FIFTH SECTIONCASE OF KARTER v. UKRAINE(Application no. 18179/17)  JUDGMENT Art 3 (+ Art 14) • Positive obligations • Inhuman or degrading treatment • Discrimination • Ineffective investigation into alleged verbal and physical attacks on the applicant, motivated by his sexual orientation • Authorities’ failure in respect of first attack to react to applicant’s coherent and persistent submissions that it was a hate crime undermined the prospects of such an offence being properly investigated • Ordinary criminal-law classification of conduct in respect of second attack undermined authorities’ ability to uncover alleged homophobic motive • Motive of sexual orientation not recognised as aggravating circumstance in domestic criminal law Prepared by the Registry. Does not bind the Court. STRASBOURG11 April 2024 FINAL 11/07/2024 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Karter v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Georges Ravarani, President, Lado Chanturia, Mārtiņš Mits, Stéphanie Mourou-Vikström, María Elósegui, Kateřina Šimáčková, Mykola Gnatovskyy, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 18179/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Nik Vitaliyovych Karter (“the applicant”), on 2 March 2017;the decision to give notice of the application to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 19 March 2024,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case, in which the applicant relied on Articles 3 and 14 of the Convention, concerns the State’s alleged failure to conduct an effective investigation into alleged verbal and physical attacks on him, motivated by his sexual orientation.THE FACTS2. The applicant was born in 1986 and, according to the most recent available information, lives in Amsterdam. He was represented by Ms Y.V. Naumenko, a lawyer practising in Kyiv.3. The Government were represented by their Agent, Ms M. Sokorenko.4. The facts of the case may be summarised as follows.5. The applicant is openly gay and identifies himself as a gay rights activist. He has spoken about the issue on Ukrainian television and in other media.2015 attack6. According to the applicant, on 14 September 2015 he and his friend Mr I.K. were attacked on the street by a group of four individuals at 1 Druzhby Narodiv (Obolonska) Square in Kyiv. The attackers used brass knuckles and made homophobic remarks.7. As a result of the attack the applicant sustained a bruise to his face (a doctor certified on the same day that the applicant had sustained a contusion (забійна рана) under his right eye.), while I.K. had his phone and tablet stolen.8. On the same day the police drew up a crime scene examination report, and questioned I.K., who described the events as set out in paragraph 6 above, and two other individuals, who stated that they had no information as to the identity of any possible suspects.9. The next day the police instituted criminal proceedings on account of robbery. At some point during the proceedings, the offence was given the additional classification of “intentional infliction of minor bodily harm” (see relevant provisions of the Criminal Code in paragraph 50 below).10. On 16 September 2015 the applicant was formally recognised as a victim (aggrieved party) in the proceedings (see the relevant provisions of the Code of Criminal Proceedings concerning that status in paragraph 52 below).11. On 18 September 2015 a forensic medical expert determined that the applicant’s injury, a stitched wound under the right eye, could have been caused on 14 September and had to be categorised as a “minor bodily injury”.12. On 16 and/or 19 September 2015 the applicant was questioned by a police investigator. He stated that at around 9.56 p.m. on 14 September 2015 four strangers had accosted him and his friend. They had started shouting homophobic slurs and hitting him and his friend. Among other things, they had hit him in the face with brass knuckles. The applicant had managed to escape and call the police, who arrived at the scene. The applicant stressed that the crime had been motivated by prejudice against homosexuals. He asked the police to investigate the involvement of “Right sector” militants who, he said, had repeatedly threatened him, including in response to the television shows in which the applicant had participated.[1]13. On 23 September 2015 the Obolonskyy District Prosecutor’s office instructed the police investigator to search for witnesses to the incident, and in particular to check pawnshops, markets and other places where Mr I.K.’s stolen belongings might possibly be sold.14. On 1 October 2015 the applicant, in a handwritten statement, asked for the proceedings to be discontinued, adding that he had no complaints against police officers and asking not to be called for further interviews in that connection.15. On 4 and 6 October 2015 police detectives reported to the investigator that, following the investigator’s instructions given on 23 September 2015, they had conducted checks in respect of individuals who had previous convictions for similar offences and who resided in the area, but that those checks had not produced any useful results. Police officers also reported that they had interviewed residents of the flats of the building at the address where the applicant had been attacked, but they had seen nothing at the time of the attack.16. On 15 October 2015 the applicant’s lawyer applied to the police for investigative measures to be taken. She stated that the attack had taken place in front of the parking area of a shopping centre and asked the police to gather video recordings from the shopping centre’s surveillance cameras.17. On 16 October 2015 the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the United Nations Special Rapporteur on the situation of human rights defenders transmitted to the Government of Ukraine a complaint made by the applicant about the 2015 attack, in which he described himself as a human rights defender who worked to defend the rights of LGBTI persons. There is no indication of any follow-up to that complaint.18. On 9 March 2016 the applicant’s lawyer submitted a request to the police to have the applicant interviewed in her presence. She submitted that the applicant had not previously been asked about any identifying characteristics which might help find and identify the attackers.19. On 10 March 2016 the applicant’s lawyer asked the police to gather information from all major mobile phone providers about all numbers located in the vicinity of the place of attack, 1 Druzhby Narodiv (Obolonska) Square in Kyiv (a square at the intersection of two main roads, where a shopping centre, a metro station, numerous high-rise blocks of flats and commercial premises are located) around the time of the attack, from 9.40 p.m. to 10.40 p.m.20. According to the applicant, in April 2016 his lawyer submitted a request, asking the police to additionally classify the attack under Article 161 § 2 of the Criminal Code (see paragraph 51 below), reiterating that the crime had been motivated by homophobic hate, as illustrated in particular by the fact that the attackers had uttered homophobic insults. She stressed that the applicant was openly homosexual and had spoken about the matter on television. For this, he had received threats. The attackers might have recognised him. The Government provided a certificate from the police stating that there was no trace of that request in the case file.21. On 17 May 2016 the police informed the office of the Parliamentary Commissioner for Human Rights that the matter of the additional classification of the attack under Article 161 § 2 of the Criminal Code would be duly examined. In response to a further request on that matter from the Commissioner’s office, the police informed it, on 20 August 2016, that the offence had been classified as a robbery.22. On 13 October 2016 the applicant’s lawyer again asked the police to conduct an additional interview with the applicant. According to the information provided by the police to the Government’s Agent on 16 November 2022, that was the last action recorded in the case. The investigation appears to remain ongoing.2016 attack23. According to the applicant’s submissions before the Court, on 13 March 2016 he and his friend, Mr Y., were harassed in a supermarket in Kyiv by two individuals, who used offensive homophobic slurs. The applicant and Y. then left the supermarket and entered an underground street passage, where they were attacked by the same individuals, who punched and kicked them. The police arrived shortly afterwards and apprehended the attackers.24. According to a medical certificate provided by the applicant to the Court, following the attack on 13 March 2016, he presented with back and stomach pain and was diagnosed with cranial trauma and bruises on his back. There is no indication in the case file as to when the certificate was issued or whether it was communicated to the authorities.25. On 13 March 2016 the applicant and Y. made statements to the police describing the events as set out in paragraph 23 above. It appears from the summary of the applicant’s statement contained in the case file that the applicant had not stated that he himself had been physically assaulted in the underground passage but rather that he had run away and called the police when the attackers had started hitting Y.26. On the same day the police interviewed Mr D.P., who stated that earlier on that day he and an acquaintance of his, Mr V.D., had been involved in a verbal altercation in a supermarket with some strangers. V.D. had followed them out of the supermarket and had then called D.P. and said that “a fight [had] started in the underground passage between [him] and those two guys.” When he arrived at the scene, D.P. had witnessed the fight, during which “one of those guys [had] tried to strike but got it in the face.” Everyone involved had then been taken to the police station. D.P. had a knife and a self-defence spray in his possession but had not used them (the police documented the seizure of those items separately). V.D. made a statement similar to that of D.P. According to his statement, in the course of the fight he had hit one of the strangers in the face.27. On 14 March 2016 criminal proceedings were instituted on account of the infliction of light bodily injuries on Y.28. On 5 April 2016 the applicant was questioned as a witness. The applicant’s statement, as recorded by the police in the case file, can be summarised as follows. The applicant stated that he was a gay rights activist. On 13 March 2016 he and his friend Y. had had a conflict with two strangers at the supermarket, who had insulted them and used offensive homophobic slurs. The strangers had left the supermarket first and the applicant and Y. went home. When they had been in the underground passage, the applicant had heard somebody running up behind them, had felt a hit on his back and, turning around, had seen the two young men with whom he had had the conflict in the supermarket. The applicant had then been hit in the stomach and the men had started hitting Y. while uttering insults. The applicant had run out of the underground passage and called the police. Returning, he had told the men that the police had been called and they had run away. After the police had arrived at the scene, he had accompanied them in their search for the attackers, who had been found and taken to the police station.29. On 5 April 2016 a forensic medical expert analysis to determine the level of severity of the applicant’s injuries was ordered.30. The investigator recorded in the file that Y. could not be contacted, making a medical assessment and interview impossible.31. On 6 April 2016 the applicant’s lawyer asked the police to formally recognise him as an aggrieved party in the proceedings, arguing that he met the definition of a “victim” (aggrieved party) set out in Article 55 of the Code of Criminal Procedure, since, during the attack, he had been hit in the stomach and shoulder and humiliated on account of his sexual orientation and homophobic insults had been directed towards him.32. The next day the applicant’s lawyer asked the police to additionally classify the attack under Article 161 § 2 of the Criminal Code (see paragraph 51 below), reiterating that the crime had been motivated by homophobic hate.33. On 18 April 2016 the police investigator refused to recognise the applicant as a victim on the grounds that there was no evidence in support of his statements that he had also been a victim in the attack on Y.34. The applicant’s lawyer appealed. She argued, in particular, that the applicant had only been interviewed as a witness, rather than a victim, despite the fact that he stated that he had been hit in the stomach and shoulder and had been insulted with homophobic slurs both at the supermarket and during the attack in the underground passage. This indicated that the applicant had suffered physical and moral damage due to the attackers’ illegal actions.35. On 16 May 2016 the Kyiv Svyatoshynskyy District Court overruled the decision of 18 April 2016 and ordered that the applicant be recognised as a victim. It did so on the grounds that the police had failed to take sufficient steps to investigate the incident and to comply with instructions issued in that regard by the supervising authority.36. On 23 May 2016 the investigator discontinued the investigation on the grounds that it had proven impossible to identify witnesses who could confirm or deny Y.’s statements and establish the circumstances of the event.

Outcome for Article 14: violation