflict-related sexual violence in Ukraine.
254 See “Right to social security and social protection” above.
255 The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
256 The Package of Measures for the Implementation of the Minsk Agreements calls for: an immediate and comprehensive
ceasefire; withdrawal of all heavy weapons from the contact line by both sides; commencement of a dialogue on
modalities of local elections; legislation establishing pardon and amnesty in connection with events in certain areas of
Donetsk and Luhansk regions; release and exchange of all hostages and unlawfully detained persons; safe access,
delivery, storage, and distribution of humanitarian assistance on the basis of an international mechanism; defining of
modalities for full resumption of socioeconomic ties; reinstatement of full control of the state border by the Government
of Ukraine throughout the conflict area; withdrawal of all foreign armed groups, military equipment, and mercenaries
from Ukraine; constitutional reforms providing for decentralization as a key element; and local elections in certain areas
of Donetsk and Luhansk regions. United Nations Security Council Resolution 2202 (2015), available at
http://www.un.org/press/en/2015/sc11785.doc.htm. See also Protocol on the Results of the Consultations of the Trilateral
Contact Group regarding Joint Measures Aimed at the Implementation of the Peace Plan of the President of Ukraine P.
Poroshenko and Initiatives of the President of the Russian Federation V Putin, available at
http://www.osce.org/home/123257; Memorandum on the Implementation of the Protocol on the Results of the
Consultations of the Trilateral Contact Group regarding Joint Measures Aimed at the Implementation of the Peace Plan of
the President of Ukraine P. Poroshenko and Initiatives of the President of the Russian Federation V. Putin, available at
http://www.osce.org/home/123806.
xv
ANNEX II
Simultaneous release of detainees under the Minsk agreements
1. On 27 December 2017, a simultaneous release took place as part of the “all for all” release
envisaged by the Minsk agreements1: 233 individuals were released by the Government of
Ukraine and 74 individuals were released by armed groups. The simultaneous release took place
on the transport corridor Horlivka-Artemivsk, between armed-group controlled Horlivka and
Government-controlled entry-exit checkpoint Zaitseve.
2. Of the 233 individuals released by the Government, 157 individuals (including 15 women)
were released to the ‘Donetsk people’s republic’ and 76 individuals (including 3 women) to the
‘Luhansk people’s republic’. All the detainees had been either in the custody of law-enforcement
agencies (detained under suspicion of being a member of or otherwise affiliated with armed
groups and tried in court), or had already served their sentences (mostly under article 258-3 of
the criminal code, aiding terrorist organisations).
3. ‘Donetsk people’s republic’ released 58 individuals (53 men and 5 women), and ‘Luhansk
people’s republic’ released 16 individuals (all men). Of the 74 detainees released by armed
groups2, 41 were civilians3 and 33 were members of the Ukrainian forces (Ukrainian Armed
Forces and National Guard).
4. On 20 January 2018, further releases occurred. The Government of Ukraine released one
female civilian, while the ‘Donetsk people’s republic’ released a male member of the Ukrainian
Armed Forces. Thus, during the reporting period, a total of 309 persons were released under the
simultaneous release framework: 234 released by the Government (including 19 women) and 75
by armed groups (including 5 women).
A. Detention in preparation for simultaneous release
5. Prior to the simultaneous release, all 234 individuals in Government custody were held in
various detention facilities across Ukraine, although some had already been officially released
from detention on remand by court order.
6. Ahead of the planned simultaneous release, most individuals were transported to “Zelenyi
Hai” sanatorium near Sviatohirsk (Donetsk region).4 Guarded by armed SBU officers, they were
not allowed to leave the premises, but could move freely inside the building and were allowed up
to two hours walk a day on the territory of the sanatorium. Some detainees told OHCHR they
were not informed where and why they were being taken. Some could not inform their relatives
or lawyers of their whereabouts.5
7. Other detainees (mainly those held in western Ukraine) were first transported to
Lukianivske SIZO in Kyiv, where some 30 of them were put in a cell, with only 18 beds.6 After
ten days, they were transferred to Kharkiv SIZO, where they were joined by other detainees
waiting to be released. While approximately 40 of them were in one cell, some reported that
1 “Release and exchange of all hostages and unlawfully detained persons, based on the principle “all for all” is foreseen in
para. 6 of the Package of measures for the Implementation of the Minsk agreements. English translation available at
https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf. The Working Group on
Humanitarian Issues reached the decision on the simultaneous release at the end of November 2017, after a year of tense
discussions in Minsk.
2 One woman decided to stay in the territory controlled by armed groups for family reasons.
3 Some civilians had previously been members of volunteer battalions but were not taking part in hostilities at the time of
their apprehension.
4 Some were brought to “Zelenyi Hai” as early as 15 December 2017, while others were transferred to this facility even a
few days before the release on 27 December.
5 OHCHR interviews, November-January 2018. The Government informed OHCHR that these restrictive measures were
taken to ensure the safety of the detainees.
6 Transitory cells in SIZOs across Ukraine generally have poor conditions.
xvi
there was enough space.7 On the morning of 27 December 2017, they were transported to the
Zaitseve checkpoint, where they were joined by the group held in “Zelenyi Hai”.
8. In the territory controlled by armed groups, between 25-26 December 2017, the
‘administration’ of the detention facilities called each detainee who was to be included in the
release and instructed each to write a statement that they have no complaints about the conditions
of detention and a request to be pardoned by the ‘head of republic’.8 The administration informed
the detainees that it was the only way to be released on 27 December 2017.
B. Allegations of human rights violations
9. In order to protect individuals and their families through strict adherence to the principles
of confidentiality and informed consent, much of the documented information is presented in the
form of an overall analysis rather than detailed information in individual cases.9
10. Of the 234 individuals released by the Government, OHCHR had already been monitoring
142 cases prior to the simultaneous release, having interviewed individuals while in detention
facilities in government-controlled territory and observed related court hearings.10 After the
simultaneous release, OHCHR undertook further interviews, and as of 15 February 2018, it had
interviewed 64 of the released individuals, on both sides of the contact line. All described having
been subjected to torture or ill-treatment, sexual violence, threats of violence, inhumane
conditions of detention and/or violations of fair trial guarantees. These violations and abuses
(most of which occurred prior to the reporting period) are emblematic of systemic human rights
issues which have been further exacerbated by the conflict.
11. Analysis of interviews conducted both before and after the simultaneous release suggests
that cases of incommunicado detention and torture were more common in 2014 and 2015 in
government-controlled territory than afterwards. During that period, “volunteer battalions” were
often involved in apprehensions. For example, in November 2014, four masked, armed Aidar
battalion members stormed into a hospital where the victim was receiving treatment, placed a bag
over his head and took him to the basement of the former police school in Shchastia, where he
was held incommunicado with 16 other men. After four days, he was finally admitted to the
SIZO in Starobilsk, where he had access to a lawyer.11
12. Torture was most often reported by detainees held in Kharkiv SBU, particularly in 2015.
Methods used included suffocation with a gas mask, dislocation of joints, electric shock and
mock execution. Detainees also received death threats and threats of a sexual nature, both against
themselves and their families, and were denied access to medical care. The torture would usually
continue until the detainees signed self-incriminating statements.12 For example, a woman was
detained in Kramatorsk in January 2015 by a group of masked men wearing camouflage without
insignia. Blindfolded, she was brought to the basement of the Kramatorsk SBU building, and
forced to write a “confession” which was dictated. She was threatened that her minor daughter
7 OHCHR interview, 6 February 2018.
8 The exact wording of the appeal was “please demonstrate an act of mercy towards me”.
9 Many released detainees have credible fears of retaliation, and some individuals or their families have received threats.
Additionally, OHCHR strives to maintain the highest protection of victims through strict adherence to the principles of
confidentiality and informed consent.
10 OHCHR had also previously submitted advocacy letters outlining human rights concerns on individual cases to the
Government.
11 OHCHR interviews, 24 March 2016 and 8 February 2018.
12 “OHCHR documented the cases of eight individuals detained and tortured by SBU in Kharkiv in 2015. For example,
three of these individuals were arrested separately in May 2015, handcuffed and had bags placed over their heads. They
were taken to the Kharkiv SBU building, where they were interrogated and tortured separately for hours by methods
including suffocation with a gas mask, dislocation of joints, electric shock, and mock execution. The detainees also
received death threats and threats of a sexual nature against their families. SBU officers forced these men to sign selfincriminating
statements and refused them access to a lawyer. They were transferred to a hospital where a doctor refused
to document visible injuries. In another example, also in May 2015, a man was arrested by SBU. On the way to the
Kharkiv SBU building, the perpetrators stopped the vehicle and tortured him with electric current. Upon reaching the
SBU building, the victim was further tortured until he “confessed” to planning terrorist acts. As of 15 August 2017, all
four of these victims remained in pre-trial detention. The Military Prosecutor’s Office has launched an investigation into
these allegations.” OHCHR 19th Report, para. 58.
xvii
would be subjected to sexual violence13 and punched in the face. She was then handcuffed to a
pipe overnight, during which she heard a male detainee screaming in a neighbouring room. Over
the next 24 hours, she was subjected to electric shock, raped and burned on the leg.14 She was
forced to “confess” on video of being member of armed groups in ‘Donetsk people’s republic’.15
13. Members of armed groups were reportedly usually subjected to more violence. For
example, in May 2015, four to six masked, armed persons attacked a former member of an armed
group of ‘Luhansk people’s republic’. They hooded and handcuffed him, and kicked him while
interrogating him and demanding he confess to committing crimes and hiding weapons. As a
result, the victim was heavily bleeding from his head, arms and legs. While transporting him to
Kyiv SBU, the perpetrators cut him with a knife and threatened to kill him if he did not
cooperate. At the SBU office, he was forced to make a video “confession” in Ukrainian and
Russian languages. Then he was transferred to Kharkiv SBU, where he was granted access to a
lawyer. He was then taken to Kharkiv SIZO where despite being examined by a doctor, no
medical care was provided for about a week.16
14. Released detainees also told OHCHR they were subjected to excessive use of force during
apprehension and not granted access to legal counsel until they “confessed”. For example, in
November 2015, a man was arrested in Mykolaiv by five masked people during which he was hit
in the chest, pushed face down on the street and handcuffed. During some five hours of
interrogation by SBU in absence of a lawyer, the detainee was called “terrorist” and threatened:
“your relatives will never know where you are. We bury such people like you”. Then he was
forced to read a “confession” on camera. He was only given access to a lawyer after four days.17
15. Interviews with released detainees also suggest that individuals (especially women)
detained by the Government in late 2016 and 2017 were less likely than before to be subjected to
physical violence.18 At the same time, because the detainees were blindfolded or hooded, or the
perpetrators covered their faces, it was almost impossible to identify the perpetrators, which
significantly restricts the possibility of successful lodging complaints about these human rights
violations.
16. Conditions in SIZOs were often reported as poor. For example, in Odesa SIZO the cell
walls were covered in mould and the drain was often clogged; detainees were fed three times a
day, with food which was often rotten.19 In Starobilsk SIZO, while the overall conditions were
reported as “tolerable”, the food was described as “inedible”.20 Detainees in Bakhmut SIZO
complained about poor sanitary conditions and bedbugs.21 Detainees held in Kharkiv SIZO
reported that parts of the building were poorly heated and cells were infested with cockroaches
and had poor sanitary conditions.22 Another detainee reported she was transferred between
Kharkiv SIZO and penal colony No. 54 without evident reason; while in the colony, she was
placed in solitary confinement for over five months.23 Detainees also complained of nonprovision
of adequate medical care with regard to all facilities.
Territory controlled by armed groups
17. Of the 75 individuals released by armed groups, 41 were civilians: 2 had been arbitrarily
detained since December 2014, 13 since 2015, 17 since 2016 and 9 since February-March 2017.
13 The perpetrators stated, “We will now bring your daughter here and amuse ourselves with her as a woman until you
give us the testimony we need!” and “We will bring your children to the military airport and give them to servicemen for
amusement!”
14 The victim still had the scar at the time of the interview.
15 OHCHR interviews, 13 June 2016, 6 July 2017.
16 OHCHR interviews, 18 November 2016, 8 February 2018.
17 OHCHR interviews, 12 April 2017, 5 February 2018.
18 OHCHR interviews, 26 August 2016, 13 April 2017, 20, 27 September 2017, 2 and 3 February 2018.
19 OHCHR interviews, 8 February 2018.
20 OHCHR interviews, 5 December 2016, 9 August 2017, 8 February 2018.
21 OHCHR interviews, 13 June 2017, 5 July 2017.
22 OHCHR interview, 6 February 2018.
23 She was held in solitary confinement from November 2016 to April 2017. OHCHR interview, 25 May 2017.
xviii
OHCHR interviewed 20 of the released civilians. They had been detained either in their homes,
or while at work or on the street, usually by armed men wearing no insignia. In 18 cases, they
were transferred to ‘MGB’ of ‘Donetsk people’s republic’ or ‘Luhansk people’s republic’, which
‘investigated’ the cases.24 During the initial period of detention - at least for one month - each
person was held incommunicado, denied access to a lawyer or communication with relatives.25
During this time, in the majority of documented cases, the detained civilians were kept either in
the basements of the ‘MGB’ buildings or in premises generally not intended for detention, and
regularly brought to ‘MGB officers’ for interrogation.26 Detainees were often hooded or
blindfolded and handcuffed and/or strapped to a chair. In all documented cases, ‘MGB officers’
threatened severe physical violence or rape against the detainees or their relatives if they refused
to “cooperate”.27 Such threats were usually accompanied by hits or kicks into the head, chest or
legs, making victims believe the threats were imminent and credible.
18. In 15 out of 20 documented cases, physical violence amounting to torture was used during
interrogation, until the detainee “confessed” and wrote, signed and/or was videotaped providing
self-incriminating testimonies. The most common methods of torture used were mock
executions,28 electrocution,29 beatings30 and suffocation by placing a bag over the head.31 These
testimonies were corroborated by initial medical examinations of 73 detainees (both civilians and
military) released by armed groups, according to which 7 individuals had closed craniocerebral
trauma, over 50 had problems with teeth (including knocked out teeth), and 8 had physiological
dysfunctions or disability linked to torture.
19. During the overall time of detention in territory controlled by armed groups, each
individual was held in at least two different detention places, including premises not intended for
detention. Conditions of detention varied from normal to those amounting to inhumane and
degrading treatment; facilities most commonly used are described below.
20. In territory controlled by ‘Donetsk people’s republic’, detained civilians were
predominantly held in the following places: basement of the ‘MGB’ building on 26 Shevchenka
Street, Donetsk city SIZO, Izoliatsiia on 3 Svitloho Shliakhu, ‘IVS’ temporary detention facility
in Donetsk, and penal colony No. 32 in Makiivka.
24 In two cases, victims (former members of battalions) could not identify the affiliation of ‘investigators’.
25 So-called ‘administrative arrest’.
26 The interrogation, often with torture, was conducted in ‘MGB’ buildings in Donetsk and Luhansk and in Izoliatsiia
detention facility in Donetsk.
27 Some threats recanted by interviewed victims were: “we will put you inside a basin with chlorine”, “I will cut your leg
and will leave you forever in MGB basement”, “send you to the frontline”, “you don’t want to be disabled, do you?”, “I
will go pick up a drill and drill through your legs”, “we have three main directions: to threaten, frighten, prevent access”,
“we will put you back in the cell and deal with your wife”, “everything that was until now –were just flowers. You will be
placed into the cell with faggots and get raped [the word used in Russian ‘tebia opustiat’ is a prison jargon that means
someone will be beaten, raped and urinated on]”, “they threatened to bring my wife, torture her on the table [with electric
shock], put her in the next cell, rape her and make me listen to how she screams”.
28 Mock execution was very common and often used repeatedly. Some examples from victims’ interviews include: “I was
facing the wall and the guards shot above my head. I was scared to death”; “Somebody leaned in and said ‘You must
remember this sound for the rest of your life. Then I heard the bolt reload and two people talking: ‘Wait… what if the
cartridge is real?’ - ‘I am not sure if it is real or blank’. Then the gun was fired into my direction”; “I was taken outside
with a plastic bag over my head and told to pray. Then I heard someone loading a gun. Then they told me they changed
their mind. On another day, I was put in a coffin and told to get ready to die, then I heard someone nailing it. After
approximately an hour, I dared to open it, and was beaten for that.”
29 Electric shocks were administered on the neck, ears, feet, legs, arms and genitals. For example, a female detainee
described one of her evenings in Izoliatsiia detention facility: “One evening a number of men came to the room. They put
a bag on my head and forced me into a different room. There I was put on a metal table face down and tied with duct tape.
My socks were taken off and someone connected wires to my toes and turned on electricity. It was extremely painful
through my whole body. They demanded I confess to cooperating with some people from the government-controlled side.
I was electrocuted twice”. Another detainee in Izoliatsiia stated “On many occasions my cellmates were taken out
somewhere, tortured with electricity and returned with burns on their ears, fingers and genitals”. A detainee from Luhansk
said “they would attach one wire to the handcuffs, and another wire to parts of the body - a nose, ears, genitals”.
30 Detainees were beaten both by hand and with objects, on all body parts, for example, hits to the head with a book, hits
on the soles of feet, stepping on bare toes, and blows to the chest causing difficulty breathing.
31 Suffocation was done almost to the point of unconsciousness or triggering seizures. For example, a detainee held in
Luhansk witnessed that “a person would be forced to wear a gas mask, and an air hole would be closed, causing a person
to suffocate.”
xix
21. In the ‘MGB’ basement, detainees were fed three times per day, but food was often spoiled;
however at some point civilian detainees were allowed to receive packages from relatives once a
month. They were convoyed to the toilet twice a day, and showers were permitted once every
fortnight. The cells were cold (around 10 degrees Celsius during cold season), damp and lacked
fresh air. It was forbidden to do physical exercises in the cells. Medical care was not provided.
22. Conditions in the IVS in Donetsk were reportedly satisfactory: the cells were renovated
before 201232 and well-heated, detainees were served food from a nearby canteen (fish, potatoes,
meat, bread), given water and had access to medical care. 33
23. Conditions in Izoliatsiia were poor.34 Detainees were held in the basement and ground floor.
Most rooms lacked toilets or running water, and detainees were only allowed to use such
facilities once a day for a few minutes; alternatively they could relieve themselves in a plastic
bottle in the cell. Food was provided twice a day. Detainees were forced to work35: women were
forced to cook and clean and men to move heavy objects, including ammunition, and clean cars
in the yard. In the room, the light was continuously on and detainees were not allowed to switch
it off. Walks were not allowed. There was a doctor in the facility, but available medication was
mostly expired. A few detainees described hearing the screams of others being tortured.36
24. Conditions were reported as poor in Donetsk SIZO. Detainees were held in the 6th or 10th
block, which had been previously used for convicts with life sentences.37 The cells were small (2
x 4 metres or 1.3 x 3.5 metres), with bunk beds. Often cells were overcrowded (12 people for 8
places), cold with broken windows, humid with mould on the walls, and infested with
cockroaches, bedbugs and rats. The toilets in the cells would often clog. Food was insufficient in
quantity and of poor quality. Detainees could receive parcels from relatives38, inform them of
their whereabouts and be visited by families. After ‘sentencing’, six interviewed detainees were
moved to Makiivka colony No. 32 near Donetsk, where conditions were overall satisfactory;
however the walls were with mould and cold. During the time in detention, some detainees
experienced prison inspection (which prisoners/detainees) refer to as “masks”. During one of
such inspections, detainees were forces to undress and do squats. Under the pretext of cells’
search they dragged every detainee out and beat them with their bats.
25. In territory controlled by ‘Luhansk people’s republic’, civilians reported being held in the
‘MGB’ building in Luhansk city, Luhansk SIZO, and the ‘commandant’s offices’ in Luhansk and
Stakhanov.
26. In the ‘MGB’ building, detainees were always hooded and handcuffed when interrogated.
Detainees were forced to rise at 6:00 hrs, often to the ‘anthem of the republic’, and fed twice a
day with porridge, a piece of bread and hot water. Sometimes at night, ‘officers’ took a detainee
from a cell and the person would be missing for several days.
32 This detention facility was renovated by the Government of Ukraine ahead of the European Football Championship in
2012.
33 One interviewee described IVS as “heaven in comparison with MGB”.
34 Prior to the conflict, Izoliatsiia was an industrial facility which was turned into a cultural centre in Donetsk city. In May
2014, it was seized by armed groups and used as a detention facility. OHCHR documented and previously reported on
various human rights violations including torture which occurred at Izoliatsiia. Since 2015, this detention facility is
reported to be controlled by ‘MGB’. According to interviewed detainees, the number of detainees in Izoliatsiia at
different varied from 13 to 55. Some detainees were civilians, others were members of the armed groups. Member of the
armed groups were brutally beaten. In spring 2017, all rooms holding detainees were kept were renovated, all detainees
received bedclothes and a washing machine was installed.
35 Some detainees reported that they volunteered to work in the kitchen, as it also allowed them to get access to better
food.
36 For example, one detainee told OHCHR: “While being held in Izoliatsiia, I heard other detainees being tortured in the
adjacent compartments. One day I heard a man from the Caucasus being tortured; he was offering them ransom, but they
did not stop. The following day I was told to clean that room – I saw blood and some haired skin on the floor” … “We
could often hear screams of others at night”.
37 Usually in SIZOs, blocks used for life sentences detainees are in the worst condition.
38 Here and throughout the text of this annex, it was easier to receive parcels for those who had relatives in the territory
controlled by armed groups. Due to absence of postal services between territory controlled by armed groups and
government-controlled territory, it was much more difficult to send parcels to those detainees who did not have family
links in the territory controlled by armed groups.
xx
27. Conditions in the Luhansk SIZO were reported as overall satisfactory, improving in early
2017. Detainees were fed three times a day, with better food on weekends, and had regular access
to hot water. Sometimes detainees could call relatives. Cells were inspected once every fortnight,
sometimes resulting in beatings of detainees.
28. In the ‘Commandant’s office’ of Zhovtnevyi district in Luhansk city, detainees were held in
a big cell in the basement containing five-plank beds and no lights. They were convoyed to the
toilet twice a day. Detainees received satisfactory nutrition and were treated well by the guards.
Occasionally, short walks in the yard were allowed. Detainees reported being interrogated by
‘MGB officers’, often with use of torture (mostly with use of electric currents).
29. In the ‘Commandant’s office’ in Stakhanov town, detainees were held for short periods of
time in basement cells. Interrogations took place in the same building.
30. The remaining 33 persons released by armed groups were members of the Ukrainian forces.
One had been detained by armed groups since August 2014, 15 since 2015, 16 since 2016 and 1
since March 2017. OHCHR interviewed 18 of the released military personnel. Most were
captured at military positions or near checkpoints. All those interviewed had been beaten upon
capture. Some soldiers were interrogated and tortured.39 Mock executions were reported
common40 and often repeated.41 Further treatment of the soldiers varied greatly depending on
which unit captured them and their own role within the Ukrainian military. For example, those
few who were intelligence officers or served in special battalions were beaten and tortured more
frequently and severely than others.42 Some soldiers were forced to videotape self-incriminating
“confessions” or give false statements to the media for use as propaganda.
31. Member of the Ukrainian forces were held in various places and moved among two or three
different facilities.43 Conditions of detention varied, and in most cases amounted to inhumane
and degrading treatment.
32. In territory controlled by ‘Donetsk people’s republic’, some soldiers captured in 2014 and
2015 were initially held in the seized building on 25 Maiska Street in Donetsk under the control
of ‘Don Cossacks’.44 Detainees there (military and some civilians – both men and women) were
constantly subjected to torture and ill-treatment during interrogation.45 All detainees were held in
one small cell (3×5 metres) lacking windows, with poor ventilation and no toilets.
33. In the detention facility on 14 Molodizhna Street, detainees were held in second floor
rooms with barred windows, with approximately 18 detainees sharing one cell. Detainees used
metal racks as beds, and were escorted once a day to bathroom facilities (and otherwise used a
39 For example: “They started asking about military positions, then twisted my arms and led me downstairs, intentionally
pushing me against the walls, so I would hit my head. Then they slammed my head against the boiler. Then six or seven
men brought me to a room, forced to undress and made me kneel facing the wall. Then they hit me a few times, racked
the slide and put a machine gun to my head saying I can make my last wish. Then someone entered the room and I heard
a dialog: ‘Oh, don’t do it, his blood will be everywhere’ – ‘No worries, I will clean the floor’. Then I heard click of a slide
and was ordered to get dressed. They twisted my hands and led me upstairs. Again, they were slamming me against the
walls and the boiler.”
40 The majority of individuals interviewed mentioned being subjected to mock execution, in many cases repeatedly.
41 An example provided by an interviewee: “We were brought inside a building of a former club or school. For the next
two days, the captors took turns beating us repeatedly. They encouraged others to participate in the beatings, saying ‘Hey,
who wants to see a live ukrop [derogatory name used for Ukrainians]?’ As a result of beating, I lost most of my teeth.”
42 “They did not consider us as human beings and treated as beasts. We had no official status and, thus, no rights.”
43 In Donetsk and its vicinity, members of Ukrainian forces were predominantly held in basements of the former SBU
building on 62 Shchorsa Street, the ‘MGB’ building on Shevchenka Street, buildings at 7 Artema Street and 14
Molodizhna Street, and the Cossack’s base at 25 Maiskaia Street. Most were then moved to Makiivka penal colony No.
97. In Luhansk region, they were held in the basement of the ‘MGB’ building in Luhansk, SIZO No.1, and the
‘commandant’s office’ in Luhansk. Interviewees could not specifically identify other places where they were held for
short periods of time, such as a basement in Pervomaisk.
44 This detention facility run by Cossacks existed until 30 April 2015 when it was taken over by ‘MGB’. Then all
detainees were transferred to the basement of the former SBU building at 62 Shchorsa Street.
45 The Cossacks randomly beat detainees in the cells with their rifle butts. One interviewee stated: “Cossacks interrogated
me about my military unit and combat tasks. I was beaten with arms and legs. They also pierced me several times using a
knife.” “One night a few Cossacks, who seemed to be drunk, entered the cell, ordered the detainees to lay on the floor and
started firing above the detainees’ heads”.
xxi
plastic bottle in the cell). They were fed twice daily, however those subjected to forced labour46
received one additional meal per day. Approximately once per week, detainees were allowed to
contact their families. Civilians were also held in this facility. OHCHR received credible reports
of a civilian woman dying in that facility on 10 September 2016, after being subjected to torture,
including beatings and electrocution.
34. From February to May 2016, some Ukrainian soldiers were held in the basement of the
building at 7 Artema Street47 which was controlled by ‘republican guards’ of the ‘Donetsk
people’s republic’. Some 35 detainees were held in three windowless cells measuring 2 by 6
meters each. They were given access to toilets and running water once per day.
35. Most Ukrainian soldiers captured near Donetsk reported being detained for various periods
of time in the seized SBU building at 62 Shchorsa Street. Before interrogation, some soldiers
were put in solitary confinement in complete darkness in a small cell called the “Yama” (pit).48
All detainees were held in basement rooms (a former archive), which was too small for the
number of persons (up to 50 men), resulting in overcrowding. There were no windows or fresh
air, and plastic bottles were used instead of toilets. Food was insufficient – a 10 litre bucket of
food (soup or porridge) and several loaves of bread were provided for all detainees to share.
36. In July 2016, most Ukrainian Armed Forces detained in territory controlled by ‘Donetsk
people’s republic’ were transferred to Makiivka colony No. 97 (maximum security prison) where
they were separated from pre-conflict prisoners and placed two to three detainees per cell. They
were prohibited from contacting relatives.49 Detention conditions in the colony were worse than
in other premises; the cells were cold and damp, detainees received three meals per day but of
very poor quality.50 Medical treatment was rarely provided.51 The detainees were subjected to
daily searches of their cells.
37. In territory controlled by ‘Luhansk people’s republic’, Ukrainian Armed Forces were held
in the same places of detention as civilians. In Luhansk SIZO, Ukrainian soldiers were held on
the fifth floor and treated differently than civilians. The food was poor and insufficient (some
bread and rarely a bit of porridge), and reportedly there were cases when the guards did not feed
detainees for two days. Detainees did not have hot water for at least five months. No medical
treatment was available; walks outside and contacts with relatives were not permitted.
38. Released Ukrainian soldiers also reported being detained in the ‘Commandant’s office’ of
Artemivskyi district in Luhansk, where they were held in six spacious cells in the basement and
fed three times a day with food cooked for the guards.
C. Accountability for human rights violations and fair trial rights
39. OHCHR is concerned that the simultaneous release of detainees may have negative
consequences on accountability for human rights violations. First, the release of individuals
alleged to be perpetrators of human rights violations52 deprives victims of justice and redress.53
46 Cleaning barrels with gasoline, cleaning industrial waste, digging trenches and other hard labour.
47 The building previously belonged to a railway company.
48 This was utility space under stairs with heat pipelines, 1.3 x 2 metres, with no light. Usually they were kept there for
one to two days.
49 In protest, two members of UAF announced a hunger strike and were severely beaten by guards. As described by one
interviewee: “Two guards held me while the third was beating my stomach asking whether I still refuse to eat. We agreed
to stop the strike, but we were still punished. I was held in solitary confinement until 15 April 2017” [10 months].
50 One person stated: “I have not seen a blue sky for 1.5 years.”
51 “A local doctor always underlined that she does not want to treat captured Ukrainian soldiers – ‘you are enemies!’ ”
52 OHCHR is aware of at least 10 individuals transferred to armed-group-controlled territory who were charged with or
convicted of crimes against life and liberty of individuals or against their property. At least seven others were facing
similar charges in addition to those related to their affiliation or links with armed groups. A person convicted for killing
two Ukrainian soldiers was pardoned by the President and transferred to armed-group-controlled territory on 20 January
2018.
53 For example, on 6 July 2017, a former police officer in Druzhkivka was found guilty of robbery, brigandism and
unlawful expropriation of a vehicle as part of an armed group of the ‘Donetsk people’s republic’ that abducted a local
businessman and tortured him together with others in the basement of the building of the so-called ‘Druzhkivka NKVD’
or ‘Komendatura’ in June-July 2014. He was the only member of the armed group who stood trial for crimes perpetrated
xxii
Second, many conflict-related detainees who were released were subjected to human rights
violations during the course of their detention and prosecution. Some who filed complaints faced
obstruction from law enforcement, which lacked willingness to duly investigate the allegations
while the complainants remained in government-controlled territory.54 Their release to armedgroup-
controlled territory may lead to closure of the cases, depriving them of access to justice.
40. OHCHR examined the legal procedures applied by the Government in preparation for
the simultaneous release on 27 December 2017.55 Following the release, OHCHR interviewed 26
individuals (out of the 234 detainees released by the Government) who stated that the main
reason they had agreed to participate in the release was because it was their only option for
liberty due to protracted court proceedings during which mandatory pre-trial detention is applied
against all individuals charged with affiliation or links with armed groups under article 176(5) of
the Criminal Procedure Code.56
41. OHCHR is concerned that the simultaneous release may have been used to compel
conflict-related detainees, who saw no prospect of justice or fair hearing, to plead guilty, even in
otherwise poorly substantiated cases, thus effectively denying them access to justice.57 Between
13 and 21 December 2017, at least 39 individuals were convicted by courts based on inter alia
plea bargains and retractions of appeals. OHCHR noted a spike in plea bargains shortly before
the simultaneous release took place.58 Eighteen individuals interviewed by OHCHR stated they
were offered plea bargains in exchange for being included in the simultaneous release process.
42. At least twenty six individuals who had been on trial for over a year were promptly
convicted within two weeks prior to the release. If their conviction was a precondition for
inclusion in the simultaneous release, this would raise concern that they have been effectively
denied access to justice.
43. In 58 cases of individuals, courts lifted the custodial measures days before the
simultaneous release, despite the practice of mandatory pre-trial detention of conflict-related
detainees under article 176(5) and the increased risk of flight (since they were meant to be
transferred to armed-group-controlled territory). This creates the appearance that courts were
influenced by prosecutors and the SBU (which was in charge of the simultaneous release).
44. Individuals who were released but whose trials were not completed or whose cases were
not closed59 may risk re-arrest should they return to government-controlled territory, or they may
be tried and convicted in absentia.60 At least four individuals received suspended sentences with
against civilians when Druzhkivka was under the armed group’s control. He was initially charged and tried only under art.
260 of the Criminal Code (membership in illegal armed formation), however due to victims’ appeals, the charges were
requalified and the perpetrator was convicted and sentenced to 12 years in prison by Druzhkivka City Court of Donetsk
region. On 5 February, local authorities informed the victims they should not expect to receive compensation for damages
awarded by the court since the perpetrator was released under the simultaneous release framework.
54 OHCHR is aware of at least ten individuals transferred to armed-group-controlled territory under the simultaneous
release framework, who complained of human rights violations in relation to their detention and subsequent prosecution
and confirmed their intention to pursue cases against the perpetrators.
55 Through trial monitoring, OHCHR documented that some detainees spend years in detention awaiting trial under art.
176, despite the failure of prosecution to establish the necessity of imposing detention on remand on conflict-related
detainees. Further, OHCHR noted that in some cases, detainees who agreed to be released and transferred to armedgroup-
controlled territory had no family in or links to that territory.
56 Through trial monitoring, OHCHR documented that some detainees spent years in detention awaiting trial under art.
176, despite the failure of prosecution to establish the necessity of imposing detention on remand on conflict-related
detainees. Further, OHCHR noted that in some cases, detainees who agreed to be released and transferred to armedgroup-
controlled territory had no family in or links to that territory.
57 Courts do not examine the merits of a case when parties agree to a plea bargain, but suspend the trial once the
defendant pleads guilty. The court practice is to only examine the “voluntariness” of the plea bargain agreement and
grounds its decision on the statements (“confession”) of the defendant. However, according to criminal procedure law, the
court cannot ground its decision exclusively on the statements (confession) of the defendant.
58 At least 13 individuals pled guilty and were convicted to prison terms which coincided or exceeded duration of their
pre-trial detention.
59 OHCHR has identified at least 58 persons who were released from pre-trial detention however whose trials continue to
be pending.
60 OHCHR notes that the existing procedure of trials in absentia does not correspond to ECtHR case law, in particular due
to the lack of provision for a full retrial with the defendant’s present. OHCHR further notes that courts issued rulings on
xxiii
a probation period during which they are obliged to report to law enforcement. In addition, they
are deprived of the possibility to pursue remedies for alleged human rights violations perpetrated
against them by state actors. The ability to travel across the contact line is of importance for both
those who received suspended sentence and those with pending trials. However, many
individuals did not have their identity documents returned to them upon release.61 Others may
face restrictions on their movement imposed by armed groups.
Territory controlled by armed groups
45. Interviews of individuals detained by armed groups and released to governmentcontrolled
territory provided further insight into the system of ‘prosecution’ in the two
‘republics’.62 ‘Trials’ in conflict-related cases are reportedly carried out in closed sessions,
allegedly in order not to disclose ‘classified information’.63
46. Interviews with Ukrainian soldiers and civilians believed to be affiliated with
Government forces,64 who were detained in territory controlled by ‘Donetsk people’s republic’
and ‘Luhansk people’s republic’ that their cases were often not subject to any review. OHCHR
documented 19 conflict-related cases where persons were subjected to indefinite detention65 in
breach of international human rights and international humanitarian law.66 Those Ukrainian
soldiers and civilians detained for over two years reported no periodic review regarding the
necessity or appropriateness of their continued detention, nor were ‘charges’ brought against
them during this period.67 Ukrainian soldiers, detained in Donetsk for a period of up to three
years were approached by ‘prosecution’ in September 2017 only - a few months before the
simultaneous release - when their detention was formalized by a ‘measure of restraint’ of
custodial detention imposed by the ‘prosecutor general’s office’.
47. Pre-trial detention proceedings of individuals ‘charged’ with espionage or other conflictrelated
crimes by ‘military tribunals’ in territory controlled by ‘Donetsk people’s republic’
appear to have followed a pro-forma basis.68 Furthermore, even such perfunctory review of
legality of detention was delayed. Time spent in incommunicado detention, to which many were
reportedly subjected prior to acknowledged ‘arrest’, seems not to have been taken into account
by a ‘military tribunal’ when calculating the ‘sentence’.69 Such practice contributed to
unacknowledged detention during which individuals were exposed to torture, including with a
view to force self-incriminating statements which served as basis for their subsequent
compelled appearance (привід) in relation to at least 20 released individuals and at least five other individuals have been
put on a wanted list.
61 Out of 160 individuals released and transferred to ‘Donetsk people’s republic’, 62 did not have their passports, 25 had
no documents at all, and 101 did not receive certificates of release which raises concerns that the legal proceedings
against them have not been closed. OHCHR does not have information regarding persons transferred to ‘Luhansk
people’s republic’.
62 OHCHR continued to have limited access to monitor ‘trials’ of individuals ‘accused’ of conflict-related offences in
‘courts’ in Donetsk. The ‘trials’ were held behind closed doors and OHCHR was excluded from all but the first and last
‘hearings’.
63 OHCHR interview, 21 November 2017. OHCHR notes that “publicity of hearings ensures the transparency of
proceedings and thus provides an important safeguard for the interest of the individual and of society at large” (HRC
General comment no. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, para. 28).
64 They are mostly ‘charged’ with espionage under art. 321 of the ‘criminal code’ of ‘Donetsk people’s republic’.
65 At least two civilians detained by the armed groups of ‘Donetsk people’s republic’ stated that they have been detained
without being formally ‘charged’. At least 17 interviewed Ukrainian soldiers detained in both ‘republics’ have also been
detained without any ‘charges’ brought against them.
66 Initial interviews, 28 December 2017, 11 and 14 January 2018.
67 The armed groups of ‘Donetsk people’s republic’ formally initiated ‘investigation’ against at least 10 Ukrainian
soldiers interviewed by OHCHR under article 230 (‘aiding and abetting terrorism’) of their ‘criminal code’ only in
September 2017. One interviewee told OHCHR that ‘investigation’ against captured Ukrainian soldiers was merely a
formality that would enable their release. The armed groups of ‘Luhansk people’s republic’ have not charged or tried
none of six captured soldiers interviewed by OHCHR irrespective of the duration of their detention.
68 For example, on 27 November 2017, the ‘military tribunal’ of ‘Donetsk people’s republic’ ‘ruled’ to extend detention
pending ‘trial’ of a defendant with the substantiation going beyond the ‘prosecutor’s’ arguments. The ‘judge’ noted that
since the ‘hearings on the merits’ had not started, it was difficult to assess to what extent the ‘accused’ facilitated the
‘investigation’ and therefore, there were no grounds to change his ‘measure of restraint’. OHCHR trial monitoring, 27
November 2017.
69 OHCHR interviews, 4 and 5 January 2017.
xxiv
‘prosecution’.70 In at least two cases, ‘courts’ disregarded detainees’ complaints regarding such
human rights violations they had suffered.71
48. Accounts by conflict-related detainees suggest that their degree of culpability in the
imputed ‘crime’ was already considered established at the time of their ‘arrest’, amounting to a
presumption of guilt. Subsequent ‘investigations’ and ‘trials’ seem to serve merely to create a
veneer of legality to the ‘prosecution’ of individuals believed to be associated with Ukrainian
military or security forces.72
49. Released detainees informed OHCHR that some appointed lawyers did not make any
real effort to present their case. The account of at least one victim suggests that he was
intimidated by ‘MGB’ of ‘Donetsk people’s republic’ in the presence of the appointed lawyer,
with no reaction from the latter.73 Some lawyers assigned to detainees advised that only
‘convicts’ were eligible for the simultaneous release under the Minsk agreements, leading many
detainees to plead guilty even though they had never admitted to committing the charged
offences. At the same time, detainees released from ‘Donetsk people’s republic’ who had been
‘prosecuted’ noted that lawyers facilitated contacts with their families.
50. Deprived of access to the Ukrainian judiciary and of effective ‘legal representation’ in
proceedings before ‘courts’ in armed-group-controlled territory,74 and fearing repercussions for
withdrawing statements given under duress,75 conflict-related detainees have stood ‘trials’ with
no chance of presenting their defence.76 Conflict-related ‘trials’ were heard by a ‘military
tribunal’ as a chamber of the ‘supreme court’ of ‘Donetsk people’s republic’, whose ‘verdicts’
entered into force immediately with limited opportunities to ‘appeal’.
70 Torture is prohibited under both IHL and IHRL. Article 14.3(g), ICCPR; Articles 75.4(f), Protocols I and art. 6.2(f),
Protocol II Additional to the Geneva Conventions of 12 August 1949.
71 HRMMU interviews 4-5 January 2018 and 18 January 2018.
72 Accounts of at least 18 civilians interviewed by OHCHR after their release on 27 December 2017 suggest that they
have been detained due to alleged links with Ukrainian military and/or security forces.
73 OHCHR interview, 16 January 2018.
74 Of the 18 conflict-related detainees interviewed by OHCHR, none were provided with a lawyer immediately upon
being detained. One detainee told OHCHR that he never had a confidential meeting with his assigned lawyer, who only
signed documents and was inactive during the ‘trial’ (OHCHR interview, 11 January 2018). In some cases, assigned
lawyers witnessed intimidation of their client (conflict-related detainee), however, did nothing (OHCHR interview, 15
January 2018). Lawyers of conflict-related detainees refrain from challenging legality of detention of their client during
‘pre-trial’ and ‘trial’ stages (OHCHR trial monitoring, 27 November 2017). OHCHR is concerned that lawyers from
government-controlled territory are not allowed to participate in the ‘proceedings’.
75 At least seven individuals reportedly tried to present their case but then changed their mind fearing repercussions from
the ‘MGB’. Others accepted the ‘charges’ being promised to be included in the simultaneous release.
76 These conclusions are based on interviews of ‘convicted’ detainees released on 27 December 2017, due to OHCHR’s
lack of access to ‘court hearings’.
Annex 780
U.N. Commission on Human Rights, Commentary of the Working Group on Minorities to the
United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities, U.N. Doc. E/CN.4/Sub.2/AC.5/2005/2 (2005)
UNITED
NATIONS E
Economic and Social
Council
Distr.
GENERAL
E/CN.4/Sub.2/AC.5/2005/2
4 April 2005
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sub-Commission on the Promotion and
Protection of Human Rights
Fifty-seventh session
Working Group on Minorities
Eleventh session
30 May-3 June 2005
COMMENTARY OF THE WORKING GROUP ON MINORITIES TO
THE UNITED NATIONS DECLARATION ON THE RIGHTS OF
PERSONS BELONGING TO NATIONAL OR ETHNIC, RELIGIOUS
AND LINGUISTIC MINORITIES
Note by the Secretary-General
1. The Working Group on Minorities, at its tenth session, adopted the commentary on the
United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities, originally drawn up by its former Chairperson, Mr. Asbjørn Eide, and
contained in document E/CN.4/AC.5/2001/2, as a commentary of the Working Group as a
whole.
2. The text of the commentary of the Working Group as a whole is attached in the form of a
pamphlet for reproduction in the United Nations Guide for Minorities.
GE.05-13385 (E) 260405
E/CN.4/Sub.2/AC.5/2005/2
page 2
PART I
FINAL TEXT OF THE COMMENTARY TO THE UNITED NATIONS
DECLARATION ON THE RIGHTS OF PERSONS BELONGING TO
NATIONAL OR ETHNIC, RELIGIOUS AND LINGUISTIC
MINORITIES OF THE WORKING GROUP ON MINORITIES
I. INTRODUCTION
1. In 1992, in its resolution 47/135, the United Nations General Assembly proclaimed the
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities. The Assembly requested that intensified efforts be made to disseminate information
on the Declaration and promote understanding thereof.
2. This commentary has been prepared in the context of the Working Group on Minorities
of the Sub-Commission on the Promotion and Protection of Human Rights. It is intended
to serve as a guide to the understanding and application of the Declaration. The first draft,
prepared by Asbjørn Eide as Chairperson-Rapporteur, was submitted to the Working
Group on Minorities for discussion in 19981 and was subsequently circulated to Governments,
intergovernmental and non-governmental organizations and individual experts for comments. A
compilation of those comments was submitted to the Working Group at its fifth session in 1999.2
Additional comments were made during that session and at the sixth session in 2000.3 The
Working Group requested Mr. Eide on that basis to finalize the Commentary and to ensure its
publication in the planned United Nations manual on minorities. The present final text therefore
draws on written work or oral contributions by many experts, Governments and international and
non-governmental organizations, and thus takes into account a broad body of opinion. The
Working Group on Minorities, at its tenth session adopted the Commentary on the
United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities originally drawn up by its former Chairperson,
Asbjørn Eide, and contained in document E/CN.4/AC.5/2001/2, as a Commentary of the
Working Group as a whole.
II. PURPOSES OF THE DECLARATION: ADVANCING
HUMAN RIGHTS AND THE PRINCIPLES OF THE
CHARTER OF THE UNITED NATIONS
3. The purposes of the Declaration, as set out in the General Assembly resolution 47/135
and the preamble to the Declaration, is to promote more effective implementation of the human
rights of persons belonging to minorities and more generally to contribute to the realization of
the principles of the Charter of the United Nations and of the human rights instruments adopted
at the universal or regional level. The Declaration on Minorities is inspired by article 27 of the
International Covenant on Civil and Political Rights. The General Assembly holds that the
promotion and protection of the rights of minorities contribute to the political and social stability
of the States in which minorities live and contribute to the strengthening of friendship and
cooperation among peoples and States.
E/CN.4/Sub.2/AC.5/2005/2
page 3
4. The Declaration builds on and adds to the rights contained in the International Bill of
Human Rights and other human rights instruments by strengthening and clarifying those rights
which make it possible for persons belonging to minorities to preserve and develop their group
identity. The human rights set out in the Universal Declaration of Human Rights must at all
times be respected in the process, including the principle of non-discrimination between
individuals. The State is obliged to respect and ensure to every person within its territory and
subject to its jurisdiction, without discrimination on any ground, including race, ethnicity,
religion or national origin, the rights contained in the instruments to which that State is a party.
5. It is in the light of these purposes and principles that the articles of the Declaration on
Minorities must be interpreted.
III. INTERPRETATION OF AND COMMENTS ON THE
TITLE AND THE INDIVIDUAL ARTICLES
THE TITLE AND SCOPE OF THE DECLARATION
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities
6. The beneficiaries of the rights under article 27 of the International Covenant on Civil and
Political Rights, which has inspired the Declaration, are persons belonging to “ethnic, religious
or linguistic minorities”. The Declaration on Minorities adds the term “national minorities”.
That addition does not extend the overall scope of application beyond the groups already covered
by article 27. There is hardly any national minority, however defined, that is not also an ethnic
or linguistic minority. A relevant question, however, would be whether the title indicates that
the Declaration covers four different categories of minorities, whose rights have somewhat
different content and strength. Persons belonging to groups defined solely as religious minorities
might be held to have only those special minority rights which relate to the profession and
practice of their religion. Persons belonging to groups solely defined as linguistic minorities
might similarly be held to have only those special minority rights which are related to education
and use of their language. Persons who belong to groups defined as ethnic would have more
extensive rights relating to the preservation and development of other aspects of their culture
also, since ethnicity is generally defined by a broad conception of culture, including a way of
life. The category of national minority would then have still stronger rights relating not only to
their culture but to the preservation and development of their national identity.
7. The Declaration does not, in its substantive provisions, make such distinctions. This does
not exclude the possibility that the needs of the different categories of minorities could be taken
into account in the interpretation and application of the various provisions.
8. Regional European instruments on minority rights use only the concept “national
minorities” and do not refer to “ethnic, religious or linguistic minorities”. The most important
among them are the instruments and documents of the Council of Europe4 and the Organization
for Security and Cooperation in Europe.5 When applying those instruments it is important to
E/CN.4/Sub.2/AC.5/2005/2
page 4
define “national minority”, but the same problem does not arise for the United Nations
Declaration on Minorities: even if a group is held not to constitute a national minority, it
can still be an ethnic, religious or linguistic minority and therefore be covered by the
Declaration.
9. This can be important in several respects. In relation to the European regional
instruments, some States argue that “national minorities” only comprise groups composed of
citizens of the State. Even if that is accepted (at present it is a matter of some controversy), it
would not apply to the United Nations Declaration on Minorities because it has a much wider
scope than “national minorities”. As the Declaration is inspired by article 27 of the International
Covenant on Civil and Political Rights, it may be assumed that the Declaration has at least as
wide a scope as that article. In conformity with article 2 of the Covenant, States parties are
under an obligation to respect and ensure the application of article 27 to everyone within its
territory and under its jurisdiction, whether the person - or group of persons - are citizens of the
country or not. This is also the view expressed by the Human Rights Committee in
paragraphs 5.1 and 5.2 of its general comment No. 23 (fiftieth session, 1994). Persons who are
not (yet) citizens of the country in which they reside can form part of or belong to a minority in
that country.
10. While citizenship as such should not be a distinguishing criterion that excludes some
persons or groups from enjoying minority rights under the Declaration, other factors can be
relevant in distinguishing between the rights that can be demanded by different minorities.
Those who live compactly together in a part of the State territory may be entitled to rights
regarding the use of language, and street and place names which are different from those who are
dispersed, and may in some circumstances be entitled to some kind of autonomy. Those who
have been established for a long time on the territory may have stronger rights than those who
have recently arrived.
11. The best approach appears to be to avoid making an absolute distinction between “new”
and “old” minorities by excluding the former and including the latter, but to recognize that in the
application of the Declaration the “old” minorities have stronger entitlements than the “new”.
12. The word “minority” can sometimes be misleading in itself. Outside Europe, and
particularly in Africa, countries are often composed of a large number of groups, none of which
make up a majority.
13. The relevant factors differ significantly between States. What is required is to ensure
appropriate rights for members of all groups and to develop good governance in heterogeneous
societies. By good governance is here understood legal, administrative and territorial
arrangements which allow for peaceful and constructive group accommodation based on equality
in dignity and rights for all and which allows for the necessary pluralism to enable the persons
belonging to the different groups to preserve and develop their identity.
14. The Declaration sets out rights of persons belonging to minorities mainly in article 2 and
spells out the duties of the States in which they exist in articles 1, 4 and 5. While the rights are
consistently set out as rights of individuals, the duties of States are in part formulated as duties
E/CN.4/Sub.2/AC.5/2005/2
page 5
towards minorities as groups. This is most clearly expressed in article 1 (see below). While only
individuals can claim the rights, the State cannot fully implement them without ensuring
adequate conditions for the existence and identity of the group as a whole.
15. The rights of persons belonging to minorities differ from the rights of peoples to
self-determination. The rights of persons belonging to minorities are individual rights, even if
they in most cases can only be enjoyed in community with others. The rights of peoples, on the
other hand, are collective rights. While the right of peoples to self-determination is well
established under international law, in particular by common article 1 of the two International
Covenants on Human Rights, it does not apply to persons belonging to minorities. This does not
exclude the possibility that persons belonging to an ethnic or national group may in some
contexts legitimately make claims based on minority rights and, in another context, when acting
as a group, can make claims based on the right of a people to self-determination.
16. Within the United Nations and also within the Organization of American States, a
distinction is drawn between the rights of persons belonging to minorities and those of
indigenous peoples. The latter have particular concerns which are not properly addressed in the
Declaration on Minorities. The main instrument at the global level relating to indigenous
peoples is the Convention concerning Indigenous and Tribal Peoples in Independent Countries
(No. 169) of the International Labour Organization (ILO), which has been ratified by only a
small number of States. The draft declaration on the rights of indigenous peoples, adopted by
the Working Group on Indigenous Populations and transmitted by the Sub-Commission on the
Prevention of Discrimination and Protection of Minorities in 1993 to the Commission on Human
Rights, is still under consideration by the Commission.
17. Persons belonging to indigenous peoples are of course fully entitled, if they so wish, to
claim the rights contained in the instruments on minorities. This has repeatedly been done under
article 27 of the International Covenant on Civil and Political Rights. Persons belonging to
indigenous peoples have made several submissions under the Optional Protocol to that Covenant.
18. That protocol does not generally make it possible to claim the group-oriented rights
sought by indigenous peoples, but some modification of that point follows from general
comment No. 23 of the Human Rights Committee (fiftieth session, 1994). The Committee noted
that, especially in the case of indigenous peoples, the preservation of their use of land resources
can become an essential element in the right of persons belonging to such minorities to exercise
their cultural rights (para. 7). Since the indigenous peoples very often have collective rights to
land, individual members of the group may be in a position to make claims not only for
themselves, but for the indigenous group as a whole.
19. Some see a link between the right of persons belonging to minorities to effective political
participation and the right of peoples to self-determination. The issue of effective participation is
addressed below in the comments on articles 2.2 and 2.3. If participation is denied to a minority
and its members, this might in some cases give rise to a legitimate claim to self-determination. If
the group claims a right to self-determination and challenges the territorial integrity of the State,
it would have to claim to be a people, and that claim would have to be based on article 1
common to the Covenants and would therefore fall outside the Declaration on Minorities. This
E/CN.4/Sub.2/AC.5/2005/2
page 6
follows also from article 8.4 of the Declaration (see below). The same would apply in other
contexts where the collective right to self-determination is claimed. The Declaration neither
limits nor extends the rights to self-determination that peoples have under other parts of
international law.6
20. While the Declaration does not provide group rights to self-determination, the duties of
the State to protect the identity of minorities and to ensure their effective participation might in
some cases be best implemented by arrangements for autonomy in regard to religious, linguistic
or broader cultural matters. Good practices of that kind can be found in many States. The
autonomy can be territorial, cultural and local, and can be more or less extensive. Such
autonomy can be organized and managed by associations set up by persons belonging to
minorities in accordance with article 2.4. But the Declaration does not make it a requirement for
States to establish such autonomy. In some cases, positive measures of integration (but not
assimilation) can best serve the protection of minorities.
ARTICLE 1
1.1 States shall protect the existence and the national or ethnic, cultural, religious
and linguistic identity of minorities within their respective territories and shall
encourage conditions for the promotion of that identity.
21. The relationship between the State and its minorities has in the past taken five different
forms: elimination, assimilation, toleration, protection and promotion. Under present
international law, elimination is clearly illegal. The Declaration is based on the consideration
that forced assimilation is unacceptable. While a degree of integration is required in every
national society in order to make it possible for the State to respect and ensure human rights to
every person within its territory without discrimination, the protection of minorities is intended
to ensure that integration does not become unwanted assimilation or undermine the group
identity of persons living on the territory of the State.
22. Integration differs from assimilation in that while it develops and maintains a common
domain where equal treatment and a common rule of law prevail, it also allows for pluralism.
The areas of pluralism covered by the Declaration are culture, language and religion.
23. Minority protection is based on four requirements: protection of the existence,
non-exclusion, non-discrimination and non-assimilation of the groups concerned.
24. The protection of the existence of minorities includes their physical existence, their
continued existence on the territories on which they live and their continued access to the
material resources required to continue their existence on those territories. The minorities shall
neither be physically excluded from the territory nor be excluded from access to the resources
required for their livelihood. The right to existence in its physical sense is sustained by the
Convention on the Prevention and Punishment of the Crime of Genocide, which codified
customary law in 1948. Forced population transfers intended to move persons belonging to
minorities away from the territory on which they live, or with that effect, would constitute
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serious breaches of contemporary international standards, including the Rome Statute of the
International Criminal Court. But protection of their existence goes beyond the duty not to
destroy or deliberately weaken minority groups. It also requires respect for and protection of
their religious and cultural heritage, essential to their group identity, including buildings and sites
such as libraries, churches, mosques, temples and synagogues.
25. The second requirement is that minorities shall not be excluded from the national
society. Apartheid was the extreme version of exclusion of different groups from equal
participation in the national society as a whole. The Declaration on Minorities repeatedly
underlines the rights of all groups, small as well as large, to participate effectively in society
(arts. 2.2 and 2.3).
26. The third requirement is non-discrimination, which is a general principle of human rights
law and elaborated by, inter alia, the International Convention on the Elimination of All Forms
of Racial Discrimination, which also covers discrimination on ethnic grounds. The Declaration
on Minorities elaborates the principle of non-discrimination in its provision that the exercise of
their rights as persons belonging to minorities shall not justify any discrimination in any other
field, and that no disadvantage shall result from the exercise or non-exercise of these rights
(art. 3).
27. The fourth requirement is non-assimilation and its corollary, which is to protect and
promote conditions for the group identity of minorities. Many recent international instruments
use the term “identity”, which expresses a clear trend towards the protection and promotion of
cultural diversity, both internationally and internally within States. Relevant provisions are
articles 29 and 30 of the Convention on the Rights of the Child, article 31 of the International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, article 2.2 (b) of ILO Convention No. 169, which refers to respect for the social
and cultural identity, customs and traditions and institutions of indigenous peoples, as well
as provisions of regional instruments such as those of the Organization on Security and
Cooperation in Europe, including its 1990 Copenhagen Conference on the Human Dimension
and its 1991 Geneva Meeting of Experts on National Minorities. Another recent instrument in
the same direction is the European Framework Convention for the Protection of National
Minorities.
28. Minority group identity requires not only tolerance but a positive attitude towards
cultural pluralism on the part of the State and the larger society. Not only acceptance but also
respect for the distinctive characteristics and contribution of minorities to the life of the national
society as a whole are required. Protection of their identity means not only that the State should
abstain from policies which have the purpose or effect of assimilating minorities into the
dominant culture, but also that it should protect them against activities by third parties which
have an assimilatory effect. The language and educational policies of the State concerned are
crucial in this regard. Denying minorities the possibility of learning their own language and of
receiving instruction in their own language, or excluding from their education the transmission
of knowledge about their own culture, history, tradition and language, would be a violation of
the obligation to protect their identity.
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29. Promotion of the identity of minorities requires special measures to facilitate the
maintenance, reproduction and further development of their culture. Cultures are not static;
minorities should be given the opportunity to develop their own culture in the context of an
ongoing process. That process should be an interaction between the persons belonging to the
minority themselves, between the minority and the State, and between the minority and the wider
national society. The measures required to achieve this purpose are set out in greater detail in
article 4 of the Declaration.
1.2 States shall adopt appropriate legislative and other measures to achieve those ends.
30. Article 1.2 requires “appropriate legislative and other measures”. Legislation is needed
and it must be complemented by other measures in order to ensure that article 1 can be
effectively implemented. Both process and content are important here. In terms of process, it
is essential that the State consult the minorities on what would constitute appropriate measures.
This follows also from article 2.3 of the Declaration. Different minorities may have different
needs that must be taken into account. Any differences in policy, however, must be based on
objective and reasonable grounds in order to avoid discrimination.
31. “Other measures” include, but are not limited to, judicial, administrative, promotional
and educational measures.
32. In general terms, the content of the measures which have to be adopted are set out in the
other provisions of the Declaration, particularly articles 2 and 4, which will be discussed below.
One set of measures stems directly from article 1.1: States must adopt laws protecting against
acts or incitement to acts which physically threaten the existence of groups or threaten their
identity. This obligation also follows from the International Convention on the Elimination of
All Forms of Racial Discrimination. Under article 4 of that Convention, States are required to
adopt legislative measures intended to protect groups against hatred and violence on racial or
ethnic grounds. A comparable obligation is contained in article 20 of the International Covenant
on Civil and Political Rights.
ARTICLE 2
2.1 Persons belonging to national or ethnic, religious and linguistic minorities
(hereinafter referred to as persons belonging to minorities) have the right to
enjoy their own culture, to profess and practise their own religion, and to use
their own language, in private and in public, freely and without interference
or any form of discrimination.
33. Article 27 of the International Covenant on Civil and Political Rights has almost the
same language, but the Declaration is more explicit in requiring positive action. Article 27
of the Covenant requires that persons belonging to minorities “shall not be denied the
right to …”, whereas article 2 of the Declaration uses the positive expression “have the right
to …”. Article 27 has been interpreted by the Human Rights Committee as requiring more
than mere passive non-interference.7 The Declaration on Minorities makes it clear that
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these rights often require action, including protective measures and encouragement of
conditions for the promotion of their identity (art. 1) and specified, active measures by the
State (art. 4).
34. The words “freely and without interference or any form of discrimination” at the end of
article 2.1 show that it is not enough for the State to abstain from interference or discrimination.
It must also ensure that individuals and organizations of the larger society do not interfere or
discriminate.
2.2 Persons belonging to minorities have the right to participate effectively in cultural,
religious, social, economic and public life.
35. The right to participate in all aspects of the life of the larger national society is essential,
both in order for persons belonging to minorities to promote their interests and values and to
create an integrated but pluralist society based on tolerance and dialogue. By their participation
in all forms of public life in their country, they are able both to shape their own destinies and to
contribute to political change in the larger society.
36. The words “public life” must be understood in the same broad sense as in article 1 of the
International Convention on the Elimination of All Forms of Racial Discrimination, though
much is covered already by the preceding words “cultural, religious, social and economic”.
Included in “public life” are, among other rights, rights relating to election and to being elected,
the holding of public office, and other political and administrative domains.
37. Participation can be ensured in many ways, including the use of minority associations
(see also article 2.4), membership in other associations, and through their free contacts both
inside the State and across borders (see article 2.5).
2.3 Persons belonging to minorities have the right to participate effectively in decisions
on the national, and where appropriate, regional level concerning the minority to
which they belong or the regions in which they live, in a manner not incompatible
with national legislation.
38. While article 2.2 deals generally with the right to participation in all aspects of the public
life of a society, article 2.3 deals specifically with the right of persons belonging to minorities to
effective participation “in decisions … concerning the minority to which they belong or the
regions in which they live”. As such decisions have a particular impact on persons belonging
to minorities, the emphasis on effective participation is here of particular importance.
Representatives of persons belonging to minorities should be involved beginning at the initial
stages of decision-making. Experience has shown that it is of little use to involve them only at
the final stages where there is very little room for compromise. Minorities should be involved at
the local, national and international levels in the formulation, adoption, implementation and
monitoring of standards and policies affecting them.
39. In 1991, the Conference on Security and Cooperation in Europe held a Meeting of
Experts on National Minorities in Geneva. The States there assembled noted approaches used
with positive results in some of the participating States. These included advisory and
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decision-making bodies - in particular with regard to education, culture and religion - on which
minorities were represented. Also mentioned were assemblies for national minority affairs, local
and autonomous administration, as well as autonomy on a territorial basis, including the
existence of consultative, legislative and executive bodies chosen through free and periodic
elections. Reference was further made to forms of self-administration by a national minority of
aspects concerning its identity in situations where autonomy on a territorial basis did not apply,
and decentralized or local forms of government.8
40. In early May 1999, a group of independent experts met in Lund, Sweden, to draw up a
set of recommendations on the effective participation of national minorities in public life. The
recommendations are built upon fundamental principles and rules of international law, such as
respect for human dignity, equal rights and non-discrimination, as they affect the rights of
national minorities to participate in public life and to enjoy other political rights.9 At its
fifth session, at the end of May 1999, the Working Group on Minorities adopted a set of
recommendations on the same topic.10
41. The following commentary draws extensively on these recommendations. The purpose is
not to set out only the minimum rights under article 2.3 of persons belonging to minorities, but
also to provide a list of good practices which may be of use to Governments and minorities in
finding appropriate solutions to issues confronting them.
42. Effective participation provides channels for consultation between and among minorities
and Governments. It can serve as a means of dispute resolution and sustain diversity as a
condition for the dynamic stability of a society. The number of persons belonging to minorities
is by definition too small for them to determine the outcome of decisions in majoritarian
democracy. They must as a minimum have the right to have their opinions heard and fully taken
into account before decisions which concern them are adopted. A wide range of constitutional
and political measures are used around the world to provide access for minorities to
decision-making.
43. The variety in the composition, needs and aspirations of different types of minority
groups requires identification and adoption of the most appropriate ways to create conditions
for effective participation in each case. The mechanisms chosen have to take into account
whether the persons belonging to the minority in question live dispersed or in compactly
settled groups, whether the minority is small or large, or an old or a new minority. Religious
minorities may also require different types or contexts of participation than ethnic or
national minorities. It should be noted, however, that in some cases religion and ethnicity
coincide.
44. Effective participation requires representation in legislative, administrative and advisory
bodies and more generally in public life. Persons belonging to minorities, like all others, are
entitled to assemble and to form their associations and thereby to aggregate their interests and
values to make the greatest possible impact on national and regional decision-making. They are
entitled not only to set up and make use of ethnic, cultural and religious associations and
societies (see commentary to article 2.4 below), but also to establish political parties, should they
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so wish. In a well-integrated society, however, many persons belonging to minorities often
prefer to be members of or vote for parties which are not organized on ethnic lines but are
sensitive to the concerns of the minorities.
45. Where minorities are concentrated territorially, single-member districts may provide
sufficient minority representation. Proportional representation systems, where a political party’s
share in the national vote is reflected in its share of the legislative seats, may assist in the
representation of minorities. Some forms of preference voting, where voters rank candidates in
order of choice, may also facilitate minority representation and promote inter-communal
cooperation.
46. Decentralization of powers based on the principle of subsidiarity, whether called
self-government or devolved power, and whether the arrangements are symmetrical or
asymmetrical, would increase the chances of minorities to participate in the exercise of
authority over matters affecting themselves and the entire society in which they live.
47. Public institutions should not, however, be based on ethnic or religious criteria.
Governments at local, regional and national levels should recognize the role of multiple
identities in contributing to open communities and in establishing useful distinctions between
public institutional structures and cultural identities.
48. States should also establish advisory or consultative bodies involving minorities within
appropriate institutional frameworks. Such bodies or round tables should be attributed political
weight and effectively consulted on issues affecting the minority population.
49. There should be equal access to public sector employment across the various ethnic,
linguistic and religious communities.
50. Citizenship remains an important condition for full and effective participation. Barriers
to the acquisition of citizenship for members of minorities should be reduced. Forms of
participation by resident non-citizens should also be developed, including local voting rights
after a certain period of residence and inclusion of elected non-citizen observers in municipal,
regional and national legislative and decision-making assemblies.
2.4 Persons belonging to minorities have the right to establish and maintain their own
associations.
51. Persons belonging to minorities are entitled, in the same way as other members of
society, to set up any association they may want,11 including educational or religious institutions,
but their right to association is not limited to concerns related to their cultural, linguistic or
religious identity. The right to associate of persons belonging to minorities extends both to
national and to international associations. Their right to form or join associations can be limited
only by law and the limitations can only be those which apply to associations of majorities:
limitations must be those necessary in a democratic society in the interests of national security or
public safety, public order, the protection of public health or morals, or the protection of rights
and freedoms.
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2.5 Persons belonging to minorities have the right to establish and maintain, without
any discrimination, free and peaceful contacts with other members of their group
and with persons belonging to other minorities, as well as contacts across frontiers
with citizens of other States to whom they are related by national or ethnic, religious
or linguistic ties.
52. The right to contacts has three facets, permitting intra-minority contacts, inter-minority
contacts, and transfrontier contacts. The right to intra-minority contacts is inherent in the right of
association. Inter-minority contacts make it possible for persons belonging to minorities to share
experience and information and to develop a common minority platform within the State. The
right to transfrontier contacts constitutes the major innovation of the Declaration, and serves in
part to overcome some of the negative consequences of the often unavoidable division of ethnic
groups by international frontiers. Such contacts must be “free”, but also “peaceful”. The latter
limitation has two aspects: contacts must not involve the use of violent means or preparation of
the use of such means; and the aims must be in conformity with the Declaration and generally
with the purposes and principles of the Charter of the United Nations, as set out also in
article 8.4 of the Declaration.
ARTICLE 3
3.1 Persons belonging to minorities may exercise their rights, including those set forth
in the present Declaration, individually as well as in community with other members
of their group, without any discrimination.
53. The main point here is that persons can exercise their rights both individually and
collectively, the most important aspect being the collective exercise of their rights, be it through
associations, cultural manifestations or educational institutions, or in any other way. That they
can exercise their rights in community with other members of the group applies not only to the
rights contained in the Declaration, but any human right. They shall not be subject to any
discrimination as a consequence of exercising their rights. This principle is important, because
Governments or persons belonging to majorities are often tolerant of persons of other national or
ethnic origins until such time as the latter assert their own identity, language and traditions. It is
often only when they assert their rights as persons belonging to a group that discrimination or
persecution starts. Article 3.1 makes it clear that they shall not be subjected to discrimination for
manifesting their group identity.
3.2 No disadvantage shall result for any person belonging to a minority as a
consequence of the exercise or non-exercise of the rights set forth in the present
Declaration.
54. While article 3.1 provides that persons belonging to minorities shall not be subjected to
discrimination for exercising, individually or collectively, their minority rights, article 3.2 makes
it clear that they shall also not be disadvantaged in any way for choosing not to belong to the
minority concerned. This provision is directed both towards the State and the agencies of the
minority group. The State cannot impose a particular ethnic identity on a given person (which is
what the apartheid regime in South Africa sought to do) by the use of negative sanctions against
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those who do not want to be part of that group; nor can persons belonging to minorities subject
to any disadvantage persons who on objective criteria may be held to form part of their group but
who subjectively do not want to belong to it. While, under conventional law, responsibility for
human rights compliance normally rests with the State, the Declaration in this respect implies
duties - at least morally - for persons representing minorities. Furthermore, States would be
under a duty to prohibit the taking of measures by minorities to impose their particular rules on
any person who did not want to be part of the minority concerned and therefore did not want to
exercise her or his rights.
ARTICLE 4
4.1 States shall take measures where required to ensure that persons belonging to
minorities may exercise fully and effectively their human rights and fundamental
freedoms without any discrimination and in full equality before the law.
55. Article 4 sets out the State measures that should be taken in order to achieve the purpose
of the Declaration and is its most important part, together with article 2, which sets out the rights.
While States are generally obliged under international law to ensure that all members of society
may exercise their human rights, States must give particular attention to the human rights
situation of persons belonging to minorities because of the special problems they confront. They
are often in a vulnerable position and have, in the past, often been subjected to discrimination.
In order to ensure equality in fact, it may under some circumstances be necessary for the State to
take transitional affirmative action, as provided for in article 2.2 of the International Convention
on the Elimination of All Forms of Racial Discrimination, which is applicable to ethnic as well
as racial minorities, provided these measures do not disproportionately affect the rights of others.
4.2 States shall take measures to create favourable conditions to enable persons
belonging to minorities to express their characteristics and to develop their culture,
language, religion, traditions and customs, except where specific practices are in
violation of national law and contrary to international standards.
56. This paragraph of article 4 calls for more than mere tolerance of the manifestation of
different cultures within a State. The creation of favourable conditions requires active measures
by the State. The nature of those measures depends on the situation of the minority concerned,
but should be guided by the purpose set forth in article 4.2, which is twofold. On the one hand,
individual members of the minority shall be enabled to express the traditional characteristics of
the group, which may include a right to use their traditional attire and to make their living in
their own cultural ways. On the other hand, they shall be enabled, in community with other
persons belonging to the group, to develop their culture, language and traditions. These
measures may require economic resources from the State. In the same way as the State provides
funding for the development of the culture and language of the majority, it shall provide
resources for similar activities of the minority.
57. The words “except where specific practices are in violation of national law and contrary
to international standards” require some comment. The meaning of the words “contrary to
international standards” is simple enough. In particular, it is intended that the practices must not
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be contrary to international human rights standards. This, however, should apply to practices of
both majorities and minorities. Cultural or religious practices which violate human rights law
should be outlawed for everyone, not only for minorities. The qualification contained in the final
words of article 4.2 is therefore only a specific application of a universal principle applicable to
everyone.
58. The first part of the phrase “in violation of national law” raises somewhat more difficult
questions. It is clear that the State is not free to adopt whatever prohibitions against minorities’
cultural practices that it wants. If that were the case, the Declaration, and article 4.2 in particular,
would be nearly empty of content. What is intended, however, is to respect the margin of
appreciation which any State must have regarding which practices it wants to prohibit, taking
into account the particular conditions prevailing in that country. As long as the prohibitions are
based on reasonable and objective grounds, they must be respected.
4.3 States should take appropriate measures so that, wherever possible, persons
belonging to minorities may have adequate opportunities to learn their mother
tongue or to have instruction in their mother tongue.
59. Language is among the most important carriers of group identity. In line with the general
requirement in article 1 that States shall encourage the promotion of the linguistic identity of the
minority concerned, measures are required for persons belonging to minorities to learn their
mother tongue (which is a minimum) or to have instruction in their mother tongue (which goes
some steps further).
60. The steps required in these regards depend on a number of variable factors. Of
significance will be the size of the group and the nature of its settlement, i.e. whether it lives
compactly together or is dispersed throughout the country. Also relevant will be whether it is a
long-established minority or a new minority composed of recent immigrants, whether or not
they have obtained citizenship.
61. In cases where the language of the minority is a territorial language traditionally spoken
and used by many in a region of the country, States should to the maximum of their available
resources ensure that linguistic identity can be preserved. Pre-school and primary school
education should ideally in such cases be in the child’s own language, i.e. the minority language
spoken at home. Since persons belonging to minorities, like those belonging to majorities, have
a duty to integrate into the wider national society, they need also to learn the official or State
language(s). The official language(s) should gradually be introduced at later stages. Where
there is a large linguistic minority within the country, the language of the minority is sometimes
also an official language of the State concerned.
62. At the European regional level, educational rights relating to minority languages
are developed at greater length in the European Charter for Regional or Minority Languages,
adopted by the Council of Europe. On this subject, a group of experts elaborated the
Hague Recommendations regarding the Education Rights of National Minorities (October 1996),
prepared under the auspices of the Foundation on Inter-Ethnic Relations.
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63. In regard to non-territorial languages spoken traditionally by a minority within a country,
but which are not associated with a particular region of that country, a uniform solution is more
difficult to find. The principles stated above should be applied where appropriate, but where the
persons belonging to the minority live dispersed, with only a few persons in each particular
place, their children need to learn the language of the surrounding environment more fully at an
earlier stage. Nevertheless, they should always also have an opportunity to learn their mother
tongue. In this regard, persons belonging to minorities have a right, like others, to establish their
private institutions, where the minority language is the main language of instruction. However,
the State is entitled to require that the State language also be taught. One question to be
addressed is whether the State is obliged to provide subsidies for such teaching. It would be a
requirement that the State does ensure the existence of and fund some institutions which can
ensure the teaching of that minority language. It follows from the general wording of article 4.3
that everyone should have adequate opportunities “wherever possible”. How far the obligation
to fund teaching of minority languages for persons belonging to dispersed groups goes would
therefore depend on the resources of the State.
64. Greater difficulties arise in regard to languages used solely by persons belonging to new
minorities. These are usually more dispersed than are the older and settled minorities, and the
number of languages spoken at home by migrants in a country of immigration can be quite large.
Furthermore, the children have a great need to learn to use the language of the country of
immigration as quickly and as effectively as possible. Should, however, some new minorities
settle compactly together in a region of the country and in large number, there is no reason to
treat them differently from old minorities. It should be noted, however, that the European
Charter for Regional or Minority Languages does not cover the languages of migrants. In any
case, persons belonging to new minorities are entitled to set up their own private educational
institutions allowing for the teaching of and instruction in their mother tongue. The State is
entitled to demand that the official language also be taught.
4.4 States should, where appropriate, take measures in the field of education, in order
to encourage knowledge of the history, traditions, language and culture of the
minorities existing within their territory. Persons belonging to minorities should
have adequate opportunities to gain knowledge of the society as a whole.
65. Experience has shown that in societies where different national, ethnic, religious or
linguistic groups coexist, the culture, history and traditions of minority groups have often been
neglected and the majorities are frequently ignorant of those traditions and cultures. Where there
has been conflict, the minority groups’ culture, history and traditions have often been subject to
distorted representations, resulting in low self-esteem within the groups and negative stereotypes
towards members of the group on the part of the wider community. Racial hatred, xenophobia
and intolerance sometimes take root.
66. To avoid such circumstances, there is a need for both multicultural and intercultural
education. Multicultural education involves educational policies and practices which meet the
separate educational needs of groups in society belonging to different cultural traditions, while
intercultural education involves educational policies and practices whereby persons belonging to
different cultures, whether in a majority or minority position, learn to interact constructively with
each other.
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67. Article 4.4 calls for intercultural education, by encouraging knowledge in the society as a
whole of the history, tradition and culture of the minorities living there. Cultures and languages
of minorities should be made accessible to the majorities as a means of encouraging interaction
and conflict prevention in pluri-ethnic societies. Such knowledge should be presented in a
positive way in order to encourage tolerance and respect. History textbooks are particularly
important in this regard. Bias in the presentation of the history and neglect of the contributions
of the minority are significant causes of ethnic tension. The United Nations Educational,
Scientific and Cultural Organization has concerned itself with the need to eliminate such
prejudices and misrepresentations in history textbooks, but much remains to be done.
68. This paragraph of article 4 also emphasizes the complementary duty to ensure that
persons belonging to minorities gain knowledge of the society as a whole. This provision should
counteract tendencies towards fundamentalist or closed religious or ethnic groups, which can be
as much affected by xenophobia and intolerance as the majorities.
69. The overall purpose of article 4.4 is to ensure egalitarian integration based on
non-discrimination and respect for each of the cultural, linguistic or religious groups which
together form the national society. The formation of more or less involuntary ghettos where the
different groups live in their own world without knowledge of, or tolerance for, persons
belonging to the other parts of the national society would be a violation of the purpose and spirit
of the Declaration.
70. A concern similar to that of article 4.4 is expressed in the International Convention on the
Elimination of All Forms of Racial Discrimination (art. 7) and in the Convention on the Rights
of the Child (art. 29).
4.5 States should consider appropriate measures so that persons belonging to minorities
may participate fully in the economic progress and development of their country.
71. There is often a risk that minorities, owing to their limited number compared to the
majority and for other reasons, may be subjected to exclusion, marginalization or neglect. In the
worst cases, the land and resources of minorities are taken over by the more powerful sectors of
society, with consequent displacement and marginalization of persons belonging to the
minorities. In other cases, persons belonging to minorities are neglected in the economic life of
the society. Article 4.5 requires steps being taken to ensure that this does not happen. It should
also prevent minorities being made into museum pieces by a misguided requirement that they
remain at their traditional level of development while the members of the surrounding society
experience significant improvements in their standard of living.
72. Article 4.5 calls for the integration of everyone in the overall economic development of
society as a whole, while ensuring that this integration takes place in ways which make it
possible for persons belonging to minorities to preserve their own identity. The balancing act
required by these two separate aims can be difficult, but is facilitated by the existence of active
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and free associations of minorities which are fully consulted in regard to all development
activities which affect or can affect their minority. Measures taken under article 2 to ensure
participation facilitate this process.
ARTICLE 5
5.1 National policies and programmes shall be planned and implemented with due
regard for the legitimate interests of persons belonging to minorities.
73. The participation of persons belonging to minorities in the economic progress and
development of their country (art. 4.5) can be achieved only if their interests are taken into
account in the planning and implementation of national policies and programmes. Their interests
go beyond purely economic aspects, however. Planning of educational policy, health policy,
public nutrition policy or housing and settlement policies are among the many aspects of social
life in which the interests of the minorities should be taken into account. While the authorities
are required to take only “legitimate” interests into account, this is no different from what is
required in relation to majorities: an accountable Government should not promote “illegitimate
interests” of any group, whether majority or minority. The interests of minorities should be
given “due regard”, which means that they should be given reasonable weight compared with
other legitimate interests that the Government has to take into consideration.
5.2 Programmes of cooperation and assistance among States should be planned and
implemented with due regard for the legitimate interests of persons belonging to
minorities.
74. This provision is of particular interest for development assistance, but relates also to
other economic cooperation among States, including trade and investment agreements. There
have been many instances in the past where such cooperation has neglected or directly violated
the interests of minorities. Development agencies, financial institutions and others involved in
international cooperation have a dual task: firstly, to ensure that legitimate interests of minorities
are not negatively affected by the measures implied in the cooperation envisaged; and secondly,
to ensure that persons belonging to minorities can benefit as much as members of majorities
from that cooperation. The notion of “due regard” means that proper weight should be given to
the interests of the minorities, all factors taken into account. An assessment should be made of
the likely impact of the cooperation on the affected minorities. This should be an integral part of
any feasibility study.
ARTICLE 6
States should cooperate on questions relating to persons belonging to minorities, inter alia
by exchanging information and experiences, in order to promote mutual understanding
and confidence.
75. Two sets of considerations underlie this provision. One is to share and exchange
knowledge about good practices, whereby States can learn from each other. The other is to
promote mutual understanding and trust. The latter is of particular importance.
E/CN.4/Sub.2/AC.5/2005/2
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76. Situations involving minorities often have international repercussions. Tensions between
States have arisen in the past and in some cases continue in the present over the treatment of
minorities, particularly in relations between the home State of a given minority and other States
where persons belonging to the same ethnic, religious or linguistic group reside. Such tensions
can affect the security of the countries involved and create a difficult political atmosphere, both
internally and internationally.
77. Article 6 encourages States to cooperate in order to find constructive solutions to
situations involving minorities. In accordance with the Charter of the United Nations, States
should observe the principle of non-intervention in their bilateral relations. They should abstain
from any use of force and also from any encouragement of the use of violence by parties to
group conflicts in other States, and should take all necessary measures to prevent incursion by
any armed group or mercenaries into other States in order to participate in group conflicts. On
the other hand, they should, in their bilateral relations, engage in constructive cooperation to
facilitate, on a reciprocal basis, the protection of equality and promotion of group identities.
One approach, much used in Central and Eastern Europe, is for States to conclude bilateral
treaties or other arrangements concerning good neighbourly relations based on the principles
of the Charter and on international human rights law, combining commitments of strict
non-intervention with provisions for cooperation in promoting conditions for the maintenance of
group identities and transborder contacts by persons belonging to minorities. Provisions on
minorities contained in such treaties and other bilateral arrangements should be based on
universal and regional instruments relating to equality, non-discrimination and minority rights.
Such treaties should include provisions for the settlement of disputes regarding their
implementation.
ARTICLE 7
States should cooperate in order to promote respect for the rights set forth in the present
Declaration.
78. The cooperation called for in article 7 can be undertaken at the regional and subregional
levels, as well as at the level of the United Nations. At the European level, a number of
intergovernmental mechanisms and procedures have been established whose purpose, at least
partially, is to promote in a peaceful way the rights of minorities and achieve constructive group
accommodation. These mechanisms include the Council of the Baltic Sea States and its
Commissioner on Democratic Institutions and Human Rights, including the Rights of Persons
belonging to Minorities; the OSCE, with its Office of the High Commissioner on National
Minorities; and the Council of Europe, which has adopted several instruments of relevance for
minorities. In the United Nations, cooperation can take place through the Working Group on
Minorities.
79. The treaty bodies, in particular the Committee on the Elimination of All Forms of Racial
Discrimination, the Human Rights Committee and the Committee on the Rights of the Child, can
also play important roles in this regard. (See also below under article 9.)
E/CN.4/Sub.2/AC.5/2005/2
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ARTICLE 8
8.1 Nothing in the present Declaration shall prevent the fulfilment of international
obligations of States in relation to persons belonging to minorities. In particular,
States shall fulfil in good faith the obligations and commitments they have assumed
under international treaties and agreements to which they are parties.
80. The Declaration does not replace or modify existing international obligations in favour of
persons belonging to minorities. It is an addition to, not a substitute for, commitments already
made.
8.2 The exercise of the rights set forth in the present Declaration shall not prejudice the
enjoyment by all persons of universally recognized human rights and fundamental
freedoms.
81. The rights of specific categories of persons are supplementary to the universally
recognized rights of every person. The Declaration is intended to strengthen the implementation
of human rights in regard to persons belonging to minorities, but not to weaken for anyone the
enjoyment of universal human rights. Consequently, the exercise of rights under the Declaration
must not negatively affect the enjoyment of human rights for persons who do not belong to a
minority, nor for persons who belong to the minority. In their efforts to preserve the collective
identity of the minority, agencies of the minority concerned cannot on the basis of the
Declaration adopt measures which interfere with the individual human rights of any person
belonging to that minority.
8.3 Measures taken by States to ensure the effective enjoyment of the rights set forth in
the present Declaration shall not prima facie be considered contrary to the principle
of equality contained in the Universal Declaration of Human Rights.
82. In accordance with article 1 of the Universal Declaration of Human Rights, all human
beings are born free and equal in dignity and rights. Article 2 of the Universal Declaration
provides that everyone is entitled to all the rights set out in that declaration without distinction of
any kind such as race, language, religion or national origin. The question has been raised as to
whether special measures in favour of national or ethnic, religious or linguistic minorities
constitute a distinction in the enjoyment of human rights. The same question could be put with
even greater emphasis with respect to the definition of racial discrimination contained in
article 1.1 of the International Convention on the Elimination of All Forms of Racial
Discrimination, which reads: “The term ‘racial discrimination’ shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin
which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.” The question would then be whether special
measures under the Declaration on Minorities, which would indeed be taken on the basis of
“national or ethnic origin”, would constitute a preference and therefore constitute impermissible
discrimination.
E/CN.4/Sub.2/AC.5/2005/2
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83. Article 8.3 answers this question by pointing out that such measures shall not
prima facie be considered to be contrary to the principle of equality. Under normal
circumstances, measures to ensure effective participation, or to ensure that minorities benefit
from economic progress in society or have the possibility to learn their own language will
not be a privilege vis-à-vis other members of the society. It is essential, however, that such
measures do not go beyond what is reasonable under the circumstances and are proportional to
the aim sought to be realized.
8.4 Nothing in the present Declaration may be construed as permitting any activity
contrary to the purposes and principles of the United Nations, including sovereign
equality, territorial integrity and political independence of States.
84. As stated in the preamble, the Declaration is based on the principles of the Charter of the
United Nations. Note should also be taken of the conviction expressed in the preamble that the
promotion and protection of the rights of minorities contribute to the political and social stability
of States. Article 8.4 serves as a reminder that nothing in the Declaration can be construed as
permitting any activity which is contrary to the purposes of the Charter. Particular mention is
made of activities that are contrary to the sovereign equality, territorial integrity and political
independence of States. As pointed out above, the rights of persons belonging to minorities are
different from the rights of peoples to self-determination, and minority rights cannot serve as a
basis for claims of secession or dismemberment of a State.
ARTICLE 9
The specialized agencies and other organizations of the United Nations system shall
contribute to the full realization of the rights and principles set forth in the present
Declaration, within their respective fields of competence.
85. Wherever possible, the agencies and bodies of the United Nations system shall contribute
to the full realization of the Declaration. Projects of technical cooperation and assistance shall
take the standards contained in the Declaration fully into account. The Working Group on
Minorities established by the United Nations in July 1995 serves as a stimulus for such
cooperation. This article should be seen in the light of the Charter of the United Nations
(Arts. 55 and 56), according to which the Organization shall promote respect and observance for
human rights and fundamental freedoms. Promotion of the rights of persons belonging to
minorities form part of that obligation. United Nations organs and specialized agencies should
give special consideration to requests for technical cooperation and assistance that are designed
to achieve the aims of this Declaration.
Notes
1 E/CN.4/Sub.2/AC.5/1998/WP.1.
2 E/CN.4/Sub.2/AC.5/1999/WP.1.
3 E/CN.4/Sub.2/AC.5/2000/WP.1.
E/CN.4/Sub.2/AC.5/2005/2
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4 The Framework Convention for the Protection of National Minorities, adopted by the Council
of Europe in 1994.
5 Most important are the Helsinki Final Act of 1975 and the Document of the Copenhagen
Meeting of the Conference on the Human Dimension of the Conference on Security and
Cooperation in Europe, 1990, section IV, paragraphs 30 to 40.
6 Reference can also be made here to general comment No. 23 (1994), adopted by the Human
Rights Committee at its fiftieth session. It deals with article 27 of the International Covenant on
Civil and Political Rights (the minority rights provision), and points out, in paragraph 3.1, the
distinction between the right of peoples to self-determination and the rights of persons belonging
to minorities, which are protected under article 27.
7 Human Rights Committee, general comment No. 23, adopted at the fiftieth session, 1994,
paragraphs 6.1 and 6.2.
8 Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991,
Part IV. See also the second progress report of Special Rapporteur A. Eide on possible ways and
means of facilitating the peaceful and constructive solution of problems involving minorities
(E/CN.4/Sub.2/1992/37), paragraphs 122-155.
9 The Lund recommendations can be found on the web site of the OSCE High Commissioner on
National Minorities, http://www.osce.org/hcnm/documents/lund.htm.
10 Report of the Working Group on Minorities on its fifth session (E/CN.4/Sub.2/1999/21),
paragraphs 81-88.
11 Universal Declaration of Human Rights, article 20; International Covenant on Civil and
Political Rights, article 22.
-----
Annex 781
Human Rights Bodies - Complaint Procedures, OHCHR (6 June 2018) accessed at
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx#interstate
Annex 782
U.N. General Assembly, 20th Session 1406th Plenary Meeting, Official Records, U.N. Doc.
A_PB.1406 (21 December 1965)
Annex 783
Intentionally Omitted
Annex 784
Written Statement Submitted by the Society for Threatened Peoples, U.N. Doc.
A/HRC/28/NGO/97 (23 February 2015)
GE.15-03368 (E)
Human Rights Council
Twenty-eighth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Written statement* submitted by the Society for Threatened
Peoples, a non-governmental organization in special
consultative status
The Secretary-General has received the following written statement which is circulated in
accordance with Economic and Social Council resolution 1996/31.
[16 February 2015]
* This written statement is issued, unedited, in the language(s) received from the submitting nongovernmental
organization(s).
United Nations A/HRC/28/NGO/97
General Assembly Distr.: General
23 February 2015
English only
A/HRC/28/NGO/97
2
Rights of Minorities in annexed Crimea deteriorating
Nearly one year passed since the Russian Federation annexed Crimea. Since then the protection of the rights of the
minorities there deteriorated. The authorities have particularly targeted Crimean Tatars, a Muslim ethnic minority in the
Crimea peninsula who openly opposed the Russian annexation.
Crimean Tatars make up 15% of the population on the peninsula. The authorities have barred Mustafa Dzhemilev, longtime
leader of the Crimean Tatars and Refat Chubarov, president of the self governing body Mejlis from entering their
homeland. The authorities have also accused Mejlis of “extremism”, harassed and persecuted its members and sealed
its office in Simferopol.
On January 29th the Mejlis deputy head, Achtem Chyygoz, was detained on charges of ‘organizing and taking part in
mass disturbances’. Not only is there video footage demonstrating that Chyygoz tried to calm protesters, but the
demonstration in question took place on Feb 26, 2014, the day before Russian soldiers seized control and weeks before
Russia annexed the peninsula. Chyygoz is accused in connection with two persons dying during the protest. At the time
one of the victims was reported to have died of a heart attack. Even if it were proven that both deaths were a direct
result of the demonstration, the charges seem unrelated to the person arrested. Moreover the Russian criminal code was
not in place at the time of the event, which is why, if there are any offences they should fall under Ukrainian
prosecution.
Human Rights organizations and the Mejlis of the Crimean Tatar people have made clear that the arrest of Chyygoz is a
further severe harassment of the minority. His house was searched on January 30th. On February 6th the Crimean
Supreme Court upheld the detention of Chyygoz. After the court hearing his relatives for two days were not informed
about his place of detention. Only on February 9th they were told that he is held in a single cell in the SIZO –
investigation detention center. On February 7th, Eskender Kantemirov, another Crimean Tatar activist and participant of
the protests on February 26th 2014, was arrested on the same charges.
Sinaver Kadyrov, a long time Crimean Tatar activist and founder of the “Committee for the Protection of Rights of
Crimean Tatars” was deported from Crimea. On January 23rd he was on his way to Kherson, in southern Ukraine, in
order to fly to Turkey for medical treatment. Kadyrov was accompanied by Eskender Bariev and Ambedijt
Suleymanov, both prominent Crimean Tatar activists. They were stopped at the Armyansk check point. The guards took
their passports and told them to wait. While Bariev and Suleymanov were allowed to wait in their car, Kadyrov was
held in a little room and later told that he had violated Russian law. He was taken to Armyansk for a court hearing. The
judge found that Kadyrov had overstayed Russia’s 90-day limit for foreigners who are allowed to enter Russia under
visa-free agreements and ordered him to be expelled from Crimea. The background of this court decision is the Russian
policy of “passportization” granting Russian citizenship to Crimea residents. After April 18th 2014 all Ukrainian
passport holders who resided in Crimea were deemed Russian citizens. Those who wanted to hold on to their Ukrainian
passports were effectively made foreigners. Kadyrov had taken no action on his citizenship. But still he was treated as if
a foreigner. In other cases, for instance that of prominent Ukrainian film maker, Oleh Sentsov, Russian authorities
claimed that he was Russian, detained him in Crimea and sent him to a prison in Moscow. This shows that the law on
citizenship is applied arbitrarily to suit the interests of the Russian authorities.
The editor of the Mejlis newspaper Avdet received “anti-extremism” warnings and the paper was threatened with
closure. In the end of January 2015, armed “OMON” special forces raided the only Crimean Tatar TV channel ATR in
Simferopol. The channel staff was detained and later released, equipment confiscated, the archive of the channel taken
away. Crimean Tatars, who gathered in front of the building in support of ATR, were threatened with legal proceedings
because their protest was not approved by the authorities. The OSCE Representative on Freedom of the media slammed
the incident as a “clear intrusion of media independence”.
A/HRC/28/NGO/97
3
The Crimean Tatar minority has been targeted systematically. Crimean Tatar politicians and activists as well as
religious dignitaries were especially in danger of being harassed: their homes were searched, mosques and Muslim
schools raided, schools and libraries searched, people disappeared, others were arrested. Also persons opposing the
annexation were discriminated against. The population feels isolated as there are no international organizations present
on the peninsula. Also human rights organizations are only frequently on Crimea to monitor and document human
rights violations.
That is why Society for Threatened Peoples calls on the Human Rights Council to call on:
The government of the Russian Federation to:
- Release Achtem Chyygoz
- Reestablish the right to enter Crimea for Mustafa Dzhemilew, Refat Chubarov and Sinaver Kadyrov
- Stop the discrimination of the indigenous Crimean Tatar population on the peninsula
UN bodies to:
- Establish international and independent human rights monitoring mechanisms on Crimea
- Monitor the trial of Achtem Chyygoz
- Activate UN Special Procedures, especially the UN Special rapporteur on indigenous issues as well as the
UN Special Rapporteur on extrajudicial, summary or arbitrary executions to visit Crimea
Annex 785
Permanent Delegation of the Russian Federation to UNESCO, Information on the Situation in
the Republic of Crimea (the Russian Federation) within the Scope of UNESCO Competence as of
April 8, 2015 (14 April 2015)
3/1/2016 Permanent Delegation of the Russian Federation to UNESCO
http://russianunesco.ru/eng/article/2070 1/8
Russian MFA in social networks Contacts Sitemap Search English
14 April 2015
Information on the situation in the Republic of Crimea (the Russian
Federation) within the scope of UNESCO competence. As of April 8, 2015
The Russian Federation calls attention that the decisions on the Crimea of the 194th and the 195th sessions of the UNESCO
Executive Council are legally null and void due to the fact that they exceed the scope of Organization's competence. Article I,
para 3 of the Constitution of UNESCO firmly establishes that the Organization is prohibited from intervening in matters which are
essentially within the domestic jurisdiction of States Members. Resolutions on the Crimea adopted at the sessions of the
Executive Council contradict not only the Constitution of UNESCO but also the fundamental right of peoples to
self‑determination, established in the UN Charter and international covenants on human rights.
"Information on the current events in the Autonomous Republic of Crimea" circulated by the Ukrainian delegation distorts the
real state of affairs in the peninsula in the spheres of education, security of cultural heritage sites, freedom of expression, rights of
national minorities and other areas of competence of UNESCO. In this regard Russia brings to the notice of the Director-General
of UNESCO and the States Members of the 196th session of the Executive Council the following information on the real situation
in the Republic of Crimea (the Russian Federation) in the above mentioned spheres that was provided by the relevant Russian
ministries and agencies.
I. The Right to Education
The Russian Federation in accordance with Article 28, para 1, of the 1989 Convention on the Rights of the Child and Article 3,
para (e), of the UNESCO 1960 Convention against Discrimination in Education recognizes the right of any child to education
and takes all necessary measures to ensure it.
As it is established by Article 2, para 4, of the Federal Constitutional Law No. 6-FKZ and Article 10 of the Constitution of the
Republic of Crimea of April 11, 2014, the state languages of the Republic of Crimea are Russian, Ukrainian and Crimean Tatar.
Besides, Article 1, para 2 of the Constitution of the Republic of Crimea guarantees everyone the right to use his or her native
language, as well as the right to a free choice of the language of communication, upbringing, education and creative work.
Education in the Republic of Crimea is provided in state languages of the Republic in accordance with the procedure established
by Federal Laws No. 273‑FZ of December 29, 2012, "On Education in the Russian Federation" and No. 84-FZ of May 5, 2014,
"On the Peculiarities of the Legal Regulation of the Relations in Education in Connection with the Admission of the Republic of
Crimea into the Russian Federation and the Establishment of New Constituent Entities within the Russian Federation – the
Republic of Crimea and the Federal City of Sevastopol and on the Introduction of Changes to the Federal Law “On Education in
the Russian Federation”".
Permanent Delegation Official Information Russia - UNESCO UNESCO resources External links
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Article 36 of the Constitution of Crimea guarantees general access to and free pre-school, secondary and high vocational
education in state or municipal educational establishments and at enterprises. Everyone shall have the right to receive on a
competitive basis a free higher education in a state or municipal educational establishment and at an enterprise.
Decree No. 651 of December 30, 2014 of the Council of Ministers of the Republic of Crimea established the State Program for the
Development of Education and Sciences in the Republic of Crimea for 2015–2017 according to which comprehensive measures
are taken to preserve and develop the network of classes and schools teaching in Ukrainian and Crimean Tatar, covering the
issues of material and technical support of such schools.
According to the Ministry of Education, Science and Youth of the Republic of Crimea, general educational establishments of the
Republic provide education to 184,869 children, including 177,984 children (96,2%) with Russian as the language of learning,
4,895 children (2,7%) with Crimean Tatar as the language of learning and 1,990 children (1,1%) with Ukrainian as the language
of learning. There are 15 general educational establishments with Crimean Tatar as the language of learning (in Yevpatoria and
Sudak, Bakhchysarai, Belogorsk, Dzhankoy, Kirovski, Krasnogvardeiski Pervomaiski, Simferopolski and Sovetski districts).
Numbers of students taught in the three official languages of the Republic of Crimea as well as students learning these languages
as subjects in pre-school and general educational establishments in 2014/2015 and similar numbers in 2013/2014 school years
are given below. Comparative analysis of the data clearly demonstrates the absurdity and political bias of accusations against
Russian authorities of "flagrant violations of children's right to receive education in their native language".
In the 2014/2015 school year in the Republic of Crimea:
а) pre-school educational establishments provided education to:
– 63,158 children in Russian (57,508 in 2013/2014);
– 1,740 children in Ukrainian (1,760 in 2013/2014);
– 837 children in Crimean Tatar (830 in 2013/2014)
б) general educational establishments provided education to:
– 177,984 children in Russian (158,174 in 2013/2014);
– 1,990 children in Ukrainian (12,694 in 2013/2014);
– 4,895 children in Crimean Tatar (5,551 in 2013/2014);
Apart from that, general educational establishments provide the study of the following languages:
– Russian (in organizations and classes with non-Russian as the language of learning) – 6,885 students in the 2014/2015
school year (16,839 in 2013/2014);
– Ukrainian (in organizations and classes with Russian as the language of learning) – 39,150 students in the 2014/2015
school year (162,764 in 2013/2014);
– Crimean Tatar (in organizations and classes with Russian as the language of learning) – 13,040 students in the 2014/2015
school year (12,396 in 2013/2014).
Number of teachers in general educational establishments, teaching the following languages:
– Russian – 1,534 people in the 2014/2015 school year (1,354 in 2013/2014);
– Ukrainian – 1,573 people in the 2014/2015 school year (1,566 in 2013/2014);
– Crimean Tatar – 347 people (352 in 2013/2014).
Apart from that, Regulation No.436-р of May 27, 2014, of the Council of Ministers of the Republic of Crimea approved the
Implementation plan on the Decree of the President of the Russian Federation No. 268 of April 21, 2014, "On Measures to
rehabilitate Armenian, Bulgarian, Greek, Crimean Tatar and German populations and State support for their revival and
development". The plan includes modernization and enhancement of material and technical as well as educational and
methodological base of the general educational establishments with Armenian, Bulgarian, New Greek, Crimean Tatar and German
as the learning languages.
All students of general educational establishments in the Republic of Crimea are provided to the full extent with textbooks
envisaged by the educational standards of the Russian Federation. Financial support to acquire textbooks included 899,077.6
thousand rubles allocated from the Federal budget of the Russian Federation to the budget of the Republic of Crimea on July 11,
2014.
Educational materials published in Ukraine that are not used in the academic process are kept in the libraries of the educational
institutions. The Ministry of Education, Science and Youth of the Republic of Crimea or the educational administrations have
not taken decisions to dispose of educational materials in the Ukrainian language.
In the City of Sevastopol educational materials based on the Ukrainian educational programmes have been collected and
systematized and, then, sent to Donetsk and Lugansk to be used in academic process.
Textbooks of the Crimean Tatar and Ukrainian languages are currently being developed in accordance with the Federal State
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Education Standards of the Russian Federation. Until the textbooks are finished, these languages are being taught with the help
of the textbooks established by the Ministry of Education and Science of Ukraine basing on Ukrainian educational programmes.
Prosecution authorities of the Republic of Crimea and the City of Sevastopol have not found any violations of the rights of
children for education in the official language of the Russian Federation or the official languages of the Republic of Crimea.
There have also been no complaints from the citizens concerning violations of the rights of minors.
There have been registered no cases of non-granting of education certificates. All school-leavers and graduates of higher
education institutions of the Republic of Crimea and the City of Sevastopol of the 2013/2014 school years have been given
school certificates and diplomas. Ukrainian standards for issuing school certificates have been used as well. In March, 2014, the
Ministry of Education, Science and Youth of the Republic of Crimea ordered and paid the Ministry of Education and Science of
Ukraine for copies of such certificates, and in June, 2014, they were given to school-leavers upon parents' demand.
In compliance with Article 6, Part 1, of the Federal Law No. 84-FZ, the Russian Federation recognizes education, academic levels
and academic qualifications, that had been awarded in Ukraine and prescribed in the education certificates and in academic
qualification certificates approved by the Cabinet of Ministers of Ukraine and that belong to the persons who were recognized as
citizens of the Russian Federation according to Article 4, Part 1, of the Federal Constitutional Law No. 6-FKZ and the persons
who were permanently residing in the Crimea and Sevastopol on the day of their admission to the Russian Federation.
Pursuant to Article 12 of the Federal Constitutional Law No.6-FKZ of March 21, 2014, the documents that confirm, inter alia,
marital status, education, property and other rights, issued by state or other official bodies of Ukraine, the Autonomous Republic
of Crimea and Sevastopol, remain valid without any time limitation or the need of confirmation by the state of the Russian
Federation, the Republic of Crimea, or the Federal City of Sevastopol.
On July 16, 2014, 1,089,801.5 thousand rubles were transferred to the accounts of the Republic of Crimea as part of
modernization of the regional education system.
Upgrading courses for teachers, managers and other employees in the education sector of the Republic of Crimea were also
funded in the amount of 458,254.7 thousand rubles.
There are 14 universities and branches in the Crimea, including the Crimean Industrial Pedagogical University, branches of the
Russian Academy of Justice in Moscow, Academy of Law and the Academy of the Russian Interior Ministry. Until 2014, the
language of learning was mainly Russian. Exceptions were only certain philological disciplines (Ukrainian language and
literature) – teaching was conducted in the Ukrainian language even after the referendum of 2014.
In order to prepare employees for comprehensive socio-economic development of the Crimean Federal District and the Federal
City of Sevastopol, the Vernadsky Crimean Federal University, a Federal State Autonomous Educational Institution of Higher
Professional Education, was founded in Simferopol by the Russian Federation Government Decree No. 1465‑r of August 4, 2014,
as well as the Sevastopol State University, Federal State Autonomous Educational Institution of Higher Professional Education,
was founded in Sevastopol by the Russian Federation Government Decree No. 1988‑r of October 8, 2014.
II. Cultural Heritage
According to the government report submitted to the State statistical authorities of Ukraine, the Autonomous Republic of Crimea
as of January 1, 2014, had 24 museums of which 12 were under the supervision of republican institutions with the remaining 12
under the supervision of municipal institutions. The total number of exhibits and valuables in museum collections is
1,270,847 items.
According to the data from to the State statistical authorities of Russia in the territory of the Autonomous Republic of Crimea
there were, as of January 1, 2015, 27 museums of which 15 were of republican significance while the remaining 12 are of
municipal significance. The total number of exhibits and artifacts in museum collections is 1,291,937.
There are 6 museums in the city of Sevastopol counting 523,925 exhibits.
According to the State Committee for Safeguarding of Cultural Heritage of the Republic of Crimea there are 11,000 objects of
cultural heritage in the territory of the region. 5,846 of them are monuments of archeology (including primitive sites, Tauri burial
grounds and those of the Migration Period, Scythian settlements and mounds, and ancient cities), almost 4,360 are historical
monuments (most of them relate to the events of World War II) and there are almost 1,000 architectural monuments and some 230
monuments. There are 2,063 objects of cultural heritage in the city of Sevastopol registered and protected by State.
While under the Ukrainian jurisdiction, the objects of cultural-historical heritage in the territory of Crimea were falling into
disrepair due to systematic underfunding. The authorities which maintained and supervised these objects were not taking
necessary steps to restore them or to mitigate the destructive effects of natural phenomena. Some objects of cultural heritage were
illegally privatized and also partly transferred to the Presidential Affairs Department of Ukraine or to individuals who were
closely associated with the Ukrainian senior government officials. Palaces, park complexes and other monuments were
maintained only to the extent required for their commercial use.
The cultural-historical monuments in the territory of the Republic of Crimea and in the city of Sevastopol are protected by
Russian legislation notably by the Federal Law No. 9-FZ of February 12, 2015, "On basic principles of legal regulation of
relations in the field of culture and tourism in connection with the accession of the Republic of Crimea to the Russian Federation
and establishment of new constituent entities within the Russian Federation – the Republic of Crimea and the city of federal
importance Sevastopol". Under this law, the classification of objects of cultural heritage of the Republic of Crimea and the city of
Sevastopol as objects of federal significance or objects of local (municipal) significance and their entry in the National Register
are to be conducted within a year from the day on which this law enters into force.
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The accusations against Russia of pillage of the Crimean cultural valuables are absurd. According to the Office of the Prosecutor
General and other competent authorities of the Russian Federation the facts of transportation of museum exhibits or cultural
valuables from Crimea to other regions of Russia since March 18, 2014, have not been registered. On the contrary, over the past
year the number of museum exhibits and valuables in Crimea has increased by more than 20,000 items.
On September 1, 2014, the federal government funded institution of the Republic of Crimea East Crimean Historical and Cultural
Museum‑Preserve, successor of the Kerch National Preserve, signed an agreement on cooperation with the federal government
cultural institution the State Hermitage Museum. However, no artifacts or cultural items of the Crimean museum have been
transferred to the State Hermitage Museum. The agreement on scientific and cultural cooperation – signed by the State Hermitage
Museum and the federal government funded cultural institution the Tauric Chersonese National Preserve on July 4, 2014 – does
not provide for the transfer of any cultural items either.
In addition, contrary to the widespread claims, no damage has been caused to the Sudak Fortress Monument Site over the past
year. No cases of destroyed artifacts or illegal alienation of museum property have been registered. On June 24, 2014, by the
regulation of the Council of Ministers of Crimea, the management of the Museum Complex was transferred under the jurisdiction
of the federal government institution of the Republic of Crimea the Sudak Fortress Museum Preserve which is under the
supervision of the Ministry of Culture of the Republic of Crimea.
The world heritage site the Ancient City of Tauric Chersonese and its Chora is under the supervision of the Russian Federation
and managed by the federal government cultural institution the Tauric Chersonese National Preserve established by the Decree of
the Government of Sevastopol No. 569 of December 11, 2014. In January 2015, the Preserve was incorporated in the United
Museum of History of Sevastopol, but by the Decree of the Government of Sevastopol No. 142 of March 6, 2015, it was removed
from the museum association together with the land allocation system of the Chersonese Chora on the Heraclean Peninsula, as
well as the Calamita and Chembalo fortresses – thus regaining its status of a separate legal entity.
On March 18, 2014, the main collection of the Tauric Chersonese National Preserve was supplemented by 731 museum items.
Today, the total number of the artifacts reaches 217,310 items.
In August 2014, the President of the Russian Federation instructed the government of the country – together with the presidential
administration and executive authorities of Sevastopol – to ensure protection of the world heritage site the Ancient City of Tauric
Chersonese and its Chora" in accordance with the requirements of the Convention concerning the Protection of the World
Cultural and Natural Heritage, and to introduce proposals to add the site to the State Code of Particularly Valuable Objects of
Cultural Heritage of the Peoples of the Russian Federation.
Currently, the Ministry of Culture of the Russian Federation, together with the authorities of the Tauric Chersonese National
Preserve, is preparing necessary documentation to complete the process of granting the heritage site the Ancient City of Tauric
Chersonese and its Chora the status of a federal site of interest. Upon gaining the status, Chersonese will enjoy greater protection,
which will fully comply with the conservation measures taken in relation to other UNESCO World Heritage sites of the Russian
Federation.
For the campaign of accusations against Russia a large-scale fraud in the territory of the Tauric Chersonese National Preserve in
the area of the Sandy cape is characteristic. Those who carry out that campaign present as an evidence of predatory policy of
Russia a criminal case initiated by the Department of the Investigatory Committee of the Russian Federation for the city of
Sevastopol on December 19, 2014, in connection with unlawful occupation of a 1.5-hectar plot of land located there, but they
even did not try to check the dates when that unlawful act had been committed.
Meanwhile, the investigators determined that in 2009 the plot had been unlawfully passed to the cottage building cooperative
“Zolotoye Runo” in collusion with officials from various administrative bodies of the city of Sevastopol responsible for the
cultural heritage protection.
Other cases of unlawful occupation of lands in the conservation zone of the Tauric Chersonese National Preserve were also
identified to confirm only that unlawful acts had been committed in Sevastopol when it belonged to Ukraine. Criminal cases were
initiated in connection with all those events with a view to returning unlawfully occupied lands to the Tauric Chersonese
National Preserve.
Grave violations were identified with respect to archeological excavations carried out in the Crimean Peninsula when it belonged
to Ukraine. Unlawful excavations were regularly carried out in the territories of about 25 archeological monuments of Crimea. As
a result of actions by unlicensed archeologists, some historic sites of the peninsula were fully demolished, e.g. the Funa
settlement in the territory of Big Alushta and the Kitey necropolis in the Leninsky district.
With a view to preserving archeological heritage sites in the Republic of Crimea and the city of Sevastopol, according to the
established procedure the Ministry of Culture of the Russian Federation issues permits (“laissez passer”) to identify and explore
archeological heritage sites. 68 such permits were issued in 2014, and 8 – in 2015.
Field surveys are carried out by both archeologists from Crimea and those from other Russian regions who are highly qualified
professionals having been engaged in the exploration and popularization of the archeological sites of the peninsula for many
years.
As in the previous years, archeological finds are being passed to museums in the Republic of Crimea and the city of Sevastopol.
To the contrary, the demands of the Ukrainian side to pass to the National Museum of the History of Ukraine in Kiev exhibits
from four Crimean museums which had participated in the exhibition “Crimea. The Golden Island in the Black Sea” organized by
the Allard Pierson Museum in Amsterdam lead to the disintegration of museum collections in Crimea.
The Federal Target Program “Culture of Russia (2012 - 2018)” provides for monitoring of the archeological heritage sites in the
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territory of the Kerch Peninsula. As instructed by the President of the Russian Federation, a plan of actions was developed to
preserve such sites in the process of designing, building and reconstructing facilities of transport infrastructure, communications
and mass media, energy and water supply.
With a view to preserving the World Heritage Site “Ancient city of Chersones and its Chora”, archeological heritage sites located
in the territory of the Tauric Chersonese National Preserve will be subject to monitoring. The Russian side is also ready to receive
a mission of the World Heritage Centre and the International Council on Monuments and Sites (ICOMOS) in Chersones and
create all necessary conditions for its work.
III. Freedom of Expression
In the Russian Federation, the principle of the freedom of mass communications is enshrined in the Russian Constitution
(paragraph 4 of Article 29), Law of the Russian Federation “On mass media” of December 27, 1991 (with amendments and
additions) and other information-related legislative acts.
Legal mechanisms existing in Russia govern in a balanced manner both the freedom of mass media, on the one hand, and
obligations and responsibilities of media community with respect to the citizens and the state, on the other hand. In particular, the
Law “On mass media” contains requirements concerning the registration of actors in the media space, rules of professional and
ethic conduct, the limits of state and public control which makes it possible to exercise one of the main democratic principles
reading that the implementation of rights and freedoms by one actor of public relations should not inflict harm or damage on the
rights and legitimate interests of other actors.
At the same time, the materials distributed by the Ukrainian side present a distorted picture of the real situation in the information
domain in the Russian Federation, in particular in Crimea.
When an independent Republic of Crimea was admitted to the Russian Federation, Russian standards of accreditation of local
and foreign journalists were introduced there. We see no discrimination of Ukrainian media representatives in contrast to the
actions by the Kiev authorities with respect to Russian mass media. In Crimea, Ukrainian journalists are treated as other foreign
journalists. The Prosecutor’s Office of the Republic of Crimea has not received any complaints related to exerting pressure on
mass media.
In accordance with Article 6 of the Federal Constitutional Law of the Russian Federation of March 21, 2014, No. 6-FKZ “On
admitting to the Russian Federation the Republic of Crimea and establishing within the Russian Federation the new constituent
entities of the Republic of Crimea and the city of federal importance Sevastopol”, a transitional period has been declared to settle
the issues of integration of new constituent entities in the economic, financial, credit and legal systems of the Russian Federation.
In this context, the process of re-issuance of licenses for Crimean mass media and their re-registration was launched in May 2014.
At the same time, up to April 1, 2015, a simplified procedure of registration was in effect, including financial benefits and
established in accordance with Federal Law of December 1, 2014, No. 402 –FZ “On certain aspects of legal regulation of relations
in the field of mass media in connection with admitting the Republic of Crimea to the Russian Federation and establishing within
the Russian Federation new constituent entities of the Republic of Crimea and the city of federal importance Sevastopol”.
As of April 2, 2015, in the Republic of Crimea and in the city of Sevastopol 232 mass media were registered, including 19
television channels, 42 radio channels, 8 online media, 163 print media and information agencies. Up to April 1, 2015, from
among the mass media mentioned above 207 operated with Ukrainian registration and licenses and 25 came to media market for
the first time. Since April 1, entitling documents issued by the Ukrainian authorities to Crimean mass media lose their force and
the procedure of registration as Russian mass media will continue in the ordinary course.
It should be noted that currently far from every Crimean mass medium took part in the re-registration process. First of all, this is
due to the fact that at this stage mass media which had closed for some reason did not take part in that process. In this context,
Russian authorities are considering the request of the representatives of Crimean media community to grant the necessary support
to mass media in the crisis period.
It is important to stress that Russia does not view the consistent work to counter the distribution of Nazi or neo-Nazi, terrorist or
extremist materials as a practice of interfering with media activities in Crimea. The aim of such publications is evident, i.e. to
provoke conflicts, undermine the constitutional foundations of the state and its sovereignty. The law prohibits the distribution of
such information in Russia. We would like to cite a few examples interpreted by the Ukrainian side as an interference with media
activities.
Termination of broadcasting by the LLC “Black Sea TV and Radio Company”. As of March 2015, the LLC “Black Sea TV and
Radio Company” was not registered as mass medium with no application for registration having been filed.
The activities of the LLC “Black Sea TV and Radio Company” was terminated by the SimStar Internet provider in view of the fact
that broadcasting of the channels with no license for broadcasting in the territory of the Russian Federation is prohibited. That
issue falls under the competence of the Ministry of Domestic Policy, Information and Communications of the Republic of Crimea.
The movable and immovable property owned by the LLC “Black Sea TV and Radio Company” was seized and put in safe
custody based on the decision of the Commercial Court of the Republic of Crimea after the consideration of an application to
introduce protective measures as a follow-up to the claim of the Ukrainian legal entity “Radio and TV Broadcasting Centre of the
Autonomous Republic of Crimea” to recover the debts amounting to more than 3 million roubles and resulting from the violation
of contractual obligations to provide services of distribution and broadcasting of television programmes.
Delivery of official warning to the Crimean Tatar Newspaper “Avdet”. Russia consistently respects and supports the activities of
ethnic organizations and at the same time stands for strict observance of national legislation by such organizations. The Mejlis of
the Crimean Tatar people and the “Avdet” newspaper controlled by it which had been repeatedly warned of an inadmissibility of
public encouragement of extremist activities refused to work within the legal framework.
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On September 17, 2014, in accordance with Articles 13 and 13.1 of the Federal Law of April 3, 1995, No. 40-FZ “On Federal
Security Service” and with a view to preventing a crime treated as the promotion of extremists ideas through mass media,
Shevkey Kaybullayev, editor-in-chief of the Crimean Tatar Newspaper “Avdet”, was given an official warning of an admissibility
of actions creating conditions for committing crimes.
TV Channel “ATR”. The Department of the Investigatory Committee of the Russian Federation for the Republic of Crimea
initiated a criminal case in accordance with Article 212 of the Criminal Code of Russia (“mass disturbances”) in connection with
mass disturbances around the building of the Verkhovna Rada of the Autonomous Republic of Crimea on February 26, 2014,
during which 2 persons died. On January 26, 2015, the office of the TV company “ATR” was searched in response to the
information that video records contained data on events having a substantial significance for investigating the said criminal case,
as well as a refusal of the TV company’s managers to provide such records as requested by the investigator.
Operational checks confirmed the information on the availability of records required by the investigators. The video records of
mass disturbances which had been found and computer system unit with recording media were seized. The staff members of the
TV channel were given an opportunity to copy all the information required to avoid interruptions in broadcasting. The seized
system unit was inspected by an investigator within 24 hours.
In October 2014, the TV Channel “ATR” filed a request to the Federal Service for Supervision of Communications, Information
Technologies and Mass Media of Russia to issue a license for TV broadcasting in the Russian Federation. The inspection
revealed discrepancies in license documents which did not allow issuing a license. On April 1, 2015, the ATR terminated
television and radio broadcasting in the Republic of Crimea, since it failed to undergo a procedure of registration as Russian mass
medium within a prescribed period.
The ATR has an illustrative background. Along with the Meydan Radio (102.7 FM) and information portal “crimeantatars.org”,
the TV channel is part of the LLC “Atlant-SV” media holding owned by one of the leaders and ideologists of the Crimen Tatar
community, citizen of Russia Lenur Islyamov.
The TV channel has been broadcasting for Crimea since 2006. In September 2012, the National Television and Radio
Broadcasting Council of Ukraine rejected an application of the LLC “Atlant-SV” to issue a license for broadcasting in the multichannel
TV network MX-5 of Ukraine. In August 2013, the media holding was refused the right to FM broadcasting in Crimea.
The fact that the holding had three warnings given by the National Council of Ukraine was cited as an official reason for refusal.
Thus, the Ukrainian authorities opposed the expansion of the sphere of influence of that media holding due to its apparently anti-
State information policy.
At the present day, the Kiev authorities has given the TV Channel “ATR” a priority right of broadcasting through the Ukrainian
cable-based network probably due to the current anti-Russian focus of that TV channel.
With regard to freedom of expression in today’s Crimea, it should be taken into account that the language of the Crimean Tatars
was recognized there as a state language for the first time in the modern history.
IV. The Rights of Minorities
The rights and freedoms of person and citizen in the Republic of Crimea are recognized and guaranteed in accordance with the
generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation
and the Constitution of the Republic of Crimea.
The Republic of Crimea is home to more than 125 different nationalities, of which 58–60 per cent are Russians, 20–24 per cent –
Ukrainians, 10‑12 per cent – Crimean Tatars, as well as Greeks, Armenians, Georgians and other ethnic groups.
Restoration of historical justice and elimination of consequences of unlawful deportation from the territory of Crimea of
representatives of some nations during the Soviet period would contribute to resolving international issues in the Crimea. In this
regard the President of the Russian Federation adopted a decree on April 21, 2014, No. 268 "On Measures for the Rehabilitation
of the Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples Subjected to Unlawful Deportation and Political
Repressions on ethnic and other Grounds".
The Federal Target Program Social and Economic Development of the Republic of Crimea and the Federal City of Sevastopol
until 2020 adopted by decision No. 790 of the Government of the Russian Federation of 11 August 2014 stipulates the activities,
including those aimed at ensuring interethnic unity, harmonizing interethnic relations and providing favorable conditions for the
development of Crimean peoples living in the territory of the Republic of Crimea and the city of Sevastopol. This Program
earmarks federal funds in the amount of 10,321.74 million rubles for 2015–2020.
In general, the interethnic situation in the Republic is considered to be stable. No acts of intimidation, violence, persecution of
ethnic Ukrainian or Crimean Tatar population, representatives of other nationalities, including resulting from the use of the
Ukrainian and Crimean Tatar languages or national symbols in public places have been registered. Law-enforcement authorities
of a Republic of Crimea and the city of Sevastopol have not received any claims concerning any ban on entry or departure of
public figures or persons of public professions or about obstacles to staging mass cultural events.
Besides, the interethnic and, as a consequence, the sociopolitical situation is aggravated by the attempts to provoke a conflict
between Crimean Tatar and Slavic peoples. The Mejlis of the Crimean Tatar People, a non-registered body created by the
Qurultay of the Crimean Tatar People (National Congress) in 1991, is playing a destructive role in this.
At the same time the Mejlis of the Crimean Tatar People, having a significant number of supporters, does not express the opinion
of the whole Crimean Tatar nation. Other organizations and movements with the participation of Crimean Tatars who have other
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views on the situation have been established in Crimea. Among them are, in particular, non-governmental organizations Milliy
Firqa and Qirim Birligi, and the Qirim public movement. Chairman of the movement R.I. Ilyasov is Deputy Chairman of the State
Council of the Republic of Crimea. Crimean Tatar representatives hold important positions also in all other bodies of the
legislative and executive branches of the Republic of Crimea.
Interethnic relations in Crimea go hand in hand with sectarian ones.
The Constitution of the Russian Federation, the Constitution of the Republic of Crimea of April 11, 2014, and the Charter of the
Federal City of Sevastopol of April 14, 2014, guarantee the nations of the Crimean Federal District the freedom of conscience, the
freedom of worship, including the right to practice any religion individually or with others or practice none, freely chose, profess
or disseminate religious and other convictions and act according to such.
As of January 1, 2014, 1409 religious organizations were registered in Crimea; however, some 674 communities, mainly Muslim
ones, operated without registration. As of March 1, 2015, in Crimea 60 religious organizations, including 9 communities, were reregistered
in accordance with the Russian law; others – who have filed documents pursuant to the procedure established by law –
are being registered.
The Ukrainian Orthodox Church is still the largest confession in Crimea (in a canonical unity with the Moscow Patriarchate). It is
represented by three dioceses – the diocese of Simferopol and Crimea, the diocese of Dzhankoy, and the diocese of Feodosiya.
They consist of 532 religious organizations – the diocese of Simferopol and Crimea incorporates 4 monasteries, 4 brotherhoods, a
religious educational establishment, and 323 religious communities; the diocese of Dzhankoy consists of 137 communities; and
the diocese of Feodosiya is represented by 2 monasteries and 61 communities.
The Ukrainian Orthodox Church of the Kiev Patriarchate (UOC of the KP) is represented in Crimea by 44 religious organizations
including one Spiritual Board, three missions, one brotherhood and 39 religious communities. The churches and cathedrals
continue to receive parishioners. Archbishop Clement, Head of the Crimean Diocese of the UOC of the KP, has residence in
Crimea and regularly attends public and religious events.
The Islamic religious organizations are the second largest confession of all existing in Crimea. They are represented by the
Spiritual Board of the Muslims of Crimea (SBMC) and Spiritual Centre of the Muslims of Crimea (SCMC).
There are 346 religious organizations, including one Board, 5 religious educational establishments (madrasah) and 340 religious
communities within the SBMC. On February 27, 2015, the SBMC underwent the re-registration procedure under the legal name
"Centralized Religious Organization "Spiritual Board of the Muslims of the Republic of Crimea and of the city of Sevastopol".
Besides, the SBMC resumed its work within the Interreligious Council "World is a Gift of God" under the Council of Ministers of
the Republic of Crimea. However, the leaders of the SBMC do not intend to join the established Islamic religious centres of the
Russian Federation. The proposals of the Council of Muftis of Russia to join this organization addressed to the leaders of the
SBMC were also declined.
There are 15 religious organizations, including 1 spiritual centre and 14 religious communities, within the SCMC. Moreover, the
charters of 49 independent Islamic communities are registered in the Republic of Crimea.
There are no cases of enforced closing of churches, cathedrals of the Ukrainian Orthodox Church of the Kiev Patriarchate or of
other confessions, or harassment of Orthodox Ukrainians by preventing priests and believers from entering church buildings. No
searches of churches, mosques or cathedrals were carried out, nor any pressure was exerted on religious communities. The
representatives of the UOC of the KP, the Roman Catholic Church in Ukraine (headed by Jacek Pyl), the SBMC (mufti Emirali
Ablayev) do not see any threats against themselves or organizations they head.
The inter-confessional situation in the Crimean Federal District of the Russian Federation in general can be characterized as
stable and predictable. Believers in that district have all opportunities to realize their right to freedom of religion. The
representatives of the clergy and general public support the position of state and law-enforcement bodies to ensure law and order,
including in the field of interethnic relations, countering radicalism and extremist manifestations.
At the same time, those who are against the stabilization of the situation on the Crimean Peninsula use any far-fetched pretext to
separate peoples living here and foment ethnic and confessional strife. In their activity, they often proceed from an information
war and instigation to direct extremist action.
Taking this into account, the law enforcement authorities of the Russian Federation, the Republic of Crimea and the City of
Sevastopol are thoroughly checking any information on violations of the law and taking adequate measures to prevent illegal
activities whoever commits such.
In March 2014, the law enforcement bodies detained a priest of the Ukrainian Greek Catholic Church Nikolai Kvich in the City of
Sevastopol. Ten armour vests and symbols of Ukrainian radical nationalist organizations were found in his apartment during the
search. As a result of the check, Mr. Kvich was charged with an administrative offence. The law enforcement authorities have
received no reports on violent actions against priests of the Parish of the Dormition Church of the Ukrainian Greek Catholic
Church in Sevastopol, there have been no reports either about any destruction of or damage to parish property. However, the fact
of the voluntary departure from the territory of the Crimea of up to 10 priests of the Ukrainian Greek Catholic Church, who are
Euromaidan supporters, was confirmed.
According to the Prosecutor General's Office of the Russian Federation, during the period from March 18, 2014, to March 19,
2015, no statements or reports about crimes of intimidation of Crimean Tatar families or anonymous threats have been registered
by the regional offices of the Ministry of the Interior of the Republic of Crimea.
At the same time six reports about unlawful acts against representatives of Crimean Tatars and other persons, including reports
about sectarian crimes, have been registered. A criminal investigation of one of the reports in question about the arson by
unidentified persons of Chukurcha-Jami mosque in June 2014 was opened. In case of other reports, including about the
3/1/2016 Permanent Delegation of the Russian Federation to UNESCO
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Accounting of the site visits
since December 9, 2009
8, rue de Prony, 75017, Paris, FRANCE, tel.: +(33) 1 45 68 26 83, fax: +(33) 1 45 68 26 82
e-mail: [email protected], [email protected]
inflammation of a guest room window of the mosque of the Khadzhibey Muslim community in Solnechnaya Dolina village,
regional bodies of internal affairs opened procedural verification, the results of which revealed no grounds for criminal cases.
During the period from January 1, 2015, to March 6, 2015, the local agencies at the district level subordinated to the Ministry of
Internal Affairs of the Republic of Crimea received 287 statements and reports about missing persons, 189 of which were found
within ten days. Among the total number of registered statements of citizens 18 concerned missing Crimean Tatars.
In 2014, search was stopped because 188 missing persons were found; the breakdown by nationality included 163 Russians, 13
Ukrainians, 9 Crimean Tatars, and 3 persons of other nationalities.
The law enforcement agencies have not received any reports from the representatives of the Mejlis of the Crimean Tatar People
nor from other public organizations, religious confessions, political parties about abductions of their activists, or any other illegal
acts regarding any organization or its members. There are still attempts to give some interethnic character to the events that do
not in fact have such character. This refers, inter alia, to the detention of A. Chiygoz, one of the leaders of the Mejlis of the
Crimean Tatar People.
A. Chiygoz, citizen of Ukraine, vice chairman of the Mejlis of the Crimean Tatar People, was arrested on January 29, 2015, due to
the fact that the investigation received proof of his leading role in the mass disturbances on February 26, 2014, near the building
of the Verkhovna Rada of the Autonomous Republic of Crimea in the course of which two people died. The same day he was
accused of committing a crime established by Article 212, para. 1, of the Criminal Code of the Russian Federation and the Kiev
district court of Simferopol imposed on him pre-trial detention.
A. Chiygoz is well known in Crimea for his regular extremist escapades, in particular the attempt to occupy the Svyato-Uspensky
Monastery in the Bakhchisaray region in the 1990s, seizure of Bakhchisaray regional registry office, city council and regional
administration, his active armed participation in bloody mass disturbances in the area of the old Azizler Muslim cemetery in the
summer of 2006, aggressive actions against the decision of Ukrainian authorities to demolish illegal buildings in the territory of
the Crimean State Natural Reserve on the Ai Petri plateau.
Cases on the adoption of children in the Crimea, as well as in the whole of the Russian Federation, are reviewed by the court on
the basis of the norms of the Family Code of the Russian Federation with the mandatory participation of the adoptive parents,
guardianship and trusteeship body and the Prosecutor. In the period from March 2014 to March 2015 39 orphans and children left
without parental care, who have the citizenship of the Russian Federation, have been adopted in the Republic of Crimea and in
the city of Sevastopol. 25 of them – in the territory of the Republic of Crimea, 14 – in Sevastopol. All children were adopted by
the citizens of the Russian Federation in compliance with the norms. There are no cases of adoption of minor Ukrainian citizens.
No complaints from citizens regarding the violation of the right of children for adoption were reserved by the Prosecution Offices
of the Republic of Crimea and Sevastopol, and no violations have been registered.
There were no violations in the actions of the Ministry of Land and Property Relations of the Republic of Crimea, which acting in
accordance with the Decision of the State Council of the Republic of Crimea No. 2059-6/14 of April 18, 2014, and the Decision
of the Council of Ministers of the Republic of Crimea No. 312 of September 2, 2014, prepared and sent to the Crimean Eparchy
Administration of the Ukrainian Orthodox Church of the Kiev Patriarchate an additional lease agreement to the Equiapostolic
St. Vladimir and St. Olga Cathedral which provides for a new monthly payment of 90,906.62 rubles. Taking into account that the
lessee is a religious organization, a corresponding reduction rate was applied when assessing the actual value of the lease.
>> To the Official Site of the Ministry of Foreign Affairs of the Russian Federation <<
Useful links
Annex 786
U.N. General Assembly Resolution 45/158, International Convention on the Protection of the
Rights of all Migrant Workers and Members of their Families (18 December 1990)
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Annex 787
HRC, General Comment No. 18, Non-Discrimination (Thirty-seventh Session, 1989),
Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 (1994)
UNITED NATIONS HRI
International
Human Rights
Instruments
Distr.
GENERAL
HRI/GEN/1/Rev.1
29 July 1994
Original: ENGLISH
COMPILATION OF GENERAL COMMENTS AND GENERAL RECOMMENDATIONS
ADOPTED BY HUMAN RIGHTS TREATY BODIES
Note by the Secretariat
This document contains a compilation of the general comments or general
recommendations adopted, respectively, by the Human Rights Committee, the
Committee on Economic, Social and Cultural Rights, the Committee on the
Elimination of Racial Discrimination, and the Committee on the Elimination of
Discrimination against Women.
CONTENTS
Part Title Page
I. General comments adopted by the Human Rights Committee ......... 2
II. General comments adopted by the Committee on Economic,
Social and Cultural Rights ..................................... 42
III. General recommendations adopted by the Committee on the
Elimination of Racial Discrimination ........................... 60
IV. General recommendations adopted by the Committee on the
Elimination of Discrimination against Women .................... 72
Annexes
I. List of general comments adopted by the Human Rights
Committee ..................................................... 101
II. List of general comments adopted by the Committee on Economic,
Social and Cultural Rights .................................... 103
III. List of general recommendations adopted by the Committee on the
Elimination of Racial Discrimination .......................... 104
IV. List of general recommendations adopted by the Committee on the
Elimination of Discrimination against Women ................... 106
GE.94-18963 (E)
HRI/GEN/1/Rev.1
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I
GENERAL COMMENTS
adopted by the Human Rights Committee*
Introduction**
The introduction to document CCPR/C/21/Rev.1 (General comments adopted by
the Human Rights Committee under art. 40, para. 4, of the International
Covenant on Civil and Political Rights; date: 19 May 1989) explains the
purpose of the general comments as follows:
"The Committee wishes to reiterate its desire to assist States
parties in fulfilling their reporting obligations. These general
comments draw attention to some aspects of this matter but do not purport
to be limitative or to attribute any priority between different aspects
of the implementation of the Covenant. These comments will, from time to
time, be followed by others as constraints of time and further experience
may make possible.
"The Committee so far has examined 77 initial reports, 34 second
periodic reports and, in some cases, additional information and
supplementary reports. This experience, therefore, now covers a
significant number of the States which have ratified the Covenant, at
present 87. They represent different regions of the world with different
political, social and legal systems and their reports illustrate most of
the problems which may arise in implementing the Covenant, although they
do not afford any complete basis for a worldwide review of the situation
as regards civil and political rights.
"The purpose of these general comments is to make this experience
available for the benefit of all States parties in order to promote their
further implementation of the Covenant; to draw their attention to
insufficiencies disclosed by a large number of reports; to suggest
improvements in the reporting procedure and to stimulate the activities
of these States and international organizations in the promotion and
protection of human rights. These comments should also be of interest to
other States, especially those preparing to become parties to the
Covenant and thus to strengthen the cooperation of all States in the
universal promotion and protection of human rights."
GENERAL COMMENT 1 Reporting obligation (Thirteenth session, 1981)
States parties have undertaken to submit reports in accordance with
article 40 of the Covenant within one year of its entry into force for the
States parties concerned and, thereafter, whenever the Committee so requests.
* For document references see annex I.
** See Report of the Human Rights Committee, Official Records of the
General Assembly, Thirty-sixth Session, Supplement No. 40 (A/36/40),
annex VII.
HRI/GEN/1/Rev.1
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Until the present time only the first part of this provision, calling for
initial reports, has become regularly operative. The Committee notes, as
appears from its annual reports, that only a small number of States have
submitted their reports on time. Most of them have been submitted with delays
ranging from a few months to several years and some States parties are still
in default despite repeated reminders and other actions by the Committee. The
fact that most States parties have nevertheless, even if somewhat late,
engaged in a constructive dialogue with the Committee suggests that the
States parties normally ought to be able to fulfil the reporting obligation
within the time limit prescribed by article 40 (1) and that it would be in
their own interest to do so in the future. In the process of ratifying the
Covenant, States should pay immediate attention to their reporting obligation
since the proper preparation of a report which covers so many civil and
political rights necessarily does require time.
GENERAL COMMENT 2 Reporting guidelines (Thirteenth session, 1981)
1. The Committee has noted that some of the reports submitted initially were
so brief and general that the Committee found it necessary to elaborate
general guidelines regarding the form and content of reports. These
guidelines were designed to ensure that reports are presented in a uniform
manner and to enable the Committee and States parties to obtain a complete
picture of the situation in each State as regards the implementation of the
rights referred to in the Covenant. Despite the guidelines, however, some
reports are still so brief and general that they do not satisfy the reporting
obligations under article 40.
2. Article 2 of the Covenant requires States parties to adopt such
legislative or other measures and provide such remedies as may be necessary to
implement the Covenant. Article 40 requires States parties to submit to the
Committee reports on the measures adopted by them, on the progress made in the
enjoyment of the Covenant rights and the factors and difficulties, if any,
affecting the implementation of the Covenant. Even reports which were in
their form generally in accordance with the guidelines have in substance been
incomplete. It has been difficult to understand from some reports whether the
Covenant had been implemented as part of national legislation and many of them
were clearly incomplete as regards relevant legislation. In some reports the
role of national bodies or organs in supervising and in implementing the
rights had not been made clear. Further, very few reports have given any
account of the factors and difficulties affecting the implementation of the
Covenant.
3. The Committee considers that the reporting obligation embraces not only
the relevant laws and other norms relating to the obligations under the
Covenant but also the practices and decisions of courts and other organs of
the State party as well as further relevant facts which are likely to show the
degree of the actual implementation and enjoyment of the rights recognized in
the Covenant, the progress achieved and factors and difficulties in
implementing the obligations under the Covenant.
HRI/GEN/1/Rev.1
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4. It is the practice of the Committee, in accordance with Rule 68 of its
Provisional Rules of Procedure, to examine reports in the presence of
representatives of the reporting States. All States whose reports have been
examined have cooperated with the Committee in this way but the level,
experience and the number of representatives have varied. The Committee
wishes to state that, if it is to be able to perform its functions under
article 40 as effectively as possible and if the reporting State is to obtain
the maximum benefit from the dialogue, it is desirable that the States
representatives should have such status and experience (and preferably be in
such number) as to respond to questions put, and the comments made, in the
Committee over the whole range of matters covered by the Covenant.
GENERAL COMMENT 3 (Thirteenth session, 1981)
Article 2: Implementation at the national level
1. The Committee notes that article 2 of the Covenant generally leaves it to
the States parties concerned to choose their method of implementation in their
territories within the framework set out in that article. It recognizes, in
particular, that the implementation does not depend solely on constitutional
or legislative enactments, which in themselves are often not per se
sufficient. The Committee considers it necessary to draw the attention of
States parties to the fact that the obligation under the Covenant is not
confined to the respect of human rights, but that States parties have also
undertaken to ensure the enjoyment of these rights to all individuals under
their jurisdiction. This aspect calls for specific activities by the States
parties to enable individuals to enjoy their rights. This is obvious in a
number of articles (e.g. art. 3 which is dealt with in General Comment 4
below), but in principle this undertaking relates to all rights set forth in
the Covenant.
2. In this connection, it is very important that individuals should know
what their rights under the Covenant (and the Optional Protocol, as the case
may be) are and also that all administrative and judicial authorities should
be aware of the obligations which the State party has assumed under the
Covenant. To this end, the Covenant should be publicized in all official
languages of the State and steps should be taken to familiarize the
authorities concerned with its contents as part of their training. It is
desirable also to give publicity to the State party’s cooperation with the
Committee.
GENERAL COMMENT 4 Article 3 (Thirteenth session, 1981)
1. Article 3 of the Covenant requiring, as it does, States parties to ensure
the equal right of men and women to the enjoyment of all civil and political
rights provided for in the Covenant, has been insufficiently dealt with in a
considerable number of States reports and has raised a number of concerns, two
of which may be highlighted.
2. Firstly, article 3, as articles 2 (1) and 26 in so far as those articles
primarily deal with the prevention of discrimination on a number of grounds,
among which sex is one, requires not only measures of protection but also
affirmative action designed to ensure the positive enjoyment of rights. This
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cannot be done simply by enacting laws. Hence, more information has generally
been required regarding the role of women in practice with a view to
ascertaining what measures, in addition to purely legislative measures of
protection, have been or are being taken to give effect to the precise and
positive obligations under article 3 and to ascertain what progress is being
made or what factors or difficulties are being met in this regard.
3. Secondly, the positive obligation undertaken by States parties under that
article may itself have an inevitable impact on legislation or administrative
measures specifically designed to regulate matters other than those dealt with
in the Covenant but which may adversely affect rights recognized in the
Covenant. One example, among others, is the degree to which immigration laws
which distinguish between a male and a female citizen may or may not adversely
affect the scope of the right of the woman to marriage to non-citizens or to
hold public office.
4. The Committee, therefore, considers that it might assist States parties
if special attention were given to a review by specially appointed bodies or
institutions of laws or measures which inherently draw a distinction between
men and women in so far as those laws or measures adversely affect the rights
provided for in the Covenant and, secondly, that States parties should give
specific information in their reports about all measures, legislative or
otherwise, designed to implement their undertaking under this article.
5. The Committee considers that it might help the States parties in
implementing this obligation, if more use could be made of existing means of
international cooperation with a view to exchanging experience and organizing
assistance in solving the practical problems connected with the insurance of
equal rights for men and women.
GENERAL COMMENT 5 Article 4 (Thirteenth session, 1981)
1. Article 4 of the Covenant has posed a number of problems for the
Committee when considering reports from some States parties. When a public
emergency which threatens the life of a nation arises and it is officially
proclaimed, a State party may derogate from a number of rights to the extent
strictly required by the situation. The State party, however, may not
derogate from certain specific rights and may not take discriminatory measures
on a number of grounds. The State party is also under an obligation to inform
the other States parties immediately, through the Secretary-General, of the
derogations it has made including the reasons therefor and the date on which
the derogations are terminated.
2. States parties have generally indicated the mechanism provided in their
legal systems for the declaration of a state of emergency and the applicable
provisions of the law governing derogations. However, in the case of a few
States which had apparently derogated from Covenant rights, it was unclear not
only whether a state of emergency had been officially declared but also
whether rights from which the Covenant allows no derogation had in fact not
been derogated from and further whether the other States parties had been
informed of the derogations and of the reasons for the derogations.
HRI/GEN/1/Rev.1
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3. The Committee holds the view that measures taken under article 4 are of
an exceptional and temporary nature and may only last as long as the life of
the nation concerned is threatened and that, in times of emergency, the
protection of human rights becomes all the more important, particularly those
rights from which no derogations can be made. The Committee also considers
that it is equally important for States parties, in times of public emergency,
to inform the other States parties of the nature and extent of the derogations
they have made and of the reasons therefor and, further, to fulfil their
reporting obligations under article 40 of the Covenant by indicating the
nature and extent of each right derogated from together with the relevant
documentation.
GENERAL COMMENT 6 Article 6 (Sixteenth session, 1982)
1. The right to life enunciated in article 6 of the Covenant has been dealt
with in all State reports. It is the supreme right from which no derogation
is permitted even in time of public emergency which threatens the life of the
nation (art. 4). However, the Committee has noted that quite often the
information given concerning article 6 was limited to only one or other aspect
of this right. It is a right which should not be interpreted narrowly.
2. The Committee observes that war and other acts of mass violence continue
to be a scourge of humanity and take the lives of thousands of innocent human
beings every year. Under the Charter of the United Nations the threat or use
of force by any State against another State, except in exercise of the
inherent right of self-defence, is already prohibited. The Committee
considers that States have the supreme duty to prevent wars, acts of genocide
and other acts of mass violence causing arbitrary loss of life. Every effort
they make to avert the danger of war, especially thermonuclear war, and to
strengthen international peace and security would constitute the most
important condition and guarantee for the safeguarding of the right to life.
In this respect, the Committee notes, in particular, a connection between
article 6 and article 20, which states that the law shall prohibit any
propaganda for war (para. 1) or incitement to violence (para. 2) as therein
described.
3. The protection against arbitrary deprivation of life which is explicitly
required by the third sentence of article 6 (1) is of paramount importance.
The Committee considers that States parties should take measures not only to
prevent and punish deprivation of life by criminal acts, but also to prevent
arbitrary killing by their own security forces. The deprivation of life by
the authorities of the State is a matter of the utmost gravity. Therefore,
the law must strictly control and limit the circumstances in which a person
may be deprived of his life by such authorities.
4. States parties should also take specific and effective measures to
prevent the disappearance of individuals, something which unfortunately has
become all too frequent and leads too often to arbitrary deprivation of life.
Furthermore, States should establish effective facilities and procedures to
investigate thoroughly cases of missing and disappeared persons in
circumstances which may involve a violation of the right to life.
HRI/GEN/1/Rev.1
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5. Moreover, the Committee has noted that the right to life has been too
often narrowly interpreted. The expression "inherent right to life" cannot
properly be understood in a restrictive manner, and the protection of this
right requires that States adopt positive measures. In this connection, the
Committee considers that it would be desirable for States parties to take all
possible measures to reduce infant mortality and to increase life expectancy,
especially in adopting measures to eliminate malnutrition and epidemics.
6. While it follows from article 6 (2) to (6) that States parties are not
obliged to abolish the death penalty totally they are obliged to limit its use
and, in particular, to abolish it for other than the "most serious crimes".
Accordingly, they ought to consider reviewing their criminal laws in this
light and, in any event, are obliged to restrict the application of the death
penalty to the "most serious crimes". The article also refers generally to
abolition in terms which strongly suggest (paras. 2 (2) and (6)) that
abolition is desirable. The Committee concludes that all measures of
abolition should be considered as progress in the enjoyment of the right to
life within the meaning of article 40, and should as such be reported to the
Committee. The Committee notes that a number of States have already abolished
the death penalty or suspended its application. Nevertheless, States’ reports
show that progress made towards abolishing or limiting the application of the
death penalty is quite inadequate.
7. The Committee is of the opinion that the expression "most serious crimes"
must be read restrictively to mean that the death penalty should be a quite
exceptional measure. It also follows from the express terms of article 6 that
it can only be imposed in accordance with the law in force at the time of the
commission of the crime and not contrary to the Covenant. The procedural
guarantees therein prescribed must be observed, including the right to a fair
hearing by an independent tribunal, the presumption of innocence, the minimum
guarantees for the defence, and the right to review by a higher tribunal.
These rights are applicable in addition to the particular right to seek pardon
or commutation of the sentence.
GENERAL COMMENT 7 Article 7 (Sixteenth session, 1982)*
1. In examining the reports of States parties, members of the Committee have
often asked for further information under article 7 which prohibits, in the
first place, torture or cruel, inhuman or degrading treatment or punishment.
The Committee recalls that even in situations of public emergency such as are
envisaged by article 4 (1) this provision is non-derogable under
article 4 (2). Its purpose is to protect the integrity and dignity of the
individual. The Committee notes that it is not sufficient for the
implementation of this article to prohibit such treatment or punishment or to
make it a crime. Most States have penal provisions which are applicable to
cases of torture or similar practices. Because such cases nevertheless occur,
it follows from article 7, read together with article 2 of the Covenant, that
States must ensure an effective protection through some machinery of control.
* General Comment 7 was replaced by General Comment 20 (Forty-fourth
session, 1992).
HRI/GEN/1/Rev.1
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Complaints about ill-treatment must be investigated effectively by competent
authorities. Those found guilty must be held responsible, and the alleged
victims must themselves have effective remedies at their disposal, including
the right to obtain compensation. Among the safeguards which may make control
effective are provisions against detention incommunicado, granting, without
prejudice to the investigation, persons such as doctors, lawyers and family
members access to the detainees; provisions requiring that detainees should be
held in places that are publicly recognized and that their names and places of
detention should be entered in a central register available to persons
concerned, such as relatives; provisions making confessions or other evidence
obtained through torture or other treatment contrary to article 7 inadmissible
in court; and measures of training and instruction of law enforcement
officials not to apply such treatment.
2. As appears from the terms of this article, the scope of protection
required goes far beyond torture as normally understood. It may not be
necessary to draw sharp distinctions between the various prohibited forms of
treatment or punishment. These distinctions depend on the kind, purpose and
severity of the particular treatment. In the view of the Committee the
prohibition must extend to corporal punishment, including excessive
chastisement as an educational or disciplinary measure. Even such a measure
as solitary confinement may, according to the circumstances, and especially
when the person is kept incommunicado, be contrary to this article. Moreover,
the article clearly protects not only persons arrested or imprisoned, but also
pupils and patients in educational and medical institutions. Finally, it is
also the duty of public authorities to ensure protection by the law against
such treatment even when committed by persons acting outside or without any
official authority. For all persons deprived of their liberty, the
prohibition of treatment contrary to article 7 is supplemented by the positive
requirement of article 10 (1) of the Covenant that they shall be treated with
humanity and with respect for the inherent dignity of the human person.
3. In particular, the prohibition extends to medical or scientific
experimentation without the free consent of the person concerned (art. 7,
second sentence). The Committee notes that the reports of States parties have
generally given little or no information on this point. It takes the view
that at least in countries where science and medicine are highly developed,
and even for peoples and areas outside their borders if affected by their
experiments, more attention should be given to the possible need and means to
ensure the observance of this provision. Special protection in regard to such
experiments is necessary in the case of persons not capable of giving their
consent.
GENERAL COMMENT 8 Article 9 (Sixteenth session, 1982)
1. Article 9 which deals with the right to liberty and security of persons
has often been somewhat narrowly understood in reports by States parties, and
they have therefore given incomplete information. The Committee points out
that paragraph 1 is applicable to all deprivations of liberty, whether in
criminal cases or in other cases such as, for example, mental illness,
vagrancy, drug addiction, educational purposes, immigration control, etc. It
is true that some of the provisions of article 9 (part of para. 2 and the
whole of para. 3) are only applicable to persons against whom criminal charges
HRI/GEN/1/Rev.1
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are brought. But the rest, and in particular the important guarantee laid
down in paragraph 4, i.e. the right to control by a court of the legality of
the detention, applies to all persons deprived of their liberty by arrest or
detention. Furthermore, States parties have in accordance with article 2 (3)
also to ensure that an effective remedy is provided in other cases in which an
individual claims to be deprived of his liberty in violation of the Covenant.
2. Paragraph 3 of article 9 requires that in criminal cases any person
arrested or detained has to be brought "promptly" before a judge or other
officer authorized by law to exercise judicial power. More precise
time-limits are fixed by law in most States parties and, in the view of the
Committee, delays must not exceed a few days. Many States have given
insufficient information about the actual practices in this respect.
3. Another matter is the total length of detention pending trial. In
certain categories of criminal cases in some countries this matter has caused
some concern within the Committee, and members have questioned whether their
practices have been in conformity with the entitlement "to trial within a
reasonable time or to release" under paragraph 3. Pre-trial detention should
be an exception and as short as possible. The Committee would welcome
information concerning mechanisms existing and measures taken with a view to
reducing the duration of such detention.
4. Also if so-called preventive detention is used, for reasons of public
security, it must be controlled by these same provisions, i.e. it must not be
arbitrary, and must be based on grounds and procedures established by law
(para. 1), information of the reasons must be given (para. 2) and court
control of the detention must be available (para. 4) as well as compensation
in the case of a breach (para. 5). And if, in addition, criminal charges are
brought in such cases, the full protection of article 9 (2) and (3), as well
as article 14, must also be granted.
GENERAL COMMENT 9 Article 10 (Sixteenth session, 1982)*
1. Article 10, paragraph 1 of the Covenant provides that all persons
deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person. However, by no means all the
reports submitted by States parties have contained information on the way in
which this paragraph of the article is being implemented. The Committee is of
the opinion that it would be desirable for the reports of States parties to
contain specific information on the legal measures designed to protect that
right. The Committee also considers that reports should indicate the concrete
measures being taken by the competent State organs to monitor the mandatory
implementation of national legislation concerning the humane treatment and
respect for the human dignity of all persons deprived of their liberty that
paragraph 1 requires.
* General Comment 9 was replaced by General Comment 21 (Forty-fourth
session, 1992).
HRI/GEN/1/Rev.1
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The Committee notes, in particular, that paragraph 1 of this article is
generally applicable to persons deprived of their liberty, whereas paragraph 2
deals with accused as distinct from convicted persons, and paragraph 3 with
convicted persons only. This structure quite often is not reflected in the
reports, which mainly have related to accused and convicted persons. The
wording of paragraph 1, its context - especially its proximity to article 9,
paragraph 1, which also deals with all deprivations of liberty - and its
purpose support a broad application of the principle expressed in that
provision. Moreover, the Committee recalls that this article supplements
article 7 as regards the treatment of all persons deprived of their liberty.
The humane treatment and the respect for the dignity of all persons
deprived of their liberty is a basic standard of universal application which
cannot depend entirely on material resources. While the Committee is aware
that in other respects the modalities and conditions of detention may vary
with the available resources, they must always be applied without
discrimination, as required by article 2 (1).
Ultimate responsibility for the observance of this principle rests with
the State as regards all institutions where persons are lawfully held against
their will, not only in prisons but also, for example, hospitals, detention
camps or correctional institutions.
2. Subparagraph 2 (a) of the article provides that, save in exceptional
circumstances, accused persons shall be segregated from convicted persons and
shall receive separate treatment appropriate to their status as unconvicted
persons. Some reports have failed to pay proper attention to this direct
requirement of the Covenant and, as a result, to provide adequate information
on the way in which the treatment of accused persons differs from that of
convicted persons. Such information should be included in future reports.
Subparagraph 2 (b) of the article calls, inter alia, for accused juvenile
persons to be separated from adults. The information in reports shows that a
number of States are not taking sufficient account of the fact that this is an
unconditional requirement of the Covenant. It is the Committee’s opinion
that, as is clear from the text of the Covenant, deviation from States
parties’ obligations under subparagraph 2 (b) cannot be justified by any
consideration whatsoever.
3. In a number of cases, the information appearing in reports with respect
to paragraph 3 of the article has contained no concrete mention either of
legislative or administrative measures or of practical steps to promote the
reformation and social rehabilitation of prisoners, by, for example,
education, vocational training and useful work. Allowing visits, in
particular by family members, is normally also such a measure which is
required for reasons of humanity. There are also similar lacunae in the
reports of certain States with respect to information concerning juvenile
offenders, who must be segregated from adults and given treatment appropriate
to their age and legal status.
4. The Committee further notes that the principles of humane treatment and
respect for human dignity set out in paragraph 1 are the basis for the more
specific and limited obligations of States in the field of criminal justice
HRI/GEN/1/Rev.1
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set out in paragraphs 2 and 3 of article 10. The segregation of accused
persons from convicted ones is required in order to emphasize their status as
unconvicted persons who are at the same time protected by the presumption of
innocence stated in article 14, paragraph 2. The aim of these provisions is
to protect the groups mentioned, and the requirements contained therein should
be seen in that light. Thus, for example, the segregation and treatment of
juvenile offenders should be provided for in such a way that it promotes their
reformation and social rehabilitation.
GENERAL COMMENT 10 Article 19 (Nineteenth session, 1983)
1. Paragraph 1 requires protection of the "right to hold opinions without
interference". This is a right to which the Covenant permits no exception or
restriction. The Committee would welcome information from States parties
concerning paragraph 1.
2. Paragraph 2 requires protection of the right to freedom of expression,
which includes not only freedom to "impart information and ideas of all
kinds", but also freedom to "seek" and "receive" them "regardless of
frontiers" and in whatever medium, "either orally, in writing or in print, in
the form of art, or through any other media of his choice". Not all States
parties have provided information concerning all aspects of the freedom of
expression. For instance, little attention has so far been given to the fact
that, because of the development of modern mass media, effective measures are
necessary to prevent such control of the media as would interfere with the
right of everyone to freedom of expression in a way that is not provided for
in paragraph 3.
3. Many State reports confine themselves to mentioning that freedom of
expression is guaranteed under the Constitution or the law. However, in order
to know the precise regime of freedom of expression in law and in practice,
the Committee needs in addition pertinent information about the rules which
either define the scope of freedom of expression or which set forth certain
restrictions, as well as any other conditions which in practice affect the
exercise of this right. It is the interplay between the principle of freedom
of expression and such limitations and restrictions which determines the
actual scope of the individual’s right.
4. Paragraph 3 expressly stresses that the exercise of the right to freedom
of expression carries with it special duties and responsibilities and for this
reason certain restrictions on the right are permitted which may relate either
to the interests of other persons or to those of the community as a whole.
However, when a State party imposes certain restrictions on the exercise of
freedom of expression, these may not put in jeopardy the right itself.
Paragraph 3 lays down conditions and it is only subject to these conditions
that restrictions may be imposed: the restrictions must be "provided by law";
they may only be imposed for one of the purposes set out in subparagraphs (a)
and (b) of paragraph 3; and they must be justified as being "necessary" for
that State party for one of those purposes.
HRI/GEN/1/Rev.1
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GENERAL COMMENT 11 Article 20 (Nineteenth session, 1983)
1. Not all reports submitted by States parties have provided sufficient
information as to the implementation of article 20 of the Covenant. In view
of the nature of article 20, States parties are obliged to adopt the necessary
legislative measures prohibiting the actions referred to therein. However,
the reports have shown that in some States such actions are neither prohibited
by law nor are appropriate efforts intended or made to prohibit them.
Furthermore, many reports failed to give sufficient information concerning the
relevant national legislation and practice.
2. Article 20 of the Covenant states that any propaganda for war and any
advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law. In the
opinion of the Committee, these required prohibitions are fully compatible
with the right of freedom of expression as contained in article 19, the
exercise of which carries with it special duties and responsibilities. The
prohibition under paragraph 1 extends to all forms of propaganda threatening
or resulting in an act of aggression or breach of the peace contrary to the
Charter of the United Nations, while paragraph 2 is directed against any
advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence, whether such propaganda or advocacy
has aims which are internal or external to the State concerned. The
provisions of article 20, paragraph 1, do not prohibit advocacy of the
sovereign right of self-defence or the right of peoples to self-determination
and independence in accordance with the Charter of the United Nations. For
article 20 to become fully effective there ought to be a law making it clear
that propaganda and advocacy as described therein are contrary to public
policy and providing for an appropriate sanction in case of violation. The
Committee, therefore, believes that States parties which have not yet done so
should take the measures necessary to fulfil the obligations contained in
article 20, and should themselves refrain from any such propaganda or
advocacy.
GENERAL COMMENT 12 Article 1 (Twenty-first session, 1984)
1. In accordance with the purposes and principles of the Charter of the
United Nations, article 1 of the International Covenant on Civil and Political
Rights recognizes that all peoples have the right of self-determination. The
right of self-determination is of particular importance because its
realization is an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and strengthening
of those rights. It is for that reason that States set forth the right of
self-determination in a provision of positive law in both Covenants and placed
this provision as article 1 apart from and before all of the other rights in
the two Covenants.
2. Article 1 enshrines an inalienable right of all peoples as described in
its paragraphs 1 and 2. By virtue of that right they freely "determine their
political status and freely pursue their economic, social and cultural
development". The article imposes on all States parties corresponding
obligations. This right and the corresponding obligations concerning its
implementation are interrelated with other provisions of the Covenant and
rules of international law.
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3. Although the reporting obligations of all States parties include
article 1, only some reports give detailed explanations regarding each of its
paragraphs. The Committee has noted that many of them completely ignore
article 1, provide inadequate information in regard to it or confine
themselves to a reference to election laws. The Committee considers it highly
desirable that States parties’ reports should contain information on each
paragraph of article 1.
4. With regard to paragraph 1 of article 1, States parties should describe
the constitutional and political processes which in practice allow the
exercise of this right.
5. Paragraph 2 affirms a particular aspect of the economic content of the
right of self-determination, namely the right of peoples, for their own ends,
freely to "dispose of their natural wealth and resources without prejudice to
any obligations arising out of international economic cooperation, based upon
the principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence". This right entails
corresponding duties for all States and the international community. States
should indicate any factors or difficulties which prevent the free disposal of
their natural wealth and resources contrary to the provisions of this
paragraph and to what extent that affects the enjoyment of other rights set
forth in the Covenant.
6. Paragraph 3, in the Committee’s opinion, is particularly important in
that it imposes specific obligations on States parties, not only in relation
to their own peoples but vis-à-vis all peoples which have not been able to
exercise or have been deprived of the possibility of exercising their right to
self-determination. The general nature of this paragraph is confirmed by its
drafting history. It stipulates that "The States Parties to the present
Covenant, including those having responsibility for the administration of
Non-Self-Governing and Trust Territories, shall promote the realization of the
right of self-determination, and shall respect that right, in conformity with
the provisions of the Charter of the United Nations". The obligations exist
irrespective of whether a people entitled to self-determination depends on a
State party to the Covenant or not. It follows that all States parties to the
Covenant should take positive action to facilitate realization of and respect
for the right of peoples to self-determination. Such positive action must be
consistent with the States’ obligations under the Charter of the
United Nations and under international law: in particular, States must
refrain from interfering in the internal affairs of other States and thereby
adversely affecting the exercise of the right to self-determination. The
reports should contain information on the performance of these obligations and
the measures taken to that end.
7. In connection with article 1 of the Covenant, the Committee refers to
other international instruments concerning the right of all peoples to
self-determination, in particular the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, adopted by the
General Assembly on 24 October 1970 (General Assembly resolution 2625 (XXV)).
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8. The Committee considers that history has proved that the realization of
and respect for the right of self-determination of peoples contributes to the
establishment of friendly relations and cooperation between States and to
strengthening international peace and understanding.
GENERAL COMMENT 13 Article 14 (Twenty-first session, 1984)
1. The Committee notes that article 14 of the Covenant is of a complex
nature and that different aspects of its provisions will need specific
comments. All of these provisions are aimed at ensuring the proper
administration of justice, and to this end uphold a series of individual
rights such as equality before the courts and tribunals and the right to a
fair and public hearing by a competent, independent and impartial tribunal
established by law. Not all reports provided details on the legislative or
other measures adopted specifically to implement each of the provisions of
article 14.
2. In general, the reports of States parties fail to recognize that
article 14 applies not only to procedures for the determination of criminal
charges against individuals but also to procedures to determine their rights
and obligations in a suit at law. Laws and practices dealing with these
matters vary widely from State to State. This diversity makes it all the more
necessary for States parties to provide all relevant information and to
explain in greater detail how the concepts of "criminal charge" and "rights
and obligations in a suit at law" are interpreted in relation to their
respective legal systems.
3. The Committee would find it useful if, in their future reports, States
parties could provide more detailed information on the steps taken to ensure
that equality before the courts, including equal access to courts, fair and
public hearings and competence, impartiality and independence of the judiciary
are established by law and guaranteed in practice. In particular, States
parties should specify the relevant constitutional and legislative texts which
provide for the establishment of the courts and ensure that they are
independent, impartial and competent, in particular with regard to the manner
in which judges are appointed, the qualifications for appointment, and the
duration of their terms of office; the condition governing promotion, transfer
and cessation of their functions and the actual independence of the judiciary
from the executive branch and the legislative.
4. The provisions of article 14 apply to all courts and tribunals within the
scope of that article whether ordinary or specialized. The Committee notes
the existence, in many countries, of military or special courts which try
civilians. This could present serious problems as far as the equitable,
impartial and independent administration of justice is concerned. Quite often
the reason for the establishment of such courts is to enable exceptional
procedures to be applied which do not comply with normal standards of justice.
While the Covenant does not prohibit such categories of courts, nevertheless
the conditions which it lays down clearly indicate that the trying of
civilians by such courts should be very exceptional and take place under
conditions which genuinely afford the full guarantees stipulated in
article 14. The Committee has noted a serious lack of information in this
regard in the reports of some States parties whose judicial institutions
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include such courts for the trying of civilians. In some countries such
military and special courts do not afford the strict guarantees of the proper
administration of justice in accordance with the requirements of article 14
which are essential for the effective protection of human rights. If States
parties decide in circumstances of a public emergency as contemplated by
article 4 to derogate from normal procedures required under article 14, they
should ensure that such derogations do not exceed those strictly required by
the exigencies of the actual situation, and respect the other conditions in
paragraph 1 of article 14.
5. The second sentence of article 14, paragraph 1, provides that "everyone
shall be entitled to a fair and public hearing". Paragraph 3 of the
article elaborates on the requirements of a "fair hearing" in regard to the
determination of criminal charges. However, the requirements of paragraph 3
are minimum guarantees, the observance of which is not always sufficient to
ensure the fairness of a hearing as required by paragraph 1.
6. The publicity of hearings is an important safeguard in the interest of
the individual and of society at large. At the same time article 14,
paragraph 1, acknowledges that courts have the power to exclude all or part of
the public for reasons spelt out in that paragraph. It should be noted that,
apart from such exceptional circumstances, the Committee considers that a
hearing must be open to the public in general, including members of the press,
and must not, for instance, be limited only to a particular category of
persons. It should be noted that, even in cases in which the public is
excluded from the trial, the judgement must, with certain strictly defined
exceptions, be made public.
7. The Committee has noted a lack of information regarding article 14,
paragraph 2 and, in some cases, has even observed that the presumption of
innocence, which is fundamental to the protection of human rights, is
expressed in very ambiguous terms or entails conditions which render it
ineffective. By reason of the presumption of innocence, the burden of proof
of the charge is on the prosecution and the accused has the benefit of doubt.
No guilt can be presumed until the charge has been proved beyond reasonable
doubt. Further, the presumption of innocence implies a right to be treated in
accordance with this principle. It is, therefore, a duty for all public
authorities to refrain from prejudging the outcome of a trial.
8. Among the minimum guarantees in criminal proceedings prescribed by
paragraph 3, the first concerns the right of everyone to be informed in a
language which he understands of the charge against him (subpara. (a)). The
Committee notes that State reports often do not explain how this right is
respected and ensured. Article 14 (3) (a) applies to all cases of criminal
charges, including those of persons not in detention. The Committee notes
further that the right to be informed of the charge "promptly" requires that
information is given in the manner described as soon as the charge is first
made by a competent authority. In the opinion of the Committee this right
must arise when in the course of an investigation a court or an authority of
the prosecution decides to take procedural steps against a person suspected of
a crime or publicly names him as such. The specific requirements of
subparagraph 3 (a) may be met by stating the charge either orally or in
writing, provided that the information indicates both the law and the alleged
facts on which it is based.
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9. Subparagraph 3 (b) provides that the accused must have adequate time and
facilities for the preparation of his defence and to communicate with counsel
of his own choosing. What is "adequate time" depends on the circumstances of
each case, but the facilities must include access to documents and other
evidence which the accused requires to prepare his case, as well as the
opportunity to engage and communicate with counsel. When the accused does not
want to defend himself in person or request a person or an association of his
choice, he should be able to have recourse to a lawyer. Furthermore, this
subparagraph requires counsel to communicate with the accused in conditions
giving full respect for the confidentiality of their communications. Lawyers
should be able to counsel and to represent their clients in accordance with
their established professional standards and judgement without any
restrictions, influences, pressures or undue interference from any quarter.
10. Subparagraph 3 (c) provides that the accused shall be tried without undue
delay. This guarantee relates not only to the time by which a trial should
commence, but also the time by which it should end and judgement be rendered;
all stages must take place "without undue delay". To make this right
effective, a procedure must be available in order to ensure that the trial
will proceed "without undue delay", both in first instance and on appeal.
11. Not all reports have dealt with all aspects of the right of defence as
defined in subparagraph 3 (d). The Committee has not always received
sufficient information concerning the protection of the right of the accused
to be present during the determination of any charge against him nor how the
legal system assures his right either to defend himself in person or to be
assisted by counsel of his own choosing, or what arrangements are made if a
person does not have sufficient means to pay for legal assistance. The
accused or his lawyer must have the right to act diligently and fearlessly in
pursuing all available defences and the right to challenge the conduct of the
case if they believe it to be unfair. When exceptionally for justified
reasons trials in absentia are held, strict observance of the rights of the
defence is all the more necessary.
12. Subparagraph 3 (e) states that the accused shall be entitled to examine
or have examined the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses
against him. This provision is designed to guarantee to the accused the same
legal powers of compelling the attendance of witnesses and of examining or
cross-examining any witnesses as are available to the prosecution.
13. Subparagraph 3 (f) provides that if the accused cannot understand or
speak the language used in court he is entitled to the assistance of an
interpreter free of any charge. This right is independent of the outcome of
the proceedings and applies to aliens as well as to nationals. It is of basic
importance in cases in which ignorance of the language used by a court or
difficulty in understanding may constitute a major obstacle to the right of
defence.
14. Subparagraph 3 (g) provides that the accused may not be compelled to
testify against himself or to confess guilt. In considering this safeguard
the provisions of article 7 and article 10, paragraph 1, should be borne in
mind. In order to compel the accused to confess or to testify against
HRI/GEN/1/Rev.1
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himself, frequently methods which violate these provisions are used. The law
should require that evidence provided by means of such methods or any other
form of compulsion is wholly unacceptable.
15. In order to safeguard the rights of the accused under paragraphs 1 and 3
of article 14, judges should have authority to consider any allegations made
of violations of the rights of the accused during any stage of the
prosecution.
16. Article 14, paragraph 4, provides that in the case of juvenile persons,
the procedure shall be such as will take account of their age and the
desirability of promoting their rehabilitation. Not many reports have
furnished sufficient information concerning such relevant matters as the
minimum age at which a juvenile may be charged with a criminal offence, the
maximum age at which a person is still considered to be a juvenile, the
existence of special courts and procedures, the laws governing procedures
against juveniles and how all these special arrangements for juveniles take
account of "the desirability of promoting their rehabilitation". Juveniles
are to enjoy at least the same guarantees and protection as are accorded to
adults under article 14.
17. Article 14, paragraph 5, provides that everyone convicted of a crime
shall have the right to his conviction and sentence being reviewed by a higher
tribunal according to law. Particular attention is drawn to the other
language versions of the word "crime" ("infraction", "delito", "prestuplenie")
which show that the guarantee is not confined only to the most serious
offences. In this connection, not enough information has been provided
concerning the procedures of appeal, in particular the access to and the
powers of reviewing tribunals, what requirements must be satisfied to appeal
against a judgement, and the way in which the procedures before review
tribunals take account of the fair and public hearing requirements of
paragraph 1 of article 14.
18. Article 14, paragraph 6, provides for compensation according to law in
certain cases of a miscarriage of justice as described therein. It seems from
many State reports that this right is often not observed or insufficiently
guaranteed by domestic legislation. States should, where necessary,
supplement their legislation in this area in order to bring it into line with
the provisions of the Covenant.
19. In considering State reports differing views have often been expressed as
to the scope of paragraph 7 of article 14. Some States parties have even felt
the need to make reservations in relation to procedures for the resumption of
criminal cases. It seems to the Committee that most States parties make a
clear distinction between a resumption of a trial justified by exceptional
circumstances and a re-trial prohibited pursuant to the principle of
ne bis in idem as contained in paragraph 7. This understanding of the meaning
of ne bis in idem may encourage States parties to reconsider their
reservations to article 14, paragraph 7.
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GENERAL COMMENT 14 Article 6 (Twenty-third session, 1984)
1. In its general comment 6 [16] adopted at its 378th meeting
on 27 July 1982, the Human Rights Committee observed that the right to life
enunciated in the first paragraph of article 6 of the International Covenant
on Civil and Political Rights is the supreme right from which no derogation is
permitted even in time of public emergency. The same right to life is
enshrined in article 3 of the Universal Declaration of Human Rights adopted by
the General Assembly of the United Nations on 10 December 1948. It is basic
to all human rights.
2. In its previous general comment, the Committee also observed that it is
the supreme duty of States to prevent wars. War and other acts of mass
violence continue to be a scourge of humanity and take the lives of thousands
of innocent human beings every year.
3. While remaining deeply concerned by the toll of human life taken by
conventional weapons in armed conflicts, the Committee has noted that, during
successive sessions of the General Assembly, representatives from all
geographical regions have expressed their growing concern at the development
and proliferation of increasingly awesome weapons of mass destruction, which
not only threaten human life but also absorb resources that could otherwise be
used for vital economic and social purposes, particularly for the benefit of
developing countries, and thereby for promoting and securing the enjoyment of
human rights for all.
4. The Committee associates itself with this concern. It is evident that
the designing, testing, manufacture, possession and deployment of nuclear
weapons are among the greatest threats to the right to life which confront
mankind today. This threat is compounded by the danger that the actual use of
such weapons may be brought about, not only in the event of war, but even
through human or mechanical error or failure.
5. Furthermore, the very existence and gravity of this threat generates a
climate of suspicion and fear between States, which is in itself antagonistic
to the promotion of universal respect for and observance of human rights and
fundamental freedoms in accordance with the Charter of the United Nations and
the International Covenants on Human Rights.
6. The production, testing, possession, deployment and use of nuclear
weapons should be prohibited and recognized as crimes against humanity.
7. The Committee accordingly, in the interest of mankind, calls upon all
States, whether Parties to the Covenant or not, to take urgent steps,
unilaterally and by agreement, to rid the world of this menace.
GENERAL COMMENT 15 Twenty-seventh session, 1986
The position of aliens under the Covenant
1. Reports from States parties have often failed to take into account that
each State party must ensure the rights in the Covenant to "all individuals
within its territory and subject to its jurisdiction" (art. 2, para. 1).
HRI/GEN/1/Rev.1
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In general, the rights set forth in the Covenant apply to everyone,
irrespective of reciprocity, and irrespective of his or her nationality or
statelessness.
2. Thus, the general rule is that each one of the rights of the Covenant
must be guaranteed without discrimination between citizens and aliens. Aliens
receive the benefit of the general requirement of non-discrimination in
respect of the rights guaranteed in the Covenant, as provided for in article 2
thereof. This guarantee applies to aliens and citizens alike. Exceptionally,
some of the rights recognized in the Covenant are expressly applicable only to
citizens (art. 25), while article 13 applies only to aliens. However, the
Committee’s experience in examining reports shows that in a number of
countries other rights that aliens should enjoy under the Covenant are denied
to them or are subject to limitations that cannot always be justified under
the Covenant.
3. A few constitutions provide for equality of aliens with citizens. Some
constitutions adopted more recently carefully distinguish fundamental rights
that apply to all and those granted to citizens only, and deal with each in
detail. In many States, however, the constitutions are drafted in terms of
citizens only when granting relevant rights. Legislation and case law may
also play an important part in providing for the rights of aliens. The
Committee has been informed that in some States fundamental rights, though not
guaranteed to aliens by the Constitution or other legislation, will also be
extended to them as required by the Covenant. In certain cases, however,
there has clearly been a failure to implement Covenant rights without
discrimination in respect of aliens.
4. The Committee considers that in their reports States parties should give
attention to the position of aliens, both under their law and in actual
practice. The Covenant gives aliens all the protection regarding rights
guaranteed therein, and its requirements should be observed by States parties
in their legislation and in practice as appropriate. The position of aliens
would thus be considerably improved. States parties should ensure that the
provisions of the Covenant and the rights under it are made known to aliens
within their jurisdiction.
5. The Covenant does not recognize the right of aliens to enter or reside in
the territory of a State party. It is in principle a matter for the State to
decide who it will admit to its territory. However, in certain circumstances
an alien may enjoy the protection of the Covenant even in relation to entry or
residence, for example, when considerations of non-discrimination, prohibition
of inhuman treatment and respect for family life arise.
6. Consent for entry may be given subject to conditions relating, for
example, to movement, residence and employment. A State may also impose
general conditions upon an alien who is in transit. However, once aliens are
allowed to enter the territory of a State party they are entitled to the
rights set out in the Covenant.
7. Aliens thus have an inherent right to life, protected by law, and may not
be arbitrarily deprived of life. They must not be subjected to torture or to
cruel, inhuman or degrading treatment or punishment; nor may they be held in
HRI/GEN/1/Rev.1
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slavery or servitude. Aliens have the full right to liberty and security of
the person. If lawfully deprived of their liberty, they shall be treated with
humanity and with respect for the inherent dignity of their person. Aliens
may not be imprisoned for failure to fulfil a contractual obligation. They
have the right to liberty of movement and free choice of residence; they shall
be free to leave the country. Aliens shall be equal before the courts and
tribunals, and shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law in the determination of
any criminal charge or of rights and obligations in a suit at law. Aliens
shall not be subjected to retrospective penal legislation, and are entitled to
recognition before the law. They may not be subjected to arbitrary or
unlawful interference with their privacy, family, home or correspondence.
They have the right to freedom of thought, conscience and religion, and the
right to hold opinions and to express them. Aliens receive the benefit of the
right of peaceful assembly and of freedom of association. They may marry when
at marriageable age. Their children are entitled to those measures of
protection required by their status as minors. In those cases where aliens
constitute a minority within the meaning of article 27, they shall not be
denied the right, in community with other members of their group, to enjoy
their own culture, to profess and practise their own religion and to use their
own language. Aliens are entitled to equal protection by the law. There
shall be no discrimination between aliens and citizens in the application of
these rights. These rights of aliens may be qualified only by such
limitations as may be lawfully imposed under the Covenant.
8. Once an alien is lawfully within a territory, his freedom of movement
within the territory and his right to leave that territory may only be
restricted in accordance with article 12, paragraph 3. Differences in
treatment in this regard between aliens and nationals, or between different
categories of aliens, need to be justified under article 12, paragraph 3.
Since such restrictions must, inter alia, be consistent with the other rights
recognized in the Covenant, a State party cannot, by restraining an alien or
deporting him to a third country, arbitrarily prevent his return to his own
country (art. 12, para. 4).
9. Many reports have given insufficient information on matters relevant to
article 13. That article is applicable to all procedures aimed at the
obligatory departure of an alien, whether described in national law as
expulsion or otherwise. If such procedures entail arrest, the safeguards of
the Covenant relating to deprivation of liberty (arts. 9 and 10) may also be
applicable. If the arrest is for the particular purpose of extradition, other
provisions of national and international law may apply. Normally an alien who
is expelled must be allowed to leave for any country that agrees to take him.
The particular rights of article 13 only protect those aliens who are lawfully
in the territory of a State party. This means that national law concerning
the requirements for entry and stay must be taken into account in determining
the scope of that protection, and that illegal entrants and aliens who have
stayed longer than the law or their permits allow, in particular, are not
covered by its provisions. However, if the legality of an alien’s entry or
stay is in dispute, any decision on this point leading to his expulsion or
deportation ought to be taken in accordance with article 13. It is for the
competent authorities of the State party, in good faith and in the exercise of
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their powers, to apply and interpret the domestic law, observing, however,
such requirements under the Covenant as equality before the law (art. 26).
10. Article 13 directly regulates only the procedure and not the substantive
grounds for expulsion. However, by allowing only those carried out "in
pursuance of a decision reached in accordance with law", its purpose is
clearly to prevent arbitrary expulsions. On the other hand, it entitles each
alien to a decision in his own case and, hence, article 13 would not be
satisfied with laws or decisions providing for collective or mass expulsions.
This understanding, in the opinion of the Committee, is confirmed by further
provisions concerning the right to submit reasons against expulsion and to
have the decision reviewed by and to be represented before the competent
authority or someone designated by it. An alien must be given full facilities
for pursuing his remedy against expulsion so that this right will in all the
circumstances of his case be an effective one. The principles of article 13
relating to appeal against expulsion and the entitlement to review by a
competent authority may only be departed from when "compelling reasons of
national security" so require. Discrimination may not be made between
different categories of aliens in the application of article 13.
GENERAL COMMENT 16 Article 17 (Thirty-second session, 1988)
1. Article 17 provides for the right of every person to be protected against
arbitrary or unlawful interference with his privacy, family, home or
correspondence as well as against unlawful attacks on his honour and
reputation. In the view of the Committee this right is required to be
guaranteed against all such interferences and attacks whether they emanate
from State authorities or from natural or legal persons. The obligations
imposed by this article require the State to adopt legislative and other
measures to give effect to the prohibition against such interferences and
attacks as well as to the protection of this right.
2. In this connection, the Committee wishes to point out that in the reports
of States parties to the Covenant the necessary attention is not being given
to information concerning the manner in which respect for this right is
guaranteed by legislative, administrative or judicial authorities, and in
general by the competent organs established in the State. In particular,
insufficient attention is paid to the fact that article 17 of the Covenant
deals with protection against both unlawful and arbitrary interference. That
means that it is precisely in State legislation above all that provision must
be made for the protection of the right set forth in that article. At present
the reports either say nothing about such legislation or provide insufficient
information on the subject.
3. The term "unlawful" means that no interference can take place except in
cases envisaged by the law. Interference authorized by States can only take
place on the basis of law, which itself must comply with the provisions, aims
and objectives of the Covenant.
4. The expression "arbitrary interference" is also relevant to the
protection of the right provided for in article 17. In the Committee’s view
the expression "arbitrary interference" can also extend to interference
provided for under the law. The introduction of the concept of arbitrariness
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is intended to guarantee that even interference provided for by law should be
in accordance with the provisions, aims and objectives of the Covenant and
should be, in any event, reasonable in the particular circumstances.
5. Regarding the term "family", the objectives of the Covenant require that
for purposes of article 17 this term be given a broad interpretation to
include all those comprising the family as understood in the society of the
State party concerned. The term "home" in English, "manzel" in Arabic,
"zhùzhái" in Chinese, "domicile" in French, "zhilische" in Russian and
"domicilio" in Spanish, as used in article 17 of the Covenant, is to be
understood to indicate the place where a person resides or carries out his
usual occupation. In this connection, the Committee invites States to
indicate in their reports the meaning given in their society to the terms
"family" and "home".
6. The Committee considers that the reports should include information on
the authorities and organs set up within the legal system of the State which
are competent to authorize interference allowed by the law. It is also
indispensable to have information on the authorities which are entitled to
exercise control over such interference with strict regard for the law, and to
know in what manner and through which organs persons concerned may complain of
a violation of the right provided for in article 17 of the Covenant. States
should in their reports make clear the extent to which actual practice
conforms to the law. State party reports should also contain information on
complaints lodged in respect of arbitrary or unlawful interference, and the
number of any findings in that regard, as well as the remedies provided in
such cases.
7. As all persons live in society, the protection of privacy is necessarily
relative. However, the competent public authorities should only be able to
call for such information relating to an individual’s private life the
knowledge of which is essential in the interests of society as understood
under the Covenant. Accordingly, the Committee recommends that States should
indicate in their reports the laws and regulations that govern authorized
interferences with private life.
8. Even with regard to interferences that conform to the Covenant, relevant
legislation must specify in detail the precise circumstances in which such
interferences may be permitted. A decision to make use of such authorized
interference must be made only by the authority designated under the law, and
on a case-by-case basis. Compliance with article 17 requires that the
integrity and confidentiality of correspondence should be guaranteed de jure
and de facto. Correspondence should be delivered to the addressee without
interception and without being opened or otherwise read. Surveillance,
whether electronic or otherwise, interceptions of telephonic, telegraphic and
other forms of communication, wire-tapping and recording of conversations
should be prohibited. Searches of a person’s home should be restricted to a
search for necessary evidence and should not be allowed to amount to
harassment. So far as personal and body search is concerned, effective
measures should ensure that such searches are carried out in a manner
consistent with the dignity of the person who is being searched. Persons
being subjected to body search by State officials, or medical personnel acting
at the request of the State, should only be examined by persons of the same
sex.
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9. States parties are under a duty themselves not to engage in interferences
inconsistent with article 17 of the Covenant and to provide the legislative
framework prohibiting such acts by natural or legal persons.
10. The gathering and holding of personal information on computers, databanks
and other devices, whether by public authorities or private individuals or
bodies, must be regulated by law. Effective measures have to be taken by
States to ensure that information concerning a person’s private life does not
reach the hands of persons who are not authorized by law to receive, process
and use it, and is never used for purposes incompatible with the Covenant. In
order to have the most effective protection of his private life, every
individual should have the right to ascertain in an intelligible form,
whether, and if so, what personal data is stored in automatic data files, and
for what purposes. Every individual should also be able to ascertain which
public authorises or private individuals or bodies control or may control
their files. If such files contain incorrect personal data or have been
collected or processed contrary to the provisions of the law, every individual
should have the right to request rectification or elimination.
11. Article 17 affords protection to personal honour and reputation and
States are under an obligation to provide adequate legislation to that end.
Provision must also be made for everyone effectively to be able to protect
himself against any unlawful attacks that do occur and to have an effective
remedy against those responsible. States parties should indicate in their
reports to what extent the honour or reputation of individuals is protected by
law and how this protection is achieved according to their legal system.
GENERAL COMMENT 17 Article 24 (Thirty-fifth session, 1989)
1. Article 24 of the International Covenant on Civil and Political Rights
recognizes the right of every child, without any discrimination, to receive
from his family, society and the State the protection required by his status
as a minor. Consequently, the implementation of this provision entails the
adoption of special measures to protect children, in addition to the measures
that States are required to take under article 2 to ensure that everyone
enjoys the rights provided for in the Covenant. The reports submitted by
States parties often seem to underestimate this obligation and supply
inadequate information on the way in which children are afforded enjoyment of
their right to a special protection.
2. In this connection, the Committee points out that the rights provided for
in article 24 are not the only ones that the Covenant recognizes for children
and that, as individuals, children benefit from all of the civil rights
enunciated in the Covenant. In enunciating a right, some provisions of the
Covenant expressly indicate to States measures to be adopted with a view to
affording minors greater protection than adults. Thus, as far as the right to
life is concerned, the death penalty cannot be imposed for crimes committed by
persons under 18 years of age. Similarly, if lawfully deprived of their
liberty, accused juvenile persons shall be separated from adults and are
entitled to be brought as speedily as possible for adjudication; in turn,
convicted juvenile offenders shall be subject to a penitentiary system that
involves segregation from adults and is appropriate to their age and legal
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status, the aim being to foster reformation and social rehabilitation.
In other instances, children are protected by the possibility of the
restriction - provided that such restriction is warranted - of a right
recognized by the Covenant, such as the right to publicize a judgement in a
suit at law or a criminal case, from which an exception may be made when the
interest of the minor so requires.
3. In most cases, however, the measures to be adopted are not specified in
the Covenant and it is for each State to determine them in the light of the
protection needs of children in its territory and within its jurisdiction.
The Committee notes in this regard that such measures, although intended
primarily to ensure that children fully enjoy the other rights enunciated in
the Covenant, may also be economic, social and cultural. For example, every
possible economic and social measure should be taken to reduce infant
mortality and to eradicate malnutrition among children and to prevent them
from being subjected to acts of violence and cruel and inhuman treatment or
from being exploited by means of forced labour or prostitution, or by their
use in the illicit trafficking of narcotic drugs, or by any other means. In
the cultural field, every possible measure should be taken to foster the
development of their personality and to provide them with a level of education
that will enable them to enjoy the rights recognized in the Covenant,
particularly the right to freedom of opinion and expression. Moreover, the
Committee wishes to draw the attention of States parties to the need to
include in their reports information on measures adopted to ensure that
children do not take a direct part in armed conflicts.
4. The right to special measures of protection belongs to every child
because of his status as a minor. Nevertheless, the Covenant does not
indicate the age at which he attains his majority. This is to be determined
by each State party in the light of the relevant social and cultural
conditions. In this respect, States should indicate in their reports the age
at which the child attains his majority in civil matters and assumes criminal
responsibility. States should also indicate the age at which a child is
legally entitled to work and the age at which he is treated as an adult under
labour law. States should further indicate the age at which a child is
considered adult for the purposes of article 10, paragraphs 2 and 3. However,
the Committee notes that the age for the above purposes should not be set
unreasonably low and that in any case a State party cannot absolve itself from
its obligations under the Covenant regarding persons under the age of 18,
notwithstanding that they have reached the age of majority under domestic law.
5. The Covenant requires that children should be protected against
discrimination on any grounds such as race, colour, sex, language, religion,
national or social origin, property or birth. In this connection, the
Committee notes that, whereas non-discrimination in the enjoyment of the
rights provided for in the Covenant also stems, in the case of children, from
article 2 and their equality before the law from article 26, the
non-discrimination clause contained in article 24 relates specifically to the
measures of protection referred to in that provision. Reports by States
parties should indicate how legislation and practice ensure that measures of
protection are aimed at removing all discrimination in every field, including
inheritance, particularly as between children who are nationals and children
who are aliens or as between legitimate children and children born out of
wedlock.
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6. Responsibility for guaranteeing children the necessary protection lies
with the family, society and the State. Although the Covenant does not
indicate how such responsibility is to be apportioned, it is primarily
incumbent on the family, which is interpreted broadly to include all persons
composing it in the society of the State party concerned, and particularly on
the parents, to create conditions to promote the harmonious development of the
child’s personality and his enjoyment of the rights recognized in the
Covenant. However, since it is quite common for the father and mother to be
gainfully employed outside the home, reports by States parties should indicate
how society, social institutions and the State are discharging their
responsibility to assist the family in ensuring the protection of the child.
Moreover, in cases where the parents and the family seriously fail in their
duties, ill-treat or neglect the child, the State should intervene to restrict
parental authority and the child may be separated from his family when
circumstances so require. If the marriage is dissolved, steps should be
taken, keeping in view the paramount interest of the children, to give them
necessary protection and, so far as is possible, to guarantee personal
relations with both parents. The Committee considers it useful that reports
by States parties should provide information on the special measures of
protection adopted to protect children who are abandoned or deprived of their
family environment in order to enable them to develop in conditions that most
closely resemble those characterizing the family environment.
7. Under article 24, paragraph 2, every child has the right to be registered
immediately after birth and to have a name. In the Committee’s opinion, this
provision should be interpreted as being closely linked to the provision
concerning the right to special measures of protection and it is designed to
promote recognition of the child’s legal personality. Providing for the right
to have a name is of special importance in the case of children born out of
wedlock. The main purpose of the obligation to register children after birth
is to reduce the danger of abduction, sale of or traffic in children, or of
other types of treatment that are incompatible with the enjoyment of the
rights provided for in the Covenant. Reports by States parties should
indicate in detail the measures that ensure the immediate registration of
children born in their territory.
8. Special attention should also be paid, in the context of the protection
to be granted to children, to the right of every child to acquire a
nationality, as provided for in article 24, paragraph 3. While the purpose of
this provision is to prevent a child from being afforded less protection by
society and the State because he is stateless, it does not necessarily make it
an obligation for States to give their nationality to every child born in
their territory. However, States are required to adopt every appropriate
measure, both internally and in cooperation with other States, to ensure that
every child has a nationality when he is born. In this connection, no
discrimination with regard to the acquisition of nationality should be
admissible under internal law as between legitimate children and children born
out of wedlock or of stateless parents or based on the nationality status of
one or both of the parents. The measures adopted to ensure that children have
a nationality should always be referred to in reports by States parties.
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GENERAL COMMENT 18 Non-discrimination (Thirty-seventh session, 1989)
1. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitute a basic and
general principle relating to the protection of human rights. Thus,
article 2, paragraph 1, of the International Covenant on Civil and Political
Rights obligates each State party to respect and ensure to all persons within
its territory and subject to its jurisdiction the rights recognized in the
Covenant without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status. Article 26 not only entitles all persons to equality
before the law as well as equal protection of the law but also prohibits any
discrimination under the law and guarantees to all persons equal and effective
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.
2. Indeed, the principle of non-discrimination is so basic that article 3
obligates each State party to ensure the equal right of men and women to the
enjoyment of the rights set forth in the Covenant. While article 4,
paragraph 1, allows States parties to take measures derogating from certain
obligations under the Covenant in time of public emergency, the same article
requires, inter alia, that those measures should not involve discrimination
solely on the ground of race, colour, sex, language, religion or social
origin. Furthermore, article 20, paragraph 2, obligates States parties to
prohibit, by law, any advocacy of national, racial or religious hatred which
constitutes incitement to discrimination.
3. Because of their basic and general character, the principle of
non-discrimination as well as that of equality before the law and equal
protection of the law are sometimes expressly referred to in articles relating
to particular categories of human rights. Article 14, paragraph 1, provides
that all persons shall be equal before the courts and tribunals, and
paragraph 3 of the same article provides that, in the determination of any
criminal charge against him, everyone shall be entitled, in full equality, to
the minimum guarantees enumerated in subparagraphs (a) to (g) of paragraph 3.
Similarly, article 25 provides for the equal participation in public life of
all citizens, without any of the distinctions mentioned in article 2.
4. It is for the States parties to determine appropriate measures to
implement the relevant provisions. However, the Committee is to be informed
about the nature of such measures and their conformity with the principles of
non-discrimination and equality before the law and equal protection of the
law.
5. The Committee wishes to draw the attention of States parties to the fact
that the Covenant sometimes expressly requires them to take measures to
guarantee the equality of rights of the persons concerned. For example,
article 23, paragraph 4, stipulates that States parties shall take appropriate
steps to ensure equality of rights as well as responsibilities of spouses as
to marriage, during marriage and at its dissolution. Such steps may take the
form of legislative, administrative or other measures, but it is a positive
duty of States parties to make certain that spouses have equal rights as
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required by the Covenant. In relation to children, article 24 provides that
all children, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, have the right to such
measures of protection as are required by their status as minors, on the part
of their family, society and the State.
6. The Committee notes that the Covenant neither defines the term
"discrimination" nor indicates what constitutes discrimination. However,
article 1 of the International Convention on the Elimination of All Forms of
Racial Discrimination provides that the term "racial discrimination" shall
mean any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life. Similarly, article 1 of
the Convention on the Elimination of All Forms of Discrimination against Women
provides that "discrimination against women" shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
7. While these conventions deal only with cases of discrimination on
specific grounds, the Committee believes that the term "discrimination" as
used in the Covenant should be understood to imply any distinction, exclusion,
restriction or preference which is based on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all
persons, on an equal footing, of all rights and freedoms.
8. The enjoyment of rights and freedoms on an equal footing, however, does
not mean identical treatment in every instance. In this connection, the
provisions of the Covenant are explicit. For example, article 6, paragraph 5,
prohibits the death sentence from being imposed on persons below 18 years of
age. The same paragraph prohibits that sentence from being carried out on
pregnant women. Similarly, article 10, paragraph 3, requires the segregation
of juvenile offenders from adults. Furthermore, article 25 guarantees certain
political rights, differentiating on grounds of citizenship.
9. Reports of many States parties contain information regarding legislative
as well as administrative measures and court decisions which relate to
protection against discrimination in law, but they very often lack information
which would reveal discrimination in fact. When reporting on articles 2 (1),
3 and 26 of the Covenant, States parties usually cite provisions of their
constitution or equal opportunity laws with respect to equality of persons.
While such information is of course useful, the Committee wishes to know if
there remain any problems of discrimination in fact, which may be practised
either by public authorities, by the community, or by private persons or
bodies. The Committee wishes to be informed about legal provisions and
administrative measures directed at diminishing or eliminating such
discrimination.
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10. The Committee also wishes to point out that the principle of equality
sometimes requires States parties to take affirmative action in order to
diminish or eliminate conditions which cause or help to perpetuate
discrimination prohibited by the Covenant. For example, in a State where the
general conditions of a certain part of the population prevent or impair their
enjoyment of human rights, the State should take specific action to correct
those conditions. Such action may involve granting for a time to the part of
the population concerned certain preferential treatment in specific matters as
compared with the rest of the population. However, as long as such action is
needed to correct discrimination in fact, it is a case of legitimate
differentiation under the Covenant.
11. Both article 2, paragraph 1, and article 26 enumerate grounds of
discrimination such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
The Committee has observed that in a number of constitutions and laws not all
the grounds on which discrimination is prohibited, as cited in article 2,
paragraph 1, are enumerated. The Committee would therefore like to receive
information from States parties as to the significance of such omissions.
12. While article 2 limits the scope of the rights to be protected against
discrimination to those provided for in the Covenant, article 26 does not
specify such limitations. That is to say, article 26 provides that all
persons are equal before the law and are entitled to equal protection of the
law without discrimination, and that the law shall guarantee to all persons
equal and effective protection against discrimination on any of the enumerated
grounds. In the view of the Committee, article 26 does not merely duplicate
the guarantee already provided for in article 2 but provides in itself an
autonomous right. It prohibits discrimination in law or in fact in any field
regulated and protected by public authorities. Article 26 is therefore
concerned with the obligations imposed on States parties in regard to their
legislation and the application thereof. Thus, when legislation is adopted by
a State party, it must comply with the requirement of article 26 that its
content should not be discriminatory. In other words, the application of the
principle of non-discrimination contained in article 26 is not limited to
those rights which are provided for in the Covenant.
13. Finally, the Committee observes that not every differentiation of
treatment will constitute discrimination, if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a
purpose which is legitimate under the Covenant.
GENERAL COMMENT 19 Article 23 (Thirty-ninth session, 1990)
1. Article 23 of the International Covenant on Civil and Political Rights
recognizes that the family is the natural and fundamental group unit of
society and is entitled to protection by society and the State. Protection of
the family and its members is also guaranteed, directly or indirectly, by
other provisions of the Covenant. Thus, article 17 establishes a prohibition
on arbitrary or unlawful interference with the family. In addition,
article 24 of the Covenant specifically addresses the protection of the rights
of the child, as such or as a member of a family. In their reports, States
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parties often fail to give enough information on how the State and society are
discharging their obligation to provide protection to the family and the
persons composing it.
2. The Committee notes that the concept of the family may differ in some
respects from State to State, and even from region to region within a State,
and that it is therefore not possible to give the concept a standard
definition. However, the Committee emphasizes that, when a group of persons
is regarded as a family under the legislation and practice of a State, it must
be given the protection referred to in article 23. Consequently, States
parties should report on how the concept and scope of the family is construed
or defined in their own society and legal system. Where diverse concepts of
the family, "nuclear" and "extended", exist within a State, this should be
indicated with an explanation of the degree of protection afforded to each.
In view of the existence of various forms of family, such as unmarried couples
and their children or single parents and their children, States parties should
also indicate whether and to what extent such types of family and their
members are recognized and protected by domestic law and practice.
3. Ensuring the protection provided for under article 23 of the Covenant
requires that States parties should adopt legislative, administrative or other
measures. States parties should provide detailed information concerning the
nature of such measures and the means whereby their effective implementation
is assured. In fact, since the Covenant also recognizes the right of the
family to protection by society, States parties’ reports should indicate
how the necessary protection is granted to the family by the State and other
social institutions, whether and to what extent the State gives financial or
other support to the activities of such institutions, and how it ensures that
these activities are compatible with the Covenant.
4. Article 23, paragraph 2, of the Covenant reaffirms the right of men and
women of marriageable age to marry and to found a family. Paragraph 3 of the
same article provides that no marriage shall be entered into without the free
and full consent of the intending spouses. States parties’ reports should
indicate whether there are restrictions or impediments to the exercise of the
right to marry based on special factors such as degree of kinship or mental
incapacity. The Covenant does not establish a specific marriageable age
either for men or for women, but that age should be such as to enable each
of the intending spouses to give his or her free and full personal consent
in a form and under conditions prescribed by law. In this connection, the
Committee wishes to note that such legal provisions must be compatible with
the full exercise of the other rights guaranteed by the Covenant; thus, for
instance, the right to freedom of thought, conscience and religion implies
that the legislation of each State should provide for the possibility of both
religious and civil marriages. In the Committee’s view, however, for a State
to require that a marriage, which is celebrated in accordance with religious
rites, be conducted, affirmed or registered also under civil law is not
incompatible with the Covenant. States are also requested to include
information on this subject in their reports.
5. The right to found a family implies, in principle, the possibility to
procreate and live together. When States parties adopt family planning
policies, they should be compatible with the provisions of the Covenant and
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should, in particular, not be discriminatory or compulsory. Similarly, the
possibility to live together implies the adoption of appropriate measures,
both at the internal level and as the case may be, in cooperation with other
States, to ensure the unity or reunification of families, particularly when
their members are separated for political, economic or similar reasons.
6. Article 23, paragraph 4, of the Covenant provides that States parties
shall take appropriate steps to ensure equality of rights and responsibilities
of spouses as to marriage, during marriage and at its dissolution.
With regard to equality as to marriage, the Committee wishes to note in
particular that no sex-based discrimination should occur in respect of the
acquisition or loss of nationality by reason of marriage. Likewise, the right
of each spouse to retain the use of his or her original family name or to
participate on an equal basis in the choice of a new family name should be
safeguarded.
During marriage, the spouses should have equal rights and
responsibilities in the family. This equality extends to all matters arising
from their relationship, such as choice of residence, running of the
household, education of the children and administration of assets. Such
equality continues to be applicable to arrangements regarding legal separation
or dissolution of the marriage.
Thus, any discriminatory treatment in regard to the grounds and
procedures for separation or divorce, child custody, maintenance or alimony,
visiting rights or the loss or recovery of parental authority must be
prohibited, bearing in mind the paramount interest of the children in this
connection. States parties should, in particular, include information in
their reports concerning the provision made for the necessary protection of
any children at the dissolution of a marriage or on the separation of the
spouses.
GENERAL COMMENT 20 Article 7 (Forty-fourth session, 1992)
1. This general comment replaces general comment 7 (the sixteenth session,
1982) reflecting and further developing it.
2. The aim of the provisions of article 7 of the International Covenant on
Civil and Political Rights is to protect both the dignity and the physical and
mental integrity of the individual. It is the duty of the State party to
afford everyone protection through legislative and other measures as may be
necessary against the acts prohibited by article 7, whether inflicted by
people acting in their official capacity, outside their official capacity or
in a private capacity. The prohibition in article 7 is complemented by the
positive requirements of article 10, paragraph 1, of the Covenant, which
stipulates that "All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person".
3. The text of article 7 allows of no limitation. The Committee also
reaffirms that, even in situations of public emergency such as those referred
to in article 4 of the Covenant, no derogation from the provision of article 7
is allowed and its provisions must remain in force. The Committee likewise
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observes that no justification or extenuating circumstances may be invoked to
excuse a violation of article 7 for any reasons, including those based on an
order from a superior officer or public authority.
4. The Covenant does not contain any definition of the concepts covered by
article 7, nor does the Committee consider it necessary to draw up a list of
prohibited acts or to establish sharp distinctions between the different kinds
of punishment or treatment; the distinctions depend on the nature, purpose and
severity of the treatment applied.
5. The prohibition in article 7 relates not only to acts that cause physical
pain but also to acts that cause mental suffering to the victim. In the
Committee’s view, moreover, the prohibition must extend to corporal
punishment, including excessive chastisement ordered as punishment for a crime
or as an educative or disciplinary measure. It is appropriate to emphasize in
this regard that article 7 protects, in particular, children, pupils and
patients in teaching and medical institutions.
6. The Committee notes that prolonged solitary confinement of the detained
or imprisoned person may amount to acts prohibited by article 7. As the
Committee has stated in its general comment No. 6 (16), article 6 of the
Covenant refers generally to abolition of the death penalty in terms that
strongly suggest that abolition is desirable. Moreover, when the death
penalty is applied by a State party for the most serious crimes, it must not
only be strictly limited in accordance with article 6 but it must be carried
out in such a way as to cause the least possible physical and mental
suffering.
7. Article 7 expressly prohibits medical or scientific experimentation
without the free consent of the person concerned. The Committee notes that
the reports of States parties generally contain little information on this
point. More attention should be given to the need and means to ensure
observance of this provision. The Committee also observes that special
protection in regard to such experiments is necessary in the case of persons
not capable of giving valid consent, and in particular those under any form of
detention or imprisonment. Such persons should not be subjected to any
medical or scientific experimentation that may be detrimental to their health.
8. The Committee notes that it is not sufficient for the implementation of
article 7 to prohibit such treatment or punishment or to make it a crime.
States parties should inform the Committee of the legislative, administrative,
judicial and other measures they take to prevent and punish acts of torture
and cruel, inhuman and degrading treatment in any territory under their
jurisdiction.
9. In the view of the Committee, States parties must not expose individuals
to the danger of torture or cruel, inhuman or degrading treatment or
punishment upon return to another country by way of their extradition,
expulsion or refoulement. States parties should indicate in their reports
what measures they have adopted to that end.
10. The Committee should be informed how States parties disseminate, to the
population at large, relevant information concerning the ban on torture and
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the treatment prohibited by article 7. Enforcement personnel, medical
personnel, police officers and any other persons involved in the custody or
treatment of any individual subjected to any form of arrest, detention or
imprisonment must receive appropriate instruction and training. States
parties should inform the Committee of the instruction and training given and
the way in which the prohibition of article 7 forms an integral part of the
operational rules and ethical standards to be followed by such persons.
11. In addition to describing steps to provide the general protection against
acts prohibited under article 7 to which anyone is entitled, the State party
should provide detailed information on safeguards for the special protection
of particularly vulnerable persons. It should be noted that keeping under
systematic review interrogation rules, instructions, methods and practices as
well as arrangements for the custody and treatment of persons subjected to any
form of arrest, detention or imprisonment is an effective means of preventing
cases of torture and ill-treatment. To guarantee the effective protection of
detained persons, provisions should be made for detainees to be held in places
officially recognized as places of detention and for their names and places of
detention, as well as for the names of persons responsible for their
detention, to be kept in registers readily available and accessible to those
concerned, including relatives and friends. To the same effect, the time and
place of all interrogations should be recorded, together with the names of all
those present and this information should also be available for purposes of
judicial or administrative proceedings. Provisions should also be made
against incommunicado detention. In that connection, States parties should
ensure that any places of detention be free from any equipment liable to be
used for inflicting torture or ill-treatment. The protection of the detainee
also requires that prompt and regular access be given to doctors and lawyers
and, under appropriate supervision when the investigation so requires, to
family members.
12. It is important for the discouragement of violations under article 7 that
the law must prohibit the use of admissibility in judicial proceedings of
statements or confessions obtained through torture or other prohibited
treatment.
13. States parties should indicate when presenting their reports the
provisions of their criminal law which penalize torture and cruel, inhuman and
degrading treatment or punishment, specifying the penalties applicable to such
acts, whether committed by public officials or other persons acting on behalf
of the State, or by private persons. Those who violate article 7, whether by
encouraging, ordering, tolerating or perpetrating prohibited acts, must be
held responsible. Consequently, those who have refused to obey orders must
not be punished or subjected to any adverse treatment.
14. Article 7 should be read in conjunction with article 2, paragraph 3, of
the Covenant. In their reports, States parties should indicate how their
legal system effectively guarantees the immediate termination of all the acts
prohibited by article 7 as well as appropriate redress. The right to lodge
complaints against maltreatment prohibited by article 7 must be recognized in
the domestic law. Complaints must be investigated promptly and impartially by
competent authorities so as to make the remedy effective. The reports of
States parties should provide specific information on the remedies available
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to victims of maltreatment and the procedure that complainants must follow,
and statistics on the number of complaints and how they have been dealt with.
15. The Committee has noted that some States have granted amnesty in respect
of acts of torture. Amnesties are generally incompatible with the duty of
States to investigate such acts; to guarantee freedom from such acts within
their jurisdiction; and to ensure that they do not occur in the future.
States may not deprive individuals of the right to an effective remedy,
including compensation and such full rehabilitation as may be possible.
GENERAL COMMENT 21 Article 10 (Forty-fourth session, 1992)
1. This general comment replaces general comment 9 (the sixteenth session,
1982) reflecting and further developing it.
2. Article 10, paragraph 1, of the International Covenant on Civil and
Political Rights applies to any one deprived of liberty under the laws and
authority of the State who is held in prisons, hospitals - particularly
psychiatric hospitals - detention camps or correctional institutions or
elsewhere. States parties should ensure that the principle stipulated therein
is observed in all institutions and establishments within their jurisdiction
where persons are being held.
3. Article 10, paragraph 1, imposes on States parties a positive obligation
towards persons who are particularly vulnerable because of their status as
persons deprived of liberty, and complements for them the ban on torture or
other cruel, inhuman or degrading treatment or punishment contained in
article 7 of the Covenant. Thus, not only may persons deprived of their
liberty not be subjected to treatment that is contrary to article 7, including
medical or scientific experimentation, but neither may they be subjected to
any hardship or constraint other than that resulting from the deprivation of
liberty; respect for the dignity of such persons must be guaranteed under the
same conditions as for that of free persons. Persons deprived of their
liberty enjoy all the rights set forth in the Covenant, subject to the
restrictions that are unavoidable in a closed environment.
4. Treating all persons deprived of their liberty with humanity and with
respect for their dignity is a fundamental and universally applicable rule.
Consequently, the application of this rule, as a minimum, cannot be dependent
on the material resources available in the State party. This rule must be
applied without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
5. States parties are invited to indicate in their reports to what extent
they are applying the relevant United Nations standards applicable to the
treatment of prisoners: the Standard Minimum Rules for the Treatment of
Prisoners (1957), the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment (1988), the Code of Conduct for
Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant
to the Role of Health Personnel, particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1982).
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6. The Committee recalls that reports should provide detailed information on
national legislative and administrative provisions that have a bearing on the
right provided for in article 10, paragraph 1. The Committee also considers
that it is necessary for reports to specify what concrete measures have been
taken by the competent authorities to monitor the effective application of the
rules regarding the treatment of persons deprived of their liberty. States
parties should include in their reports information concerning the system for
supervising penitentiary establishments, the specific measures to prevent
torture and cruel, inhuman or degrading treatment, and how impartial
supervision is ensured.
7. Furthermore, the Committee recalls that reports should indicate whether
the various applicable provisions form an integral part of the instruction and
training of the personnel who have authority over persons deprived of their
liberty and whether they are strictly adhered to by such personnel in the
discharge of their duties. It would also be appropriate to specify whether
arrested or detained persons have access to such information and have
effective legal means enabling them to ensure that those rules are respected,
to complain if the rules are ignored and to obtain adequate compensation in
the event of a violation.
8. The Committee recalls that the principle set forth in article 10,
paragraph 1, constitutes the basis for the more specific obligations of States
parties in respect of criminal justice, which are set forth in article 10,
paragraphs 2 and 3.
9. Article 10, paragraph 2 (a), provides for the segregation, save in
exceptional circumstances, of accused persons from convicted ones. Such
segregation is required in order to emphasize their status as unconvicted
persons who at the same time enjoy the right to be presumed innocent as stated
in article 14, paragraph 2. The reports of States parties should indicate how
the separation of accused persons from convicted persons is effected and
explain how the treatment of accused persons differs from that of convicted
persons.
10. As to article 10, paragraph 3, which concerns convicted persons, the
Committee wishes to have detailed information on the operation of the
penitentiary system of the State party. No penitentiary system should be only
retributory; it should essentially seek the reformation and social
rehabilitation of the prisoner. States parties are invited to specify whether
they have a system to provide assistance after release and to give information
as to its success.
11. In a number of cases, the information furnished by the State party
contains no specific reference either to legislative or administrative
provisions or to practical measures to ensure the re-education of convicted
persons. The Committee requests specific information concerning the measures
taken to provide teaching, education and re-education, vocational guidance and
training and also concerning work programmes for prisoners inside the
penitentiary establishment as well as outside.
12. In order to determine whether the principle set forth in article 10,
paragraph 3, is being fully respected, the Committee also requests information
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on the specific measures applied during detention, e.g., how convicted persons
are dealt with individually and how they are categorized, the disciplinary
system, solitary confinement and high-security detention and the conditions
under which contacts are ensured with the outside world (family, lawyer,
social and medical services, non-governmental organizations).
13. Moreover, the Committee notes that in the reports of some States parties
no information has been provided concerning the treatment accorded to accused
juvenile persons and juvenile offenders. Article 10, paragraph 2 (b),
provides that accused juvenile persons shall be separated from adults. The
information given in reports shows that some States parties are not paying the
necessary attention to the fact that this is a mandatory provision of the
Covenant. The text also provides that cases involving juveniles must be
considered as speedily as possible. Reports should specify the measures taken
by States parties to give effect to that provision. Lastly, under article 10,
paragraph 3, juvenile offenders shall be segregated from adults and be
accorded treatment appropriate to their age and legal status in so far as
conditions of detention are concerned, such as shorter working hours and
contact with relatives, with the aim of furthering their reformation and
rehabilitation. Article 10 does not indicate any limits of juvenile age.
While this is to be determined by each State party in the light of relevant
social, cultural and other conditions, the Committee is of the opinion that
article 6, paragraph 5, suggests that all persons under the age of 18 should
be treated as juveniles, at least in matters relating to criminal justice.
States should give relevant information about the age groups of persons
treated as juveniles. In that regard, States parties are invited to indicate
whether they are applying the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, known as the Beijing Rules (1987).
GENERAL COMMENT 22 Article 18 (Forty-eighth session 1993)
1. The right to freedom of thought, conscience and religion (which includes
the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it
encompasses freedom of thought on all matters, personal conviction and the
commitment to religion or belief, whether manifested individually or in
community with others. The Committee draws the attention of States parties to
the fact that the freedom of thought and the freedom of conscience are
protected equally with the freedom of religion and belief. The fundamental
character of these freedoms is also reflected in the fact that this provision
cannot be derogated from, even in time of public emergency, as stated in
article 4.2 of the Covenant.
2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well
as the right not to profess any religion or belief. The terms "belief" and
"religion" are to be broadly construed. Article 18 is not limited in its
application to traditional religions or to religions and beliefs with
institutional characteristics or practices analogous to those of traditional
religions. The Committee therefore views with concern any tendency to
discriminate against any religion or belief for any reason, including the fact
that they are newly established, or represent religious minorities that may be
the subject of hostility on the part of a predominant religious community.
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3. Article 18 distinguishes the freedom of thought, conscience, religion or
belief from the freedom to manifest religion or belief. It does not permit
any limitations whatsoever on the freedom of thought and conscience or on the
freedom to have or adopt a religion or belief of one’s choice. These freedoms
are protected unconditionally, as is the right of everyone to hold opinions
without interference in article 19.1. In accordance with articles 18.2
and 17, no one can be compelled to reveal his thoughts or adherence to a
religion or belief.
4. The freedom to manifest religion or belief may be exercised "either
individually or in community with others and in public or private". The
freedom to manifest religion or belief in worship, observance, practice and
teaching encompasses a broad range of acts. The concept of worship extends to
ritual and ceremonial acts giving direct expression to belief, as well as
various practices integral to such acts, including the building of places of
worship, the use of ritual formulae and objects, the display of symbols, and
the observance of holidays and days of rest. The observance and practice of
religion or belief may include not only ceremonial acts but also such customs
as the observance of dietary regulations, the wearing of distinctive clothing
or headcoverings, participation in rituals associated with certain stages of
life, and the use of a particular language customarily spoken by a group. In
addition, the practice and teaching of religion or belief includes acts
integral to the conduct by religious groups of their basic affairs, such as
the freedom to choose their religious leaders, priests and teachers, the
freedom to establish seminaries or religious schools and the freedom to
prepare and distribute religious texts or publications.
5. The Committee observes that the freedom to "have or to adopt" a religion
or belief necessarily entails the freedom to choose a religion or belief,
including the right to replace one’s current religion or belief with another
or to adopt atheistic views, as well as the right to retain one’s religion or
belief. Article 18.2 bars coercion that would impair the right to have or
adopt a religion or belief, including the use of threat of physical force or
penal sanctions to compel believers or non-believers to adhere to their
religious beliefs and congregations, to recant their religion or belief or to
convert. Policies or practices having the same intention or effect, such as,
for example, those restricting access to education, medical care, employment
or the rights guaranteed by article 25 and other provisions of the Covenant,
are similarly inconsistent with article 18.2. The same protection is enjoyed
by holders of all beliefs of a non-religious nature.
6. The Committee is of the view that article 18.4 permits public school
instruction in subjects such as the general history of religions and ethics
if it is given in a neutral and objective way. The liberty of parents or
legal guardians to ensure that their children receive a religious and
moral education in conformity with their own convictions, set forth in
article 18.4, is related to the guarantees of the freedom to teach a religion
or belief stated in article 18.1. The Committee notes that public education
that includes instruction in a particular religion or belief is inconsistent
with article 18.4 unless provision is made for non-discriminatory exemptions
or alternatives that would accommodate the wishes of parents and guardians.
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7. In accordance with article 20, no manifestation of religion or belief may
amount to propaganda for war or advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence.
As stated by the Committee in its General Comment 11 [19], States parties are
under the obligation to enact laws to prohibit such acts.
8. Article 18.3 permits restrictions on the freedom to manifest religion or
belief only if limitations are prescribed by law and are necessary to protect
public safety, order, health or morals, or the fundamental rights and freedoms
of others. The freedom from coercion to have or to adopt a religion or belief
and the liberty of parents and guardians to ensure religious and moral
education cannot be restricted. In interpreting the scope of permissible
limitation clauses, States parties should proceed from the need to protect the
rights guaranteed under the Covenant, including the right to equality and
non-discrimination on all grounds specified in articles 2, 3 and 26.
Limitations imposed must be established by law and must not be applied in a
manner that would vitiate the rights guaranteed in article 18. The Committee
observes that paragraph 3 of article 18 is to be strictly interpreted:
restrictions are not allowed on grounds not specified there, even if they
would be allowed as restrictions to other rights protected in the Covenant,
such as national security. Limitations may be applied only for those purposes
for which they were prescribed and must be directly related and proportionate
to the specific need on which they are predicated. Restrictions may not be
imposed for discriminatory purposes or applied in a discriminatory manner.
The Committee observes that the concept of morals derives from many social,
philosophical and religious traditions; consequently, limitations on the
freedom to manifest a religion or belief for the purpose of protecting morals
must be based on principles not deriving exclusively from a single tradition.
Persons already subject to certain legitimate constraints, such as prisoners,
continue to enjoy their rights to manifest their religion or belief to the
fullest extent compatible with the specific nature of the constraint. States
parties’ reports should provide information on the full scope and effects of
limitations under article 18.3, both as a matter of law and of their
application in specific circumstances.
9. The fact that a religion is recognized as a state religion or that it
is established as official or traditional or that its followers comprise the
majority of the population, shall not result in any impairment of the
enjoyment of any of the rights under the Covenant, including articles 18
and 27, nor in any discrimination against adherents to other religions or
non-believers. In particular, certain measures discriminating against the
latter, such as measures restricting eligibility for government service to
members of the predominant religion or giving economic privileges to them or
imposing special restrictions on the practice of other faiths, are not in
accordance with the prohibition of discrimination based on religion or belief
and the guarantee of equal protection under article 26. The measures
contemplated by article 20, paragraph 2 of the Covenant constitute important
safeguards against infringement of the rights of religious minorities and of
other religious groups to exercise the rights guaranteed by articles 18
and 27, and against acts of violence or persecution directed towards those
groups. The Committee wishes to be informed of measures taken by States
parties concerned to protect the practices of all religions or beliefs from
infringement and to protect their followers from discrimination. Similarly,
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information as to respect for the rights of religious minorities under
article 27 is necessary for the Committee to assess the extent to which the
right to freedom of thought, conscience, religion and belief has been
implemented by States parties. States parties concerned should also include
in their reports information relating to practices considered by their laws
and jurisprudence to be punishable as blasphemous.
10. If a set of beliefs is treated as official ideology in constitutions,
statutes, proclamations of ruling parties, etc., or in actual practice, this
shall not result in any impairment of the freedoms under article 18 or any
other rights recognized under the Covenant nor in any discrimination against
persons who do not accept the official ideology or who oppose it.
11. Many individuals have claimed the right to refuse to perform military
service (conscientious objection) on the basis that such right derives from
their freedoms under article 18. In response to such claims, a growing number
of States have in their laws exempted from compulsory military service
citizens who genuinely hold religious or other beliefs that forbid the
performance of military service and replaced it with alternative national
service. The Covenant does not explicitly refer to a right to conscientious
objection, but the Committee believes that such a right can be derived from
article 18, inasmuch as the obligation to use lethal force may seriously
conflict with the freedom of conscience and the right to manifest one’s
religion or belief. When this right is recognized by law or practice, there
shall be no differentiation among conscientious objectors on the basis of the
nature of their particular beliefs; likewise, there shall be no discrimination
against conscientious objectors because they have failed to perform military
service. The Committee invites States parties to report on the conditions
under which persons can be exempted from military service on the basis of
their rights under article 18 and on the nature and length of alternative
national service.
GENERAL COMMENT 23 Article 27 (Fiftieth session, 1994)
1. Article 27 of the Covenant provides that, in those States in which
ethnic, religious or linguistic minorities exist, persons belonging to these
minorities shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practise their own
religion, or to use their own language. The Committee observes that this
article establishes and recognizes a right which is conferred on individuals
belonging to minority groups and which is distinct from, and additional to,
all the other rights which, as individuals in common with everyone else, they
are already entitled to enjoy under the Covenant.
2. In some communications submitted to the Committee under the Optional
Protocol, the right protected under article 27 has been confused with the
right of peoples to self-determination proclaimed in article 1 of the
Covenant. Further, in reports submitted by States parties under article 40 of
the Covenant, the obligations placed upon States parties under article 27 have
sometimes been confused with their duty under article 2.1 to ensure the
enjoyment of the rights guaranteed under the Covenant without discrimination
and also with equality before the law and equal protection of the law under
article 26.
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3.1. The Covenant draws a distinction between the right to self-determination
and the rights protected under article 27. The former is expressed to be a
right belonging to peoples and is dealt with in a separate part (Part I) of
the Covenant. Self-determination is not a right cognizable under the Optional
Protocol. Article 27, on the other hand, relates to rights conferred on
individuals as such and is included, like the articles relating to other
personal rights conferred on individuals, in Part III of the Covenant and is
cognizable under the Optional Protocol. 1/
3.2. The enjoyment of the rights to which article 27 relates does not
prejudice the sovereignty and territorial integrity of a State party. At the
same time, one or other aspect of the rights of individuals protected under
that article - for example, to enjoy a particular culture - may consist in a
way of life which is closely associated with territory and use of its
resources. 2/ This may particularly be true of members of indigenous
communities constituting a minority.
4. The Covenant also distinguishes the rights protected under article 27
from the guarantees under articles 2.1 and 26. The entitlement, under
article 2.1, to enjoy the rights under the Covenant without discrimination
applies to all individuals within the territory or under the jurisdiction of
the State whether or not those persons belong to a minority. In addition,
there is a distinct right provided under article 26 for equality before the
law, equal protection of the law, and non-discrimination in respect of rights
granted and obligations imposed by the States. It governs the exercise of all
rights, whether protected under the Covenant or not, which the State party
confers by law on individuals within its territory or under its jurisdiction,
irrespective of whether they belong to the minorities specified in article 27
or not. 3/ Some States parties who claim that they do not discriminate on
grounds of ethnicity, language or religion, wrongly contend, on that basis
alone, that they have no minorities.
5.1. The terms used in article 27 indicate that the persons designed to be
protected are those who belong to a group and who share in common a culture, a
religion and/or a language. Those terms also indicate that the individuals
designed to be protected need not be citizens of the State party. In this
regard, the obligations deriving from article 2.1 are also relevant, since a
State party is required under that article to ensure that the rights protected
under the Covenant are available to all individuals within its territory and
subject to its jurisdiction, except rights which are expressly made to apply
to citizens, for example, political rights under article 25. A State party
may not, therefore, restrict the rights under article 27 to its citizens
alone.
5.2. Article 27 confers rights on persons belonging to minorities which
"exist" in a State party. Given the nature and scope of the rights envisaged
under that article, it is not relevant to determine the degree of permanence
that the term "exist" connotes. Those rights simply are that individuals
belonging to those minorities should not be denied the right, in community
with members of their group, to enjoy their own culture, to practise their
religion and speak their language. Just as they need not be nationals or
citizens, they need not be permanent residents. Thus, migrant workers or even
visitors in a State party constituting such minorities are entitled not to be
HRI/GEN/1/Rev.1
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denied the exercise of those rights. As any other individual in the territory
of the State party, they would, also for this purpose, have the general
rights, for example, to freedom of association, of assembly, and of
expression. The existence of an ethnic, religious or linguistic minority in a
given State party does not depend upon a decision by that State party but
requires to be established by objective criteria.
5.3. The right of individuals belonging to a linguistic minority to use their
language among themselves, in private or in public, is distinct from other
language rights protected under the Covenant. In particular, it should be
distinguished from the general right to freedom of expression protected under
article 19. The latter right is available to all persons, irrespective of
whether they belong to minorities or not. Further, the right protected under
article 27 should be distinguished from the particular right which
article 14.3 (f) of the Covenant confers on accused persons to interpretation
where they cannot understand or speak the language used in the courts.
Article 14.3 (f) does not, in any other circumstances, confer on accused
persons the right to use or speak the language of their choice in court
proceedings. 4/
6.1. Although article 27 is expressed in negative terms, that article,
nevertheless, does recognize the existence of a "right" and requires that it
shall not be denied. Consequently, a State party is under an obligation to
ensure that the existence and the exercise of this right are protected against
their denial or violation. Positive measures of protection are, therefore,
required not only against the acts of the State party itself, whether through
its legislative, judicial or administrative authorities, but also against the
acts of other persons within the State party.
6.2. Although the rights protected under article 27 are individual rights,
they depend in turn on the ability of the minority group to maintain its
culture, language or religion. Accordingly, positive measures by States may
also be necessary to protect the identity of a minority and the rights of its
members to enjoy and develop their culture and language and to practise their
religion, in community with the other members of the group. In this
connection, it has to be observed that such positive measures must respect the
provisions of articles 2.1 and 26 of the Covenant both as regards the
treatment between different minorities and the treatment between the persons
belonging to them and the remaining part of the population. However, as long
as those measures are aimed at correcting conditions which prevent or impair
the enjoyment of the rights guaranteed under article 27, they may constitute a
legitimate differentiation under the Covenant, provided that they are based on
reasonable and objective criteria.
7. With regard to the exercise of the cultural rights protected under
article 27, the Committee observes that culture manifests itself in many
forms, including a particular way of life associated with the use of land
resources, especially in the case of indigenous peoples. That right may
include such traditional activities as fishing or hunting and the right to
live in reserves protected by law. 5/ The enjoyment of those rights may
require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions which
affect them.
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8. The Committee observes that none of the rights protected under article 27
of the Covenant may be legitimately exercised in a manner or to an extent
inconsistent with the other provisions of the Covenant.
9. The Committee concludes that article 27 relates to rights whose
protection imposes specific obligations on States parties. The protection of
these rights is directed towards ensuring the survival and continued
development of the cultural, religious and social identity of the minorities
concerned, thus enriching the fabric of society as a whole. Accordingly, the
Committee observes that these rights must be protected as such and should not
be confused with other personal rights conferred on one and all under the
Covenant. States parties, therefore, have an obligation to ensure that the
exercise of these rights is fully protected and they should indicate in their
reports the measures they have adopted to this end.
Notes
1/ See Official Records of the General Assembly, Thirty-ninth Session,
Supplement No. 40 (A/39/40), annex VI, General Comment No. 12 (21)
(article 1), also issued in document CCPR/C/21/Rev.1; ibid., Forty-fifth
Session, Supplement No. 40, (A/45/40), vol. II, annex IX, sect. A,
Communication No. 167/1984 (Bernard Ominayak, Chief of the Lubicon Lake
Band v. Canada), views adopted on 26 March 1990.
2/ See ibid., Forty-third Session, Supplement No. 40 (A/43/40),
annex VII, sect. G, Communication No. 197/1985 (Kitok v. Sweden), views
adopted on 27 July 1988.
3/ See ibid., Forty-second Session, Supplement No. 40 (A/42/40),
annex VIII, sect. D, Communication No. 182/1984 (F.H. Zwaan-de Vries v.
the Netherlands), views adopted on 9 April 1987; ibid., sect. C, Communication
No. 180/1984 (L.G. Danning v. the Netherlands), views adopted on 9 April 1987.
4/ See ibid., Forty-fifth Session, Supplement No. 40, (A/45/40),
vol. II, annex X, sect. A, Communication No. 220/1987 (T.K. v. France),
decision of 8 November 1989; ibid., sect. B, Communication No. 222/1987
(M.K. v. France), decision of 8 November 1989.
5/ See notes 1 and 2 above, Communication No. 167/1984
(Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), views adopted on
26 March 1990, and Communication No. 197/1985 (Kitok v. Sweden), views adopted
on 27 July 1988.
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II
GENERAL COMMENTS
adopted by the Committee on Economic,
Social and Cultural Rights
Introduction: the purpose of general comments*
1. At its second session, in 1988, the Committee decided (E/1988/14,
paras. 366 and 367), pursuant to an invitation addressed to it by the Economic
and Social Council (resolution 1987/5) and endorsed by the General Assembly
(resolution 42/102), to begin, as from its third session, the preparation of
general comments based on the various articles and provisions of the
International Covenant on Economic, Social and Cultural Rights with a view to
assisting the States parties in fulfilling their reporting obligations.
2. The Committee, and the sessional working group of governmental experts
which existed prior to the creation of the Committee, have examined 138
initial reports and 44 second periodic reports concerning rights covered by
articles 6 to 9, 10 to 12 and 13 to 15 of the Covenant as of the end of its
third session. This experience covers a significant number of States parties
to the Covenant, currently consisting of 92 States. They represent all
regions of the world, with different socio-economic, cultural, political and
legal systems. Their reports submitted so far illustrate many of the problems
which might arise in implementing the Covenant although they have not yet
provided any complete picture as to the global situation with regard to the
enjoyment of economic, social and cultural rights. The introduction to
annex III (General Comments) of the Committee’s 1989 report to the Economic
and Social Council (E/1989/22) explains the purpose of the general comments as
follows:
3. "The Committee endeavours, through its general comments, to make the
experience gained so far through the examination of these reports available
for the benefit of all States parties in order to assist and promote their
further implementation of the Covenant; to draw the attention of the States
parties to insufficiencies disclosed by a large number of reports; to suggest
improvements in the reporting procedures and to stimulate the activities of
the States parties, the international organizations and the specialized
agencies concerned in achieving progressively and effectively the full
realization of the rights recognized in the Covenant. Whenever necessary, the
Committee may, in the light of the experience of States parties and of the
conclusions which it has drawn therefrom, revise and update its general
comments."
* Contained in document E/1989/22.
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GENERAL COMMENT 1 (Third session, 1989)*
Reporting by States parties
1. The reporting obligations which are contained in part IV of the Covenant
are designed principally to assist each State party in fulfilling its
obligations under the Covenant and, in addition, to provide a basis on which
the Council, assisted by the Committee, can discharge its responsibilities for
monitoring States parties’ compliance with their obligations and for
facilitating the realization of economic, social and cultural rights in
accordance with the provisions of the Covenant. The Committee considers that
it would be incorrect to assume that reporting is essentially only a
procedural matter designed solely to satisfy each State party’s formal
obligation to report to the appropriate international monitoring body. On the
contrary, in accordance with the letter and spirit of the Covenant, the
processes of preparation and submission of reports by States can, and indeed
should, serve to achieve a variety of objectives.
2. A first objective, which is of particular relevance to the initial report
required to be submitted within two years of the Covenant’s entry into force
for the State party concerned, is to ensure that a comprehensive review is
undertaken with respect to national legislation, administrative rules and
procedures, and practices in an effort to ensure the fullest possible
conformity with the Covenant. Such a review might, for example, be undertaken
in conjunction with each of the relevant national ministries or other
authorities responsible for policy-making and implementation in the different
fields covered by the Covenant.
3. A second objective is to ensure that the State party monitors the actual
situation with respect to each of the rights on a regular basis and is thus
aware of the extent to which the various rights are, or are not, being enjoyed
by all individuals within its territory or under its jurisdiction. From the
Committee’s experience to date, it is clear that the fulfilment of this
objective cannot be achieved only by the preparation of aggregate national
statistics or estimates, but also requires that special attention be given to
any worse-off regions or areas and to any specific groups or subgroups which
appear to be particularly vulnerable or disadvantaged. Thus, the essential
first step towards promoting the realization of economic, social and cultural
rights is diagnosis and knowledge of the existing situation. The Committee is
aware that this process of monitoring and gathering information is a
potentially time-consuming and costly one and that international assistance
and cooperation, as provided for in article 2, paragraph 1 and articles 22
and 23 of the Covenant, may well be required in order to enable some States
parties to fulfil the relevant obligations. If that is the case, and the
State party concludes that it does not have the capacity to undertake the
monitoring process which is an integral part of any process designed to
promote accepted goals of public policy and is indispensable to the effective
* Contained in document E/1989/22.
HRI/GEN/1/Rev.1
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implementation of the Covenant, it may note this fact in its report to the
Committee and indicate the nature and extent of any international assistance
that it may need.
4. While monitoring is designed to give a detailed overview of the existing
situation, the principal value of such an overview is to provide the basis for
the elaboration of clearly stated and carefully targeted policies, including
the establishment of priorities which reflect the provisions of the Covenant.
Therefore, a third objective of the reporting process is to enable the
Government to demonstrate that such principled policy-making has in fact been
undertaken. While the Covenant makes this obligation explicit only in
article 14 in cases where "compulsory primary education, free of charge" has
not yet been secured for all, a comparable obligation "to work out and adopt a
detailed plan of action for the progressive implementation" of each of the
rights contained in the Covenant is clearly implied by the obligation in
article 2, paragraph 1 "to take steps ... by all appropriate means ...".
5. A fourth objective of the reporting process it to facilitate public
scrutiny of government policies with respect to economic, social and cultural
rights and to encourage the involvement of the various economic, social and
cultural sectors of society in the formulation, implementation and review of
the relevant policies. In examining reports submitted to it to date, the
Committee has welcomed the fact that a number of States parties, reflecting
different political and economic systems, have encouraged inputs by such
non-governmental groups into the preparation of their reports under the
Covenant. Other States have ensured the widespread dissemination of their
reports with a view to enabling comments to be made by the public at large.
In these ways, the preparation of the report, and its consideration at the
national level can come to be of at least as much value as the constructive
dialogue conducted at the international level between the Committee and
representatives of the reporting State.
6. A fifth objective is to provide a basis on which the State party itself,
as well as the Committee, can effectively evaluate the extent to which
progress has been made towards the realization of the obligations contained in
the Covenant. For this purpose, it may be useful for States to identify
specific benchmarks or goals against which their performance in a given area
can be assessed. Thus, for example, it is generally agreed that it is
important to set specific goals with respect to the reduction of infant
mortality, the extent of vaccination of children, the intake of calories per
person, the number of persons per health-care provider, etc. In many of these
areas, global benchmarks are of limited use, whereas national or other more
specific benchmarks can provide an extremely valuable indication of progress.
7. In this regard, the Committee wishes to note that the Covenant attaches
particular importance to the concept of "progressive realization" of the
relevant rights and, for that reason, the Committee urges States parties to
include in their periodic reports information which shows the progress over
time, with respect to the effective realization of the relevant rights. By
the same token, it is clear that qualitative, as well as quantitative, data
are required in order for an adequate assessment of the situation to be made.
HRI/GEN/1/Rev.1
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8. A sixth objective is to enable the State party itself to develop a better
understanding of the problems and shortcomings encountered in efforts to
realize progressively the full range of economic, social and cultural rights.
For this reason, it is essential that States parties report in detail on the
"factors and difficulties" inhibiting such realization. This process of
identification and recognition of the relevant difficulties then provides the
framework within which more appropriate policies can be devised.
9. A seventh objective is to enable the Committee, and the States parties as
a whole, to facilitate the exchange of information among States and to develop
a better understanding of the common problems faced by States and a fuller
appreciation of the type of measures which might be taken to promote effective
realization of each of the rights contained in the Covenant. This part of the
process also enables the Committee to identify the most appropriate means by
which the international community might assist States, in accordance with
articles 22 and 23 of the Covenant. In order to underline the importance
which the Committee attaches to this objective, a separate general comment on
those articles will be discussed by the Committee at its fourth session.
GENERAL COMMENT 2 (Fourth session, 1990)*
International technical assistance measures (art. 22 of the Covenant)
1. Article 22 of the Covenant establishes a mechanism by which the Economic
and Social Council may bring to the attention of relevant United Nations
bodies any matters arising out of reports submitted under the Covenant "which
may assist such bodies in deciding, each within its field of competence, on
the advisability of international measures likely to contribute to the
effective progressive implementation of the ... Covenant". While the primary
responsibility under article 22 is vested in the Council, it is clearly
appropriate for the Committee on Economic, Social and Cultural Rights to
play an active role in advising and assisting the Council in this regard.
2. Recommendations in accordance with article 22 may be made to any
"organs of the United Nations, their subsidiary organs and specialized
agencies concerned with furnishing technical assistance". The Committee
considers that this provision should be interpreted so as to include
virtually all United Nations organs and agencies involved in any aspect of
international development cooperation. It would therefore be appropriate for
recommendations in accordance with article 22 to be addressed, inter alia, to
the Secretary-General, subsidiary organs of the Council such as the Commission
on Human Rights, the Commission on Social Development and the Commission on
the Status of Women, other bodies such as UNDP, UNICEF and CDP, agencies such
as the World Bank and IMF, and any of the other specialized agencies such as
ILO, FAO, UNESCO and WHO.
3. Article 22 could lead either to recommendations of a general policy
nature or to more narrowly focused recommendations relating to a specific
* Contained in document E/1990/23.
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situation. In the former context, the principal role of the Committee would
seem to be to encourage greater attention to efforts to promote economic,
social and cultural rights within the framework of international development
cooperation activities undertaken by, or with the assistance of, the
United Nations and its agencies. In this regard the Committee notes that
the Commission on Human Rights, in its resolution 1989/13 of 2 March 1989,
invited it "to give consideration to means by which the various United Nations
agencies working in the field of development could best integrate measures
designed to promote full respect for economic, social and cultural rights in
their activities".
4. As a preliminary practical matter, the Committee notes that its own
endeavours would be assisted, and the relevant agencies would also be
better informed, if they were to take a greater interest in the work of the
Committee. While recognizing that such an interest can be demonstrated in a
variety of ways, the Committee observes that attendance by representatives of
the appropriate United Nations bodies at its first four sessions has, with
the notable exceptions of ILO, UNESCO and WHO, been very low. Similarly,
pertinent materials and written information had been received from only a very
limited number of agencies. The Committee considers that a deeper
understanding of the relevance of economic, social and cultural rights in
the context of international development cooperation activities would be
considerably facilitated through greater interaction between the Committee and
the appropriate agencies. At the very least, the day of general discussion on
a specific issue, which the Committee undertakes at each of its sessions,
provides an ideal context in which a potentially productive exchange of views
can be undertaken.
5. On the broader issues of the promotion of respect for human rights in the
context of development activities, the Committee has so far seen only rather
limited evidence of specific efforts by United Nations bodies. It notes with
satisfaction in this regard the initiative taken jointly by the Centre for
Human Rights and UNDP in writing to United Nations Resident Representatives
and other field-based officials, inviting their "suggestions and advice, in
particular with respect to possible forms of cooperation in ongoing projects
[identified] as having a human rights dimension or in new ones in response to
a specific Government’s request". The Committee has also been informed of
longstanding efforts undertaken by ILO to link its own human rights and other
international labour standards to its technical cooperation activities.
6. With respect to such activities, two general principles are important.
The first is that the two sets of human rights are indivisible and
interdependent. This means that efforts to promote one set of rights should
also take full account of the other. United Nations agencies involved in the
promotion of economic, social and cultural rights should do their utmost to
ensure that their activities are fully consistent with the enjoyment of civil
and political rights. In negative terms this means that the international
agencies should scrupulously avoid involvement in projects which, for example,
involve the use of forced labour in contravention of international standards,
or promote or reinforce discrimination against individuals or groups contrary
to the provisions of the Covenant, or involve large-scale evictions or
displacement of persons without the provision of all appropriate protection
and compensation. In positive terms, it means that, wherever possible, the
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agencies should act as advocates of projects and approaches which contribute
not only to economic growth or other broadly defined objectives, but also to
enhanced enjoyment of the full range of human rights.
7. The second principle of general relevance is that development cooperation
activities do not automatically contribute to the promotion of respect for
economic, social and cultural rights. Many activities undertaken in the name
of "development" have subsequently been recognized as ill-conceived and even
counter-productive in human rights terms. In order to reduce the incidence
of such problems, the whole range of issues dealt with in the Covenant
should, wherever possible and appropriate, be given specific and careful
consideration.
8. Despite the importance of seeking to integrate human rights concerns into
development activities, it is true that proposals for such integration can too
easily remain at a level of generality. Thus, in an effort to encourage the
operationalization of the principle contained in article 22 of the Covenant,
the Committee wishes to draw attention to the following specific measures
which merit consideration by the relevant bodies:
(a) As a matter of principle, the appropriate United Nations organs and
agencies should specifically recognize the intimate relationship which should
be established between development activities and efforts to promote respect
for human rights in general, and economic, social and cultural rights in
particular. The Committee notes in this regard the failure of each of the
first three United Nations Development Decade Strategies to recognize that
relationship and urges that the fourth such strategy, to be adopted in 1990,
should rectify that omission;
(b) Consideration should be given by United Nations agencies to the
proposal, made by the Secretary-General in a report of 1979 a/ that a "human
rights impact statement" be required to be prepared in connection with all
major development cooperation activities;
(c) The training or briefing given to project and other personnel
employed by United Nations agencies should include a component dealing with
human rights standards and principles;
(d) Every effort should be made, at each phase of a development
project, to ensure that the rights contained in the Covenants are duly taken
into account. This would apply, for example, in the initial assessment of the
priority needs of a particular country, in the identification of particular
projects, in project design, in the implementation of the project, and in its
final evaluation.
a/ "The international dimensions of the right to development as a human
right in relation with other human rights based on international cooperation,
including the right to peace, taking into account the requirements of the new
international economic order and the fundamental human needs" (E/CN.4/1334,
para. 314).
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9. A matter which has been of particular concern to the Committee in the
examination of the reports of States parties is the adverse impact of the debt
burden and of the relevant adjustment measures on the enjoyment of economic,
social and cultural rights in many countries. The Committee recognizes that
adjustment programmes will often be unavoidable and that these will frequently
involve a major element of austerity. Under such circumstances, however,
endeavours to protect the most basic economic, social and cultural rights
become more, rather than less, urgent. States parties to the Covenant, as
well as the relevant United Nations agencies, should thus make a particular
effort to ensure that such protection is, to the maximum extent possible,
built-in to programmes and policies designed to promote adjustment. Such an
approach, which is sometimes referred to as "adjustment with a human face"
or as promoting "the human dimension of development" requires that the goal
of protecting the rights of the poor and vulnerable should become a basic
objective of economic adjustment. Similarly, international measures to deal
with the debt crisis should take full account of the need to protect economic,
social and cultural rights through, inter alia, international cooperation.
In many situations, this might point to the need for major debt relief
initiatives.
10. Finally, the Committee wishes to draw attention to the important
opportunity provided to States parties, in accordance with article 22 of the
Covenant, to identify in their reports any particular needs they might have
for technical assistance or development cooperation.
GENERAL COMMENT 3 (Fifth session, 1990)*
The nature of States parties obligations (art. 2, para. 1 of the Covenant)
1. Article 2 is of particular importance to a full understanding of the
Covenant and must be seen as having a dynamic relationship with all of the
other provisions of the Covenant. It describes the nature of the general
legal obligations undertaken by States parties to the Covenant. Those
obligations include both what may be termed (following the work of the
International Law Commission) obligations of conduct and obligations of
result. While great emphasis has sometimes been placed on the difference
between the formulations used in this provision and that contained in the
equivalent article 2 of the International Covenant on Civil and Political
Rights, it is not always recognized that there are also significant
similarities. In particular, while the Covenant provides for progressive
realization and acknowledges the constraints due to the limits of available
resources, it also imposes various obligations which are of immediate effect.
Of these, two are of particular importance in understanding the precise
nature of States parties obligations. One of these, which is dealt with in
a separate General Comment, and which is to be considered by the Committee
at its sixth session, is the "undertaking to guarantee" that relevant rights
"will be exercised without discrimination ...".
* Contained in document E/1991/23.
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2. The other is the undertaking in article 2 (1) "to take steps", which in
itself, is not qualified or limited by other considerations. The full meaning
of the phrase can also be gauged by noting some of the different language
versions. In English the undertaking is "to take steps", in French it is "to
act" ("s’engage à agir") and in Spanish it is "to adopt measures" ("a adoptar
medidas"). Thus while the full realization of the relevant rights may be
achieved progressively, steps towards that goal must be taken within a
reasonably short time after the Covenant’s entry into force for the States
concerned. Such steps should be deliberate, concrete and targeted as clearly
as possible towards meeting the obligations recognized in the Covenant.
3. The means which should be used in order to satisfy the obligation to take
steps are stated in article 2 (1) to be "all appropriate means, including
particularly the adoption of legislative measures". The Committee recognizes
that in many instances legislation is highly desirable and in some cases
may even be indispensable. For example, it may be difficult to combat
discrimination effectively in the absence of a sound legislative foundation
for the necessary measures. In fields such as health, the protection of
children and mothers, and education, as well as in respect of the matters
dealt with in articles 6 to 9, legislation may also be an indispensable
element for many purposes.
4. The Committee notes that States parties have generally been conscientious
in detailing at least some of the legislative measures that they have taken
in this regard. It wishes to emphasize, however, that the adoption of
legislative measures, as specifically foreseen by the Covenant, is by no means
exhaustive of the obligations of States parties. Rather, the phrase "by all
appropriate means" must be given its full and natural meaning. While each
State party must decide for itself which means are the most appropriate under
the circumstances with respect to each of the rights, the "appropriateness" of
the means chosen will not always be self-evident. It is therefore desirable
that States parties’ reports should indicate not only the measures that have
been taken but also the basis on which they are considered to be the most
"appropriate" under the circumstances. However, the ultimate determination
as to whether all appropriate measures have been taken remains one for the
Committee to make.
5. Among the measures which might be considered appropriate, in addition
to legislation, is the provision of judicial remedies with respect to rights
which may, in accordance with the national legal system, be considered
justiciable. The Committee notes, for example, that the enjoyment of the
rights recognized, without discrimination, will often be appropriately
promoted, in part, through the provision of judicial or other effective
remedies. Indeed, those States parties which are also parties to the
International Covenant on Civil and Political Rights are already obligated
(by virtue of arts. 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure
that any person whose rights or freedoms (including the right to equality and
non-discrimination) recognized in that Covenant are violated, "shall have an
effective remedy" (art. 2 (3) (a)). In addition, there are a number of other
provisions in the International Covenant on Economic, Social and Cultural
Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4)
HRI/GEN/1/Rev.1
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and 15 (3) which would seem to be capable of immediate application by judicial
and other organs in many national legal systems. Any suggestion that the
provisions indicated are inherently non-self-executing would seem to be
difficult to sustain.
6. Where specific policies aimed directly at the realization of the rights
recognized in the Covenant have been adopted in legislative form, the
Committee would wish to be informed, inter alia, as to whether such laws
create any right of action on behalf of individuals or groups who feel that
their rights are not being fully realized. In cases where constitutional
recognition has been accorded to specific economic, social and cultural
rights, or where the provisions of the Covenant have been incorporated
directly into national law, the Committee would wish to receive information
as to the extent to which these rights are considered to be justiciable
(i.e. able to be invoked before the courts). The Committee would also wish
to receive specific information as to any instances in which existing
constitutional provisions relating to economic, social and cultural rights
have been weakened or significantly changed.
7. Other measures which may also be considered "appropriate" for the
purposes of article 2 (1) include, but are not limited to, administrative,
financial, educational and social measures.
8. The Committee notes that the undertaking "to take steps ... by all
appropriate means including particularly the adoption of legislative measures"
neither requires nor precludes any particular form of government or economic
system being used as the vehicle for the steps in question, provided only
that it is democratic and that all human rights are thereby respected. Thus,
in terms of political and economic systems the Covenant is neutral and its
principles cannot accurately be described as being predicated exclusively
upon the need for, or the desirability of a socialist or a capitalist system,
or a mixed, centrally planned, or laisser-faire economy, or upon any other
particular approach. In this regard, the Committee reaffirms that the rights
recognized in the Covenant are susceptible of realization within the context
of a wide variety of economic and political systems, provided only that the
interdependence and indivisibility of the two sets of human rights, as
affirmed inter alia in the preamble to the Covenant, is recognized and
reflected in the system in question. The Committee also notes the relevance
in this regard of other human rights and in particular the right to
development.
9. The principal obligation of result reflected in article 2 (1) is to take
steps "with a view to achieving progressively the full realization of the
rights recognized" in the Covenant. The term "progressive realization" is
often used to describe the intent of this phrase. The concept of progressive
realization constitutes a recognition of the fact that full realization of all
economic, social and cultural rights will generally not be able to be achieved
in a short period of time. In this sense the obligation differs significantly
from that contained in article 2 of the International Covenant on Civil and
Political Rights which embodies an immediate obligation to respect and ensure
all of the relevant rights. Nevertheless, the fact that realization over
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time, or in other words progressively, is foreseen under the Covenant should
not be misinterpreted as depriving the obligation of all meaningful content.
It is on the one hand a necessary flexibility device, reflecting the realities
of the real world and the difficulties involved for any country in ensuring
full realization of economic, social and cultural rights. On the other hand,
the phrase must be read in the light of the overall objective, indeed the
raison d’être, of the Covenant which is to establish clear obligations for
States parties in respect of the full realization of the rights in question.
It thus imposes an obligation to move as expeditiously and effectively as
possible towards that goal. Moreover, any deliberately retrogressive measures
in that regard would require the most careful consideration and would need to
be fully justified by reference to the totality of the rights provided for in
the Covenant and in the context of the full use of the maximum available
resources.
10. On the basis of the extensive experience gained by the Committee, as
well as by the body that preceded it, over a period of more than a decade of
examining States parties’ reports the Committee is of the view that a minimum
core obligation to ensure the satisfaction of, at the very least, minimum
essential levels of each of the rights is incumbent upon every State party.
Thus, for example, a State party in which any significant number of
individuals is deprived of essential foodstuffs, of essential primary health
care, of basic shelter and housing, or of the most basic forms of education
is, prima facie, failing to discharge its obligations under the Covenant. If
the Covenant were to be read in such a way as not to establish such a minimum
core obligation, it would be largely deprived of its raison d’être. By the
same token, it must be noted that any assessment as to whether a State has
discharged its minimum core obligation must also take account of resource
constraints applying within the country concerned. Article 2 (1) obligates
each State party to take the necessary steps "to the maximum of its available
resources". In order for a State party to be able to attribute its failure to
meet at least its minimum core obligations to a lack of available resources it
must demonstrate that every effort has been made to use all resources that are
at its disposition in an effort to satisfy, as a matter of priority, those
minimum obligations.
11. The Committee wishes to emphasize, however, that even where the available
resources are demonstrably inadequate, the obligation remains for a State
party to strive to ensure the widest possible enjoyment of the relevant rights
under the prevailing circumstances. Moreover, the obligations to monitor
the extent of the realization, or more especially of the non-realization, of
economic, social and cultural rights, and to devise strategies and programmes
for their promotion, are not in any way eliminated as a result of resource
constraints. The Committee has already dealt with these issues in its
General Comment 1 (1989).
12. Similarly, the Committee underlines the fact that even in times of severe
resources constraints whether caused by a process of adjustment, of economic
recession, or by other factors the vulnerable members of society can and
indeed must be protected by the adoption of relatively low-cost targeted
programmes. In support of this approach the Committee takes note of the
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analysis prepared by UNICEF entitled "Adjustment with a human face:
protecting the vulnerable and promoting growth, a/ the analysis by UNDP in
its Human Development Report 1990 b/ and the analysis by the World Bank in
the World Development Report 1990. c/
13. A final element of article 2 (1), to which attention must be drawn,
is that the undertaking given by all States parties is "to take steps,
individually and through international assistance and cooperation, especially
economic and technical ...". The Committee notes that the phrase "to the
maximum of its available resources" was intended by the drafters of the
Covenant to refer to both the resources existing within a State and those
available from the international community through international cooperation
and assistance. Moreover, the essential role of such cooperation in
facilitating the full realization of the relevant rights is further
underlined by the specific provisions contained in articles 11, 15, 22 and 23.
With respect to article 22 the Committee has already drawn attention, in
General Comment 2 (1990), to some of the opportunities and responsibilities
that exist in relation to international cooperation. Article 23 also
specifically identifies "the furnishing of technical assistance" as well as
other activities, as being among the means of "international action for the
achievement of the rights recognized ...".
14. The Committee wishes to emphasize that in accordance with Articles 55
and 56 of the Charter of the United Nations, with well-established principles
of international law, and with the provisions of the Covenant itself,
international cooperation for development and thus for the realization of
economic, social and cultural rights is an obligation of all States. It is
particularly incumbent upon those States which are in a position to assist
others in this regard. The Committee notes in particular the importance of
the Declaration on the Right to Development adopted by the General Assembly
in its resolution 41/128 of 4 December 1986 and the need for States parties
to take full account of all of the principles recognized therein. It
emphasizes that, in the absence of an active programme of international
assistance and cooperation on the part of all those States that are in a
position to undertake one, the full realization of economic, social and
cultural rights will remain an unfulfilled aspiration in many countries.
In this respect, the Committee also recalls the terms of its General
Comment 2 (1990).
a/ G.A. Cornia, R. Jolly and F. Stewart, eds., Oxford, Clarendon
Press, 1987.
b/ Oxford, Oxford University Press, 1990.
c/ Oxford, Oxford University Press, 1990.
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GENERAL COMMENT 4 (Sixth session, 1991)*
The right to adequate housing (art. 11 (1) of the Covenant)
1. Pursuant to article 11 (1) of the Covenant, States parties "recognize
the right of everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions". The human right to adequate housing,
which is thus derived from the right to an adequate standard of living, is
of central importance for the enjoyment of all economic, social and cultural
rights.
2. The Committee has been able to accumulate a large amount of information
pertaining to this right. Since 1979, the Committee and its predecessors have
examined 75 reports dealing with the right to adequate housing. The Committee
has also devoted a day of general discussion to the issue at each of its third
(see E/1989/22, para. 312) and fourth sessions (E/1990/23, paras. 281-285).
In addition, the Committee has taken careful note of information generated by
the International Year of Shelter for the Homeless (1987) including the Global
Strategy for Shelter to the Year 2000 adopted by the General Assembly in its
resolution 42/191 of 11 December 1987. a/ The Committee has also reviewed
relevant reports and other documentation of the Commission on Human Rights
and the Sub-Commission on Prevention of Discrimination and Protection of
Minorities. b/
3. Although a wide variety of international instruments address the
different dimensions of the right to adequate housing c/ article 11 (1) of
the Covenant is the most comprehensive and perhaps the most important of the
relevant provisions.
* Contained in document E/1992/23.
a/ Official Records of the General Assembly, Forty-third Session,
Supplement No. 8, addendum (A/43/8/Add.1).
b/ Commission on Human Rights resolutions 1986/36 and 1987/22;
reports by Mr. Danilo Türk, Special Rapporteur of the Sub-Commission
(E/CN.4/Sub.2/1990/19, paras. 108-120; E/CN.4/Sub.2/1991/17, paras. 137-139);
see also Sub-Commission resolution 1991/26.
c/ See, for example, article 25 (1) of the Universal Declaration on
Human Rights, article 5 (e) (iii) of the International Convention on the
Elimination of All Forms of Racial Discrimination, article 14 (2) of the
Convention on the Elimination of All Forms of Discrimination against Women,
article 27 (3) of the Convention on the Rights of the Child, article 10 of
the Declaration on Social Progress and Development, section III (8) of the
Vancouver Declaration on Human Settlements, 1976 (Report of Habitat:
United Nations Conference on Human Settlements (United Nations publication,
Sales No. E.76.IV.7 and corrigendum), chap. I), article 8 (1) of the
Declaration on the Right to Development and the ILO Recommendation Concerning
Workers’ Housing, 1961 (No. 115).
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4. Despite the fact that the international community has frequently
reaffirmed the importance of full respect for the right to adequate housing,
there remains a disturbingly large gap between the standards set in
article 11 (1) of the Covenant and the situation prevailing in many parts
of the world. While the problems are often particularly acute in some
developing countries which confront major resource and other constraints,
the Committee observes that significant problems of homelessness and
inadequate housing also exist in some of the most economically developed
societies. The United Nations estimates that there are over 100 million
persons homeless worldwide and over 1 billion inadequately housed. d/ There
is no indication that this number is decreasing. It seems clear that no State
party is free of significant problems of one kind or another in relation to
the right to housing.
5. In some instances, the reports of States parties examined by the
Committee have acknowledged and described difficulties in ensuring the right
to adequate housing. For the most part, however, the information provided has
been insufficient to enable the Committee to obtain an adequate picture of the
situation prevailing in the State concerned. This General Comment thus aims
to identify some of the principal issues which the Committee considers to be
important in relation to this right.
6. The right to adequate housing applies to everyone. While the reference
to "himself and his family" reflects assumptions as to gender roles and
economic activity patterns commonly accepted in 1966 when the Covenant was
adopted, the phrase cannot be read today as implying any limitations upon the
applicability of the right to individuals or to female-headed households or
other such groups. Thus, the concept of "family" must be understood in a wide
sense. Further, individuals, as well as families, are entitled to adequate
housing regardless of age, economic status, group or other affiliation or
status and other such factors. In particular, enjoyment of this right must,
in accordance with article 2 (2) of the Covenant, not be subject to any form
of discrimination.
7. In the Committee’s view, the right to housing should not be interpreted
in a narrow or restrictive sense which equates it with, for example, the
shelter provided by merely having a roof over one’s head or views shelter
exclusively as a commodity. Rather it should be seen as the right to live
somewhere in security, peace and dignity. This is appropriate for at least
two reasons. In the first place, the right to housing is integrally linked
to other human rights and to the fundamental principles upon which the
Covenant is premised. This "the inherent dignity of the human person"
from which the rights in the Covenant are said to derive requires that the
term "housing" be interpreted so as to take account of a variety of other
considerations, most importantly that the right to housing should be ensured
to all persons irrespective of income or access to economic resources.
Secondly, the reference in article 11 (1) must be read as referring not
just to housing but to adequate housing. As both the Commission on Human
Settlements and the Global Strategy for Shelter to the Year 2000 have stated:
d/ See footnote a/.
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"Adequate shelter means ... adequate privacy, adequate space, adequate
security, adequate lighting and ventilation, adequate basic infrastructure
and adequate location with regard to work and basic facilities - all at a
reasonable cost".
8. Thus the concept of adequacy is particularly significant in relation to
the right to housing since it serves to underline a number of factors which
must be taken into account in determining whether particular forms of shelter
can be considered to constitute "adequate housing" for the purposes of the
Covenant. While adequacy is determined in part by social, economic, cultural,
climatic, ecological and other factors, the Committee believes that it is
nevertheless possible to identify certain aspects of the right that must be
taken into account for this purpose in any particular context. They include
the following:
(a) Legal security of tenure. Tenure takes a variety of forms,
including rental (public and private) accommodation, cooperative housing,
lease, owner-occupation, emergency housing and informal settlements, including
occupation of land or property. Notwithstanding the type of tenure, all
persons should possess a degree of security of tenure which guarantees legal
protection against forced eviction, harassment and other threats. States
parties should consequently take immediate measures aimed at conferring legal
security of tenure upon those persons and households currently lacking such
protection, in genuine consultation with affected persons and groups;
(b) Availability of services, materials, facilities and infrastructure.
An adequate house must contain certain facilities essential for health,
security, comfort and nutrition. All beneficiaries of the right to adequate
housing should have sustainable access to natural and common resources, safe
drinking water, energy for cooking, heating and lighting, sanitation and
washing facilities, means of food storage, refuse disposal, site drainage
and emergency services;
(c) Affordability. Personal or household financial costs associated
with housing should be at such a level that the attainment and satisfaction of
other basic needs are not threatened or compromised. Steps should be taken by
States parties to ensure that the percentage of housing-related costs is, in
general, commensurate with income levels. States parties should establish
housing subsidies for those unable to obtain affordable housing, as well as
forms and levels of housing finance which adequately reflect housing needs.
In accordance with the principle of affordability, tenants should be protected
by appropriate means against unreasonable rent levels or rent increases. In
societies where natural materials constitute the chief sources of building
materials for housing, steps should be taken by States parties to ensure the
availability of such materials;
(d) Habitability. Adequate housing must be habitable, in terms of
providing the inhabitants with adequate space and protecting them from cold,
damp, heat, rain, wind or other threats to health, structural hazards, and
disease vectors. The physical safety of occupants must be guaranteed as well.
The Committee encourages States parties to comprehensively apply the Health
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Principles of Housing e/ prepared by WHO which view housing as the
environmental factor most frequently associated with conditions for disease in
epidemiological analyses; i.e. inadequate and deficient housing and living
conditions are invariably associated with higher mortality and morbidity
rates;
(e) Accessibility. Adequate housing must be accessible to those
entitled to it. Disadvantaged groups must be accorded full and sustainable
access to adequate housing resources. Thus, such disadvantaged groups as the
elderly, children, the physically disabled, the terminally ill, HIV-positive
individuals, persons with persistent medical problems, the mentally ill,
victims of natural disasters, people living in disaster-prone areas and other
groups should be ensured some degree of priority consideration in the housing
sphere. Both housing law and policy should take fully into account the
special housing needs of these groups. Within many States parties increasing
access to land by landless or impoverished segments of the society should
constitute a central policy goal. Discernible governmental obligations need
to be developed aiming to substantiate the right of all to a secure place to
live in peace and dignity, including access to land as an entitlement;
(f) Location. Adequate housing must be in a location which allows
access to employment options, health-care services, schools, child-care
centres and other social facilities. This is true both in large cities and in
rural areas where the temporal and financial costs of getting to and from the
place of work can place excessive demands upon the budgets of poor households.
Similarly, housing should not be built on polluted sites nor in immediate
proximity to pollution sources that threaten the right to health of the
inhabitants;
(g) Cultural adequacy. The way housing is constructed, the building
materials used and the policies supporting these must appropriately enable the
expression of cultural identity and diversity of housing. Activities geared
towards development or modernization in the housing sphere should ensure that
the cultural dimensions of housing are not sacrificed, and that, inter alia,
modern technological facilities, as appropriate are also ensured.
9. As noted above, the right to adequate housing cannot be viewed in
isolation from other human rights contained in the two International Covenants
and other applicable international instruments. Reference has already been
made in this regard to the concept of human dignity and the principle of
non-discrimination. In addition, the full enjoyment of other rights - such
as the right to freedom of expression, the right to freedom of association
(such as for tenants and other community-based groups), the right to freedom
of residence and the right to participate in public decision-making - is
indispensable if the right to adequate housing is to be realized and
maintained by all groups in society. Similarly, the right not to be subjected
to arbitrary or unlawful interference with one’s privacy, family, home or
correspondence constitutes a very important dimension in defining the right to
adequate housing.
e/ Geneva, World Health Organization, 1990.
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10. Regardless of the state of development of any country, there are certain
steps which must be taken immediately. As recognized in the Global Strategy
for Shelter and in other international analyses, many of the measures required
to promote the right to housing would only require the abstention by the
Government from certain practices and a commitment to facilitating "self-help"
by affected groups. To the extent that any such steps are considered to be
beyond the maximum resources available to a State party, it is appropriate
that a request be made as soon as possible for international cooperation in
accordance with articles 11 (1), 22 and 23 of the Covenant, and that the
Committee be informed thereof.
11. States parties must give due priority to those social groups living in
unfavourable conditions by giving them particular consideration. Policies
and legislation should correspondingly not be designed to benefit already
advantaged social groups at the expense of others. The Committee is aware
that external factors can affect the right to a continuous improvement of
living conditions, and that in many States parties overall living conditions
declined during the 1980s. However, as noted by the Committee in its General
Comment 2 (1990) (E/1990/23, annex III), despite externally caused problems,
the obligations under the Covenant continue to apply and are perhaps even more
pertinent during times of economic contraction. It would thus appear to the
Committee that a general decline in living and housing conditions, directly
attributable to policy and legislative decisions by States parties, and in the
absence of accompanying compensatory measures, would be inconsistent with the
obligations under the Covenant.
12. While the most appropriate means of achieving the full realization of the
right to adequate housing will inevitably vary significantly from one State
party to another, the Covenant clearly requires that each State party take
whatever steps are necessary for that purpose. This will almost invariably
require the adoption of a national housing strategy which, as stated in
paragraph 32 of the Global Strategy for Shelter, "defines the objectives for
the development of shelter conditions, identifies the resources available to
meet these goals and the most cost-effective way of using them and sets out
the responsibilities and time-frame for the implementation of the necessary
measures". Both for reasons of relevance and effectiveness, as well as in
order to ensure respect for other human rights, such a strategy should
reflect extensive genuine consultation with, and participation by, all of
those affected, including the homeless, the inadequately housed and their
representatives. Furthermore, steps should be taken to ensure coordination
between ministries and regional and local authorities in order to reconcile
related policies (economics, agriculture, environment, energy, etc.) with the
obligations under article 11 of the Covenant.
13. Effective monitoring of the situation with respect to housing is another
obligation of immediate effect. For a State party to satisfy its obligations
under article 11 (1) it must demonstrate, inter alia, that it has taken
whatever steps are necessary, either alone or on the basis of international
cooperation, to ascertain the full extent of homelessness and inadequate
housing within its jurisdiction. In this regard, the revised general
guidelines regarding the form and contents of reports adopted by the Committee
(E/C.12/1991/1) emphasize the need to "provide detailed information about
those groups within ... society that are vulnerable and disadvantaged with
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regard to housing". They include, in particular, homeless persons and
families, those inadequately housed and without ready access to basic
amenities, those living in "illegal" settlements, those subject to forced
evictions and low-income groups.
14. Measures designed to satisfy a State party’s obligations in respect of
the right to adequate housing may reflect whatever mix of public and private
sector measures considered appropriate. While in some States public financing
of housing might most usefully be spent on direct construction of new housing,
in most cases, experience has shown the inability of Governments to fully
satisfy housing deficits with publicly built housing. The promotion by
States parties of "enabling strategies", combined with a full commitment to
obligations under the right to adequate housing, should thus be encouraged.
In essence, the obligation is to demonstrate that, in aggregate, the measures
being taken are sufficient to realize the right for every individual in the
shortest possible time in accordance with the maximum of available resources.
15. Many of the measures that will be required will involve resource
allocations and policy initiatives of a general kind. Nevertheless, the role
of formal legislative and administrative measures should not be underestimated
in this context. The Global Strategy for Shelter (paras. 66-67) has drawn
attention to the types of measures that might be taken in this regard and to
their importance.
16. In some States, the right to adequate housing is constitutionally
entrenched. In such cases the Committee is particularly interested in
learning of the legal and practical significance of such an approach. Details
of specific cases and of other ways in which entrenchment has proved helpful
should thus be provided.
17. The Committee views many component elements of the right to adequate
housing as being at least consistent with the provision of domestic legal
remedies. Depending on the legal system, such areas might include, but are
not limited to: (a) legal appeals aimed at preventing planned evictions or
demolitions through the issuance of court-ordered injunctions; (b) legal
procedures seeking compensation following an illegal eviction; (c) complaints
against illegal actions carried out or supported by landlords (whether public
or private) in relation to rent levels, dwelling maintenance, and racial or
other forms of discrimination; (d) allegations of any form of discrimination
in the allocation and availability of access to housing; and (e) complaints
against landlords concerning unhealthy or inadequate housing conditions. In
some legal systems it would also be appropriate to explore the possibility of
facilitating class action suits in situations involving significantly
increased levels of homelessness.
18. In this regard, the Committee considers that instances of forced eviction
are prima facie incompatible with the requirements of the Covenant and can
only be justified in the most exceptional circumstances, and in accordance
with the relevant principles of international law.
19. Finally, article 11 (1) concludes with the obligation of States parties
to recognize "the essential importance of international cooperation based on
free consent". Traditionally, less than 5 per cent of all international
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assistance has been directed towards housing or human settlements, and often
the manner by which such funding is provided does little to address the
housing needs of disadvantaged groups. States parties, both recipients and
providers, should ensure that a substantial proportion of financing is devoted
to creating conditions leading to a higher number of persons being adequately
housed. International financial institutions promoting measures of structural
adjustment should ensure that such measures do not compromise the enjoyment of
the right to adequate housing. States parties should, when contemplating
international financial cooperation, seek to indicate areas relevant to the
right to adequate housing where external financing would have the most effect.
Such requests should take full account of the needs and views of the affected
groups.
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III
GENERAL RECOMMENDATIONS
adopted by the Committee on the Elimination of
Racial Discrimination
According to article 9, paragraph 2, of the International Convention on
the Elimination of All Forms of Racial Discrimination, the Committee may make
suggestions and general recommendations based on the examination of the
reports and information received from the States parties. Such suggestions
and general recommendations shall be reported to the General Assembly together
with comments, if any, from States parties. The Committee has so far adopted
a total of 18 general recommendations.
General Recommendation I (Fifth session, 1972)*
On the basis of the consideration at its fifth session of reports
submitted by States parties under article 9 of the International Convention
on the Elimination of All Forms of Racial Discrimination, the Committee
found that the legislation of a number of States parties did not include
the provisions envisaged in article 4 (a) and (b) of the Convention, the
implementation of which (with due regard to the principles embodied in the
Universal Declaration of Human Rights and the rights expressly set forth in
article 5 of the Convention) is obligatory under the Convention for all States
parties.
The Committee accordingly recommends that the States parties whose
legislation was deficient in this respect should consider, in accordance with
their national legislative procedures, the question of supplementing their
legislation with provisions conforming to the requirements of article 4 (a)
and (b) of the Convention.
General Recommendation II (Fifth session, 1972)*
The Committee has considered some reports from States parties which
expressed or implied the belief that the information mentioned in the
Committee’s communication of 28 January 1970 (CERD/C/R.12), need not be
supplied by States parties on whose territories racial discrimination does not
exist.
However, inasmuch as, in accordance with article 9, paragraph 1, of
the International Convention on the Elimination of All Forms of Racial
Discrimination, all States parties undertake to submit reports on the
measures that they have adopted and that give effect to the provisions of
the Convention and, since all the categories of information listed in the
Committee’s communication of 28 January 1970 refer to obligations undertaken
by the States parties under the Convention, that communication is addressed to
all States parties without distinction, whether or not racial discrimination
exists in their respective territories. The Committee welcomes the inclusion
* Contained in document A/8718.
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in the reports from all States parties, which have not done so, of the
necessary information in conformity with all the headings set out in the
aforementioned communication of the Committee.
General Recommendation III (Sixth session, 1972)*
The Committee has considered some reports from States parties containing
information about measures taken to implement resolutions of United Nations
organs concerning relations with the racist regimes in southern Africa.
The Committee notes that, in the tenth paragraph of the preamble to
the International Convention on the Elimination of All Forms of Racial
Discrimination, States parties have "resolved", inter alia, "to build an
international community free from all forms of racial segregation and racial
discrimination".
It notes also that, in article 3 of the Convention, "States parties
particularly condemn racial segregation and apartheid".
Furthermore, the Committee notes that, in resolution 2784 (XXVI),
section III, the General Assembly, immediately after taking note with
appreciation of the Committee’s second annual report and endorsing certain
opinions and recommendations, submitted by it, proceeded to call upon "all the
trading partners of South Africa to abstain from any action that constitutes
an encouragement to the continued violation of the principles and objectives
of the International Convention on the Elimination of All Forms of Racial
Discrimination by South Africa and the illegal regime in Southern Rhodesia".
The Committee expresses the view that measures adopted on the national
level to give effect to the provisions of the Convention are interrelated with
measures taken on the international level to encourage respect everywhere for
the principles of the Convention.
The Committee welcomes the inclusion in the reports submitted under
article 9, paragraph 1, of the Convention, by any State Party which chooses to
do so, of information regarding the status of its diplomatic, economic and
other relations with the racist regimes in southern Africa.
General Recommendation IV (Eighth session, 1973)**
The Committee on the Elimination of Racial Discrimination,
Having considered reports submitted by States parties under article 9 of
the International Convention on the Elimination of All Forms of Racial
Discrimination at its seventh and eighth sessions,
* Contained in document A/8718.
** Contained in document A/9018.
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Bearing in mind the need for the reports sent by States parties to the
Committee to be as informative as possible,
Invites States parties to endeavour to include in their reports under
article 9 relevant information on the demographic composition of the
population referred to in the provisions of article 1 of the Convention.
General Recommendation V (Fifteenth session, 1977)*
The Committee on the Elimination of Racial Discrimination,
Bearing in mind the provisions of articles 7 and 9 of the International
Convention on the Elimination of All Forms of Racial Discrimination,
Convinced that combating prejudices which lead to racial discrimination,
promoting understanding, tolerance and friendship among racial and ethnic
groups, and propagating the principles and purposes of the Charter of the
United Nations and of the human rights declarations and other relevant
instruments adopted by the General Assembly of the United Nations, are
important and effective means of eliminating racial discrimination,
Considering that the obligations under article 7 of the Convention, which
are binding on all States parties, must be fulfilled by them, including States
which declare that racial discrimination is not practised on the territories
under their jurisdiction, and that therefore all States parties are required
to include information on their implementation of the provisions of that
article in the reports they submit in accordance with article 9, paragraph 1,
of the Convention,
Noting with regret that few States parties have included, in the
reports they have submitted in accordance with article 9 of the Convention,
information on the measures which they have adopted and which give effect to
the provisions of article 7 of the Convention, and that that information has
often been general and perfunctory,
Recalling that, in accordance with article 9, paragraph 1, of the
Convention, the Committee may request further information from the States
parties,
1. Requests every State party which has not already done so to
include - in the next report it will submit in accordance with article 9 of
the Convention, or in a special report before its next periodic report becomes
due - adequate information on the measures which it has adopted and which give
effect to the provisions of article 7 of the Convention;
2. Invites the attention of States parties to the fact that, in
accordance with article 7 of the Convention, the information to which the
* Contained in document A/32/18.
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preceding paragraph refers should include information on the "immediate and
effective measures" which they have adopted, "in the fields of teaching,
education, culture and information", with a view to:
(a) "combating prejudices which lead to racial discrimination";
(b) "Promoting understanding, tolerance and friendship among nations
and racial or ethnical groups";
(c) "Propagating the purposes and principles of the Charter of the
United Nations, the Universal Declaration of Human Rights, the United Nations
Declaration on the Elimination of All Forms of Racial Discrimination" as well
as the International Convention on the Elimination of All Forms of Racial
Discrimination.
General Recommendation VI (Twenty-fifth session, 1982)*
The Committee on the Elimination of Racial Discrimination,
Recognizing the fact that an impressive number of States has ratified, or
acceded to, the International Convention on the Elimination of All Forms of
Racial Discrimination,
Bearing in mind, however, that ratification alone does not enable the
control system set up by the Convention to function effectively,
Recalling that article 9 of the Convention obliges States parties to
submit initial and periodic reports on the measures that give effect to the
provisions of the Convention,
Stating that at present no less than 89 reports are overdue from 62
States, that 42 of those reports are overdue from 15 States, each with two
or more outstanding reports, and that four initial reports which were due
between 1973 and 1978 have not been received,
Noting with regret that neither reminders sent through the
Secretary-General to States parties nor the inclusion of the relevant
information in the annual reports to the General Assembly has had the desired
effect, in all cases,
Invites the General Assembly:
(a) to take note of the situation;
(b) to use its authority in order to ensure that the Committee could
more effectively fulfil its obligations under the Convention.
* Contained in document A/37/18.
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General Recommendation VII relating to the implementation of article 4 of the
Convention (Thirty-second session, 1985)*
The Committee on the Elimination of Racial Discrimination,
Having considered periodic reports of States parties for a period of
16 years, and in over 100 cases sixth, seventh and eighth periodic reports of
States parties,
Recalling and reaffirming its General Recommendation I of
24 February 1972 and its decision 3 (VII) of 4 May 1973,
Noting with satisfaction that in a number of reports States parties have
provided information on specific cases dealing with the implementation of
article 4 of the Convention with regard to acts of racial discrimination,
Noting, however, that in a number of States parties the necessary
legislation to implement article 4 of the Convention has not been enacted,
and that many States parties have not yet fulfilled all the requirements of
article 4 (a) and (b) of the Convention,
Further recalling that, in accordance with the first paragraph of
article 4, States parties "undertake to adopt immediate and positive measures
designed to eradicate all incitement to, or acts of, such discrimination",
with due regard to the principles embodied in the Universal Declaration of
Human Rights and the rights expressly set forth in article 5 of the
Convention,
Bearing in mind the preventive aspects of article 4 to deter racism
and racial discrimination as well as activities aimed at their promotion or
incitement,
1. Recommends that those States parties whose legislation does not
satisfy the provisions of article 4 (a) and (b) of the Convention take the
necessary steps with a view to satisfying the mandatory requirements of that
article;
2. Requests that those States parties which have not yet done so
inform the Committee more fully in their periodic reports of the manner and
extent to which the provisions of article 4 (a) and (b) are effectively
implemented and quote the relevant parts of the texts in their reports;
3. Further requests those States parties which have not yet done so to
endeavour to provide in their periodic reports more information concerning
decisions taken by the competent national tribunals and other State
institutions regarding acts of racial discrimination and in particular those
offences dealt with in article 4 (a) and (b).
* Contained in document A/40/18.
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General Recommendation VIII concerning the interpretation and application
of article 1, paragraphs 1 and 4, of the Convention
(Thirty-eighth session, 1990)*
The Committee on the Elimination of Racial Discrimination,
Having considered reports from States parties concerning information
about the ways in which individuals are identified as being members of a
particular racial or ethnic groups or groups,
Is of the opinion that such identification shall, if no justification
exists to the contrary, be based upon self-identification by the individual
concerned.
General Recommendation IX concerning the application of article 8,
paragraph 1, of the Convention (Thirty-eighth session, 1990)*
The Committee on the Elimination of Racial Discrimination,
Considering that respect for the independence of the experts is essential
to secure full observance of human rights and fundamental freedoms,
Recalling article 8, paragraph 1, of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Alarmed by the tendency of the representatives of States, organizations
and groups to put pressure upon experts, especially those serving as country
rapporteurs,
Strongly recommends that they respect unreservedly the status of its
members as independent experts of acknowledged impartiality serving in their
personal capacity.
General Recommendation X concerning technical assistance
(Thirty-ninth session, 1991)**
The Committee on the Elimination of Racial Discrimination,
Taking note of the recommendation of the third meeting of persons
chairing the human rights treaty bodies, as endorsed by the General Assembly
at its forty-fifth session, to the effect that a series of seminars or
workshops should be organized at the national level for the purpose of
training those involved in the preparation of State party reports,
Concerned over the continued failure of certain States parties to the
International Convention on the Elimination of All Forms of Racial
Discrimination to meet their reporting obligations under the Convention,
* Contained in document A/45/18.
** Contained in document A/46/18.
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Believing that training courses and workshops organized on the national
level might prove of immeasurable assistance to officials responsible for the
preparation of such State party reports,
1. Requests the Secretary-General to organize, in consultation with
the States parties concerned, appropriate national training courses and
workshops for their reporting officials as soon as practicable;
2. Recommends that the services of the staff of the Centre for Human
Rights as well as of the experts of the Committee on the Elimination of Racial
Discrimination should be utilized, as appropriate, in the conduct of such
training courses and workshops.
General Recommendation XI on non-citizens (Forty-second session, 1993)*
1. Article 1, paragraph 1, of the International Convention on the
Elimination of All Forms of Racial Discrimination defines racial
discrimination. Article 1, paragraph 2, excepts from this definition actions
by a State party which differentiate between citizens and non-citizens.
Article 1, paragraph 3, qualifies article 1, paragraph 2, by declaring that,
among non-citizens, States parties may not discriminate against any particular
nationality.
2. The Committee has noted that article 1, paragraph 2, has on occasion
been interpreted as absolving States parties from any obligation to report
on matters relating to legislation on foreigners. The Committee therefore
affirms that States parties are under an obligation to report fully upon
legislation on foreigners and its implementation.
3. The Committee further affirms that article 1, paragraph 2, must not be
interpreted to detract in any way from the rights and freedoms recognized and
enunciated in other instruments, especially the Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights and
the International Covenant on Civil and Political Rights.
General Recommendation XII on successor States (Forty-second session, 1993)*
The Committee on the Elimination of Racial Discrimination,
Emphasizing the importance of universal participation of States in
the International Convention on the Elimination of All Forms of Racial
Discrimination,
Taking into account the emergence of successor States as a result of the
dissolution of States,
1. Encourages successor States that have not yet done so to confirm to
the Secretary-General, as depositary of the International Convention on the
* Contained in document A/48/18.
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Elimination of All Forms of Racial Discrimination, that they continue to be
bound by obligations under that Convention, if predecessor States were parties
to it;
2. Invites successor States that have not yet done so to accede to
the International Convention on the Elimination of All Forms of Racial
Discrimination if predecessor States were not parties to it;
3. Invites successor States to consider the importance of making the
declaration under article 14, paragraph 1, of the International Convention
on the Elimination of All Forms of Racial Discrimination, recognizing the
competence of the Committee on the Elimination of Racial Discrimination to
receive and consider individual communications.
General Recommendation XIII on the training of law enforcement officials in
the protection of human rights (Forty-second session, 1993)*
1. In accordance with article 2, paragraph 1, of the International
Convention on the Elimination of All Forms of Racial Discrimination, States
parties have undertaken that all public authorities and public institutions,
national and local, will not engage in any practice of racial discrimination;
further, States parties have undertaken to guarantee the rights listed in
article 5 of the Convention to everyone without distinction as to race, colour
or national or ethnic origin.
2. The fulfilment of these obligations very much depends upon national
law enforcement officials who exercise police powers, especially the powers
of detention or arrest, and upon whether they are properly informed about
the obligations their State has entered into under the Convention. Law
enforcement officials should receive intensive training to ensure that in the
performance of their duties they respect as well as protect human dignity and
maintain and uphold the human rights of all persons without distinction as to
race, colour or national or ethnic origin.
3. In the implementation of article 7 of the Convention, the Committee calls
upon States parties to review and improve the training of law enforcement
officials so that the standards of the Convention as well as the Code of
Conduct for Law Enforcement Officials (1979) are fully implemented. They
should also include respective information thereupon in their periodic
reports.
General Recommendation XIV on article 1, paragraph 1, of the Convention
(Forty-second session, 1993)*
1. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitutes a basic
principle in the protection of human rights. The Committee wishes to draw the
attention of States parties to certain features of the definition of racial
discrimination in article 1, paragraph 1, of the International Convention on
* Contained in document A/48/18.
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the Elimination of All Forms of Racial Discrimination. It is of the opinion
that the words "based on" do not bear any meaning different from "on the
grounds of" in preambular paragraph 7. A distinction is contrary to the
Convention if it has either the purpose or the effect of impairing particular
rights and freedoms This is confirmed by the obligation placed upon States
parties by article 2, paragraph 1 (c), to nullify any law or practice which
has the effect of creating or perpetuating racial discrimination.
2. The Committee observes that a differentiation of treatment will not
constitute discrimination if the criteria for such differentiation, judged
against the objectives and purposes of the Convention, are legitimate or fall
within the scope of article 1, paragraph 4, of the Convention. In considering
the criteria that may have been employed, the Committee will acknowledge that
particular actions may have varied purposes. In seeking to determine whether
an action has an effect contrary to the Convention, it will look to see
whether that action has an unjustifiable disparate impact upon a group
distinguished by race, colour, descent, or national or ethnic origin.
3. Article 1, paragraph 1, of the Convention also refers to the political,
economic, social and cultural fields; the related rights and freedoms are set
up in article 5.
General Recommendation XV on article 4 of the Convention
(Forty-second session, 1993)*
1. When the International Convention on the Elimination of All Forms of
Racial Discrimination was being adopted, article 4 was regarded as central
to the struggle against racial discrimination. At that time, there was a
widespread fear of the revival of authoritarian ideologies. The proscription
of the dissemination of ideas of racial superiority, and of organized activity
likely to incite persons to racial violence, was properly regarded as crucial.
Since that time, the Committee has received evidence of organized violence
based on ethnic origin and the political exploitation of ethnic difference.
As a result, implementation of article 4 is now of increased importance.
2. The Committee recalls its General Recommendation VII in which it
explained that the provisions of article 4 are of a mandatory character. To
satisfy these obligations, States parties have not only to enact appropriate
legislation but also to ensure that it is effectively enforced. Because
threats and acts of racial violence easily lead to other such acts and
generate an atmosphere of hostility, only immediate intervention can meet
the obligations of effective response.
3. Article 4 (a) requires States parties to penalize four categories of
misconduct: (i) dissemination of ideas based upon racial superiority or
hatred; (ii) incitement to racial hatred; (iii) acts of violence against
any race or group of persons of another colour or ethnic origin; and
(iv) incitement to such acts.
* Contained in document A/48/18.
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4. In the opinion of the Committee, the prohibition of the dissemination
of all ideas based upon racial superiority or hatred is compatible with the
right to freedom of opinion and expression. This right is embodied in
article 19 of the Universal Declaration of Human Rights and is recalled in
article 5 (d) (viii) of the International Convention on the Elimination of All
Forms of Racial Discrimination. Its relevance to article 4 is noted in the
article itself. The citizen’s exercise of this right carries special duties
and responsibilities, specified in article 29, paragraph 2, of the Universal
Declaration, among which the obligation not to disseminate racist ideas is of
particular importance. The Committee wishes, furthermore, to draw to the
attention of States parties article 20 of the International Covenant on Civil
and Political Rights, according to which any advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.
5. Article 4 (a) also penalizes the financing of racist activities, which
the Committee takes to include all the activities mentioned in paragraph 3
above, that is to say, activities deriving from ethnic as well as racial
differences. The Committee calls upon States parties to investigate whether
their national law and its implementation meet this requirement.
6. Some States have maintained that in their legal order it is inappropriate
to declare illegal an organization before its members have promoted or incited
racial discrimination. The Committee is of the opinion that article 4 (b)
places a greater burden upon such States to be vigilant in proceeding against
such organizations at the earliest moment. These organizations, as well as
organized and other propaganda activities, have to be declared illegal and
prohibited. Participation in these organizations is, of itself, to be
punished.
7. Article 4 (c) of the Convention outlines the obligations of public
authorities. Public authorities at all administrative levels, including
municipalities, are bound by this paragraph. The Committee holds that States
parties must ensure that they observe these obligations and report on this.
General Recommendation XVI concerning the application of article 9 of the
Convention (Forty-second session, 1993)*
1. Under article 9 of the International Convention on the Elimination of
All Forms of Racial Discrimination, States parties have undertaken to submit,
through the Secretary-General of the United Nations, for consideration by the
Committee, reports on measures taken by them to give effect to the provisions
of the Convention.
2. With respect to this obligation of the States parties, the Committee has
noted that, on some occasions, reports have made references to situations
existing in other States.
* Contained in document A/48/18.
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3. For this reason, the Committee wishes to remind States parties of the
provisions of article 9 of the Convention concerning the content of their
reports, while bearing in mind article 11, which is the only procedural means
available to States for drawing to the attention of the Committee situations
in which they consider that some other State is not giving effect to the
provisions of the Convention.
General Recommendation XVII on the establishment of national institutions to
facilitate the implementation of the Convention (Forty-second session, 1993)*
The Committee on the Elimination of Racial Discrimination,
Considering the practice of States parties concerning the implementation
of the International Convention on the Elimination of All Forms of Racial
Discrimination,
Convinced of the necessity to encourage further the establishment of
national institutions to facilitate the implementation of the Convention,
Emphasizing the need to strengthen further the implementation of the
Convention,
1. Recommends that States parties establish national commissions or
other appropriate bodies, taking into account, mutatis mutandis, the
principles relating to the status of national institutions annexed to
Commission on Human Rights resolution 1992/54 of 3 March 1992, to serve,
inter alia, the following purposes:
(a) To promote respect for the enjoyment of human rights without any
discrimination, as expressly set out in article 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination;
(b) To review government policy towards protection against racial
discrimination;
(c) To monitor legislative compliance with the provisions of the
Convention;
(d) To educate the public about the obligations of States parties under
the Convention;
(e) To assist the Government in the preparation of reports submitted to
the Committee on the Elimination of Racial Discrimination;
2. Also recommends that, where such commissions have been established,
they should be associated with the preparation of reports and possibly
included in government delegations in order to intensify the dialogue between
the Committee and the State party concerned.
* Contained in document A/48/18.
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General recommendation XVIII on the establishment of an international tribunal
to prosecute crimes against humanity (Forty-fourth session, 1994)*
The Committee on the Elimination of Racial Discrimination,
Alarmed at the increasing number of racially and ethnically motivated
massacres and atrocities occurring in different regions of the world,
Convinced that the impunity of the perpetrators is a major factor
contributing to the occurrence and recurrence of these crimes,
Convinced of the need to establish, as quickly as possible, an
international tribunal with general jurisdiction to prosecute genocide, crimes
against humanity and grave breaches of the Geneva Conventions of 1949 and the
Additional Protocols of 1977 thereto,
Taking into account the work already done on this question by the
International Law Commission and the encouragement given in this regard by the
General Assembly in its resolution 48/31 of 9 December 1993,
Also taking into account Security Council resolution 872 (1993) of
25 May 1993 establishing an international tribunal for the purpose of
prosecuting persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia,
1. Considers that an international tribunal with general jurisdiction
should be established urgently to prosecute genocide, crimes against humanity,
including murder, extermination, enslavement, deportation, imprisonment,
torture, rape persecutions on political, racial and religious grounds and
other inhumane acts directed against any civilian population, and grave
breaches of the Geneva Conventions of 1949 and the Additional Protocols of
1977 thereto;
2. Urges the Secretary-General to bring the present recommendation to
the attention of the competent organs and bodies of the United Nations,
including the Security Council;
3. Requests the High Commissioner for Human Rights to ensure that all
relevant information pertaining to the crimes referred to in paragraph 1 is
systematically collected by the Centre for Human Rights so that it can be
readily available to the international tribunal as soon as it is established.
* Contained in document A/49/18.
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IV
GENERAL RECOMMENDATIONS
adopted by the Committee on the Elimination
of Racial Discrimination against Women
According to article 21, paragraph 1, of the Convention on the
Elimination of Discrimination against Women, the Committee may make
suggestions and general recommendations based on the examination of the
reports and information received from the States parties. Such suggestions
and general recommendations shall be included in the report of the Committee
together with comments, if any, from States parties. The Committee has so far
adopted a total of 20 general recommendations.
General Recommendation No. 1 (Fifth session, 1986)*
"Initial reports submitted under article 18 of the Convention
should cover the situation up to the date of submission. Thereafter,
reports should be submitted at least every four years after the first
report was due and should include obstacles encountered in implementing
the Convention fully and the measures adopted to overcome such
obstacles."*
General Recommendation No. 2 (Sixth session, 1987)**
The Committee on the Elimination of Discrimination against Women,
Bearing in mind that the Committee had been faced with difficulties in
its work because some initial reports of States parties under article 18 of
the Convention did not reflect adequately the information available in the
State party concerned in accordance with the guidelines,
Recommends:
(a) That the States parties, in preparing reports under article 18 of
the Convention, should follow the general guidelines adopted in August 1983
(CEDAW/C/7) as to the form, content and date of reports;
(b) That the States parties should follow the general recommendation
adopted in 1986 in these terms:
"Initial reports submitted under article 18 of the Convention
should cover the situation up to the date of submission. Thereafter,
reports should be submitted at least every four years after the first
report was due and should include obstacles encountered in implementing
the Convention fully and the measures adopted to overcome such
obstacles."
* Contained in document A/41/45.
** Contained in document A/42/38.
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(c) That additional information supplementing the report of a State
party should be sent to the Secretariat at least three months before the
session at which the report is due to be considered.
General Recommendation No. 3 (Sixth session, 1987)*
The Committee on the Elimination of Discrimination against Women,
Considering that the Committee on the Elimination of Discrimination
against Women has considered 34 reports from States parties since 1983,
Further considering that, although the reports have come from States with
different levels of development, they present features in varying degrees
showing the existence of stereotyped conceptions of women, owing to
socio-cultural factors, that perpetuate discrimination based on sex and hinder
the implementation of article 5 of the Convention,
Urges all States parties effectively to adopt education and public
information programmes, which will help eliminate prejudices and current
practices that hinder the full operation of the principle of the social
equality of women.
General Recommendation No. 4 (Sixth session, 1987)*
The Committee on the Elimination of Discrimination against Women,
Having examined reports from States parties at its sessions,
Expressed concern in relation to the significant number of reservations
that appeared to be incompatible with the object and purpose of the
Convention,
Welcomes the decision of the States parties to consider reservations at
its next meeting in New York in 1988, and to that end suggests that all States
parties concerned reconsider such reservations with a view to withdrawing
them.
General Recommendation No. 5 (Seventh session, 1988)**
Temporary special measures
The Committee on the Elimination of Discrimination against Women,
Taking note that the reports, the introductory remarks and the replies by
States parties reveal that while significant progress has been achieved in
* Contained in document A/42/38.
** Contained in document A/43/38.
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regard to repealing or modifying discriminatory laws, there is still a need
for action to be taken to implement fully the Convention by introducing
measures to promote de facto equality between men and women,
Recalling article 4.1 of the Convention,
Recommends that States parties make more use of temporary special
measures such as positive action, preferential treatment or quota systems to
advance women’s integration into education, the economy, politics and
employment.
General Recommendation No. 6 (Seventh session, 1988)*
Effective national machinery and publicity
The Committee on the Elimination of Discrimination against Women,
Having considered the reports of States parties to the Convention on the
Elimination of All Forms of Discrimination against Women,
Noting United Nations General Assembly resolution 42/60 of
30 November 1987,
Recommends that States parties:
1. Establish and/or strengthen effective national machinery,
institutions and procedures, at a high level of Government, and with adequate
resources, commitment and authority to:
(a) Advise on the impact on women of all government policies;
(b) Monitor the situation of women comprehensively;
(c) Help formulate new policies and effectively carry out strategies
and measures to eliminate discrimination;
2. Take appropriate steps to ensure the dissemination of the
Convention, the reports of the States parties under article 18 and the reports
of the Committee in the language of the States concerned;
3. Seek the assistance of the Secretary-General and the Department of
Public Information in providing translations of the Convention and the reports
of the Committee;
4. Include in their initial and periodic reports the action taken in
respect of this recommendation.
* Contained in document A/43/38.
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General Recommendation No. 7 (Seventh session, 1988)*
Resources
The Committee on the Elimination of Discrimination against Women,
Noting General Assembly resolutions 40/39, 41/108 and in particular
42/60, paragraph 14, which invited the Committee and the States parties to
consider the question of holding future sessions of the Committee at Vienna,
Bearing in mind General Assembly resolution 42/105 and, in particular,
paragraph 11, which requests the Secretary-General to strengthen coordination
between the United Nations Centre for Human Rights and the Centre for Social
Development and Humanitarian Affairs of the secretariat in relation to the
implementation of human rights treaties and servicing treaty bodies,
Recommends to the States parties:
1. That they continue to support proposals for strengthening the
coordination between the Centre for Human Rights at Geneva and the Centre for
Social Development and Humanitarian Affairs at Vienna, in relation to the
servicing of the Committee;
2. That they support proposals that the Committee meet in New York and
Vienna;
3. That they take all necessary and appropriate steps to ensure that
adequate resources and services are available to the Committee to assist it in
its functions under the Convention and in particular that full-time staff are
available to help the Committee to prepare for its sessions and during its
session;
4. That they ensure that supplementary reports and materials are
submitted to the Secretariat in due time to be translated into the official
languages of the United Nations in time for distribution and consideration by
the Committee.
General Recommendation No. 8 (Seventh session, 1988)*
Implementation of article 8 of the Convention
The Committee on the Elimination of Discrimination against Women,
Having considered the reports of States parties submitted in accordance
with article 18 of the Convention,
* Contained in document A/43/38.
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Recommends that States parties take further direct measures in accordance
with article 4 of the Convention to ensure the full implementation of
article 8 of the Convention and to ensure to women on equal terms with men and
without any discrimination the opportunities to represent their Government at
the international level and to participate in the work of international
organizations.
General Recommendation No. 9 (Eighth session, 1989)*
Statistical data concerning the situation of women
The Committee on the Elimination of Discrimination against Women,
Considering that statistical information is absolutely necessary in order
to understand the real situation of women in each of the States parties to the
Convention,
Having observed that many of the States parties that present their
reports for consideration by the Committee do not provide statistics,
Recommends that States parties should make every effort to ensure that
their national statistical services responsible for planning national censuses
and other social and economic surveys formulate their questionnaires in such a
way that data can be disaggregated according to gender, with regard to both
absolute numbers and percentages, so that interested users can easily obtain
information on the situation of women in the particular sector in which they
are interested.
General Recommendation No. 10 (Eighth session, 1989)*
Tenth anniversary of the adoption of the Convention on the
Elimination of All Forms of Discrimination against Women
The Committee on the Elimination of Discrimination against Women,
Considering that 18 December 1989 marks the tenth anniversary of the
adoption of the Convention on the Elimination of All Forms of Discrimination
against Women,
Considering further that in those 10 years the Convention has proved to
be one of the most effective instruments that the United Nations has adopted
to promote equality between the sexes in the societies of its States Members,
Recalling general recommendation No. 6 (seventh session 1988) on
effective national machinery and publicity,
Recommends that, on the occasion of the tenth anniversary of the adoption
of the Convention, the States parties should consider:
* Contained in document A/44/38.
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1. Undertaking programmes including conferences and seminars to
publicize the Convention on the Elimination of All Forms of Discrimination
against Women in the main languages of and providing information on the
Convention in their respective countries;
2. Inviting their national women’s organizations to cooperate in the
publicity campaigns regarding the Convention and its implementation and
encouraging non-governmental organizations at the national, regional and
international levels to publicize the Convention and its implementation;
3. Encouraging action to ensure the full implementation of the
principles of the Convention, and in particular article 8, which relates to
the participation of women at all levels of activity of the United Nations and
the United Nations system;
4. Requesting the Secretary-General to commemorate the tenth
anniversary of the adoption of the Convention by publishing and disseminating,
in cooperation with the specialized agencies, printed and other materials
regarding the Convention and its implementation in all official languages of
the United Nations, preparing television documentaries about the Convention,
and making the necessary resources available to the Division for the
Advancement of Women, Centre for Social Development and Humanitarian Affairs
of the United Nations Office at Vienna, to prepare an analysis of the
information provided by States parties in order to update and publish the
report of the Committee (A/CONF.116/13), which was first published for the
World Conference to Review and Appraise the Achievements of the United Nations
Decade for Women: Equality, Development and Peace, held at Nairobi in 1985.
General Recommendation No. 11 (Eighth session, 1989)
Technical advisory services for reporting obligations
The Committee on the Elimination of Discrimination against Women,
Bearing in mind that, as at 3 March 1989, 96 States had ratified the
Convention on the Elimination of All Forms of Discrimination against Women,
Taking into account the fact that by that date 60 initial and 19 second
periodic reports had been received,
Noting that 36 initial and 36 second periodic reports were due by
3 March 1989 and had not yet been received,
Welcoming the request in General Assembly resolution 43/115, paragraph 9,
that the Secretary-General should arrange, within existing resources and
taking into account the priorities of the programme of advisory services,
further training courses for those countries experiencing the most serious
difficulties in meeting their reporting obligations under international
instruments on human rights,
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Recommends to States parties that they should encourage, support and
cooperate in projects for technical advisory services, including training
seminars, to assist States parties on their request in fulfilling their
reporting obligations under article 18 of the Convention.
General Recommendation No. 12 (Eighth session, 1989)
Violence against women
The Committee on the Elimination of Discrimination against Women,
Considering that articles 2, 5, 11, 12 and 16 of the Convention require
the States parties to act to protect women against violence of any kind
occurring within the family, at the workplace or in any other area of social
life,
Taking into account Economic and Social Council resolution 1988/27,
Recommends to the States parties that they should include in their
periodic reports to the Committee information about:
1. The legislation in force to protect women against the incidence of
all kinds of violence in everyday life (including sexual violence, abuses in
the family, sexual harassment at the workplace, etc.);
2. Other measures adopted to eradicate this violence;
3. The existence of support services for women who are the victims of
aggression or abuses;
4. Statistical data on the incidence of violence of all kinds against
women and on women who are the victims of violence.
General Recommendation No. 13 (Eighth session, 1989)*
Equal remuneration for work of equal value
The Committee on the Elimination of Discrimination against Women,
Recalling International Labour Organisation Convention No. 100 concerning
Equal Remuneration for Men and Women Workers for Work of Equal Value, which
has been ratified by a large majority of States parties to the Convention on
the Elimination of All Forms of Discrimination against Women,
Recalling also that it has considered 51 initial and 5 second periodic
reports of States parties since 1983,
* Contained in document A/44/38.
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Considering that although reports of States parties indicate that, even
though the principle of equal remuneration for work of equal value has been
accepted in the legislation of many countries, more remains to be done to
ensure the application of that principle in practice, in order to overcome the
gender-segregation in the labour market,
Recommends to the States parties to the Convention on the Elimination of
All Forms of Discrimination against Women that:
1. In order to implement fully the Convention on the Elimination of
All Forms of Discrimination against Women, those States parties that have not
yet ratified ILO Convention No. 100 should be encouraged to do so;
2. They should consider the study, development and adoption of job
evaluation systems based on gender-neutral criteria that would facilitate the
comparison of the value of those jobs of a different nature, in which women
presently predominate, with those jobs in which men presently predominate, and
they should include the results achieved in their reports to the Committee on
the Elimination of Discrimination against Women;
3. They should support, as far as practicable, the creation of
implementation machinery and encourage the efforts of the parties to
collective agreements, where they apply, to ensure the application of the
principle of equal remuneration for work of equal value.
General Recommendation No. 14 (Ninth session, 1990)*
Female circumcision
The Committee on the Elimination of Discrimination against Women,
Concerned about the continuation of the practice of female circumcision
and other traditional practices harmful to the health of women,
Noting with satisfaction that Governments, where such practices exist,
national women’s organizations, non-governmental organizations, specialized
agencies, such as the World Health Organization, the United Nations Children’s
Fund, as well as the Commission on Human Rights and its Sub-Commission on
Prevention of Discrimination and Protection of Minorities, remain seized of
the issue having particularly recognized that such traditional practices as
female circumcision have serious health and other consequences for women and
children,
Noting with interest the study of the Special Rapporteur on Traditional
Practices Affecting the Health of Women and Children, as well as the study of
the Special Working Group on Traditional Practices,
* Contained in document A/45/38 and Corrigendum.
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Recognizing that women are taking important action themselves to identify
and to combat practices that are prejudicial to the health and well-being of
women and children,
Convinced that the important action that is being taken by women and by
all interested groups needs to be supported and encouraged by Governments,
Noting with grave concern that there are continuing cultural, traditional
and economic pressures which help to perpetuate harmful practices, such as
female circumcision,
Recommends to States parties:
(a) That States parties take appropriate and effective measures with a
view to eradicating the practice of female circumcision. Such measures could
include:
(i) The collection and dissemination by universities, medical or
nursing associations, national women’s organizations or other
bodies of basic data about such traditional practices;
(ii) The support of women’s organizations at the national and local
levels working for the elimination of female circumcision and
other practices harmful to women;
(iii) The encouragement of politicians, professionals, religious and
community leaders at all levels including the media and the
arts to cooperate in influencing attitudes towards the
eradication of female circumcision;
(iv) The introduction of appropriate educational and training
programmes and seminars based on research findings about the
problems arising from female circumcision;
(b) That States parties include in their national health policies
appropriate strategies aimed at eradicating female circumcision in public
health care. Such strategies could include the special responsibility of
health personnel including traditional birth attendants to explain the harmful
effects of female circumcision;
(c) That States parties invite assistance, information and advice from
the appropriate organizations of the United Nations system to support and
assist efforts being deployed to eliminate harmful traditional practices;
(d) That States parties include in their reports to the Committee under
articles 10 and 12 of the Convention on the Elimination of All Forms of
Discrimination against Women information about measures taken to eliminate
female circumcision.
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General Recommendation No. 15 (Ninth session, 1990)*
Avoidance of discrimination against women in national
strategies for the prevention and control of acquired
immunodeficiency syndrome (AIDS)
The Committee on the Elimination of Discrimination against Women,
Having considered information brought to its attention on the potential
effects of both the global pandemic of acquired immunodeficiency syndrome
(AIDS) and strategies to control it on the exercise of the rights of women,
Having regard to the reports and materials prepared by the World Health
Organization and other United Nations organizations, organs and bodies in
relation to human immunodeficiency virus (HIV), and, in particular, the note
by the Secretary-General to the Commission on the Status of Women on the
effects of AIDS on the advancement of women and the Final Document of the
International Consultation on AIDS and Human Rights, held at Geneva from 26 to
28 July 1989,
Noting World Health Assembly resolution WHA 41.24 on the avoidance of
discrimination in relation to HIV-infected people and people with AIDS of
13 May 1988, resolution 1989/11 of the Commission on Human Rights on
non-discrimination in the field of health, of 2 March 1989, and in particular
the Paris Declaration on Women, Children and AIDS, of 30 November 1989,
Noting that the World Health Organization has announced that the theme of
World Aids Day, 1 December 1990, will be "Women and Aids",
Recommends:
(a) That States parties intensify efforts in disseminating information
to increase public awareness of the risk of HIV infection and AIDS, especially
in women and children, and of its effects on them;
(b) That programmes to combat AIDS should give special attention to the
rights and needs of women and children, and to the factors relating to the
reproductive role of women and their subordinate position in some societies
which make them especially vulnerable to HIV infection;
(c) That States parties ensure the active participation of women in
primary health care and take measures to enhance their role as care providers,
health workers and educators in the prevention of infection with HIV;
(d) That all States parties include in their reports under article 12
of the Convention information on the effects of AIDS on the situation of women
and on the action taken to cater to the needs of those women who are infected
and to prevent specific discrimination against women in response to AIDS.
* Contained in document A/45/38.
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General Recommendation No. 16 (Tenth session, 1991)
Unpaid women workers in rural and urban family enterprises*
The Committee on the Elimination of Discrimination against Women,
Bearing in mind articles 2 (c) and 11 (c), (d) and (e) of the Convention
on the Elimination of All Forms of Discrimination against Women and general
recommendation No. 9 (eighth session, 1989) on statistical data concerning the
situation of women,
Taking into consideration that a high percentage of women in the States
parties work without payment, social security and social benefits in
enterprises owned usually by a male member of the family,
Noting that the reports presented to the Committee on the Elimination of
Discrimination against Women generally do not refer to the problem of unpaid
women workers of family enterprises,
Affirming that unpaid work constitutes a form of women’s exploitation
that is contrary to the Convention,
Recommends that States parties:
(a) Include in their reports to the Committee information on the legal
and social situation of unpaid women working in family enterprises;
(b) Collect statistical data on women who work without payment, social
security and social benefits in enterprises owned by a family member, and
include these data in their report to the Committee;
(c) Take the necessary steps to guarantee payment, social security and
social benefits for women who work without such benefits in enterprises owned
by a family member.
General Recommendation No. 17 (Tenth session, 1991)
Measurement and quantification of the unremunerated
domestic activities of women and their recognition
in the gross national product*
The Committee on the Elimination of Discrimination against Women,
Bearing in mind article 11 of the Convention on the Elimination of All
Forms of Discrimination against Women,
Recalling paragraph 120 of the Nairobi Forward-looking Strategies for the
Advancement of Women,
* Contained in document A/46/38.
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Affirming that the measurement and quantification of the unremunerated
domestic activities of women, which contribute to development in each country,
will help to reveal the de facto economic role of women,
Convinced that such measurement and quantification offers a basis for the
formulation of further policies related to the advancement of women,
Noting the discussions of the Statistical Commission, at its twenty-first
session, on the current revision of the System of National Accounts and the
development of statistics on women,
Recommends that States parties:
(a) Encourage and support research and experimental studies to measure
and value the unremunerated domestic activities of women; for example, by
conducting time-use surveys as part of their national household survey
programmes and by collecting statistics disaggregated by gender on time spent
on activities both in the household and on the labour market;
(b) Take steps, in accordance with the provisions of the Convention on
the Elimination of All Forms of Discrimination against Women and the Nairobi
Forward-looking Strategies for the Advancement of Women, to quantify and
include the unremunerated domestic activities of women in the gross national
product;
(c) Include in their reports submitted under article 18 of the
Convention information on the research and experimental studies undertaken to
measure and value unremunerated domestic activities, as well as on the
progress made in the incorporation of the unremunerated domestic activities of
women in national accounts.
General Recommendation No. 18 (Tenth session, 1991)
Disabled women*
The Committee on the Elimination of Discrimination against Women,
Taking into consideration particularly article 3 of the Convention on the
Elimination of All Forms of Discrimination against Women,
Having considered more than 60 periodic reports of States parties, and
having recognized that they provide scarce information on disabled women,
Concerned about the situation of disabled women, who suffer from a double
discrimination linked to their special living conditions,
Recalling paragraph 296 of the Nairobi Forward-looking Strategies for the
Advancement of Women, in which disabled women are considered as a vulnerable
group under the heading "areas of special concern",
* Contained in document A/46/38.
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Affirming its support for the World Programme of Action concerning
Disabled Persons (1982),
Recommends that States parties provide information on disabled women in
their periodic reports, and on measures taken to deal with their particular
situation, including special measures to ensure that they have equal access to
education and employment, health services and social security, and to ensure
that they can participate in all areas of social and cultural life.
General Recommendation No. 19 (Eleventh session, 1992): Violence against
women*
Background
1. Gender-based violence is a form of discrimination that seriously inhibits
women’s ability to enjoy rights and freedoms on a basis of equality with men.
2. In 1989, the Committee recommended that States should include in their
reports information on violence and on measures introduced to deal with it
(General recommendation 12, eighth session).
3. At its tenth session in 1991, it was decided to allocate part of the
eleventh session to a discussion and study on article 6 and other articles of
the Convention relating to violence towards women and the sexual harassment
and exploitation of women. That subject was chosen in anticipation of the
1993 World Conference on Human Rights, convened by the General Assembly by its
resolution 45/155 of 18 December 1990.
4. The Committee concluded that not all the reports of States parties
adequately reflected the close connection between discrimination against
women, gender-based violence, and violations of human rights and fundamental
freedoms. The full implementation of the Convention required States to take
positive measures to eliminate all forms of violence against women.
5. The Committee suggested to States parties that in reviewing their laws
and policies, and in reporting under the Convention, they should have regard
to the following comments of the Committee concerning gender-based violence.
General comments
6. The Convention in article 1 defines discrimination against women. The
definition of discrimination includes gender-based violence, that is, violence
that is directed against a woman because she is a woman or that affects women
disproportionately. It includes acts that inflict physical, mental or sexual
harm or suffering, threats of such acts, coercion and other deprivations of
liberty. Gender-based violence may breach specific provisions of the
Convention, regardless of whether those provisions expressly mention violence.
* Contained in document A/47/38.
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7. Gender-based violence, which impairs or nullifies the enjoyment by women
of human rights and fundamental freedoms under general international law or
under human rights conventions, is discrimination within the meaning of
article 1 of the Convention. These rights and freedoms include:
(a) The right to life;
(b) The right not to be subject to torture or to cruel, inhuman or
degrading treatment or punishment;
(c) The right to equal protection according to humanitarian norms in
time of international or internal armed conflict;
(d) The right to liberty and security of person;
(e) The right to equal protection under the law;
(f) The right to equality in the family;
(g) The right to the highest standard attainable of physical and mental
health;
(h) The right to just and favourable conditions of work.
8. The Convention applies to violence perpetrated by public authorities.
Such acts of violence may breach that State’s obligations under general
international human rights law and under other conventions, in addition to
breaching this Convention.
9. It is emphasized, however, that discrimination under the Convention is
not restricted to action by or on behalf of Governments (see articles 2 (e),
2 (f) and 5). For example, under article 2 (e) the Convention calls on States
parties to take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise. Under general international
law and specific human rights covenants, States may also be responsible for
private acts if they fail to act with due diligence to prevent violations of
rights or to investigate and punish acts of violence, and for providing
compensation.
Comments on specific articles of the Convention
Articles 2 and 3
10. Articles 2 and 3 establish a comprehensive obligation to eliminate
discrimination in all its forms in addition to the specific obligations under
articles 5-16.
Articles 2 (f), 5 and 10 (c)
11. Traditional attitudes by which women are regarded as subordinate to men
or as having stereotyped roles perpetuate widespread practices involving
violence or coercion, such as family violence and abuse, forced marriage,
dowry deaths, acid attacks and female circumcision. Such prejudices and
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practices may justify gender-based violence as a form of protection or control
of women. The effect of such violence on the physical and mental integrity of
women is to deprive them of the equal enjoyment, exercise and knowledge of
human rights and fundamental freedoms. While this comment addresses mainly
actual or threatened violence the underlying consequences of these forms of
gender-based violence help to maintain women in subordinate roles and
contribute to their low level of political participation and to their lower
level of education, skills and work opportunities.
12. These attitudes also contribute to the propagation of pornography and the
depiction and other commercial exploitation of women as sexual objects, rather
than as individuals. This in turn contributes to gender-based violence.
Article 6
13. States parties are required by article 6 to take measures to suppress all
forms of traffic in women and exploitation of the prostitution of women.
14. Poverty and unemployment increase opportunities for trafficking in women.
In addition to established forms of trafficking there are new forms of sexual
exploitation, such as sex tourism, the recruitment of domestic labour from
developing countries to work in developed countries, and organized marriages
between women from developing countries and foreign nationals. These
practices are incompatible with the equal enjoyment of rights by women and
with respect for their rights and dignity. They put women at special risk of
violence and abuse.
15. Poverty and unemployment force many women, including young girls, into
prostitution. Prostitutes are especially vulnerable to violence because their
status, which may be unlawful, tends to marginalize them. They need the equal
protection of laws against rape and other forms of violence.
16. Wars, armed conflicts and the occupation of territories often lead to
increased prostitution, trafficking in women and sexual assault of women,
which require specific protective and punitive measures.
Article 11
17. Equality in employment can be seriously impaired when women are subjected
to gender-specific violence, such as sexual harassment in the workplace.
18. Sexual harassment includes such unwelcome sexually determined behaviour
as physical contact and advances, sexually coloured remarks, showing
pornography and sexual demands, whether by words or actions. Such conduct can
be humiliating and may constitute a health and safety problem; it is
discriminatory when the woman has reasonable ground to believe that her
objection would disadvantage her in connection with her employment, including
recruitment or promotion, or when it creates a hostile working environment.
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Article 12
19. States parties are required by article 12 to take measures to ensure
equal access to health care. Violence against women puts their health and
lives at risk.
20. In some States there are traditional practices perpetuated by culture and
tradition that are harmful to the health of women and children. These
practices include dietary restrictions for pregnant women, preference for male
children and female circumcision or genital mutilation.
Article 14
21. Rural women are at risk of gender-based violence because traditional
attitudes regarding the subordinate role of women that persist in many rural
communities. Girls from rural communities are at special risk of violence and
sexual exploitation when they leave the rural community to seek employment in
towns.
Article 16 (and article 5)
22. Compulsory sterilization or abortion adversely affects women’s physical
and mental health, and infringes the right of women to decide on the number
and spacing of their children.
23. Family violence is one of the most insidious forms of violence against
women. It is prevalent in all societies. Within family relationships women
of all ages are subjected to violence of all kinds, including battering, rape,
other forms of sexual assault, mental and other forms of violence, which are
perpetuated by traditional attitudes. Lack of economic independence forces
many women to stay in violent relationships. The abrogation of their family
responsibilities by men can be a form of violence, and coercion. These forms
of violence put women’s health at risk and impair their ability to participate
in family life and public life on a basis of equality.
Specific recommendations
24. In light of these comments, the Committee on the Elimination of
Discrimination against Women recommends:
(a) States parties should take appropriate and effective measures to
overcome all forms of gender-based violence, whether by public or private act;
(b) States parties should ensure that laws against family violence and
abuse, rape, sexual assault and other gender-based violence give adequate
protection to all women, and respect their integrity and dignity. Appropriate
protective and support services should be provided for victims.
Gender-sensitive training of judicial and law enforcement officers and other
public officials is essential for the effective implementation of the
Convention;
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(c) States parties should encourage the compilation of statistics and
research on the extent, causes and effects of violence, and on the
effectiveness of measures to prevent and deal with violence;
(d) Effective measures should be taken to ensure that the media respect
and promote respect for women;
(e) States parties in their report should identify the nature and
extent of attitudes, customs and practices that perpetuate violence against
women, and the kinds of violence that result. They should report the measures
that they have undertaken to overcome violence, and the effect of those
measures;
(f) Effective measures should be taken to overcome these attitudes and
practices. States should introduce education and public information
programmes to help eliminate prejudices which hinder women’s equality
(recommendation No. 3, 1987);
(g) Specific preventive and punitive measures are necessary to overcome
trafficking and sexual exploitation;
(h) States parties in their reports should describe the extent of all
these problems and the measures, including penal provisions, preventive and
rehabilitation measures, that have been taken to protect women engaged in
prostitution or subject to trafficking and other forms of sexual exploitation.
The effectiveness of these measures should also be described;
(i) Effective complaints procedures and remedies, including
compensation, should be provided;
(j) States parties should include in their reports information on
sexual harassment, and on measures to protect women from sexual harassment and
other forms of violence of coercion in the workplace;
(k) States parties should establish or support services for victims of
family violence, rape, sex assault and other forms of gender-based violence,
including refuges, specially trained health workers, rehabilitation and
counselling;
(l) States parties should take measures to overcome such practices and
should take account of the Committee’s recommendation on female circumcision
(recommendation No. 14) in reporting on health issues;
(m) States parties should ensure that measures are taken to prevent
coercion in regard to fertility and reproduction, and to ensure that women are
not forced to seek unsafe medical procedures such as illegal abortion because
of lack of appropriate services in regard to fertility control;
(n) States parties in their reports should state the extent of these
problems and should indicate the measures that have been taken and their
effect;
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(o) States parties should ensure that services for victims of violence
are accessible to rural women and that where necessary special services are
provided to isolated communities;
(p) Measures to protect them from violence should include training and
employment opportunities and the monitoring of the employment conditions of
domestic workers;
(q) States parties should report on the risks to rural women, the
extent and nature of violence and abuse to which they are subject, their need
for and access to support and other services and the effectiveness of measures
to overcome violence;
(r) Measures that are necessary to overcome family violence should
include:
(i) Criminal penalties where necessary and civil remedies in case
of domestic violence;
(ii) Legislation to remove the defence of honour in regard to the
assault or murder of a female family member;
(iii) Services to ensure the safety and security of victims of
family violence, including refuges, counselling and
rehabilitation programmes;
(iv) Rehabilitation programmes for perpetrators of domestic
violence;
(v) Support services for families where incest or sexual abuse
has occurred;
(s) States parties should report on the extent of domestic violence and
sexual abuse, and on the preventive, punitive and remedial measures that have
been taken;
(t) That States parties should take all legal and other measures that
are necessary to provide effective protection of women against gender-based
violence, including, inter alia:
(i) Effective legal measures, including penal sanctions, civil
remedies and compensatory provisions to protect women against
all kinds of violence, including, inter alia, violence and
abuse in the family, sexual assault and sexual harassment in
the workplace;
(ii) Preventive measures, including public information and
education programmes to change attitudes concerning the roles
and status of men and women;
(iii) Protective measures, including refuges, counselling,
rehabilitation and support services for women who are the
victims of violence or who are at risk of violence;
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(u) That States parties should report on all forms of gender-based
violence, and that such reports should include all available data on the
incidence of each form of violence, and on the effects of such violence on the
women who are victims;
(v) That the reports of States parties should include information on
the legal, preventive and protective measures that have been taken to overcome
violence against women, and on the effectiveness of such measures.
General recommendation No. 20 (Eleventh session, 1992): Reservations to the
Convention*
1. The Committee recalled the decision of the Fourth Meeting of States
parties on reservations to the Convention with regard to article 28.2, which
was welcomed in General recommendation No. 4 of the Committee.
2. The Committee recommended that, in connection with preparations for the
World Conference on Human Rights in 1993, States parties should:
(a) Raise the question of the validity and the legal effect of
reservations to the Convention in the context of reservations to other human
rights treaties;
(b) Reconsider such reservations with a view to strengthening the
implementation of all human rights treaties;
(c) Consider introducing a procedure on reservations to the Convention
comparable with that of other human rights treaties;
General recommendation 21 (thirteenth session): Equality in marriage and
family relations
1. The Convention on the Elimination of All Forms of Discrimination against
Women (General Assembly resolution 34/180, annex) affirms the equality of
human rights for women and men in society and in the family. The Convention
has an important place among international treaties concerned with human
rights.
2. Other conventions and declarations also confer great significance on the
family and woman’s status within it. These include the Universal Declaration
of Human Rights (General Assembly resolution 217/A (III), the International
Covenant on Civil and Political Rights (resolution 2200 A (XXI), annex), the
Convention on the Nationality of Married Women (resolution 1040 (XI), annex),
the Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages (resolution 1763 A (XVII), annex) and the subsequent
Recommendation thereon (resolution 2018 (XX)) and the Nairobi Forward-looking
Strategies for the Advancement of Women.
* Contained in document A/47/38.
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3. The Convention on the Elimination of All Forms of Discrimination against
Women recalls the inalienable rights of women which are already embodied in
the above-mentioned conventions and declarations, but it goes further by
recognizing the importance of culture and tradition in shaping the thinking
and behaviour of men and women and the significant part they play in
restricting the exercise of basic rights by women.
Background
4. The year 1994 has been designated by the General Assembly in its
resolution 44/82 as the International Year of the Family. The Committee
wishes to take the opportunity to stress the significance of compliance with
women’s basic rights within the family as one of the measures which will
support and encourage the national celebrations that will take place.
5. Having chosen in this way to mark the International Year of the Family,
the Committee wishes to analyse three articles in the Convention that have
special significance for the status of women in the family:
Article 9
1. States parties shall grant women equal rights with men to
acquire, change or retain their nationality. They shall ensure in
particular that neither marriage to an alien nor change of nationality by
the husband during marriage shall automatically change the nationality of
the wife, render her stateless or force upon her the nationality of the
husband.
2. States parties shall grant women equal rights with men with
respect to the nationality of their children.
Comment
6. Nationality is critical to full participation in society. In general,
States confer nationality on those who are born in that country. Nationality
can also be acquired by reason of settlement or granted for humanitarian
reasons such as statelessness. Without status as nationals or citizens, women
are deprived of the right to vote or to stand for public office and may be
denied access to public benefits and a choice of residence. Nationality
should be capable of change by an adult woman and should not be arbitrarily
removed because of marriage or dissolution of marriage or because her husband
or father changes his nationality.
Article 15
1. States parties shall accord to women equality with men before
the law.
2. States parties shall accord to women, in civil matters, a
legal capacity identical to that of men and the same opportunities to
exercise that capacity. In particular, they shall give women equal
rights to conclude contracts and to administer property and shall treat
them equally in all stages of procedure in courts and tribunals.
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3. States parties agree that all contracts and all other private
instruments of any kind with a legal effect which is directed at
restricting the legal capacity of women shall be deemed null and void.
4. States parties shall accord to men and women the same rights
with regard to the law relating to the movement of persons and the
freedom to choose their residence and domicile.
Comment
7. When a woman cannot enter into a contract at all, or have access to
financial credit, or can do so only with her husband’s or a male relative’s
concurrence or guarantee, she is denied legal autonomy. Any such restriction
prevents her from holding property as the sole owner and precludes her from
the legal management of her own business or from entering into any other form
of contract. Such restrictions seriously limit the woman’s ability to provide
for herself and her dependants.
8. A woman’s right to bring litigation is limited in some countries by law
or by her access to legal advice and her ability to seek redress from the
courts. In others, her status as a witness or her evidence is accorded less
respect or weight than that of a man. Such laws or customs limit the woman’s
right effectively to pursue or retain her equal share of property and diminish
her standing as an independent, responsible and valued member of her
community. When countries limit a woman’s legal capacity by their laws, or
permit individuals or institutions to do the same, they are denying women
their rights to be equal with men and restricting women’s ability to provide
for themselves and their dependants.
9. Domicile is a concept in common law countries referring to the country in
which a person intends to reside and to whose jurisdiction she will submit.
Domicile is originally acquired by a child through its parents but, in
adulthood, denotes the country in which a person normally resides and in which
she intends to reside permanently. As in the case of nationality, the
examination of States parties’ reports demonstrates that a woman will not
always be permitted at law to choose her own domicile. Domicile, like
nationality, should be capable of change at will by an adult woman regardless
of her marital status. Any restrictions on a woman’s right to choose a
domicile on the same basis as a man may limit her access to the courts in the
country in which she lives or prevent her from entering and leaving a country
freely and in her own right.
10. Migrant women who live and work temporarily in another country should be
permitted the same rights as men to have their spouses, partners and children
join them.
Article 16
1. States parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure, on a basis
of equality of men and women:
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(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at
its dissolution;
(d) The same rights and responsibilities as parents, irrespective
of their marital status, in matters relating to their children; in all
cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the
number and spacing of their children and to have access to the
information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to
guardianship, wardship, trusteeship and adoption of children, or similar
institutions where these concepts exist in national legislation; in all
cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the
right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of
property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be taken
to specify a minimum age for marriage and to make the registration of
marriages in an official registry compulsory.
Comment
Public and private life
11. Historically, human activity in public and private life has been viewed
differently and regulated accordingly. In all societies women who have
traditionally performed their roles in the private or domestic sphere have
long had those activities treated as inferior.
12. As such activities are invaluable for the survival of society, there can
be no justification for applying different and discriminatory laws or customs
to them. Reports of States parties disclose that there are still countries
where de jure equality does not exist. Women are thereby prevented from
having equal access to resources and from enjoying equality of status in the
family and society. Even where de jure equality exists, all societies assign
different roles, which are regarded as inferior, to women. In this way,
principles of justice and equality contained in particular in article 16 and
also in articles 2, 5 and 24 of the Convention are being violated.
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Various forms of family
13. The form and concept of the family can vary from State to State, and even
between regions within a State. Whatever form it takes, and whatever the
legal system, religion, custom or tradition within the country, the treatment
of women in the family both at law and in private must accord with the
principles of equality and justice for all people, as article 2 of the
Convention requires.
Polygamous marriages
14. States parties’ reports also disclose that polygamy is practised in a
number of countries. Polygamous marriage contravenes a woman’s right to
equality with men, and can have such serious emotional and financial
consequences for her and her dependants that such marriages ought to be
discouraged and prohibited. The Committee notes with concern that some States
parties, whose constitutions guarantee equal rights, permit polygamous
marriage in accordance with personal or customary law. This violates the
constitutional rights of women, and breaches the provisions of article 5 (a)
of the Convention.
Article 16 (1) (a) and (b)
15. While most countries report that national constitutions and laws comply
with the Convention, custom, tradition and failure to enforce these laws in
reality contravene the Convention.
16. A woman’s right to choose a spouse and enter freely into marriage is
central to her life and to her dignity and equality as a human being. An
examination of States parties’ reports discloses that there are countries
which, on the basis of custom, religious beliefs or the ethnic origins of
particular groups of people, permit forced marriages or remarriages. Other
countries allow a woman’s marriage to be arranged for payment or preferment
and in others women’s poverty forces them to marry foreign nationals for
financial security. Subject to reasonable restrictions based for example on a
woman’s youth or consanguinity with her partner, a woman’s right to choose
when, if, and whom she will marry must be protected and enforced at law.
Article 16 (1) (c)
17. An examination of States parties’ reports discloses that many countries
in their legal systems provide for the rights and responsibilities of married
partners by relying on the application of common law principles, religious or
customary law, rather than by complying with the principles contained in the
Convention. These variations in law and practice relating to marriage have
wide-ranging consequences for women, invariably restricting their rights to
equal status and responsibility within marriage. Such limitations often
result in the husband being accorded the status of head of household and
primary decision-maker and therefore contravene the provisions of the
Convention.
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18. Moreover, generally a de facto union is not given legal protection at
all. Women living in such relationships should have their equality of status
with men both in family life and in the sharing of income and assets protected
by law. Such women should share equal rights and responsibilities with men
for the care and raising of dependent children or family members.
Article 16 (1) (d) and (f)
19. As provided in article 5 (b), most States recognize the shared
responsibility of parents for the care, protection and maintenance of
children. The principle that "the best interests of the child shall be the
paramount consideration" has been included in the Convention on the Rights of
the Child (General Assembly resolution 44/25, annex) and seems now to be
universally accepted. However, in practice, some countries do not observe the
principle of granting the parents of children equal status, particularly when
they are not married. The children of such unions do not always enjoy the
same status as those born in wedlock and, where the mothers are divorced or
living apart, many fathers fail to share the responsibility of care,
protection and maintenance of their children.
20. The shared rights and responsibilities enunciated in the Convention
should be enforced at law and as appropriate through legal concepts of
guardianship, wardship, trusteeship and adoption. States parties should
ensure that by their laws both parents, regardless of their marital status and
whether they live with their children or not, share equal rights and
responsibilities for their children.
Article 16 (1) (e)
21. The responsibilities that women have to bear and raise children affect
their right of access to education, employment and other activities related to
their personal development. They also impose inequitable burdens of work on
women. The number and spacing of their children have a similar impact on
women’s lives and also affect their physical and mental health, as well as
that of their children. For these reasons, women are entitled to decide on
the number and spacing of their children.
22. Some reports disclose coercive practices which have serious consequences
for women, such as forced pregnancies, abortions or sterilization. Decisions
to have children or not, while preferably made in consultation with spouse or
partner, must not nevertheless be limited by spouse, parent, partner or
Government. In order to make an informed decision about safe and reliable
contraceptive measures, women must have information about contraceptive
measures and their use, and guaranteed access to sex education and family
planning services, as provided in article 10 (h) of the Convention.
23. There is general agreement that where there are freely available
appropriate measures for the voluntary regulation of fertility, the health,
development and well-being of all members of the family improves. Moreover,
such services improve the general quality of life and health of the
population, and the voluntary regulation of population growth helps preserve
the environment and achieve sustainable economic and social development.
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Article 16 (1) (g)
24. A stable family is one which is based on principles of equity, justice
and individual fulfilment for each member. Each partner must therefore have
the right to choose a profession or employment that is best suited to his or
her abilities, qualifications and aspirations, as provided in article 11 (a)
and (c) of the Convention. Moreover, each partner should have the right to
choose his or her name, thereby preserving individuality and identity in the
community and distinguishing that person from other members of society. When
by law or custom a woman is obliged to change her name on marriage or at its
dissolution, she is denied these rights.
Article 16 (1) (h)
25. The rights provided in this article overlap with and complement those in
article 15 (2) in which an obligation is placed on States to give women equal
rights to enter into and conclude contracts and to administer property.
26. Article 15 (1) guarantees women equality with men before the law. The
right to own, manage, enjoy and dispose of property is central to a woman’s
right to enjoy financial independence, and in many countries will be critical
to her ability to earn a livelihood and to provide adequate housing and
nutrition for herself and for her family.
27. In countries that are undergoing a programme of agrarian reform or
redistribution of land among groups of different ethnic origins, the right of
women, regardless of marital status, to share such redistributed land on equal
terms with men should be carefully observed.
28. In most countries, a significant proportion of the women are single or
divorced and many have the sole responsibility to support a family. Any
discrimination in the division of property that rests on the premise that the
man alone is responsible for the support of the women and children of his
family and that he can and will honourably discharge this responsibility is
clearly unrealistic. Consequently, any law or custom that grants men a right
to a greater share of property at the end of a marriage or de facto
relationship, or on the death of a relative, is discriminatory and will have a
serious impact on a woman’s practical ability to divorce her husband, to
support herself or her family and to live in dignity as an independent person.
29. All of these rights should be guaranteed regardless of a woman’s marital
status.
Marital property
30. There are countries that do not acknowledge that right of women to own an
equal share of the property with the husband during a marriage or de faco
relationship and when that marriage or relationship ends. Many countries
recognize that right, but the practical ability of women to exercise it may be
limited by legal precedent or custom.
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31. Even when these legal rights are vested in women, and the courts enforce
them, property owned by a woman during marriage or on divorce may be managed
by a man. In many States, including those where there is a community-property
regime, there is no legal requirement that a woman be consulted when property
owned by the parties during marriage or de facto relationship is sold or
otherwise disposed of. This limits the woman’s ability to control disposition
of the property or the income derived from it.
32. In some countries, on division of marital property, greater emphasis is
placed on financial contributions to property acquired during a marriage, and
other contributions, such as raising children, caring for elderly relatives
and discharging household duties are diminished. Often, such contributions of
a non-financial nature by the wife enable the husband to earn an income and
increase the assets. Financial and non-financial contributions should be
accorded the same weight.
33. In many countries, property accumulated during a de facto relationship is
not treated at law on the same basis as property acquired during marriage.
Invariably, if the relationship ends, the woman receives a significantly lower
share than her partner. Property laws and customs that discriminate in this
way against married or unmarried women with or without children should be
revoked and discouraged.
Inheritance
34. Reports of States parties should include comment on the legal or
customary provisions relating to inheritance laws as they affect the status of
women as provided in the Convention and in Economic and Social Council
resolution 884D (XXXIV), in which the Council recommended that States ensure
that men and women in the same degree of relationship to a deceased are
entitled to equal shares in the estate and to equal rank in the order of
succession. That provision has not been generally implemented.
35. There are many countries where the law and practice concerning
inheritance and property result in serious discrimination against women. As a
result of this uneven treatment, women may receive a smaller share of the
husband’s or father’s property at his death than would widowers and sons. In
some instances, women are granted limited and controlled rights and receive
income only from the deceased’s property. Often inheritance rights for widows
do not reflect the principles of equal ownership of property acquired during
marriage. Such provisions contravene the Convention and should be abolished.
Article 16 (2)
36. In the Vienna Declaration and Programme of Action adopted by the World
Conference on Human Rights, held at Vienna from 14 to 25 June 1993, States are
urged to repeal existing laws and regulations and to remove customs and
practices which discriminate against and cause harm to the girl child.
Article 16 (2) and the provisions of the Convention on the Rights of the Child
preclude States parties from permitting or giving validity to a marriage
between persons who have not attained their majority. In the context of the
Convention on the Rights of the Child, "a child means every human being below
the age of 18 years unless, under the law applicable to the child, majority is
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attained earlier". Notwithstanding this definition, and bearing in mind the
provisions of the Vienna Declaration, the Committee considers that the minimum
age for marriage should be 18 years for both man and woman. When men and
women marry, they assume important responsibilities. Consequently, marriage
should not be permitted before they have attained full maturity and capacity
to act. According to the World Health Organization, when minors, particularly
girls, marry and have children, their health can be adversely affected and
their education is impeded. As a result their economic autonomy is
restricted.
37. This not only affects women personally but also limits the development of
their skills and independence and reduces access to employment, thereby
detrimentally affecting their families and communities.
38. Some countries provide for different ages for marriage for men and women.
As such provisions assume incorrectly that women have a different rate of
intellectual development from men, or that their stage of physical and
intellectual development at marriage is immaterial, these provisions should be
abolished. In other countries, the betrothal of girls or undertakings by
family members on their behalf is permitted. Such measures contravene not
only the Convention, but also a women’s right freely to choose her partner.
39. States parties should also require the registration of all marriages
whether contracted civilly or according to custom or religious law. The State
can thereby ensure compliance with the Convention and establish equality
between partners, a minimum age for marriage, prohibition of bigamy and
polygamy and the protection of the rights of children.
Recommendations
Violence against women
40. In considering the place of women in family life, the Committee wishes to
stress that the provisions of general recommendation 19 (eleventh session)
concerning violence against women have great significance for women’s
abilities to enjoy rights and freedoms on an equal basis with men. States
parties are urged to comply with that general recommendation to ensure that,
in both public and family life, women will be free of the gender-based
violence that so seriously impedes their rights and freedoms as individuals.
Reservations
41. The Committee has noted with alarm the number of States parties which
have entered reservations to the whole or part of article 16, especially when
a reservation has also been entered to article 2, claiming that compliance may
conflict with a commonly held vision of the family based, inter alia, on
cultural or religious beliefs or on the country’s economic or political
status.
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42. Many of these countries hold a belief in the patriarchal structure of a
family which places a father, husband or son in a favourable position. In
some countries where fundamentalist or other extremist views or economic
hardships have encouraged a return to old values and traditions, women’s place
in the family has deteriorated sharply. In others, where it has been
recognized that a modern society depends for its economic advance and for the
general good of the community on involving all adults equally, regardless of
gender, these taboos and reactionary or extremist ideas have progressively
been discouraged.
43. Consistent with articles 2, 3 and 24 in particular, the Committee
requires that all States parties gradually progress to a stage where, by its
resolute discouragement of notions of the inequality of women in the home,
each country will withdraw its reservation, in particular to articles 9, 15
and 16 of the Convention.
44. States parties should resolutely discourage any notions of inequality of
women and men which are affirmed by laws, or by religious or private law or by
custom, and progress to the stage where reservations, particularly to
article 16, will withdrawn.
45. The Committee noted, on the basis of its examination of initial and
subsequent periodic reports, that in some States parties to the Convention
that had ratified or acceded without reservation, certain laws, especially
those dealing with family, do not actually conform to the provisions of the
Convention.
46. Their laws still contain many measures which discriminate against women
based on norms, customs and socio-cultural prejudices. These States, because
of their specific situation regarding these articles, make it difficult for
the Committee to evaluate and understand the status of women.
47. The Committee, in particular on the basis of articles 1 and 2 of the
Convention, requests that those States parties make the necessary efforts to
examine the de facto situation relating to the issues and to introduce the
required measures in their national legislations still containing provisions
discriminatory to women.
Reports
48. Assisted by the comments in the present general recommendation, in their
reports States parties should:
(a) Indicate the stage that has been reached in the country’s progress
to removal of all reservations to the Convention, in particular reservations
to article 16;
(b) Set out whether their laws comply with the principles of
articles 9, 15 and 16 and where, by reason of religious or private law or
custom, compliance with the law or with the Convention is impeded.
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Legislation
49. States parties should, where necessary to comply with the Convention, in
particular in order to comply with articles 9, 15 and 16, enact and enforce
legislation.
Encouraging compliance with the Convention
50. Assisted by the comments in the present general recommendation, and as
required by articles 2, 3 and 24, States parties should introduce measures
directed at encouraging full compliance with the principles of the Convention,
particularly where religious or private law or custom conflict with those
principles.
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Annex I
LIST OF GENERAL COMMENTS ADOPTED BY THE HUMAN RIGHTS COMMITTEE*
Thirteenth session (1981)
General comment 1 Reporting obligation
General comment 2 Reporting guidelines
General comment 3 Article 2: Implementation at the national level
General comment 4 Article 3
General comment 5 Article 4
Sixteenth session (1982)
General comment 6 Article 6
General comment 7 Article 7**
General comment 8 Article 9
General comment 9 Article 10**
Nineteenth session (1983)
General comment 10 Article 19
General comment 11 Article 20
* For the text of the general comments already adopted by the
Committee, see ibid., Thirty-sixth Session, Supplement No. 40 (A/36/40),
annex VII; ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40),
annex V; ibid., Thirty-eighth Session, Supplement No. 40 (A/38/40),
annex VI; ibid., Thirty-ninth Session, Supplement No. 40 (A/39/40 and Corr.1
and 2), annex VI; ibid., Fortieth Session, Supplement No. 40 (A/40/40),
annex VI; ibid., Forty-first Session, Supplement No. 40 (A/41/40),
annex VI; ibid., Forty-third Session, Supplement No. 40 (A/43/40),
annex VI; ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex VI
and ibid., Forty-fifth Session, Supplement No. 40 (A/45/40), annex VI. Also
issued in documents CCPR/C/21/Rev.1 and CCPR/C/21/Rev.1/Add.1, 2 and 3.
** General comments 7 and 9 were replaced by General comments 20 and
21, respectively.
HRI/GEN/1/Rev.1
page 102
Twenty-first session (1984)
General comment 12 Article 1
General comment 13 Article 14
Twenty-third session (1984)
General comment 14 Article 6
Twenty-seventh session (1986)
General comment 15 The position of aliens under the Covenant
Thirty-second session (1988)
General comment 16 Article 17
Thirty-fifth session (1989)
General comment 17 Article 24
Thirty-seventh session (1989)
General comment 18 Non-discrimination
Thirty-ninth session (1990)
General comment 19 Article 23
Forty-fourth session (1992)
General comment 20 Article 7
General comment 21 Article 10
Forty-eighth session (1993)
General comment 22 Article 18
Fiftieth session (1994)
General comment 23 Article 27
HRI/GEN/1/Rev.1
page 103
Annex II
LIST OF GENERAL COMMENTS ADOPTED BY THE COMMITTEE ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Third session (1989)
General comment 1 Reporting by States parties
Fourth session (1990)
General comment 2 International technical assistance measures
(art. 22 of the Covenant)
Fifth session (1990)
General comment 3 The nature of States parties obligations (art. 2,
para. 1 of the Covenant)
Sixth session (1991)
General comment 4 The right to adequate housing (art. 11 (1) of the
Covenant)
HRI/GEN/1/Rev.1
page 104
Annex III
LIST OF GENERAL RECOMMENDATIONS ADOPTED BY THE COMMITTEE
ON THE ELIMINATION OF RACIAL DISCRIMINATION
Fifth session (1972)
General recommendation I States parties’ obligations (art. 4 of
the Convention)
General recommendation II States parties obligations
Sixth session (1972)
General recommendation III Reporting by States parties
Eighth session (1973)
General recommendation IV Reporting by States parties (art. 1 of
the Convention)
Fifteenth session (1977)
General recommendation V Reporting by States parties (art. 7 of
the Convention)
Twenty-fifth session (1982)
General recommendation VI Overdue reports
Thirty-second session (1985)
General recommendation VII Implementation of article 4 of the
Convention
Thirty-eighth session (1990)
General recommendation VIII Interpretation and application of
article 1, paragraphs 1 and 4, of the
Convention
General recommendation IX Application of article 8, paragraph 1
of the Convention
Thirty-ninth session (1991)
General recommendation X Technical assistance
HRI/GEN/1/Rev.1
page 105
Forty-second session (1993)
General recommendation XI Non-citizens
General recommendation XII Successor States
General recommendation XIII Training of law enforcement officials
in the protection of human rights
General recommendation XIV Article 1, paragraph 1, of the
Convention
General recommendation XV Article 4 of the Convention
General recommendation XVI Application of article 9 of the
Convention
General recommendation XVII The establishment of national
institutions to facilitate the
implementation of the Convention
Forty-fourth session (1994)
General recommendation XVIII Establishment of an international
tribunal to prosecute crimes against
humanity
HRI/GEN/1/Rev.1
page 106
Annex IV
LIST OF GENERAL RECOMMENDATIONS ADOPTED BY THE COMMITTEE
ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN
Fifth session (1986)
General recommendation No. 1 Reporting by States parties
Sixth session (1987)
General recommendation No. 2 Reporting by States parties
General recommendation No. 3 Education and public information
campaigns
General recommendation No. 4 Reservations
Seventh session (1988)
General recommendation No. 5 Temporary special measures
General recommendation No. 6 Effective national machinery and
publicity
General recommendation No. 7 Resources
General recommendation No. 8 Implementation of article 8 of the
Convention
Eighth session (1989)
General recommendation No. 9 Statistical data concerning the
situation of women
General recommendation No. 10 Tenth anniversary of the adoption of
the Convention on the Elimination of
All Forms of Discrimination against
Women
General recommendation No. 11 Technical advisory services for
reporting obligations
General recommendation No. 12 Violence against women
General recommendation No. 13 Equal remuneration for work of equal
value
HRI/GEN/1/Rev.1
page 107
Ninth session (1990)
General recommendation No. 14 Female circumcision
General recommendation No. 15 Avoidance of discrimination against
women in national strategies for the
prevention and control of acquired
immunodeficiency syndrome (AIDS)
Tenth session (1991)
General recommendation No. 16 Unpaid women workers in rural and urban
family enterprises
General recommendation No. 17 Measurement and quantification of the
unremunerated domestic activities of
women and their recognition in the
gross national product
General recommendation No. 18 Disabled women
Eleventh session (1992)
General recommendation No. 19 Violence against Women
General recommendation No. 20 Reservations to the Convention
-----
Annex 788
CERD Committee, General Recommendation No. 14
1
Forty-second session (1993)*
General recommendation XIV on article 1, paragraph 1, of the Convention
1. Non-discrimination, together with equality before the law and equal protection of the law
without any discrimination, constitutes a basic principle in the protection of human rights. The
Committee wishes to draw the attention of States parties to certain features of the definition of racial
discrimination in article 1, paragraph 1, of the International Convention on the Elimination of All
Forms of Racial Discrimination. It is of the opinion that the words “based on” do not bear any
meaning different from “on the grounds of” in preambular paragraph 7. A distinction is contrary to the
Convention if it has either the purpose or the effect of impairing particular rights and freedoms. This
is confirmed by the obligation placed upon States parties by article 2, paragraph 1 (c), to nullify any
law or practice which has the effect of creating or perpetuating racial discrimination.
2. The Committee observes that a differentiation of treatment will not constitute discrimination
if the criteria for such differentiation, judged against the objectives and purposes of the Convention,
are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the
criteria that may have been employed, the Committee will acknowledge that particular actions may
have varied purposes. In seeking to determine whether an action has an effect contrary to the
Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group
distinguished by race, colour, descent, or national or ethnic origin.
3. Article 1, paragraph 1, of the Convention also refers to the political, economic, social and
cultural fields; the related rights and freedoms are set up in article 5.
* Contained in document A/48/18.
Annex 789
CERD Committee, General Recommendation No. 31
1
Sixty-fifth session (2005)
General recommendation XXXI on the prevention of racial discrimination
in the administration and functioning of the criminal justice system
The Committee on the Elimination of Racial Discrimination,
Recalling the definition of racial discrimination set out in article 1 of the International
Convention on the Elimination of All Forms of Racial Discrimination,
Recalling the provisions of article 5 (a) of the Convention, under which States parties have an
obligation to guarantee the right of everyone, without distinction as to race, colour, or national or
ethnic origin, to equality before the law, notably in the enjoyment of the right to equal treatment
before the tribunals and all other organs administering justice,
Recalling that article 6 of the Convention requires States parties to assure to everyone within
their jurisdiction effective protection and remedies, through the competent national tribunals and other
State institutions, against any acts of racial discrimination, as well as the right to seek from such
tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such
discrimination,
Referring to paragraph 25 of the declaration adopted by the World Conference against Racism,
Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, in 2001,
which expressed “profound repudiation of the racism, racial discrimination, xenophobia and related
intolerance that persist in some States in the functioning of the penal system and in the application of
the law, as well as in the actions and attitudes of institutions and individuals responsible for law
enforcement, especially where this has contributed to certain groups being overrepresented among
persons under detention or imprisoned”,
Referring to the work of the Commission on Human Rights and of the Sub-Commission on
the Promotion and Protection of Human Rights (see E/CN.4/Sub.2/2005/7) concerning discrimination
in the criminal justice system,
Bearing in mind the reports of the Special Rapporteur on contemporary forms of racism,
racial discrimination, xenophobia and related intolerance,
Referring to the 1951 Convention relating to the Status of Refugees, in particular article 16,
which stipulates that “[a] refugee shall have free access to the courts of law on the territory of all
Contracting States”,
Bearing in mind the observations relating to the functioning of the system of justice made in
the Committee’s conclusions concerning reports submitted by States parties and in general
recommendations XXVII (2000) on discrimination against Roma, XXIX (2002) on discrimination
based on descent and XXX (2004) on discrimination against non-citizens,
Convinced that, even though the system of justice may be regarded as impartial and not
affected by racism, racial discrimination or xenophobia, when racial or ethnic discrimination does
exist in the administration and functioning of the system of justice, it constitutes a particularly serious
violation of the rule of law, the principle of equality before the law, the principle of fair trial and the
right to an independent and impartial tribunal, through its direct effect on persons belonging to groups
which it is the very role of justice to protect,
2
Considering that no country is free from racial discrimination in the administration and
functioning of the criminal justice system, regardless of the type of law applied or the judicial system
in force, whether accusatorial, inquisitorial or mixed,
Considering that the risks of discrimination in the administration and functioning of the
criminal justice system have increased in recent years, partly as a result of the rise in immigration and
population movements, which have prompted prejudice and feelings of xenophobia or intolerance
among certain sections of the population and certain law enforcement officials, and partly as a result
of the security policies and anti-terrorism measures adopted by many States, which among other
things have encouraged the emergence of anti-Arab or anti-Muslim feelings, or, as a reaction,
anti-Semitic feelings, in a number of countries,
Determined to combat all forms of discrimination in the administration and functioning of the
criminal justice system which may be suffered, in all countries of the world, by persons belonging to
racial or ethnic groups, in particular non-citizens - including immigrants, refugees, asylum-seekers
and stateless persons - Roma/Gypsies, indigenous peoples, displaced populations, persons
discriminated against because of their descent, as well as other vulnerable groups which are
particularly exposed to exclusion, marginalization and non-integration in society, paying particular
attention to the situation of women and children belonging to the aforementioned groups, who are
susceptible to multiple discrimination because of their race and because of their sex or their age,
Formulates the following recommendations addressed to States parties:
I. General steps
A. Steps to be taken in order to better gauge the existence and
extent of racial discrimination in the administration and
functioning of the criminal justice system; the search for
indicators attesting to such discrimination
1. Factual indicators
1. States parties should pay the greatest attention to the following possible indicators of
racial discrimination:
(a) The number and percentage of persons belonging to the groups referred to in the last
paragraph of the preamble who are victims of aggression or other offences, especially when they are
committed by police officers or other State officials;
(b) The absence or small number of complaints, prosecutions and convictions relating to
acts of racial discrimination in the country. Such a statistic should not be viewed as necessarily
positive, contrary to the belief of some States. It may also reveal either that victims have inadequate
information concerning their rights, or that they fear social censure or reprisals, or that victims with
limited resources fear the cost and complexity of the judicial process, or that there is a lack of trust in
the police and judicial authorities, or that the authorities are insufficiently alert to or aware of offences
involving racism;
(c) Insufficient or no information on the behaviour of law enforcement personnel
vis-à-vis persons belonging to the groups referred to in the last paragraph of the preamble;
3
(d) The proportionately higher crime rates attributed to persons belonging to those groups,
particularly as regards petty street crime and offences related to drugs and prostitution, as indicators
of the exclusion or the non-integration of such persons into society;
(e) The number and percentage of persons belonging to those groups who are held in
prison or preventive detention, including internment centres, penal establishments, psychiatric
establishments or holding areas in airports;
(f) The handing down by the courts of harsher or inappropriate sentences against persons
belonging to those groups;
(g) The insufficient representation of persons belonging to those groups among the ranks
of the police, in the system of justice, including judges and jurors, and in other law enforcement
departments.
2. In order for these factual indicators to be well known and used, States parties should
embark on regular and public collection of information from police, judicial and prison authorities and
immigration services, while respecting standards of confidentiality, anonymity and protection of
personal data.
3. In particular, States parties should have access to comprehensive statistical or other
information on complaints, prosecutions and convictions relating to acts of racism and xenophobia, as
well as on compensation awarded to the victims of such acts, whether such compensation is paid by
the perpetrators of the offences or under State compensation plans financed from public funds.
2. Legislative indicators
4. The following should be regarded as indicators of potential causes of racial
discrimination:
(a) Any gaps in domestic legislation on racial discrimination. In this regard, States
parties should fully comply with the requirements of article 4 of the Convention and criminalize all
acts of racism as provided by that article, in particular the dissemination of ideas based on racial
superiority or hatred, incitement to racial hatred, violence or incitement to racial violence, but also
racist propaganda activities and participation in racist organizations. States parties are also encouraged
to incorporate a provision in their criminal legislation to the effect that committing offences for racial
reasons generally constitutes an aggravating circumstance;
(b) The potential indirect discriminatory effects of certain domestic legislation,
particularly legislation on terrorism, immigration, nationality, banning or deportation of non-citizens
from a country, as well as legislation that has the effect of penalizing without legitimate grounds
certain groups or membership of certain communities. States should seek to eliminate the
discriminatory effects of such legislation and in any case to respect the principle of proportionality in
its application to persons belonging to the groups referred to in the last paragraph of the preamble.
B. Strategies to be developed to prevent racial discrimination in the
administration and functioning of the criminal justice system
5. States parties should pursue national strategies the objectives of which include the
following:
4
(a) To eliminate laws that have an impact in terms of racial discrimination, particularly
those which target certain groups indirectly by penalizing acts which can be committed only by
persons belonging to such groups, or laws that apply only to non-nationals without legitimate grounds
or which do not respect the principle of proportionality;
(b) To develop, through appropriate education programmes, training in respect for human
rights, tolerance and friendship among racial or ethnic groups, as well as sensitization to intercultural
relations, for law enforcement officials: police personnel, persons working in the system of justice,
prison institutions, psychiatric establishments, social and medical services, etc.;
(c) To foster dialogue and cooperation between the police and judicial authorities and the
representatives of the various groups referred to in the last paragraph of the preamble, in order to
combat prejudice and create a relationship of trust;
(d) To promote proper representation of persons belonging to racial and ethnic groups in
the police and the system of justice;
(e) To ensure respect for, and recognition of the traditional systems of justice of
indigenous peoples, in conformity with international human rights law;
(f) To make the necessary changes to the prison regime for prisoners belonging to the
groups referred to in the last paragraph of the preamble, so as to take into account their cultural and
religious practices;
(g) To institute, in situations of mass population movements, the interim measures and
arrangements necessary for the operation of the justice system in order to take account of the
particularly vulnerable situation of displaced persons, in particular by setting up decentralized courts
at the places where the displaced persons are staying or by organizing mobile courts;
(h) To set up, in post-conflict situations, plans for the reconstruction of the legal system
and the re-establishment of the rule of law throughout the territory of the countries concerned, by
availing themselves, in particular, of the international technical assistance provided by the relevant
United Nations entities;
(i) To implement national strategies or plans of action aimed at the elimination of
structural racial discrimination. These long-term strategies should include specific objectives and
actions as well as indicators against which progress can be measured. They should include, in
particular, guidelines for prevention, recording, investigation and prosecution of racist or xenophobic
incidents, assessment of the level of satisfaction among all communities concerning their relations
with the police and the system of justice, and recruitment and promotion in the judicial system of
persons belonging to various racial or ethnic groups;
(j) To entrust an independent national institution with the task of tracking, monitoring
and measuring progress made under the national plans of action and guidelines against racial
discrimination, identifying undetected manifestations of racial discrimination and submitting
recommendations and proposals for improvement.
5
II. Steps to be taken to prevent racial discrimination
with regard to victims of racism
A. Access to the law and to justice
6. In accordance with article 6 of the Convention, States parties are obliged to guarantee
the right of every person within their jurisdiction to an effective remedy against the perpetrators of
acts of racial discrimination, without discrimination of any kind, whether such acts are committed by
private individuals or State officials, as well as the right to seek just and adequate reparation for the
damage suffered.
7. In order to facilitate access to justice for the victims of racism, States parties should
strive to supply the requisite legal information to persons belonging to the most vulnerable social
groups, who are often unaware of their rights.
8. In that regard, States parties should promote, in the areas where such persons live,
institutions such as free legal help and advice centres, legal information centres and centres for
conciliation and mediation.
9. States parties should also expand their cooperation with associations of lawyers,
university institutions, legal advice centres and non-governmental organizations specializing in
protecting the rights of marginalized communities and in the prevention of discrimination.
B. Reporting of incidents to the authorities
competent for receiving complaints
10. States parties should take the necessary steps to ensure that the police services have
an adequate and accessible presence in the neighbourhoods, regions, collective facilities, camps or
centres where the persons belonging to the groups referred to in the last paragraph of the preamble
reside, so that complaints from such persons can be expeditiously received.
11. The competent services should be instructed to receive the victims of acts of racism
in police stations in a satisfactory manner, so that complaints are recorded immediately, investigations
are pursued without delay and in an effective, independent and impartial manner, and files relating to
racist or xenophobic incidents are retained and incorporated into databases.
12. Any refusal by a police official to accept a complaint involving an act of racism
should lead to disciplinary or penal sanctions, and those sanctions should be increased if corruption is
involved.
13. Conversely, it should be the right and duty of any police official or State employee to
refuse to obey orders or instructions that require him or her to commit violations of human rights,
particularly those based on racial discrimination. States parties should guarantee the freedom of any
official to invoke this right without fear of punishment.
14. In cases of allegations of torture, ill-treatment or executions, investigations should be
conducted in accordance with the Principles on the Effective Prevention and Investigation of
6
Extra-legal, Arbitrary and Summary Executionsi and the Principles on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.ii
C. Initiation of judicial proceedings
15. States parties should remind public prosecutors and members of the prosecution
service of the general importance of prosecuting racist acts, including minor offences committed with
racist motives, since any racially motivated offence undermines social cohesion and society as a
whole.
16. In advance of the initiation of proceedings, States parties could also encourage, with a
view to respecting the rights of the victims, the use of parajudicial procedures for conflict resolution,
including customary procedures compatible with human rights, mediation or conciliation, which can
serve as useful options for the victims of acts of racism and to which less stigma may be attached.
17. In order to make it easier for the victims of acts of racism to bring actions in the
courts, the steps to be taken should include the following:
(a) Offering procedural status for the victims of racism and xenophobia and associations
for the protection of the rights of such victims, such as an opportunity to associate themselves with the
criminal proceedings, or other similar procedures that might enable them to assert their rights in the
criminal proceedings, at no cost to themselves;
(b) Granting victims effective judicial cooperation and legal aid, including the assistance
of counsel and an interpreter free of charge;
(c) Ensuring that victims have information about the progress of the proceedings;
(d) Guaranteeing protection for the victim or the victim’s family against any form of
intimidation or reprisals;
(e) Providing for the possibility of suspending the functions, for the duration of the
investigation, of the agents of the State against whom the complaints were made.
18. In countries where there are assistance and compensation plans for victims, States
parties should ensure that such plans are available to all victims without discrimination and regardless
of their nationality or residential status.
D. Functioning of the system of justice
19. States parties should ensure that the system of justice:
(a) Grants a proper place to victims and their families, as well as witnesses, throughout
the proceedings, by enabling complainants to be heard by the judges during the examination
proceedings and the court hearing, to have access to information, to confront hostile witnesses, to
challenge evidence and to be informed of the progress of proceedings;
(b) Treats the victims of racial discrimination without discrimination or prejudice, while
respecting their dignity, through ensuring in particular that hearings, questioning or confrontations are
carried out with the necessary sensitivity as far as racism is concerned;
(c) Guarantees the victim a court judgement within a reasonable period;
7
(d) Guarantees victims just and adequate reparation for the material and moral harm
suffered as a result of racial discrimination.
III. Steps to be taken to prevent racial discrimination
in regard to accused persons who are subject to
judicial proceedings
A. Questioning, interrogation and arrest
20. States parties should take the necessary steps to prevent questioning, arrests and
searches which are in reality based solely on the physical appearance of a person, that person’s colour
or features or membership of a racial or ethnic group, or any profiling which exposes him or her to
greater suspicion.
21. States parties should prevent and most severely punish violence, acts of torture, cruel,
inhuman or degrading treatment and all violations of human rights affecting persons belonging to the
groups referred to in the last paragraph of the preamble which are committed by State officials,
particularly police and army personnel, customs authorities, and persons working in airports, penal
institutions and social, medical and psychiatric services.
22. States parties should ensure the observance of the general principle of proportionality
and strict necessity in recourse to force against persons belonging to the groups referred to in the last
paragraph of the preamble, in accordance with the Basic Principles on the Use of Force and Firearms
by Law Enforcement Officials.iii
23. States parties should also guarantee to all arrested persons, whatever the racial,
national or ethnic group to which they belong, enjoyment of the fundamental rights of the defence
enshrined in the relevant international human rights instruments (especially the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights), in particular the right
not to be arbitrarily arrested or detained, the right to be informed of the reasons for their arrest, the
right to the assistance of an interpreter, the right to the assistance of counsel, the right to be brought
promptly before a judge or an authority empowered by the law to perform judicial functions, the right
to consular protection guaranteed by article 36 of the Vienna Convention on Consular Relations and,
in the case of refugees, the right to contact the Office of the United Nations High Commissioner for
Refugees.
24. As regards persons placed in administrative holding centres or in holding
areas in airports, States parties should ensure that they enjoy sufficiently decent living conditions.
25. Lastly, as regards the questioning or arrest of persons belonging to the groups
referred to in the last paragraph of the preamble, States parties should bear in mind the special
precautions to be taken when dealing with women or minors, because of their particular vulnerability.
B. Pretrial detention
26. Bearing in mind statistics which show that persons held awaiting trial include an
excessively high number of non-nationals and persons belonging to the groups referred to in the last
paragraph of the preamble, States parties should ensure:
8
(a) That the mere fact of belonging to a racial or ethnic group or one of the
aforementioned groups is not a sufficient reason, de jure or de facto, to place a person in pretrial
detention. Such pretrial detention can be justified only on objective grounds stipulated in the law, such
as the risk of flight, the risk that the person might destroy evidence or influence witnesses, or the risk
of a serious disturbance of public order;
(b) That the requirement to deposit a guarantee or financial security in order to obtain
release pending trial is applied in a manner appropriate to the situation of persons belonging to such
groups, who are often in straitened economic circumstances, so as to prevent this requirement from
leading to discrimination against such persons;
(c) That the guarantees often required of accused persons as a condition of their
remaining at liberty pending trial (fixed address, declared employment, stable family ties) are weighed
in the light of the insecure situation which may result from their membership of such groups,
particularly in the case of women and minors;
(d) That persons belonging to such groups who are held pending trial enjoy all the rights
to which prisoners are entitled under the relevant international norms, and particularly the rights
specially adapted to their circumstances: the right to respect for their traditions as regards religion,
culture and food, the right to relations with their families, the right to the assistance of an interpreter
and, where appropriate, the right to consular assistance.
C. The trial and the court judgement
27. Prior to the trial, States parties may, where appropriate, give preference to
non-judicial or parajudicial procedures for dealing with the offence, taking into account the cultural or
customary background of the perpetrator, especially in the case of persons belonging to indigenous
peoples.
28. In general, States parties must ensure that persons belonging to the groups referred to
in the last paragraph of the preamble, like all other persons, enjoy all the guarantees of a fair trial and
equality before the law, as enshrined in the relevant international human rights instruments, and
specifically.
1. The right to the presumption of innocence
29. This right implies that the police authorities, the judicial authorities and other public
authorities must be forbidden to express their opinions publicly concerning the guilt of the accused
before the court reaches a decision, much less to cast suspicion in advance on the members of a
specific racial or ethnic group. These authorities have an obligation to ensure that the mass media do
not disseminate information which might stigmatize certain categories of persons, particularly those
belonging to the groups referred to in the last paragraph of the preamble.
2. The right to the assistance of counsel and the right to an interpreter
30. Effectively guaranteeing these rights implies that States parties must set up a system
under which counsel and interpreters will be assigned free of charge, together with legal help or
advice and interpretation services for persons belonging to the groups referred to in the last paragraph
of the preamble.
9
3. The right to an independent and impartial tribunal
31. States parties should strive firmly to ensure a lack of any racial or xenophobic
prejudice on the part of judges, jury members and other judicial personnel.
32. They should prevent all direct influence by pressure groups, ideologies, religions and
churches on the functioning of the system of justice and on the decisions of judges, which may have a
discriminatory effect on certain groups.
33. States parties may, in this regard, take into account the Bangalore Principles
of Judicial Conduct adopted in 2002 (E/CN.4/2003/65, annex), which recommend in particular that:
Judges should be aware of the diversity of society and differences linked with
background, in particular racial origins;
They should not, by words or conduct, manifest any bias towards persons or groups
on the grounds of their racial or other origin;
They should carry out their duties with appropriate consideration for all persons, such
as the parties, witnesses, lawyers, court staff and their colleagues, without
unjustified differentiation; and
They should oppose the manifestation of prejudice by the persons under their
direction and by lawyers or their adoption of discriminatory behaviour towards a
person or group on the basis of their colour, racial, national, religious or sexual
origin, or on other irrelevant grounds.
D. Guarantee of fair punishment
34. In this regard, States should ensure that the courts do not apply harsher punishments
solely because of an accused person’s membership of a specific racial or ethnic group.
35. Special attention should be paid in this regard to the system of minimum punishments
and obligatory detention applicable to certain offences and to capital punishment in countries which
have not abolished it, bearing in mind reports that this punishment is imposed and carried out more
frequently against persons belonging to specific racial or ethnic groups.
36. In the case of persons belonging to indigenous peoples, States parties should give
preference to alternatives to imprisonment and to other forms of punishment that are better adapted to
their legal system, bearing in mind in particular International Labour Organization Convention No.
169 concerning Indigenous and Tribal Peoples in Independent Countries.
37. Punishments targeted exclusively at non-nationals that are additional to punishments
under ordinary law, such as deportation, expulsion or banning from the country concerned, should be
imposed only in exceptional circumstances and in a proportionate manner, for serious reasons related
to public order which are stipulated in the law, and should take into account the need to respect the
private family life of those concerned and the international protection to which they are entitled.
E. Execution of sentences
38. When persons belonging to the groups referred to in the last paragraph of the
preamble are serving prison terms, the States parties should:
10
(a) Guarantee such persons the enjoyment of all the rights to which prisoners are entitled
under the relevant international norms, in particular rights specially adapted to their situation: the right
to respect for their religious and cultural practices, the right to respect for their customs as regards
food, the right to relations with their families, the right to the assistance of an interpreter, the right to
basic welfare benefits and, where appropriate, the right to consular assistance. The medical,
psychological or social services offered to prisoners should take their cultural background into
account;
(b) Guarantee to all prisoners whose rights have been violated the right to an effective
remedy before an independent and impartial authority;
(c) Comply, in this regard, with the United Nations norms in this field, and particularly
the Standard Minimum Rules for the Treatment of Prisoners,iv the Basic Principles for the Treatment
of Prisoners v and the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment;vi
(d) Allow such persons to benefit, where appropriate, from the provisions of domestic
legislation and international or bilateral conventions relating to the transfer of foreign prisoners,
offering them an opportunity to serve the prison term in their countries of origin.
39. Further, the independent authorities in the States parties that are responsible for
supervising prison institutions should include members who have expertise in the field of racial
discrimination and sound knowledge of the problems of racial and ethnic groups and the other
vulnerable groups referred to in the last paragraph of the preamble; when necessary, such supervisory
authorities should have an effective visit and complaint mechanism.
40. When non-nationals are sentenced to deportation, expulsion or banning from their
territory, States parties should comply fully with the obligation of non-refoulement arising out of the
international norms concerning refugees and human rights, and ensure that such persons will not be
sent back to a country or territory where they would run the risk of serious violations of their human
rights.
41. Lastly, with regard to women and children belonging to the groups referred to in the
last paragraph of the preamble, States parties should pay the greatest attention possible with a view to
ensuring that such persons benefit from the special regime to which they are entitled in relation to the
execution of sentences, bearing in mind the particular difficulties faced by mothers of families and
women belonging to certain communities, particularly indigenous communities.
Notes
i Recommended by the Economic and Social Council in its resolution 1989/65 of 24 May
1989.
ii Recommended by the General Assembly in its resolution 55/89 of 4 December 2000.
iii Adopted by the Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, 27 August-7 September 1990.
11
iv Adopted by the First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Geneva, 22 August-3 September 1955, and approved by the
Economic and Social Council in its resolutions 663 C (XXIV) of 31 July 1957 and 2076
(LXII) of 13 May 1977.
v Adopted and proclaimed by the General Assembly in its resolution 45/111
of 14 December 1990.
vi Adopted by the General Assembly in its resolution 43/173 of 9 December 1988.
Annex 790
CERD Committee, General Recommendation No. 32
UNITED
NATIONS CERD
International Convention on
the Elimination
of all Forms of
Racial Discrimination
Distr.
GENERAL
CERD/C/GC/32
24 September 2009
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Seventy-fifth session
3 - 28 August 2009
General recommendation No. 32
The meaning and scope of special measures in the
International Convention on the Elimination of All Forms Racial Discrimination
I. INTRODUCTION
A. Background
1. At its seventy-first session, the Committee on the Elimination of Racial Discrimination
(“the Committee”) decided to embark upon the task of drafting a new general recommendation
on special measures, in light of the difficulties observed in the understanding of such notion. At
its seventy-second session, the Committee decided to hold at its next session a thematic
discussion on the subject of special measures within the meaning of articles 1, paragraph 4, and
2, paragraph 2 of the International Convention on the Elimination of Racial Discrimination (“the
Convention”). The thematic discussion was held on 4 and 5 August 2008 with the participation
of States parties to the Convention, representatives of the Committee on the Elimination of
Discrimination against Women, the International Labour Organisation (ILO), the United Nations
Educational, Scientific and Cultural Organization (UNESCO) and non-governmental
organizations. Following the discussion, the Committee renewed its determination to work on a
general recommendation on special measures, with the objective of providing overall
interpretative guidance on the meaning of the above articles in light of the provisions of the
Convention as a whole.
GE.09-45147
CERD/C/GC/32
page 2
2
B. Principal sources
2. The general recommendation is based on the Committee’s extensive repertoire of practice
referring to special measures under the Convention. Committee practice includes the concluding
observations on the reports of States parties to the Convention, communications under article 14,
and earlier general recommendations, in particular general recommendation No. 8 (1990) on
article 1, paragraphs 1 and 4, of the Convention,1 as well as general recommendation No. 27
(2000) on Discrimination against Roma and general recommendation No. 29 (2002) on article 1,
paragraph 1, of the Convention (Descent), both of which make specific reference to special
measures.2
3. In drafting the recommendation, the Committee has also taken account of work on
special measures completed under the aegis of other United Nations human rights bodies,
notably the report by the Special Rapporteur of the Sub-Commission on the Promotion and
Protection of Human Rights3 and general recommendation No. 25 (2004) of the Committee on
the Elimination of Discrimination against Women on temporary special measures.4
C. Purpose
4. The purpose of the general recommendation is to provide, in the light of the Committee’s
experience, practical guidance on the meaning of special measures under the Convention in order
to assist States parties in the discharge of their obligations under the Convention, including
reporting obligations. Such guidance may be regarded as consolidating the wealth of Committee
recommendations to States parties regarding special measures.
D. Methodology
5. The Convention, as the Committee has observed on many occasions, is a living
instrument that must be interpreted and applied taking into account the circumstances of
contemporary society. This approach makes it imperative to read its text in a context-sensitive
manner. The context for the present recommendation includes, in addition to the full text of the
Convention including its title, preamble and operative articles, the range of universal human
rights standards on the principles of non-discrimination and special measures. Context-sensitive
interpretation also includes taking into account the particular circumstances of States parties
without prejudice to the universal quality of the norms of the Convention. The nature of the
Convention and the broad scope of its provisions imply that, while the conscientious application
of Convention principles will produce variations in outcome among States parties, such
variations must be fully justifiable in the light of the principles of the Convention.
1 Official Records of the General Assembly, Forty-fifth Session, Supplement No. 18 (A/45/18), chap. VII.
2 Ibid., Fifty-fifth Session, Supplement No. 18 (A/55/18), annex V. sect. C.; and Fifty-seventh Session, Supplement
No. 18 (A/57/18), chap. XI, sect. F.
3 “The Concept and Practice of Affirmative Action”, Final report submitted by Mr. Marc Bossuyt, Special
Rapporteur, in accordance with Sub-Commission resolution 1998/5 (E/CN.4/Sub.2/2002/21).
4 Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 38 (A/59/38), annex I.
CERD/C/GC/32
page 3
II. EQUALITY AND NON-DISCRIMINATION
AS THE BASIS OF SPECIAL MEASURES
A. Formal and de facto equality
6. The Convention is based on the principles of the dignity and equality of all human
beings. The principle of equality underpinned by the Convention combines formal equality
before the law with equal protection of the law, with substantive or de facto equality in the
enjoyment and exercise of human rights as the aim to be achieved by the faithful implementation
of its principles.
B. Direct and indirect discrimination
7. The principle of enjoyment of human rights on an equal footing is integral to the
Convention’s prohibition of discrimination on grounds of race, colour, descent, and national or
ethnic origin. The “grounds” of discrimination are extended in practice by the notion of
“intersectionality” whereby the Committee addresses situations of double or multiple
discrimination - such as discrimination on grounds of gender or religion – when discrimination
on such a ground appears to exist in combination with a ground or grounds listed in article 1 of
the Convention. Discrimination under the Convention includes purposive or intentional
discrimination and discrimination in effect. Discrimination is constituted not simply by an
unjustifiable “distinction, exclusion or restriction” but also by an unjustifiable “preference”,
making it especially important that States parties distinguish “special measures” from
unjustifiable preferences.
8. On the core notion of discrimination, in its general recommendation No. 30 (2004) on
discrimination against non-citizens, the Committee observed that differential treatment will
“constitute discrimination if the criteria for such differentiation, judged in the light of the
objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are
not proportional to the achievement of this aim”.5 As a logical corollary of this principle, in its
general recommendation No. 14 (1993) on article 1, paragraph 1, of the Convention, the
Committee observes that “differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes of the Convention,
are legitimate”.6 The term “non-discrimination” does not signify the necessity of uniform
treatment when there are significant differences in situation between one person or group and
another, or, in other words, if there is an objective and reasonable justification for differential
treatment. To treat in an equal manner persons or groups whose situations are objectively
different will constitute discrimination in effect, as will the unequal treatment of persons whose
situations are objectively the same. The Committee has also observed that the application of the
principle of non-discrimination requires that the characteristics of groups be taken into
consideration.
5 Ibid., Supplement No. 18 (A/59/18), chap. VII, para. 4.
6 Ibid., Forty-eighth Session, Supplement No. 18 (A/48/18), chapter VIII, sect. B.
CERD/C/GC/32
page 4
4
C. Scope of the principle of non-discrimination
9. The principle of non-discrimination, according to article 1, paragraph 1, of the
Convention, protects the enjoyment on an equal footing of human rights and fundamental
freedoms “in the political, economic, social, cultural or any other field of public life”. The list of
human rights to which the principle applies under the Convention is not closed and extends to
any field of human rights regulated by the public authorities in the State party. The reference to
public life does not limit the scope of the non-discrimination principle to acts of the public
administration but should be read in the light of the provisions in the Convention mandating
measures by States parties to address racial discrimination “by any persons, group or
organization”.7
10. The concepts of equality and non-discrimination in the Convention, and the obligation on
States parties to achieve the objectives of the Convention, are further elaborated and developed
through the provisions in articles 1, paragraph 4, and 2, paragraph 2, regarding special measures.
III. THE CONCEPT OF SPECIAL MEASURES
A. Objective of special measures: Advancing effective equality
11. The concept of special measures is based on the principle that laws, policies and practices
adopted and implemented in order to fulfil obligations under the Convention require
supplementing, when circumstances warrant, by the adoption of temporary special measures
designed to secure to disadvantaged groups the full and equal enjoyment of human rights and
fundamental freedoms. Special measures are one component in the ensemble of provisions in the
Convention dedicated to the objective of eliminating racial discrimination, the successful
achievement of which will require the faithful implementation of all Convention provisions.
B. Autonomous meaning of special measures
12. The terms “special measures” and “special and concrete measures” employed in the
Convention may be regarded as functionally equivalent and have an autonomous meaning to be
interpreted in the light of the Convention as a whole, which may differ from usage in particular
States parties. The term “special measures” includes also measures that in some countries may be
described as “affirmative measures”, “affirmative action” or “positive action” in cases where
they correspond to the provisions of articles 1, paragraph 4, and 2, paragraph 2, of the
Convention, as explained in the following paragraphs. In line with the Convention, the present
recommendation employs the terms “special measures” or “special and concrete measures” and
encourages States parties to employ terminology that clearly demonstrates the relationship of
their laws and practice to these concepts in the Convention. The term “positive discrimination”
is, in the context of international human rights standards, a contradictio in terminis and should be
avoided.
7 Article 2, paragraph 1 (d); see also article 2, paragraph 1 (b).
CERD/C/GC/32
page 5
13. “Measures” include the full span of legislative, executive, administrative, budgetary and
regulatory instruments, at every level in the State apparatus, as well as plans, policies,
programmes and preferential regimes in areas such as employment, housing, education, culture
and participation in public life for disfavoured groups, devised and implemented on the basis of
such instruments. States parties should include, as required in order to fulfil their obligations
under the Convention, provisions on special measures in their legal systems, whether through
general legislation or legislation directed to specific sectors in the light of the range of human
rights referred to in article 5 of the Convention, and through plans, programmes and other policy
initiatives referred to above at national, regional and local levels.
C. Special measures and other related notions
14. The obligation to take special measures is distinct from the general positive obligation of
States parties to the Convention to secure human rights and fundamental freedoms on a nondiscriminatory
basis to persons and groups subject to their jurisdiction; this is a general
obligation flowing from the provisions of the Convention as a whole and integral to all parts of
the Convention.
15. Special measures should not be confused with specific rights pertaining to certain
categories of person or community, such as, for example the rights of persons belonging to
minorities to enjoy their own culture, profess and practise their own religion and use their own
language, the rights of indigenous peoples, including rights to lands traditionally occupied by
them, and rights of women to non-identical treatment with men, such as the provision of
maternity leave, on account of biological differences from men.8 Such rights are permanent
rights, recognized as such in human rights instruments, including those adopted in the context of
the United Nations and its specialized agencies. States parties should carefully observe
distinctions between special measures and permanent human rights in their law and practice. The
distinction between special measures and permanent rights implies that those entitled to
permanent rights may also enjoy the benefits of special measures.9
D. Conditions for the adoption and implementation of special measures
16. Special measures should be appropriate to the situation to be remedied, be legitimate,
necessary in a democratic society, respect the principles of fairness and proportionality, and be
temporary. The measures should be designed and implemented on the basis of need, grounded in
a realistic appraisal of the current situation of the individuals and communities concerned.
17. Appraisals of the need for special measures should be carried out on the basis of accurate
data, disaggregated by race, colour, descent and ethnic or national origin and incorporating a
gender perspective, on the socio-economic and cultural10 status and conditions of the various
8 See Committee on the Elimination of Discrimination against Women, general recommendation 25 (note 4
above), paragraph 16.
9 See for example paragraph 19 of general recommendation 25 of the Committee on the Elimination of
Discrimination against Women (note 4 above), and paragraph 12 of the Recommendations of the Forum on Minority
Issues on rights to education (A/HRC/10/11/Add.1).
10 Article 2, paragraph 2, includes the term “cultural” as well as “social” and “economic”.
CERD/C/GC/32
page 6
6
groups in the population and their participation in the social and economic development of the
country.
18. States parties should ensure that special measures are designed and implemented on the
basis of prior consultation with affected communities and the active participation of such
communities.
IV. CONVENTION PROVISIONS ON SPECIAL MEASURES
A. Article 1, paragraph 4
19. Article 1, paragraph 4, of the Convention stipulates that “special measures taken for the
sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals
requiring such protection as may be necessary in order to ensure such groups or individuals equal
enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence, lead to the
maintenance of separate rights for different racial groups and that they shall not be continued
after the objectives for which they were taken have been achieved”.
20. By employing the phrase “shall not be deemed racial discrimination”, article 1,
paragraph 4, of the Convention makes it clear that special measures taken by States parties under
the terms of the Convention do not constitute discrimination, a clarification reinforced by the
travaux préparatoires of the Convention which record the drafting change from “should not be
deemed racial discrimination” to “shall not be deemed racial discrimination”. Accordingly,
special measures are not an exception to the principle of non-discrimination but are integral to its
meaning and essential to the Convention project of eliminating racial discrimination and
advancing human dignity and effective equality.
21. In order to conform to the Convention, special measures do not amount to discrimination
when taken for the “sole purpose” of ensuring equal enjoyment of human rights and fundamental
freedoms. Such a motivation should be made apparent from the nature of the measures
themselves, the arguments used by the authorities to justify the measures and the instruments
designed to put the measures into effect. The reference to “sole purpose” limits the scope of
acceptable motivations for special measures within the terms of the Convention.
22. The notion of “adequate advancement” in article 1, paragraph 4, implies goal-directed
programmes which have the objective of alleviating and remedying disparities in the enjoyment
of human rights and fundamental freedoms affecting particular groups and individuals,
protecting them from discrimination. Such disparities include but are not confined to persistent
or structural disparities and de facto inequalities resulting from the circumstances of history that
continue to deny to vulnerable groups and individuals the advantages essential for the full
development of the human personality. It is not necessary to prove “historic” discrimination in
order to validate a programme of special measures; the emphasis should be placed on correcting
present disparities and on preventing further imbalances from arising.
CERD/C/GC/32
page 7
23. The term “protection” in the same paragraph signifies protection from violations of
human rights emanating from any source, including discriminatory activities of private persons,
in order to ensure the equal enjoyment of human rights and fundamental freedoms. The term
“protection” also indicates that special measures may have preventive (of human rights
violations) as well as corrective functions.
24. Although the Convention designates “racial or ethnic groups or individuals requiring …
protection” (article 1, paragraph 4), and “racial groups or individuals belonging to them” (article
2, paragraph 2), as the beneficiaries of special measures, the measures shall in principle be
available to any group or person covered by article 1 of the Convention, as clearly indicated by
the travaux préparatoires of the Convention, as well as by the practice of States parties and the
relevant concluding observations of the Committee.11
25. Article 1, paragraph 4, is expressed more broadly than article 2, paragraph 2, in that it
refers to individuals “requiring … protection” without reference to ethnic group membership.
The span of potential beneficiaries or addressees of special measures should however be
understood in the light of the overall objective of the Convention as dedicated to the elimination
of all forms of racial discrimination, with special measures as an essential tool, where
appropriate, for the achievement of this objective.
26. Article 1, paragraph 4, provides for limitations on the employment of special measures by
States parties. The first limitation is that the measures “should not lead to the maintenance of
separate rights for different racial groups”. This provision is narrowly drawn to refer to “racial
groups” and calls to mind the practice of Apartheid referred to in article 3 of the Convention,
which was imposed by the authorities of the State, and to practices of segregation referred to in
that article and in the preamble to the Convention. The notion of inadmissible “separate rights”
must be distinguished from rights accepted and recognized by the international community to
secure the existence and identity of groups such as minorities, indigenous peoples and other
categories of person whose rights are similarly accepted and recognized within the framework of
universal human rights.
27. The second limitation on special measures is that “they shall not be continued after the
objectives for which they have been taken have been achieved”. This limitation on the
operation of special measures is essentially functional and goal-related: the measures should
cease to be applied when the objectives for which they were employed – the equality goals –
have been sustainably achieved.12 The length of time permitted for the duration of the measures
will vary in the light of their objectives, the means utilized to achieve them, and the results of
their application. Special measures should, therefore, be carefully tailored to meet the particular
needs of the groups or individuals concerned.
11 See also paragraph 7 above.
12 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on Non-Discrimination in
Economic, Social and Cultural Rights, paragraph 9.
CERD/C/GC/32
page 8
8
B. Article 2, paragraph 2
28. Article 2, paragraph 2, of the Convention stipulates that “States parties shall, when the
circumstances so warrant, take, in the social, economic, cultural and other fields, special and
concrete measures to ensure the adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment
of human rights and fundamental freedoms. These measures shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial groups after the
objectives for which they were taken have been achieved”.
29. Article 1, paragraph 4, of the Convention is essentially a clarification of the meaning of
discrimination when applied to special measures. Article 2, paragraph 2, carries forward the
special measures concept into the realm of obligations of States parties, along with the text of
article 2 as a whole. Nuances of difference in the use of terms in the two paragraphs do not
disturb their essential unity of concept and purpose.
30. The use in the paragraph of the verb “shall” in relation to taking special measures clearly
indicates the mandatory nature of the obligation to take such measures. The mandatory nature of
the obligation is not weakened by the addition of the phrase “when the circumstances so
warrant”, a phrase that should be read as providing context for the application of the measures.
The phrase has, in principle, an objective meaning in relation to the disparate enjoyment of
human rights by persons and groups in the State party and the ensuing need to correct such
imbalances.
31. The internal structure of States parties, whether unitary, federal or decentralized, does not
affect their responsibility under the Convention, when resorting to special measures, to secure
their application throughout the territory of the State. In federal or decentralized States, the
federal authorities shall be internationally responsible for designing a framework for the
consistent application of special measures in all parts of the State where such measures are
necessary.
32. Whereas article 1, paragraph 4, of the Convention uses the term “special measures”,
article 2, paragraph 2, refers to “special and concrete measures”. The travaux préparatoires of
the Convention do not highlight any distinction between the terms and the Committee has
generally employed both terms as synonymous.13 Bearing in mind the context of article 2 as a
broad statement of obligations under the Convention, the terminology employed in article 2,
paragraph 2, is appropriate to its context in focusing on the obligation of States parties to adopt
measures tailored to fit the situations to be remedied and capable of achieving their objectives.
33. The reference in article 2, paragraph 2, regarding the objective of special measures to
ensure “adequate development and protection” of groups and individuals may be compared with
the use of the term “advancement” in article 1, paragraph 4. The terms of the Convention signify
that special measures should clearly benefit groups and individuals in their enjoyment of human
rights. The naming of fields of action in the paragraph – “social, economic, cultural and other
13 The United Nations Declaration on the Elimination of All Forms of Racial Discrimination referred, in article 2,
paragraph 3, to ‘special and concrete measures’ (General Assembly resolution 1904 (XVIII)). See also paragraph
12 above.
CERD/C/GC/32
page 9
fields” – does not describe a closed list. In principle, special measures can reach into all fields of
human rights deprivation, including deprivation of the enjoyment of any human rights expressly
or impliedly protected by article 5 of the Convention. In all cases, it is clear that the reference to
limitations of “development” relates only to the situation or condition in which groups or
individuals find themselves and is not a reflection on any individual or group characteristic.
34. Beneficiaries of special measures under article 2, paragraph 2, may be groups or
individuals belonging to such groups. The advancement and protection of communities through
special measures is a legitimate objective to be pursued in tandem with respect for the rights and
interests of individuals. The identification of an individual as belonging to a group should be
based on self-identification by the individual concerned, unless a justification exists to the
contrary.
35. Provisions on the limitations of special measures in article 2, paragraph 2, are in essence
the same, mutatis mutandis, as those expressed in article 1, paragraph 4. The requirement to limit
the period for which the measures are taken implies the need, as in the design and initiation of
the measures, for a continuing, system of monitoring their application and results using, as
appropriate, quantitative and qualitative methods of appraisal. States parties should also carefully
determine whether negative human rights consequences would arise for beneficiary communities
consequent upon an abrupt withdrawal of special measures, especially if such have been
established for a lengthy period of time.
V. RECOMMENDATIONS FOR THE PREPARATION
OF REPORTS BY STATES PARTIES
36. The present guidance on the content of reports confirms and amplifies the guidance
provided to States parties in the Harmonized guidelines on reporting under the international
human rights treaties, including guidelines on a common core document and treaty-specific
documents (HRI/MC/2006/3) and the Guidelines for the CERD-specific document to be
submitted by States parties under article 9, paragraph 1, of the Convention (CERD/C/2007/1).
37. Reports of States parties should describe special measures in relation to any articles of
the Convention to which the measures are related. The reports of States parties should also
provide information, as appropriate, on:
The terminology applied to special measures as understood in the Convention
The justifications for special measures, including relevant statistical and other data on the
general situation of beneficiaries, a brief account of how the disparities to be remedied
have arisen, and the results to be expected from the application of measures
The intended beneficiaries of the measures
The range of consultations undertaken towards the adoption of the measures including
consultations with intended beneficiaries and with civil society generally
The nature of the measures and how they promote the advancement, development and
protection of groups and individuals concerned
The fields of action or sectors where special measures have been adopted
Where possible, the envisaged duration of the measures
The institutions in the State responsible for implementing the measures
CERD/C/GC/32
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10
The available mechanisms for monitoring and evaluation of the measures
Participation by targeted groups and individuals in the implementing institutions and in
monitoring and evaluation processes
The results, provisional or otherwise, of the application of the measures
Plans for the adoption of new measures and the justifications thereof
Information on reasons why, in the light of situations that appear to justify the adoption
of measures, such measures have not been taken.
38. In cases where a reservation affecting Convention provisions on special measures is
maintained, States parties are invited to provide information as to why such a reservation is
considered necessary, the nature and scope of the reservation, its precise effects in terms of
national law and policy, and any plans to limit or withdraw the reservation within a specified
time frame. In cases where States parties have adopted special measures despite the reservation,
they are invited to provide information on such measures in line with the recommendations in
paragraph 37 above.
- - - - -
Annex 791
CERD Committee, General Recommendation No. VIII Concerning the Interpretation and
Application of Article 1, Paragraphs 1 and 4 of the Convention Thirty-Eighth Session, contained
in U.N. Doc A/45/18 (23 August 1990)
1
Thirty-eighth session (1990)*
General recommendation VIII concerning the interpretation and
application of article 1, paragraphs 1 and 4 of the Convention
The Committee on the Elimination of Racial Discrimination,
Having considered reports from States parties concerning information about the ways in
which individuals are identified as being members of a particular racial or ethnic group or groups,
Is of the opinion that such identification shall, if no justification exists to the contrary, be
based upon self-identification by the individual concerned.
* Contained in document A/45/18.
Annex 792
Report of the CERD Committee, General Assembly Official Records: 48th Session, Supp. No. 18,
U.N. Doc. No. A/48/18 (19 January 1994)
UNITED NATIONS A
General Assembly
Distr.
GENERAL
A/48/18
15 September 1993
ORIGINAL: ENGLISH
Forty-eighth session
REPORT OF THE COMMITTEE ON THE ELIMINATION OF
RACIAL DISCRIMINATION*
__________
* The present document is a mimeographed version of the report of the
Committee on the Elimination of Racial Discrimination. The final report will be
issued as Official Records of the General Assembly, Forty-eighth Session,
Supplement No. 18 (A/48/18).
93-50216 (E) 041093 /...
CONTENTS
Paragraphs Page
LETTER OF TRANSMITTAL .................................................. 6
I. ORGANIZATIONAL AND RELATED MATTERS ................... 1 - 10 8
A. States parties to the International Convention on
the Elimination of All Forms of Racial
Discrimination ................................... 1 - 2 8
B. Sessions and agenda .............................. 3 - 4 8
C. Membership and attendance ........................ 5 - 7 8
D. Officers of the Committee ........................ 8 10
E. Cooperation with the International Labour
Organisation and the United Nations Educational,
Scientific and Cultural Organization ............. 9 - 10 10
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-SEVENTH
SESSION .............................................. 11 - 19 11
A. Annual report submitted by the Committee on the
Elimination of Racial Discrimination under
article 9, paragraph 2, of the Convention ........ 12 11
B. Effective implementation of international
instruments on human rights, including reporting
obligations under international instruments on
human rights ..................................... 13 - 19 12
III. CONSIDERATION OF REPORTS, COMMENTS AND INFORMATION
SUBMITTED BY STATES PARTIES UNDER ARTICLE 9 OF THE
CONVENTION ........................................... 20 - 573 14
A. Status of submission of reports by States parties 20 - 32 14
1. Reports received by the Committee ............ 20 - 25 14
2. Reports not yet received by the Committee .... 26 16
3. Action taken by the Committee to ensure
submission of reports by States parties ...... 27 - 32 25
B. Consideration of reports ......................... 33 - 573 26
Ukraine .......................................... 42 - 65 27
Algeria .......................................... 66 - 85 31
Qatar ............................................ 86 - 99 34
Sudan ............................................ 100 - 127 36
Ecuador .......................................... 128 - 146 40
-2-
CONTENTS (continued)
Paragraphs Page
Central African Republic ......................... 147 - 151 43
Jamaica .......................................... 152 - 161 44
Chad ............................................. 162 - 171 45
Mozambique ....................................... 172 - 177 46
Poland ........................................... 178 - 198 47
Republic of Korea ................................ 199 - 235 50
Zambia ........................................... 236 - 256 54
Islamic Republic of Iran ......................... 257 - 277 58
Holy See ......................................... 278 - 305 62
Nigeria .......................................... 306 - 329 65
Viet Nam ......................................... 330 - 358 69
Kuwait ........................................... 359 - 381 72
United Kingdom of Great Britain and Northern
Ireland .......................................... 382 - 425 76
Germany .......................................... 426 - 452 84
Bosnia and Herzegovina ........................... 453 - 473 89
Croatia .......................................... 474 - 508 92
Federal Republic of Yugoslavia (Serbia and
Montenegro) ...................................... 509 - 547 97
Tonga ............................................ 548 - 559 103
Papua New Guinea ................................. 560 - 573 104
IV. CONSIDERATION OF COMMUNICATIONS UNDER ARTICLE 14 OF
THE CONVENTION ....................................... 574 - 584 107
V. CONSIDERATION OF COPIES OF PETITIONS, COPIES OF
REPORTS AND OTHER INFORMATION RELATING TO TRUST AND
NON-SELF-GOVERNING TERRITORIES AND TO ALL OTHER
TERRITORIES TO WHICH GENERAL ASSEMBLY RESOLUTION
1514 (XV) APPLIES, IN CONFORMITY WITH ARTICLE 15 OF
THE CONVENTION ....................................... 585 - 588 109
VI. SECOND DECADE TO COMBAT RACISM AND RACIAL
DISCRIMINATION ....................................... 589 - 595 110
VII. WORLD CONFERENCE ON HUMAN RIGHTS ..................... 596 - 601 111
-3-
CONTENTS (continued)
Page
VIII. DECISIONS AND GENERAL RECOMMENDATIONS ADOPTED BY THE COMMITTEE
AT ITS FORTY-SECOND SESSION ..................................... 113
A. Decisions ................................................... 113
1. Further information requested from certain States of the
former Yugoslavia ....................................... 113
B. General Recommendations ..................................... 113
General Recommendation XI (42) on non-citizens .............. 113
General Recommendation XII (42) on successor States ......... 114
General Recommendation XIII (42) on the training of law
enforcement officials in the protection of human rights ..... 114
General Recommendation XIV (42) on article 1, paragraph 1, of
the Convention .............................................. 115
General Recommendation XV (42) on article 4 of the
Convention .................................................. 115
General Recommendation XVI (42) concerning the application of
article 9 of the Convention ................................. 116
General Recommendation XVII (42) on the establishment of
national institutions to facilitate the implementation of the
Convention .................................................. 117
Annexes
I. A. States parties to the International Convention on the
Elimination of All Forms of Racial Discrimination (137), as
at 20 August 1993 ........................................... 119
B. States parties that have made the declaration under
article 14, paragraph 1, of the Convention (18) ............. 123
II. Agendas of the forty-second and forty-third sessions ............ 124
A. Forty-second session ........................................ 124
B. Forty-third session ......................................... 124
III. Prevention of racial discrimination, including early warning and
urgent procedures: working paper adopted by the Committee on the
Elimination of Racial Discrimination ............................ 126
IV. Opinion of the Committee on the Elimination of Racial
Discrimination .................................................. 131
V. Amended rules of procedure ...................................... 138
VI. Letter to the Secretary-General ................................. 141
-4-
CONTENTS (continued)
Page
VII. Letter to the Chairman of the Commission on Human Rights ....... 142
VIII. List of documents issued for the forty-second and forty-third
sessions of the Committee ...................................... 144
IX. Documents received by the Committee on the Elimination of Racial
Discrimination at its forty-second and forty-third sessions,
pursuant to decisions of the Trusteeship Council and the Special
Committee on the Situation with regard to the Implementation of
the Declaration on the Granting of Independence to Colonial
Countries and Peoples, in conformity with article 15 of the
Convention ..................................................... 148
X. Country rapporteurs for reports considered by the Committee at
its forty-second and forty-third sessions ...................... 149
-5-
Conference on Security and Cooperation in Europe (CSCE), which was monitoring
ethnic tension and human rights violations in Kosovo, as well as in Vojvodina
and Sandzak.
541. The Committee was also concerned that Serbs in Bosnia and Herzegovina were
hindering the attempts of the Government of that State to implement the
Convention.
(d) Suggestions and recommendations
542. The Committee underlined that non-discrimination in the enjoyment of
fundamental, civil, political, economic, social and cultural rights must be
effectively guaranteed in law and actively protected in practice if further
ethnic unrest was to be avoided. The Committee in no way encouraged unilateral
trends towards separatism or secession. In that connection, the Committee noted
that separatism could best be discouraged by the active promotion and protection
of minority rights and inter-ethnic tolerance.
543. The Committee recommended that, in conformity with articles 2 and 4 of the
Convention, the Government should prohibit racial discrimination and should
urgently take vigorous steps to ban racist activities and propaganda. In that
connection it was vital that paramilitary groups be disbanded, reports of
ethnically motivated attacks, including allegations of arbitrary arrests,
disappearance and torture, promptly investigated and those responsible punished.
The Committee emphasized the importance of providing proper training in human
rights norms for law enforcement officials in accordance with its General
Recommendation XIII and of ensuring the equitable representation among their
ranks of national minorities.
544. The Committee strongly emphasized the need for urgent measures in respect
of the situation in Kosovo in order to prevent persisting ethnic problems there
from escalating into violence and armed conflict. The Committee recommended, in
particular, that all possible measures be taken by both sides to foster dialogue
between the Government and the leaders of Albanians in Kosovo. The Committee
recommended that the Government of the Federal Republic of Yugoslavia (Serbia
and Montenegro) strengthen the territorial integrity of the State by considering
ways of assuring autonomy in Kosovo with a view to ensuring the effective
representation of the Albanians in political and judicial institutions and their
participation in democratic processes.
545. The Committee urged the Federal Republic of Yugoslavia (Serbia and
Montenegro) to undertake all measures at its disposal with a view to bringing to
an end the massive, gross and systematic human rights violations currently
occurring in those areas of Croatia and Bosnia and Herzegoina controlled by
Serbs. The Committee also urged the State party to assist efforts to arrest,
bring to trial and punish all those responsible for crimes which would be
covered by the terms of reference of the international tribunal established
pursuant to Security Council resolution 808 (1993). The Committee further urged
the Federal Republic of Yugoslavia (Serbia and Montenegro) to give effect to the
International Court of Justice’s Order of Provisional Measures of 8 April 1993.
Further action
546. Taking into account the wish expressed by the representative of the
Government and the need to promote a dialogue between the Albanians in Kosovo
and the Government, the Committee offered its good offices in the form of a
mission of its members. The purpose of the mission would be to help promote a
dialogue for a peaceful solution of issues concerning respect for human rights
in Kosovo, in particular the elimination of all forms of racial discrimination
-102-
Annex 793
Russian Federation, Reports Submitted by States Parties under Article 9 of the Convention,
Twentieth to Twenty-Second Periodic Reports of States Parties due in 2012, Russian Federation,
CERD/C/RUS/20-22 (6 June 2012)
GE.12-43423 (E) 191012 251012
Committee on the Elimination of Racial Discrimination
Reports submitted by States parties under
article 9 of the Convention
Twentieth to twenty-second periodic reports of
States parties due in 2012
Russian Federation*, **, ***
[13 March 2012]
* This document contains the twentieth, twenty-first and twenty-second periodic reports of the Russian
Federation due on 6 March 2008, 2010 and 2012 respectively, submitted in one document. For
eighteenth and nineteenth periodic reports and the summary records of the meetings at which the
Committee considered this report, see documents CERD/C/RUS/19 and CERD/C/SR.1882, 1883,
1897 and 1898.
** In accordance with the information transmitted to the States parties regarding the processing of their
reports, the present document was not formally edited before being sent to the United Nations
translation services.
*** Annexes can be consulted in the files of the Secretariat.
United Nations CERD/C/RUS/20-22
International Convention on
the Elimination of All Forms
of Racial Discrimination
Distr.: General
6 June 2012
English
Original: Russian
CERD/C/RUS/20-22
2 GE.12-43423
Contents
Paragraphs Page
I. Introduction ............................................................................................................. 1–5 4
II. General information ................................................................................................ 6–59 5
A. Ethnic make-up and languages spoken ........................................................... 8–14 5
B. Foundations of State policy on preventing and combating racial
discrimination ................................................................................................. 15–37 6
C. International cooperation and the participation of the Russian Federation
in international organizations and projects ..................................................... 38–60 10
III. Measures taken by the Russian Federation to implement the basic provisions
of the Convention .................................................................................................... 61–401 13
A. Article 1 .......................................................................................................... 61–64 13
B. Article 2 .......................................................................................................... 65–104 14
C. Article 4 .......................................................................................................... 105–172 21
D. Article 5 .......................................................................................................... 173–248 30
1. Situation with regard to the realization of the rights of members of
the Roma community ............................................................................. 249–260 40
2. Implementation of the rights of the small indigenous peoples of the
Russian Federation ................................................................................. 261–294 41
3. Protection of religious rights .................................................................. 295–300 45
E. Article 6 .......................................................................................................... 301–310 46
F. Article 7 .......................................................................................................... 311–312 47
1. Inter-ethnic relations .............................................................................. 313–333 47
2. Education ................................................................................................ 334–388 52
3. Culture .................................................................................................... 389–401 60
IV. Information on the implementation of the concluding observations of the
Committee on the Elimination of Racial Discrimination, adopted
following the consideration of the eighteenth and nineteenth
reports of the Russian Federation ............................................................................ 402–555 62
Paragraph 9 ..................................................................................................... 402–407 62
Paragraph 10 ................................................................................................... 408–412 62
Paragraph 11 ................................................................................................... 413 63
Paragraph 12 ................................................................................................... 414 63
Paragraph 13 ................................................................................................... 415–419 63
Paragraph 14 ................................................................................................... 420 64
Paragraph 15 ................................................................................................... 421 64
Paragraphs 16–18 ............................................................................................ 422–436 64
Paragraph 19 ................................................................................................... 437–449 66
CERD/C/RUS/20-22
GE.12-43423 3
Paragraph 20 ................................................................................................... 450 67
Paragraph 21 ................................................................................................... 451–459 68
Paragraph 22 ................................................................................................... 460–463 69
Paragraph 23 ................................................................................................... 464–468 69
Paragraph 24 ................................................................................................... 469–495 70
Paragraph 25 ................................................................................................... 496–499 73
Paragraph 26 ................................................................................................... 500 73
Paragraph 27 ................................................................................................... 501–512 73
Paragraph 28 ................................................................................................... 513–524 75
Paragraph 29 ................................................................................................... 525–538 76
Paragraph 30 ................................................................................................... 539–555 77
CERD/C/RUS/20-22
4 GE.12-43423
I. Introduction
1. This consolidated report, which combines the twentieth, twenty-first and twentysecond
periodic reports of the Russian Federation, is in line with article 9, paragraph 1, of
the International Convention on the Elimination of All Forms of Racial Discrimination and
was produced in accordance with the guidelines for the CERD-specific document to be
submitted by States parties under article 9, paragraph 1, of the Convention.
2. The report covers the period from August 2006 to February 2012 and contains a
description of legislative, judicial and administrative measures with the help of which the
provisions of the Convention have been implemented since the presentation of the Russian
Federation’s eighteenth and nineteenth periodic reports (CERD/C/RUS/19).
3. It takes into account the concluding observations adopted by the Committee on the
Elimination of Racial Discrimination following its consideration of the Russian
Federation’s eighteenth and nineteenth reports (CERD/C/RUS/CO/19) and presents
information in that regard.
4. The report was elaborated by the Government of the Russian Federation and reflects
its position. Non-governmental organizations (federal autonomous ethnic cultural
organizations, human rights defence organizations, religious organizations) and
administrative experts were involved in drawing up the report and discussing its drafting at
meetings in the Ministry of Regional Development. The Government of the Russian
Federation expresses appreciation to all participants for their ideas and proposals.
5. The annex to this report contains:
• Information on the ethnic make-up of the Russian Federation in line with data from
the 2010 national population census
• Government Decision No. 255 of 24 March 2000 on the inventory of small
indigenous peoples of the Russian Federation
• Government Order No. 132 of 4 February 2009 on the ratification of an Outline for
the sustainable development of the small indigenous peoples of the North, Siberia
and the Russian Far East
• Government Order No. 631 of 8 May 2009 on the approval of an inventory of
traditional habitats and areas of traditional economic activities of the small
indigenous peoples of the Russian Federation and an inventory of forms of
traditional economic activities of the small indigenous peoples of the Russian
Federation
• European Court of Human Rights Decision No. 17582/05 of 7 December 2006 on
the admissibility of the application “Igor Vladimirovich Artyomov v. the Russian
Federation”
• Supreme Court Ruling No. G05-134 of 2 December 2005 on the revocation of the
registration of a list of candidates for election as deputies to the urban Duma, in
connection with the violation by a regional branch of a political party of the
provisions of electoral legislation
• Supreme Court Ruling No. 46-V08-5 of 15 August 2008 upholding a lawsuit for
reinstatement of the editor-in-chief of a district newspaper who had been wrongfully
dismissed as a consequence of discrimination and abuse of rights by the head of the
district administration
CERD/C/RUS/20-22
GE.12-43423 5
• The list of non-profit organizations in connection with which the court has issued an
enforceable decision on the elimination or prohibition of activities for the reasons set
out in the Federal Act on Combating Extremist Activities
• Information on the number of media outlets in the languages of the peoples of
Russia
• Peoples of Russia: Atlas of cultures and religions; executive editors: A.V.
Zhuravsky, O.E. Kuzmina, V.A. Tishkov, third, corrected and supplemented edition,
M. Feoria, 2011, 320 pages
• Documentaries on the small indigenous peoples of the North, Siberia and the
Russian Far East, published in 2011 by order of the Ministry of Regional
Development (“The law of survival”, “People with pointed heads”, “The long road
to life”, “Reindeer-people”)
II. General information
6. The Union of Soviet Socialist Republics ratified the Convention on 4 February
1969, and today the Convention is an integral part of the domestic legal system of the
Russian Federation. In accordance with article 15, paragraph 4, of the Constitution of the
Russian Federation, if an international agreement of the Russian Federation establishes
other rules than those envisaged by law, the rules of the international agreement must be
applied. Thus, the provisions of an international agreement are directly applicable in the
Russian Federation and do not require the adoption of special national legislation.
7. The Russian Federation is the only country that covers a large part of the continental
landmass of Eurasia. It has a surface area of 17,075,400 square kilometres. The
particularities of Russia’s geographic location and its historical development have
conditioned the ethnic and cultural diversity of its population. Historically, the Russian
Federation developed as a multi-ethnic State on whose territory many different ethnic
communities lived, the vast majority of which are historically linked to the territories of the
Russian Federation, and in this sense, in keeping with the Outline for State nationalities
policy approved by Presidential Decree No. 909 of 15 June 1996, they constitute the
indigenous peoples of the Russian Federation. Russian legislation also establishes a special
status for small indigenous peoples with a population of less than 50,000 persons.
A. Ethnic make-up and languages spoken
8. According to the 2010 national census, the permanent population of the Russian
Federation was 142,900,000 persons (74 per cent urban and 26 per cent rural).
9. Persons permanently resident in the Russian Federation declared that they were
members of 194 different ethnic communities. The majority of the population is Russian.
Between 2002 and 2010, the Russian population declined from 115.9 million to 111.0
million persons, or by 4.2 per cent, but in relative terms the number of persons who
indicated that they were ethnic Russians increased from 80.6 per cent to 80.9 per cent of the
total population.
10. Also according to the census, there are 22 peoples in the Russian Federation with a
population of more than 400,000 persons. As in the previous national census, the second
most populous group after the Russians is the Tatars, who number 5.3 million, or 3.9 per
CERD/C/RUS/20-22
6 GE.12-43423
cent of those persons who indicated their ethnic identity. Ukrainians constitute the third
largest population group, with 1.9 million persons (1.41 per cent). The next largest groups
are:1 Bashkirs (1.1 per cent), Chuvashi (1.1 per cent), Chechens (1.0 per cent), Armenians
(0.9 per cent), Avars (0.7 per cent), Mordvins and Kazakhs (0.5 per cent each), Azeris,
Dargins, Udmurts, Mari, Ossetians, Belarusians, Kabardins, Kumikis, Yakuts and Lezgins
(0.4 per cent each) and Buryats and Ingush (0.3 per cent).
11. A positive trend in the period between the two censuses (2002–2010) was the
increase in the population of 40 small indigenous peoples of the North (the inventory of
whom was approved by Government Order No. 536 of 17 April 2006) from 244,000 to
257,900 persons, an increase of 13,900, or 5.7 per cent. The population of the Telengits
grew by 55 per cent, the Soiots by 30 per cent, the Chelkans by 38 per cent, the Tubalars by
26 per cent, the Evens (Lamuts) by 14 per cent, the Dolgans by 9 per cent, the Evenks by 8
per cent, the Mansi by 7 per cent, the Khanty by 8 per cent and the Yukagirs by 6 per cent.
The total population of the 47 small indigenous peoples of Russia (according to the
inventory of small indigenous population approved by Government Decision No. 255 of 24
March 2000), stood at 316,000 persons, or 17,800 more than in 2002.
12. The Constitution provides that during a census, ethnic identity is indicated by the
respondents themselves in accordance with their own determination and is recorded by the
census takers strictly on that basis. The number of Russian citizens totalled 137,900,000
(99.4 per cent of those who indicated citizenship), 700,000 persons were foreign nationals,
and 200,000 were stateless persons. A total of 79,000 persons have dual citizenship. More
than 4,100,000 persons did not indicate their citizenship on the census questionnaire.
13. In 2010, 138,000,000 persons declared that they spoke Russian (99.4 per cent of
those who answered the question of whether they spoke Russian), as against 142,600,000
(99.2 per cent) in 2002. The other most widespread languages of ethnic groups in Russia
include Tatar, Chechen, Bashkir and Chuvash, and foreign languages include English,
German and Ukrainian. In all, 277 languages and dialects are spoken by the inhabitants of
the Russian Federation. Some 93.8 per cent of the population of the country declared
Russian to be the mother tongue of their people. In addition, 5.7 per cent of the population
of Russia, or 8,150,000 persons (from among non-Russians) also indicated that Russian
was their mother tongue. For example, 40 per cent of Komi, 38 per cent of Udmurts, 35 per
cent of Mordvins, 29 per cent of Chuvashi, 25 per cent of Mari and 20 per cent of Tatars
said that Russian was their mother tongue.
14. For the first time, the census included data on the use of Russian sign language by
deaf persons and the hearing impaired. A total of 121,000 persons declared that they use
this language.
B. Foundations of State policy on preventing and combating racial
discrimination
15. The most important focus of efforts directed at implementing State nationalities
policy is on strengthening the unity of the Russian nation, creating conditions for the ethnic
cultural development of the peoples of Russia, deterring and prohibiting activities designed
to incite racial or inter-ethnic hatred and religious discord or enmity and ensuring timely
prevention and peaceful settlement of inter-ethnic clashes and conflicts.
1 The percentage of each people in the overall population is calculated on the basis of persons who
indicated their ethnic identity.
CERD/C/RUS/20-22
GE.12-43423 7
16. Between 2006 and the beginning of 2012, considerable efforts were made to
improve the work of State institutions on combating racial discrimination, ethnic strife and
various forms of extremism. There were major developments in federal and regional
legislation in these areas. New laws were adopted which were accompanied by an active
public discussion, making it possible to take account of the views of civil society
institutions. In the course of this work, the Government of the Russian Federation drew on
the recommendations adopted by the Committee in 2003 and 2008.
17. To act on the Committee’s recommendation, legislation on countering extremism
was improved. A mechanism was set up to combat ultra-nationalistic and racist
organizations (more details on this subject are provided in the information on article 2).
There is public and State monitoring of the prohibition in the media of hate speech and
materials that incite racial enmity. Public monitoring is carried out by human rights
organizations (such as the SOVA Centre for Information and Analysis, the Moscow Bureau
for Human Rights, and the organization Memorial), religious bodies (the Russian Orthodox
Church, the Federation of Jewish Communities of Russia, Protestant organizations and
others), ethnic cultural associations and the Social Forum of the Russian Federation, which
conducts its work in accordance with Federal Act No. 32 of 4 April 2005 on the Social
Forum of the Russian Federation. Pursuant to that Act, advisory boards have been set up
within all federal government bodies; many of them address questions associated with
combating extremist activities and the spread of ethnic and racial intolerance and religious
xenophobia (specifically, the advisory boards attached to the Ministry of Regional
Development, the Ministry of Culture, the Ministry of Tourism, the Ministry of Internal
Affairs and the Federal Migration Service).
18. Additional mechanisms have been introduced for granting citizenship to former
citizens of the USSR. On 22 June 2006, Presidential Decree No. 637 approved a State
programme for assisting the voluntary resettlement in the Russian Federation of ethnic
Russians living abroad and a plan of action for its implementation. Media support,
including in the context of the annual international Internet forum on “The Integration of
Ethnic Russians”, plays an important role in the effective realization of the State
programme.
19. An interdepartmental commission set up in accordance with Presidential Decree No.
814 of 1 August 2006 serves as the collective administrative body responsible for the
implementation of the State programme. During the five years of the programme (2007–
2012), 62,600 persons were resettled in the Russian Federation, 50.3 per cent of them in
2011. Over this same period, the number of entities of the Russian Federation which took in
ethnic Russians under the programme rose from 12 to 40.
20. With the help of the international Internet Forum “Integration of Ethnic Russians”
(www.mifis.ru), persons who have already been resettled reply to questions and
government bodies can be consulted on how the State programme has been implemented in
the entities of the Russian Federation.
21. For all intents and purposes, the problem of persons resettled from Chechnya has
been resolved. Serious attention is being given at federal level to the socioeconomic
situation of the Chechen Republic. A total of 120.5 billion roubles, or approximately US$
4.5 billion,2 were allocated from the federal budget under a special federal programme for
the socioeconomic development of the Chechen Republic, 2008–2011.
22. Considerable efforts are being made to familiarize internal affairs staff with the
provisions of national and international human rights norms. Steps are being taken to
2 According to the exchange rate of the Central Bank of Russia on 1 May 2011 (US$ 1 = 27.4 roubles).
CERD/C/RUS/20-22
8 GE.12-43423
improve the legal literacy of law enforcement staff and strengthen their skills in
communicating with representatives of civil society institutions, migrants and members of
ethnic groups. This is all aimed at ensuring strict respect for human rights. Special attention
is given to the training of law enforcement officers detached to the Northern Caucasus.
They are acquainted with the ethnic and religious traditions of the local population in order
to avoid conflict situations which might arise out of ignorance of these traditions.
23. The provisions of the International Convention on the Elimination of All Forms of
Racial Discrimination are implemented in close cooperation between government bodies,
voluntary associations and academic organizations.
24. In recent years, the Russian Federation has made considerable progress in
addressing questions of cooperation between government bodies and civil society
institutions active in the protection of the rights and interests of ethnic minorities. A
network of civil society institutions has been established which, as of 20 December 2011,
totalled 223,928 non-profit organizations; 15 federal, 245 regional and 639 local ethnic
cultural associations and 1,194 communities of small indigenous peoples were registered
(data from the Ministry of Justice of 16 February 2012).
25. At government level, in 2011 an Interdepartmental Working Group on inter-ethnic
relations was set up under the chairmanship of Deputy Prime Minister D.N. Kozak. It
includes representatives of 15 federal government bodies, the Federation Council (the upper
house of the Federal Assembly), and the State Duma (the lower house of the Federal
Assembly).
26. An Expert Advisory Board was created within the Interdepartmental Working
Group; it includes heads of federal autonomous ethnic cultural organizations, religious
bodies, prominent scholars, journalists and experts.
27. The Ministry of Regional Development is responsible for ensuring the activities of
the Interdepartmental Working Group and the Expert Advisory Board. Its specialist body,
the Department of Inter-Ethnic Relations, is also tasked with elaborating State nationalities
policy and regulations in that area, protecting the rights of ethnic minorities and the small
indigenous peoples of the Russian Federation, cooperating with Cossack communities and
implementing the State programme for assisting the voluntary resettlement in the Russian
Federation of ethnic Russians living abroad. The Ministry of Regional Development also
has an Advisory Board on the affairs of autonomous ethnic cultural organizations, whose
membership includes leaders of federal autonomous ethnic cultural organizations, and an
interdepartmental commission on cooperation with ethnic voluntary associations.
28. At its meetings, the Advisory Board on the affairs of autonomous ethnic cultural
organizations discusses questions concerning the prevention of extremism and inter-ethnic
conflicts, as well as ways of improving existing legislation in the area of inter-ethnic
relations, initiatives conducted under State nationalities policy and cooperation between
federal autonomous ethnic cultural organizations and government authorities.
29. The system for administering State nationalities policy covers both the federal and
the regional level. At the end of 2011, the following was in operation in all 83 constituent
entities of the Russian Federation:
• Separate departments or structural divisions of regional government bodies with
competence for State nationalities policy
• Standing working groups or interdepartmental coordinating bodies for promoting
inter-ethnic harmony
• Expert advisory bodies on inter-ethnic and ethnic religious relations
CERD/C/RUS/20-22
GE.12-43423 9
30. A unity of approaches to the implementation of State nationalities policy at federal
and regional level is ensured through the adoption of plans of action for fostering
harmonious inter-ethnic relations, the financing of which is ensured with resources from the
relevant budgets. In 2011, plans of action were adopted in all 83 constituent entities of the
Russian Federation.
31. Cooperation with the largest religious groups, including Orthodox, Muslim, Jewish,
Buddhist and other organizations, plays a major role in strengthening stability in society,
preventing extremism and intolerance and protecting the cultural, spiritual and moral
heritage and public morals. According to information from the Ministry of Justice, as of 31
December 2011, 24,624 religious organizations were registered in the Russian Federation,
or 776 more than on 31 December 2010. The number of religious organizations within the
Russian Orthodox Church stood at 13,943, and there were 4,380 Protestant, 4,317 Muslim,
276 Jewish, 221 Buddhist and 1,487 other religious organizations.
32. Over the centuries, conditions were created in Russia for the peaceful coexistence of
persons with different religious beliefs. Government promotion of an interfaith dialogue
and significant initiatives by religious organizations have been positive trends. Starting in
1998, the Interfaith Council of Russia, administered by the Russian Orthodox Church, the
Council of Muftis of Russia, the Central Spiritual Board of Muslims of Russia and the
European countries of the CIS, the Congress of Jewish Religious Organizations and
Associations of Russia, and the Buddhist Traditional Sangha of Russia emerged as a
genuine forum for interfaith dialogue and cooperation.
33. The World Summit of Religious Leaders held in Moscow on 3 July 2006 was a
major event in the promotion of an interfaith dialogue and cooperation between the State
and religious organizations. It was attended by President Putin together with more than 150
representatives of various confessions from more than 40 countries around the world. The
event became the most representative forum of religious leaders in history. The Message
adopted by the World Summit notes the growing role of religion in today’s world and
stresses that moral values are in many ways the same for all traditional religions.
34. The Government is making every effort to ensure constructive cooperation with all
parties involved in the implementation of the provisions of the Convention, with the help of
existing interdepartmental coordinating mechanisms, consultative bodies, the media, etc. In
the exercise of its functions and powers, the Government draws on universally recognized
international standards, condemns all manifestations of racist discrimination, proceeds on
the assumption that human rights must be respected in all public spheres and is doing
everything it can so that citizens of the Russian Federation can enjoy and assert their rights
and freedoms.
35. In his public statements, President Medvedev has repeatedly condemned
discrimination on ethnic grounds. At a meeting of the Presidential Council on the
development of civil society and human rights held on 5 July 2011 in the city of Nalchik,
he stressed the inadmissibility of ethnic discrimination and the need to ensure equal
enjoyment of fundamental rights and freedoms, including the right to hold office at State
and municipal level.
36. At a meeting of the Presidium of the State Council on 11 February 2011 in the city
of Ufa, at which questions of inter-ethnic harmony were discussed, President Medvedev
underscored the need to make every effort so that inter-ethnic peace and harmony in the
country became the crowning achievement of Russian history. Following the meeting, he
issued instructions for the elaboration of measures directed at eliminating manifestations of
ethnic favouritism, the use of ethnic preferences when making appointments to the State
and municipal civil service, etc. Thus, respect for the principle of equal access of citizens to
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10 GE.12-43423
employment and the prohibition of discrimination on ethnic grounds are the basis for civil
service recruitment policy in the Russian Federation.
37. In an article entitled “Russia: the ethnic question” published on 23 January 2012 in
the newspaper Nezavisimaya Gazeta, Prime Minister Putin cautioned that ethnic and
religious intolerance eroded and undermined the State, divided society and was becoming
the ideological basis for the most radical groups and tendencies.
C. International cooperation and the participation of the Russian
Federation in international organizations and projects
38. International cooperation in the area of human rights is one of the most important
components of the foreign policy of the Russian Federation. In international organizations,
the Russian Federation conducts a consistent policy aimed at preventing manifestations of
racism, neo-Nazism, aggressive nationalism, anti-Semitism and xenophobia.
39. One of the steps taken in this regard is what has become the Russian Federation’s
traditional initiative in the framework of the United Nations General Assembly resolution
on the inadmissibility of certain practices that contribute to fuelling contemporary forms of
racism, racial discrimination, xenophobia and related intolerance. The latest adoption of the
resolution, once again at the initiative of the Russian Federation, was on 19 December 2011
at the sixty-sixth session of the General Assembly, by 134 votes in favour to 24 against,
with 32 abstentions. Thirty-seven States co-sponsored the resolution.
40. In 2008 and 2009, the Russian Federation was closely involved in preparing the
Conference to review the implementation of the Durban Declaration and Programme of
Action to combat racism, racial discrimination, xenophobia and related intolerance
(Geneva, April 2009). The Conference was the most important international event
conducted in recent years by the United Nations on the question of combating racism. The
main achievement of the Geneva forum was the political determination, reaffirmed by all
participants, to continue to combat racism at local, national and international levels and to
develop and strengthen international cooperation in that area.
41. The Russian Federation supported and played an active part in the high-level
meeting which coincided with the tenth anniversary of the Durban Declaration and
Programme of Action on the elimination of all forms of racial discrimination (New York,
22 September 2011) and at which the Minister of Foreign Affairs explained Russia’s
principled approach to addressing problems associated with combating racism and its
contemporary forms.
42. The Russian Federation makes an annual voluntary contribution to the Office of the
United Nations High Commissioner for Human Rights, a certain proportion of which is for
the programmes of the Office’s Anti-Discrimination Unit. In 2010 the Office earmarked
US$ 450,000 for this purpose. In addition, the Russian Federation is allocating resources
for training programmes for representatives of Russia’s indigenous peoples (US$ 50,000)
and for the work of the Special Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance of the United Nations Human Rights
Council (US$ 50,000).
43. The Russian Federation is closely involved in international cooperation to improve
standards in the area of human rights and ethnic minorities and to elaborate the
corresponding decisions and resolutions of international organizations on the promotion of
a dialogue between civilizations and cultures and the fight against contemporary forms of
racism.
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44. The Russian Federation regularly advocates making questions relating to the
protection of ethnic minorities and the fight against crimes based on inter-ethnic and
religious intolerance, extremism, xenophobia and discrimination on ethnic grounds a
priority in the work of virtually all international organizations (the United Nations, the
Organization for Security and Cooperation in Europe (OSCE), the Council of Europe and
others) that deal with human rights issues. It continues to cooperate with those specialized
organizations and their structures, including the OSCE High Commissioner on National
Minorities, the Council of Europe Commissioner for Human Rights, the Office of the
United Nations High Commissioner for Human Rights and the United Nations Human
Rights Council.
45. The Russian Federation assists with the organization of monitoring visits by
representatives of international organizations. In 2006 and 2007, the United Nations Special
Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, Doudou Diène, and the OSCE High Commissioner on National Minorities,
Rolf Ekéus (who held the post from 2001 to 2007), conducted visits to the Russian
Federation.
46. The OSCE High Commissioner on National Minorities, Knut Vollebaek, who was
elected to that post in July 2007, held his first visit to the Russian Federation from 21 to 24
January 2008. The visit focused on the socioeconomic and cultural rights of members of
ethnic minorities and small indigenous peoples. Mr. Vollebaek conducted a second working
visit to the Russian Federation from 9 to 14 March 2009, during which he visited Moscow,
the Republic of Bashkortostan and Voronezh province. The main purpose of the visit was to
assess questions concerning the protection of the linguistic and educational rights of ethnic
Ukrainians in Russia in order to prepare a comparative study on the situation with regard to
the teaching of Russian in Ukraine and Ukrainian in Russia. The main topic of discussions
between the High Commissioner and Russian representatives was the enjoyment of the
linguistic and educational rights of the Russian-speaking population in Ukraine and ethnic
Ukrainians in Russia, as well as the situation of Russian-speaking minorities in Latvia and
Estonia.
47. The visit to the Russian Federation of the United Nations Special Rapporteur on the
rights of indigenous peoples, James Anaya, from 5 to 16 October 2009 (Moscow, the
Khanty-Mansi Autonomous Area – Yugra, and Krasnoyarsk and Khabarovsk Territories)
was a major event in the area of international cooperation on the protection of the rights of
small indigenous peoples. The Special Rapporteur met with representatives of federal and
regional authorities and voluntary associations of the small indigenous peoples of the North
in Khanty-Mansiisk, Krasnoyarsk and Khabarovsk and visited their traditional habitats in
the Khanty-Mansi Autonomous Area and Krasnoyarsk and Khabarovsk Territories. The
meetings between the Special Rapporteur and representatives of the small indigenous
peoples of the North also focused on problems associated with the establishment of areas
for the traditional use of natural resources by these peoples and the preservation of their
traditional way of life and economic activities (in particular, fishing during tendering
procedures for the use of fishing grounds).
48. From 13 to 19 February 2011, the United Nations High Commissioner for Human
Rights, Navanethem Pillay, visited the Russian Federation, where she was informed in
detail about measures to protect human rights undertaken in Russia at federal and regional
levels. Both sides commended the programme of bilateral cooperation between the Russian
Federation and the Office of the High Commissioner, which is being carried out on the
basis of the document “OHCHR Framework for Cooperation with the Russian Federation
for 2007 and beyond”.
49. The Russian Federation participates in international initiatives on questions of
human rights protection (in particular in the context of the annual meeting of the OSCE to
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assess the implementation of obligations in the area of the human dimension and OSCE
thematic conferences on preventing and combating discrimination, xenophobia and
discrimination, and the annual sessions of the United Nations Permanent Forum on
Indigenous Issues) in order to disseminate objective information on the situation of ethnic
minorities and the measures taken by the Russian Federation to protect their rights.
Representatives of non-governmental organizations, including ethnic voluntary
associations, associations of small indigenous peoples, and federal and regional government
bodies, regularly take part in major international initiatives and present best practices in use
in the Russian Federation.
50. The Russian Federation provides assistance for the participation of representatives
of various Russian ethnic, cultural, social and religious associations and other civil society
institutions in international events in order to attract the attention of the international
community to the Russian experience in addressing problems in the area of inter-ethnic and
interfaith relations. The focus is on creating conditions for involving a broader circle of
representatives of civil society institutions in international activities on issues relating to the
situation of minorities (Russian religious organizations, the Social Forum of the Russian
Federation, Russian orthodox institutions, human rights and children’s rights
ombudspersons, and journalists).
51. Steps are being taken to create conditions for the participation of representatives of
ethnic minorities and small indigenous peoples of Russia in the work of various
international expert mechanisms, support bodies and forums, which serve as a platform for
promoting dialogue and cooperation, determining and analysing best practices, and
identifying contemporary challenges in this area and finding ways of addressing them
(Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples, the
United Nations Permanent Forum on Indigenous Issues and the Human Rights Council’s
Forum on Minority Issues).
52. The Russian Federation cooperates actively with specialized international
organizations on questions concerning the protection of the rights of vulnerable ethnic
groups, in particular the Roma and Finno-Ugric peoples, and provides assistance for
conducting international initiatives on this issue both in Russia and abroad. The Path of
Birds festival of Finno-Ugric culture of Russia, held in Strasbourg in September and
October 2006, received very favourable comments. The event, of a European dimension,
was a unique international presentation of the cultural and social life of the regions of the
Volga Federal Area in which the peoples of the Finno-Ugric group make up a large part of
the population.
53. From 7 to 9 September 2006, the Ministry of Regional Development together with
the Interfaith Council of Russia and the Council of Europe conducted an international
conference in Nizhny Novgorod entitled “Dialogue of Cultures and Interfaith Cooperation”
in the framework of the Russian chairmanship of the Council of Europe’s Committee of
Ministers. The main goals of the conference were to promote an intercultural and interfaith
dialogue and cooperation, analyse and develop experience in interfaith cooperation and
combat extremism and terrorism.
54. Some 300 persons from countries around the world took part in the work of the
Volga Forum, including leaders from the Council of Europe and the Council of Europe’s
Parliamentary Assembly and representatives of the United Nations, UNESCO, the
European Union and other international organizations, associations and foundations, as well
as federal and regional government bodies and respected Russian and international public
and religious figures. The participants adopted a concluding document, the Volga Forum
Declaration, which stressed the need to develop the religious dimension in intercultural
dialogue. This is the first Pan-European document drawn up by the Russian Federation, and
it is of great importance for both Russia and the Council of Europe. It was the first time at
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Pan-European level that a determination to promote the religious dimension in intercultural
dialogue was placed on record.
55. The conference participants welcomed the suggestion to make 2008 the European
year of intercultural dialogue and expressed support for the Council of Europe initiative to
prepare a white paper on intercultural dialogue. They also approved measures to reinforce
national mechanisms for the protection of human rights and national minority rights in
accordance with the Framework Convention for the Protection of National Minorities.
56. In 2006, the Council of Europe resumed its Pan-European “All different – All equal”
campaign, which was conducted by young people in the 49 Member States of the Council
of Europe’s European Cultural Convention. The campaign is designed to strengthen
cooperation and diversity among peoples and is also open to non-Council of Europe States.
During the campaign, emphasis was placed on diversity, which testifies to the wealth of our
many different cultures and traditions.
57. In 2008, an international youth forum was held in the context of the campaign in
Kazan under the motto “Intercultural Dialogue and its Religious Dimension”, which gave
rise to the Kazan Action Plan 2020 as its natural follow-up. The aim of the Action Plan,
which is currently under way, is to elaborate, bearing in mind examples of best practices, a
catalogue of specific measures for the advancement and support of ideas of intercultural
dialogue and its religious dimension, both among young people and directly by young
people themselves.
58. The fifth world congress of Finno-Ugric peoples, held in June 2008 in Khanty-
Mansi with the participation of the presidents of the Russian Federation, Finland, Hungary
and Estonia, attracted considerable attention.
59. Between 2009 and 2011, the Ministry of Regional Development and the Ministry of
Foreign Affairs, together with the Council of Europe and the European Commission,
conducted a joint programme entitled “Minorities in Russia: Developing Languages,
Culture, Media and Civil Society”, the aim of which was to consider the possibility of the
Russian Federation’s implementing the European Charter for Regional or Minority
Languages.
60. In conjunction with the Office of the United Nations High Commissioner for Human
Rights, the Russian Federation hosted a seminar for the Member States of the
Commonwealth of Independent States (CIS) on developing and carrying out national action
plans to combat racial discrimination and intolerance (Saint Petersburg, 29–30 September
2011).
III. Measures taken by the Russian Federation to implement the
basic provisions of the Convention
A. Article 1
61. A comprehensive system of laws and regulations has been set up to ensure equality
of rights of citizens, irrespective of sex, race, ethnic background, language, origin, material
or official status, place of residence, attitude to religion, beliefs, or membership of
voluntary associations or any other social group.
62. The international obligations of the Russian Federation, the Constitution and the
Federal Act on the Principles of Legislation on Culture, the Federal Act on Ethnic Cultural
Autonomy, the Federal Act on Voluntary Associations, the Federal Act on Freedom of
Conscience and Religious Associations, and the Federal Act on Guarantees of the Rights of
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the Small Indigenous Peoples of the Russian Federation, as well as other measures of social
policy which ensure the preservation of the culture of ethnic minorities and safeguard
language and the press, are integral parts of the legal system. Laws and regulations aimed at
combating incitement of racial and religious hatred and extremist activities also play an
important role. These include above all the Criminal Code, as well as the Federal Act on
Combating Terrorism and the Federal Act on Combating Extremist Activities. Antidiscriminatory
measures are included in sectoral legislation governing the protection of
human rights in the areas of education, labour, health care, the courts, social protection and
culture.
63. In line with article 1 of the Convention, domestic legislation includes provisions
ensuring equality of the rights of citizens, irrespective of their social status, race, language,
ethnic origin or religious affiliation. Article 19 of the Constitution guarantees equality of
human and civil rights and freedoms, regardless of race, ethnic background, language,
origin, place of residence or attitude to religion. All forms of restrictions on social, racial,
ethnic, linguistic or religious grounds are prohibited.
64. In accordance with article 17 of the Constitution, human and civil rights and
freedoms are recognized and guaranteed in keeping with the universally recognized
principles and norms of international law. Article 15 states that the universally recognized
principles and norms of international law and international agreements to which the
Russian Federation is a party are an integral part of its legal system.
B. Article 2
65. The Russian Federation condemns racial discrimination, which presupposes an
absence of equality before the law and the courts, as well as inequality of treatment
(distinctions, exclusions, limitations and preferences) in any area of public life, whether
political, economic, social, cultural, administrative or elsewhere. This is stipulated in the
Constitution, which recognizes and guarantees human and civil rights and freedoms,
regardless of sex, race, ethnic background, language, origin, material or official status,
place of residence, attitude to religion, beliefs, affiliation with voluntary associations or
other circumstances.
66. The Constitution prohibits all forms of restrictions on the rights of citizens on social,
racial, ethnic, linguistic or religious grounds.
67. Domestic legislation is on a sectoral basis, and various areas of social relations are
governed by a particular set of legal provisions. Provisions of a general nature that prohibit
discrimination against persons on grounds of their ethnic background are in force in the
context of the human rights covered in a particular area – the exercise of labour rights, the
right to education, the right to speak one’s native language, the right to enjoy the benefits of
culture, etc. Thus, the principle of non-discrimination extends to all rights recognized by
the Constitution and domestic law.
68. Russian legislation contains anti-discrimination provisions in virtually all branches
of law, including article 3 of the Tax Code, article 7 of the Constitutional Act on the
Judicial System, article 1 of the Family Code, article 5 of the Education Act, article 17 of
the Principles of Legislation on Public Health Care, article 2 of the Federal Act on the
Languages of the Peoples of the Russian Federation, article 4 of the Federal Citizenship
Act, article 14 of the Federal Act on Basic Guarantees for Children’s Rights, article 7 of the
Federal Advertising Act, article 8 of the Principles of Legislation on Culture, article 56 of
the Federal Act on Basic Guarantees of Electoral Rights and the Right of Citizens to
Participate in Referendums, the Labour Code, the Code of Civil Procedure, the Federal Act
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GE.12-43423 15
on the General Principles of Local Self-Government and the Federal Act on the Principles
of Health Care Legislation.
69. Thus, the provisions of article 2 of the Convention are implemented in full under
domestic legislation, and the above-mentioned set of laws and regulations together with the
Constitution and the Criminal Code constitute comprehensive anti-discrimination
legislation, which is constantly improved to take modern realities into account.
70. Recognizing the important role played by legal forms of protection against
discrimination, the Russian Federation is considering, as a matter of priority for domestic
policy, the creation and further modernization of body of laws and regulations for the
protection of the rights of ethnic minorities and the small indigenous peoples of the North,
Siberia and the Russian Far East. The legislative framework is being improved not only at
federal level, but also in the constituent entities of the Russian Federation.
71. The improvement of legislation has been accompanied by political and practical
measures, including budget funding for programmes and specific initiatives directed at
promoting harmonious inter-ethnic relations throughout the country, fostering ethnic
cultural diversity and encouraging inter-ethnic tolerance.
72. In the view of the Russian Federation, the adoption of special anti-discrimination
legislation is not in keeping with the logic or the sectoral nature of Russian law or its
application in practice.
73. In conformity with article 2, paragraph 1 (b), of the Convention, the Russian
Federation does not support racial discrimination by any persons or organizations. As the
Russian Federation is a multi-ethnic country, such a policy could lead to a fragmenting of
society and endanger the country’s territorial integrity. The Constitution prohibits the
activity of voluntary associations whose aims and acts are calculated to incite social, racial,
ethnic or religious discord (art. 13), and article 9 of Federal Act No. 95 of 11 July 2001 on
Political Parties prohibits the creation of political parties on ethnic or religious grounds.
The creation of parties on such grounds might jeopardize the peaceful coexistence of
peoples and religions in the country and undermine the principles of a secular State. The
European Court of Human Rights agreed with these arguments in its decision on the
admissibility of application No. 17582/05 of 7 December 2006 on “Igor Vladimirovich
Artyomov v. the Russian Federation”, in which it declared inadmissible the application of
the leader of the organization “Russian All-Nation Union” concerning the refusal of the
Ministry of Justice to register a political party of that name. The text of the Court’s decision
is contained in the annex to this report.
74. In order to implement article 2, paragraph 1 (e), of the Convention, the federal
government bodies are taking action aimed at eliminating barriers between races and
encouraging multi-ethnic organizations and movements.
75. Initiatives of an inter-ethnic nature in the area of youth policy are supported by the
Ministry of Sport and Tourism, in the area of ethnic cultural development by the Ministry
of Regional Development and the Ministry of Culture, in the area of upbringing and
education by the Ministry of Education and Science and in the area of the media by the
Ministry of Communications; other government bodies also provide assistance.
76. Support is given in particular to organizations which bring together persons of
different races, ethnic background and religious beliefs (such as the Assembly of Peoples of
Russia, the Congress of Peoples of the Caucasus, the Association of Finno-Ugric Peoples of
the Russian Federation, the Russian Youth Union, the National Council of Associations of
Young People’s and Children’s Associations of Russia, the Russian Youth Union and other
voluntary associations) and work to prevent racial discrimination and to promote
harmonious inter-ethnic and interfaith relations and intercultural dialogue.
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77. The Ministry of Sport and Tourism and the Federal Agency on Youth Affairs have
carried out a special project, called “Tolerance”. Launched in 2009 in the framework of the
International Year of Youth, the project was conducted in accordance with Presidential
Decree No. 1383 of 18 September 2008 on the holding of the Year in the Russian
Federation.
78. The aim of the project was to create and promote favourable conditions for
harnessing the potential of Russian youth as an important social force capable of
elaborating and realizing projects directed at shaping attitudes of tolerance and fostering
inter-ethnic harmony.
79. As part of the implementation of the Tolerance initiative, projects were selected and
supported which endorse a philosophy based on the principles of respect for human rights
and freedoms, the goal of inter-ethnic concord, openness for dialogue and the education of
the coming generation in a spirit of civil solidarity, tolerance and harmonious inter-ethnic
relations.
80. At the initiative of youth and ethnic cultural movements in Russia, and with the help
of the Social Forum, an Inter-ethnic Russian Federation Club has been set up and is fully
operational. This is a functioning social network of more than 1,000 community leaders
from around the country who are working to bring together citizens and organizations and
to conduct initiatives in the area of intercultural dialogue and the formation of Russian
identity. Educational and training sessions have been held in the Federal Areas. The
international youth camp “Dialogue” (Kaluga province), the Russian Youth Forum in the
Caucasus (Dombai) and other events have already become a tradition.
81. Activities are being carried out in the context of youth policy in the following areas
so as to prevent extremist manifestations among young people on ethnic grounds:
• Improving the effectiveness of regional programmes for developing inter-ethnic and
interfaith relations among young people; modern forms of cooperation with young
people in this area have been elaborated and implemented
• Increasing the number of initiatives aimed at encouraging interaction between young
people of different races, ethnic background and religions
• Supporting the programmes and projects of voluntary associations targeting children
and young people and designed to foster interracial, inter-ethnic and religious
harmony
• Cooperating with non-formal youth associations and youth subcultures, and creating
favourable conditions for their activities
82. In 2009, a national competition was held for public service advertisements to assist
adolescents in difficulty. As part of the competition, it was planned to create a website, one
of whose themes was the promotion of tolerance and inter-ethnic cooperation among young
people. In the context of the Youth Year, the website www.godmol.ru was launched and
began operating; one of its sections focuses on the topic “Russia for everyone”. The main
objective of the more than 13,000 participants from around the country who have registered
with it is to advance ideas of tolerance among young people.
83. Associations of sports fans, above all for soccer, are one of the most common forms
of activity for young people in today’s Russia, and government bodies work regularly with
this category of youths. The Ministry of Sport and Tourism is actively cooperating with the
National Association of Sports Fans. The basic areas of cooperation have been defined;
they include the protection of the rights and interests of Russian fans, the prevention of
criminal offences at sports events and the implementation of joint initiatives to foster
healthy lifestyles, participation in sports and a greater social commitment among young
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people. Joint activities and projects are being conducted, such as the tournament “Score a
goal, fan!”, the establishment of fan zones and the enforcement of security in stadiums.
84. As part of the promotion of cooperation with young people of the Northern
Caucasus Federal Area, high priority is given to integrating these persons into the life of the
country and encouraging them to meet young people from other regions and to learn about
their traditions. To that end, the Ministry of Sport and Tourism has organized a number of
national events in the Northern Caucasus Federal Area as well as the participation of young
people from there in initiatives conducted in other parts of the Russian Federation. In 2010
and 2011, the Ministry held 15 nationwide initiatives in the Northern Caucasus Federal
Area which were attended by young people from other parts of the country:
• In June 2010, a “Memory Train” travelled to the cities of central Russia and the
capitals of the republics of the Northern Caucasus to commemorate the sixty-fifth
anniversary of victory in the Second World War; more than 100 volunteers worked
to improve the appearance of military cemeteries, organized meetings between war
veterans and young people and learned about the history of the republics and their
ethnic traditions. More than 10,000 young persons took part. The train stopped in
Kursk, Krasnodar, Maikop, Cherkessk, Nalchik, Nevinnomyssk and Volgograd.
• In May 2010, the eighteenth national festival of the creative work of students,
“Russian Student Spring”, was held in the city of Nalchik (Kabardino-Balkar
Republic), in which more than 1,200 students attended – the winners of interregional
festivals from 50 regions around the country.
• From 20 May to 3 June 2010, the “We are Together” youth camp was organized at
the Federal Children’s Recreational and Educational Centre “Smena” in the city of
Anapa (Krasnodar Territory), in which more than 1,000 young people took part (300
from the constituent entities of the Northern Caucasus Federal Area, the others being
representatives of ethnic delegations from other parts of the country). The aim of the
camp programme was to promote a culture of inter-ethnic cooperation and patriotic
values among young people.
• In June 2010, 300 participants in “The Caucasus – Our Common Home” Youth
Forum (Republic of Dagestan) discussed problems facing young people in the
Northern Caucasus.
• From 23 to 31 July 2010, a Caucasus forum of Russian young people entitled
“Better Together …” was held in the Republic of Karachaevo-Cherkessia; more than
200 young scholars, graduate students, athletes and representatives of small
businesses attended. The forum was conducted under the motto “Peace in the
Caucasus – a mission for youth”.
• In August 2010, a festival of the creative work of young people of the Caucasus
entitled “Friendship of Peoples – Russia’s Unity” attracted more than 300 visitors.
• From 8 to 26 August 2010, an all-Caucasus young people’s educational camp,
“Mashuk – 2010”, was held in the city of Pyatigorsk in Stavropol Territory at the
foot of Mount Mashuk in cooperation with the Ministry of Sport and Tourism. The
activities of the camp took place in two shifts. The participants included 1,500
young people of various ethnic backgrounds who made up the delegations from the
constituent entities of the Northern Caucasus Federal Area and the Republic of
South Ossetia, as well as 500 guests and 30 experts. Contests were held for grants in
the following areas: business activities; creative activities; media projects; and
projects aimed at improving political, economic, social and other aspects of life. The
winners were chosen in the course of the participation of the project groups in the
“youth project conveyor” (a mechanism which includes training, expert consultation
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and project assessment); the projects were carried out from the first day of the camp.
There were 480 proposals and 62 winners.
• In August 2010, the Ministry of Sport and Tourism, in conjunction with the Council
of Europe’s Directorate of Youth and Sport and representatives of voluntary
associations of young people, conducted a joint training seminar in the city of
Derbent (Republic of Dagestan), for specialists of government bodies working with
young people.
• In September 2010, with the support of the Ministry of Sport and Tourism, a festival
of clubs of young families, “Belief, Hope, Love”, was held in the city of
Makhachkala (Republic of Dagestan), at which 150 youths from the republics of the
Northern Caucasus and other regions of the Russian Federation discussed ways of
promoting family values among young people and familiarized themselves with
family traditions in other parts of the country.
• From 1 to 3 November 2010, a national youth forum, “The Multi-ethnic Russian
Federation”, was held in the city of Sochi (Krasnodar Territory) to coincide with the
country’s National Unity Day. The aim of the forum was to foster the active
involvement of young people in the formation of a civil society based on the
principles of solidarity, tolerance and mutual understanding, and the preservation
and development of the cultures and languages of the peoples of the Russian
Federation, as well as to encourage a dialogue between the leaders of various ethnic
and religious youth organizations. Representatives of the government bodies of the
constituent entities of the Russian Federation, youth activists, and student and ethnic
organizations — 250 persons in all — took part in the event.
• From 29 to 31 October 2010, a youth forum on ethnic cultures, “We are Russian”,
was held in Mytishchinsky district, Moscow province, to celebrate National Unity
Day. Representatives of federal and regional government bodies, voluntary
associations, youth organizations, academics and personalities from culture and the
arts took part, some 100 persons in all. The forum’s programme included a plenary
meeting, a national school of young leaders of civil society, discussion platforms,
workshops, a presentation of young people’s projects for the socioeconomic
development of the constituent entities of the Russian Federation, a presentation of
ethnic forms of sport, a discussion podium entitled “The Russian Federation and I”,
a review of project ideas and a contest of singers of traditional songs, entitled
“Melodies of Unity”.
85. In all, more than 20,000 persons from the republics of the Northern Caucasus and
other regions took part in these national initiatives. In 2010, more than 30 regional and
interregional events were held in the republics themselves, with the participation of more
than 25,000 young people.
86. The year 2011 was the start of an annual competition of young people’s projects
under the Pan-Caucasus Youth Forum, in the framework of which 868 grants totalling 100
million roubles will be awarded for the implementation of projects in 22 categories.
87. The Ministry of Sport and Tourism recommended that the youth affairs bodies of the
constituent entities of the Russian Federation should involve young people from the
Northern Caucasus Federal Area in their events in order to integrate them into the life of the
country and help them meet young people from other regions. Forty-three constituent
entities sent their suggestions for the participation of young people from the Northern
Caucasus Federal Area in their initiatives; 150 youths from the Northern Caucasus took part
in events in seven constituent entities.
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88. In 2011, the following national initiatives were held in the Northern Caucasus
Federal Area: the “Friendship of Peoples – Unity of Russia” Caucasus youth festival; the
pan-Caucasus youth forum “Mashuk-2011”; an international youth forum on “Promoting
mutual understanding in the Caucasus”; and “We are Together!”, a national festival of
young pupils of primary and secondary vocational schools (with the participation of
representatives from all the constituent entities of the Northern Caucasus Federal Area).
89. From 14 to 17 April 2010, an interregional meeting was held in the city of Stavropol
on the topic “Basic aims of youth policy in the Northern Caucasus Federal Area”, which
was attended by A.G. Khloponin, Special Representative of the President of the Russian
Federation in the Northern Caucasus Federal Area, representatives of the Ministry of Sport
and Tourism, representatives of youth affairs bodies of all the constituent entities of the
Northern Caucasus Federal Area, and heads of voluntary youth associations. At the
meeting, it was decided to establish a standing deliberative body, the Youth Policy Council
in the Northern Caucasus Federal Area, which was then set up pursuant to Order No. 279 of
8 December 2010 of the Special Representative.
90. In March 2010, an interregional training centre for the development of the human
resource potential of youth policy in the Northern Caucasus Federal Area was created under
the auspices of the Stavropol city branch of the M.A. Sholokhov State University of the
Humanities in order to train youth policy specialists, including for voluntary youth
associations.
91. The centre offers training courses for specialists in the following areas:
• Fostering attitudes of tolerance among young people.
• Volunteer work – traditions and innovations.
• Approaches for working with talented youths.
• Modern methods for teaching national history and patriotism.
• Problems associated with the socialization of young people in difficulty.
• Shaping and encouraging healthy lifestyles.
• Techniques for involving young people in the activities of institutions working to
promote a democratic State and civil society.
• Preventing extremism among young people.
• Humanities-based methods for training volunteer teachers on the prevention of
alcoholism and drug addiction among teenagers. In all, more than 300 persons took
the training courses.
92. The training centre has a laboratory for studying problems of multicultural
interaction among young people in the Northern Caucasus Federal Area. Leading political
scientists, sociologists, historians and other specialists are involved in the work of the
laboratory, which conducted a two-month pilot project on the human resource potential of
youth policy in Stavropol Territory and in the Republics of Northern Ossetia-Alania,
Dagestan and Karachaevo-Cherkessia. Similar studies were carried out in the Chechen
Republic in December 2010.
93. The Ministry of Sport and Tourism has elaborated and approved a departmental plan
for the implementation of a strategy for the socioeconomic development of the Northern
Caucasus Federal Area until 2025 in the area of youth policy, and a draft Outline for youth
policy in the constituent entities of the Northern Caucasus Federal Area until 2025 has been
submitted to the Government.
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94. A yearly festival conducted in a number of regions of Russia with funding from the
federal budget (under the budget line of the Ministry of Culture) with the participation of
various segments of the population, and young people in particular, is directed at reducing
inter-ethnic barriers and overcoming xenophobia. All these initiatives are linked to current
events in the social and political life of the country or commemorative dates in military
history and are aimed at preventing all manifestations of racial discrimination.
95. The events include the inter-State youth festival “Slavic Unity”, held annually in
Bryansk province near the “Friendship” monument on the border between Russia, Ukraine
and Belarus, and a festival of groups from Russia, Belarus and Lithuania at the Friendship
Mound in Pskov province. In 2009, an interregional film festival was held in Chuvash
Republic on inter-ethnic harmony and cooperation. An annual international festival of
Muslim cinema, “Golden Minbar”, is held in the city of Kazan, and an annual international
forum on Slavic and orthodox films, “Golden Vityaz”, takes place in the city of Lipetsk.
96. The Russian Federation holds hundreds of events throughout the country every year
aimed at promoting national unity and preventing racial, ethnic and religious intolerance as
part of comprehensive regional plans for counteracting manifestations of extremism and
regional programmes with similar goals.
97. In accordance with article 2, paragraph 2, of the Convention, the government bodies
of the Russian Federation support ethnic cultural organizations. Pursuant to Federal Act No.
11 of 9 February 2009 on Amendments to article 16 of the Federal Act on Autonomous
Ethnic Cultural Organizations, the central authorities may provide financial assistance to
federal organizations of this kind from the federal budget, the regional authorities to
regional and local bodies from the regional budget, and the local authorities to local bodies
from the local budget.
98. Support is provided for ethnic cultural projects in the form of grants awarded by the
President to non-profit organizations, grants from the Ministry of Sport and Tourism, the
special federal programme “The Culture of Russia (2006–2011)” and subsidies allocated to
assist the small indigenous peoples of the North, Siberia and the Far East in the context of a
special federal programme on the socioeconomic and ethnic cultural development of ethnic
Germans, 2008–2012, as well as a separate article of the federal budget on measures for
implementing State nationalities policy in 2008–2011 (funding in 2008: 240.0 million
roubles; in 2009: 179.5 million roubles; in 2010: 80.0 million roubles; in 2011: 80.0 million
roubles) through subsidies awarded to the constituent entities of the Russian Federation to
support socially oriented organizations.
99. In accordance with Federal Act No. 7 of 12 January 1996 on Non-Profit
Organizations, as amended by Federal Act No. 40, non-profit organizations (with the
exception of State corporations, State companies and voluntary associations that constitute
political parties) are recognized as organizations with a social orientation if they perform
activities aimed at: addressing social problems or bolstering civil society, including by
providing free or preferential legal assistance to citizens and non-profit organizations and
raising the legal awareness of the public or by protecting human and civil rights and
freedoms; preventing socially dangerous forms of behaviour; conducting activities in the
area of education, awareness-raising, science, culture, the arts, health care, illness
prevention, promotion of healthy lifestyles, improvement of the population’s moral and
psychological well-being and support for physical culture and sport; or fostering the
spiritual development of the individual.
100. Assistance provided to non-profit organizations with a social orientation takes the
following forms:
(a) Financial, material, media and advisory support, as well as support in
training, in-service training and retraining of staff and volunteers;
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GE.12-43423 21
(b) Tax allowances, in accordance with fiscal legislation;
(c) Placement of orders with non-profit organizations for goods, work and
services for State and municipal requirements under the procedure established in Federal
Act No. 94 of 21 July 2005;
(d) Tax allowances, in accordance with fiscal legislation, granted to legal entities
which provide material assistance to non-profit organizations with a social orientation.
101. In addition to the above-mentioned forms of assistance, regional and local
authorities may also provide support to non-profit organizations with a social orientation
through allocations from their budgets.
102. Government Decision No. 713 of 23 August 2011 on the provision of assistance to
non-profit organizations with a social orientation calls for the award, on the basis of a
competition, of subsidies from the federal budget totalling:
• 600 million roubles to the budgets of the constituent entities for regional
programmes to support non-profit organizations with a social orientation (relating to
funding granted to such organizations on the basis of a competition)
• 132 million roubles to non-profit organizations with a social orientation to carry out
programmes for the provision of media, advisory and technical support for the
activities of such organizations in the main areas of their work; identification,
compilation and dissemination of best practices for project delivery, including with
the help of conferences and seminars; and promotion of the use of volunteers
103. In 2011, the federal authorities of the Russian Federation recommended the approval
of regional programmes to support non-profit organizations with a social orientation.
104. State assistance in the cultural sphere is a crucial focus of efforts to meet the ethnic
cultural needs of the peoples of Russia. Under the auspices of the Ministry of Culture, the
centres of popular art forms work to identify and conserve holidays, rituals and family,
vocal, instrumental, choreographic, handicraft and other traditions of the peoples of Russia.
There are some 15,000 folklore groups in the country, of which 150 are national choirs,
song and dance ensembles and folk music groups. More than 500 folklore sections have
been set up in music schools and in art schools, and more than 5,000 clubs have folklore
studios, schools and workshops. More than 3,000 clubs, above all in rural areas, have
shifted their focus and have become folklore and handicraft centres, period-house
museums, etc.
C. Article 4
105. In conformity with article 4, subparagraphs (a) and (b), of the Convention, the
Russian Federation condemns the dissemination of ideas or theories based on racial
superiority and declares the dissemination of such ideas to be an offence punishable by law.
106. In accordance with the Criminal Code, acts committed on grounds of political,
ideological, racial, ethnic or religious hatred or enmity or on grounds of hatred or enmity
towards any social group are punishable offences of an extremist nature, which are covered
by a number of articles of the special part of the Criminal Code, including article 280
(Public calls for extremist activities), article 282 (Hatemongering and disparagement),
article 282.1 (Organization of an extremist association) and article 282.2 (Organizing the
activities of an extremist organization).
107. Federal Act No. 114 of 25 July 2002 on Combating Extremism introduces the basic
legal and organizational mechanisms for action in this regard, defines the term “extremism”
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22 GE.12-43423
and establishes administrative and criminal responsibility for the commission of unlawful
acts of an extremist nature.
108. Federal Act No. 148 of 27 June 2006 on Amendments to articles 1 and 15 of Federal
Act No. 114 made important changes to article 1 which introduce a more exact definition of
extremist activities (extremism).
109. The above-mentioned Act was adopted because of gaps in the legislation on
combating extremism and xenophobia. The possibility had existed of public actions
(including in the media and the Internet) which did not openly call for extremist activities
but did so in veiled form or allowed for the possibility of carrying out such activities. In the
past, the authors of materials along those lines and persons involved in their preparation had
not been deemed to have engaged in extremist activities, and it had been virtually
impossible to prosecute them.
110. Federal Act No. 211 of 27 July 2007 on the Introduction of Amendments to Several
Pieces of Legislation was adopted to meet the need to improve the legal framework for
establishing criminal and administrative responsibility for acts of an extremist nature and to
remove the imprecision which had been noted with regard to the term “extremist activity”.
111. At the time of the submission of the report, the Criminal Code defined 33 crimes of
an extremist nature. Chapter 20 of the Code of Administrative Offences also criminalizes a
number of acts of an extremist nature.
112. In accordance with article 282 of the Criminal Code, acts carried out publicly or in
the mass media by a person using his/her official status or by an organized group, including
with the threat or use of violence, that are designed to incite hatred or enmity or disparage
an individual or a group on the basis of sex, race, ethnic background, language, origin,
attitude to religion or membership of any social group are criminal offences.
113. In 2011, a federal bill was drafted on the introduction of amendments to several
pieces of legislation, in which it is proposed to add a number of articles to the Criminal
Code to criminalize acts of an extremist nature committed with the use of public
information and telecommunications networks, including the Internet.
114. The Federal Act on the Police, which entered into force on 1 March 2011, requires
the police to prevent, detect and suppress extremist activities and to take part in measures to
fight terrorism. Anti-extremism departments within the Ministry of Internal Affairs have
been operational since 2008.
115. On 26 July 2011, pursuant to Instruction No. 988 of the Ministry of Internal Affairs,
an interdepartmental commission to combat extremism was set up in conjunction with the
Ministry of Internal Affairs, the Federal Security Service, the Investigative Committee of
the Russian Federation, the Ministry of Justice, the Ministry of Education and Science, the
Ministry of Communications, the Ministry of Culture, the Ministry of Sport and Tourism,
the Federal Customs Service, the Federal Migration Service, the Federal Financial
Monitoring Service and the Office of the Procurator-General. One of its main tasks is to
establish and ensure cooperation in this area between the federal authorities, civil society,
ethnic voluntary organizations and religious organizations.
116. The law enforcement authorities are working to prevent, detect, suppress and
elucidate crimes committed on grounds of racial, religious, ethnic or other forms of hatred
or enmity. A number of initiatives are under way which aim to provide an in-depth
systematic analysis and forecast of developments in an extremist context, as well as to
prevent and detect violent crimes perpetrated against foreign nationals and combat unlawful
acts of an extremist nature committed by radical groups.
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GE.12-43423 23
117. Statistical data show an increase in manifestations of extremism in the Russian
Federation in the years 2008 to 2010 and a decline in 2011. The law enforcement
authorities brought to light 460 offences of an extremist nature in 2008, 548 in 2009, 656 in
2010 and 622 in 2011 (see Table). The rise in the number of detected cases is attributable in
part to the introduction of amendments to criminal legislation directed at determining the
motives of extremist offences, ensuring their proper classification (broadening of the
qualifying criteria of offences under article 282 of the Criminal Code) and stepping up
efforts by the law enforcement authorities to detect and suppress such acts.
118. An analysis of extremist offences must take into account that statistical data do not
always reflect the actual extent of the phenomenon, since such acts are underreported. This
is due in part to the inaction of the victims, who do not promptly file a complaint with the
law enforcement authorities. Moreover, at the time of their commission most violent crimes
are not recorded in the statistics separately. Extremist motives usually do not come to light
until later, in the course of the investigation.
119. All in all, extremist offences are characterized by a preponderance of violent crimes
(intentionally causing slight, moderate or severe harm to health, assaults, death threats),
crimes against public security and public order (disorderly conduct) and crimes against the
State power (incitement of hatred and enmity).
Legal norms violated 2008 2009 2010 2011
Increase/decrease
(2010–2011), %
Total offences 460 548 656 622 -5.2
Including: Art. 105, para. 2 (k), of the
Criminal Code (CC) 17 19 18 5 -5.3
Art. 111, para. 2 (f), of the CC 6 10 5 11 -50.0
Art. 112, para. 2 (f), of the CC 6 12 11 7 -8.3
Art. 115, para. 2 (b), of the CC 6 47 47 36 0.0
Art. 116, para. 2 (b), of the CC 55 73 97 88 +32.9
Art. 119, para. 2, of the CC 25 11 24 21 +118.2
Art. 213, para. 1 (b), of the CC 12 14 26 27 +85.7
Art. 280 of the CC 29 45 51 61 +13.3
Art. 282 of the CC 182 223 272 242 +22.0
Art. 282-1 of the CC 18 19 23 17 +21.1
Art. 282-2 of the CC 24 20 27 65 +35.0
120. As in previous years, the most widespread offences are those committed under
article 282. They amounted to 41.5 per cent of all registered offences of an extremist nature
in 2010, and 38.9 per cent of the total in 2011. According to the statistical data, in 2010,
272 offences were committed under article 282 (compared to 223 in 2009) and 51 under
article 280 (compared to 45 in 2009). In 2011, 242 offences were committed under article
282, and 61 under article 280.
121. The number of homicides committed on extremist grounds in 2010 under article
105, paragraph 2 (k), of the Criminal Code fell by 5.3 per cent compared to 2009 (18
murders) and by 72.2 per cent in 2011 (5 murders).
122. Eleven offences were committed under article 111, paragraph 2 (f), of the Criminal
Code (Intentionally causing slight, moderate or severe harm to health […] on grounds of
political, ideological, racial, ethnic or religious hatred or enmity or on grounds of hatred or
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24 GE.12-43423
enmity towards any social group), an increase of 120 per cent compared to 2010 (5
offences).
123. The number of offences committed in connection with organizing the activities of
extremist organizations rose. In all, 65 offences came to light under article 282.2 of the
Criminal Code, 140.7 per cent more than in 2010, when there were 27 offences; 11 persons
were convicted.
124. In 2011, 196 offences of an extremist nature came to light in the Central Federal
Area compared to 255 in 2010 (a decline of 23.1 per cent), 51 in the Siberian Federal Area
compared to 73 in 2010 (a decline of 30.1 per cent), 51 in the Northern Caucasus Federal
Area compared to 53 in 2010 (a decline of 3.8 per cent) and 24 in the Far East Federal
Area, compared to 30 in 2010 (a decline of 20.0 per cent). A considerable increase in
offences in this category was noted in the Northwest Federal Area (73, compared to 62 in
2010, an increase of 17.7 per cent) and in the Southern Federal Area (48, compared to 28 in
2010, an increase of 71.4 per cent), and a slight increase was noted in the Volga Federal
Area (120, compared to 110 in 2010, an increase of 9.1 per cent) and in the Urals Federal
Area (46, compared to 42 in 2010, an increase of 9.5 per cent). As in the past, the Moscow
region continues to have the most, and most serious, offences of an extremist nature
committed on ethnic and religious grounds.
125. In the city of Moscow, a decline in the number of offences of an extremist nature, to
76, has been noted for the first time in several years. That said, in 2010, 105 such offences
were registered in the capital, and the number of homicides on extremist grounds rose by
half. The peak was in the years 2008 to 2010. Whereas 13 offences of an extremist nature
were registered in the first half of 2007, 73 were registered in the first half of 2008.
126. The tide was turned after the law enforcement authorities neutralized the most
dangerous group, whose members had murdered a number of migrants on extremist
grounds. Several trials were held in Moscow City Court involving members of radical
youth organizations charged with a series of offences of an extremist nature.
127. For example, on 3 March 2011, A.D. Vasilyev, A.V. Gordeev, K.D. Kucher and
V.O. Polyakov were convicted, on the basis of a verdict handed down in a trial by jury on
21 February 2011, of committing nine assaults against 11 persons from the Caucasus or of
Asian or African origin in 2008 and 2009 in Moscow.
128. They were also convicted of having set off a number of explosions, including at the
Prague Fair commercial centre, the Tushin market and several concession stands at which
members of various ethnic groups were working, and of having set fire to the synagogue of
the Darkei Shalom community and to two vehicles belonging to a regiment of the special
militia’s Patrol and Inspection Service of the Central Internal Affairs Department, Moscow.
129. Vasilyev was sentenced under article 30, paragraph 3, article 105, paragraph 2 (a),
(e), (g), and (k), article 282, paragraph 2 (a) and (c) (10 counts), article 282, paragraph 2 (c)
(2 counts), article 213, paragraph 2 (3 counts), and article 161, paragraph 3 (a), of the
Criminal Code to 20 years’ deprivation of liberty.
130. Gordeev was convicted of similar offences and was sentenced to 8 years’
deprivation of liberty. Kucher was sentenced to 10 years’ deprivation of liberty and
Polyakov to 7 years’ deprivation of liberty.
131. In a decision of Moscow Area Military Court of 11 July 2011, L.E. Molotkov, V.V.
Tamashev, V.A. Appolonov, N.N. Michailov, L.V. Rudik, members of the extremist
association “National Socialist Society”, were sentenced to life imprisonment. V.Yu.
Vakhromov, E.B. Chalkov, S.A. Yurov, K.V. Nikiforenko, S.P. Golubev, V.V. Kovaleva
and S.V. Sviridov, also members of the National Socialist Society, were sentenced to
between 8 and 23 years’ deprivation of liberty for the commission of offences under articles
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GE.12-43423 25
105, 115, 116, 161, 162, 167, 205, 222, 223, 282, 282.1, 317 and 338 of the Criminal Code.
They were implicated in the preparation of one terrorist act and committed 27 homicides, 5
attempted homicides and a number of other violent crimes in Moscow and Moscow
province against persons of non-Slavic origin or persons who did not share their ideological
views.
132. Most offences of an extremist nature are committed by persons under 25 years of
age: members of youth groups (who, given their appearance, are referred to as skinheads),
members of extremist movements, leftist radical groups and national patriotic
organizations.
133. Suppressing the activities of groups that commit violent crimes for reasons of ethnic,
religious or racial hatred or enmity is a main priority of the anti-extremism departments of
law enforcement agencies.
134. To date, the list of voluntary and religious associations concerning which the courts
have issued a legally enforceable decision on the elimination or prohibition of the activities
set out in the Federal Act on Combating Extremist Activities already includes 28
associations (the list is contained in the annex to this report). The work of the procurator’s
offices in this area is continuing.
135. For example, Moscow City Court granted an application by the procurator to ban the
voluntary association “Movement against illegal immigration”.
136. The Moscow Provincial Court granted an application by the procurator’s office to
declare the interregional voluntary association “Spiritual Ancestral Russian Empire Rus” an
extremist organization and to prohibit its activities. Pursuant to the court decision, the
activities of this association were prohibited in Russia.
137. In addition to there being a closer monitoring of the activities of juveniles, posts for
police officers have been created at virtually all schools and universities (5,616 school
inspectors and 139 university inspectors). In a number of regions the post of commissioner
for problem families has been established on a trial basis (150 officials in 11 regions).
138. The law enforcement authorities hold regular meetings with representatives of
Russia’s traditional religions (the Russian Orthodox Church, the Islamic Theological Board
of the European part of Russia, and Jewish and Buddhist organizations).
139. Internal affairs officials together with representatives of religious organizations at
schools and other educational establishments conduct awareness-raising activities aimed at
preventing group violations of public order and acts of disorderly conduct and vandalism on
grounds of ideological, racial, ethnic or religious hatred.
140. In 2011, special programmes directed at promoting tolerance in inter-ethnic and
interfaith relations and counteracting radicalization, above all among young people, were
carried out in 52 constituent entities of the Russian Federation. The programmes were
designed on the basis of the principles of multiculturalism, religious tolerance, the values of
a multi-ethnic Russian society, observance of human and civil rights, and support for interethnic
peace and reconciliation. The programme’s main objectives are to eliminate the
causes of inter-ethnic and interfaith enmity and intolerance, inter-ethnic aggression and
violence, the spread of negative ethnic and religious stereotypes, xenophobia, everyday
racism and chauvinism, and ethnically based political extremism.
141. The law enforcement agencies and State authorities regularly hold meetings and
consultations with representatives of human rights organizations (the SOVA Centre for
Information and Analysis, the Human Rights Institute, the Moscow Bureau of Human
Rights and others). Agreement has been reached with a number of human rights and
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26 GE.12-43423
religious organizations to conduct regular joint monitoring of the mass media and the
Internet in order to detect extremist activities and appeals.
142. Internal affairs officials monitor educational establishments and meet with teachers
to obtain information on undesirable developments and on ideologues and leaders of radical
organizations who encourage young persons to commit offences of an extremist nature, the
aim being to detect cases of promulgation of extremism among young people.
143. The procurators in a number of constituent entities of the Russian Federation
continue to bring to light violations in this area. For example, in several educational
establishments there are no action plans for preventing manifestations of extremism among
young people or for promoting and teaching tolerant attitudes; the procuratorial authorities
have had to take action.
144. In response, the procuratorial authorities have conducted preventive work in the
provincial municipalities of the Republic of North Ossetia-Alania, the Kabardino-Balkar
Republic, the Chechen Republic and Stavropol Territory.
145. Acting on the outcome of an inspection by Krasnodar Territory’s department of
youth affairs, the procuratorial authorities submitted an application to the administrative
head (governor) of the Territory requesting corrective action in response to violations in
connection with the fight against extremist activities among young people. Following an
investigation, work began on the elaboration of a special programme to combat terrorism
and extremism in the Territory.
146. Modern mass communications systems, including the Internet, have played a special
technological and mobilizing role in the radicalization of youth, the Internet being one of
the main sources of the dissemination of radical literature and ideology as well as serving as
a means of communication for extremist groups, including those with transboundary links,
and as a tool for coordinating extremist activities. Extremist organizations increasingly
employ cyberspace for secretly recruiting new members, especially young people, and for
disseminating propaganda for destructive acts. Steps are being taken to identify
manifestations of extremism and xenophobia on Internet websites, in the press and in
audiovisual broadcasts in order to prevent such acts and combat their spread. The federal
list of banned extremist materials contains the names of more than 900 publications.
147. The prevention and suppression of extremist offences committed with the help of
the Internet is one of the key aspects of anti-extremist activities with an impact on interethnic
and interfaith relations.
148. A number of experts, including officials of the regional antiterrorism body of the
Shanghai Cooperation Organization, have estimated that only about 15 Internet sites
propagating terrorism and extremism were in operation in 1998. Today they number in the
thousands, including some 150 in Russian.
149. In cooperation with voluntary associations (the SOVA Centre for Information and
Analysis and the Moscow Bureau for Human Rights), the Ministry of Internal Affairs
constantly monitors the media and the Internet resources for evidence of the preparation
and commission of extremist offences and follows the activities of radical organizations
and their leaders; the findings are used to plan subsequent preventive and investigative
measures.
150. Monitoring makes it possible to take swift action in response to materials posted on
the Internet that foment inter-ethnic discord and enmity. Several examples are cited below:
• On 31 March 2011 the procuratorial authorities of the Crimea district of Orlovsk
province submitted an application to the Khamovnich Court of the city of Moscow
demanding that the owner of “Index”, a video hosting limited liability company,
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GE.12-43423 27
remove from the site all video files with the film “The Eternal Jew” (German title:
Der ewige Jude). The documentary propaganda film by filmmaker Fritz Hippler,
1940, was declared to be extremist material.
• On 31 August 2011, officials of the Ministry of Internal Affairs of the Republic of
Karelia ascertained that an unidentified person had posted statements on the Internet
site of the information agency Business News-Komi, the content of which aimed to
foment hatred and enmity on grounds of sex, race, ethnic background, language,
origin, attitude to religion or membership of a social group.
• On 11 September 2011, criminal proceedings were instituted in the Republic of
Bashkortostan for violation of article 282, paragraph 1, of the Criminal Code of the
Russian Federation against A.R. Izmailov, who had posted texts and illustrations on
an Internet website (http://jepifan.livejournal.com и http://jepiianz.livejournal.com)
for the purpose of fomenting and supporting hatred and enmity among members of
the Russian people towards members of the Bashkir people and disparaging groups
of persons on grounds of ethnic background, language or origin.
• On 21 October 2011, criminal proceedings were instituted under the same article for
the posting on a social network (http://www.vkontakte.ru) of videos with an
extremist content of the Slavic Union, Movement against Illegal immigration and
Format-18.
• On 2 November 2011, two criminal proceedings were instituted in Moscow under
the same article for the posting on an Internet website (http://buhoil589.borda.ru,
http://rbfans.bodra.ru) of material with an extremist content and for statements by
users reflecting a positive attitude towards Nazism, as well as the approval and
espousal of violent acts against persons of another ethnic origin.
• On 22 November 2011, criminal proceedings were instituted in the city of Belovo,
Kemerovo province, under the same article against V.A. Maksimov for posting
material from the federal list of extremist materials on the Internet
(http://www.vkontakte.ru).
• The investigative department for Novgorod province, a unit of the Investigative
Committee of the Russian Federation, instituted criminal proceedings against A.A.
Kondratyev for offences under article 282, paragraph 1, of the Criminal Code. An
investigation established that between August and November 2010, Kondratyev had
posted 18 videos and 85 graphic presentations of an extremist nature on the Internet
website www.vkontakte.ru. At the end of the investigation, the proceedings were
transferred to the Novgorod district court. Kondratyev was convicted, and he
expressed sincere regret.
151. As of 1 January 2012, the federal list of extremist materials included 1,066
materials, or 309 more than in 2010 (757).
152. The Federal Communications, Information Technologies and Mass Media
Regulatory Authority also gives priority attention to supervising and monitoring the
prohibition on the use of the information media for carrying out extremist activities,
inciting ethnic and religious discord and fomenting ethnic and religious hatred.
153. According to the Regulatory Authority’s office of authorized media activities, which
is responsible for the registration of media outlets, as of 1 January 2012, 89,173 media
outlets were registered (compared to 90,352 one year earlier), including 65,596 in the print
media (67,716 one year earlier) and 21,914 in the electronic media (21,076 one year
earlier).
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154. Owing to the systematic work by the Regulatory Authority in this area, in the period
2006–2011, 197 instances of publication in the media of materials containing evidence of
extremist activities (including incitement of racial, ethnic or religious enmity or fascist
propaganda) were detected, for which written warnings were issued in accordance with the
procedure established in the Mass Media Act No. 2124-I of 27 December 1991 and Federal
Act No. 114 of 25 July 2002 on the Suppression of Extremist Activities:
• In 2006, 39 warnings were issued for the posting of materials containing evidence of
extremist activities, including 16 for inciting ethnic discord, 6 for inciting religious
discord and 4 for fascist propaganda
• In 2007, 44 warnings were issued, including 24 for inciting ethnic discord, 4 for
inciting religious discord and 2 for fascist propaganda
• In 2008, 28 warnings were issued, including 18 for inciting ethnic discord, 3 for
inciting religious discord and 2 for fascist propaganda
• In 2009, 33 warnings were issued, including 14 for inciting ethnic discord, 3 for
inciting religious discord and 6 for fascist propaganda
• In 2010, 28 warnings were issued, including 8 for inciting ethnic discord, 4 for
inciting religious discord and 1 for fascist propaganda
• In 2011, 25 warnings were issued, including 8 for inciting ethnic discord, 2 for
inciting religious discord and 1 for fascist propaganda
155. In addition, pursuant to subparagraph 23 (b) of Decision No. 16 of 15 June 2010 of
the plenum of the Supreme Court on the application by the courts of the Mass Media Act,
between June 2010 and 2011 the Regulatory Authority addressed 191 communications to
the editors of electronic periodicals and information agencies calling for the withdrawal or
revision of materials containing statements of an extremist nature (including incitement of
racist, ethnic or religious discord or fascist propaganda).
156. The regional procuratorial authorities are also taking steps to prevent and suppress
violations of an extremist nature in the information media.
157. For example, the Office of the Procurator-General of the Russian Federation applied
to the court to declare as extremist the materials on the “Caucasus Centre” Internet website,
which had posted the following articles with an extremist content: “This is their
civilization”, “In Beslan they remembered Shamil Basaev’s letter to Vladimir Putin”,
“Dzhamaat ‘sharia’ promises to attack Sochi and the synagogue in Shamilkala” and “The
Dagestan Front: the jihad continues”.
158. A ruling by the Nikulin district court of Moscow of 12 September 2011 upheld the
application of the Office of the Procurator-General in full. Information on the declaration of
materials on the Caucasus Centre website as extremist has been included in the federal list
of extremist materials on the Internet website of the Ministry of Justice.
159. Action in response to Internet providers and directors of educational establishments
who do not block access to Internet websites declared as extremist has been taken by the
procurators in the Republics of Bashkortostan, Mari El and Tatarstan Chuvash, Perm
Territory, Samara, Orenburg, Kirov, Ulyanovsk, Nizhny Novgorod and Penzen provinces,
Krasnodar Territory, Rostov and Volgograd provinces, the Adygei Republic, the
Kabardino-Balkar Republic and Yaroslavl province.
160. In Moscow, criminal proceedings have been instituted for offences under article
205.2, paragraph 1, and article 282, paragraph 1, of the Criminal Code for the posting on
the Internet by an unknown person of a text entitled “On terrorism as a method of combat”,
which openly condones terrorism and advocates extremist activities.
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GE.12-43423 29
161. The Volga interregional procurator of the Republic of Mari El detected the posting
on five Internet websites of Adolf Hitler’s Mein Kampf, which has been declared extremist
material and has been included in the federal list of extremist materials. A city court
decision granted the procurator’s application to restrict access to these websites.
162. In 2011, 25 instances of publication in the media of material containing evidence of
extremist activities (as against 28 in 2010) were detected in the course of monitoring and
oversight of compliance by the information and communication media with legislation in
that area. In that connection, the Regulatory Authority sent 25 official warning letters to
media editors in accordance with the procedure established in article 16 of the Mass Media
Act.
163. Also in 2011, the procurators carried out 2,398 verifications of media publications
(2,783 in 2010), detected 727 violations of the law (508 in 2010) and took action in 368
cases (409 in 2010).
164. In the period 2008–2010, numerous sociological studies were conducted on the level
of inter-ethnic tension and the spread of manifestations of ethnic and religious extremism,
the findings of which were used to design measures to counter extremism and prevent interethnic
conflicts. Topics included:
• Students in Russia’s metropolitan centres: ethnic identity and inter-ethnic relations
• Causes for the spread of ethnic extremism and xenophobia among young people
(Central Federal Area)
• Ethnic political and ethnic religious monitoring: analysis and forecasting of
conflicts, and reasons for administrative decisions (Kabardino-Balkar Republic)
• Ethnic cultural potential of the regions as a factor in the formation of a united
Russian nation
• State of inter-ethnic and interfaith relations in the constituent entities of the Russian
Federation: basic trends and the role of migration, schools, society and the
authorities
• Formation of a civic identity and ethnic stereotypes in schools
• Comprehensive analysis of the contemporary ethnosocial situation of Russian
speakers, including the Russian population in the republics of the Russian
Federation
165. In accordance with article 4, subparagraph (c), of the Convention, the activities of
the public authorities and public institutions are based on universally recognized norms of
international law and the provisions of national legislation which prohibit the incitement of
racial discrimination.
166. At the end of 2006, the Ministry of Regional Development elaborated guidelines for
government bodies in the constituent entities for the detection of emerging conflicts in
inter-ethnic relations and the establishment of model operating procedures for dealing with
conflict situations and overcoming their consequences. The guidelines were sent to the
constituent entities for use by the authorities in their work.
167. Following a meeting of the Presidium of the State Council of the Russian Federation
held on 11 February 2011 in the city of Ufa on measures to promote inter-ethnic harmony
in Russian society, which was dictated by the need to elaborate systematic measures for the
prevention of a radicalization of ethnic questions, President Medvedev and the Government
of the Russian Federation issued instructions for organizing systematic and coordinated
initiatives aimed at fostering harmonious inter-ethnic relations and creating conditions for
the ethnic cultural development of the peoples of Russia.
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168. Accordingly, the Government, together with the special representatives of the
President in the Federal Areas and the government authorities of the constituent entities,
was instructed to analyse the implementation of State personnel policy in the constituent
entities and to make proposals for ensuring compliance with the principle of equal access
for citizens to posts in the State and municipal civil service and prohibiting discrimination
on grounds of ethnic origin; train, retrain and improve the qualifications of State and
municipal civil servants in the area of inter-ethnic and interfaith relations and the
prevention of extremism; set up standing working groups in the constituent entities whose
membership includes representatives of religious associations; and elaborate and carry out
comprehensive action plans for promoting inter-ethnic harmony, giving special attention to
interaction with ethnic cultural associations, religious organizations and ethnic
communities.
169. Pursuant to those instructions, the above-mentioned Government-level
Interdepartmental Working Group on inter-ethnic relations was established to coordinate
State nationalities policy and the development of the ethnic culture of the peoples of Russia.
On 22 June 2011 Dmitry Kozak, Deputy Prime Minister, approved a plan of action
elaborated for the implementation of a State nationalities policy for 2011–2012 which
incorporates the main areas of activity of the federal authorities with regard to:
• Awareness-raising measures aimed at strengthening a national identity and
promoting inter-ethnic tolerance
• The inculcation, including among young people, of a culture based on a multi-ethnic
society
• The prevention of ethnic and religious political extremism and inter-ethnic conflicts
• The ethnic cultural development of the peoples of the Russian Federation, and
support for ethnic voluntary associations and religious organizations
• The improvement of legislation in the area of inter-ethnic relations and the ethnic
cultural development of the peoples of the Russian Federation
170. In the constituent entities, comprehensive plans for promoting inter-ethnic harmony
have been drafted and are being implemented.
171. At the level of regional government bodies, specialized bodies and departments
responsible for State nationalities policy are currently in operation in all the constituent
entities. Standing working groups and interdepartmental and expert advisory bodies on
inter-ethnic and ethnic religious relations have also been established.
172. The regional and local authorities are also working to prevent extremist crimes.
D. Article 5
173. In compliance with the fundamental obligations laid down in article 2 of the
Convention, the Russian Federation prohibits racial discrimination in all its forms with
regard to the enjoyment of basic human and fundamental freedoms, including those
enumerated in article 5 of the Convention.
174. In conformity with article 5, subparagraph (a), of the Convention, justice in the
Russian Federation is administered in strict conformity with the adversarial principle and
the equality of the parties to proceedings.
175. Article 7 of Federal Constitutional Act No. 1 of 31 December 1996 on the Judicial
System of the Russian Federation (in its version of Federal Constitutional Act No. 5 of 15
December 2001, Federal Constitutional Act No. 3 of 4 July 2004 and Federal Constitutional
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GE.12-43423 31
Act No. 3 of 5 April 2005) establishes the principle of the equality of all persons before the
law and the courts. The content of this principle is set out in article 7, paragraph 2, pursuant
to which the courts may not give preference to any bodies or parties to proceedings on
grounds of their national or social status, sex, race, ethnicity, language or political
affiliation, origin, material or official status, place of residence, place of birth, attitude to
religion, beliefs, membership of voluntary associations or other circumstances prescribed
by law.
176. In accordance with article 15 of the Code of Criminal Procedure and article 12 of the
Code of Civil Procedure, criminal justice and civil justice are both administered on the
basis of the adversarial principle and the equality of the parties to proceedings.
177. Pursuant to article 5, subparagraph (b), of the Convention, the Russian Federation
guarantees, without distinction as to race or national or ethnic origin, the security of person
and protection against violence or bodily harm inflicted by government officials. Article 21
of the Constitution provides that human dignity is protected by the State, that it may not be
impaired for any reason, that no one may be subjected to torture, violence or other cruel or
degrading treatment or punishment and that no one may be subjected to medical, scientific
or other experiments without free consent.
178. These norms are set out in article 3 of Federal Act No. 3 of 7 February 2011 (revised
6 December 2011) on the Police (which states that police officers may not resort to torture,
violence or other cruel or degrading treatment; police officers are required to halt any acts
which intentionally subject a person to pain or physical or mental suffering), article 13
(Right of convicted persons to security of person) of the Penal Enforcement Code (Federal
Act No. 1 of 8 January 1997, revised 7 December 2011, with the amendments and additions
which entered into force on 16 December 2011) and article 19 (Right to security of person)
of Federal Act No. 103 of 15 July 1995, revised 3 December 2011, on Pretrial Detention of
Suspects and Accused Persons, as well as other laws and regulations.
179. In conformity with article 5, subparagraph (c), of the Convention, article 32 of the
Constitution establishes the right of citizens of the Russian Federation to take part in the
conduct of public affairs both directly and through their representatives, to vote and to stand
for election to federal and local government bodies and to participate in referendums.
180. Article 4, paragraph 2, of the Federal Act on the Fundamental Guarantees of
Electoral Rights and the Right of Citizens to Participate in Referendums stipulates that
citizens of the Russian Federation enjoy the right to vote, to stand for election and to
participate in referendums, irrespective of sex, race, ethnic background, language or place
of residence.
181. In accordance with article 28 of Federal Act No. 138 of 26 November 1996 (revised
9 November 2009) on the Enjoyment of the Constitutional Rights of Citizens of the Russian
Federation to Vote and to Stand for Election to Local Government Bodies, election
programmes and campaign materials may not contain calls for a violent change of the
foundations of the constitutional system or a violation of the integrity of the Russian
Federation. Campaigns and propaganda espousing social, racial, ethnic or religious
superiority, and the publication and dissemination of declarations and materials which
incite social, racial, ethnic or religious hatred, are prohibited.
182. In compliance with article 5, subparagraph (d) (i), of the Convention, every citizen
has the right to freedom of movement and residence within the borders of the Russian
Federation. This right, which is inalienable, is enjoyed by all citizens from birth, and it is
set out in article 27 of the Constitution as well as in article 1 of Act No. 5242-1 of 25 June
1993 on the Right of Citizens of the Russian Federation to Freedom of Movement and
Residence within the Borders of the Russian Federation.
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32 GE.12-43423
183. In conformity with article 5, subparagraph (d) (ii), article 27 of the Constitution
establishes the right of everyone legally present in the Russian Federation to freedom of
movement and choice of temporary or permanent residence. The right to leave the Russian
Federation is also enshrined, as is the right of citizens to return to the Russian Federation
without hindrance.
184. In keeping with article 5, subparagraph (d) (iii), article 6 of the Constitution
stipulates that citizenship is acquired and terminated in accordance with federal law; it is
the same and equal for all, irrespective of the grounds for acquisition.
185. The Federal Citizenship Act No. 62 of 31 May 2002 (revised 28 June 2009) defines
the principles of Russian citizenship and the rules governing relations in that regard, and it
sets out the grounds, conditions and procedure for its acquisition and termination.
186. In compliance with article 5, subparagraph (d) (iv), of the Convention, article 12 of
the Family Code provides that the contracting of marriage requires the mutual free consent
of the man and woman concerned and their attainment of marital age. There are no
restrictions in respect of membership of any social or ethnic group.
187. In keeping with article 5, subparagraph (d) (v), domestic legislation guarantees the
right to own property alone as well as in association with others. Thus, part 1, section III
(Property and related rights), of the Civil Code (Federal Act No. 51 of 30 November 1994,
revised 30 November 2011) specifies that the Russian Federation recognizes private, State,
municipal and other forms of property (art. 212, para. 1). Property may be owned by a
private citizen or a legal entity, as well as by the Russian Federation, the constituent entities
of the Russian Federation and municipal entities. The law defines the forms of property
which may only be owned by the State or municipal entities (art. 212, para. 3). All property
owners enjoy equal protection of their rights (art. 212, para. 4).
188. Article 213 specifies that private citizens and legal entities may own any property,
with the exception of certain forms of property. There are no restrictions on the amount or
value of property owned by private citizens and legal entities, except in cases in which such
restrictions have been established by law for the purposes set out in article 1, paragraph 2,
of the Code, i.e. solely to the extent necessary for the protection of the foundations of the
constitutional system, the morals, health, rights and legitimate interests of other persons,
national defence or State security.
189. In accordance with article 213, paragraphs 3 and 4, commercial and non-profit
organizations, with the exception of State and municipal enterprises and institutions, are
owners of property transferred to them in the form of shares (contributions) by their
founders (shareholders, members), as well as property acquired by these legal entities on
other grounds. Voluntary and religious organizations and associations, charities and other
foundations own the property which they acquire and may dispose of it solely for the
attainment of the aims set out in their constituent documents. The founders (shareholders,
members) of these organizations forfeit entitlement to the property which they have
transferred to the ownership of the organizations concerned. If such an organization is
terminated, the property which remains after the claims of creditors have been met is used
for the purposes set out in its constituent documents.
190. In conformity with article 5, subparagraph (d) (vi), of the Convention, domestic
legislation ensures the right of Russian citizens to inherit without any restrictions on
grounds of race, ethnic background or religious affiliation. Part 3, section V (Right to
inherit), of the Civil Code (Federal Act No. 146 of 26 November 2001, revised 30 June
2008), on the principles of the enjoyment of this right in the Russian Federation, stipulates
that citizens who are alive on the day of the opening of the inheritance as well as persons
conceived during the life of the testator and born alive after the opening of the inheritance
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GE.12-43423 33
can inherit. Legal entities which exist on the day of the opening of the inheritance and
which are cited in the testament can also inherit (art. 1,116, para. 1).
191. In keeping with article 5, subparagraph (d) (vii), article 28 of the Constitution
specifies that everyone is guaranteed freedom of conscience and religion, including the
right to practise any religion individually or with others or not to profess any faith, to freely
choose, hold and disseminate religious and other beliefs and to act in conformity with them.
192. Article 29 of the Constitution prohibits propaganda or campaigns which foment
social, racial, ethnic or religious hatred or enmity; the advocacy of social, racial, ethnic,
religious or linguistic superiority is also prohibited.
193. The right of everyone to equality before the law is recognized, irrespective of
attitude to religion and convictions. The Federal Act on Freedom of Conscience and
Religious Associations, adopted on 26 September 1997, governs legal relations with regard
to the right of individuals and citizens to freedom of religion as well as the legal status of
religious associations.
194. As of 31 December 2011, 24,624 religious associations were registered in the
Russian Federation. Many religious groups are also active. A religious group is a separate
form of the enjoyment of freedom of religion; registration is not mandatory and takes place
by notification.
195. Article 59 of the Constitution establishes the right of any citizen of the Russian
Federation for whom the performance of military service runs counter to his convictions or
faith to perform alternative civilian service; this also applies in other cases set out in federal
legislation. Further to this provision, Federal Act No. 113 of 25 July 2002 (revised 30
November 2011) on Alternative Civil Service was adopted.
196. In conformity with article 5, subparagraph (d) (viii), of the Convention, article 19 of
the Constitution provides that the State guarantees equality of human and civil rights and
freedoms, regardless of sex, race, ethnic background, language, origin, material or official
status, place of residence, attitude to religion, beliefs, membership of voluntary associations
or other circumstances. Any restriction on civil rights on grounds of social status, race,
ethnic background, language or religious affiliation is prohibited.
197. Article 28 of the Constitution stipulates that everyone has the right freely to choose,
hold and disseminate religious and other beliefs and to act in conformity with them.
198. Article 29 of the Constitution guarantees that no one may be forced to express their
views or beliefs or to renounce them.
199. In compliance with article 5, subparagraph (d) (ix), of the Convention, domestic
legislation on meetings, rallies, demonstrations, marches and picketing is based on the
provisions of the Constitution, universally recognized principles and norms of international
law and international agreements to which the Russian Federation is a party, Federal Act
No. 54 of 19 June 2004 (revised 8 December 2011) on Meetings, Rallies, Demonstrations,
Marches and Picketing and other legislative acts. The holding of meetings, rallies,
demonstrations and marches and picketing for the purpose of election and referendum
campaigns is regulated by this Act and by legislation on elections and referendums. Federal
Act No. 125 of 26 September 1997 on Freedom of Conscience and Religious Associations
governs the celebration of religious rites and ceremonies.
200. Pursuant to article 31 of the Constitution, citizens have the right to assemble
peacefully, without arms, to hold meetings, rallies, demonstrations and marches and to
picket.
201. In accordance with article 5 of the above-mentioned Federal Act No. 54, the
organizer of a public event may be one or more citizens of the Russian Federation (the
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34 GE.12-43423
organizer of a demonstration, a march or picketing may be a citizen of the Russian
Federation who is 18 years of age or older, and the organizer of a rally or a meeting may be
a citizen of the Russian Federation who is 16 years of age or older), political parties or
other voluntary associations or religious organizations, their regional branches or other
structural divisions which have assumed responsibility for organizing and conducting a
public event. The organizer of a public event may not be (1) a person declared by a court to
be incompetent or of limited legal competence or a person held in a place of detention
pursuant to a court sentence; or (2) a political party, voluntary association or religious
organization or a regional branch or other structural division thereof whose activity has
been suspended or prohibited or which has been dissolved in accordance with the procedure
established by law.
202. Article 6 of the Act defines the rights of participants in public events, which include:
(a) The right to participate in discussions, decision-making and other collective
activities consistent with the aims of the event;
(b) The right, during the event, to use various symbols and other means of
publicly expressing a collective or individual opinion, as well as campaigning means not
prohibited by law;
(c) The right to adopt resolutions, demands and other communications and to
send them to the central and local government authorities, voluntary and religious
associations, and international and other bodies and organizations.
203. During public events, participants must:
(a) Comply with all legitimate demands of the organizer, persons authorized by
the organizer, the authorized official of the government body of the constituent entity or the
local authority and internal affairs officials;
(b) Comply with the requirements of public order and regulations for the holding
of public events;
(c) Comply with the requirements under national legislation and other legal
instruments for ensuring transport and road traffic safety if the event is held with the use of
public transport.
204. In accordance with article 7 of Federal Act No. 76 of 27 May 1998 (revised 1
February 2012) on the Status of Military Personnel (Freedom of speech: the right to
participate in meetings, rallies, demonstrations and marches and to picket), military
personnel have the right to participate unarmed in meetings, rallies, demonstrations,
marches and picketing held outside the territory of the military facility during the time in
which they are freed from the performance of their military duties.
205. Pursuant to article 149 of the Criminal Code (Obstruction of the holding of or
participation in a meeting, rally, demonstration or march or picketing), the unlawful
obstruction of the holding of or participation in a meeting, rally, demonstration or march or
picketing, or coercion of participation in those events, constitutes an offence if the acts are
committed by an official who takes advantage of his or her official position or with the
threat or use of violence.
206. In conformity with article 5, subparagraph (e) (i), the right of ethnic minorities and
foreign nationals to work and to protection against unemployment enshrined in the
Convention is implemented in accordance with the Labour Code, which sets out the main
principles for the regulation of labour and associated relations.
207. Article 2 of the Labour Code recognizes the following rights:
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GE.12-43423 35
• Freedom to work, including the right to work and to engage in labour which is freely
chosen or agreed, and the right to decide how to use one’s aptitudes and to choose a
profession or type of activity
• Prohibition of forced labour and discrimination at the workplace
• Protection against unemployment, and assistance in finding employment
• The right of all workers to just conditions of work, including safe and healthy
working conditions, and the right to rest, including limitations on working time,
daily breaks, weekends and public holidays, and paid annual leave
• Equality of rights and opportunities for workers
• The right of all workers to timely and full payment of a just remuneration ensuring
for themselves and their families an existence worthy of human dignity and not less
than the minimum wage established by federal law
• Equal opportunities for workers to be promoted without any discrimination, account
being taken of their productivity, skills and length of service in their specialty and
also their vocational training, retraining and in-service training
• The right of workers and employers to form associations to protect their rights and
interests, including the right of workers to form and join trade unions
• The right of workers to participate in the administration of organizations in a manner
prescribed by law
• The right to a combination of State and contractual agreements on labour and
associated relations
• The rights entailed under a social partnership, including the right of workers,
employers and their associations to participate in the negotiated regulation of labour
and associated relations
• The obligation to pay compensation for harm caused to workers in connection with
the performance of their duties
• State guarantees for ensuring the rights of workers and employers, and State
supervision and monitoring of compliance
• The right of everyone to State protection of their labour rights and freedoms,
including defence before the courts
• The right of everyone to the settlement of individual and collective labour disputes
as well as the right to strike in accordance with the procedure prescribed by the
Labour Code and other federal legislation
• The obligation on the part of parties to a labour contract to comply with its terms,
including the right of the employer to require workers to perform their working
duties and to respect the employer’s property, and the right of workers to require the
employer to comply with his/her obligations towards the workers, labour legislation
and other instruments containing norms of labour law
• The right of trade union representatives to monitor compliance with labour
legislation and other instruments containing norms of labour law
• The right of workers to the protection of their dignity at work
• The right of workers to compulsory social insurance
208. Pursuant to article 3 of the Labour Code (Prohibition of discrimination at work),
everyone has equal opportunities for the exercise of their labour rights. No one may be
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36 GE.12-43423
restricted in their labour rights and freedoms or benefit from any preference on grounds of
sex, race, skin colour, ethnic background, language, origin, material, family, social or
official status, age, place of residence, attitude to religion, political convictions,
membership or non-membership of a voluntary association or other circumstances
unrelated to a worker’s professional merits. Persons who consider that they have been
subjected to employment discrimination are entitled to apply to the courts for the
restoration of their violated rights and compensation for material and moral damage.
209. State guarantees that ensure the constitutional right of ethnic minorities and foreign
nationals to work and to social protection against unemployment are also set out in the
Employment Act. In accordance with article 6 of the Act, employment legislation also
covers stateless persons, unless otherwise provided by federal law or international
agreements to which the Russian Federation is a party.
210. The employment of ethnic minorities and foreign nationals lawfully residing in the
Russian Federation is ensured through a number of federal job promotion services as well
as State participation in other measures aimed at reducing tension on the labour market in
the constituent entities.
211. In conformity with article 5, subparagraph (e) (ii), of the Convention, domestic
legislation establishes the right of citizens to form trade unions. The principles of the
enjoyment of this right are set out in a whole set of laws and regulations (chapter 58
(Protection by Trade Unions of the Labour Rights and Legitimate Interests of Workers) of
the Labour Code (Federal Act No. 197) of 30 December 2001, revised 22 November 2011,
amended 15 December 2011; Federal Act No. 10 on Trade Unions (Rights and Guarantees
of Activities) of 12 January 1996, revised 28 December 2010; Federal Employment Act No.
1032-1 of 19 April 1991, revised 30 November 2011 (art. 21); and other legal instruments
in the area). These rights are guaranteed for all citizens of the Russian Federation,
regardless of ethnic or religious group.
212. In accordance with article 2 of the Federal Act No. 315 on Self-regulating
Organizations of 1 December 2007 (revised 3 December 2011), entities which engage in
entrepreneurial or professional activities may create non-profit organizations for the
purpose of elaborating and introducing standards and regulations for these activities and
monitoring compliance. Self-regulating organizations, which are based on membership, are
enterprises from the same branch of industry or marketing outlet for goods and services or
entities involved in a specific type of professional activity.
213. In keeping with article 5, subparagraph (e) (iii), of the Convention, domestic
legislation recognizes the right of ownership and other rights in rem with regard to housing
(chapter 18 of the Civil Code (Federal Act No. 51) of 30 November 1994, revised 30
November 2011; and section III, chapter 5, of the Housing Code (Federal Act No. 188) of
29 December 2004, revised 6 December 2011, amended 7 December 2011, with
amendments and additions which entered into force on 1 March 2012, including the
procedure for the rental and lease of housing (section III, chapter 5, article 671)).
214. The Federal Housing Programme for 2002–2010 was implemented in order to
improve the living conditions of the population, to make the acquisition of housing more
accessible and to increase the proportion of families able to purchase their own housing. A
similar programme is under way for the period 2011–2015.
215. Consistent with article 5, subparagraph (e) (iv), of the Convention, Federal Act No.
323 of 21 November 2011 on the Public Health Care System stipulates that the State must
provide health care for its citizens, irrespective of sex, race, age, ethnic background,
language, presence of illness, state of health, origin, material or official status, place of
residence, attitude to religion, convictions, membership of a voluntary association or other
circumstances.
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GE.12-43423 37
216. The State guarantees citizens protection against forms of discrimination based on the
presence of any illness. Persons who are guilty of violating this provision are punishable in
accordance with the law. Citizens outside the country are guaranteed the right to health care
in conformity with the international agreements to which the Russian Federation is a party.
217. Foreign nationals in the Russian Federation are guaranteed health care in accordance
with the international agreements to which the Russian Federation is a party. Stateless
persons permanently resident in the Russian Federation and refugees have the same right to
health care as Russian citizens, unless international agreements to which the Russian
Federation is a party provide otherwise.
218. Pursuant to Federal Act No. 195 of 10 December 1995 on the Fundamentals of
Social Services for the Population of the Russian Federation, the State system of social
services consists of State enterprises and social service institutions which are owned and
operated by the constituent entities of the Russian Federation.
219. Social services are also provided by enterprises and institutions under other forms of
ownership and by citizens engaged in an entrepreneurial activity for providing social
services to the population without the formation of a legal entity.
220. The State supports and encourages the development of social services, irrespective
of the form of ownership. Social services are based on the following principles:
• Targeted assistance
• Accessibility
• Voluntary participation
• Humanity
• Priority for minors in difficulty
• Confidentiality
• Prevention
221. The State guarantees for all citizens the right to social services under the State
system in the basic forms defined by the above Federal Act, in accordance with the
procedures and conditions prescribed by legislation and other legal instruments of the
constituent entities.
222. Social services are provided upon the request of a citizen, his or her guardian or
other legal representative, a central or local authority or a voluntary association. Every
citizen has the right to obtain information free of charge on possibilities, forms, procedures
and conditions for benefiting from the social services of the State system.
223. Foreign nationals permanently residing in the Russian Federation have the same
right to social services as Russian citizens, unless international agreements to which the
Russian Federation is a party provide otherwise.
224. Social services are either free of charge or on a paying basis. Free social services
under the State system are provided in accordance with the above Federal Act. The
procedure for the provision of free social services is defined by the government bodies of
the constituent entities.
225. Pursuant to the Federal Act, the following persons are entitled to free social services
under the State system: citizens who are unable to care for themselves due to their advanced
age, illness or disability and who do not have a family to assist and care for them, provided
that their average income is less than the minimum subsistence level established for the
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38 GE.12-43423
constituent entity in which they live; citizens in difficulty due to unemployment, natural
disasters or inter-ethnic or armed conflicts; and minors in difficulty.
226. Social services on a paying basis under the State system are provided in accordance
with the procedure defined by the government bodies of the constituent entities.
227. Social protection in the Russian Federation is provided as a matter of priority,
irrespective of sex, race, social background, religious or political convictions or social
status, to:
• Elderly citizens, especially if single or living alone, and married couples living alone
• Disabled veterans of the Second World War and families of deceased military
personnel
• Disabled veterans of conflicts in other countries (“internationalist soldiers”)
• Disabled persons, included persons disabled since childhood and disabled children
• Citizens who were victims of the consequences of the accident at the Chernobyl
nuclear power plant and radioactive fallout in other areas
• Unemployed persons
• Refugees and displaced persons
• Children who have lost both parents
• Children displaying deviant behaviour
• Families with disabled children
• Low-income families
• Large families
• Single mothers
• Persons with special needs
228. The social services system provides various forms of assistance, including financial
support, housing benefits, hospital care, temporary shelter, day care at social service
institutions and rehabilitation.
229. For example, temporary shelter in specialized facilities is provided to orphans,
children without parental care, neglected minors, children in difficulty, citizens without a
fixed residence or occupation, citizens victims of physical or psychological violence,
natural disasters or the consequences of inter-ethnic or armed conflicts and other persons in
need.
230. Work is currently under way to enlarge the range of social services, improve their
quality, promote mobile forms for their provision, introduce public-private partnerships and
involve non-profit organizations.
231. On the basis of blueprints approved for the development and placement of social
service facilities, most constituent entities have medium-term plans (until 2020) to create
new social service establishments by erecting model buildings and other structures,
increasing the capacity of existing installations, constructing additional housing etc.
232. In all, there are some 3,700 social service facilities for the elderly and the disabled,
and 3,200 for families and children. They are in operation in all the constituent entities,
which are responsible for their organization and funding.
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233. In compliance with article 5, subparagraph (e) (v), of the Convention, article 5 of the
Education Act provides that citizens are guaranteed the opportunity to receive an education,
irrespective of sex, race, ethnic background, language, origin, place of residence, attitude to
religion, beliefs, membership of a voluntary organization or association, age, state of health,
social, material or official status or criminal record.
234. Restrictions on the right of citizens to vocational training on grounds of sex, age,
state of health or criminal record may be established only by law.
235. Federal Act No. 17 of 9 February 2007 on Amendments to the Education Act and
the Federal Act on Higher and Post-Graduate Vocational Training introduced a single State
examination as the form of certification for students who have completed the curriculum of
general secondary education.
236. The experience in implementing this Federal Act testifies to the fact that a single
State examination ensures an independent objective assessment of the quality of secondary
general education and a selection of candidates for secondary and higher vocational
education schools who are most capable and best prepared for a mastery of the relevant
level of schooling; it also makes vocational education more accessible and reduces the time
spent and expenses incurred by schools in the selection process.
237. Proof of the effectiveness of the single State examination as a tool which makes
vocational education more accessible is the fact that a large percentage of school leavers
who take the exam are from rural areas (approximately 30 per cent) and from district
localities and towns (population of up to 100,000 persons). A positive trend has been
observed with regard to applications by such school leavers to universities in Moscow,
Saint Petersburg and other large Russian cities (in 2010, more than half of first-year
university students in Saint Petersburg (59 per cent) were from other parts of the country).
In addition, 62.5 per cent of school leavers who took the single State examination are from
families with a monthly income of less than 10,000 roubles.
238. This suggests that there is greater equality of initial opportunities for all segments of
the population to receive quality vocational training, including in the most popular
specialities and areas.
239. Citizens of the Russian Federation have the right to receive basic general education
in their native language and also to choose a language of instruction, within the limits of the
capacities available to the educational system (article 6 of the Education Act). The right of
citizens to receive education in their native language is ensured through the establishment
of the necessary number of schools, classes and groups, as well as conditions for their
functioning.
240. The educational establishment and/or school regulations determine language or
languages of instruction.
241. Questions relating to the education of foreign nationals in the Russian Federation are
dealt with in accordance with domestic legislation and international agreements to which
the Russian Federation is a party (article 57 of the Education Act).
242. In accordance with the international agreements to which the Russian Federation is a
party, the State helps representatives of the peoples of the Russian Federation who are
living abroad obtain basic general education in their native language.
243. More detailed information on the realization of educational rights in the native
language is contained in paragraphs 373 and 381–399.
244. In conformity with article 5, subparagraph (e) (vi), of the Convention, the
Constitution and federal legislation (including the Federal Act on Guarantees for the Rights
of the Small Indigenous Peoples of the North, Siberia and the Russian Far East and the
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Federal Act on the Foundations of Legislation on Culture) specify that the Russian
Federation ensures the preservation and restoration of the cultural and ethnic identity of the
small ethnic communities of the Russian Federation. These norms are dictated by the
vulnerability of the traditional way of life of small indigenous peoples, the harsh climatic
conditions in their habitat, urbanization and globalization.
245. Domestic legislation, including the Act on the Languages of the Peoples of the
Russian Federation and the Federal Act on Ethnic and Cultural Autonomy, also guarantees
the right of the peoples of the Russian Federation to preserve and develop their native
language, traditions and culture. Provision is made for the creation of conditions conducive
to a comprehensive and equitable development of native languages and freedom of choice
and use of one’s language of communication, so that all the peoples inhabiting the territory
of the Russian Federation may realize their ethnic and cultural potential more fully. The Act
focuses on protecting the sovereign linguistic rights of the individual, irrespective of a
person’s origin, social or property status, race or ethnic background, sex, education, attitude
to religion or place of residence. Information on the number of media outlets in the
languages of the peoples of Russia is contained in the annex to this report.
246. The Federal Act on the Foundations of Legislation on Culture establishes the right
of peoples and ethnic communities to preserve and develop their cultural and ethnic identity
and to protect, restore and preserve their traditional cultural and historical habitat.
247. The Federal Ethnic Cultural Autonomy Act defines such autonomy as a form of
ethnic cultural self-determination consisting in the voluntary association of citizens of the
Russian Federation who identify with a particular ethnic community and who organize on
that basis in order to address independently issues of preservation of identity, language
development, education and ethnic culture.
248. In compliance with article 5, subparagraph (f), of the Convention, there is no
limitation whatsoever, in legislation or in practice, on access to any place or service
intended for use by the general public on grounds of race, ethnic background, language or
other affiliation.
1. Situation with regard to the realization of the rights of members of the Roma
community
249. As in other European countries, the socialization in the Russian Federation of the
Roma, including their access to modern social infrastructures (issuance of documents,
provision of health care, housing etc.) and their successful social integration, is an
important issue.
250. Working meetings are regularly held with representatives of Roma voluntary
associations at federal, regional and local levels of government. The discussion on the
social, economic and ethnic cultural development of Russian Roma at a meeting held in
August 2011 of the Expert Advisory Board of representatives of ethnic voluntary
associations under the Deputy Prime Minister constituted a major breakthrough in the
improvement of interdepartmental coordination on issues involving the Roma community.
Following the meeting, the Ministry of Regional Development and the Federal
Autonomous Ethnic Cultural Organization of Russian Roma were instructed to elaborate a
plan of action for the socioeconomic and ethnic cultural development of the Roma
community. The plan of action is currently being prepared; once completed, it will be
submitted to the Government for approval.
251. The central authorities regard the legalization of homeownership as the legal
mechanism which prevents the practice of forcibly evicting Roma. A legalization of the
Roma population enables Roma to avail themselves of all the rights guaranteed to citizens
under the Constitution and the relevant legislation at federal and regional level.
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252. Efforts to legalize Roma settlements are carried out in close cooperation with the
federal, regional and local authorities.
253. Roma families receive State support in the framework of State housing made
available to members of the population in need of better living conditions. The following
data provide concrete examples of an improvement in the living conditions of the Roma.
254. In 2010, 63 Roma families in Kaluga province asserted their right to housing: 45
families received State or municipal housing, 15 are on the waiting list for housing, and 3
are on the waiting list for an improvement in their living conditions.
255. In Pskov province, 36 Roma families were placed on the list of citizens in need of
low-income State housing.
256. In Volga province, six Roma families were provided with mobile homes, which
citizens receive whose homes have become uninhabitable because of an emergency
situation.
257. Today, Roma who are most successfully integrated into the social structure of
Russian society and are best adapted live in cities or in towns near big cities. A
characteristic of this ethnic community is its growing urbanization.
258. In places with large Roma populations, a number of measures are planned in the
framework of a federal programme for strengthening the unity of the Russian nation and
promoting the ethnic cultural development of the peoples of Russia. The programme is
being elaborated by the federal ministries on the instructions of the President, the aim being
to intensify work on the sociocultural adaptation and integration of Roma into Russian
society and to prevent conflict situations (including in connection with the demolition of
dwellings).
259. Representatives of the Federal Autonomous Ethnic Cultural Organization of Russian
Roma are members of the Expert Advisory Board within the Interdepartmental Working
Group on inter-ethnic relations and the Advisory Board on the affairs of autonomous ethnic
cultural organizations set up in 2006 under the Ministry of Regional Development. This has
made it possible to hold a constructive dialogue on issues relating to the cultural and
socioeconomic situation of Russia’s Roma community.
260. In conjunction with the Council of Europe, the Russian Federation is taking part in
the elaboration and implementation of measures to improve the situation of Roma in the
States parties of the Council of Europe. Specifically, in late 2011 it expressed an interest in
participating in a programme initiated in 2010 by Council of Europe Secretary General
Thorbjørn Jagland to train mediators on questions of cooperation between Roma
communities and all levels of government in the area of education, health care and
employment for Roma.
2. Implementation of the rights of the small indigenous peoples of the Russian
Federation
261. There are 47 small indigenous peoples in the Russian Federation, with a total
population of 312,900 persons. Large populations are found in more than 30 constituent
entities. They include the small indigenous peoples of the North, Siberia and the Russian
Far East, whose population according to the census stands at between 244,000 and 254,700
persons (for more detailed figures for each ethnic group, see paragraphs 12–14).
262. The protection of the rights of small indigenous peoples and small ethnic
communities is linked to the enjoyment of the right to land and other natural resources,
which is seen as the foundation of the life and activities of peoples living in the areas
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42 GE.12-43423
concerned (article 9, paragraph 1, of the Constitution), and the right to the protection of
their native habitat and traditional way of life.
263. Article 69 of the Constitution guarantees the rights of indigenous peoples in
conformity with universally recognized principles and norms of international law and
international agreements.
264. The Russian Federation also considered it desirable to establish in a constitutional
provision the requirement to protect the native habitat and traditional way of life of
indigenous peoples: article 72, paragraph 1 (l), of the Constitution specifies that the
protection of the native habitat and traditional way of life of small ethnic communities is
under the joint jurisdiction of the Russian Federation and its constituent entities.
265. Federal legislation defines the legal status of indigenous peoples and small ethnic
communities living under particular climatic and natural conditions in the regions of the
North, Siberia and the Russian Far East. Federal Act No. 104 of 20 July 2000 on General
Principles of Organization of the Communities of Small Indigenous Peoples of the North,
Siberia and the Russian Far East specifically introduced the notion of “small indigenous
peoples of the North, Siberia and the Russian Far East”, a new term which took on much
greater importance because of the special legal status of such peoples. The singling out, in
2000, of that specific group (most of whose members lived in nomadic communities) from
among other indigenous peoples of the Russian Federation was an important catalyst for the
development of both federal and other legislation addressing ethnic issues in the following
years.
266. Small indigenous peoples are guaranteed priority access to natural resources, which
are regarded as the foundation of their life and activities. Their traditional habitat and way
of life are also protected.
267. Legislation sets out four criteria for qualifying as a small indigenous people:
• Habitation of traditional ancestral settlement areas
• Preservation of traditional ways of life and livelihoods
• Identity as an independent ethnic community
• Population in the Russian Federation of less than 50,000 persons
268. In recent years, many initiatives have been successfully carried out at federal level to
preserve the cultural heritage and traditional way of life of indigenous peoples.
269. The main objective of these initiatives is to ensure the sustainable development of
indigenous peoples, which entails strengthening their socioeconomic potential and
protecting their native habitat, traditional way of life and cultural values through targeted
State support and the mobilization of their own internal resources.
270. The Russian Federation was the first Member State to respond to the United Nations
General Assembly resolution proclaiming the Second International Decade of the World’s
Indigenous People. It was the first Member State of the United Nations to create the
relevant national organizing committee, which was headed by the Minister of Regional
Development, since the Ministry of Regional Development is responsible for implementing
State policy on the small indigenous peoples of Russia.
271. In the period 2008–2010, a set of three-year priority government measures were put
into effect in the framework of the Second Decade. The next measures will be implemented
by 2014, when the Second Decade comes to a close.
272. These measures are composed of initiatives to:
• Improve legislation
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GE.12-43423 43
• Preserve and promote the cultural heritage and development of the traditional culture
of the small indigenous peoples of the Russian Federation
• Preserve their traditional way of life
• Improve their level of health care and education
• Encourage international cooperation
273. The cost of funding these measures for the period 2008–2010 stood at 80 million
roubles annually.
274. In 16 constituent entities with large populations of small indigenous peoples,
regional organizational committees were set up to carry out the Second Decade, plans of
action were approved and implemented, and financial resources were allocated.
275. Three federal acts govern State policy in the area of small indigenous peoples:
(a) Federal Act No. 82 of 30 April 1999 on the General Principles for the
Organization of Communities of the Small Indigenous Peoples of the North, Siberia and the
Russian Far East;
(b) Federal Act No. 104 of 20 July 2000 on Guarantees for the Rights of the
Small Indigenous Peoples of the North, Siberia and the Russian Far East;
(c) Federal Act No. 49 of 7 May 2001 on Areas of Traditional Resource Use of
the Small Indigenous Peoples of the North, Siberia and the Russian Far East.
276. The rights of indigenous peoples are also formalized in many federal and regional
laws governing questions of investment, social protection, education, culture, animal
husbandry, fishing etc.
277. To improve legislation, a new version of the Federal Act on Areas of Traditional
Resource Use has been drafted which defines rules for the formation of such areas,
simplifies the procedure for their creation and envisages the possibility of establishing them
on various categories of land.
278. In 2009, the Government approved lists of traditional habitats and traditional
livelihoods.
279. A bill is currently being elaborated which gives members of indigenous peoples the
right freely to engage in traditional fishing to meet non-commercial needs, without any
limit on the catch (information on the bill is contained in annex no. 7 and annex no. 8).
280. One of the most important strategic documents recently adopted is the Outline for
the sustainable development of the small indigenous peoples of the North, Siberia and the
Russian Far East approved by the Government in May 2009 (the text of the Outline is
introduced in the annex to this report).
281. The Outline, which lays the groundwork for State policy on small indigenous
peoples, envisages:
• Preserving the native habitat and traditional resource use in order to protect and
promote the traditional way of life of indigenous peoples, inter alia by ensuring that
they have priority access to fishing and hunting grounds and to the biological
resources in their traditional habitat and areas of traditional economic activities
• Developing and modernizing their traditional economic activities
• Raising their standard of living to the national level
• Improving their demographic situation by reducing infant mortality and raising life
expectancy to the national average
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44 GE.12-43423
• Promoting their access to educational services, taking into account their ethnic
cultural particularities
282. The Outline is based on a number of principles which define approaches to
achieving the sustainable development of small indigenous minorities, including:
• The need for a global solution to problems associated with the socioeconomic and
ethnic cultural development of the indigenous peoples
• Recognition of the right to use one’s native language and protection of this right by
the State
• Shared responsibility of the federal Government and the regional governments for
preserving the native habitat and traditional way of life of the indigenous peoples
283. A plan of action was elaborated and approved by the Ministry of Regional
Development together with other government bodies to ensure the practical implementation
of the Outline in 2009–2011, which is currently ongoing. Regional plans have been adopted
and are being put into effect in the constituent entities.
284. In 2010–2011, as part of measures directed at supporting the culture, languages and
traditional way of life of the small indigenous peoples, the Ministry of Regional
Development alone conducted more than 40 major international and national initiatives,
including international academic conferences, congresses of indigenous peoples, festivals
of culture, trade fairs and seminars.
285. A number of documentaries and animated films about the small indigenous peoples
of Russia have been produced to acquaint the public with their traditional culture.
286. In December 2009, the Ministry of Regional Development approved a method for
calculating the extent of damage caused by the economic and other activities of
organizations based on all forms of ownership or by private individuals to the traditional
habitat and areas of traditional economic activities in areas inhabited by communities of
indigenous peoples. On the basis of the method, the principle was established of corporate
social responsibility, to which enterprises active in areas inhabited by indigenous peoples
voluntarily commit themselves.
287. In accordance with this method, estimates have been made of the extent of damage
caused in a number of constituent entities by the following companies to economic
activities involving the traditional use of natural resources: the Erv agricultural production
cooperative, the Izhemsk Reindeer-Breeder and Co. agricultural production cooperative,
Geostroi, the BashNIPIneft and Tyumenneftegazproekt (in the Nenets Autonomous Area);
the Tazov agricultural production cooperative, the Verkhne-Purov cooperative farm,
Integra-Geofizika and the Tyumensk Office of Cadastral Engineers (in the Yamal-Nenets
Autonomous Area); Vostsibtransproekt and the Ural Engineering Energy Centre (in Amur
province); Omsktransproekt (in Transbaikal Territory); and Vostsibtransproekt, the Ural
Energy Engineering Centre, Omsktransproekt, NIPII Energotransproekt and Neryungri-
Metallik (in the Republic of Sakha (Yakutia)).
288. An estimate has also been made of the payment of damages by the following
companies: Naryanmarneftegaz, Bashneft Oil, Gazprom, Nenets Oil, Geostroi, Lukoil-
Komi, Rospan International, Bankorneft, Integra-Geofizika, SibNATs, Mechel, FSK EES,
RusGidro, Neryungri-Metallik and Xhvoinoe.
289. Based on the calculations of organizations of indigenous peoples, the payments
being made are in line with the amount of damage sustained.
290. A practice has developed of concluding agreements between mining corporations
operating in close proximity to the traditional habitat of small indigenous peoples, the
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GE.12-43423 45
regional authorities and the indigenous peoples to support cultural, educational and other
projects for these peoples. Major enterprises which have concluded such agreements and
have provided targeted assistance to communities of indigenous peoples include BP,
Gazprom, Lukoil, Novotek and Surgutneftegaz.
291. A separate area of work concerns the elaboration of a vocational training programme
on the management of ethnic cultural projects, with the financial participation of the
Ministry of Regional Development. The programme focuses primarily on improving the
skills of indigenous administrators in this area. In 2011, it is planned to train six persons, to
be funded with resources from the federal budget. Graduates receive an official State
diploma in occupational retraining and a British masters diploma.
292. The policy for the sustainable development of indigenous peoples is currently
funded from the federal and regional budgets through the following instruments:
• Special regional programmes
• Subsidies from the federal budget
• Financial measures, including grants, under various items of the federal and regional
budgets
293. Until 2008, the federal instrument which impacted the development of the small
indigenous peoples of the North was the programme on the economic and social
development of the small indigenous peoples of the North, on the basis of which the
relevant constituent entities elaborated and implemented regional support programmes for
these peoples. As of the end of 2011, long-term regional programmes for the sustainable
development of small indigenous peoples were being carried out in 14 constituent entities.
Under the federal programme for assisting small indigenous peoples, 205.6 million roubles
were allocated in 2006 and 207.2 million roubles annually in 2007 and 2008. Since 2009,
subsidies from the federal budget have been assigned to the budgets of the constituent
entities (in accordance with regulations for the distribution and granting of subsidies
approved by Government Decision No. 217 of 10 March 2009) to support the economic and
social development of the small indigenous peoples of the North, Siberia and the Russian
Far East. The subsidies totalled 600 million roubles in 2009 and 240 million roubles
annually in 2010 and 2011. In addition, since 2008 80 million roubles have been set aside
annually to fund priority measures for preparing and conducting national initiatives under
the Second International Decade of the World’s Indigenous People.
294. In the framework of the implementation of the State programme for the development
of agriculture and the regulation of markets for agricultural products, basic commodities
and foodstuffs, the Ministry of Agriculture designated the following sums to support
northern reindeer breeding and horse breeding for meat: 278.2 million roubles in 2008,
283.7 million roubles in 2009, 180 million roubles in 2010 and up to 400 million roubles in
2011. Up to 300 million roubles have been earmarked for 2012. On average, approximately
half the resources go to support traditional northern reindeer breeding.
3. Protection of religious rights
295. The Government gives close attention to supporting activities of traditional religious
organizations which aim to prevent and resolve inter-ethnic conflicts and promote interethnic
harmony and religious tolerance.
296. The federal authorities assist religious associations in rebuilding and restoring
religious sites that are historical and cultural monuments and support socially significant
measures of religious associations and their educational and awareness-raising initiatives.
In 2011, 2,159 million roubles were earmarked under the Culture of Russia Programme for
these reconstruction and restoration efforts.
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297. The advisory bodies of all special representatives of the President in the Federal
Areas and of the authorities in the constituent entities also cooperate with religious
associations and support their socially relevant initiatives, including efforts to improve
inter-ethnic relations.
298. In the constituent entities, cooperation agreements to support social initiatives of
religious associations have become common.
299. In April 2011, the Ministry of Education and Science approved a plan of action for
the period 2011–2013 for the training of specialists with an in-depth knowledge of the
history and culture of Islam. The plan envisages measures to elaborate, test and introduce
educational and technical support for upgrading the qualifications of teaching staff and
training and in-service training of personnel with an in-depth knowledge of the history and
culture of Islam so that they can work with young people and religious associations; to
develop a system for training these specialists in the use of off-site educational technologies
and to purchase modern hardware, software and computer and office equipment for that
purpose; and to organize international cooperation on training in this area.
300. The plan of action is being implemented by the Saint Petersburg State University,
the Moscow State University of Linguistics, the Nizhny Novgorod State University, the
Pyatigorsk State University of Linguistics, the Bashkir State Teachers’ University and the
Kazan (Volga) Federal University.
E. Article 6
301. The courts consider applications associated with the violation of anti-discrimination
provisions of international and domestic law in accordance with the procedure prescribed in
existing legislation. The Supreme Court periodically reviews the application by the courts
of norms which criminalize extremist acts, including article 282 (Hatemongering and
disparagement), article 282, paragraph 1 (Organization of an extremist association), and
article 282, paragraph 2 (Organizing the activities of an extremist organization), of the
Criminal Code.
302. Figures for the number of persons convicted under article 282, paragraph 1, are as
follows: 13 persons in 2006, 32 persons in 2007, 62 persons in 2008, 53 persons in 2009,
82 persons in 2010 and 49 persons in the first half of 2011.
303. Figures for the number of persons convicted under article 282, paragraph 2, are as
follows: 42 persons in 2006, 32 persons in 2007, 59 persons in 2008, 39 persons in 2009,
78 persons in 2010 and 27 persons in the first half of 2011.
304. The structure of extremist offences shows a market predominance of violent crimes
(intentional causing of slight, moderate or severe harm to health, assaults, death threats),
crimes against public security and public order (disorderly conduct) and crimes against the
State power (incitement of hatred and enmity, including through the media).
305. In 2011, the courts in 71 regions of Russia considered criminal proceedings
involving extremism, compared to 66 in 2010. Sixty-eight cases were considered under
special procedures and five in a trial by jury. Guilty verdicts were handed down involving
336 persons (462 in 2010), of whom 70 were under 18 years of age (76 in 2010); 10
persons were acquitted (9 in 2010).
306. Charges were not pressed and the proceedings were terminated in criminal cases
involving 67 persons. Compulsory measures of a medical nature were taken with regard to
two persons. The courts sentenced 173 persons to deprivation of liberty (51.4 per cent); 130
persons received a suspended sentence.
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GE.12-43423 47
307. Punishment for the commission of extremist offences takes into account the nature
and degree of public danger of the crime, within the limits of the sanctions set out under the
relevant articles of the Criminal Code.
308. All in all, the decline in the number of extremist offences and in the figures on
investigations and court practice indicate an improvement in the quality and outcome of
efforts by the law enforcement authorities in this area.
309. On 28 June 2011, the Plenum of the Supreme Court adopted Decision No. 11 on
judicial practice in criminal proceedings involving extremist offences, in which it
established basic mechanisms and made recommendations for judicial practice in domestic
courts. Paragraph 2 of the Decision draws the attention of the courts to the fact that crimes
committed on grounds of political, ideological, racial, ethnic or religious hatred or enmity
with regard to any social group must be distinguished from crimes committed on grounds
of personal hostile relations. For a proper determination of the motive, account must be
taken, in particular, of the duration of interpersonal relations between the defendant and the
victim and the presence of conflicts with the victim unrelated to ethnic, religious,
ideological or political views or membership of a particular race or social group.
310. Russian courts consider civil claims involving discrimination, but separate statistics
are not kept. Annex 3 to this report cites two Supreme Court decisions as examples.
F. Article 7
311. The Russian Federation is a multi-ethnic, pluralistic and multicultural State in which
more than 194 ethnic groups speaking 277 languages and dialects live. In it has arisen a
unique, centuries-old experience of peaceful coexistence among the members of many
peoples and religions. This is one of the richest multicultural mosaics of Europe and Asia.
A policy of protecting human rights is consistently and explicitly ensured at all levels of
State power, irrespective of race, skin colour, sex, religious affiliation or social or ethnic
background. The Russian Federation demonstrates the positive experience of intercultural
and interfaith dialogue and cooperation.
312. The Government is taking the measures enumerated in its annual list of actions for
the implementation of State nationalities policy so as to prevent ethnic discrimination and
inter-ethnic and interfaith hate crimes and combat the spread of racist attitudes.
1. Inter-ethnic relations
313. As part of State nationalities policy, the authorities at federal and regional level
conduct annual sociological studies, international and interregional forums, conferences,
symposiums and seminars and carry out media campaigns on equality and intercultural
dialogue, which include public service announcements, the broadcast of animated films and
documentaries on the peoples of Russia and the appearance in the media of representatives
of the Ministry of Regional Development and ethnic voluntary associations.
314. In 2008 and 2009, the Ministry of Regional Development undertook a number of
important initiatives in the area of awareness-raising, which in today’s world is acquiring
increased importance for the formation of public opinion. An information campaign has
been elaborated under the motto “Many peoples, one country!”, the aim being to forge a
national identity and promote inter-ethnic harmony. In the context of the campaign, videos
with public service announcements are prepared and broadcast on federal and regional
television stations, outdoor public service announcements are posted which foster
harmonious inter-ethnic relations and tolerance towards people of other ethnic origin, and a
special Internet portal has been created for the campaign and has been operating
successfully (www.stranaodna.ru).
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48 GE.12-43423
315. Three editions of a basic illustrated Atlas of the cultures and religions of the peoples
of Russia came out in 2008, 2010 and 2011, and a wall map of the religions of the Russian
Federation has also been published, as well as a study guide for university students on
tolerance and a culture of inter-ethnic dialogue, which has been approved by a number of
institutions of higher education in the Southern Federal Area.
316. For the third year, the Ministry of Regional Development together with the guild of
inter-ethnic journalists is printing more than 500,000 copies of a supplement, entitled
“Ethnic accent”, for the newspaper Argumenti nedeli.
317. SMIrotvorets (Media-Peacemaker), a national media competition for the best
coverage of inter-ethnic cooperation between the peoples of Russia and their ethnic cultural
development, is held annually together with the inter-ethnic journalism guild, Radio Russia
and Russkaya Gazeta. The competition has already borne fruit: the outcome of the 2011
event indicated that in the three years between 2009 and 2011, the number of positive
reports on inter-ethnic questions in the federal, regional and ethnic media more than
doubled.
318. Whereas in 2008 134 federal and regional media outlets and 71 ethnic media outlets
participated in the competition, in 2009 those figures rose to 301 media outlets, including
98 ethnic outlets. In 2010, the contributions of 360 media outlets, including 178 ethnic
outlets, were announced for participation in the competition, and in 2011 625.
319. Another media project — a broadcast by the Moscow Echo radio station between
January 2010 and January 2011 of the weekly programme “We” on issues of identity and
the current state of ethnic relations in Russia — was accompanied by the publication in
Nezavisimaya Gazeta of articles on the subject of the broadcast.
320. The Ministry of Regional Development helps the constituent entities conduct public
awareness campaigns by making available, free of charge, materials elaborated during its
information campaign, including originals of campaign posters, and discs and cassettes with
films and cartoons. Agreements of this kind have been concluded with 56 constituent
entities.
321. Several constituent entities have already launched their own public awareness
campaigns. For example, public service television videos entitled “Many peoples, one
country” have been posted on networks in a number of regions, and the official portals of
some constituent entities (for example, Orlovsk province) are creating their own broadcasts
on the subject (for instance, the public service video “Perm Territory – our common home”
was produced in Perm Territory).
322. The Federal Press and Mass Communications Agency provides support on a
competitive basis, with funding from the federal budget, for important projects on this topic
in the print and electronic media in order to stimulate their interest in forging attitudes of
tolerance, preventing extremism and xenophobia in Russian society and promoting interethnic
relations and respect for persons of different religious beliefs and cultures.
323. In the period 2006–2011, more than 192 million roubles in funding were awarded
for 98 projects in the electronic media, and more than 115 million roubles for 308 projects
in the print media, including:
• A television documentary on “The small peoples of Russia”, on the way of life and
traditions of these peoples (broadcast by Russian Federation-24)
• A cycle of short documentaries entitled “The faces of Russia”, on the culture and
way of life of the peoples of the Russian Federation (broadcast by Russian
Federation-24)
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• Television programmes: “Diaspora” (broadcast by “Mir”); “Kalam” (“Word”), about
Dagestan, one of the biggest regions of the Northern Caucasus (broadcast by
“Dagestan”, the State television and radio channel); “Tasu Yava” (“Our Tazov
soil”), a cycle of public information programmes for the small indigenous peoples of
the North (broadcast by 25 TVK, Tazov district, 27 TVK); “Ethnic Interest”
(broadcast by “Karelia”, the State television and radio channel); and “Ulgur”, about
the life of the small indigenous peoples of the North in the Republic of Buryatia-
Evenk (broadcast by “Russian Federation 1” and regional stations of “Buryatia”, the
State television and radio channel)
• The radio programmes “Peoples of Russia”, on the ethnic diversity of the population
and the promotion of inter-ethnic cooperation (broadcast by “Radio Russia”), and “I
live in a big country”, a cycle of children’s cultural and educational programmes
about Russia and its population (broadcast by the radio station “Gardarika”)
• “Ethnic Russians”, a website with information and analysis (www.russedina.ru,
www.russedina.org) devoted to the promotion of cooperation between the Russian
Federation and the countries of the CIS and the Baltic, inter-ethnic dialogue and the
resolution of the problems of ethnic Russians abroad and displaced persons in
Russia
• The projects: “Caucasus – an integral part of Russia”, “So different, and yet so
similar” and “A multi-ethnic country, a sole Russian Federation” of the newspaper
Etnosfera (Moscow)
• The projects “Northern Caucasus – a multifaceted world” and “Encouraging interethnic
cultural contacts as a way of combating xenophobia” of the newspaper
Druzhba narodov (Moscow)
• The project “Addressing the problems of the Roma people and promoting their
cultural traditions” of the newspaper Tsygane Rossii (Moscow)
• The project “In the single family of peoples of Russia” of the newspaper
Odon/Zvezda (Republic of Buryatia)
• The project “Northern Caucasus: let’s work on the shape of things to come” of the
newspaper Muzhskoi kharakter (Stavropol Territory)
• The project “Russian Federation – towards peace and tolerance” of the newspaper
Komsomolskaya pravda (Moscow)
• The project “Fostering inter-ethnic harmony” of the newspaper Argumenti nedeli
(Moscow)
• The project “The Russian Federation – a family of peoples” of the newspaper Novie
izvestia (Moscow)
• The project “Preserving, strengthening and promoting the identity of the small
indigenous peoples of the North – the Evenks” (with a translation into Evenk) of the
newspaper Vesti Severa (Transbaikal Territory)
• The project “A big homeland – a patchwork of small peoples” of the newspaper
Cholman/Kama, in the Mari language (Republic of Bashkortostan)
• Finnougoria. Etnichesky komfort, an academic journal
324. The Federal Press and Mass Communications Agency provides funding for the
“Peace, harmony, unity” national television festival, the “Dialogue of cultures” media
forum, the “Finno-Ugric world” international television festival and “Unity”, a national
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competition of television films and programmes devoted to efforts to combat extremism,
xenophobia and racial and religious hatred.
325. At the end of 2011, the television channel “Russian Federation-Culture” held the
“Whole Russian Federation” folklore festival, which familiarized television viewers with
the uniqueness and artistic diversity of the peoples of the Russian Federation.
326. A “Strana.ru” project is acquainting Internet users with the various regions of the
country, the people who live there and their traditions and culture as part of “My Planet”, a
24-hour public television station of the National State Television and Radio Broadcasting
Company.
327. With the support of the Ministry of Regional Development, many public information
initiatives have been conducted that are of current interest because they heighten awareness
of the history and culture of the peoples of Russia and promote ethnic tolerance in society.
These include:
• The “We are the Russian Federation” forum, devoted to National Unity Day (3–4
November 2009, city of Omsk)
• The publication of a study guide (“Tolerance and a culture of inter-ethnic dialogue”)
for university students
• The publication of “State nationalities policy and relations between the State and
religions in the Russian Federation”, a yearly compilation of information and
analysis
• The publication of Finno-Ugorskaya Gazeta, a nationwide cultural and educational
journal
• The publication of Finno-Ugorsky Mir, an interregional television journal
328. The Ministry of Regional Development has been monitoring inter-ethnic relations
and relations between the State and religions since 2005, on the basis of which a
compilation of information and reference materials (“State nationalities policy and relations
between the State and religions”) is published annually. Information summaries, guidance
material and proposals concerning the implementation of State nationalities policy are also
produced on the basis of the monitoring.
329. Together with the Council of Europe and the European Union, in 2009–2011 the
Ministry of Regional Development carried out a joint programme entitled “Minorities in
Russia: developing languages, culture, media and civil society”, the aim of which was to
encourage the promotion of languages, culture, the media and civil society in Russia and to
consider the possible ratification by the Russian Federation of the European Charter for
Regional or Minority Languages.
330. In the context of the joint three-year project, 60 seminars were held for experts in the
area of education, linguistics and jurisprudence as well as representatives of all levels of
government active in the protection of the languages of ethnic minorities.
331. The implementation of the above-mentioned measures has made it possible to
intensify inter-ethnic and intercultural cooperation and promote the principles of a culture
of peace, ethnic tolerance and civic solidarity; heighten awareness of ethnic cultural
development and combat the spread of manifestations of extremism, xenophobia and
chauvinism among young people; prevent a politicizing and artificial mobilization of ethnic
identity and the propagation of extremist ideology; enhance the cooperation of government
authorities with ethnic voluntary associations on strengthening the unity of the Russian
nation and ensuring the ethnic and cultural rights of the peoples of Russia; and encourage
positive media reporting on aspects of inter-ethnic cooperation, the ethnic cultural
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development of the peoples of Russia and best practices for intercultural and interfaith
dialogue.
332. Since 2011, the Ministry of Regional Development has been hosting practical
training courses for the law enforcement specialists of the constituent entities which address
issues relating to State nationalities policy, the development of the ethnic culture of the
peoples of Russia and the prevention of ethnic and religious extremism. As of 31 December
2011, 106 requests concerning such courses had been received, and 7 courses were held in
January and February 2012.
333. The Social Forum of the Russian Federation is making major efforts to prevent
occurrences of xenophobia and racism, address ways of overcoming fear of migrants, anti-
Semitism, Islamophobia and extremist manifestations of inter-ethnic and interfaith discord
and encourage interracial initiatives, including among young people. In 2010 and 2011, it
organized and carried out many initiatives in this area, including:
• A number of public discussions on peace in the Caucasus (in the cities of Inzhich-
Chukun, Elburgan, Adyge-Xhabl, Karachaevsk, Uchkeken and Cherkessk of the
Karchaevo-Cherkessk Republic; in the cities of Vladikavkaz and Beslan and the
rural communities of Lesken, Balta and Tarskoe of the Republic of North Ossetia-
Alania; in the cities of Derbent, Xhasavyurt, Buinaksk, Izberbash, Kizlyar and
Makhachkala of the Republic of Dagestan; in the city of Malgobek of the Republic
of Ingushetia; and in the city of Nalchik, the towns of Prokhladny, Baksan and
Elbrus and the rural communities of Sarmakovo, Bezengi and Novaya Balkaria of
the Kabardino-Balkar Republic).
• Hearings on the topic of democratic freedoms and the improvement of anti-extremist
legislation.
• The second international forum on migrants in Russia: security and cooperation.
• Hearings on the topic “What does the Caucasus think, and what does the Caucasus
want?”, at which the results of the work of discussion platforms on “Peace in the
Caucasus” were examined in the Republics of Dagestan, Ingushetia, Karachaevo-
Cherkessia and North Ossetia.
• The second annual forum on the topic “Promoting harmonious relations between
citizens and preventing intolerance and extremism”.
• A meeting of the Social Forum’s commission on inter-ethnic relations and freedom
of conscience to discuss a textbook entitled “History of Russia 1917–2009”, by A.S.
Barsenkov and A.I. Vdovin (publisher: Aspekt-Press, 2010) and the role of the
educational system in promoting social harmony and preventing ethnic extremism.
Specifically, the meeting considered whether the textbook in question has a negative
impact on inter-ethnic relations and whether it contributes to the rise of inter-ethnic
tensions and hatred. Recommendations were drafted and forwarded to the Minister
of Education and Science, the president and the dean of the history department of
Lomonosov State University, Moscow, and the government commission on
combating attempts to falsify history to the detriment of the interests of Russia. An
expert committee set up by the university’s academic council examined the textbook
and concluded that, given its shortcomings, it was not appropriate for use in schools.
• A round-table discussion entitled “Interfaith cooperation and freedom of religion in
Moscow; the viewpoint of various faiths”.
• Hearings on the topic “Study of religious culture in school: experience of the first
year of the experiment”, at which the experience gathered in the process of the
testing in 19 regions of a comprehensive course for use in general education, entitled
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“Fundamentals of religious cultures and secular ethics”, was analysed and
recommendations drafted for the continuation of the experiment; the findings of the
study conducted by the Social Forum on the attitudes of parents towards the
teaching of the course in secondary education establishments were presented.
• A round-table discussion on the topic “Kabardino-Balkar Republic: problems of the
radicalization of youth”.
• A meeting of the Social Forum’s Russian nationalities club.
• A round-table discussion on the topic “The legal system and the fight against
extremism: problems and progress”.
• A round-table discussion on the topic “Republic of Dagestan: religious conflict and
the search for national reconciliation”.
• A photography exhibit devoted to World Refugee Day and to overcoming
xenophobia and fear of migrants, organized together with the Office of the United
Nations High Commissioner for Refugees (UNHCR) in the Russian Federation, the
aim of which was to heighten public awareness of the problems of refugees and
other migrants in Russia and to launch an appeal for respect for the rights of,
tolerance towards and solidarity with persons who have lost their homeland and
have been forced to start a new life.
• A round-table discussion on the topic “Opening the Talmud to world culture”.
Participants discussed the contribution of Jewish religious literature to world culture
and its impact on the development of Jewish thought. The results of 42 years of
creative work by Rabbi Adin Shteinzalts in translating and analysing the Talmud
were presented.
• Hearings on the topic “Problems associated with the establishment of holidays in the
constituent entities: theory and practice”, organized together with the Spiritual
Authority of the Muslims of Moscow and the Muslim High Council of the Central
Region.
• Hearings on the topic “Russians in the Caucasus: myths and reality”.
• Public hearings on the topic “Rules of conduct for interaction between migrants and
the indigenous population”.
• A round-table discussion on the topic “Nationalism, extremism and xenophobia:
challenges facing the media”.
2. Education
334. A project on a multicultural educational model as a basis for shaping the Russian
identity of children in general education schools has been implemented in the framework of
the Federal education programme. The following tasks were addressed:
• Compiling and analysing experience in the constituent entities in opening schools
offering classes in the native language of the local population
• Elaborating a conceptual foundation of multicultural education based on the
principles of an overlapping of ethnic and cultural orientation, national cultural
values and universal ideals with a view to presenting the ethnic culture of
schoolchildren and teachers as a part of Russian and world culture
• Devising study guides and psychological teaching methods for forging Russian
identity in preschool and general education
• Designing pilot projects that train teaching staff for work in a multicultural context
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335. In the framework of the federal education programme for 2011–2015, teaching
modules are being elaborated and tested for the sections of model curricula at general and
supplementary education schools which focus on preventing extremism and antisocial
behaviour; training the teaching staff to promote the personality and socialization of
schoolchildren and inculcate a culture of inter-ethnic relations; devising and improving
various forms of constructive cooperation between school, the family and civil society
institutions in order to teach schoolchildren to become good citizens; and establishing (with
the help of universities and private specialized secondary schools) student centres which
instil a culture of national solidarity and a rejection of extremism.
336. Support for education with an ethnic focus plays a major role in preserving ethnic
identity. With that in mind, in August 2006 an Outline for a national educational policy was
approved which places special emphasis on ethnic problems in the educational context and
cooperation with religious associations.
337. Museums are of great importance for State nationalities policy. Initiatives of
museums aimed at presenting cultural diversity in Russia and fostering active civic
mindedness and a rejection of manifestations of religious extremism, xenophobia and
nationalism are supported in the framework of the State programme on the patriotic
education of citizens of the Russian Federation, 2006–2010 and the federal programme on
the culture of Russia, 2006–2011.
338. Libraries, as a social institution, also play an important instructional and educational
role in strengthening civil peace and inter-ethnic harmony. The “Institute of Tolerance”
project, a priority programme area of activity of the M.I. Rudomino National State Library
of Foreign Literature launched in 2003, is working to advance the basic values of civil
society and to promote understanding and friendly interpersonal relations through
intercultural, inter-ethnic and interfaith dialogue.
339. Centres for Tolerance (Centres for intercultural, inter-ethnic and interfaith dialogue)
are being created in the framework of the Institute of Tolerance with the help of cultural
and educational institutions (libraries and universities) at regional level and abroad. The
establishment of the Centres for Tolerance is a joint initiative of the regions and the
Institute of Tolerance.
340. The Institute of Tolerance has elaborated and is carrying out a special project for
children entitled “Other people, other traditions, other ways of life” to teach tolerance from
an early age. The authors of the books published in the context of the project seek to
explain to children that all people are different and that foreign cultures and customs must
be treated with respect. The books address various aspects of life, including the family,
religion, food, clothing, customs of different peoples. The main objective is to interest
children in learning about how diverse the world is. The series is designed to help teach
respect and tolerance for unfamiliar cultural events and to overcome entrenched negative
ethnic stereotypes. The project is being carried out in cooperation with UNESCO. Of the 12
books produced in the framework of the project, 5 have already been translated into English
and published.
341. Experience gathered by members of ethnic communities, school boards, student selfmanagement
bodies and the teaching staff of educational institutions in working together to
prevent extremism and foster attitudes of respect towards the culture and traditions of the
peoples of Russia has been compiled in a project on the implementation of measures for the
organization of systematic cooperation between general and vocational education
establishments, government authorities, voluntary associations and civil society institutions
on preventing extremism among schoolchildren; there is an ongoing public discussion of
these issues, and an Internet website has been set up for that purpose
(http://www.extremizmu-net.moocv.ru).
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342. Pursuant to the new State general education standards, education is a process not
only of acquiring basic knowledge, skills and abilities, but also of developing the individual
and instilling spiritual, moral, social, family and other values.
343. Special importance in that regard is attached to the spiritual and moral development
of children and the inculcation of qualities such as tolerance and respect for other cultures
and a willingness and ability to engage in dialogue and cooperation. That presupposes a
knowledge of the particularities of traditional cultures and the cultural basis of social
phenomena and traditions. Spiritual and moral development is meant to instil ethical values
in the coming generation, informing their conduct with a sense of social responsibility, and
to provide guidance in real-life situations.
344. Amendments have been made to the Education Act which reflect the importance of
meeting the ethnic, cultural and religious needs of citizens of the Russian Federation and
which specify for the first time that one of the main goals of education is spiritual and
moral development (art. 14, para. 2). The education of children and young people is one of
the most important tasks of society as a whole, including for parents. This task can be
fulfilled with the help of a comprehensive educational system in which new curricula are
elaborated that ensure the spiritual and moral enlightenment and instruction of children in
classes on the history and culture of the religions that constitute an integral part of the
historical and cultural patrimony of the peoples of Russia, as well as on the foundations of
ethics.
345. Clearly, the educational component, together with academic knowledge and
information about society and its interests, laws, culture and traditions, cannot be left out of
the school curriculum without considerable damage to the quality of education and the
development of the individual. Today this problem is a matter of concern to the general
public the world over, as reflected above all in questions associated with inculcating
tolerance and a sense of moral identity in the coming generation.
346. This problem is addressed, inter alia, by teaching about the history and culture of
religions (and in some cases about the foundations of ethics). These subjects are included in
classes or topics on history, literature, social studies and the arts. With the consent of
schoolchildren and their parents and upon a decision by the teaching staff and the parents’
committee, such material is taught in optional courses, electives, special classes or courses
in the framework of the regional (ethnic regional) and educational components of the State
general education standards. The history and culture of religions as well as the foundations
of ethics may also be covered in various ways in extracurricular public awareness and
educational activities.
347. Ministry of Education and Science Letter No. 03-2375 of 25 November 2009,
containing recommendations for meeting the ethnic, cultural and religious needs of citizens,
was sent to the constituent entities with a view to helping develop regional experience in
the teaching of morals.
348. The new education standards also contemplate instilling a sense of patriotism.
Classes with that goal are included in a comprehensive programme of spiritual and moral
development, instruction and socialization.
349. Testing of the new education standards for the tenth and eleventh classes is planned
to start no earlier than 1 September 2013, and all the renewed standards, once tested, are to
be implemented as from 1 September 2020. Considerable attention is currently being given
to promoting attitudes of tolerance and preventing xenophobia, extremism and other forms
of discrimination on ethnic or religious grounds. Special emphasis is placed on the fight
against various manifestations of racism based on Nazi ideologies, above all among young
people.
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350. The subject of the Holocaust is included in the school curriculum and in State
general education standards in order to teach the values of mutual understanding and
tolerance.
351. The Academy for the in-service training and retraining of teaching staff offers a
special course on current questions relating to the Holocaust as part of its programme for
upgrading the qualifications of teachers of history and civics.
352. The objective presentation of history in schoolbooks and the teaching of respect for
social norms are particularly important in nurturing a sense of patriotism and civic duty and
preventing extremism and xenophobia.
353. On 31 March and 1 April 2011, at the initiative of the Council of the Association of
Teachers of History and Civics (a national voluntary organization), the presidium of the
Russian Academy of Sciences held its first national congress of teachers of history and
civics, at which it was stressed that the teaching of history is a strategic resource for the
innovative development of Russia and forms the basis of a sense of civic duty and
patriotism.
354. As an area of further work, the congress identified the development of the activities
of the Association, one of whose aims should be an active participation in pinpointing and
discussing strategic problems associated with the teaching of history, as well as promotion
of the integration of the teaching of history and science.
355. In compliance with paragraphs 5.2.4 and 5.2.30 of its rules, the Ministry of
Education and Science approved the regulations governing the evaluation of textbooks
(Ministry of Education and Science Instruction No. 428 of 23 April 2010) and the
regulations for the selection of organizations for the publication of textbooks approved for
use in the school system (Ministry of Education and Science Instruction No. 88 of 18
March 2009). Pursuant to these instructions, the evaluation of a textbook includes an
examination of whether its content conforms to current academic thinking, account being
taken of the relevant educational level under the federal component of the State general
education standards or the requirements of the standards for the educational level
concerned.
356. In accordance with paragraph 3 of the rules, the evaluation has an educational and
academic component. In conformity with paragraph 6, the Academy of Sciences and the
Academy of Education participate in the evaluation, together with other organizations on
the basis of their government-approved statutes, which define their powers. The academies’
responsibility, scientific capacity and authority ensure the quality of the evaluation and
prevent any textbooks of a quality that does not meet requirements being used in education.
357. Pursuant to the administrative regulations on the federal list of textbooks approved
by Ministry of Education and Science Instruction No. 5 of 11 January 2007, the list of
recommended (approved) textbooks for use in schools with general education curricula and
State accreditation includes only those textbooks which have been evaluated by the abovementioned
bodies.
358. The right of all peoples of Russia to receive general education in their native
language is guaranteed by law. The Constitution, the Education Act, the Ethnic Cultural
Autonomy Act and the Act on the Languages of the Russian Federation stipulate that
citizens of the Russian Federation who are members of specific ethnic communities have
the right to be taught in their native language and to choose the language of upbringing and
instruction, within the limits of the possibilities offered by the educational system and in
accordance with national and regional legislation.
359. Federal legislation on education establishes the basic principles and framework for
regulating relations in this sphere and delimits the competence and responsibility of the
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federal, regional and local authorities and educational institutions. This makes it possible to
take into account ethnic, regional and other criteria when educational issues are addressed.
360. The Education Act defines, as basic aims of education, the integration of the
individual into the national and world culture and the development of the individual and
citizen as a member of contemporary society.
361. The legislation of the Russian Federation is in full compliance with the norms and
principles of international law which ensure the right of children to receive religious
instruction (article 5, paragraph 4, of the Federal Act on freedom of conscience and
religious associations).
362. In accordance with Presidential Instruction No. 2009 of 2 August 2009, the Ministry
of Education and Science and a number of other related ministries and academic and
educational institutions, a comprehensive course of study for general education
establishments, on the foundations of religious cultures and secular ethics, was tested in 21
constituent entities with the participation of national religious organizations. The course is
composed of six modules which can be chosen by the children’s parents or legal
representatives: the foundations of Russian Orthodox culture, the foundations of Islamic
culture, the foundations of Buddhist culture, the foundations of Jewish culture, the
foundations of international religious cultures and the foundations of secular ethics. The
participants in the test, which was completed in the 2010/11 school year, considered that it
had produced positive results.
363. The course is of a secular and cultural nature. Its main aims include: familiarizing
schoolchildren with the foundations of religious cultures and secular ethics; developing
notions about the importance of ethical norms and values; consolidating knowledge,
understanding and ideas about spiritual culture and morals inculcated in young children in
primary school; and developing the ability of young schoolchildren to communicate in a
multi-ethnic and interfaith context on the basis of mutual respect and dialogue for the
benefit of social peace and harmony. All school modules chosen by parents or legal
representatives give children an idea of the diversity of religious and non-religious culture
and offer the possibility of discussing questions about cultural particularities and traditions
which are of greatest interest to them.
364. During the testing process, criteria were put into place for the implementation of the
course: regional coordination councils were created whose membership includes
representatives of religious associations; qualified teachers were trained; textbooks were
elaborated and recommended for use; in most regions, a special plan was drafted to explain
in the media how the course is introduced; and constructive cooperation was established
between teachers, academics and representatives of various confessions.
365. Recently, migration has also left its mark on Russia’s educational system. In these
circumstances, the Federal Education Act’s requirements on the integration of the
individual into national and international culture are being implemented. The Russian
language, which links the culture and languages of the peoples in Russia, has a special role
to play in that regard, which the federal programme “Russian language” (2011–2015) aims
to strengthen. The authorities of the constituent entities are making considerable efforts to
promote the linguistic and sociocultural integration of migrants. Special programmes in
Russian are being elaborated for children who have not been taught the language in school,
methods and personalized learning approaches are being devised, and additional classes and
courses in Russian are being introduced for children from neighbouring and more distant
countries.
366. In accordance with article 26.3, paragraph 2 (20), of Federal Act No. 184 of 6
October 1999 on the Basic Principles of the Organization of the Legislative
(Representative) and Executive Bodies of the Constituent Entities, the government
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authorities of the constituent entities have joint competence for the support of schools
offering classes in the native language of the local population and other subjects with an
ethnic cultural focus.
367. Together with representatives of the educational authorities in the constituent
entities (the national republics), explanatory memorandums have been produced on
measures to protect the right of citizens to be taught in their native language and to use it in
the educational system as a language of learning, account being taken of the provisions of
Federal Act No. 309 of 1 December 2007 (circulated to all the constituent entities in Letter
No. 03-848 of 28 April 2008).
368. Article 6, paragraph 3, of the Education Act provides that the language or languages
of upbringing and instruction in an educational establishment are determined by the
administrator(s) of that establishment and are set out in its regulations.
369. Pursuant to article 52, paragraph 1, of the Act, parents/legal representatives have the
right to choose a school offering a particular language of upbringing and instruction for
their children.
370. The importance of education in the local language is underscored by the fact that,
according to data from the Centre for ethnic-related problems of education, which is
attached to the Federal Institute for the Promotion of Education of the Ministry of
Education and Science, by 1989 the number of languages used in schools as languages of
upbringing and instruction had increased to 55. Today there are 80; in other words, demand
and availability continue to grow.
371. The languages of ethnic minorities, including Azerbaijani, Armenian, Georgian,
Kazakh, Altai, Bashkir, Buryat, Mari (Lugovoi), Tatar, Udmurt, Chuvash, Evenki, Yukagir
and Yakut, are used in non-language classes in general education establishments (i.e. nonlanguage
classes are taught in these languages).
372. According to census data, 277 languages and dialects are spoken in the Russian
Federation.
373. Programmes for the preservation, study and development of the languages of the
peoples of the Russian Federation include plans for achieving a functional knowledge of the
Russian language, as the State language of the Russian Federation, the official languages of
the republics and other languages of the peoples of the Russian Federation, encouraging the
publication of literature in these languages, funding academic research on their
preservation, study and development, creating conditions for the dissemination in the media
of information, communications and materials in these languages, training specialists in this
area and improving the educational system in order to promote these languages.
374. The Federal Institute for the Promotion of Education conducts annual nationwide
competitions for teachers of native languages, forums entitled “Languages of the peoples of
the Russian Federation, a national asset for society and State”, theoretical and practical
conferences, technical seminars and round tables, and it publishes monographs, textbooks
and teaching aids, guidance material and compendiums of academic articles.
375. Pursuant to Government Order No. 1245 of 28 August 2009 on the approval of a
plan of action for the implementation of the Outline 2009–2011 for the sustainable
development of the small indigenous peoples of the North, Siberia and the Russian Far
East, a number of initiatives are being carried out to preserve and develop the languages of
these peoples.
376. For example, in 2010 study materials in the languages of the small indigenous
peoples of the North, Siberia and the Russian Far East were ordered and supplied in
compliance with Ministry of Education and Science Instruction No. 1032 of 15 October
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2010. Textbooks, training manuals, dictionaries, works of fiction and other reading material
have been published in the native languages of the small indigenous peoples of the North,
Siberia and the Russian Far East, namely Nenets, Khanti and Shurym dialects, Nganasan,
Tofalar, Nivxh, Nanai, Orochi, Udege, Evenki, Selkup and Saam.
377. In compliance with Government Order No. 2455 of 28 December 2011, in 2010 and
2011 the functional use of the languages of the small indigenous peoples in school was
monitored in the framework of measures taken in connection with the holding in the
Russian Federation of the Second International Decade of the World’s Indigenous People,
2011–2014. The aim of the monitoring was to assess current functional knowledge of those
native languages and to improve the quality of their teaching in schools and teacher training
institutes.
378. In accordance with agreements between educational institutions (the A.I. Gertzen
Russian State Teachers’ University, the M.K. Amosov Yakutsk State University, the Far
East State University, the Yugor State University and others) and State and local
authorities, special admissions conditions are applied for members of the small indigenous
peoples of the North, Siberia and the Russian Far East.
379. Conferences, seminars, symposiums and other initiatives on the promotion of the
ethnic culture of the small indigenous peoples of the North, Siberia and the Russian Far
East are conducted annually. For example, on 18 and 19 October 2011 an international
seminar was held in the city of Syktyvkar on the topic: “The native languages of the small
indigenous peoples of the North, Siberia and the Russian Far East and their current use in
schools: monitoring results”.
380. At the seminar, recommendations were drafted for the implementation of language
education policy in areas in which the small indigenous peoples of the North have their
traditional habitat and traditional economic activities, and a guidance manual was produced
for the elaboration of curricula for the languages of these peoples that have the status of
mother tongue, account being taken of the criteria of the federal State education standards
for general primary school education.
381. In compliance with article 7 of the Convention, between 2006 and 2011 the Ministry
of Internal Affairs conducted the following initiatives:
(a) Teaching material was used which was designed for studying effective
measures for countering ethnic and religious intolerance, xenophobia and nationalism and
eliminating the legal vacuum. Theoretical, sociopolitical and cultural aspects of inter-ethnic
and interfaith relations, and ways and means of combating extremism, ethnic and religious
intolerance, xenophobia and nationalism and promoting ethnic and religious tolerance
among internal affairs officials were identified and examined in classes in political science,
sociology, cultural studies, legal psychology, ethnopsychology and other subjects;
(b) In 2011, the Ministry of Internal Affairs elaborated seven federal State
education standards for higher education in the following specialties: 031001.65: Law
enforcement activities; 030901.65: Legal enforcement of national security; 030301.65:
Psychology of official duties; 050407.65: Education and the psychology of deviant
behaviour; 080101.65: Economic security; 090915.65: Security of information technologies
in the law enforcement sphere; and 031003.65: Legal expertise. These standards cover
skills which graduates must master, including a capacity for tolerant behaviour and social
and professional cooperation that takes into account ethnic cultural and religious diversity,
the ability to work in a group and cooperate with colleagues and to prevent and defuse
conflict situations in a constructive manner, and other general cultural and professional
skills;
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(c) Questions relating to the prevention of ethnic and religious intolerance,
xenophobia and nationalism are examined when initiatives of an ethical, psychological or
patriotic nature are conducted. Issues which arise for discussion during meetings of the staff
of the educational institutions of the Ministry of Internal Affairs with internal affairs
veterans and the personnel of departments of the central and regional offices of the Ministry
of Internal Affairs include problems of inter-ethnic relations, the phenomenon of tolerance,
and respect for the religious sentiments and ethnic identity of others;
(d) Members of the staff of the psychology departments of educational
institutions within the Ministry of Internal Affairs have regularly met with and counselled
students who are experiencing a conflict in a group or are under great emotional stress, and
they have conducted training courses in study groups on effective communication skills;
(e) With the help of the educational institutions of the Ministry of Internal
Affairs, theoretical and practical conferences and round tables have been held on problems
associated with counteracting extremism, ethnic and religious intolerance, xenophobia and
nationalism. These events include: “Extremism in Russia: concepts, causes and ways and
means of combating the phenomenon” (Nizhny Novgorod Academy of the Ministry of
Internal Affairs, 24 January 2011) and “Facts, conditions and ways of supporting
harmonious inter-ethnic cooperation, and counteracting the emergence of extremist
tendencies in contemporary Russian society” (Voronezh Institute of the Ministry of Internal
Affairs, 28 April 2011).
382. The procuratorial authorities active in the area of inter-ethnic relations and the
prevention of extremism are also receiving further training. For example, in November
2010 a seminar was conducted in cooperation with the Academy of the Office of the
Procurator-General and with the participation of deputies from the constituent entities on
the topic “Elaboration of measures to identify and remove from circulation printed and
audio and video materials whose content is designed to incite ethnic, racial or religious
hatred”.
383. Lectures are held at the Academy of the Office of the Procurator-General for the inservice
training of the procuratorial staff of the constituent entities (84 persons every six
months).
384. Training courses for the staff of the procuratorial authorities of the constituent
entities are also offered on questions relating to the enforcement of laws on national
security, legislation on international relations and the prevention of extremism (about 15
staff members every six months).
385. Information circulars are sent out on ways of improving the procuratorial monitoring
by the regional and local authorities of the application of legislation on combating
extremism, the aim being to provide technical and practical assistance to the procurators of
the constituent entities. In these circulars, the procurators are requested to ensure that the
regional and local authorities take additional measures to improve the monitoring of interethnic
and interfaith relations in order to identify risks of their destabilization and provide
an overall assessment of conflict potential. It was also recommended that existing
programmes should be reviewed and that new programmes should be drafted which give
priority to measures designed to prevent extremist activities, including awareness-raising
and educational initiatives.
386. In 2001, the Ministry of Health and Social Development, with the participation of
the Ministry of Regional Development and specialists from the Russian Academy of the
National Economy and the Civil Service under the President of the Russian Federation,
produced teaching materials to provide comprehensive technical assistance to officials who
deal with questions of inter-ethnic and interfaith relations. These include:
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• A teaching guide on the prevention of extremism in the area of inter-ethnic and
interfaith relations
• A masters programme on ethnic and federal relations
• A masters programme on the security of interfaith and inter-ethnic relations
• A programme of in-service training on ethnic, federal and interfaith relations
• A programme of further training on the administration by the State of interfaith and
inter-ethnic relations
• A programme of in-service training on State-confessional relations in Russia:
current situation and paths to improvement
• A programme of in-service training on the foundations of State policy in the area of
freedom of conscience and worship
• A programme of in-service training on the threat of religious extremism and
terrorism to Russia’s national security
387. According to data from the constituent entities, in the first half of 2011 3,651 civil
servants of the constituent entities and 3,052 municipal civil servants received training,
retraining or further training. In the second half of 2011, training was planned for another
4,647 civil servants of the constituent entities and 3,475 municipal civil servants. More
detailed information on the implementation of these plans is expected soon.
388. In addition, most constituent entities have made provision for expenditure on further
training of State and municipal civil servants in 2012.
3. Culture
389. In 2008 an Outline for the preservation of the intangible cultural heritage of the
peoples of the Russian Federation, 2011–2015, and a programme of measures for its
implementation were approved, pursuant to which a pilot variant of the digital catalogue of
objects of the intangible cultural heritage of the peoples of the Russian Federation was
produced. Work was begun in 2009, and the catalogue has now been put into service and is
being tested in its experimental form. Training seminars have been attended by more than
100 specialists from 20 regions of Russia.
390. Together with the State Russian House of folk art, a number of popular initiatives
have been conducted with the assistance of the cultural authorities of the constituent
entities, including:
• “Singing childhood”, a national festival of children’s choirs
• “The opening of Europe”, an international festival
• A national festival of folk dancing for the T.A. Ustinovaya prize “Dancing the circle
dance throughout Russia”
• “Peace to the Caucasus”, an international art festival
• The “Golden Ring Community” international festival of folk art
• The “Volga Delta without borders” festival (city of Astrakhan), in which groups
from Azerbaijan, Belarus, Kazakhstan and Ukraine, together with Russian groups,
took part
• An annual Commonwealth Festival of the folk art of the countries of the CIS and the
Baltic (Rostov province)
• “My Russian Federation”, a national literary competition (Kirov province)
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• “Russia’s Roots”, a national festival of folk art (Chuvash Republic)
• “From Russia to the heart”, an international festival of ethnic Russians
391. Initiatives included international and national theoretical and practical conferences
on “Ethnic culture in contemporary Russia: traditions and innovations” and “Problems of
the preservation of the intangible cultural heritage of humanity: the experience of
international cooperation”, seminars for specialists of the cultural and recreational
institutions of the Northern Caucasus and Southern Federal Areas and for heads of Finno-
Ugric folklore groups, and many other activities. Round-table discussions, workshops and
creative laboratories were held in the framework of these events, which were directed at
creating conditions for a dialogue of cultures in a multi-ethnic State and the inculcation of
attitudes of tolerance.
392. Traditional festivals, exhibitions and competitions are held annually in all the
constituent entities in the context of the special federal programme “The Culture of Russia
(2006–2011)”.
393. Since 2006, the Russian Institute of Cultural Studies has been carrying out
assessments of various documents to detect the presence of illegal content designed to
incite hatred or enmity or the degradation of human dignity on grounds of race, ethnic
background or origin or to foment violent acts against persons of other ethnic groups, as
well as offensive (negative or pejorative) statements about persons from other ethnic groups
and the commission of other unlawful acts for nationalistic reasons.
394. The purpose of this activity, which on average involves some 200 assessments
annually, is to prevent extremism in Russian society, identify extremist nationalistic
organizations and combat falsifications of historical facts calculated to create negative
stereotypes of certain population groups on the basis of ethnic or religious features.
395. In April 2011, a major cultural forum of ethnic minorities was organized in the city
of Grozny (Chechen Republic), in the context of which a theoretical and practical
conference was held on the topic “State support for the culture of the ethnic minorities of
the Northern Caucasus as a factor in improving inter-ethnic relations”.
396. A number of projects are being carried out to develop ethno-tourism in order to
prevent xenophobia and to promote and heighten awareness of ethnic cultures in Russia.
Today it can be said that unique types of ethno-tourism have emerged and that the
experience with them has been good. This concerns religious, educational, ecological, rural
and other forms of tourism. With regard to sites of ethnocultural tourism, reference is made
to ethnic villages (museums), multipurpose ethnic cultural complexes (composed of hotels,
restaurants and recreation centres of an ethnic nature), monasteries and ethnographic openair
museums. These projects are being realized in many constituent entities. For example, in
Orenburg a multifunctional museum — the ethnic cultural complex “Ethnic village” — is
operating successfully in the city itself.
397. In Rostov province, an historical and architectural museum and park have opened at
the Starocherkasskaya Cossack village, which is a unique complex of 23 monuments dating
back to the seventeenth to nineteenth centuries, when it was the capital of the Don Cossacks
(Cherkassk).
398. Ataman, a Cossack open-air ethno-tourism complex, is in operation on the Taman
peninsula. There is also a project to create an ethno village, “Yb”, in the Republic of Komi
with a museum and ethnographic centre of wooden architecture, reflecting the unique
traditional culture of the ethnographic groups of the area.
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399. Other sites exist in many constituent entities, including in areas inhabited by small
indigenous peoples (the Yamal-Nenets Autonomous Area, the Khanty-Mansi Autonomous
Area, Yakutia and elsewhere).
400. Media outlets in the languages of Russia are developing, in particular Mari and
Nenets radio and Internet websites, including those which focus on the culture, languages,
traditions and customs of the peoples of Russia. The informal Internet portal
www.chumoteka, which is devoted to the life of the peoples of the Nenets Autonomous
Area, is a noteworthy project of this kind.
401. The government authorities provide financial assistance to many non-profit
organizations representing small indigenous peoples to help them with projects of social
importance.
IV. Information on the implementation of the concluding
observations of the Committee on the Elimination of Racial
Discrimination, adopted following the consideration of the
eighteenth and nineteenth reports of the Russian Federation
Paragraph 9
402. Paragraph 9 of the concluding observations recommends that the Russian Federation
consider adopting a clear and comprehensive definition of racial discrimination in its
legislation.
403. Article 1 of the Convention contains a definition of the term “racial discrimination”,
namely “any distinction, exclusion, restriction or preference based on race, colour, descent,
or national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life”.
404. Pursuant to article 17 of the Constitution of the Russian Federation, human and civil
rights and freedoms are recognized and guaranteed in the Russian Federation in conformity
with universally accepted principles and norms of international law.
405. In accordance with article 15 of the Constitution, the universally recognized
principles of international law and the international agreements to which the Russian
Federation is a party are an integral part of its legal system.
406. In addition, article 19 of the Constitution guarantees equality of human and civil
rights and freedoms, irrespective of race, ethnic background, language, origin, place of
residence or attitude to religion. Restrictions of any kind on the rights of citizens on social,
racial, ethnic, linguistic or religious grounds are prohibited.
407. Russian legislation guarantees the exercise of labour rights, the opportunity to
receive an education and health care protection (article 3 of the Labour Code, article 5 of
the Education Act and article 5 of the Federal Public Health Care Act).
Paragraph 10
408. Pursuant to the Presidential Decree adopted in 1997 on the basic identity documents
of citizens of the Russian Federation in the territory of the Russian Federation and
Government Decision No. 828 of 8 July 1997 on the approval of the regulations on
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passports of citizens of the Russian Federation, the reference in passports to ethnic identity
has been removed.
409. The Federal Vital Statistics Act provides for an entry on ethnic background in a birth
certificate at the applicant’s request, and in a death certificate if there is an entry to that
effect in the deceased’s personal identity document. Information on the ethnic background
of migrants is not included in the records of the Office of Statistics. Thus, it is not possible,
on the basis of current statistics, to present systematic data on ethnic composition.
410. The Russian Population Census is the sole source of information on the ethnic
composition of the population.
411. Data on ethnic composition from the 2002 Census (including basic
sociodemographic characteristics) have been posted on the website www.perepis2002.ru,
where they are publicly accessible in the section entitled “Catalogue of Official
Publications of the 2002 Census”, volume 4 (Ethnic composition, languages spoken,
citizenship); they are also set out in the annex to this report.
412. The results of the 2010 Census with regard to the basic sociodemographic
characteristics (marital status, level of education, sources of means of subsistence and
occupational activity) of the various ethnic groups will be received in the third quarter of
2012.
Paragraph 11
413. Information on the Russian Federation’s policy on this question is set out in
paragraphs 61–64 and 402–407 of the report.
Paragraph 12
414. There are in-service training courses for law enforcement officials on human rights
and the prohibition of discrimination on racial, ethnic or religious grounds in the
performance of official duties (this is explained in greater detail in paragraphs 381–385).
Paragraph 13
415. Reports of violations in 2006 of the rights of Georgian citizens and ethnic Georgians
in the Russian Federation were investigated by the offices of the procurator in 2007 and
2008 in the context of an application submitted by the Republic of Georgia to the European
Court of Human Rights.
416. The investigation did not find any evidence of destruction of identity papers,
detention in inhumane conditions, deportations under a simplified procedure or other
repressive measures.
417. It was determined that the investigation into whether citizens of Georgia were in
compliance with the regulations on temporary and permanent residence in the Russian
Federation had been carried out by the internal affairs and migration authorities in
accordance with the powers vested in them by the Code of Administrative Offences. On the
basis of the investigation, materials for instituting administrative prosecution against
persons who had violated the requirements of migration legislation were referred to the
courts in accordance with the procedure prescribed by law. In the vast majority of cases, the
court rulings on the deportation of Georgian citizens in administrative proceedings were in
strict conformity with the law.
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418. The prosecutorial authorities filed appeals against a number of decisions on
administrative offences involving Georgian citizens in which the courts had allowed
violations of rules of material and procedural law. Following a review of those appeals, the
unlawful decisions taken in administrative proceedings were overruled by a higher court.
419. The detention conditions of Georgian citizens held in special facilities pending their
deportation were in conformity with the requirements of Russian law. There have not been
any complaints from Georgian citizens or their representatives of unlawful placement in
detention facilities or of improper detention conditions.
Paragraph 14
420. Information on the situation with regard to the protection of the rights of members of
the Roma community is contained in paragraph 260.
Paragraph 15
421. Information on measures for the socioeconomic development of the small
indigenous peoples of the North, Siberia and the Russian Far East is contained in
paragraphs 261–294.
Paragraphs 16–18
422. The procuratorial authorities attach great importance to building up law enforcement
practice, analysing positive experience and elaborating informational and practical material
directed at preventing and combating extremism.
423. A memorandum on the improvement of procuratorial oversight of compliance by the
regional and local authorities with legislation on countering extremism has been sent out to
provide technical and practical assistance to the procurators of the constituent entities.
424. The procurators are requested to ensure the adoption by the regional and local
authorities of additional measures to improve monitoring of the state of inter-ethnic and
interfaith relations so as to identify risks of their destabilization and to have an overall
assessment of potential conflicts.
425. It was also recommended that existing programmes should be reviewed and that new
programmes should be drafted which give priority to measures designed to prevent
extremist activities, including awareness-raising and educational initiatives.
426. Paragraph 17 of the concluding observations refers to the need to give primary
consideration to combating extremist organizations, and their members, engaging in
activities motivated by racial, ethnic or religious hatred or enmity.
427. It should be noted that the Criminal Code of the Russian Federation establishes
criminal liability for extremist offences, including offences motivated by political,
ideological, racial, ethnic or religious hatred or enmity or committed on grounds of hatred
or enmity towards any social group, as set out in the relevant articles of the general part of
the Criminal Code (article 280 (Public calls for extremist activities), article 282
(Hatemongering and disparagement), article 282.1 (Organization of an extremist
association) and article 282.2 (Organizing the activities of an extremist organization)).
428. Procurators have taken part in court proceedings on whether to declare certain
organizations to be extremist and to prohibit their activities.
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429. For example, on 27 April 2010 Moscow City Court examined the application of the
procuratorial authorities to declare the interregional movement “Slavic Union” an extremist
organization and to prohibit its activities. The Slavic Union spread ideas propagating
national socialism similar to the ideology of fascist Germany. These ideas espouse
exclusiveness and superiority on ethnic grounds.
430. A civil action has also been instituted in a court in Moscow province to prohibit the
activities in Russia of the interregional voluntary association “Spiritual Ancestral Russian
Empire Rus”, which calls for the creation of a so-called “Slavic-Aryan” State, the
displacement of persons from other ethnic groups and the repression, and even physical
destruction, of persons who do not support the association’s ideas. The procurator of
Moscow province has forwarded the application for the prohibition of the activities of the
Spiritual Ancestral Russian Empire Rus to Moscow Provincial Court and has suspended its
activities.
431. The Supreme Court granted the application of the Procurator-General to prohibit in
the Russian Federation the activities of the international association “National Socialist
Society”, whose actual aims are to seize power in the country, change the foundations of
the constitutional order and create a unitary State based on the principles of the superiority
of the Russian nation and the violation of the rights, freedoms and legitimate interests of
persons and citizens on grounds of ethnic background.
432. The court granted in full the application of the Procurator-General to declare the
National Social Society an extremist organization and to prohibit its activities.
433. With a view to cooperating with voluntary associations, officials of the Office of the
Procurator-General have taken part in conferences, round-table discussions and seminars
aimed at preventing and combating extremism.
434. In compliance with paragraph 3 of the list of instructions contained in Order No. 488
issued by President Medvedev on 27 February 2011, in November 2011 a seminar was held
in conjunction with the Academy of the Office of the Procurator-General and with the
participation of the deputy procurators of the constituent entities on the following topic:
“The elaboration of measures to detect and remove from circulation printed matter and
audio and visual materials whose content is designed to incite ethnic, racial or religious
hatred”, the aim of which was to give procuratorial officials in-service training on interethnic
relations and ways of combating extremism.
435. Measures are being taken to improve the qualifications of the staff of the regional
offices of the procurator (see paragraphs 403–405).
436. Between 2008 and 2011, representatives of the Office of the Procurator-General
participated in the following international initiatives, at which questions concerning the
elimination of racial discrimination were discussed (paragraph 16 of the concluding
observations):
• An additional meeting on combating racism and xenophobia, on the topic “National
institutes active in countering discrimination, and their role in the fight against
racism and xenophobia” (Vienna, 29–30 May 2008)
• A round-table discussion with the participation of authors of alternative and official
reports on Russia’s compliance with the provisions of the International Convention
on the Elimination of All Forms of Racial Discrimination (Moscow, 21 July 2008)
• The seventy-third session of the Committee on the Elimination of Racial
Discrimination (Geneva, 31 July–4 August 2008)
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• A round-table discussion with the participation of representatives of federal
ministries and administrations, organized by the European Commission against
Racism and Intolerance (Moscow, 23 September 2008)
• The United Nations Review Conference on the implementation of the Durban
Declaration and Programme of Action to combat racism, racial discrimination,
xenophobia and related intolerance (Geneva, 20–24 April 2009)
• The OSCE High-Level Conference on Tolerance and Non-Discrimination (Astana,
29–30 June 2010)
• The forty-sixth session of the Committee on the Elimination of Discrimination
against Women (New York, 13–16 June 2010)
• A seminar of the Office of the United Nations High Commissioner for Human
Rights for CIS member States on the topic “Elaboration and realization of national
plans of action to combat racial discrimination and intolerance” (Saint Petersburg,
29–30 September 2011)
• Working meetings of the fifteenth annual OSCE Human Dimension Implementation
Meeting on the topic “Tolerance and Non-Discrimination” (Warsaw, 4–6 October
2011)
• A High-Level OSCE Meeting on the topic “Confronting Intolerance and
Discrimination against Muslims in Public Discourse” (Vienna, 28 October 2011)
Paragraph 19
437. As of 1 December 2011, 51 constituent entities had received and reviewed
applications for refugee status from 1,153 foreign nationals from 45 States. By way of
comparison, 43 constituent entities had received and reviewed applications from 2,048
persons from 49 States over the equivalent period in 2010. This year the number of
applications compared to 2011 fell by almost half. The decline has been due to the relative
stabilization of the situation in Georgia after the 2008 conflict, which has led to a sharp
drop in the number of asylum seekers from that country.
438. Fifty-seven applications were received from detention facilities, primarily persons
awaiting extradition (approximately 5 per cent of applications), as against 33 persons in the
equivalent period in 2010, one third of whom had left Uzbekistan. This year for the first
time six applications for refugee status were received from foreign nationals subject to
readmission in other States.
439. As of 1 December 2011, 814 refugees from 28 States were registered with 36
regional offices of the Federal Migration Service, as compared to 801 refugees from 30
States in the equivalent period in 2010.
440. It is expected that in 2012, the number of applications for refugee status and
temporary asylum will grow by 10 per cent compared to 2011.
441. In the first 11 months of 2011, 34 regional offices of the Federal Migration Service
received and reviewed applications for temporary asylum from 945 persons from 36 States,
as against 1,606 persons in the equivalent period in 2010, a 1.7-fold decline.
442. There was a preponderance of applications from Afghan nationals (46 per cent).
Fifty-nine per cent of applications for temporary asylum submitted in the reporting period
were approved, compared to 62 per cent in the equivalent period in 2010. As of 1
December 2011, 3,057 persons were listed with 44 regional offices of the Federal Migration
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Service as having been granted temporary asylum, as against 3,781 persons in the
equivalent period in 2010.
443. During the reporting period, the Federal Migration Service has explored possibilities
for providing temporary accommodation to asylum seekers. To that end, its Serebryaniki
public service centre in Tver province was converted to a temporary accommodation
facility. The buildings at the centre were overhauled and modernized with funds from the
Federal Migration Service and UNHCR.
444. The centre took in the first foreign nationals in December. In order to improve
legislation, in the course of 2011 work was carried out on 25 draft regulatory acts on the
granting of asylum, including 1 draft international agreement (elaborated in conformity
with the Collective Security Treaty Organization), 5 federal bills, 1 draft presidential
decree, 10 draft government decisions and 8 draft instructions of the Federal Migration
Service.
445. Ten regulatory acts, including one federal act, four presidential decisions and five
administrative instructions, were enacted during the reporting period. A bill was submitted
to the Government on amendments to several pieces of legislation in connection with the
inclusion of biometric data in the residence permits of stateless persons and the travel
documents issued to persons granted refugee status.
446. A rough draft has been agreed on a travel document to be issued to persons granted
asylum which will contain the biometric data of the holder; it will be used in a pilot project
during the presentation of a new generation of passports and visa documents in January
2012 at the Saint Petersburg office of the Federal Passport and Visa Service to permit
delegations from the Russian Federation to attend the work of the fiftieth to fifty-second
meetings of the UNHCR Executive Committee’s Standing Committee. Background
documents, analyses and reference material on questions relating to the granting of asylum
were prepared at the sixty-second session of the Executive Committee of the High
Commissioner’s programme.
447. Officials from specialized government bodies regularly attend international forums
on questions concerning the protection of refugees. For example, representatives of the
Federal Migration Service took part in a regional conference on the protection of refugees
and international migration in Central Asia in Alma-Ata (Kazakhstan), a working meeting
organized by the Council of Europe and the European Bank for Reconstruction and
Development on the problem of refugees from North Africa and the Middle East, held at
the European Court of Human Rights in Strasbourg, and other events.
448. In the framework of the Russia-EU dialogue on migration, a thematic session was
held on 14 December 2011 in Moscow on the subject of international protection.
449. In conjunction with UNHCR, two workshops were conducted on the topic
“International and national protection of refugees, and the procedure for determining
refugee status. Readmission”, which 35 directors and administrators from 37 regional
offices of the Federal Migration Service attended.
Paragraph 20
450. Russian legislation specifies that all citizens of the Russian Federation, irrespective
of ethnic background, have the same rights and opportunities. The introduction of official
quotas enabling members of small indigenous peoples to have a preferential right to
representation in elected government bodies is contrary to established national and
international legal norms.
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Paragraph 21
451. Internally displaced persons are registered under the procedure introduced by the
regional offices of the Federal Migration Service in Form No. 7, on the registration of
families who have arrived in an emergency situation, approved by Federal Migration
Service Instruction No. 78 of 27 September 1999 on the registration of citizens from the
Chechen Republic.
452. As of 1 April 2009, all citizens who temporarily left their place of permanent
residence in the Chechen Republic and were registered under the above-mentioned
procedure had been removed from the registry on the basis of a freely expressed declaration
of their intention to return to their previous place of permanent residence.
453. Citizens who suffered as a result of the resolution of the crisis in the Chechen
Republic are entitled to receive compensation for lost housing and property. To receive
such compensation, it is not necessary to have an officially registered status of displaced
person.
454. In application of Presidential Decree No. 404 of 4 July 2003 on the procedure for the
payment of compensation for loss of life or property to citizens who suffered as a result of
the resolution of the crisis in the Chechen Republic and were permanent residents on its
territory, compensation totalling 26.43 billion roubles has been paid to 75,510 families
(124,745 persons). Citizens who suffered as a result of the resolution of the crisis who left
the Chechen Republic permanently have been paid compensation for loss of life or property
pursuant to Government Decision No. 510 of 30 April 1997 on the procedure for the
payment of compensation in such cases. Compensation totalling 4,075 billion roubles has
been paid to more than 38,000 families under this procedure.
455. Act No. 4530-1 of 19 February 1993 (revised 1 July 2011) on Displaced Persons
sets out economic, social and legal guarantees for categories of citizens recognized as
displaced persons under the prescribed procedure. Currently there are 7,094 displaced
persons (2,590 families) from the Chechen Republic, of whom 4,885 persons (1,448
families) chose not to return and opted instead to stay in the Republic of Ingushetia.
456. Since 2011, State support for the housing of displaced persons living in the Republic
of Ingushetia has been covered under the special federal programme “Socioeconomic
development of the Republic of Ingushetia, 2010–2016”, approved by Government
Decision No. 1087 of 24 December 2009.
457. The programme calls for a targeted allocation of subsidies from the federal budget
totalling 4.2 billion roubles to the budget of the Republic of Ingushetia to provide social
assistance to displaced persons. Initiatives to house these persons will be carried out by the
Government of the Republic of Ingushetia. There are sufficient financial resources to
provide housing to persons in this category who are registered in Ingushetia.
458. Families of displaced persons from the Chechen Republic registered in other
constituent entities (2,209 persons, or 1,141 families) are to receive housing subsidies under
the subprogramme “Implementation of the State obligation to provide housing to categories
of citizens established by federal law”, and they are to be issued housing certificates to
acquire a dwelling as part of the special federal housing programme 2011–2015, approved
by Government Decision No. 1050 of 17 December 2010.
459. Initiatives are being carried out in the Russian Federation as part of a special federal
programme for the socioeconomic development of the Chechen Republic, 2008–2012, to
provide social assistance to citizens for the renovation of homes destroyed as a result of the
resolution of the crisis in the Chechen Republic. Under the programme, it is planned to
allocate 2,824.4 million roubles in benefits to 3,388 citizens, of which 1,123.3 million
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roubles have been paid out; 592 citizens have received the full benefits and 1,392 citizens
have received partial amounts. Citizens of the Russian Federation who resided in the North
Caucasus Federal Area enjoy the rights accorded to citizens of Russia by the Constitution.
Pursuant to article 27 of the Constitution, anyone who is lawfully present in the Russian
Federation has the right to freedom of movement and to choose a place of temporary and
permanent residence. Neither the Constitution nor other laws or regulations have
established any restrictions based on religion, race or ethnic origin for citizens of Russia in
the choice of place of residence.
Paragraph 22
460. Act No. 5242-1 of 25 June 1993 on the Right of Citizens of the Russian Federation
to Freedom of Movement and Choice of Place of Temporary and Permanent Residence
within the Boundaries of the Russian Federation, which requires citizens to register at their
place of temporary or permanent residence, also specifies that registration or failure to do
so may not serve as grounds for restricting, or as a condition for enjoying, the civil rights
and freedoms set out in the Constitution and legislation of the Russian Federation and the
Constitution and legislation of the constituent republics. A citizen who submits the
documents required under article 6 of the Act and articles 9 and 16 of the regulations on
registration may not be denied registration at his or her place of temporary or permanent
residence.
461. In accordance with Presidential Decree No. 232 of 13 March 1997 on the basic
identity document of citizens of the Russian Federation in the Russian Federation and
Government Decision No. 828 of 8 July 1997 on the approval of the regulations governing
the passports of citizens of the Russian Federation and passport form and features, there is
no provision for an inclusion in the identity document of a reference to the ethnic
background of the holder. Consequently, the regional offices of the Federal Migration
Service do not have information of this kind.
462. Citizens may submit a complaint or a communication to the offices of the procurator
alleging that their social, economic or other rights have been denied on grounds of the
presence or absence of registration. In such a case, an investigation is launched, and if it is
concluded that there is reason to do so, the procurator may take action, including by
petitioning the court on behalf of the citizen to eliminate the violations of his or her rights.
463. Since the presentation of the last report, no complaints or other communications
have been received alleging that the registration authorities have violated the interests of
citizens of a particular ethnic background or of refugees in connection with their
registration.
Paragraph 23
464. With a view to implementing the recommendations of the Committee, on 12 January
2010 Presidential Decree No. 60 was adopted on amendments to the State programme for
assisting the voluntary resettlement in the Russian Federation of ethnic Russians living
abroad and to the plan of action approved by Presidential Decree No. 637 of 22 June 2006
for the implementation of the programme. The Decree made it possible to expand the scope
of the State programme to include former citizens of the USSR currently living in the
Russian Federation who are not citizens of the Russian Federation.
465. In accordance with the Decree, Government Decision No. 528 of 15 July 2010 was
adopted on the approval of regulations for the issuance in the Russian Federation of a
certificate of participation in a State programme to assist the voluntary resettlement in the
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Russian Federation of ethnic Russians living abroad and on amendments to Government
Decision No. 817 of 28 December 2006.
466. On 20 August 2010, the Federal Migration Service issued Instruction No. 256 on
amendments to the legal provisions of the Federal Migration Service, which establishes, for
the regional offices of the Federal Migration Service, the operational procedure for the
drafting and issuance of a certificate of participation in the State programme to ethnic
Russians lawfully residing permanently or temporarily in the Russian Federation.
467. Paragraph 23 of the concluding observations recommends that the Russian
Federation facilitate access to Russian citizenship for all former Soviet citizens. Article 14
of Federal Act No. 62 of 31 May 2002 on Citizenship of the Russian Federation makes
provision for a mechanism that enables all former Soviet citizens to obtain citizenship on
the basis of a simplified procedure.
468. Under current legislation, former Soviet citizens are considered to be ethnic
Russians, they may participate in the above-mentioned voluntary resettlement programme,
and they are entitled to the benefits under the programme, which include obtaining
citizenship of the Russian Federation on the basis of a simplified procedure.
Paragraph 24
469. Russian legislation provides for the preferential right of small indigenous peoples to
the use of land and natural resources.
470. Article 7, paragraph 3, of the Land Code (Federal Act No. 136 of 25 October 2001)
specifies that, in cases prescribed by federal legislation and the laws and regulations of the
regional and local authorities, a special legal regime may be established for the use of land
by the small indigenous peoples of the Russian Federation and ethnic communities in their
traditional habitat and areas of traditional economic activities.
471. Legislation formalizes the right (including of indigenous peoples) to hold citizens’
assemblies and referendums on questions concerning the expropriation, including through
purchase, of land for federal or municipal needs and its designation for construction
projects whose location affects the legitimate interests of these peoples and communities.
When taking decisions on a preliminary agreement on the location of a project, the State
and local authorities must take into account the outcome of those citizens’ assemblies and
referendums (art. 31, para. 3).
472. The Land Code also establishes the right of communities of indigenous peoples to
use agricultural land for the preservation and development of their traditional way of life,
livelihoods and crafts (arts. 68, 78 and 82).
473. The rights of indigenous peoples concerning natural resources are also set out in the
Forest Code (Federal Act No. 22 of 29 January 1997). When forests are used in the
traditional habitat of small indigenous peoples, the Forest Code guarantees the protection of
their traditional way of life (art. 48) and free provision of wood for their personal needs
(art. 30).
474. The Water Code enshrines as one of its principles the right of small indigenous
peoples to the traditional use of bodies of water in their traditional habitat (arts. 3 and 54).
This does not require the conclusion of water use agreements (art. 11). The Water Code
provides for the mandatory presence of representatives of small indigenous peoples on
councils elaborating recommendations on the use and preservation of bodies of water
within the watershed area so as to ensure the participation of indigenous peoples in the
decision-making process (art. 29).
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GE.12-43423 71
475. The Tax Code specifies that fauna and biological aquatic resources used by the small
indigenous peoples of the North, Siberia and the Russian Far East (listed on the inventory
approved by the President) to meet their personal needs and by persons who are not
members of small indigenous peoples but reside permanently in the traditional habitat of
small indigenous peoples and areas of their traditional economic activities and whose
subsistence is based on hunting and fishing are not subject to taxation (art. 333.2).
Indigenous peoples are also exempted from payment of land tax (art. 395).
476. Federal Mineral Resources Act No. 2395-1 of 21 February 1992 states that the
interests of small indigenous peoples must be protected during the exploitation of mineral
resources and specifies that the authorities of the constituent entities have responsibility for
dealing with these matters (art. 4).
477. The aim of Federal Act No. 49 of 7 May 2001 on Areas of Traditional Resource Use
of the Small Indigenous Peoples of the North, Siberia and the Russian Far East was to
protect the native habitat and traditional way of life of small indigenous peoples, preserve
and develop their distinctive culture and conserve biological diversity in areas of traditional
resource use.
478. The Act protects the land rights of small indigenous peoples. In particular, land and
other natural sites of equivalent value are awarded to members and communities of small
indigenous peoples in exchange for land and other natural sites within the boundaries of
areas of traditional resource use which have been expropriated for State or municipal needs.
Compensation is paid for loss arising from such expropriation.
479. The growing economic exploitation of these areas and the extraction and processing
of subsoil resources in close proximity to areas with large populations of small indigenous
peoples may result in a reduction in the amount of land that can be used for traditional
economic activities and a deterioration of conditions for traditional industries.
480. The Government is working to reduce the impact of the extraction of natural
resources on the living conditions and way of life of small indigenous peoples by
elaborating and applying methods for calculating the extent of harm caused to the small
indigenous peoples of the North, Siberia and the Russian Far East as a result of the
economic and other activities of organizations and individual persons in their traditional
habitat and areas of traditional economic activities.
481. Steps are also being taken to introduce legislation on areas of traditional resource
use in which the exploitation of mineral deposits or related activities can be restricted or
prohibited. To this end, a bill has been drafted to amend the Federal Act on Areas of
Traditional Resource Use of the Small Indigenous Peoples of the North, Siberia and the
Russian Far East.
482. Legislation defines regulations for the establishment of areas of traditional resource
use which simplify the existing procedure, and it makes provision for the creation of such
areas on various categories of land in the traditional habitat and areas of traditional
economic activities of the small indigenous peoples of the North.
483. This approach is consistent with the aims of the creation of such areas, which is to
support the traditional way of life of small indigenous peoples based on natural resource
use and to ensure their socioeconomic development.
484. Decisions relating to mining activities in the traditional habitat and areas of
economic activities of small indigenous peoples taken by the legislative (representative)
body of the constituent entities on whose territory the mineral resources are found must
take into account the interests of the small indigenous peoples (Federal Act No. 225 of 30
December 1995 on Production Sharing Agreements (revised 19 July 2011)).
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72 GE.12-43423
485. Russian legislation does not make provision for the conclusion of agreements or
contracts between representatives of small indigenous peoples and the State. However,
there are other forms of constructive cooperation with federal, regional and local
authorities.
486. For example, representatives of small indigenous peoples are members of the Expert
Advisory Board within the Interdepartmental Working Group on inter-ethnic relations,
which is chaired by the Deputy Prime Minister. The Council is an effective way of
involving representatives of small indigenous peoples in the decision-making process for
questions concerning the development of their ethnic culture.
487. Representatives of small indigenous peoples are also members of the national
organizing committee responsible for preparing and conducting the Second International
Decade of the World’s Indigenous People in the Russian Federation. The organizing
committee plans and monitors the implementation of a whole set of specific initiatives
aimed at the socioeconomic and ethnic cultural development of Russia’s small indigenous
peoples.
488. An Expert Advisory Board on the affairs of the small indigenous peoples of the
North, Siberia and the Russian Far East operates under the authority of the Special
Representative of the President in the Siberian Federal Area. Questions concerning
cooperation with organizations of small indigenous peoples in the Far East Federal Area are
considered within the framework of the Interdepartmental Commission on voluntary and
religious associations, which reports to the Special Representative of the President in the
Far East Federal Area.
489. Representatives of small indigenous peoples are members of a working group of the
Ministry of Regional Development’s Advisory Board on questions of ethnic cultural policy
and human potential.
490. The current active exploitation of natural resources in northern areas has made it
necessary to draft and adopt legislation on a procedure for the payment of compensation for
damages caused by the activities of business enterprises to the native environment and
traditional way of life of the small indigenous peoples of the North, Siberia and the Russian
Far East.
491. To that end, a method has been elaborated and approved for calculating the extent of
damage caused by the economic and other activities of organizations of all forms of
ownership or by private individuals in the traditional habitat and traditional areas of
economic activities of communities of indigenous peoples (details on this method are set
out in paragraphs 286–290 of the report).
492. Work is also under way on developing forms of public-private partnership between
representatives of the small indigenous peoples of the North, Siberia and the Russian Far
East, federal and local authorities and companies operating in the traditional habitat of these
peoples.
493. By order of the Ministry of Regional Development, a business model and forms of
public-private partnerships were elaborated to promote the traditional industries and crafts
of the small indigenous peoples of the North, Siberia and the Russian Far East.
Subsequently, on 13 and 14 September 2010 the Social Forum held a seminar to discuss the
business model, with the participation of representatives of the Ministry of Regional
Development, the State Duma, the Federal Council, the authorities of the constituent
entities, voluntary associations and communities of the small indigenous peoples of the
North, Siberia and the Russian Far East, and representatives of a number of major business
enterprises (the Sakhalin Energy Investment Company, the Kinross Gold Corporation, the
Norilsk Nickel Mining Corporation and the Newton State Corporation).
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GE.12-43423 73
494. Participants in the seminar discussed and endorsed as a whole the business model,
methods for promoting the business activities of traditional industries and the main areas of
public-private partnership. The relevant documents were forwarded to the constituent
entities by the Ministry of Regional Development.
495. On 11 October 2011, the Ministry of Regional Development organized and held an
international seminar in Saint Petersburg, attended by experts from a number of
government bodies from Russia and Canada, representatives of communities of small
indigenous peoples and industrial enterprises, with a view to jointly elaborating and
discussing ways of ensuring the sustainable development of the small indigenous peoples of
the North, implementing principles of corporate social responsibility and making the
activities of associations of indigenous peoples more transparent.
Paragraph 25
496. Article 37 of the Constitution establishes that everyone has the right to working
conditions consistent with the requirements of safety and hygiene and to remuneration
without discrimination of any kind.
497. Pursuant to that provision, article 3 of the Labour Code states that everyone has
equal opportunities for enjoying their labour rights. No one’s labour rights and freedoms
may be restricted, and no one may enjoy any preference on the basis of sex, race, skin
colour, ethnic background, language, origin, material, family, social or official status, age,
place of residence, attitude to religion, political convictions, membership or nonmembership
of a voluntary association or other circumstances unrelated to professional
skills.
498. Anyone who considers that they have been subjected to discrimination at work may
apply to the courts for the restoration of their violated rights, reparation of material damage
and compensation for moral damage.
499. Thus, Russian legislation contains all necessary provisions prohibiting
discrimination at work and allowing for the restoration of violated rights.
Paragraph 26
500. Questions associated with the removal of illegally constructed dwellings, including
those of Roma, are currently quite topical, and to address them, possible mechanisms for
the legalization of Roma settlements are being elaborated. The Russian Federation is of the
view that a legalization of home ownership will prevent forced evictions. However, it is
still current practice to remove illegally constructed dwellings and to evict the persons
concerned. As part of the activities of the Interdepartmental Working Group’s Expert
Advisory Board, the federal authorities together with the Federal Autonomous Ethnic
Cultural Organization of Russian Roma are preparing a plan of action on the socioeconomic
and ethnic cultural development of the Roma community which includes measures for
addressing this problem.
Paragraph 27
501. In implementing the constitutional right of every citizen to education, Education Act
No. 3266-1 of 10 July 1992 (revised 3 December 2011) (with amendments and additions
which entered into force on 1 February 2012) stipulates that regulations for State and
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74 GE.12-43423
municipal primary, secondary and vocational training schools must guarantee the admission
of all children who live in a particular area and are entitled to a given level of education.
502. This guarantee is also set out in article 46 of the Model Rules on general education
establishments approved by Government Decision No. 196 of 19 March 2001 (revised 10
March 2009). Children not resident in the area may be denied school admission solely on
grounds of lack of free places.
503. Article 5, paragraph 3, of the Education Act prohibits the use of an entrance
examination as a basis for the admission of children to the first class of all State and
municipal schools. In compliance with Circular No. 03-51-57/13-03 of the Ministry of
Education of 21 March 2003, which contains recommendations on the organization of
admissions to the first class, all children who have attained school age are enrolled in the
first class of primary school, regardless of their level of preparation. A teacher may meet
with each child in September to plan the child’s individual instruction.
504. In accordance with Federal Act No. 115 of 25 July 2002 on the Legal Status of
Foreign Nationals, foreign nationals in the Russian Federation enjoy the same right to
education as Russian citizens.
505. When enrolling their child in the first class of a primary school, parents or legal
representatives must submit an application for admission, the child’s medical record and a
document certifying the child’s place of residence.
506. Particular attention is given to education for Roma children. The focus in general
education establishments is on two areas: ensuring that Roma children receive the same
instruction as their schoolmates, and providing special remedial classes for children who
are lagging in development and cannot be taught under the regular school curriculum.
507. The practice of placing Roma children in special classes exists in a number of
constituent entities, in particular in Volgograd province, but it is not a forced segregation
measure. Instead, it has to do with the low level of preschool preparation of some Roma
children upon enrolling in school. However, procedures exist which enable a child to move
to a more advanced class. If the parents and the teacher confirm that the child is able to
keep up, he or she may be transferred to a regular class at the parents’ request.
508. Most general education establishments (Penza, Tula, Ryazan, Lipetsk, Volgograd
and other provinces) advocate integrated education, which makes instruction more
complete, ensures that Roma children are included in the mainstream education system and
is in compliance with paragraph 27 of the Committee’s recommendations.
509. Some schools in the constituent entities have a component on Roma culture. For
example, at the secondary school in the town of Oselka (Leningrad province), Roma
children can attend classes in which the Roma culture and language are taught.
510. In-service training courses for teachers in areas with large Roma populations
(Vladimir, Leningrad and Kaliningrad provinces, Perm Territory and elsewhere) include
topics on the history and culture of Roma in the Russian Federation. An alphabet for Roma
children has been designed and published by a team of authors at A.I. Gertzen State
University.
511. Since 2006, a creative workshop at the Centre for ethnic education problems at the
Federal Education Institute of the Ministry of Education and Science has been examining
problems relating to the socialization of Roma and has produced handbooks on the ethnic
cultural content of general education curricula. In April 2009, in cooperation with the Antidiscrimination
Centre Memorial, the Centre conducted a theoretical and practical seminar
on the educational problems of Roma in Russia in the context of recent educational
legislation, with the participation of representatives of Roma associations, members of the
CERD/C/RUS/20-22
GE.12-43423 75
department of education, scholars, educators and teachers. Its recommendations will be
used in practical work. In conjunction with the Centre, a concise guide to the Roma
language (Kelderar dialect) was published in the framework of a Memorial project.
512. In accordance with Russian legislation, all schoolchildren, including children from
Roma families legally present in Russia, have equal access to education.
Paragraph 28
513. Separate statistics are not kept on the number of civil and administrative court
proceedings involving complaints of racial discrimination, because such acts are
uncommon in the Russian Federation. Statistical data on criminal proceedings are set out in
the relevant section of this report.
514. The Russian Federation recognizes the right to qualified legal assistance, which is a
fundamental human right and an essential aspect of access to the courts. The Constitution
guarantees everyone the right to receive qualified legal aid, which is free of charge in cases
prescribed by law.
515. Federal Act No. 324 of 21 November 2011 on Free Legal Assistance introduces
basic guarantees for ensuring the right of citizens to free qualified legal aid and lays down
the organizational and legal foundation for the creation of State and non-State systems of
free legal assistance and for educational and public awareness-raising activities in that
regard.
516. In 2005, with the publication of Government Decision No. 534 of 22 August 2005
on the creation of a pilot project for a State system for the provision of free legal assistance
to low-income citizens, an experiment was launched for the setting up of a State legal aid
office.
517. The aim of the pilot project is to optimize the mechanism for giving effect to State
policy on providing free legal assistance to low-income citizens, i.e. to address the urgent
matter of the practical implementation of the right of access to justice for low-income
persons, for whom lawyers only provide free legal aid in very few cases at present.
518. State legal aid offices have been opened in the Republic of Karelia, the Chechen
Republic and Volgograd, Irkutsk, Magadan, Moscow, Samara, Sverdlovsk, Tomsk and
Ulyanovsk provinces.
519. The offices provide legal assistance to low-income citizens in the following ways:
(a) They offer counselling on legal questions, either orally or in writing, and
personal counselling to category I and category II disabled persons, veterans of the Second
World War and non-working retirees on an old-age pension, regardless of income;
(b) They prepare statements, complaints, requests and other legal documents;
(c) They participate in representing citizens in civil proceedings and in
enforcement proceedings involving civil cases, and they also represent the interests of
citizens before the local authorities, voluntary associations and other organizations.
520. All in all, the results of the experiment were considered positive, and Government
Decision No. 1029 of 25 December 2008 approved regulations for the provision of free
legal assistance by the State legal aid office.
521. Private legal offices which offer free counselling to citizens are an alternative to the
State aid office. Yet another alternative are the so-called mobile legal assistance units –
buses which travel on a set route and are specially equipped to provide legal aid to persons
living in remote areas at a great distance from provincial and district centres.
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76 GE.12-43423
522. Complaints of human rights violations and discrimination in any area of public life
may be referred to the Office of the Human Rights Ombudsman.
523. A written complaint (or application or report), together with attached copies, in the
prescribed form, of the judicial or administrative decisions taken on the complaint may be
sent to the Ombudsman’s Office or submitted by the complainant in person. Citizens may
also apply to the Office via the official website of the Human Rights Ombudsman. A form
for filing a complaint, application or report by electronic means may be used prior to
registration at the website.
524. The Human Rights Ombudsman works to promote public awareness of legislation
on human rights and ways and means of safeguarding them, explains various forms of
available legal protection, provides information on the administrative, judicial and other
authorities that can be applied to and offers legal counselling. The Human Rights
Ombudsman also advises citizens wishing to make use of their constitutional right to appeal
to international human rights bodies (the European Court, the United Nations Human
Rights Committee etc.).
Paragraph 29
525. Pursuant to the Outline for the period until 2025 approved by Presidential Decree
No. 1351 of 9 September 2007, the recruitment of migrants in line with the requirements of
demographic and socioeconomic development — account being taken of the need for their
social adaptation and integration — is an important objective of demographic policy.
Meeting this objective calls for the creation of conditions for the integration of immigrants
into Russian society and the promotion of tolerance between the local population and
persons from other countries in order to prevent inter-ethnic and religious conflicts.
526. Today most migrant workers in Russia speak little or no Russian and are the
category of persons most often the target of unlawful acts and discrimination by criminal
groups, corrupt officials or employers, as well as by ethnic Russians who have settled in
Russia.
527. Efforts are being made to promote an attitude of tolerance towards migrants. One
way of influencing public opinion with regard to this category of persons is through the
media, as well as through cooperation with representatives of civil society.
528. Government authorities regularly carry out initiatives to foster tolerant attitudes
towards migrants, for example by making comments for television and radio in the course
of press conferences, interviews and meetings with representatives of news agencies.
Universities and general education establishments in a number of regions have conducted
classes on tolerance and workshops with prospective students in order to encourage positive
attitudes towards foreign nationals among young people. Opinion polls have been held on
public attitudes towards foreign nationals. These activities are undertaken in cooperation
with ethnic and voluntary associations and international and regional organizations.
529. In 2011, the regional offices of the Federal Migration Service set up working groups
to promote integration, and guidelines were drawn up on procedures for organizing
cooperation with ethnic communities and for reporting on work accomplished. Seminars
and conferences were held with members of the working groups in all Federal Areas in
order to provide technical assistance at regional level.
530. Pursuant to Decision No. 3 of 15 September 2010 of the Government Commission
on Migration Policy, counselling on questions of migration legislation was organized for
foreign nationals and stateless persons with the help of 45 multi-purpose State and local
service centres. In 2011, 60,392 foreign nationals requested counselling.
CERD/C/RUS/20-22
GE.12-43423 77
531. The questions primarily concern the procedures for applying for permanent and
temporary residence permits, work permits and licences, registering as a migrant and
acquiring citizenship of the Russian Federation.
532. Counselling was also provided on participation in the State programme to assist the
voluntary resettlement in the Russian Federation of ethnic Russians living abroad; the
procedure and time frame for formulating an invitation to foreign nationals and stateless
persons to come to the Russian Federation; the rights and obligations of foreign nationals
residing in the Russian Federation on the basis of a temporary or permanent residence
permit; and visa application procedures for foreign nationals and stateless persons, as well
as the issuance, extension and cancellation of such documents.
533. Cooperation on promoting the integration of migrants is also under way with
international and non-governmental organizations. The most effective cooperation in this
regard has been with the Russky Mir Foundation, on pilot projects to teach Russian to
potential migrant workers in Kyrgyzstan and Tajikistan. The Foundation provides funding
for the project.
534. Joint projects to promote integration are being elaborated in conjunction with the
Etnosfera Centre, the New Eurasia Foundation, the P.A. Stolypin Foundation for population
studies and other voluntary associations. Close attention is being given to encouraging the
use of Russian among migrants.
535. The regional offices of the Federal Migration Service have organized cooperation
with more than 80 ethnic associations. They hold regular meetings with their
representatives, explain the provisions of migration legislation, monitor the situation in
ethnic communities and elaborate forms of interaction directed at promoting integration.
536. Considerable importance is attached to cooperation with religious organizations. A
Joint Commission of the Federal Migration Service and the Russian Orthodox Church has
been set up and is operational; it works to elaborate awareness-raising and educational
projects.
537. A handbook has been produced in conjunction with the Council of Muftis of Russia
for migrant workers from the countries of Central Asia. Agreements have been concluded
between the regional offices of the Federal Migration Service and 20 dioceses of the
Russian Orthodox Church. Five agreements have been signed on cooperation with a
number of Muslim spiritual boards and local Muslim religious organizations. An agreement
has been concluded between the office of the Federal Migration Service in the Republic of
Buryatia and the Traditional Buddhist Sangha of Russia.
538. To promote integration, courses in Russian for migrants have been started under the
above-mentioned cooperation agreements in Russian Orthodox churches and mosques in a
number of regions.
Paragraph 30
539. ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries and the obligations emanating from its articles have been carefully analysed. The
State Duma has held two public hearings on the question, with the participation of
representatives of the indigenous peoples of Russia, leading national jurists and
international experts. The analysis showed that, although Russia is not a party to ILO
Convention No. 169, Russian lawmakers take its provisions into account when making
improvements to legislation in the area.
540. According to migration statistics, most migrant workers in the Russian Federation
are citizens of countries of the Commonwealth of Independent States (CIS). Today the
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78 GE.12-43423
Russian Federation and CIS member States are taking specific measures to protect the
rights and legitimate interests of migrant workers and members of their families throughout
the CIS area.
541. On 14 November 2008, a convention was signed on the legal status of migrant
workers and members of their families in the CIS member States which regulates their
rights during their employment in CIS countries.
542. Most of the provisions of article 25 of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families are
consistent with Russian legislation. Migrant workers have the same rights as Russian
citizens with regard to favourable conditions of work, the protection of their rights and
interests, the prohibition of forced labour and discrimination, the enjoyment of working
conditions consistent with standards of safety and health, rest and leisure and the payment
of a salary not less than the established minimum wage.
543. In the framework of the single economic area of the Republic of Belarus, the
Republic of Kazakhstan and the Russian Federation, on 19 November 2010 an agreement
was signed on the legal status of migrant workers and members of their families which
created conditions for ensuring equal rights and employment opportunities throughout the
Customs Union.
544. In compliance with article 37 of the Convention, before their departure, or at the
latest at the time of their admission to the State of employment, migrant workers and
members of their families have the right to be fully informed by the State of origin or the
State of employment, as appropriate, of all conditions applicable to their admission and
particularly those concerning their stay and the remunerated activities in which they may
engage as well as of the requirements they must satisfy in the State of employment and the
authority to which they must address themselves for any modification of those conditions.
545. To that end, the Ministry of Labour compiles detailed information on job sites at
which it is planned to recruit foreign nationals. The information is sent to the Federal
Migration Service for subsequent forwarding to its representatives abroad and in the
diplomatic representations of the Russian Federation, and also to the Ministry of Foreign
Affairs for subsequent forwarding to the consular offices and diplomatic representations of
the Russian Federation.
546. The Federal Labour and Employment Service has an information portal entitled
“Working in Russia”, which can be visited at: www.trudvsem.ru.
547. Both citizens and foreign nationals can use this information portal to look for work.
548. Users have access to information on job vacancies, housing and the addresses and
telephone numbers of the placement service of the constituent entities in which the vacancy
was posted.
549. In accordance with article 49, paragraph 2, of the Convention, migrant workers who
in the State of employment are allowed freely to choose their remunerated activity may
neither be regarded as in an irregular situation nor may they lose their authorization of
residence by the mere fact of the termination of their remunerated activity prior to the
expiration of their work permits or similar authorizations.
550. Pursuant to Federal Act No. 115 of 25 July 2002 on the Legal Status of Foreign
Nationals in the Russian Federation, foreign nationals temporarily resident in the Russian
Federation are entitled to conclude a new employment contract or commercial contract for
the performance of work or rendering of services within 15 working days from the date of
the early termination of the employment contract or commercial contract for the
performance of work or rendering of services which formed the basis for the issuance of
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GE.12-43423 79
their work permit or the extension of its validity, or they must leave the Russian Federation
if their temporary residence permit has expired.
551. Pursuant to article 54 of the Convention, migrant workers enjoy equality of
treatment with nationals of the State of employment in respect of unemployment benefits
and access to public work schemes intended to combat unemployment.
552. In accordance with Employment Act No. 1032-1 of 19 April 1991, unemployed
citizens who are registered with an employment office for the purpose of seeking suitable
work have the right to participate in public work schemes. Such persons are entitled to
social assistance in the form of unemployment benefits.
553. The authorities of the employment office at the place of residence of the person
concerned decide whether a citizen registered for the purpose of seeking suitable work is to
be recognized as unemployed.
554. Pursuant to article 16 of Federal Act No. 109 of 18 July 2006 on the Migration
Registration of Foreign Nationals and Stateless Persons in the Russian Federation, a foreign
national may submit a declaration of residence registration with the migration registry at the
location of the dwelling chosen as place of residence, within seven days from the receipt of
a temporary or permanent residence permit or from the date of the foreign national’s arrival
at the location of that dwelling.
555. Thus, foreign nationals may obtain the status of unemployed person only if they
have a temporary or permanent residence permit and are registered at their place of
residence.
Annex 794
Finland, Reports Submitted by States Parties under Article 9 of the Convention, Twelfth
Periodic Reports Due in 1993, CERD/C/240/Add.2 (17 May 1995)
UNITED NATIONS CER
International Convention
on the Elimination
of all Forms of
Racial Discrimination
Distr.
GENERAL
CERD/C/240/Add.2
17 May 1995
Original: ENGLISH
COMMITTEE ON THE ELIMINATION OF
RACIAL DISCRIMINATION
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Twelfth periodic reports of States parties due in 1993
Addendum
FINLAND*
[26 March 1995]
* This report contains in a single document the eleventh and twelfth
periodic reports of Finland due on 16 August 1991 and 1993 respectively. For
the ninth and tenth periodic reports submitted by the Government of Finland
and the summary records of the meetings of the Committee at which the reports
were considered, see:
Ninth periodic report - CERD/C/159/Add.1 (CERD/C/SR.866-SR.867)
Tenth periodic report - CERD/C/185/Add.1 (CERD/C/SR.866-SR.867)
The annexes are available for consultation in the files of the
Secretariat.
GE.95-16593 (E)
CERD/C/240/Add.2
page 2
CONTENTS
Paragraphs Page
I. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 1 - 28 3
II. INFORMATION RELATING TO ARTICLES 2 TO 7 OF
THE CONVENTION . . . . . . . . . . . . . . . . . . . . 29 - 106 7
Article 2 . . . . . . . . . . . . . . . . . . . . . . . 29 - 31 7
Article 3 . . . . . . . . . . . . . . . . . . . . . . . 32 - 35 8
Article 4 . . . . . . . . . . . . . . . . . . . . . . . 36 - 41 8
Article 5 . . . . . . . . . . . . . . . . . . . . . . . 42 - 83 9
Article 6 . . . . . . . . . . . . . . . . . . . . . . . 84 - 89 16
Article 7 . . . . . . . . . . . . . . . . . . . . . . . 90 - 106 17
CERD/C/240/Add.2
page 3
I. GENERAL
1. This report by Finland on the implementation of the International
Convention on the Elimination of All Forms of Racial Discrimination is
submitted at a time when the situation in Europe and in the world is in many
ways different from what it was when the previous report was submitted. In
Finland, this is reflected in the demographic composition as a larger number
of foreigners. This fact, together with increasing international cooperation
in activities against racial discrimination and racism, particularly in the
European forums, has served, much more than before, to bring the questions
covered by the Convention to the focus of public attention, research and
discussion in Finland.
2. The earlier reports by Finland described the measures taken to give
effect to the Convention; this was carried out by a decree following a debate
in Parliament on the ratification of the Convention. No legislative changes
have been introduced since the previous report. The most important reforms
under way, which relate to the Constitution Act and the Penal Code, are
discussed in the present report.
3. A study for the Conference on Security and Cooperation in Europe (CSCE)
on the position of national minorities was commissioned some years ago by the
Advisory Board for International Human Rights Affairs established by the
Finnish Government (Kristian Myntti, "The Protection of Persons Belonging to
National Minorities in Finland", third revised edition, 1993). The study also
addresses the position of the Swedish-speaking population. It has been
transmitted to the Committee on the Elimination of Racial Discrimination as
background material.
Minorities in the general framework of reporting on the implementation of
human rights treaties
4. As regards reporting on the implementation of the Convention, an
important step was taken in the preparation of the Finnish reports on the
implementation of the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child.
These extensive reports, submitted in 1992 and 1994, covered issues relating
to minorities. This new approach is designed to encourage interaction between
different ways of looking at the questions involved. This approach itself is
part of the implementation of the Convention as foreseen in article 7 and
elsewhere.
5. The reports by Finland on women’s rights and children’s rights have
helped to make visible women and children in minorities and to draw attention
to problems concerning their position. The relevant parts of the reports on
the implementation of the Convention on the Elimination of All Forms of
Discrimination against Women and on the implementation of the Convention on
the Rights of the Child are appended as annex 1. In an attempt to prevent
racism and racial discrimination such steps are unarguably important for the
attainment of the objectives of the International Convention on the
Elimination of All Forms of Racial Discrimination. It is intended that both
gender aspect and age aspect will be addressed in future reports by Finland on
the implementation of human rights treaties.
CERD/C/240/Add.2
page 4
6. Finland is active in advancing the goals of the Convention through
international cooperation both in the United Nations and in such forums as the
Council of Europe, UNESCO and ILO. In the new situation Finland is able to
benefit from the experience and the networks available between countries and
international organizations. In Vienna in October 1993, the summit of the
Council of Europe adopted a Declaration and Plan of Action on Combating
Racism, Xenophobia, Anti-Semitism and Intolerance, which was signed by the
President of Finland on 8 October 1993.
7. The Finnish Government is willing to enter into an open and constructive
communication with the Committee, whose expertise and comments can help
Finland in its efforts to improve the implementation of the Convention.
Finland made a declaration under article 14 (1) of the Convention on
16 November 1994; the remedy of making petitions to the Committee has since
that date been available to individuals.
8. The Finnish Government participates in the international cooperation
which, both within the United Nations system and in the Council of Europe,
aims at creating new and more effective approaches to prevent developments
leading to racism, racial discrimination and xenophobia. These problems have
also been a central subject of analysis in scientific research in Finland,
something which has helped to outline the extent and complexity of the problem
in Finnish society.
9. As part of the preparation of this report, a public hearing on the
Convention was held in January 1992. Invited participants included not only
representatives from non-governmental organizations (NGOs) of minorities and
foreigners but also representatives of authorities and advisory boards,
researchers and activists. The report was also discussed by the Advisory
Board for International Human Rights Affairs functioning in connection with
the Ministry for Foreign Affairs.
10. In the past few years, Finnish NGOs have increasingly focused on the
theme of tolerance. A sign of increased activity is that a section of the
Minority Rights Group now operates in Finland.
11. On the Government side, the most important step was the establishment of
a new, broad-based organ: the Advisory Board for Refugee and Migrant Affairs.
Another important factor contributing to positive development was the fact
that 1993 was named International Year of the World’s Indigenous People; the
attention devoted in Europe to Romanies in the framework of the CSCE and the
Council of Europe; the work by UNESCO to promote education for international
understanding and human rights; and, in June 1993, the World Conference on
Human Rights which brought together the entire spectrum of bodies and
organizations.
Development of administrative structures
12. The most significant administrative change in recent years was the
foundation of a new Advisory Board for Refugee and Migrant Affairs, operable
from 1 February 1992. It replaced the Advisory Boards for Migration, in
existence since 1970, and for Refugee Affairs, which had operated since 1981.
The new Board works in connection with the Ministry of Labour. It is chaired
CERD/C/240/Add.2
page 5
by the highest-ranking civil servant in the Ministry of Social Affairs and
Health; the vice-chairpersons are the respective officials from the Ministry
of the Interior, which is responsible for aliens affairs, and from the
Ministry of Labour.
13. The Advisory Board for Refugee and Migrant Affairs is charged with the
tasks of monitoring the position of foreigners and protecting their rights,
promoting cooperation between foreigners, authorities and organizations,
informing foreigners of legislation and advising them on legal rights.
14. In 1992, to strengthen the organization of the Ministry of Social Affairs
and Health, a specific office for refugee affairs was set up, designed to
contribute to the implementation of the Convention by making a strong input in
information.
15. The status of the Advisory Board for Romany Affairs was reinforced
through a decree which entered into force on 1 January 1990 (see annex 2).
The decree specifies the duties of the Advisory Board and defines more clearly
its connection with the Ministry of Social Affairs and Health. The main duty
of the Advisory Board is to improve living conditions for the Romany
population. At the time of the structural reinforcement the name of the
Advisory Board was changed from Gypsy Affairs to Romany Affairs - a step which
reflects the importance of language in eliminating discriminatory practices.
16. An important aspect of the development of administrative structures was
the foundation of a unit for the education and culture of the Romany
population in 1992. This unit, called the Romany Educational and Cultural
Unit, is part of the National Board of General Education. One of its duties
is to publish a newsletter (for more details, see annex 3).
17. The administrative structures relating to the position of the Saami
people have in recent years been discussed partly as a question relating to
the division of labour in the administrative system and partly as a means of
increasing the autonomy of decision-making by this indigenous population. It
is intended that responsibility for Saami affairs be passed to the Ministry of
Justice from the Ministry of the Interior, which now has the main
responsibility and which administers Saami affairs in the context of regional
policy. This shift of responsibility is an effort to reinforce the
implementation of the human rights of Saami people, and thereby a step in the
full implementation of the Convention.
18. As described in previous reports, Saami matters are administered by two
bodies: the Advisory Board for Saami Affairs, a body for cooperation between
the administration and the Saamis, and the Saami Delegation, which is elected
by the Saamis themselves.
19. The Advisory Board is chaired by the Governor of the Province of Lapland
and has five members, with alternates, each of whom represents a different
Ministry (Interior, Education, Agriculture and Forestry, Labour, and
Environment) and 10 members appointed by the Saami Delegation. Of the members
of the Advisory Board, one representative of both the authorities and the
Saamis is a woman; of the alternate members, two representatives of the
authorities and one Saami representative are women.
CERD/C/240/Add.2
page 6
20. Of the 20 members appointed to the Saami Delegation for the term of
office 1 January 1992 to 31 December 1995, 20 per cent are women.
Statistics on population
21. In the official population statistics on Finnish citizens no statistics
on minorities as such are compiled. The following estimates were made on the
basis of statistics on languages and, for the Saami population, of statistics
related to the election of the members of the Saami Delegation.
22. The number of Saamis in Finland is estimated at 5,700 persons (some
estimates put the figure at 6,400), of whom 3,900 live in the northernmost
part of the country: 1,100 in the municipality of Utsjoki, 2,100 in Inari and
400 in Enontekiö. In one of the municipalities, Utsjoki, the Saamis are a
majority of the population. Some 1,400 Saamis live in other parts of the
country. In addition, 400 Finnish Saamis live outside Finland. The 1990
census showed some 1,700 persons who spoke Saami as a mother tongue.
23. It is estimated that Finland has a Romany population of some 6,000. In
addition, 3,000 Finnish-speaking Romanies are thought to live in Sweden. The
estimated total number of Romanies in the Nordic countries is 15,000 to 20,000
persons, the largest group living in Finland.
24. Finland has for a long time had a small minority of Jews, who have
emigrated mainly from Russia. They number 1,400. The Tatar population, who
came originally from the Crimea, is about 900 people. Finland has
traditionally had a small minority of Russian speakers. In recent years this
group has grown considerably.
25. While the Swedish-speaking population is not covered in this report, it
may be added that they account for 6 per cent of the population, or 294,000
persons of whom 23,000 live in the self-governing district of Åland which has
a small Finnish-speaking minority comprising 1,100 persons.
Statistics on foreigners
26. In principle, statistics on foreigners, compiled by nationality, are
accurate. However, the disintegration of the Soviet Union has led to problems
of classification and interpretation. Appended are statistics on the
population resident in Finland on 1 January 1994, classified by continent,
population, nationality, sex and province of residence (annex 4). As the
statistics show, on 1 January 1994 some 56,000 foreign citizens were living in
Finland: 25,800 women and 29,800 men. The breakdown by continent is as
follows:
CERD/C/240/Add.2
page 7
Europe (excluding citizens Women Men
of the former Soviet Union;
including citizens of
the Baltic countries) 23 773 10 470 13 030
Africa 5 244 1 534 3 710
North America 2 206 1 001 3 710
Latin America 607 309 298
Asia + Australia 8 198 3 645 4 883
CIS 13 648 8 131 5 517
Stateless 469 213 256
Citizenship unknown 1 080 455 625
27. Taking into account that as late as 1987 there were only some 17,000
foreigners in Finland, nearly half of whom were Finnish repatriates from
Sweden, North America and Australia, the fact that their number has more than
tripled in a short time is a significant change in the overall demographic
situation of the country. At the end of 1992, the figure stood at 46,250,
which means that an increase of 10,000 within a single year was recorded.
28. At present, the largest group of foreigners are those arriving from the
former Soviet Union, totalling more than 13,000 persons, of whom 10,000 are of
Finnish ethnic origin - Ingrians. Other larger groups are Swedish citizens,
who are mainly Finnish repatriates (6,600); Estonians (5,900); Somalis
(2,900); Vietnamese (1,400); United States citizens (mostly repatriates,
1,800); Chinese citizens (1,100); and Turkish citizens.
II. INFORMATION RELATING TO ARTICLES 2 TO 7 OF THE CONVENTION
Article 2
29. In March 1992 the Advisory Board for Refugee and Migrant Affairs adopted
a programme of action against racism and xenophobia which was connected with
its report on the principles of Finland’s policy on refugees and migrants
(committee report 1994:5). With the title "Towards a Tolerant Finland", this
programme contains a large number of proposals for measures to be taken by
authorities and non-governmental organizations against racism and xenophobia
in Finland.
30. The proposed measures address such questions as the revision of
legislation and organization of work, the monitoring of racism and
discrimination and the compilation of statistics on these phenomena, the
diversification of school curricula, the creation of rules to regulate
journalistic practice concerning information on minorities, the role of NGOs,
and changes in the content of cultural services offered by municipalities so
CERD/C/240/Add.2
page 8
as to make use of the opportunities for interaction provided by tolerance and
multiculturalism. A key recommendation in the report is that resources be
allocated to the work envisaged in the programme of action.
31. While the State committee has been preparing the proposals now adopted,
Finnish authorities and NGOs have been planning their contribution to another
programme of action: the programme against racism to be carried out within
the framework of the Council of Europe. The programme relies both on the work
of active NGOs, in particular youth organizations, and the cooperation between
authorities, NGOs, researchers and policy makers which is to take place in the
European Commission against Racism and Intolerance. It is hoped that Finnish
participation in these activities will promote the re-evaluation and
intensification of measures. At the same time, this work will give fresh
impetus to activities required by article 2 of the Convention.
Article 3
32. Through both political statements made with other Nordic countries and
through voluntary sanctions in force from 1985 to 1987, Finland participated
in efforts of the international community to end racial discrimination in
South Africa. Following positive developments the sanctions were abolished
gradually by May 1993. Humanitarian aid to the African National Congress was
discontinued when the ANC became a political party in the Republic of
South Africa.
33. Finland continues to support the democratization of South Africa. A new
form of support is that given for the preparation of further democratization,
training and education for elections, for example.
34. Finland has also given support for the democratization of southern Africa
in other States of the area. In Africa, as elsewhere, Finland has been
especially active in supporting its traditional partners in their way to
democracy.
35. Finland earlier maintained diplomatic relations with the Republic of
South Africa on the legation level, but on 6 May 1991 the relations were
raised to the embassy level.
Article 4
36. With respect to legislation in force, reference is made to the previous
reports.
37. The Government of Finland has submitted to Parliament two proposals with
important policy implications for the development of legislation referred to
in this article. The proposals are part of two extensive bills, one relating
to the revision of the provisions on fundamental rights as contained in the
Constitution Act and the other to the reform of the Penal Code, which were
both put before Parliament in 1993 and are being debated. The reform of the
Penal Code is discussed in the following chapter; the revision of the
provisions on fundamental rights is described hereunder.
CERD/C/240/Add.2
page 9
Proposal for the reform of the Penal Code
38. In 1993 the Government submitted to Parliament a proposal (HE 94/93)
which was part of an overall reform of the Penal Code and which contained
provisions relating to discrimination and to incitement to discrimination
against a population group. The present law, or chapter 13, article 5, of the
Penal Code from 1975, states:
"Anyone who spreads to the general public statements or other information
which contains threats, malicious falsehood or slander directed against a
population group which is of a particular race or a particular national
or ethnic origin or has a particular religion, shall be sentenced for
incitement to the discrimination of a population group to pay a fine or
to imprisonment for a maximum term of two years."
As amended in chapter 11, article 8, this provision would be as follows:
"Incitement against a population group.
"If a person spreads to the general public statements or other
information which contains threats, malicious falsehood or slander
directed against a national, racial, ethnic or religious group or a
comparable group, in order to cause violence, hostility or discrimination
against that group, and if the act is likely to produce the said
consequences, he or she shall be sentenced for incitement against a
population group to pay a fine or to imprisonment for a maximum term of
one year."
39. The motivation for the amendment is that the tightened provisions would
exclude from its scope of application "any statements which are, for example,
jocular, thoughtless, or emotional and which need not be taken seriously".
40. As regards the reduction of the maximum punishment from two years to a
year, the proposal states that during the present law punishment for
incitement has been given only in two or three cases, and in each case the
punishment was a fine.
41. Parliament continues its discussion of the revision. The Advisory Board
for Human Rights Affairs has made critical comments on the proposal.
Article 5
42. As regards legislation in force, reference is made to the previous
reports.
43. Parliament is debating a number of important legislative changes to bring
legislation in line with contemporary needs and to harmonize it with the
obligations Finland has under human rights treaties. In the context of racial
discrimination, the most central reform is a review of the provisions on
fundamental rights contained in the Constitution Act. A bill to this effect
was submitted to Parliament in December 1993 (HE 309/93) and is now being
debated.
CERD/C/240/Add.2
page 10
44. The bill proposes that a principle be incorporated in the Constitution
Act which unequivocally guarantees that, as a rule, the rights enshrined in
human rights treaties apply to all persons residing within the jurisdiction of
Finland whether or not they are Finnish citizens. This important
clarification on a constitutional level would be the foundation of all
legislation and of the development of administrative practice.
45. As revised in the bill, article 5 of the Constitution Act would state as
follows:
"Persons shall be equal before the law.
"No one shall be placed in a different position with respect to others on
the basis of sex, age, origin, language, religion, conviction, opinion,
health, disability or other reason relating to person. Children shall be
treated equally as individuals. The equality of sexes in activities in
society and in working life, especially as regards the conditions of
employment, shall be guaranteed by law."
46. The proposed text of article 9 reads:
"Everyone shall have the freedom of religion and conscience. The freedom
of religion and conscience shall include the right to profess and
practise a religion, the right to express a conviction, and the right to
be or not to be a member of a religious community. No one shall be
obliged to participate in the exercise of religion contrary to their
conscience."
47. The bill also contains a provision on equality regarding languages and on
cultural rights which is of central importance to minorities (art. 9):
"Finland’s national languages are Finnish and Swedish.
"Everyone’s right to use their own language, Finnish or Swedish, before
courts of justice and other authorities, and to have records of
proceedings in that language shall be guaranteed by law. Public
authority shall ensure that the cultural and societal needs of the
Finnish and Swedish speaking populations are on an equal footing.
"The Saamis as an indigenous people as well as the Romanies and other
groups have a right to maintain and develop their own language and
culture. The right of the Saamis to use the Saami language before the
authorities shall be provided for in law."
48. As, in addition, article 16 a of the bill contains a provision stating
that it is the duty of public authority to ensure implementation of
fundamental rights and human rights, it can be said that the above changes
would in crucial ways improve the safety nets in Finnish society to achieve
equality for all people and to lay a foundation for work against racism and
racial discrimination.
CERD/C/240/Add.2
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49. As part of a reform of the Penal Code it is proposed that chapter 12,
article 6, on discrimination practised in trade or business, services,
discharge of official duties, public entertainment or public meetings be
extended. It now applies to discrimination on the basis of race and national
or ethnic origin; in future it would also apply to discrimination on the basis
of colour, language, gender, age, family relations, sexual orientation,
health, views on society, political or professional activity or for comparable
reason. The new provision, chapter 11, article 9, would retain the earlier
scale of punishment: a fine or a maximum sentence of imprisonment of
six months. Parliament is still debating these amendments.
50. Crime statistics show that it is very seldom that charges are brought in
offences of discrimination (chap. 13, art. 6 of the Penal Code) and even more
seldom in offences relating to incitement to discrimination against a
population group (chap. 1, art. 5 of the Penal Code). Appended are statistics
showing that for offences of discrimination the figures seem to have started
to increase since 1989 (annex 5). Representatives of minority groups refer to
a number of obstacles, some practical and others associated with attitudes,
which make it difficult or impossible for a person who has suffered
discrimination to rely for the elimination of discrimination on criminal
charges brought by an individual.
The Saami people
51. On 5 November 1992 Finland signed the European Charter for Regional
or Minority Languages of the Council of Europe. It was ratified on
9 November 1994.
52. The following is in reply to the questions posed by the Committee
regarding the tenth report by Finland, and is based on information provided by
the Ministries of Justice, Education and the Interior.
53. A person is defined as a Saami on the basis of self-identification and
Saami origin. The more detailed provisions can be found in the Act on the Use
of the Saami Language before the Authorities of 1990.
54. The most important legislative changes are the Act on the Right to Use
the Saami Language before the Authorities, which entered into force on
1 January 1992, and an amendment to the Parliament Act which came into force
on 1 November 1991. The latter introduces a new principle in guaranteeing the
Saamis the right to be heard in their own language in parliamentary
proceedings, especially in cases concerning them. The purpose of the Act is
to guarantee this right. The underlying thinking is that Saamis should be
guaranteed linguistic rights as far as possible following the same principles
that under the 1922 Languages Act apply to the use of Finland’s national
languages, Finnish and Swedish. The practical implications of the Act
essentially depend on the resources for interpretation and translation. The
Saami Delegation has expressed the opinion that as yet not enough resources
have been provided for these purposes.
CERD/C/240/Add.2
page 12
55. The proposal to amend the Constitution Act, described earlier, would
establish cultural autonomy for the Saamis and extend constitutional
protection to the right to use the Saami language, and would thereby also
strengthen the foundation for the practical implementation of the rights.
56. While there have been some Saami candidates for Parliament, no Saami MPs
have been elected. In local administration, Saamis are employed mainly in the
Province of Lapland. To increase the opportunities for Saamis to exercise
their influence in Lapland, the Saami Delegation has the right to appoint one
member to the Provincial Advisory Board.
57. The 1991 amendment to the Parliament Act guarantees the Saamis the right
to be heard, especially on questions concerning them. However, at the time
when this right was guaranteed on the legislative level, a major
reorganization was under way to delegate decision-making powers in matters
relating to the division of competence and resources from central authorities
to the local level, i.e. to the municipalities where, with one exception, the
Saamis are in a small minority.
58. The Finnish Government is aware of the problems that may arise in the
practical implementation of the Convention, especially concerning the rights
of small minorities, as a result of these decentralization measures, unless a
sufficient consolidation of the human rights culture among local authorities
and political decision makers can be achieved. This poses new challenges for
the education and information activities referred to in article 7, especially
to local decision makers and authorities, to whom these responsibilities have
been delegated.
59. Legislation on reindeer husbandry and other means of livelihood
traditionally part of the Saami culture was revised in 1990. As a result,
reindeer owners’ associations were granted greater decision-making powers in
matters relating to reindeer husbandry within the Area for Reindeer Husbandry.
It should be remembered, however, that in Finland reindeer husbandry is not an
exclusive right of the Saamis.
60. Another act with relevance to the traditional Saami way of life is the
Wilderness Act of 1991. It is designed to preserve the wild nature of
12 wilderness areas to be designated in the Province of Lapland, to safeguard
the Saami culture and natural means of livelihood, and to further diversified
uses of nature.
61. As yet Finland has not become party to ILO Convention No. 169 concerning
Indigenous and Tribal Peoples in Independent Countries, mainly because land
ownership and land use in the Saami domicile area may require new legislation.
62. The Advisory Board for Saami Affairs has proposed that the issue of land
ownership be settled by introducing a type of collective land ownership. The
present legislation and practice by authorities is based on the thinking that
the main part of land in the Saami domicile area is considered the property of
the State. The situation has led to divisions between the needs of reindeer
husbandry and those of competing forms of land use, such as logging.
CERD/C/240/Add.2
page 13
63. A new cause of concern for the Saamis is the interest in the bedrock in
the Saami domicile areas shown by foreign and multinational companies after
the conclusion of the Treaty on the European Economic Area.
64. Since the previous report, considerable changes have taken place in the
position and teaching of the Saami language which aim at increasing the
opportunities for Saamis to be taught in their own language. Since 1991 it
has been possible to set up school districts for Saami speakers. This reform
is thought to require a considerable increase in resources and has been a
negative development in some cases.
65. After an amendment in 1991 to the Comprehensive School Act, schools in
the Saami domicile area have been able to use Saami as a language of
instruction. Outside the domicile area Saami can be taught as a foreign
language with the resources provided under legislation. The respective
legislative changes have also been made regarding upper secondary school. In
practice, however, the establishment of classes has been prevented by a lack
of teachers, materials and teaching hours. In teaching, the position of the
Saami language as a mother tongue remains parallel to that of the Finnish
language: as a mother tongue, Saami may be taught together with Finnish but
not alone. In matriculation (school-leaving) examinations, a person who has
studied Saami as a mother tongue may take the examination in the Saami
language.
66. Possibilities to study Saami as a foreign language have been increased,
thereby giving Finnish-speaking pupils a better opportunity to study Saami.
67. In lower-level comprehensive schools a total of 152 pupils studied Saami
as a mother tongue in 1990/91; in 1992/93 the figure was 128. The respective
figures for the pupils studying Saami as an optional subject were 171 and 142.
In upper-level comprehensive schools in the same periods 95 and 135 pupils
studied Saami. For upper-secondary schools the figures were 41 and 52. In
adult education in the past few years - both in Lapland and other parts of
Finland - some 50 to 80 students have studied the Saami language and culture.
Since 1993 the University of Helsinki has offered a course in Saami language
and culture.
68. The National Board of General Education has pursued the efforts cited in
the tenth report to develop syllabuses. In 1991 pedagogical instructions were
finalized for Saami language teaching and tuition in Saami.
69. The International Year of the World’s Indigenous People 1993 focused
attention on the position and culture of the Saamis as part of the activities
to increase awareness of indigenous peoples. A committee set up to prepare
for the Year recorded a host of events to celebrate indigenous peoples.
Representatives of the Saami people attended international meetings organized
to highlight the theme, the special plenary session of the United Nations
General Assembly, and the World Conference on Human Rights. The committee
gave a final report in spring 1994, making a number of proposals to improve
the position of the Saamis.
CERD/C/240/Add.2
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The Romany people
70. In 1989 the Council of State strengthened the administrative framework
for dealing with questions relating to the position of the Romanies by
adopting a decision whereby the Advisory Board for Romany Affairs, operating
in connection with the Ministry of Social Affairs and Health, was made a
permanent organ with the tasks of monitoring the living conditions of
Romanies, making any proposals it deems necessary, and developing a minority
policy in its special field (see paras. 15-16 above).
71. Concerning the education of the Romany population, the Ministry of
Education has stated that the objective is to achieve equality with the
majority population. The Advisory Board for Romany Affairs has drawn
attention to the fact that the Romany language does not feature in the
curricula but is treated rather like an extracurricular activity and is taught
outside official school hours. The Ministry of Education states that Romany
language classes have been started in several areas on an experimental basis.
Some 30 teachers of Romany language and culture have been trained, and there
is an intention to train more. The teachers give lessons in schools and work
as consultants and intermediaries between the Romanies and the majority
population.
72. Romany children have 2 lessons of Romany language a week in some 10
areas. Romany language is also taught in adult education classes which are
part of employment services and in courses provided by civic institutes.
In 1992 the National Board of General Education confirmed the criteria for
the teaching of the Romany language. An active participation of the Romany
population has made it possible to establish a plan for language teaching and
to put the plan into effect. Teaching is, however, hampered by a lack of
teaching materials.
73. To raise the low standard of basic education of the adult Romany
population, a small appropriation has been made in the State budget for
classes in reading, writing and arithmetic in civic and workers institutes and
in prisons. In recent years adult education has expanded to new fields, such
as the training of classroom teaching assistants and tuition in working life
skills, social welfare, information and the arts. Progress has been made in
the production of teaching materials. A Romany-Finnish-English dictionary was
published in 1994.
74. A considerable number of Romany children still leave comprehensive school
without completing it, and of those who do, very few pursue further studies.
As a result, Romanies have difficulty in entering the labour market.
75. In 1989, a booklet on the opportunities of Romany children in Finland and
Sweden was published jointly by the two countries. A 1991 report by the
Working Group for Day Care established by the Ministry of Social Affairs and
Health (Romanilapsen maailma, "The world of a Romany child") gives important
background information, drawing attention to the linguistic and cultural needs
of Romany children in day care.
CERD/C/240/Add.2
page 15
76. In the summer of 1991 an international summer school was organized in
Finland where participants from Finland and other countries were taught such
subjects as the Romany and Hindi languages and the history and culture of the
Romany people. In the summer of 1992 the parallel activities by NGOs during
the 1992 Helsinki CSCE meeting included an international seminar on the
position of the Romany people. Romany representatives on the Advisory Board
for Romany Affairs have attended a number of international meetings. Every
year Finland and Sweden have a wide-ranging meeting on cooperation, attended
by representatives of authorities and the Romany people.
77. Research, information, and education and training projects are envisaged
or have been carried out on both the local and regional levels. The Romany
population has made an active contribution to these projects.
78. The Advisory Board has drawn attention to the fact that since the
early 1970s, no overall investigation has been made into the living conditions
of the Romany population. This lack of thorough basic research makes it
difficult to intervene in serious problems. The latest survey, from 1985,
showed that 20 per cent of the Romanies lived in very poor housing conditions
or had no housing, while in the entire population the proportion of those with
inadequate housing was 13.5 per cent. Although some municipalities have taken
steps to improve the living conditions of Romanies, the Advisory Board
believes that, in the country as a whole, the housing conditions of Romanies
are at the 1985 level.
79. Romanies continue to face difficulties in finding work, despite the
prohibition against discrimination in employment included in the law in 1987.
The customs important to the group identity of the Romanies receive little
understanding; not even the authorities take them into consideration every
time they make decisions. Educational standards which are lower than those
for the rest of the population make it difficult for Romanies to get
employment.
80. A recent limited survey on racial prejudice revealed negative attitudes
towards the Romanies among schoolchildren. Attention has been focused on
inadequate education in schools about minorities, Romanies in particular.
A need for education about racial discrimination and minorities on a broader
basis and in different subjects has become obvious.
81. Relying on the experiences of the Romanies, the Advisory Board for Romany
Affairs has criticized the high threshold of legal proceedings undertaken by
individuals in discrimination cases. As the Board has noted, very few
instances of discrimination have led to court cases, and of those that have,
the court has not ruled on aspects constituting incitement to discrimination
but rather on access by Romanies to restaurants.
82. On 23 September 1994 the Government submitted a bill to Parliament on
amendments to a number of laws on education. This bill contains provisions
both to safeguard the right of immigrant children to receive education
preparing them for the comprehensive school and to strengthen the right of
Saami-speaking children and children with a foreign language as a mother
tongue to learn their own language at school.
CERD/C/240/Add.2
page 16
83. On 28 September 1994, the Government submitted a bill to Parliament for a
new, more comprehensive Skolt Act to replace the earlier Act, which mainly
focuses on support for housing. The purpose of the new Act is to promote the
preservation of the Skolt culture through support for their communities and
ways of life. The Act contains provisions to reinforce the position of the
traditional village meetings, Skolt councils, and Skolt ways of taking care of
various matters.
Article 6
84. Very few cases have been heard in court in which criminal charges
have been brought under articles in the Penal Code on incitement against a
population group (chap. 13, art. 5) and on discrimination (chap. 13, art. 6).
Charges of discrimination, however, seem to be on the increase. Statistics
for 1977 to 1991 are appended (annex 5).
85. In his reports the Ombudsperson for Aliens refers to cases of suspected
discrimination which he helped to clarify. Especially for foreigners, but
also for Finnish minorities, the threshold of legal action in cases of
discrimination is relatively high.
86. In recent years acts of xenophobia have increased. Violence has been
used to desecrate cemeteries. Jews have received threats. Finnish police
authorities believe, however, that these are isolated instances. This is
evident, for example, from the reply of the Ministry of the Interior to an
inquiry made from the floor in Parliament. The Ministry said that both the
Ministry and the police authorities responsible to it continuously monitor
national and international developments relating to unrest directed against
aliens. The reply further stated that it was not very likely that racial
unrest would spread to Finland. It said that acts of violence and vandalism
against aliens in Finland were sporadic and unorganized, committed by groups
under the influence of alcohol or acting on a sudden impulse. According to
the reply, these acts were committed out of envy of refugees’ conditions,
jealousy, or for similar minor reasons.
87. In its report in the spring of 1994, the Advisory Board for Refugee and
Migrant Affairs proposed the monitoring and compilation of statistics on
racist and xenophobic activities, for example by the Criminological Research
Institute operating in conjunction with the Ministry of Justice.
88. The idea of establishing the post of an Ombudsperson against Ethnic
Discrimination, modelled on the Swedish example, has been discussed in
Finland. A suggestion to this effect has been made by the Advisory Board for
Romany Affairs and others. As yet the discussion has not led to concrete
proposals. Authorities to whom victims of discrimination can turn to seek
help include the Parliamentary Ombudsperson and the Ombudsperson for Aliens.
89. Concerning legal cases, see annex 6.
CERD/C/240/Add.2
page 17
Article 7
Education and teaching
90. The Office for Refugee Affairs in the Ministry of Social Affairs and
Health now publishes an annual catalogue of publications about refugees and
foreigners. This index is of use to teachers in schools and in adult
education. There has been a considerable increase in materials in recent
years; not only authorities but several NGOs and the Lutheran Church have
produced material. Racial discrimination has been a subject of discussion
in many seminars for professionals and events for the general public and
the media.
91. Human rights education and education for international understanding, for
which the approach of mainstreaming is used in the Finnish school system, are
in the new situation increasingly important in addressing and preventing
problems of racism and racial discrimination, xenophobia and intolerance.
The work is based on the input of active teachers and materials produced by
NGOs and others. The approach used in promoting education relating to
international understanding, human rights and the environment is to emphasize
that in encountering what is different or unfamiliar, multiculturalism should
be seen as an asset and that positive attitudes should be adopted.
92. An important step in informing the population about the rights of migrant
children was taken with the appearance in 1992 of a manual on the education of
migrant children. A new edition came out in 1994. The manual also has wider
uses as an information package for encountering different cultures.
93. The International Year of the World’s Indigenous People, 1993 brought the
subject to teaching and education. The activities organized as part of the
celebrations of the Year undoubtedly provided teachers with new impulses.
An information sheet was published for teachers by the Finnish United Nations
Association which focused on the World Conference on Human Rights, including
the problems of indigenous peoples and minorities.
94. Finland’s reports on the implementation of human rights treaties have
been published in Finnish and circulated widely, in part to give teachers and
other professionals basic material for use in human rights education. The
fact that minorities and foreigners are made visible in these reports, which
are meant for general distribution, promotes open discussion of problems and
education for tolerance.
95. In adopting the first periodic report on the implementation of the
Convention on the Rights of the Child in the spring of 1994, the Government of
Finland made a statement in which it stressed that information and discussion
of the rights of the child needed to be increased, and to promote such
activities the Government would appropriate funds for human rights education
and information. A focal point for these activities in 1995, proclaimed by
the United Nations and the Council of Europe as the Year for Tolerance, will
be work against racism, xenophobia, anti-semitism and intolerance.
CERD/C/240/Add.2
page 18
Culture
96. Culture has played a central role in the work to improve the position of
the Saamis and Romanies in particular, as well as the position of foreigners.
Some of the strategies utilized by official bodies and NGOs are to draw
attention to the enriching aspects of differences between people and cultures
and to offer experiences of immediate contact to remove prejudice. A proof of
the benefits of this approach is the foundation of the Romany Educational and
Cultural Development Unit.
97. A proposal for cultural autonomy made by the Working Group for Saami
Affairs in its report in February 1994 may constitute an important cultural
development for the Saami population.
98. The Ministry of Education has since 1992 appropriated funds for the
support of Saami culture and other minority cultures. Since 1994 separate
appropriations have been made for Saami culture and for other minority
cultures.
99. In Finland the campaign for tolerance initiated by the Council of Europe
is intended to be a collaboration also involving artists. The growing use of
the arts and provision of emotional experiences in teaching and education mark
a positive development which reinforces the use of factual materials
emphasizing multicultural values.
100. It is increasingly felt that the integration of the cultural dimension to
education for international understanding and human rights education is a
central issue. This is reflected in the activities of such bodies as the
Finnish UNESCO Committee and the Ministry for Foreign Affairs. As a
contribution to this type of international cooperation, Finland hosted in
May 1993 a conference on the relationship between human rights and cultural
policies. The conference, which was organized in cooperation with the Council
of Europe, Circle and Rights and Humanity, unambiguously stressed the kind of
cultural activities that are required to fulfil the purposes of the
Convention.
Information
101. In recent years there has been a considerable increase in information to
support the objectives of the Convention. A major reason is the active
contribution of the Information Unit established in the Ministry of Social
Affairs and Health a few years ago. For the first time in 1991 the funds made
available for information exceeded 1 million Finnish marks. In 1993, they
amounted to 1.5 million marks; in addition, another 1 million marks were used
for campaigning. In the 1994 budget a separate appropriation of half a
million was made for education for tolerance.
102. The information activities by the Unit include publication of a
newsletter ("Monitori") and of a variety of other materials as well as an
annual compendium of available materials.
CERD/C/240/Add.2
page 19
103. The Ministry of Social Affairs and Health has produced a brochure for
"A Foreign Woman in Finland" (2nd edition in 1993 in Finnish, English,
Estonian and Russian), which gives practical information for foreign women
and Finnish authorities.
104. In 1993 the National Board of General Education printed a booklet on
Romanies and health-care services ("Romani ja terveyspalvelut - opas
terveydenhuollon ammattilaisille") for health-care professionals. The
Ministry of Social Affairs and Health produced a brochure ("Finland’s Romani
People - E Rhoma and i Finlandia") in Finnish and English. The Romany
Educational and Cultural Development Unit has since 1984 published a
newsletter called "Latso Diives".
105. The International Year of the World’s Indigenous People increased
information about the Saamis, and a growing number of people are displaying a
positive interest in the Saami culture. The Nordic Council of Ministers gives
financial support to the information activities.
106. NGOs and the Lutheran Church increasingly publish material for education
for tolerance and understanding cultural and other differences.
-----
Annex 795
Consideration of Reports Submitted by States Parties Under Article 9 of the Convention,
Concluding Observations of the Committee on the Elimination of Racial Discrimination,
Russian Federation, CERD/C/304/Add.5 (28 March 1996)
UNITED NATIONS CER
International Convention
on the Elimination
of all Forms of
Racial Discrimination
Distr.
GENERAL
CERD/C/304/Add.5
28 March 1996
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Forty-eighth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination
Russian Federation
1. The Committee considered the twelfth and thirteenth periodic reports of
the Russian Federation (CERD/C/263/Add.9) at its 1133rd and 1134th meetings
(see CERD/C/SR.1133-1134), held on 28 and 29 February 1996, and at its
1150th meeting, held on 12 March 1996, adopted the following concluding
observations.
A. Introduction
2. The Committee notes with appreciation the State Party’s willingness to
continue the dialogue with the Committee by sending a high-level delegation
to present the reports, which indicates the importance attached by the
Government of the Russian Federation to its obligations under the Convention.
However, the Committee regrets that the reports were not submitted on time,
that they did not fully comply with the reporting guidelines, did not contain
adequate information on the implementation of the Convention in the Republics
and that, in particular, the information on Chechnya requested at the
forty-sixth session of the Committee was not included, but only supplied
orally by the delegation.
GE.96-15768 (E)
CERD/C/304/Add.5
page 2
B. Positive aspects
3. The establishment in 1993 of a special commission on human rights is
welcomed. It is also noted with satisfaction that a parliamentary group has
been mandated to investigate human rights and international humanitarian law
violations in the Chechen conflict. In addition, the recent establishment of
a special authority to implement a State programme on social and economic life
in the Northern Territories is appreciated.
4. The entry of the Russian Federation into the Council of Europe, which
became official in February 1996, is noted. It is hoped that the Russian
Federation will soon ratify the Council of Europe’s Convention for the
Protection of Human Rights and Fundamental Freedoms and will accept its
procedure for receiving individual petitions. The recent drafting of two
regional human rights conventions, including one on the rights of minorities,
in the framework of the Commonwealth of Independent States is also a positive
initiative.
C. Factors and difficulties impeding the implementation of the Convention
5. The difficulties facing the Russian Federation in the present period of
transition and in a climate of social change and deep economic crisis are
taken into account. It is also noted that the Russian Federation is a large
multi-ethnic and multicultural society. The factual situation of minorities
has also to be taken into account; some of them possess their own statehood
and are represented by subjects of the Federation whereas others are dispersed
all over the country. In respect of members of the latter groups the full
implementation of the Convention may require particular efforts. Finally, it
is understood that the establishment and practical application of a new
democratic and non-discriminatory political, economic and social framework is
a difficult and lengthy process.
D. Principal subjects of concern
6. Concern is raised about the current shortcomings in the general national
legal framework for protecting all persons against discriminatory practices.
Article 19 of the Constitution of the Russian Federation, which provides for
equality of rights regardless of "race, nationality, language, origin or other
circumstances", is not broad enough to be regarded as a full implementation of
the prohibition of racial discrimination required by the Convention. It is
further noted with concern that the legislation necessary for the
implementation of article 19 of the Constitution and other constitutional
provisions designed to protect the rights of minorities have not yet been
fully adopted or effectively implemented.
7. Several minority and indigenous groups have no access to education in
their own language. When they deal with administrative and judicial matters,
they are frequently precluded from using their own language.
CERD/C/304/Add.5
page 3
8. The absence of effective measures for the protection and preservation of
the traditional ways of life and the right to land use of the people of the
Northern Territories is also a cause for concern, although the need for
improvement of their economic, social and cultural situation has been
recognized.
9. The concrete implementation of the principles and provisions of the
Convention remains weak, especially at the regional and local levels. Concern
is particularly raised regarding the application of articles 2 and 4 of the
Convention.
10. The report contains very limited information on the right to security of
person (art. 5 (b) of the Convention), the right to freedom of movement
(art. 5 (d) (i)) and non-discrimination with regard to the enjoyment of
economic, social and cultural rights, referred to in article 5 (e) of the
Convention.
11. The increase in racist positions associated with nationalist movements
such as the National Republican Party is of grave concern. Equally, the
increase in racist attitudes among the population or of local authorities
directed against Caucasians, especially Chechens, also gives cause for
concern, as do indications of anti-semitism among part of the population.
12. The use of excessive and disproportionate force in suppressing the
attempted secession in Chechnya, resulting in unnecessary civilian casualties,
is a matter of very grave concern. The reports of arbitrary arrests,
ill-treatment of detainees, excessive destruction of civilian property and
pillage in Chechnya also give rise to concern.
13. In particular the reports concerning the situation in the so-called
filtration camps give rise to grave concern. It is to be deplored that
representatives of humanitarian organizations, such as the International
Committee of the Red Cross, have not been permitted to visit such camps.
14. The situation in Ingushetia and North Ossetia is a further matter of deep
concern. Large numbers of Ingush exiles are being denied by the North
Ossetian authorities the right to return freely to their regions of origin, in
particular the Prigoradnyi district, in spite of the Law on Rehabilitation of
Repressed Peoples. The Ingush population has also suffered directly and
indirectly from the Chechen conflict
E. Suggestions and recommendations
15. The Committee strongly recommends that the National Parliament urgently
complete and adopt all announced acts and laws concerning human rights,
especially the draft law on national and cultural autonomy. The laws on the
use of minority languages should be completed at the various legislative
levels and fully implemented. The Committee also suggests that the State
Party consider ratifying ILO Convention No. 169.
16. The State Party should take all appropriate measures to ensure the
promotion of minority and indigenous people’s languages. The Committee
recommends that education programmes be provided in the appropriate languages.
CERD/C/304/Add.5
page 4
17. The Committee recommends that special attention be paid to the minority
and indigenous groups living in the Northern Territories by taking appropriate
and effective measures to promote and protect their rights, especially the
rights to use and exploit the land where they are living and to live in their
own cultural environment.
18. The Committee recommends that, where appropriate, the State Party take
special and concrete measures to ensure the adequate development and
protection of less developed groups within the Federation, in accordance with
article 2, paragraph 2, of the Convention.
19. The Committee strongly recommends that the Government take concrete and
appropriate measures to outlaw and combat all organizations and political
groups and their respective activities that promote racist ideas or
objectives, as referred to in article 4 of the Convention.
20. The Committee also strongly recommends that the State Party carry out the
decision of the Constitutional Court to abolish the permit system effectively.
21. The Committee recommends that the State Party enhance effectively
protection against any acts of racial discrimination through the competent
national courts, in accordance with article 6 of the Convention, by
strengthening the court system, the independence of the judiciary and the
confidence of the population therein. The Committee further recommends the
training of judges, lawyers and magistrates in human rights. This type of
training should also be provided to law enforcement personnel and the
military, in line with General Recommendation No. XIII of the Committee.
22. The Committee strongly recommends that the State Party urgently take all
measures to restore peace in Chechnya and to ensure full protection of human
rights in the region. It further strongly recommends that the Government take
all steps to ensure the full respect of fundamental human rights in the
region, without discrimination. The Committee reaffirms that persons
responsible for massive, gross and systematic human rights violations, and
gross violations of international humanitarian law, should be held responsible
and prosecuted.
23. The Committee recommends that the State Party guarantee the rights of all
victims, especially refugees, of the conflict in Ingushetia and North Ossetia
and provide in its next report information on the human rights situation in
Chechnya, Ingushetia and North Ossetia.
24. The Committee invites the State Party to provide, in its next report,
further information on the breakdown by percentage of all ethnic groups of the
population.
25. More information is also requested in the next report on the number of
complaints and court cases related to racial discrimination that have been
registered recently by the State Party, on the respective decisions and
judgments taken, and on the implementation of article 7 of the Convention.
CERD/C/304/Add.5
page 5
26. The Committee recommends that the State Party ratify the amendments to
article 8, paragraph 6, of the Convention, adopted at the 14th meeting of
States Parties.
27. The Committee suggests that the State Party ensure the dissemination of
its periodic report and of the concluding observations adopted by the
Committee. The accepted procedure of individual communications under
article 14 of the Convention should be made widely known in the country.
28. The Committee recommends that the State Party’s next periodic report, due
on 5 March 1996, be a comprehensive one and that the State Party address all
the concerns expressed in these observations.
- - - - -
Annex 796
CERD Committee, General Recommendation No. XXIX on Article 1, Paragraph 1, of the
Convention (Descent) Preamble, contained in U.N. Doc.CCPR/C/21/Rev.1/Add.5 (2002)
CERD General Recommendation XXIX on Article 1, Paragraph 1, of the
Convention (Descent)
Adopted at the Sixty-first Session of the Committee on the Elimination of Racial
Discrimination, on 1 November 2002
The Committee on the Elimination of Racial Discrimination,
Recalling the terms of the Universal Declaration of Human Rights according
to which all human beings are born free and equal in dignity and rights and are
entitled to the rights and freedoms therein without distinction of any kind, including
race, colour, sex, language, religion, social origin, birth or other status,
Recalling also the terms of the Vienna Declaration and Programme of Action
of the World Conference on Human Rights according to which it is the duty of States,
regardless of political, economic and cultural system, to promote and protect all
human rights and fundamental freedoms,
Reaffirming its general recommendation XXVIII in which the Committee
expresses wholehearted support for the Durban Declaration and Programme of Action
of the World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance,
Reaffirming also the condemnation of discrimination against persons of Asian
and African descent and indigenous and other forms of descent in the Durban
Declaration and Programme of Action,
Basing its action on the provisions of the International Convention on the
Elimination of All Forms of Racial Discrimination which seeks to eliminate
discrimination based on race, colour, descent, or national or ethnic origin,
Confirming the consistent view of the Committee that the term “descent” in
article 1, paragraph 1, the Convention does not solely refer to “race” and has a
meaning and application which complement the other prohibited grounds of
discrimination,
Strongly reaffirming that discrimination based on “descent” includes
discrimination against members of communities based on forms of social stratification
such as caste and analogous systems of inherited status which nullify or impair their
equal enjoyment of human rights,
Noting that the existence of such discrimination has become evident from the
Committee’s examination of reports of a number of States parties to the Convention,
Having organized a thematic discussion on descent-based discrimination and
received the contributions of members of the Committee, as well as contributions
from some Governments and members of other United Nations bodies, notably
experts of the Sub-Commission for the Promotion and Protection of Human Rights,
Having received contributions from a great number of concerned nongovernmental
organizations and individuals, orally and through written information,
providing the Committee with further evidence of the extent and persistence of
descent-based discrimination in different regions of the world,
Concluding that fresh efforts need to be made as well as existing efforts
intensified at the level of domestic law and practice to eliminate the scourge of
descent-based discrimination and empower communities affected by it,
Commending the efforts of those States that have taken measures to eliminate
descent-based discrimination and remedy its consequences,
Strongly encouraging those affected States that have yet to recognize and
address this phenomenon to take steps to do so,
Recalling the positive spirit in which the dialogues between the Committee
and Governments have been conducted on the question of descent-based
discrimination and anticipating further such constructive dialogues,
Attaching the highest importance to its ongoing work in combating all forms
of descent-based discrimination,
Strongly condemning descent-based discrimination, such as discrimination on
the basis of caste and analogous systems of inherited status, as a violation of the
Convention,
Recommends that the States parties, as appropriate for their particular
circumstances, adopt some or all of the following measures:
1. Measures of a general nature
(a) Steps to identify those descent-based communities under their
jurisdiction who suffer from discrimination, especially on the basis of caste and
analogous systems of inherited status, and whose existence may be recognized on the
basis of various factors including some or all of the following: inability or restricted
ability to alter inherited status; socially enforced restrictions on marriage outside the
community; private and public segregation, including in housing and education,
access to public spaces, places of worship and public sources of food and water;
limitation of freedom to renounce inherited occupations or degrading or hazardous
work; subjection to debt bondage; subjection to dehumanizing discourses referring to
pollution or untouchability; and generalized lack of respect for their human dignity
and equality;
(b) Consider the incorporation of an explicit prohibition of descent-based
discrimination in the national constitution;
(c) Review and enact or amend legislation in order to outlaw all forms of
discrimination based on descent in accordance with the Convention;
(d) Resolutely implement legislation and other measures already in force;
(e) Formulate and put into action a comprehensive national strategy with
the participation of members of affected communities, including special measures in
accordance with articles 1 and 2 of the Convention, in order to eliminate
discrimination against members of descent-based groups;
(f) Adopt special measures in favour of descent-based groups and
communities in order to ensure their enjoyment of human rights and fundamental
freedoms, in particular concerning access to public functions, employment and
education;
(g) Establish statutory mechanisms, through the strengthening of existing
institutions or the creation of specialized institutions, to promote respect for the equal
human rights of members of descent-based communities;
(h) Educate the general public on the importance of affirmative action
programmes to address the situation of victims of descent-based discrimination;
(i) Encourage dialogue between members of descent-based communities
and members of other social groups;
(j) Conduct periodic surveys on the reality of descent-based
discrimination and provide disaggregated information in their reports to the
Committee on the geographical distribution and economic and social conditions of
descent-based communities, including a gender perspective;
2. Multiple discrimination against women members
of descent-based communities
(k) Take into account, in all programmes and projects planned and
implemented and in measures adopted, the situation of women members of the
communities, as victims of multiple discrimination, sexual exploitation and forced
prostitution;
(l) Take all measures necessary in order to eliminate multiple
discrimination including descent-based discrimination against women, particularly in
the areas of personal security, employment and education;
(m) Provide disaggregated data for the situation of women affected by
descent-based discrimination;
3. Segregation
(n) Monitor and report on trends which give rise to the segregation of
descent-based communities and work for the eradication of the negative consequences
resulting from such segregation;
(o) Undertake to prevent, prohibit and eliminate practices of segregation
directed against members of descent-based communities including in housing,
education and employment;
(p) Secure for everyone the right of access on an equal and nondiscriminatory
basis to any place or service intended for use by the general public;
(q) Take steps to promote mixed communities in which members of
affected communities are integrated with other elements of society and ensure that
services to such settlements are accessible on an equal basis for all;
4. Dissemination of hate speech including through
the mass media and the Internet
(r) Take measures against any dissemination of ideas of caste superiority
and inferiority or which attempt to justify violence, hatred or discrimination against
descent-based communities;
(s) Take strict measures against any incitement to discrimination or
violence against the communities, including through the Internet;
(t) Take measures to raise awareness among media professionals of the
nature and incidence of descent-based discrimination;
5. Administration of justice
(u) Take the necessary steps to secure equal access to the justice system
for all members of descent-based communities, including by providing legal aid,
facilitating of group claims and encouraging non-governmental organizations to
defend community rights;
(v) Ensure, where relevant, that judicial decisions and official actions take
the prohibition of descent-based discrimination fully into account;
(w) Ensure the prosecution of persons who commit crimes against
members of descent-based communities and the provision of adequate compensation
for the victims of such crimes;
(x) Encourage the recruitment of members of descent-based communities
into the police and other law enforcement agencies;
(y) Organize training programmes for public officials and law enforcement
agencies with a view to preventing injustices based on prejudice against descent-based
communities;
(z) Encourage and facilitate constructive dialogue between the police and
other law enforcement agencies and members of the communities;
6. Civil and political rights
(aa) Ensure that authorities at all levels in the country concerned involve
members of descent-based communities in decisions which affect them;
(bb) Take special and concrete measures to guarantee to members of
descent-based communities the right to participate in elections, to vote and stand for
election on the basis of equal and universal suffrage, and to have due representation in
Government and legislative bodies;
(cc) Promote awareness among members of the communities of the
importance of their active participation in public and political life, and eliminate
obstacles to such participation;
(dd) Organize training programmes to improve the political policy-making
and public administration skills of public officials and political representatives who
belong to descent-based communities;
(ee) Take steps to identify areas prone to descent-based violence in order to
prevent the recurrence of such violence;
(ff) Take resolute measures to secure rights of marriage for members of
descent-based communities who wish to marry outside the community;
7. Economic and social rights
(gg) Elaborate, adopt and implement plans and programmes of economic
and social development on an equal and non-discriminatory basis;
(hh) Take substantial and effective measures to eradicate poverty among
descent-based communities and combat their social exclusion or marginalization;
(ii) Work with intergovernmental organizations, including international
financial institutions, to ensure that development or assistance projects which they
support take into account the economic and social situation of members of descentbased
communities;
(jj) Take special measures to promote the employment of members of
affected communities in the public and private sectors;
(kk) Develop or refine legislation and practice specifically prohibiting all
discriminatory practices based on descent in employment and the labour market;
(ll) Take measures against public bodies, private companies and other
associations that investigate the descent background of applicants for employment;
(mm) Take measures against discriminatory practices of local authorities or
private owners with regard to residence and access to adequate housing for members
of affected communities;
(nn) Ensure equal access to health care and social security services for
members of descent-based communities;
(oo) Involve affected communities in designing and implementing health
programmes and projects;
(pp) Take measures to address the special vulnerability of children of
descent-based communities to exploitative child labour;
(qq) Take resolute measures to eliminate debt bondage and degrading
conditions of labour associated with descent-based discrimination;
8. Right to education
(rr) Ensure that public and private education systems include children of all
communities and do not exclude any children on the basis of descent;
(ss) Reduce school drop-out rates for children of all communities, in
particular for children of affected communities, with special attention to the situation
of girls;
(tt) Combat discrimination by public or private bodies and any harassment
of students who are members of descent-based communities;
(uu) Take necessary measures in cooperation with civil society to educate
the population as a whole in a spirit of non-discrimination and respect for the
communities subject to descent-based discrimination;
(vv) Review all language in textbooks which conveys stereotyped or
demeaning images, references, names or opinions concerning descent-based
communities and replace it by images, references, names and opinions which convey
the message of the inherent dignity of all human beings and their equality of human
rights.
Annex 797
Hagan v. Australia, Communication No. 26/2002, CERD/C/62/D/26/2002 (14 April 2003)
Distr.
RESTRICTED*
CERD/C/62/D/26/2002
14 April 2003
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Sixty-second session
3-21 March 2003
OPINION
Communication No. 26/2002
Submitted by: Stephen Hagan (represented by counsel)
Alleged victim: The petitioner
State Party: Australia
Date of the communication: 31 July 2002
Date of the present decision: 20 March 2003
[ANNEX]
* Made public by decision of the Committee on the Elimination of Racial Discrimination.
GE.03-41199 (E) 050503
CERD/C/62/D/26/2002
page 2
Annex
OPINION OF THE COMMITTEE ON THE ELIMINATION OF RACIAL
DISCRIMINATION UNDER ARTICLE 14 OF THE INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION
sixty-second session
concerning
Communication No. 26/2002
Submitted by: Stephen Hagan (represented by counsel)
Alleged victim: The petitioner
State party: Australia
Date of the communication: 31 July 2002
The Committee on the Elimination of Racial Discrimination, established under article 8
of the International Convention on the Elimination of All Forms of Racial Discrimination,
Meeting on 20 March 2003,
Adopts the following:
Opinion
1. The petitioner, Stephen Hagan, is an Australian national, born in 1960, with origins in the
Kooma and Kullilli Tribes of South Western Queensland. He alleges to be a victim of a
violation by Australia of articles 2, in particular, paragraph 1 (c); 4; 5, paragraphs d (i) and (ix),
e (vi) and f; 6 and 7 of the International Convention on the Elimination of All Forms of Racial
Discrimination. He is represented by counsel.
The facts as presented
2.1 In 1960, the grandstand of an important sporting ground in Toowoomba, Queensland,
where the author lives, was named the “E.S. ‘Nigger’ Brown Stand”, in honour of a well-known
sporting and civic personality, Mr. E.S. Brown. The word “nigger” (“the offending term”)
appears on a large sign on the stand. Mr. Brown, who was also a member of the body overseeing
the sports ground and who died in 1972, was of white Anglo-Saxon extraction who acquired the
offending term as his nickname, either “because of his fair skin and blond hair or because he had
a penchant for using ‘Nigger Brown’ shoe polish”. The offending term is also repeated orally in
public announcements relating to facilities at the ground and in match commentaries.
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2.2 On 23 June 1999, the petitioner requested the trustees of the sports ground to remove the
offending term, which he found objectionable and offensive. After considering the views of
numerous members of the community who had no objection to the use of the offending term on
the stand, the trustees advised the petitioner by letter of 10 July 1999 that no further action would
be taken. On 29 July 1999, a public meeting chaired by a prominent member of the local
indigenous community, and attended by a cross-section of the local Aboriginal community, the
mayor and the chair of the sports ground trust, passed a resolution “That the name ‘E.S. Nigger
Brown’ remain on the stand in honour of a great sportsman and that in the interest of the spirit of
reconciliation, racially derogative or offensive terms will not be used or displayed in future”.1
2.3 On 11 May 2000, the petitioner brought a federal court action, on the basis that the
trustees’ failure to remove the offending term violated sections 9 (1)2 and 18 C (1)3 of the federal
Racial Discrimination Act 1975 (“the Act”). He sought removal of the offending term from the
grandstand and an apology from the trustees. On 10 November 2000, the Federal Court
dismissed the petitioner’s application. The Court considered that the petitioner had not
demonstrated that the decision was an act “reasonably likely in all the circumstances to offend,
insult, humiliate or intimidate an indigenous Australian or indigenous Australians generally”.
Nor was the decision an act, in the words of the statutory language, “done because of the race ...
of the people of the group”. Finally, the Court considered that the Act did not protect the
“personal sensitivities of individuals”, as it considered to be the case here, but rather “render[ed]
acts against individuals unlawful only where those acts involve treating the individual differently
and less advantageously than other persons who do not share the membership of the
complainant’s racial, national or ethnic group”. On 23 February 2002, the Full Court of the
Federal Court rejected the petitioner’s appeal. On 19 March 2002, the High Court of Australia
refused the petitioner’s application for special leave to appeal.
2.4 The petitioner also pursued a complaint to the Human Rights and Equal Opportunities
Commission (HREOC), which could not be pursued further because of a subsequent restriction
by law of the Commission’s jurisdiction to investigate certain individual complaints.
The complaint
3.1 The petitioner contends that the use of the offending term on the grandstand and orally in
connection therewith violates articles 2, in particular, paragraph 1 (c); 4; 5, paragraphs d (i)
and (ix), e (vi) and f; 6 and 7 of the Convention. He contends that the term is “the most racially
offensive, or one of the most racially offensive, words in the English language”. Accordingly, he
and his family are offended by its use at the ground and are unable to attend functions at what is
the area’s most important football venue. He argues that whatever may have been the position
in 1960, contemporary display and use of the offending term is “extremely offensive, especially
to the Aboriginal people, and falls within the definition of racial discrimination in Article 1” of
the Convention.
3.2 He clarifies that he has no objection to honouring Mr. Brown or naming a football stand
in his honour, but that at the time the nickname “Nigger” was applied to Mr. Brown,
non-Aboriginal Australians “either were not aware of or were insensitive to the hurt and offence
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that term caused to Aboriginal people”. He argues further that it is not necessary to repeat
Mr. Brown’s nickname in order to honour him, for other stadia named after well-known athletes
utilize their ordinary names, rather than their nicknames.
3.3 He argues that under article 2, paragraph 1 (c), in particular, any State party to the
Convention has an obligation to amend laws having the effect of perpetuating racial
discrimination. He contends that use of words such as the offending term in a very public way
provides the term with formal sanction or approval. Words convey ideas and power, and
influence thoughts and beliefs. They may perpetuate racism and reinforce prejudices leading to
racial discrimination. The lawfulness (in terms of domestic law) of the use of this term also runs
counter to the objectives of article 7, which indicates that States parties undertake to combat
prejudices leading to racial discrimination.
3.4 The petitioner further argues that section 18 (1) (b) of the Act, requiring the offensive
conduct to be “because of” a racial attribute is narrower than the associative terms “based on”
found in the definition of racial discrimination in article 1 of the Convention. He characterizes
that the dismissal of his complaint, inter alia on the grounds that the offensive term was not
“because of” a racial attribute, was “technical”.
3.5 By way of remedy, the petitioner seeks the removal of the offending term from the sign
and an apology, as well as changes to Australian law to provide an effective remedy against
racially-offensive signs, such as the one in question.
The State party’s submissions on admissibility and merits
4.1 By submission of 26 November 2002, the State party disputed both the admissibility and
merits of the petition.
4.2 As to admissibility, the State party, while conceding that domestic remedies have been
exhausted, considers the petition incompatible with the provisions of the Convention and/or
insufficiently substantiated. Concerning incompatibility, the State party refers to jurisprudence
of the Human Rights Committee that it will not review the interpretation of domestic law, absent
bad faith or abuse of power,4 and invites the Committee on the Elimination of Racial
Discrimination to take the same approach. The State party notes that its courts and authorities
considered the petitioner’s complaints expeditiously and according to laws enacted in order to
give effect to its obligations under the Convention. The courts, at first instance and appeal, held
that the petitioner’s complaints had not been made out. Accordingly, the State party submits it
would be inappropriate for the Committee to review the judgements of the Federal Court and to
substitute its own views. As to the specific claim under paragraph 1 (c) that the State party
should amend the Racial Discrimination Act (being a law having the effect of perpetuating racial
discrimination), the State party argues that this claim is incompatible with the Convention, as the
Committee has no jurisdiction to review the laws of Australia in the abstract. It invites the
Committee to follow the jurisprudence of the Human Rights Committee to this effect.5
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4.3 In view of the thorough consideration and rejection of the complaint before domestic
instances, the State party also argues that the petition is insufficiently substantiated, for purposes
of admissibility.
4.4 On the merits, the State party disputes that the facts disclose a violation of any articles of
the Convention invoked. As to the claim under article 2, the State party submits that these
obligations are of general principle and programmatic in character, and therefore accessory to
other articles of the Convention. Accordingly, in the same way that the Human Rights
Committee only finds a violation of article 2 of the International Covenant on Civil and Political
Rights6 after finding a separate substantive violation of the Covenant, a violation of article 2 of
the Convention could only arise after a violation of the other substantive articles (which is denied
in its submissions under articles 4 to 7 below).7 Even if the Committee considers that article 2
can be directly breached, the State party submits that it has satisfied its obligations: it condemns
racial discrimination, has enacted legislation and policy to make its practice by any person or
body unlawful as well as to eliminate all forms of racial discrimination and actively promote
racial equality, and has provided effective mechanisms of redress.
4.5 In terms of the specific paragraphs of article 2, as to paragraph 1 (a), the State party cites
academic commentary to the effect that this provision does not deal with private acts of
discrimination (which are referred to in subparagraphs (b) and (d)).8 As the Toowomba Sports
Ground Trust is a private body rather than a public authority or government agent, its acts fall
outside the scope of paragraph 1 (a). As to paragraph 1 (b), the State party relies on commentary
that this provision is intended to prevent any actor engaged in racial discrimination from
receiving State support.9 The State party submits that neither the establishment of the Sports
Ground Trust, its continued existence, nor its response to the communication can be taken as any
State sponsorship, defence or support of any racial discrimination committed by the Trust (which
is denied).
4.6 As to paragraph 1 (c), the State party refers to its submissions below that no racial
discrimination has been suffered.10 That the petitioner’s complaint under the Racial
Discrimination Act was unsuccessful does not detract from the effectiveness of that legislation,
nor does it suggest that the Act creates or perpetuates racial discrimination. As to
paragraph 1 (d), the State party again refers to its submissions that no racial discrimination has
occurred, and to its general remarks above on article 2.11 As to paragraph 1 (e), the State party
refers to commentary that this provision is “broadly and vaguely worded”, leaving undefined
“[w]hat ‘integrationist’ movements are, and what ‘strengthens’ racial division”.12 The State
party recalls that Australia is a multicultural society, and that its laws and policies are designed
to eliminate direct and indirect racial discrimination and actively to promote racial equality. It
refers to its periodic reports to the Committee for in-depth description of these laws and policies.
As to paragraph 2, the State party submits that the petitioner has failed to indicate how the
circumstances of his case warrant the implementation of “special measures”. Alternatively, it
refers to its submissions that no discrimination has taken place for the conclusion that no need
for “special measures” arises.
4.7 As to the petitioner’s claim under article 4, the State party invokes its reservation to this
article.13 The State party recalls that pursuant to its obligations under this article, it enacted
Part II A of the Racial Discrimination Act, including section 18 C, under which the petitioner
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filed his claim. It further argues, based on the jurisprudence of the Human Rights Committee,14
that States parties must be accorded a certain “margin of appreciation” in implementing their
Convention obligations.
4.8 The State party argues that the use of the term “because of” in section 18 of the Act,
requiring a causal relationship between offensive conduct and the race, colour or national or
ethnic origin of the “targeted group”, is an appropriate manner to implement the obligation to
prohibit the intentionally racist acts described in article 4. This is consistent with the Convention
and avoids uncertainty. Accordingly, the State party argues that to use “based on” in section 18
of the Act would not give appropriate effect to article 4 of the Convention as implemented in
Australian law.
4.9 The State party contends that the petitioner’s complaint was not dismissed on technical
grounds, but for lack of substance. The Federal Court, rejecting the contention that any use of
the offending term must necessarily be racially offensive, concluded that in the context in which
the offending term was used and the community perceptions of the sign on the stand, the
decision of the Trust to leave the sign intact did not breach section 18 C of the Act. The State
party invites the Committee to adopt the approach of the Federal Court and take into
consideration the context in which the word is used in determining issues under article 4.
4.10 The State party refers to the following contextual elements: (i) the fact that the offending
term is displayed as “an integral part of the name of a person who is clearly being honoured by
having his name publicly attached to the stand”, (ii) the Federal Court’s finding that “[e]ven if
the nickname ‘Nigger’ was originally bestowed long ago on Mr. Brown in circumstances in
which it then had a racial or even a racist connotation, the evidence indicates that for many
decades before the author’s complaint, its use as part of the customary identifier of Mr. Brown
had ceased to have any such connotation”, (iii) the consulations with local indigenous persons,
(iv) the evidence of a former Aboriginal rugby league personality in the area for whom the name
was unproblematic and “simply part of history”, and (v) the absence of any complaint (until the
petitioner’s) over 40 years of display at a ground often frequented by many indigenous persons
despite increased sensitivities and willingness to speak out in recent years.
4.11 In the light of the above, the State party contends that the Federal Court’s conclusion
(upheld on appeal) that the trustees’ refusal, conveyed only after “in good faith [having] taken
care to avoid offending the members of a racial group” and which “is not, on an objective view,
likely to offend members of that group”, was not an “act done because of the race of” any
person. While accepting that the petitioner subjectively felt offended, the Committee should
apply an objective test similar to that of the Federal Court in finding that there was no suggestion
that the trustees were attempting to justify, promote or incite racial discrimination, contrary to
article 4 of the Convention.
4.12 In terms of the specific paragraphs (a) to (c) of article 4, the State party argues that the
petitioner has supplied no evidence as to how it may have violated any of these obligations,
including that it may be abetting racist activities. It points to Part II A of the Act, which makes
unlawful offensive behaviour based on racial hatred, and to further legislation at both State and
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Territory level that proscribes racial hatred and vilification, as implementing its obligations
under these paragraphs. As to paragraph (a) it recalls its reservation, and, as to paragraph (c),
that the Trust is not a public authority or institution.
4.13 As to the petitioner’s claim, under article 5, that he is unable to enjoy functions at the
sports ground, the State party refers to the jurisprudence of the European Court of Human Rights
in assessing discrimination. Under that approach, there must be a clear inequality of treatment in
enjoyment of the relevant right, as compared to others in an analogous position. If there is such
inequality between similarly situated persons, there must be reasonable and objective
justification as well as proportionality of the means applied to achieve a particular aim.15 The
State party observes that sections 9 (making racial discrimination unlawful)16 and 10 (ensuring
equality before the law) of the Act were enacted to implement articles 2 and 5 of the Convention,
and section 9 closely follows the definition of racial discrimination in article 1 of the
Convention.
4.14 The State party notes that the Federal Court (upheld on appeal) interpreted the phrase
“based on” section 9 (1), upon which the author relied, as not “requiring a causal relationship
between the act complained of and race etc., but [that it] should rather be read as meaning ‘by
reference to’, i.e., as capable of being satisfied by a less direct relationship than that of cause and
effect”. Turning to the petitioner’s case in terms of section 9 (1), the Court did not consider that
the trustees’ decision to retain the sign was an act “based on” race. This was so for the decision
was not “an act that involved treating members of the Aboriginal race differently, let alone less
favourably, from other members of the community”, as the offending term was simply part of the
customary identifier of a well-known person which had long ceased to have any inappropriate
connotation.
4.15 The Court considered that, even if the decision was based or motivated on race, these
racial considerations “were taken into account to satisfy the trustees that maintenance of the sign
would not give offence to Aboriginal persons generally, as distinct from offence to [the
petitioner] personally”. Thus, the Court concluded, in finding that there was no racial
discrimination, that: “[I]t cannot be said that the act, even if based on race, involved any
distinction etc. having either the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of any human right or fundamental freedom of the
kind referred to in section”. The State party therefore submits that, as found by the Federal
Court, the petitioner has failed to establish that he was treated by the trustees any differently
from, or less favourably than, any other person in a similar position, and therefore no racial
discrimination has been established.
4.16 In terms of the specific paragraphs of article 5 invoked by the petitioner (paras. (d) (i),
(d) (ix), (e) (vi) and (f)), the State party submits that as he failed to establish a racially based
distinction in the circumstances of his case, no question of discrimination arises in respect of his
freedom of movement, freedom of assembly or association, right to equal participation in
cultural activities, or right of access to any public place or service, respectively. As to
paragraph (e) (vi), the State party refers to the Committee’s jurisprudence that it is beyond its
mandate to ensure that this right is established, but rather to monitor its implementation once the
right is granted on equal terms.17
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4.17 On article 6, the State party notes that States possess a wide margin of discretion in
fulfilling their obligation under article 6.18 It submits that its domestic law, which provides for
the filing and determination of complaints of racial discrimination and the award of remedies,
including monetary compensation for successful complaints, appropriately implements the
obligation under article 6. The State party emphasizes that the dismissal of the petitioner’s
complaint by the Federal Court is no reflection on the effectiveness of the Act’s remedies against
racial discrimination, or of the remedies available when complaints are successful.
4.18 In any event, the State party submits that article 6, providing for remedies, is accessory in
nature and can only be found to have been violated once a separate violation of the specific
rights in the Convention has been established.19 As no other violation of the Convention has
been established (under arts. 2, 4, 5 or 7), nor can there be a consequent violation of article 6.
4.19 As to the claim under article 7, the State party notes that the Act came into effect the day
after the Convention entered into force for the State party. Moreover, federal, State and
Territory governments have, over the years, adopted a wide array of measures to combat
effectively racial prejudice and promote racial harmony, which are detailed in the State party’s
periodic reports. That the petitioner was unsuccessful before the domestic courts does not
detract from the immediacy or effectiveness of measures taken by the State party’s governments
to combat racial prejudice and to promote racial harmony.
The petitioner’s comments
5.1 By submission of 20 December 2002, the petitioner responded to the State party’s
observations. He confirms that he is not asking the Committee to review decisions of the
domestic courts, but rather to assess compliance with the Convention of the public display and
repeated use in announcements of the offending term. It is apparent from the outcome of the
domestic proceedings that the State party’s domestic law is cast in overly restrictive terms and
does not give full effect to Convention obligations. Nor does the petitioner ask the Committee to
review the State party’s law in abstracto; rather, he complains of a specific breach of the
Convention and the State party’s failure to provide a corresponding remedy.
5.2 The petitioner considers that subjective views of individuals referred to by the State party
who were not offended by the term in question is of no relevance, as the question is whether the
offence was felt by the petitioner and his family. In any event, a considerable number of other
persons shared the petitioner’s views on the stand, namely the Toowoomba Day Committee, the
Toowoomba Multicultural Association, over 80 people participating in a “practical
reconciliation” walk and 300 persons who signed a petition. Affidavits to this effect were
submitted to the Federal Court, but were not admitted as evidence on technical grounds.20 The
petitioner invites the Committee to take notice of these views. In any event, the petitioner
requests the Committee to conclude that the offending term is objectively offensive, whatever
the subjective views of various individuals.
5.3 As to the inferences to be drawn from the failure of his domestic proceedings, the
petitioner argues that this failure derived from the State party’s legislation being so narrowly
drawn that it is exceedingly difficult to prove discrimination, and thus it did not give full effect
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to the Convention. This failure shows that the State party’s law does not provide effective
protection against racial discrimination. He emphasizes that he does not approach the
Committee arguing a violation of domestic legislation, but rather of the Convention itself.
5.4 As to the State party’s specific arguments under article 2, the petitioner observes that the
State party has taken no steps to have the offending sign removed, despite the controversy
surrounding it for years. This is said to be in violation of the duty, under article 2, to eliminate
and bring to an end all forms of racial discrimination. The petitioner rejects the characterization
of the Sports Ground Trust as a “private body”. He points out that trustees are appointed and can
be removed by the Minister, and that their function is to manage land for public (community)
purposes. Indeed, the State party’s legislation provides that any liability of the trustees attaches
to the State.21 It is therefore a public authority or institution for Convention purposes.
5.5 As to the State party’s specific arguments under article 4, the petitioner objects to the
reference to its reservation. He contends that the reservation is “probably invalid” as
incompatible with the object and purpose of the Convention. Even if valid, he points out that the
reservation is temporally limited as it refers to the State party’s intention “at the first possible
moment, to seek from Parliament legislation implementing the terms of Article 4 (a)”. Given
that the State party contends that the Part II A of the Act implements its obligations under the
article, the reservation must now have lapsed.
5.6 The petitioner points out that he is not objecting to use of the offending term in the
distant past, but rather its contemporary use and display. He points out that it is not necessary to
repeat the offensive nickname in order to honour Mr. Brown, and it is not common in the State
party for stands to feature the nicknames of famous sportspeople in addition to their proper
names.
5.7 As to the State party’s specific arguments under article 5, the petitioner contends that he
has established a racially-based distinction on the basis that the offending term is racially
offensive and derogatory, and that white Australians are not affected as the petitioner and his
family have been. The inability as a consequence of the petitioner and his family to attend the
ground impaired their rights under article 5, including their right to equal participation in cultural
activities. As to the State party’s specific arguments under article 5, the author observes that the
State party failed to identify any measure of “teaching, education, culture and information”
directed at combating the trustees’ discriminatory conduct, or at promoting reconciliation
amongst the many persons offended by the sign.
Issues and Proceedings before the Committee
Consideration of admissibility
6.1 Before considering any claims contained in a petition, the Committee on the Elimination
of Racial Discrimination must, in accordance with rule 91 of its rules of procedure, decide
whether or not it is admissible under the Convention.
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6.2 The Committee notes that the State party concedes that domestic remedies have been
exhausted. As to the State party’s arguments that the petition falls outside the scope of the
Convention and/or is insufficiently substantiated, the Committee considers that the petitioner has
sufficiently substantiated, for purposes of admissibility, that his individual claim may fall within
the scope of application of the provisions of the Convention. Given the complexity of the
arguments of both fact and law, the Committee deems it more appropriate to determine the
precise scope of the relevant provisions of the Convention at the merits stage of the petition.
6.3 In the absence of any further objections to the admissibility of the communication, the
Committee declares the petition admissible and proceeds to its examination of the merits.
Consideration of the merits
7.1 Acting under article 14, paragraph 7 (a), of the International Convention on the
Elimination of All Forms of Racial Discrimination, the Committee has considered the
information submitted by the petitioner and the State party.
7.2 The Committee has taken due account of the context within which the sign bearing the
offending term was originally erected in 1960, in particular the fact that the offending term, as a
nickname probably with reference to a shoeshine brand, was not designed to demean or diminish
its bearer, Mr. Brown, who was neither black nor of aboriginal descent. Furthermore, for
significant periods neither Mr. Brown (for12 years until his death) nor the wider public (for 39
years until the petitioner’s complaint) objected to the presence of the sign.
7.3 Nevertheless, the Committee considers that that use and maintenance of the offending
term can at the present time be considered offensive and insulting, even if for an extended period
it may not have necessarily been so regarded. The Committee considers, in fact, that the
Convention, as a living instrument, must be interpreted and applied taking into the circumstances
of contemporary society. In this context, the Committee considers it to be its duty to recall the
increased sensitivities in respect of words such as the offending term appertaining today.
8. The Committee therefore notes with satisfaction the resolution adopted at the
Toowoomba public meeting of 29 July 1999 to the effect that, in the interest of reconciliation,
racially derogatory or offensive terms will not be used or displayed in the future. At the same
time, the Committee considers that the memory of a distinguished sportsperson may be honoured
in ways other than by maintaining and displaying a public sign considered to be racially
offensive. The Committee recommends that the State party take the necessary measures to
secure the removal of the offending term from the sign in question, and to inform the Committee
of such action it takes in this respect.
[Adopted in English, French, Russian and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic and Chinese as part of the Committee’s annual report to
the General Assembly.]
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Notes
1 It is not clear whether the petitioner attended this meeting.
2 Section 9 of the Racial Discrimination Act 1975 (Commonwealth) provides:
Racial discrimination to be unlawful
(1) “It is unlawful for a person to do any act involving a distinction, exclusion, restriction or
preference based on race, colour, descent or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of
any human right or fundamental freedom in the political, economic, social, cultural or any other
field of public life.”
3 Section 18 C of the Racial Discrimination Act provides:
Offensive behaviour because of race, colour, or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) The act is reasonably likely, in all the circumstances, to offend, insult, humiliate
or intimidate another person or a group of people; and
(b) The act is done because of the race, colour or national or ethnic origin of the other
person or of some or all of the people in the group.
4 Maroufidou v. Sweden Case No. 58/1979, Views adopted on 9 April 1981.
5 MacIsaac v. Canada Case No. 55/1979, Views adopted on 25 July 1980: “[The Committee’s]
task is not to decide in the abstract whether or not a provision of national law is compatible with
the Covenant, but only to consider whether there is or has been a violation of the Covenant in the
particular case submitted to it.”
6 Article 2 of the Covenant sets out the right to an effective remedy for violations of the
Covenant.
7 Paras. 4.7 to 4.9, infra.
8 Lerner, N.: The UN Convention on the Elimination of All Forms of Racial Discrimination.
The Netherlands, Sijthoff Noordhoff Publishers, 1980, at 37.
9 Ibid.
10 Paras. 4.19 to 4.15, infra.
11 Para. 4.4, supra.
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page 12
12 Op.cit., at 38.
13 The reservation provides: “The Government of Australia ... declares that Australia is not at
present in a position specifically to treat as offences all the matters covered by article 4 (a) of the
Convention. Acts of the kind there mentioned are punishable only to the extent provided by the
existing criminal law dealing with such matters as the maintenance of public order, public
mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the
Australian Government, at the first suitable moment, to seek from Parliament legislation
specifically implementing the terms of article 4 (a).”
14 Hertzberg et al. v. Finland Case No. 61/1979, Views adopted on 2 April 1982.
15 Airey v. Ireland (A 32 para. 30 (1980)), Dudgeon v. United Kingdom (A 45 para. 67 (1981)),
Van der Mussele v. Belgium (A 70 para. 46 (1983)), The Belgian Linguistic Case (Merits)
(A para. 6 (1968)).
16 For full text of the provision, see footnote 2, supra.
17 Demba Talibe Diop v. France Case No. 2/1989, Opinion of 18 March 1991.
18 Valencia Rodriguez, L.: “The International Convention on the Elimination of All Forms of
Racial Discrimination” in Manual on Human Rights Reporting Under Six Major International
Instruments, New York, United Nations, 1997, at 289.
19 See para. 4.4 and footnote 4, supra.
20 This evidence is supplied to the Committee.
21 Section 92 Lands Act 1994 (Queensland).
-----
Annex 798
CEDAW, General Recommendation No. 25 on Article 4, Paragraph 1, of the Convention on the
Elimination of All Forms of Discrimination Against Women, on Temporary Special mMeasures
(2004)
General recommendation No. 25, on article 4, paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination against
Women, on temporary special measures
Contents
Paragraphs Page
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 8
II. Background: the object and purpose of the Convention . . . . . . . . . . . . . . . . . 3–14 8
III. The meaning and scope of temporary special measures in the Convention
on the Elimination of All Forms of Discrimination against Women . . . . . . 15–24 10
A. Relationship between paragraphs 1 and 2 of article 4 . . . . . . . . . . . . . . . 15–16 10
B. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 11
C. Key elements of article 4, paragraph 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18–24 11
IV. Recommendations to States parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25–39 12
I. Introduction
1. The Committee on the Elimination of Discrimination against Women
decided at its twentieth session (1999), pursuant to article 21 of the
Convention, to elaborate a general recommendation on article 4, paragraph 1,
of the Convention on the Elimination of All Forms of Discrimination against
Women. This new general recommendation would build, inter alia, on earlier
general recommendations, including general recommendation No. 5 (seventh
session, 1988), on temporary special measures, No. 8 (seventh session, 1988),
on implementation of article 8 of the Convention, and No. 23 (sixteenth
session, 1997), on women in public life, as well as on reports of States parties
to the Convention and on the Committee’s concluding comments to those
reports.
2. With the present general recommendation, the Committee aims to clarify
the nature and meaning of article 4, paragraph 1, in order to facilitate and
ensure its full utilization by States parties in the implementation of the
Convention. The Committee encourages States parties to translate this general
recommendation into national and local languages and to disseminate it widely
to the legislative, executive and judicial branches of government, including
their administrative structures, as well as civil society, including the media,
academia, and human rights and women’s associations and institutions.
II. Background: the object and purpose of the Convention
3. The Convention is a dynamic instrument. Since the adoption of the
Convention in 1979, the Committee, as well as other actors at the national and
international levels, have contributed through progressive thinking to the
clarification and understanding of the substantive content of the Convention’s
articles and the specific nature of discrimination against women and the
instruments for combating such discrimination.
4. The scope and meaning of article 4, paragraph 1, must be determined in
the context of the overall object and purpose of the Convention, which is to
eliminate all forms of discrimination against women with a view to achieving
women’s de jure and de facto equality with men in the enjoyment of their
human rights and fundamental freedoms. States parties to the Convention are
under a legal obligation to respect, protect, promote and fulfil this right to nondiscrimination
for women and to ensure the development and advancement of
women in order to improve their position to one of de jure as well as de facto
equality with men.
5. The Convention goes beyond the concept of discrimination used in many
national and international legal standards and norms. While such standards and
norms prohibit discrimination on the grounds of sex and protect both men and
women from treatment based on arbitrary, unfair and/or unjustifiable
distinctions, the Convention focuses on discrimination against women,
emphasizing that women have suffered, and continue to suffer from various
forms of discrimination because they are women.
6. A joint reading of articles 1 to 5 and 24, which form the general
interpretative framework for all of the Convention’s substantive articles,
indicates that three obligations are central to States parties’ efforts to eliminate
discrimination against women. These obligations should be implemented in an
integrated fashion and extend beyond a purely formal legal obligation of equal
treatment of women with men.
7. Firstly, States parties’ obligation is to ensure that there is no direct or
indirect1 discrimination against women in their laws and that women are
protected against discrimination — committed by public authorities, the
judiciary, organizations, enterprises or private individuals — in the public as
well as the private spheres by competent tribunals as well as sanctions and
other remedies. Secondly, States parties’ obligation is to improve the de facto
position of women through concrete and effective policies and programmes.
Thirdly, States parties’ obligation is to address prevailing gender relations2 and
the persistence of gender-based stereotypes that affect women not only through
individual acts by individuals but also in law, and legal and societal structures
and institutions.
8. In the Committee’s view, a purely formal legal or programmatic approach
is not sufficient to achieve women’s de facto equality with men, which the
Committee interprets as substantive equality. In addition, the Convention
requires that women be given an equal start and that they be empowered by an
enabling environment to achieve equality of results. It is not enough to
guarantee women treatment that is identical to that of men. Rather, biological
as well as socially and culturally constructed differences between women and
men must be taken into account. Under certain circumstances, non-identical
treatment of women and men will be required in order to address such
differences. Pursuit of the goal of substantive equality also calls for an
effective strategy aimed at overcoming underrepresentation of women and a
redistribution of resources and power between men and women.
9. Equality of results is the logical corollary of de facto or substantive
equality. These results may be quantitative and/or qualitative in nature; that is,
women enjoying their rights in various fields in fairly equal numbers with
men, enjoying the same income levels, equality in decision-making and
political influence, and women enjoying freedom from violence.
10. The position of women will not be improved as long as the underlying
causes of discrimination against women, and of their inequality, are not
effectively addressed. The lives of women and men must be considered in a
contextual way, and measures adopted towards a real transformation of
opportunities, institutions and systems so that they are no longer grounded in
historically determined male paradigms of power and life patterns.
11. Women’s biologically determined permanent needs and experiences
should be distinguished from other needs that may be the result of past and
present discrimination against women by individual actors, the dominant
gender ideology, or by manifestations of such discrimination in social and
cultural structures and institutions. As steps are being taken to eliminate
discrimination against women, women’s needs may change or disappear, or
become the needs of both women and men. Thus, continuous monitoring of
laws, programmes and practices directed at the achievement of women’s de
facto or substantive equality is needed so as to avoid a perpetuation of nonidentical
treatment that may no longer be warranted.
12. Certain groups of women, in addition to suffering from discrimination
directed against them as women, may also suffer from multiple forms of
discrimination based on additional grounds such as race, ethnic or religious
identity, disability, age, class, caste or other factors. Such discrimination may
affect these groups of women primarily, or to a different degree or in different
ways than men. States parties may need to take specific temporary special
measures to eliminate such multiple forms of discrimination against women
and its compounded negative impact on them.
13. In addition to the Convention on the Elimination of All Forms of
Discrimination against Women, other international human rights instruments
and policy documents adopted in the United Nations system contain provisions
on temporary special measures to support the achievement of equality. Such
measures are described in different terminology, and the meaning and
interpretation given to such measures also differs. It is the Committee’s hope
that the present general recommendation on article 4, paragraph 1, will
contribute to a clarification of terminology.3
14. The Convention, targets discriminatory dimensions of past and current
societal and cultural contexts which impede women’s enjoyment of their
human rights and fundamental freedoms. It aims at the elimination of all forms
of discrimination against women, including the elimination of the causes and
consequences of their de facto or substantive inequality. Therefore, the
application of temporary special measures in accordance with the Convention
is one of the means to realize de facto or substantive equality for women,
rather than an exception to the norms of non-discrimination and equality.
III. The meaning and scope of temporary special measures
in the Convention on the Elimination of All Forms of
Discrimination against Women
Article 4, paragraph 1
Adoption by States parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered
discrimination as defined in the present Convention, but shall in no way entail
as a consequence the maintenance of unequal or separate standards; these
measures shall be discontinued when the objectives of equality of opportunity
and treatment have been achieved.
Article 4, paragraph 2
Adoption by States parties of special measures, including those measures
contained in the present Convention, aimed at protecting maternity shall not
be considered discriminatory.
A. Relationship between paragraphs 1 and 2 of article 4
15. There is a clear difference between the purpose of the “special measures”
under article 4, paragraph 1, and those of paragraph 2. The purpose of article
4, paragraph 1, is to accelerate the improvement of the position of women to
achieve their de facto or substantive equality with men, and to effect the
structural, social and cultural changes necessary to correct past and current
forms and effects of discrimination against women, as well as to provide them
with compensation. These measures are of a temporary nature.
16. Article 4, paragraph 2, provides for non-identical treatment of women
and men due to their biological differences. These measures are of a
permanent nature, at least until such time as the scientific and technological
knowledge referred to in article 11, paragraph 3, would warrant a review.
B. Terminology
17. The travaux préparatoires of the Convention use different terms to
describe the “temporary special measures” included in article 4, paragraph 1.
The Committee itself, in its previous general recommendations, used various
terms. States parties often equate “special measures” in its corrective,
compensatory and promotional sense with the terms “affirmative action”,
“positive action”, “positive measures”, “reverse discrimination”, and “positive
discrimination”. These terms emerge from the discussions and varied practices
found in different national contexts.4 In the present general recommendation,
and in accordance with its practice in the consideration of reports of States
parties, the Committee uses solely the term “temporary special measures”, as
called for in article 4, paragraph 1.
C. Key elements of article 4, paragraph 1
18. Measures taken under article 4, paragraph 1, by States parties should aim
to accelerate the equal participation of women in the political, economic,
social, cultural, civil or any other field. The Committee views the application
of these measures not as an exception to the norm of non-discrimination, but
rather as an emphasis that temporary special measures are part of a necessary
strategy by States parties directed towards the achievement of de facto or
substantive equality of women with men in the enjoyment of their human
rights and fundamental freedoms. While the application of temporary special
measures often remedies the effects of past discrimination against women, the
obligation of States parties under the Convention to improve the position of
women to one of de facto or substantive equality with men exists irrespective
of any proof of past discrimination. The Committee considers that States
parties that adopt and implement such measures under the Convention do not
discriminate against men.
19. States parties should clearly distinguish between temporary special
measures taken under article 4, paragraph 1, to accelerate the achievement of a
concrete goal for women of de facto or substantive equality, and other general
social policies adopted to improve the situation of women and the girl child.
Not all measures that potentially are, or will be, favourable to women are
temporary special measures. The provision of general conditions in order to
guarantee the civil, political, economic, social and cultural rights of women
and the girl child, designed to ensure for them a life of dignity and nondiscrimination,
cannot be called temporary special measures.
20. Article 4, paragraph 1, explicitly states the “temporary” nature of such
special measures. Such measures should therefore not be deemed necessary
forever, even though the meaning of “temporary” may, in fact, result in the
application of such measures for a long period of time. The duration of a
temporary special measure should be determined by its functional result in
response to a concrete problem and not by a predetermined passage of time.
Temporary special measures must be discontinued when their desired results
have been achieved and sustained for a period of time.
21. The term “special”, though being in conformity with human rights
discourse, also needs to be carefully explained. Its use sometimes casts women
and other groups who are subject to discrimination as weak, vulnerable and in
need of extra or “special” measures in order to participate or compete in
society. However, the real meaning of “special” in the formulation of article 4,
paragraph 1, is that the measures are designed to serve a specific goal.
22. The term “measures” encompasses a wide variety of legislative,
executive, administrative and other regulatory instruments, policies and
practices, such as outreach or support programmes; allocation and/or
reallocation of resources; preferential treatment; targeted recruitment, hiring
and promotion; numerical goals connected with time frames; and quota
systems. The choice of a particular “measure” will depend on the context in
which article 4, paragraph 1, is applied and on the specific goal it aims to
achieve.
23. The adoption and implementation of temporary special measures may
lead to a discussion of qualifications and merit of the group or individuals so
targeted, and an argument against preferences for allegedly lesser-qualified
women over men in areas such as politics, education and employment. As
temporary special measures aim at accelerating achievement of de facto or
substantive equality, questions of qualification and merit, in particular in the
area of employment in the public and private sectors, need to be reviewed
carefully for gender bias as they are normatively and culturally determined.
For appointment, selection or election to public and political office, factors
other than qualification and merit, including the application of the principles
of democratic fairness and electoral choice, may also have to play a role.
24. Article 4, paragraph 1, read in conjunction with articles 1, 2, 3, 5 and 24,
needs to be applied in relation to articles 6 to 16 which stipulate that States
parties “shall take all appropriate measures”. Consequently, the Committee
considers that States parties are obliged to adopt and implement temporary
special measures in relation to any of these articles if such measures can be
shown to be necessary and appropriate in order to accelerate the achievement
of the overall, or a specific goal of, women’s de facto or substantive equality.
IV. Recommendations to States parties
25. Reports of States parties should include information on the adoption, or
lack thereof, of temporary special measures in accordance with article 4,
paragraph 1, of the Convention, and States parties should preferably adhere to
the terminology “temporary special measures”, to avoid confusion.
26. States parties should clearly distinguish between temporary special
measures aimed at accelerating the achievement of a concrete goal of women’s
de facto or substantive equality, and other general social policies adopted and
implemented in order to improve the situation of women and the girl child.
States parties should bear in mind that not all measures which potentially are
or would be favourable to women qualify as temporary special measures.
27. States parties should analyse the context of women’s situation in all
spheres of life, as well as in the specific, targeted area, when applying
temporary special measures to accelerate achievement of women’s de facto or
substantive equality. They should evaluate the potential impact of temporary
special measures with regard to a particular goal within their national context
and adopt those temporary special measures which they consider to be the
most appropriate in order to accelerate the achievement of de facto or
substantive equality for women.
28. States parties should explain the reasons for choosing one type of
measure over another. The justification for applying such measures should
include a description of the actual life situation of women, including the
conditions and influences which shape their lives and opportunities — or that
of a specific group of women, suffering from multiple forms of discrimination
— and whose position the State party intends to improve in an accelerated
manner with the application of such temporary special measures. At the same
time, the relationship between such measures and general measures and efforts
to improve the position of women should be clarified.
29. States parties should provide adequate explanations with regard to any
failure to adopt temporary special measures. Such failures may not be justified
simply by averring powerlessness, or by explaining inaction through
predominant market or political forces, such as those inherent in the private
sector, private organizations, or political parties. States parties are reminded
that article 2 of the Convention, which needs to be read in conjunction with all
other articles, imposes accountability on the State party for action by these
actors.
30. States parties may report on temporary special measures under several
articles. Under article 2, States parties are invited to report on the legal or
other basis for such measures, and their justification for choosing a particular
approach. States parties are further invited to give details about any legislation
concerning temporary special measures, and in particular whether such
legislation provides for the mandatory or voluntary nature of temporary special
measures.
31. States parties should include, in their constitutions or in their national
legislation, provisions that allow for the adoption of temporary special
measures. The Committee reminds States parties that legislation, such as
comprehensive anti-discrimination acts, equal opportunities acts or executive
orders on women’s equality, can give guidance on the type of temporary
special measures that should be applied to achieve a stated goal, or goals, in
given areas. Such guidance can also be contained in specific legislation on
employment or education. Relevant legislation on non-discrimination and
temporary special measures should cover governmental actors as well as
private organizations or enterprises.
32. The Committee draws the attention of States parties to the fact that
temporary special measures may also be based on decrees, policy directives
and/or administrative guidelines formulated and adopted by national, regional
or local executive branches of government to cover the public employment and
education sectors. Such temporary special measures may include the civil
service, the political sphere and the private education and employment sectors.
The Committee further draws the attention of States parties to the fact that
such measures may also be negotiated between social partners of the public or
private employment sector or be applied on a voluntary basis by public or
private enterprises, organizations, institutions and political parties.
33. The Committee reiterates that action plans for temporary special
measures need to be designed, applied and evaluated within the specific
national context and against the background of the specific nature of the
problem which they are intended to overcome. The Committee recommends
that States parties provide in their reports details of any action plans which
may be directed at creating access for women and overcoming their
underrepresentation in certain fields, at redistributing resources and power in
particular areas, and/or at initiating institutional change to overcome past or
present discrimination and accelerate the achievement of de facto equality.
Reports should also explain whether such action plans include considerations
of unintended potential adverse side-effects of such measures as well as on
possible action to protect women against them. States parties should also
describe in their reports the results of temporary special measures and assess
the causes of the possible failure of such measures.
34. Under article 3, States parties are invited to report on the institution(s)
responsible for designing, implementing, monitoring, evaluating and enforcing
such temporary special measures. Such responsibility may be vested in
existing or planned national institutions, such as women’s ministries, women’s
departments within ministries or presidential offices, ombudspersons, tribunals
or other entities of a public or private nature with the requisite mandate to
design specific programmes, monitor their implementation, and evaluate their
impact and outcomes. The Committee recommends that States parties ensure
that women in general, and affected groups of women in particular, have a role
in the design, implementation and evaluation of such programmes.
Collaboration and consultation with civil society and non-governmental
organizations representing various groups of women is especially
recommended.
35. The Committee draws attention to and reiterates its general
recommendation No. 9, on statistical data concerning the situation of women,
and recommends that States parties provide statistical data disaggregated by
sex in order to measure the achievement of progress towards women’s de facto
or substantive equality and the effectiveness of temporary special measures.
36. States parties should report on the type of temporary special measures
taken in specific fields under the relevant article(s) of the Convention.
Reporting under the respective article(s) should include references to concrete
goals and targets, timetables, the reasons for choosing particular measures,
steps to enable women to access such measures, and the institution
accountable for monitoring implementation and progress. States parties are
also asked to describe how many women are affected by a measure, how many
would gain access and participate in a certain field because of a temporary
special measure, or the amount of resources and power it aims to redistribute
to how many women, and within what time frame.
37. The Committee reiterates its general recommendations 5, 8 and 23,
wherein it recommended the application of temporary special measures in the
fields of education, the economy, politics and employment, in the area of
women representing their Governments at the international level and
participating in the work of international organizations, and in the area of
political and public life. States parties should intensify, within their national
contexts, such efforts especially with regard to all facets of education at all
levels as well as all facets and levels of training, employment and
representation in public and political life. The Committee recalls that in all
instances, but particularly in the area of health, States parties should carefully
distinguish in each field between measures of an ongoing and permanent
nature and those of a temporary nature.
38. States parties are reminded that temporary special measures should be
adopted to accelerate the modification and elimination of cultural practices and
stereotypical attitudes and behaviour that discriminate against or are
disadvantageous for women. Temporary special measures should also be
implemented in the areas of credit and loans, sports, culture and recreation,
and legal awareness. Where necessary, such measures should be directed at
women subjected to multiple discrimination, including rural women.
39. Although the application of temporary special measures may not be
possible under all the articles of the Convention, the Committee recommends
that their adoption be considered whenever issues of accelerating access to
equal participation, on the one hand, and accelerating the redistribution of
power and resources, on the other hand, are involved as well as where it can be
shown that these measures will be necessary and most appropriate under the
circumstances.
Notes
1 Indirect discrimination against women may occur when laws, policies and programmes
are based on seemingly gender-neutral criteria which in their actual effect have a
detrimental impact on women. Gender-neutral laws, policies and programmes
unintentionally may perpetuate the consequences of past discrimination. They may be
inadvertently modelled on male lifestyles and thus fail to take into account aspects of
women’s life experiences which may differ from those of men. These differences may
exist because of stereotypical expectations, attitudes and behaviour directed towards
women which are based on the biological differences between women and men. They may
also exist because of the generally existing subordination of women by men.
2 “Gender is defined as the social meanings given to biological sex differences. It is an
ideological and cultural construct, but is also reproduced within the realm of material
practices; in turn it influences the outcomes of such practices. It affects the distribution of
resources, wealth, work, decision-making and political power, and enjoyment of rights
and entitlements within the family as well as public life. Despite variations across
cultures and over time, gender relations throughout the world entail asymmetry of power
between men and women as a pervasive trait. Thus, gender is a social stratifier, and in
this sense it is similar to other stratifiers such as race, class, ethnicity, sexuality, and age.
It helps us understand the social construction of gender identities and the unequal
structure of power that underlies the relationship between the sexes.” 1999 World Survey
on the Role of Women in Development, United Nations, New York, 1999, page ix.
3 See, for example, the International Convention on the Elimination of All Forms of Racial
Discrimination, which mandates temporary special measures. The practice of treaty
monitoring bodies, including the Committee on the Elimination of Racial Discrimination,
the Committee on Economic, Social and Cultural Rights, and the Human Rights
Committee, shows that these bodies consider the application of temporary special
measures as mandatory to achieve the purposes of the respective treaties. Conventions
adopted under the auspices of the International Labour Organization, and various
documents of the United Nations Educational, Scientific and Cultural Organization also
explicitly or implicitly provide for such measures. The Subcommission on the Promotion
and Protection of Human Rights considered this question and appointed a Special
Rapporteur to prepare reports for its consideration and action. The Commission on the
Status of Women reviewed the use of temporary special measures in 1992. The outcome
documents adopted by United Nations world conferences on women, including the
Platform for Action of the 1995 Fourth World Conference on Women and its follow-up
review of 2000, contain references to positive action as a tool for achieving de facto
equality. The use of temporary special measures by the Secretary-General of the United
Nations is a practical example in the area of women’s employment, including through
administrative instructions on the recruitment, promotion and placement of women in the
Secretariat. These measures aim at achieving the goal of 50/50 gender distribution at all
levels, but at the higher echelons in particular.
4 The term “affirmative action” is used in the United States of America and in a number of
United Nations documents, whereas the term “positive action” is currently widely used in
Europe as well as in many United Nations documents. However, the term “positive
action” is used in yet another sense in international human rights law to describe “positive
State action” (the obligation of a State to initiate action versus a State’s obligation to
abstain from action). Hence, the term “positive action” is ambiguous inasmuch as its
meaning is not confined to temporary special measures as understood in article 4,
paragraph 1, of the Convention. The terms “reverse discrimination” or “positive
discrimination” are criticized by a number of commentators as inappropriate.
Annex 799
A.W.R.A.P. v. Denmark, Communication No. 37/2006, CERD/C/71/D/37/2006 (2007)
UNITED
NATIONS CERD
International Convention on
the Elimination
of all Forms of
Racial Discrimination
Distr.
RESTRICTED
CERD/C/71/D/37/2006
8 August 2007
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Seventy-first session
(30 July – 17 August 2007)
OPINION
Communication No. 37/2006
Submitted by: A.W.R.A.P. (represented by counsel,
the Documentation and Advisory Centre on
Racial Discrimination)
Alleged victim: The petitioner
State party: Denmark
Date of communication: 6 July 2006 (initial submission)
Date of present decision: 8 August 2007
[ANNEX]
Made public by decision of the Committee on the Elimination of Racial Discrimination.
GE.07-43530
CERD/C/71/D/37/2006
Page 2
ANNEX
OPINION OF THE COMMITTEE ON THE ELIMINATION OF RACIAL
DISCRIMINATION UNDER ARTICLE 14 OF THE INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS
OF RACIAL DISCRIMINATION
Seventy-First session
concerning
Communication No. 37/2006
Submitted by: A.W.R.A.P. (represented by counsel, the
Documentation and Advisory Centre on
Racial Discrimination)
Alleged victim: The petitioner
State party: Denmark
Date of communication: 6 July 2006 (initial submission)
The Committee on the Elimination of Racial Discrimination, established under article 8
of the International Convention on the Elimination of All Forms of Racial Discrimination,
Meeting on 8 August 2007
Adopts the following:
OPINION
1.1 The petitioner is A.W.R.A.P., a Danish citizen born on 1 February 1954 in Sweden,
now residing in Denmark, and a practising Muslim. He alleges a violation by Denmark1 of
articles 2, paragraph 1(d), 4 and 6 of the Convention on the Elimination of All Forms of
Racial Discrimination. He is represented by counsel, Miss Line Bøgsted of the Documentary
and Advisory Centre on Racial Discrimination (DACoRD).
1.2 In conformity with article 14, paragraph 6 (a), of the Convention, the Committee
transmitted the communication to the State party on 20 July 2006.
Factual background
2.1 In 1997, the Danish Parliament adopted a bill abolishing the right of parents to
corporally punish their children. The Danish Peoples Party voted against the bill. In 2005, the
1 The Convention was ratified by Denmark on 9 December 1971, and the Declaration under
article 14 made on 11 October 1985.
CERD/C/71/D/37/2006
Page 3
Government introduced a bill amending the Danish Integration Act by introducing the
requirement for immigrants to sign “declarations of integration”, designed to ensure
improved integration of immigrants. All new immigrants would have to sign a declaration
stating that they will respect the fundamental values of Danish society, including observance
of the rules of the Danish Criminal Code, that they will promote the integration of their
children – not least by making sure that the children attend school, that they will respect the
individual’s freedom and personal integrity as well as the equality of the sexes, that they will
respect the freedom of religion and expression, and that they recognise the prohibition of
corporal punishment of their children.
2.2 The Danish Peoples Party supported the amendment bill which led to a new debate
concerning the band on corporal punishment of children because a politician of the Socialist
Peoples’ Party asked members of the Danish People’s Party how it could support a bill
demanding that all aliens sign a declaration saying, inter alia, that “corporal punishment of
my children is prohibited” when the same party opposed the ban on corporal punishment of
children.
2.3 On 5 November 2005, Mr. Søren Krarup, member of the National Parliament for the
Danish Peoples Party, in relation to this debate, stated as follows;
“The problem is that the country unfortunately has been flooded with Muslim so-called
culture, and according to Islam it is the right of the male to beat his children and wife
yellow and blue. That form of violence which they are practising is of sadistic and
brutal character. That is why we can not reintroduce the act (on corporal punishment)
and that it why it is important to make them sign it.”
2.4 On 13 November 2005, Mr. Krarup added the following to his previous statement;
“What makes it so extremely difficult in relation to discussing the right to corporal
punishment today is that we have been flooded by a culture to which violence – the
holy right of the male to beat up his wife and children yellow and blue – is a natural
thing. And that means that the Danish tradition for corporal punishment had become
more or less compromised by a Muslim tradition which is much different, but which
means that………………….”
2.5 Apparently, after being questioned by the interviewer on the basis for his remarks, Mr.
Krarup stated that:
“Is it unknown to you that, according to Sharia and the Koran, a man has a special
position requiring his wife and children to abide by his doings? And if they don’t,
they’ll be punished?”
2.6 Having read these articles in the newspaper “Politiken”, the petitioner contacted the
Documentation and Advisory Centre on Racial Discrimination (DACoRD) and asked them to
file a complaint to the police on his behalf against Mr. Krarup, for violation of section 266 b
CERD/C/71/D/37/2006
Page 4
of the Danish Penal Code which prohibits racial statements2. On 15 October 2005, such a
complaint was sent to the Copenhagen police. On 27 March 2006, the Police rejected it
because there was no reasonable evidence to support the claim that an unlawful act had
occurred.
2.7 On 7 April 2006, the petitioner filed a complaint with the Regional Public Prosecutor
for Copenhagen. On 24 May 2006, the Public Prosecutor confirmed his agreement with the
police decision not to prosecute Mr. Krarup. He referred to the extended freedom of speech
which exists for politicians in general and Members of Parliament in particular especially
when it comes to politically controversial public matters, including corporal punishment and
how it is practised in other cultures. He did not find that the “statements, when read in
context, appear to be threatening, demeaning or degrading in the sense of the Penal Code
section 266 b.”
2.8 The petitioner argues that questions relating to the pursuit by the police of charges
against individuals are discretionary, and that there is no possibility to bring the case before
the Danish courts. Any decision by the Public Prosecutor relating to the investigation by the
police departments cannot be appealed. A legal action against Mr. Krarup would not be
effective, given that the police and Public Prosecutor have rejected the complaints against
him. The petitioner refers to a decision of the Eastern High Court of 5 February 1999, where
it was held that an incident of racial discrimination does not in itself imply a violation of the
honour and reputation of a person under section 26 of the Act in Civil Liability3 . The
petitioner concludes that he has no further remedies under national law.
The complaint
3.1 The petitioner claims that the decision of the Copenhagen police not to initiate an
investigation into the alleged facts violates articles 2, paragraph 1(d); 4(a); and 6 of the
Convention, as the documentation presented should have motivated the police to investigate
the matter thoroughly. There were no effective means to protect him from racist statements in
this case.
3.2 The petitioner adds that the decisions of the Copenhagen police and the Public
Prosecutor to reject his complaints violate article 6 of the Convention. He contends that the
Danish authorities did not examine the material in full, did not take his arguments into
account and did not make reference to their obligations under the ICERD.
2 According to Section 266b “(1) Any person who, publicly or with the intention of wider
dissemination, makes a statement or imparts other information by which a group of people
are threatened, insulted or degraded on account of their race, colour, national or ethnic origin,
religion, or sexual inclination shall be liable to a fine or to imprisonment for any term not
exceeding two years. (2) When the sentence is meted out, the fact that the offence is in the
nature of propaganda activities shall be considered an aggravating circumstance.”
3 See Communication No. 17/1999, B.J. v Denmark, Opinion adopted on 17 March 2000,
paras. 2.4 to 2.6.
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State party’s observations on the admissibility and merits of the communication:
4.1 On 20 July 2006, the State party made its submissions on the admissibility and merits
of the communication. On admissibility, it submits that the claims fall outside the scope of
the Convention and that the petitioner has failed to establish a prima facie case, for purposes
of admissibility. The statements concern Mr. Krarup’s perception of persons of a specific
religion and of a religious doctrine but do not concern persons of a particular “race, colour,
descent, or national or ethnic origin” within the meaning of article 1 of the Convention. The
State party notes that not all Muslims are of a particular ethnic origin and that not all Muslims
are of the same race. Even the petitioner himself referred to the statements as “offensive and
degrading to persons of the Muslim faith”. Thus, confirming that the statements cannot be
characterised as “racially discriminating” as they concern a religious and not a racial issue.
For this reason, the statements fall outside the scope of article 1 of the Convention.
4.2 On the merits, the State party disputes that there was a violation of articles 2, paragraph
1 (d), 4 and 6 of the Convention. On the claim that the documentation presented to the police
should have motivated it to initiate a thorough investigation, the State party argues that the
Danish authorities’ evaluation of the petitioner’s reports of alleged racial discrimination fully
satisfies the requirements of the Convention, even though they did not produce the outcome
desired by the petitioner. The Convention does not guarantee a specific outcome of cases on
alleged racially insulting statements, but sets out certain requirements for the investigation of
such statements. For the State party, these requirements were satisfied in the current case, as
the Danish authorities did take effective action, by processing and investigating the
complaints lodged by the petitioner.
4.3 Under section 749(2) of the Administration and Justice Act 4 , the police may
discontinue an investigation already initiated when there is no basis for its continuation. In
criminal proceedings, the prosecutor has the burden of proof that a criminal offence was
committed. It is important for the sake of due process that the evidence is of a certain weight
for the courts to convict an accused. Pursuant to section 96(2) of the Administration of Justice
Act5, public prosecutors must observe the principle of objectivity. They cannot prosecute a
4 “Section 749.
(1) The police shall dismiss a report lodged if it deems that there is no basis for initiating
investigation. (2) If there is no basis for continuing an investigation already initiated, the
police may decide to discontinue the investigation if no charge has been made (…).
(3) If the report is dismissed or the investigation is discontinued, those who may be presumed
to have a reasonable interest therein shall be notified. The decision can be appealed to the
superior public prosecutor under the rules of Part 10.
5 “Section 96.
(1) It is the duty of the public prosecutors, in cooperation with the police, to prosecute
offences according to the rules of this Act.
(2) The public prosecutors shall dispatch any one case at the speed permitted by the nature of
the case, and shall thus ensure not only that guilty persons are held responsible, but also that
prosecution of innocent persons does not occur.”
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person unless they believe that the prosecution will lead to conviction with a reasonable
prospect of certainty.
4.4 The State party accepts that investigations must be carried out with due diligence and
expeditiously and must be sufficient to determine whether or not an act of racial
discrimination has taken place. It does not follow, however, that a prosecution should be
initiated in all cases reported to the police. The State party emphasises that the question in the
current case was whether Mr. Krarup’s statements could be considered to fall within the
scope of section 266b of the Criminal Code. The State party considers that this legal
assessment was thorough and adequate. There were no problems concerning evidence, as the
statements were printed in the newspaper as Mr. Krarup’s quotations. Thus, there was no
need for the police to initiate an investigation to clarify the specific contents of the
statements, to discover the originator of the statements, or to question the petitioner about his
view of the statements.
4.5 In the State party’s view, the prosecution service correctly balanced the right to
freedom of expression, including politicians’ freedom of expression in connection with
debates about essential social issues, with the right for protection of religion (or the right for
protection against racial discrimination). The statements must be seen in the context in which
they were made, namely as contributions to a political debate about the right of chastisement,
and whether the reader supports Mr. Krarup’s views or not, a democratic society must allow
for a debate on such viewpoints within certain limits. The State party highlights its view that
freedom of expression is particularly important for elected representatives of the people, who
draw attention to their concerns and defend their interests. Thus, interference with the
freedom of expression of a Member of Parliament calls for close scrutiny on the part of the
prosecution service.
4.6 The State party acknowledges that a politicians right to freedom of expression is not
absolute and refers to the data contained in its 16th and 17th periodic report to the CERD, in
which it informed the Committee that between 1 January 2001 and 31 December 2003, the
Danish courts considered 23 cases concerning violations of section 266b of the Criminal
Code, and that 10 of these cases concerned statements made by politicians – only one of
whom was acquitted.
Petitioner’s comments
5.1 On 29 December 2006, the petitioner commented on the State party’s submissions.
With respect to the argument that the communication falls outside the scope of the Covenant,
the petitioner contends that “Islamophobia”, just like attacks against Jews, has manifested
itself as a form of racism in many European countries, including Denmark. After 11
September 2001, attacks against Muslims have intensified in Denmark. Members of the
Danish People’s Party use hate speech as a tool to stir up hatred against people of Arab and
Muslim background. In their view, culture and religion are connected in Islam. The petitioner
recalls that CERD has already concluded that Danish authorities do not ensure an effective
implementation of criminal law in relation to hate speech against Muslims and Muslim
CERD/C/71/D/37/2006
Page 7
culture, especially by politicians. He invokes the CERD’s Concluding Observations on
Denmark of 20026:
[“16.] The Committee is concerned about reports of a considerable increase in reported
cases of widespread harassment of people of Arab and Muslim backgrounds since 11
September 2001. The Committee recommends that the State party monitor this situation
carefully, take decisive action to protect the rights of victims and deal with perpetrators,
and report on this matter in its next periodic report”.
[“11.] The Committee, while taking note of the State party’s efforts to combat hate
crimes, is concerned about the increase in the number of racially motivated offences
and in the number of complaints of hate speech. The Committee is also concerned
about hate speech by some politicians in Denmark. While taking note of the
statistical data provided on complaints and prosecutions launched under section 266(b)
of the Criminal Code, the Committee notes the refusal by the Public Prosecutor to
initiate court proceedings in some cases, including the case of the publication of some
cartoons associating Islam with terrorism (arts. 4(a) and 6)” (emphasis added).
5.2 The petitioner concludes that he has made a prima facie case, given that he belongs to a
so-called “Muslim culture” and that, as a father, he is personally affected by the stereotyping
that he and other Muslims beat up their wives and children.
Issues and proceedings before the Committee
6.1 Before considering any claims contained in a petition, the Committee on the
Elimination of Racial Discrimination must, in accordance with rule 91 of its rules of
procedure, decide whether or not it is admissible under the Convention.
6.2 The Committee notes the State party’s objection that the petitioner’s claims fall
outside the scope of the Convention, because the statements in question are directed at
persons of a particular religion or religious group, and not at persons of a particular “race,
colour, descent, or national or ethnic origin”. It also takes note of the petitioner’s contention
that the statements in question were indeed aimed at persons of Muslim or Arab background.
The Committee observes, however, that the impugned statements specifically refer to the
Koran, to Islam and to Muslims in general, without any reference whatsoever to any race,
colour, descent, or national or ethnic origin. While the elements of the case file do not allow
the Committee to analyse and ascertain the intention of the impugned statements, it remains
that no specific national or ethnic groups were directly targeted as such by these oral
statements as reported and printed. In fact, the Committee notes that the Muslims currently
living in the State party are of heterogeneous origin. They originate from at least 15 different
countries, are of diverse national and ethnic origins, and consist of non-citizens, and Danish
citizens, including Danish converts.
6.3 The Committee recognises the importance of the interface between race and religion
and considers that it would be competent to consider a claim of “double” discrimination on
6 CERD/C/60/CO/5, 21 May 2002
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Page 8
the basis of religion and another ground specifically provided for in article 1 of the
Convention, including national or ethnic origin. However, this is not the case in the current
petition, which exclusively relates to discrimination on religious grounds. The Committee
recalls that the Convention does not cover discrimination based on religion alone, and that
Islam is not a religion practised solely by a particular group, which could otherwise be
identified by its “race, colour, descent, or national or ethnic origin.” The Travaux
Préparatoires of the Convention reveal that the Third Committee of the General Assembly
rejected the proposal to include racial discrimination and religious intolerance in a single
instrument, and decided in the ICERD to focus exclusively on racial discrimination.7 It is
unquestionable therefore that discrimination based exclusively on religious grounds was not
intended to fall within the purview of the Convention.
6.4 The Committee recalls its prior jurisprudence in Quereshi v. Denmark that, “a general
reference to foreigners does not at present single out a group of persons, contrary to article 1
of the Convention, on the basis of a specific race, ethnicity, colour, descent or national or
ethnic origin” 8. Similarly, in this particular case, it considers that the general references to
Muslims, do not single out a particular group of persons, contrary to article 1 of the
Convention. It, therefore, concludes that the petition falls outside the scope of the
Convention and declares it inadmissible ratione materiae under article 14, paragraph 1, of the
Convention.
6.5 Although the Committee considers that it is not within its competence to examine the
present petition, it takes note of the offensive nature of the statements complained of and
recalls that freedom of speech carries with it both duties and responsibilities. It takes the
opportunity to remind the State party of its Concluding Observations, following consideration
of the State party’s reports in 2002 and 2006, in which it had commented and made
recommendations upon: (a) the considerable increase in reported cases of widespread
harassment of people of Arab and Muslim backgrounds since 11 September 2001; (b) the
increase in the number of racially motivated offences; and (c) the increase in the number of
complaints of hate speech, including by politicians within the State party.9 It also encourages
the State party to follow-up on its recommendations and to provide pertinent information on
the above concerns in the context of the Committee’s procedure for follow-up to its
concluding observations.
7. The Committee on the Elimination of Racial Discrimination therefore decides:
7 General Assembly resolution 1779 (XVII), General Assembly resolution 1780 (XVII), and General Assembly
resolution 1781 (XVII).
8 See Petition No. 33/2003, Opinion adopted on 9 March 2005, para. 7.3
9 CERD/C/60/CO/5, 21 May 2002, and CERD/C/DEN/CO/17, 19 October 2006.
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(a) That the communication is inadmissible ratione materiae under article 14,
paragraph 1, of the Convention.
(b) That this decision shall be communicated to the State party and to the petitioner.
[Adopted in English, French, Spanish and Russian, the English text being the original
version. Subsequently to be issued also in Arabic and Chinese as part of the Committee’s
annual report to the General Assembly.]
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Volume XXI - Annexes 776-799