While the lead-up to the Vilnius Eastern partnership summit has focused on a mooted EU-Ukraine association agreement, another subject that is dear to Ukrainians will be discussed, free movement across the European Union.
Ukrainians currently need to get visas to visit the European Union, sometimes having to wait in humiliating queues at EU embassies for days at a time. As many have family members within the EU, frequent trips can become an ordeal.
Ukraine was the first Eastern partnership country to launch a “visa liberalisation dialogue” with the EU, in 2008. Five years later, the country “has made substantial progress”, the European Commission says but key conditions have yet to be fulfilled.
In particular, Ukraine is supposed to make substantial changes to its anti-discrimination legislation in order to be granted visa free travel for its citizens but the EU has in the past failed to show strong conditionality on this issue.
Discrimination against LGBT – a sensitive issue
The most politically sensitive of them is granting explicit legal protection to gay, lesbians, bi- and transsexuals (LGBT) against discrimination. Kyiv also needs to reverse the burden of proof in its legislation to give victims adequate protection.
If Ukraine does not bring its legislation on LGBT up to EU standards, many Ukrainian nationals could ask for asylum in EU member states, claiming that they are discriminated against in their country.
But “voting for such a norm is seen by many MPs as a reputational loss given the lack of tolerance and acceptance of LGBT among the broader population and the active opposition to the issue on the part of the rather authoritative Orthodox Church”, the Ukrainian ombudsman told EurActiv, explaining why the legislation had stalled in the Ukrainian parliament.
The influence of neighbouring Russia is not insignificant either. This year two draft laws prohibiting “gay propaganda” were introduced in the parliament, a move that shocked many MEPs.
Dutch MEP Marije Cornelissen of the Greens warned that The Hague would simply veto visa liberalisation for Ukraine if the “despicable” laws were passed.
Although the Commission said that protection against discrimination on the grounds of sexual orientation is non-negotiable, it has in the past shown some flexibility on the issue.
In November 2009, Macedonia was granted visa free travel despite never having introduced sexual orientation as a legal grounds for protection against discrimination.
Like for Ukraine, the requirement had been presented as a core value of the EU and an indisputable condition. However, the condition was postponed and sexual orientation was never explicitly spelled out in the legislation.
According to Marije Cornelissen, however, the legal explanation coming from Skopje was “more convincing” than the one coming from Kyiv.
Indeed, in Macedonian law, protection is not granted explicitly to LGBT people, but rather uses a broad “any other grounds” formula, which analysts say allows the conservative government in Skopje to avoid having to face such a sensitive issue and a conflict with the Orthodox Church.
Asked if Ukraine could get away with an “any other grounds” formula instead of mentioning sexual orientation in their legislation, Cornelissen said: “They could try.” But, she added, it would still be up to the courts to prove that they implement such a provision in such a way that it protects LGBT people.
Moldova, reform champion
Unlike Ukraine, Moldova has passed the required reforms quite swiftly. Last week, the European Commission congratulated the Moldovan government for meeting all the benchmarks set out in the action plan and recommended that the visa barrier be lifted for Chișinău, the capital.
The final decision is of course in the hands of the heads of states and governments and the European Parliament but chances are good that free travel across Europe will very soon become a reality for Moldovan citizens.
Yet, Moldova started the visa talks two years after Ukraine, which was seen as the “leader of the pack” among Eastern partnership countries.
Ukraine has yet to deliver not only on anti-discrimination legislation, but also on anti-corruption measures and in some technical aspects in the field of asylum, such as the provisions on medical care for asylum seekers.
As soon as member states and MEPs give their green light, Moldovans will be able to travel freely across the Schengen area for 90 days per year.
Moldova’s visa free travel agreement is accompanied, however, by a suspension mechanism to avoid having a repeat of the previous wave of visa liberalisations, when so-called fake asylum seekers flooded EU countries in search for better economic conditions.
Ukrainian journalists’ visas scandal
As the ties between the EU and Ukraine grow closer, Ukrainian citizens, journalists, businessmen regularly seek visas to travel to the Schengen area. In 2012, around 1.3 million were granted this precious piece of paper but refusals remain frequent.
EurActiv recently reported that a group of high profile Ukrainian journalists invited to an event in the European Parliament received only two-day visas from the Belgian consulate in Kyiv.
The journalists told EurActiv they did not believe that they had been victims of bureaucracy, saying that they were quite certain this was a showcase of the EU's negative attitude towards their country.
EurActiv asked both the Foreign Ministry and the Immigration Office of Belgium for comment, but both kept passing the responsibility onto the other.
Alexander Sushko, scientific director of the Institute for Euro-Atlantic Cooperation, sent to EurActiv the following comment after the publication of this article:
“Ukraine won't be able to implement the Action plan for visa liberalization with the EU without the adoption of the law which protects from discrimination on the sexual orientation basis in labor relations. The adoption of such a law is a general standard of the legislation of EU countries.
“However, it is necessary to take into account that draft laws which have to do with sexual minorities issues are unpopular in traditional societies. The Ukrainian society and the Ukrainian political class hope for understanding on the side of the EU in this delicate question. It is objectively difficult for Ukraine to make a choice between "visa-free regime" and "sexual orientation".
“Besides, the draft law on prevention and counteraction of discrimination in Ukraine (No. 2342) says: "Ukraine provides equality of labor rights to all citizens, irrespective of their origin, social and property status, racial and national identity, gender, language, political views, religious beliefs, sort and nature of occupation, place of residence and other circumstances". All possible vulnerable categories of citizens fall under other circumstances – both homosexuals, and autists, and single mothers, and others. And to declare the rights of sexual minorities separately means to create additional tension in the society.
“Thus, it is necessary to understand that the simplification of visa regime with the EU countries is one of the most important questions for Ukraine now. Ukrainians see the possibility of free movement in the EU countries as an exclusively European value available meanwhile only on a unilateral basis. And the humiliating procedure of obtaining visas in embassies of the European countries doesn't add to the positive image of the EU.”
The Ukrainian authorities must make real progress towards the elimination of torture and other ill-treatment by law enforcement officials, in line with the country’s international obligations, Amnesty International said in the context of discussions surrounding the EU-Ukraine association agreement.
“Irrespective of the future of the Association Agreement with Ukraine, the EU must work to ensure Ukraine complies with its international obligations. Ukraine is an important member of the European and international community. The country’s authorities have voluntarily signed up to all major international human rights agreements – the absolute ban on torture among them,” said Nicolas Beger, Director of Amnesty International’s European Institutions Office.
- 28-29 November: Eastern Partnership Summit in Vilnius