FIFTH SECTION
CASE OF KIS AND LEVCHUK v. UKRAINE
(Application no. 910/18)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
9 April 2026
 
This judgment is final but it may be subject to editorial revision.

In the case of Kis and Levchuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 Gilberto Felici, President,
 Mykola Gnatovskyy,
 Vahe Grigoryan, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 910/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 December 2017 by two Ukrainian nationals, Mr Zoryan Romanovych Kis and Mr Tymur Anzorovych Levchuk (“the applicants”), who were born in 1982 and 1994 respectively, live in Kyiv and were represented by Ms Y.V. Naumenko, a lawyer practising in Kyiv;
the decision to give notice of the complaints under Articles 8 and 14 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 19 March 2026,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.  The application concerns the alleged lack of an effective investigation into the treatment to which the applicants were subjected in connection with a social experiment in which they, as a same-sex couple, participated.
2.  In 2015 an online magazine, Bird in Flight, decided to carry out an experiment, similar to one which had already been run in Moscow, and the applicants decided to participate in it. They had to walk around Kyiv city centre, holding hands in order to gauge the level of tolerance within Ukrainian society towards same-sex couples. Bodyguards were in attendance during the experiment, which was also filmed.
3.  On 15 July 2015 the applicants walked around the streets of central Kyiv for about an hour, starting at approximately 7 p.m. As nothing happened, they decided to step up the level of public display of affection. Following the approval of the organisers of the experiment, one of the applicants sat on the other’s lap on a bench in Khreshchatyk Street (the main street in Kyiv), with one of them holding a bouquet of flowers.
4.  Soon afterwards a group of young people approached the applicants, asking whether they were patriots and whether they wished their nation to be the best. The applicants responded that their understanding of patriotism was slightly different, regarding it to mean being in favour of equality. The people who accosted the applicants also reportedly said: “The guys have [this place] mixed up with America” and “Europe! Europe!”
5.  Afterwards, they subjected the applicants to pepper spray and started kicking them. The bodyguards intervened immediately, such that the violent part of the confrontation lasted some three to five seconds. The applicants did not seek any medical assistance or undergo a forensic medical examination.
6.  On 22 July 2015 the video-recording of the experiment was published on the internet[1]. On it, faces of some members of the group that accosted the applicants are visible. On the same day and afterwards, a number of news websites reported on the social experiment and its results.
7.  On 29 July 2015 the first applicant lodged a criminal complaint on behalf of himself and the second applicant. He described the social experiment, the attack, and asked the police to open a criminal case under Article 161 § 2 of the Criminal Code (violation of the principle of equality of citizens committed with violence)[2] to investigate whether the applicants had been discriminated against as homosexual people. He made no mention of any injuries. The complaint referred to the video of the incident posted online, providing its Internet address.
8.  The second applicant also lodged a complaint with the police to the same effect (no copy was provided to the Court). On 4 August 2015 the police questioned the second applicant. He reiterated his complaint and added that, after the incident, he had not sought any medical assistance. According to the police, he was offered to undergo a forensic medical examination to determine the gravity of any injuries but he refused.
9.  On 5 August 2015 the police opened criminal proceedings, under Article 296 § 2 of the Criminal Code, into hooliganism committed by a group[3].
10.  On 12 August 2015 the police closed the proceedings for lack of evidence.  The decision stated that there was no evidence other than the victim’s statements, that there were no eyewitnesses and that no video-surveillance had been found that could have led to the perpetrators being identified. Furthermore, the second applicant had refused to undergo a forensic medical examination, despite such an examination being obligatory. This meant that there were no constituent elements of the offence of hooliganism.
11.  The applicants’ lawyer was informed of the decision on 2 October 2015. On 25 November 2015 a copy of the decision was sent to her, in response to her repeated letters in which she insisted that no copy of the decision had been received. She appealed against the decision, complaining that the police had failed to include in the case file the video-recording of the event made for the online magazine, to interview the cameraman or to classify the offence as one falling within Article 161 of the Criminal Code. She also criticised the findings of the police concerning the obligatory nature of a forensic medical examination.
12.  The decision of 12 August 2015 and further similar decisions were set aside by the Shevchenkivskyi District Court of Kyiv or the local prosecutor on account of them being premature and the case was repeatedly returned to the police for investigation.
13.  In May 2016 the applicants’ lawyer asked for the offence to be reclassified as an offence under Article 161 of the Criminal Code. On 1 June 2016 the police dismissed the lawyer’s application, as no elements of an offence were apparent from the actions of the unidentified individuals.
14.  On 18 July 2016 the police collected data from mobile phone base stations at the location where the incident had taken place.
15.  On 14 October 2016 an investigator drew up a report which stated that it had not been possible to question the editor or the journalist from Bird in Flight magazine who had participated in the experiment, nor had it been possible to identify the perpetrators.
16.  The proceedings were again discontinued on 27 December 2016. However, on 16 June 2017 the local prosecutor and, subsequently, on 11 August 2017 the Shevchenkivskyi District Court set aside that decision.
17.  In September 2017 the applicants’ lawyer informed the police that the applicants had recognised a woman who allegedly belonged to the group that had attacked them in 2015. They had seen the woman in a video of events that had taken place near the Russian embassy in Kyiv in connection with a picket concerning Russian nationalists imprisoned at the time in Russia. The applicants identified a group, S., which they believed she belonged to.
18.  There is no indication of any follow-up on that information.
19.  In January 2021 and January 2022, the investigator drew up two reports which stated that it had not been possible to question the magazine’s editor and journalist who had participated in the experiment and that it had not been possible to identify the perpetrators. On 10 July 2023 the police questioned the editor of the magazine, who reiterated the applicants’ statements. In July 2023 the police lodged an application with the Shevchenkivskyi Court, asking for leave to access documents and data in the possession of local mobile phone operators.
20.  According to the most recent available information, the criminal proceedings are still pending.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 8 TAKEN in conjunction WITH Article 14 OF THE CONVENTION
21.  The applicants complained of the lack of an effective investigation into the attack. They relied on Article 8 taken in conjunction with Article 14 of the Convention, Article 13 taken in conjunction with Articles 3, 8 and 14, and Article 1 of Protocol No. 12.
   Characterisation of the complaints
22.  The Court notes certain discrepancies in the applicants’ account of the events: the applicants submitted, with their application to the Court, a photograph supposedly showing a haematoma on the first applicant’s body. However, that photograph is not dated, is of poor quality and does not contain any details which would make it possible to identify when it was taken or by whom, and who or what it was supposed to show. There is no indication that the applicants submitted that photograph to the authorities or alleged at the domestic level that they suffered any injuries.
23.  Be that as it may, the video of the incident, the veracity of which has never been questioned, shows the applicants being sprayed with pepper spray and kicked. The Court has found Article 8 to be applicable in the context of attacks on individuals’ physical integrity (see, for example, Sandra Janković v. Croatia, no. 38478/05, § 31, 5 March 2009). The Court’s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant’s physical and moral integrity are sufficiently adverse (see, for example, R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016).
24.  The reasons for the attack and the situation in which the applicants were attacked, combined with the tenor of the conversation which they allegedly had with the individuals that accosted them, indicate – at least on arguable grounds – that the attack could have been motivated by prejudice towards the applicants’ sexual orientation or the way they manifested their attitude to same-sex relations. There are also some indications that the applicants’ perceived association with foreign ideas and influence may also have played a role (see paragraph 4 above and compare, mutatis mutandis, Ilareva and Others v. Bulgaria, no. 24729/17, 9 September 2025).
25.  The Court observes that perpetrators of attacks may have mixed motives, being influenced by situational factors equally or stronger than by their biased attitude towards the group to which the victim belongs (see Balázs v. Hungary, no. 15529/12, § 70, 20 October 2015, and Sabalić v. Croatia, no. 50231/13, § 66, 14 January 2021).
26.  In view of these circumstances, the Court considers that the applicants’ complaints are to be examined under Article 8 taken in conjunction with Article 14 of the Convention (compare Ilareva and Others, cited above, § 96).
   Admissibility     The parties’ submissions

27.  The Government argued that the applicants had not exhausted domestic remedies, since they had failed to lodge an appeal concerning the investigator’s failure to classify the attack as an offence under Article 161 of the Criminal Code. They also submitted that the applicants had failed to apply to the court to obtain an order under Article 114 of the Code of Criminal Procedure setting a time-limit for procedural actions[4]. The Government referred to two domestic decisions which illustrated the effectiveness of those remedies[5]. They also argued that the complaint concerning the criminal-law classification of the attack had been premature, since the criminal proceedings were still ongoing.
28.  The applicants submitted that the possibility of lodging an appeal against the failure to reclassify the offence had not been available until the case was sent for trial. They provided an example of a local court decision which had rejected such an application on those grounds[6]. In fact, the applicants had unsuccessfully submitted several requests in an attempt to compel the authorities to investigate. They had also provided the authorities with video footage of the incident, information concerning witnesses and even potentially the identification of a person who had been in the group of attackers, but to no avail. The Court’s case-law did not link the effectiveness of an investigation to the active efforts of the victim in urging law-enforcement officials to properly perform their duties. The statute of limitation for the offence of hooliganism was five years which, on account of the delay in the investigation, had expired[7].
     The Court’s assessment
29.  The Court observes that an appeal lodged in relation to a failure to reclassify an offence cannot be examined until the case is sent for trial. It has already examined the relevant provisions of the Code of Criminal Procedure and concluded that, unless a pre-trial decision was specifically identified in the Code as being amenable to appeal during the investigation, appeals against such decisions were not an available remedy unless the case was sent for trial (see Denysyuk and Others v. Ukraine, nos. 22790/19 and 3 others, §§ 125-26, 13 February 2025). In the present case, the Government did not argue that the decision not to reclassify the offence was on the list of decisions specifically amenable to an appeal during the investigation; the example of the domestic decision they provided only indicated that an appeal had been lodged, not that it had actually been examined. In view of this, the Court cannot reach a conclusion that is different from its findings in Denysyuk and Others and does not consider that the remedy identified was available to the applicants given that the case was never sent to court.
30.  As concerns the application to the court under Article 114 of the Code of Criminal Procedure to have procedural time-limits set, the Court observes that the applicants did not explain why they did not have recourse to that procedure. It considers that there is no call to examine the effectiveness of that potential avenue of redress in principle. However, the Court does not consider, in the circumstances of the case, that the applicants can be reproached for not having had recourse to it.
31.  This is because the primary responsibility for the investigation lay with the authorities: it was never contested that the actions of the individuals who physically attacked the applicants constituted a criminal offence. Those individuals remained unidentified, therefore a civil claim could not in any case be lodged against them unless and until they were identified, which would only be possible through a criminal investigation. Therefore, the criminal investigation launched by the domestic authorities was the only avenue for elucidating the circumstances of the incident and any civil-law avenues of redress taken on their own could not be effective (see, for the relevant principles of the Court’s case-law, Söderman v. Sweden [GC], no. 5786/08, §§ 84 and 85, ECHR 2013, with further references).
32.  Under domestic law, the investigator has the primary task of conducting the investigation[8]. The Court considers that the applicants took sufficient steps to cooperate with the investigation and assist it so that it cannot be said that their uncooperative stance undermined the investigation (contrast, for example, Skant v. Ukraine (dec.), no. 25922/09, §§ 49-50, 6 September 2016).
33.  The Court is not convinced that, in the circumstances of the case, the use of the remedy under Article 114 of the Code of Criminal Procedure would succeed in reactivating the investigation in time so as to render it effective.
34.  It follows that the Government’s preliminary objection as to non‑exhaustion of domestic remedies must be dismissed.
35.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
   Merits     The parties’ submissions

36.  The applicants submitted that, because of the unacceptable delay, the mobile phone data and videos which could have captured the movements and identities of the attackers had been lost on account of the limited duration of the retention periods for such data. By now the offence under Article 296 of the Criminal Code had become time-barred, as the relevant statute of limitations was five years. The refusal to classify the attack under Article 161 of the Criminal Code was evidence of homophobia and discrimination against the victims.
37.  The Government submitted that there had been no violation of Article 8 taken alone or in conjunction with Article 14 of the Convention. There had been no obvious omission on the part of the authorities to collect relevant evidence and the investigation conducted had met all the criteria established by the Court. In the course of the investigation, a wide range of investigative actions had been taken. The requirements of speed and reasonable efficiency had been observed. An adequate legislative framework was in place protecting the principle of equality of individuals.
 
38.  The Government were not convinced by the applicants’ argument that the authorities’ initial decision to classify the attacks as an offence under Article 296 of the Criminal Code, as opposed to an offence under Article 161 of the Code, amounted in itself to a failure to comply with the procedural obligation to uncover any possible hate-crime motive in the alleged perpetrators’ acts. In this connection, the Government pointed out that it was primarily for the national authorities to interpret and apply domestic law. There were no facts indicating that there was a discriminatory motive for the offence.
     The Court’s assessment
39.  The relevant general principles have been summarised in Beizaras and Levickas v. Lithuania (no. 41288/15, §§ 106-16, 14 January 2020) and Association ACCEPT and Others v. Romania (no. 19237/16, §§ 99-103, 1 June 2021). In particular, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Burlya and Others v. Ukraine, no. 3289/10, § 161, 6 November 2018, with further references).
40.  Turning to the facts of the present case, the Court observes that the repeated premature decisions to discontinue the investigation indicate that it lacked effectiveness (see Association ACCEPT and Others, cited above, § 118).
41.  There are indications that the authorities did not take any steps to try to identify the perpetrators until July 2016 – after the decision to discontinue proceedings had been set aside, nearly a year after the attack was reported to them – when they first attempted to collect data about mobile phone connections (see paragraph 14 above).
42.  There is no indication that the question of the existence of possible video-surveillance footage – which would enable identification of the attackers – was seriously explored, despite the fact that the incident had occurred on Kyiv’s main street in broad daylight and the authorities had, from the outset, in their possession the recording of the incident that was published online. While the somewhat delayed reporting of the offence by the applicants may have made collection of such evidence more difficult, it does not appear that it was so delayed as to prevent all possibility that some recordings might have still been available (contrast Karter v. Ukraine, no. 18179/17, § 79, 11 April 2024).
 
43.  The investigation has lasted for more than ten years. The applicants’ allegation that, as a result, any potential charges would, by now, be time-barred (see paragraph 36 above) is uncontested and appears to be based on domestic law which provides for a five-year statute of limitations for offences falling in this category[9]. This passage of time is liable not only to undermine an investigation, but also to compromise definitively its chances of being ever completed (compare Association ACCEPT and Others, cited above, § 116, where the length of four years and eight months raised an issue).
44.  The Court is not convinced by the applicants’ argument that the classification of the attack as “hooliganism” necessarily in itself prevented the authorities, to which it falls in the first place to interpret and apply domestic law (see, for example, De Tommaso v. Italy [GC], no. 43395/09, § 108, 23 February 2017), from conducting the effective investigation of the incident (see, for example, Karaahmed v. Bulgaria, no. 30587/13, § 48, 24 February 2015, and contrast Karter, cited above, §§ 81 and 87-88). Indeed, the police’s initial misplaced focus on the question of the gravity of the injuries (even though the applicants did not claim to have suffered any – see paragraphs 7 to 10 above) was inexplicable regardless of whether the offence was classified as “hooliganism” or “discriminatory acts”, since there is no indication that injuries were a necessary element of either of those offences.
45.  In any event, the key steps needed to investigate the applicants’ suspicions concerning the alleged prejudice-related motivation for the attack required identifying the attackers. As the Court found above, the authorities took no sufficient steps to do so and there is no indication that initial classification of the offence played a role in that failure (compare, for example, Tretiak v. Ukraine [Committee], no. 16215/15, § 55, 17 December 2020, and contrast Karter, cited above, §§ 81 and 87-88).
46.  Those considerations are sufficient for the Court to find that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the authorities’ failure to conduct an effective investigation into the attack.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  The applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. The second applicant also claimed EUR 3,600 in respect of costs and expenses incurred before the domestic authorities and the Court, based on 36 hours of legal work at EUR 100 per hour, to be transferred directly to the lawyer’s account.
48.  The Government contested those claims, submitting that they were unfounded – since the application was inadmissible – and excessive. They argued that the terms of the contract for legal services between the second applicant and the lawyer indicated that the costs had not actually been incurred by the applicant and that the description of services provided was too general and vague.
49.  The Court awards the applicants EUR 1,600 each in respect of non-pecuniary damage, plus any tax that may be chargeable.
50.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. The Court considers the documentation provided by the second applicant sufficient to show that his claim for costs and expenses meets the above criteria (see Karter, cited above, § 98). The Court, accordingly, awards the second applicant EUR 2,500 in respect of costs and expenses, plus any tax that may be chargeable to him, to be transferred directly into the account of the applicants’ lawyer, Ms Naumenko.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;
Holds that there has been a violation of Article 8 taken in conjunction with Article 14 of the Convention;
Holds  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:  EUR 1,600 (one thousand six hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses, to be transferred directly into the account of the applicants’ lawyer, Ms Naumenko;

  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 9 April 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
 
 Martina Keller Gilberto Felici
 Deputy Registrar President
 

[1] Нападение на геев в Киеве (youtube.com).

[2] Article 161 of the Criminal Code makes it an offence to violate the principle of equality of citizens on the grounds of race, ethnicity, religious beliefs, gender or “other characteristics”. Paragraph 2 of that Article makes the same acts – if accompanied by violence, deception or threats, or if they are committed by a person exercising official authority – punishable by a fine or by imprisonment for a period between two and five years.

[3] Article 296 criminalises “hooliganism” (хуліганство, sometimes also translated as “disorderly acts”), which is defined as “a serious breach of public order motivated by flagrant disrespect for society, combined with particular effrontery or exceptional cynicism” (see Zagubnya and Tabachkova v. Ukraine [Committee], no. 60977/14, § 34, 12 November 2020). Paragraph 2 provides for punishment of up to five years’ imprisonment for hooliganism committed as part of a group.

[4] Article 114 § 1 provides that “in order to ensure compliance with the requirements to conduct proceedings within a reasonable time, the investigating judge or court may set procedural time-limits within the maximum time-limits set by the Code, taking into account the circumstances established during the criminal proceedings”. 

[5] Ruling of the Obolonskyi District Court of Kyiv of 17 October 2014 in case no. 756/14304/14-к (available at https://reyestr.court.gov.ua/Review/46493767, visited on 24 October 2025), where the court opened proceedings on an appeal from the victim against the investigator’s failure to reclassify the offence under investgation. Decision of Ternopil City and District Court of 20 June 2017 in case no. 607/14878/16-к (available at https://reyestr.court.gov.ua/Review/67249906, visited on 25 October 2025), where a victim in criminal proceedings complained that he had asked for certain procedural and investigative actions to be conducted and the investigator had granted his application on 30 September 2016 but had, in fact, taken no action. The court set a one-month time-limit in which to have the actions implemented in accordance with the victim’s application.

[6] Ruling of the Obolonskyi District Court of Kyiv of 22 October 2014, available at https://reyestr.court.gov.ua/Review/46493771 (visited on 24 October 2025).

[7] Under Articles 12 and 49 of the Criminal Code, offences punishable by up to five years’ imprisonment (which would apply to the offence of discriminatory acts, under Article 161, and hooliganism as part of a group, under Article 296 § 2 of the Code) become time-barred five years after the commission of the offence (see the relevant provisions of the Code in Zagubnya and Tabachkova, cited above, §§ 30-33).

[8] Article 9 § 2 of the Code of Criminal Procedure provides that the prosecutor, investigator or head of the investigating body must investigate the circumstances of the criminal proceedings comprehensively, fully and impartially, bringing to light both the circumstances that incriminate and those that exonerate the defendant, as well as circumstances that mitigate or aggravate the punishment; ensure their correct legal assessment; and ensure that lawful and impartial procedural decisions are made.

[9] Articles 12 and 49 of the Criminal Code provide that offences punishable by up to five years’ imprisonment (including, under Article 161 of the Criminal Code, offences of discriminatory acts; and, under Article 296 § 2 of the Code, hooliganism committed as part of a group) become time-barred five years after the commission of the offence.