Заборона дискримінації: питання законодавчного закріплення та застосування в Україні
Prohibition of discrimination: issues of legislative consolidation and application in Ukraine

Summary/Abstract: The article highlights the theoretical and practical aspects of anti-discrimination principle under the national legislation of Ukraine. Despite the fact that the Law On the Principles of Preventing and Combating Discrimination in Ukraine meets modern requirements for such laws, the statutory structure of discrimination and its forms shows up a number of shortcomings.One of them is the use of auxiliary features in the definition, which do not define, but merely help to prove discrimination. Such features include, in particular, finding a comparator, the need for which is not always the case. In addition, the law also does not provide for the division of responsibilities for proving discrimination, so that proving both positive and negative signs is the responsibility of the person who alleges a violation of his or her rights. Thus, the plaintiff in discrimination cases bears a disproportionately heavy burden of proof.Disadvantages of the prohibition of discrimination include such phenomena as inflation of the concept of discrimination (blurring of its boundaries), as well as the accumulation of the prohibition of discrimination on the violation of fundamental rights.Inflation of the concept of discrimination is that the latter recognizes any inequality in the exercise of rights. This is a kind of “truncated” (compared to the one enshrined in the Law) formula of discrimination, the application of which causes “swelling” or “inflation” of its concept, because in fact any violation of law or arbitrary behavior of state bodies against a person can be considered a violation. equality in the exercise of rights, ie as discrimination.Overload as another issue of domestic application of anti-discrimination principle. The application of the latter comes along with the establishment of a violation of the substantive right. Meanwhile, discrimination must be established in cases where the qualification of the violation is not limited to a violation of a right or freedom. In other words, a situation in which a court finds both a violation of a fundamental right and a violation of the anti-discrimination principle is inadmissible.

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