2.1. European Law
According to the geographical overview of approaches adopted around the World provided by the Genetic Discrimination Observatory Ukraine currently has “not adopted specific laws, regulations, and policies to prevent GD” (
The Genetic Discrimination Observatory 2021a). On 22 March 2002, Ukraine signed the Convention on Human Rights and Biomedicine (
Oviedo Convention 1997) but has not yet ratified it (
Council of Europe 2021). This means that while there may be an intention from Ukraine to implement the content of the Oviedo Convention, there is no legal obligation to enforce it yet. The Convention on Biomedicine is important at the European level here because it contains an explicit provision against GD included in article 11. More specifically article 11 of the Oviedo Convention states that “Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited” (
Oviedo Convention 1997). Furthermore, article 12 states, that predictive genetic tests “… may be performed only for health purposes or for scientific research linked to health purposes
…” (
Oviedo Convention 1997). Thus, this provision of the Oviedo Convention also could be a non-GD tool in life insurance in Ukraine after its ratification, but still does not clearly address the issue of using existing genetic tests results for insurance purposes.
This international legislation can be implemented as a tool to reducing the risks of GD for Ukraine as a member of Council of Europe as well as a members of the Committee of Ministers, because its regulates “… the processing of personal health-related data for insurance purposes, including data resulting from genetic tests” (
Council of Europe 2016a). Similarly, with the provisions of article 12 of the Convention on Biomedicine, this recommendation (principle 4) also states that “… predictive genetic tests must not be carried out for insurance purposes” (
Council of Europe 2016a). It means insurers are not entitled to subject the conclusion or modification of an insurance policy to the holding of a predictive genetic test (
Council of Europe 2016b). Furthermore, regarding the existing genetic tests results paragraph 16 in principle 4 states that it “… should not be processed for insurance purposes unless specifically authorised by law” (
Council of Europe 2016a). While the above mentioned Recommendation does not provide a directly transposable non-GD policy for Ukraine, its provisions can play an influential role in the shaping of human rights protection against genetic discrimination in Ukraine.
While it has yet to ratify the Convention on Biomedicine, Ukraine has both signed and ratified the European Convention on Human Rights which does protect people against “… discrimination on any ground such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status” (article 14) (
Council of Europe 1950;
Verkhovna Rada of Ukraine 1997a). According to article 9 of the Constitution of Ukraine, valid international agreements, that have been approved by the Verkhovna Rada of Ukraine, are part of national legislation (
European Commission for Democracy through Law 2006;
Verkhovna Rada of Ukraine 1996a). Thus, the European Convention on Human Rights has the force of law in Ukraine. While article 14 of the European Convention on Human Rights does not provide explicit protection against discrimination based on health status, genetic status or characteristics among the specifically prohibited grounds, it does include the expressions “any ground” and “or other status” (
Council of Europe 1950). In the landmark Case of G.N. and Others v. Italy, the European Court of Human Rights stated that a difference in treatment based on a genetic disease should be considered “other status” within the meaning of article 14 of the European Convention on Human Rights (
European Court of Human Rights 2009;
Tyrer 2011). This important case shows that the expression “other status” in non-discrimination laws and policies could be interpreted to provide protection against other grounds of discrimination not specifically prohibited including, perhaps, GD. While the Decision of the Court was limited to “genetic diseases” the justification provided by the Court seem to indicate that this finding could be extended to include “genetic characteristics” (
European Court of Human Rights 2009;
Tyrer 2011).
In theory, the European Court of Human Rights cannot establish formal legal precedents through its judgements. In practice, however, its judgments are a highly influential source of law and are cited by international and national courts in order to provide strategic legitimation for their judgements (
Lupu and Voeten 2010). For instance, according to article 2 of the Law of Ukraine “On the Fulfillment of Decisions and Application of Practice of the European Court of Human Rights” and article 46 of the European Convention on Human Rights (
Verkhovna Rada of Ukraine 2006), the judgments of the European Court of Human Rights are obligatory. Additionally, according to part 4 of article 382 of the Criminal Code of Ukraine ( intentional non-compliance by an official with a decision of the European Court of Human Rights is considered a criminal act (
Verkhovna Rada of Ukraine 2001d). Article 17 of the Law of Ukraine “On the Fulfillment of Decisions and Application of Practice of the European Court of Human Rights” also stipulates that Ukrainian courts of law should apply the precedents established by case-judgments of the European Court of Human Rights as a source of law in their proceedings (
Verkhovna Rada of Ukraine 2006). This basic provision is expanded upon by other acts of the national Ukrainian legislation in part 2 of article 6 of the Code of Administrative Proceedings of Ukraine (
Verkhovna Rada of Ukraine 2005) which states that “The Court applies the principle of the rule of law, taking into account the practice of case-judgments of the European Court of Human Rights”
4 (
Verkhovna Rada of Ukraine 2005). The Criminal Procedural Code of Ukraine also includes similar provisions (
Verkhovna Rada of Ukraine 2012d). Thus, Ukrainian courts of law ought to refer to the judgment of the European Court of Human Rights in Case of G.N. and Others v. Italy (
European Court of Human Rights 2009;
Tyrer 2011) in discrimination cases involving discrimination based on genetic characteristics or genetic diseases.
2.2. National Law
After analyzing the applicable European law and of the Law of Ukraine “On the Ukrainian Parliament Commissioner for Human Rights”, researchers suggest that the Commissioner may have an implicit duty to protect people against GD in Ukraine. In Ukraine, the governmental organization related to human rights protection that provides information to help people facing discrimination is the Ukrainian Parliament Commissioner for Human Rights (hereafter Commissioner). According to subparagraph 6 of article 3 of the Law of Ukraine “On the Ukrainian Parliament Commissioner for Human Rights” the purpose of the parliamentary control by the Commissioner is the “… prevention of any forms of discrimination in relation to the fulfillment of person’s rights and freedoms;”
5 (
International Labour Organization 2021;
Verkhovna Rada of Ukraine 1997b). In addition, article 16 of the Law states that based on the information about human rights and freedom violations the Commissioner conducts legal proceedings and inspections according to appeals of (1) citizens of Ukraine; (2) foreigners; (3) stateless persons or their representatives; (4) People’s Deputies of Ukraine or, (5) on its own initiative (
International Labour Organization 2021;
Verkhovna Rada of Ukraine 1997b). While considering these appeals, the Commissioner has the following options:
“1. initiate proceedings on violation of human and citizens’ rights and freedoms;
2. explain what measures the person who has filed an appeal with the Commissioner should undertake;
3. submit an appeal, as appropriate, to the body which is competent to consider the case, and control the consideration of this appeal;
4. decline consideration of an appeal”.
6
In the context of filling the gaps in Ukrainian non-GD policy it is also useful to consider the provisions of article 13 of the above-mentioned Law, that states:
“the Commissioner has right to: … (3) appeal to the Constitutional Court of Ukraine with regard to: conformity of the laws of Ukraine …; the official interpretation of the Constitution of Ukraine and the laws of Ukraine; (3-1) make in due course proposals for improvement of legislation of Ukraine in the sphere of protection of human and citizen’s rights and freedoms;”.
7
This right of the Commissioner could be used to ask a question to the Constitutional Court of Ukraine regarding the official interpretation of the broad discrimination grounds such as “other characteristics”, “other status”, “other grounds”, or “other circumstances” in article 24 of the Constitution of Ukraine and in other Ukrainian human rights laws. The Commissioner could also, following proper investigation on the matter, make a recommendation to clarify Ukrainian human rights and non-discrimination legislation to explicitly include “genetic characteristics” as a prohibited ground of discrimination.
Indeed, while Ukraine has no specific laws that protect people against GD, there are several human rights laws that include sections prohibiting discrimination based on illicit grounds. The more relevant of these laws include: Constitution of Ukraine (
Verkhovna Rada of Ukraine 1996a); Law of Ukraine “On the Principles of Prevention and Counteracting Discrimination in Ukraine” (2012) (
Verkhovna Rada of Ukraine 2012c) and the Law of Ukraine “On Protection of Personal Data” (2010) (
Verkhovna Rada of Ukraine 2010).
The basis of Ukrainian legislation for the protection of human rights and freedoms, including against discrimination, is article 24 of the Constitution of Ukraine which establishes that “citizens have equal constitutional rights and freedoms and are equal before the law”
8 (
European Commission for Democracy through Law 2006;
Verkhovna Rada of Ukraine 1996a). Furthermore, this article notes that “There shall be no privileges or restrictions based on race, color of skin, political, religious, and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic, or other characteristics”
9 (
European Commission for Democracy through Law 2006;
Verkhovna Rada of Ukraine 1996a). Thus, the Constitution of Ukraine provides protection against discrimination of citizens on various grounds. In this case, “genetics” is not explicitly included among the listed characteristics in article 24.2, but the expression “other characteristics” clarify that the enumerated grounds are not exhaustive.
It is also helpful to analyze how Ukrainian courts of law have interpreted “other characteristics” in the meaning of the anti-discrimination part of article 24 of the Constitution of Ukraine. To date, in Ukraine, there are only two judgments by the Constitutional Court of Ukraine—the Court responsible to provide the official interpretation of the Constitution of Ukraine (
Verkhovna Rada of Ukraine 2017)—that are related to the non-discrimination grounds of article 24.2 of the Constitution and to the expression “other characteristics”. In both cases, the plaintiffs argued that “age”, as a ground of discrimination, should be placed among “other characteristics” in the meaning of article 24.2 (
Constitutional Court of Ukraine 2004;
Constitutional Court of Ukraine 2007). However, these two judgments by the Constitutional Court lack specificity and are difficult to reconcile with one another. Thus, they neither strengthen nor weaken claim.
10
The Law of Ukraine “On the Principles of Prevention and Counteracting Discrimination in Ukraine” (2012) describes discrimination and illicit grounds in greater details, according to subparagraph 2 of article 1:
“discrimination—is a situation in which the individual and/or group of persons because of their race, skin color, political, religious or other beliefs, sex, age, disability, ethnic or social origin, nationality, and marital status, place of residence, linguistic or other characteristics that existed, exist and can be real or perceived, suffered, incurred or may incur limitations in any form, established by this Law except the cases when such limitation has a legal, objectively reasonable goal, ways to achieve what are appropriate and objective”
11.
The broad formulation used that include “perceived” characteristics could be interpreted as prohibiting genetic discrimination based on the results of predictive genetic testing (
European Court of Human Rights 2009;
Tyrer 2011). The scope of the Law (according to article 4) extends to such areas of public relations as “… health care; education; the social protection; housing relations; access to goods and services; to other areas of public relations”
12 (
UPR Info 2021;
Verkhovna Rada of Ukraine 2012c). This indicates that it also applies to life insurance contracts.
More specifically subparagraph 1 of article 7 states:
“The processing of personal data shall be prohibited if such data are about racial or ethnic origin, political views, religious or other convictions, membership in political parties and trade unions, criminal record as well as if data relate to health or sexual life, biometric or genetic information …”
13.
However, based on subparagraph 2 of article 7 this prohibition “… shall not apply if the processing of personal data: (1) is conducted in case the personal data subject gives a univocal consent to the processing of such data;”
14 (
Ukrainian Parliament Commissioner for Human Rights 2021;
Verkhovna Rada of Ukraine 2010). This ‘consent exception’ substantially limits the protection of the law, most insurance application forms in Ukraine require the consent of the applicant to the processing of their health data for verification purposes.
Thus, based on the review of Ukraine’s national legislation, this country has not adopted any laws, regulations, and policies that explicitly prevent GD. However, keeping in mind Ukraine’s ratification of the European Convention on Human Rights and the practice of the European Court of Human Rights, researchers believe that a legal basis for such protection does exist in Ukraine.