A landmark court case on “traditional values” in Ukraine ends strangely - in victory for both sides
Two years after dozens of local authorities called on the Ukrainian government to defend the “traditional family” and ban “LGBT propaganda”, a court finds in favour of both traditional values campaigners and human rights lawyers.
In Ukraine, the often tense public battle over “traditional values” rumbles on - but in the courtroom.
In 2018, 80 Ukrainian local authorities called on the country’s parliament, cabinet of ministers and president “to defend Ukraine’s traditional family” and ban “LGBT propaganda”. In response, a Ukrainian civic organisation, We Are!, decided to press what it calls a ‘strategic’ administrative case against one of the local authorities which participated in the campaign, Chernivtsi regional council. Their suit argued that this public call by the regional council in western Ukraine amounted to discrimination.
In August, as reported by Ukrainian media Graty, a Kyiv court decided that the local authorities’ actions were, indeed, discriminatory, but did not satisfy the organisation’s case on procedural grounds. Both sides claimed the decision as victory. Here, Graty reports who supported local politicians in their campaign to defend “traditional values” in Ukraine - and what’s next for the legal standoff over “family values” in the country.
“This is a very dangerous precedent and, of course, it’s an attack on fundamental democratic principles and the right to freely pursue political activity,” says Ruslan Kukharchuk, head of the conservative Christian organisation All Together!.
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Kukharchuk is speaking in January 2020, in the corridor of Kyiv Regional Administrative Court immediately after a hearing - and the prominent campaigner is not pleased. The court did not permit Kukharchuk’s organisation to participate as a third party in the case between We Are! and Chernivtsi regional council. Although, as Kukharchuk claims, “it was us, in the civic organisation All Together!, who initiated the examination of these resolutions by the local councils.”
The We Are! rights organisation asked the court to recognise that the regional council’s call on the Ukrainian government to defend “the traditional family” in fact promotes discrimination on grounds of sexual orientation, and that the regional council’s resolution, from May 2018, should be revoked as unlawful.
At the time, Chernivtsi regional deputies were “deeply concerned” that the Ukrainian state was “paying significant attention to the artificially created problem of so-called discrimination against people with a non-traditional sexual orientation”, their resolution says. The region’s politicians believe that Ukraine needs a clearer strategy to develop and support the family as an institution, which should be based on the “spiritual and moral Christian values, which are traditional for Ukraine, and the traditional understanding of the family as the legal union between man and woman, who give birth and bring up children”.
2018: Ruslan Kukharchuk promotes the local councils' joint call on central Ukrainian authorities.
In their resolution, Chernivtsi deputies criticised a range of initiatives by the Ukrainian parliament and government to liberalise human rights legislation. For example, in 2015 former president Petro Poroshenko approved a National Human Rights Strategy, which included plans to develop legislation on civil partnerships for same-sex couples and guaranteeing safety for LGBT public events. The strategy also planned to “remove the discriminatory ban” on transgender persons adopting children and to simplify the procedure of sex correction. That same year, as part of Ukraine’s EU visa-free regime process, parliament changed labour legislation to include anti-discrimination provisions on sexual orientation and gender identity; a working group also developed constitutional amendments that would remove the words “man” and “woman” from the Ukrainian constitution’s definition of marriage.
For deputies of Chernivtsi regional council, these measures would “subvert national security of the whole country”, and in response they called on the Ukrainian government to set up a Ministry of the Family or to renew the position of government ombudsperson on family issues. Bans on LGBT public events, “homosexual propaganda” and a rejection of the Council of Europe’s Istanbul Convention - an important human rights treaty designed to prevent violence against women - were also called for.
Who is more organised?
The Chernivtsi regional council’s decision was published on the All Together organisation’s website together with more than 80 identical resolutions by local councils in Ukraine. These resolutions, sent en masse in 2018, have already had an impact. In December that year, Ukraine’s Ministry of Justice stated that, despite its obligations under the country’s National Human Rights Strategy, it would not draft legislation on civil partnerships. The ministry referred to “identical letters sent by 50 local deputies at different levels” against legislation regulating the rights of the LGBT community.
“The letters we’ve received signal that society is polarised,” said Serhiy Petukhov, then deputy minister of European integration, at a public event in December 2018. “This issue is unlikely to be regulated because the Verkhovna Rada will not vote for it.” He stated that it would be more “democratic” to listen to people who are against civil partnerships, given that their campaign was “more organised”.
“If we prove in court that it is discrimination, then their whole machine will crumble”
Kateryna Levchenko, the Ukrainian government’s commissioner on gender policy, also reacted to this campaign in defence of family values, requesting that the security services (SBU) investigate the letters which “were downloaded from the same site” and written to “manipulate and disinform”. Her request did not lead to any concrete actions by the SBU, but it did give conservative groups a reason to demand her resignation in a protest at the Cabinet of Ministers. Indeed, the head of Ukraine’s National Security and Defence Council Oleksandr Turchynov called Levchenko’s position “incompetent and aggressive”. In 2019, Turchynov headed a newly created association of evangelical organisations called All-Ukrainian Assembly, where Ruslan Kukharchuk, head of All Together!, is listed as a deputy coordinator.
A strategic case
“If we prove in court that it is discrimination, then their whole machine will crumble,” says Volodymyr Kosenko, head of the We Are! Organisation, which advocates and defends the rights of Ukraine’s LGBT community.
For Kosenko, the discrimination case against the 2018 local council resolutions is “strategic”, and says that preparations took four months of examining European Court of Human Rights (ECHR) cases.
His organisation decided to prove that the local councils’ resolutions, although declarative in character, have a real influence on Ukrainian state policy. The local authorities’ call, in Kosenko’s views, violates two articles of Ukraine’s Constitution and two articles of the European Convention on Human Rights, which guarantee freedom of expression and conviction, and the right to peaceful assembly. Moreover, the Chernivtsi regional council has no powers to call on state bodies to act “in the interests of an undefined group of persons”.
The organisation’s case was accepted in autumn 2018, and the first hearing was held in December. The defendant’s side was taken up by Serhiy Hula, a lawyer and conservative blogger, as well as several supporters, such as Rita Sakhalinska, leader of the All-Ukrainian Christian Initiative against LGBT propaganda.
At the next hearing, Kosenko recalls, the court building was quiet until several dozen young people wearing military uniforms crammed into the 10th-floor foyer. Five of them, wearing badges of the Right Sector group, followed the legal teams into the courtroom, where they sat behind Hula and, as Kosenko says, “made it very clear that they were annoyed about something”. The judge asked them to refrain from doing so, but by the end of the hearing, says Kosenko, the young men had started threatening him openly: “We’re beating Russians in the east, and we’ll sort people like you even quicker”.
“We were very scared,” Kosenko recalls. “It was impossible to get out of that courtroom. To get through the foyer, through 25-30 people, was not safe. The only thing that helped was that a court officer told us there was a back door. That saved us.” Due to fears over their safety, the We Are! Team even asked the court to examine the case in writing, but in the end continued attending hearings.
As Kosenko mentions, “everyone from the conservative and right-wingers” in Ukraine appeared at court, including regular participants of anti-LGBT protests such as Katekhon, Christian Front, the leader of Tradition and Order Bohdan Khodakovskyi, and the head of the Sisters of Saint Olga organisation, Oleksandra Sklyar. The defendants’ counsel Serhiy Hula himself has made anti-LGBT statements on his YouTube channel, as well as standing against sex education and vaccination. He also registered a petition against draft legislation designed to guarantee punishment of hate crimes, including on grounds of sexual orientation.
Strange victory, strange defeat
In the end, the case has taken more than two years. The Chernivtsi regional council twice questioned whether it was legal for the court to request the parliamentary commissioner on human rights to conduct forensic analysis in the case, whereas We Are! insisted on the analysis. In the end, according to an appeal court decision, the commissioner did not have the qualification of a court expert, and could only conduct an forensic analysis as part of parliamentary monitoring. The Kyiv court only began examining the substance of the claim in March 2020 and after hearing both sides’ arguments, decided to judge the case on written submissions from both parties. Graty asked the court why the decision took so long, but did not receive a response.
On receiving the court’s decision, both sides declared their victory. The judge, having studied the conclusions by the human rights ombudsperson, the Constitution and ECHR, concluded that the resolution by the Chernivtsi regional counsel did, in fact, call for discrimination. The judge also confirmed that the council did not have the powers to make this official request to the president, parliament and Cabinet of Ministers. The issues raised in the resolution also bore no relation to local self-governance, the judge concluded, noting that there was enough grounds to recognise the resolution as unlawful and for it to be revoked.
“The human rights bureau We Are! did not define the person whose rights, freedom and interests it was defending with this administrative case. It follows that the wrong person made the administrative case, and this therefore excludes the possibility of satisfying the administrative case,” the judge concluded.
According to We Are!, the organisation did not present a list of official case participants as a “conscious move” that factored in “issues around safety and the heightened interest of radical right-wing, religious and other organisations to this court case.” Volodymyr Kosenko says his organisation achieved its goal, despite the refusal on formal grounds.
“Now we need to ask the state why it examines these resolutions and why they contribute to a refusal of its obligations,” he says, noting that the organisation would not appeal the decision - it’s “simpler and cheaper” to file a new case with an identified participant, as the court requested.
Meanwhile, Serhiy Hula called the decision “one of the biggest legal victories”, and promised to continue “defending Ukraine, the family and children”. “This was the first case in Ukraine against our fundamental national values by organisations which propagandise the moral and physical destruction of the nation as such!” Hula wrote on Facebook. “But thank God, the court refused to satisfy this unworthy case.”
Graty asked whether the Chernivtsi regional council would revoke its family values resolution. Instead of responding, the council once again called on the state authorities to defend the institution of the traditional family.
This is an abridged translation of an original article by Graty. It is translated with permission.
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