The government’s response to the recent surge in hate crimes has been insufficient and inconsistent. President Yushchenko and some other senior government officials have spoken out against racist and xenophobic violence. However, these statements have been undermined by other declarations by some key law enforcement officials whose remarks suggested a denial of the problem. The government does not currently collect statistics or publicly report on violent hate crimes.

The authorities did take some important steps in 2007, including the creation of specialized units in key government agencies. Also, in early 2008, there were several guilty verdicts handed down in cases of violence in which incitement to hatred based on nationality, race, or religion were among the charges. However, these verdicts were exceptions to a pattern in which violent crimes with an apparent bias motivation are more often treated as hooliganism. Law enforcement officials lack training and experience in recognizing and recording the bias motivations behind attacks, limiting the ability of prosecutors to pursue hate crime cases in court. An inadequate legal framework also hinders the ability of criminal justice officials to prosecute hate crimes as such.

A. Political Will

President Yushchenko has addressed the issues of racist and xenophobic violence on several occasions, calling for more action from law enforcement agencies. In a meeting with leaders from the Jewish community on October 22, 2007, Yushchenko criticized law-enforcement agencies for their lackluster response to the recent xenophobic and antisemitic attacks in Ukraine. On April 14, 2008, President Yushchenko wrote to Prosecutor General Oleksander Medvedko and Interior Minister Yuriy Lutsenko to draw their attention to the increasing number of cases of xenophobia, racial and national intolerance reported by the national media.

Other senior government officials have spoken out against racist and xenophobic violence. On March 30, 2007, the Interior Minister Vasyl Tsushko condemned acts of xenophobia and racism at a meeting of representatives of embassies and international organizations. Tsushko denied any massive instances of xenophobic incidents in Ukraine, but recognized that single incidents could lead to an overall negative tendency. The Minister assured his interlocutors that each incident would be thoroughly investigated by the police. On April 27, 2007, the Education and Science Minister Stanislav Nykolaenko made an official statement condemning xenophobia and racial violence against foreign students. Nykolaenko spoke out against nationalist youth groups that were inciting racial hatred and provoking racial tension among students.

Similarly, on February 1, 2008, Ihor Sharov, the Chair of the Verkhovna Rada Committee on Human Rights, National Minorities and Interethnic Relations, made a statement on the increase in crimes against foreigners. He called on law enforcement agencies to hold impartial investigations and bring responsible persons to justice in these cases. He highlighted that “it is necessary to determine whether or not murders were racially-motivated.”

Significantly, on July 25, 2008, Interior Minister Yuriy Lutsenko urged the government to create a comprehensive government program to minimize xenophobia and racial intolerance. He also called on all hate crime victims to report incidents to the police.

These statements have marked a step forward. However, as discussed below, the message of the president and other senior officials has not been translated into consistent action. Generally positive statements by some politicians have also been undermined by other statements by key law enforcement officials whose remarks have been racist in nature, or have suggested a denial of the problem, both in characterization of the problem and in description of individual cases. Such statements from leading criminal justice officials run contrary to an increasing body of evidence that indicates that hate crimes have become a serious problem in Ukraine.

For example, just two weeks prior to his call for a comprehensive government program to combat xenophobia and racial intolerance, Lutsenko made admittedly racist comments in a discussion about Vietnamese and Chinese laborers in Ukraine, questioning the registration of non-CIS foreigners. A week later, Lutsenko reiterated a similar view, stating: “you can call me a racist but I will not allow Kyiv to become another Kharkiv or Odessa,” implying that foreigners are the source of crime. The media quickly picked up the story and wrote disapprovingly about the statements, although the Interior Ministry never issued an official apology.

In another incident, following the aforementioned February 21, 2008 attack on Chinese and Iranian students, Kyiv Police Chief Volodymyr Polishchuk appeared dumbfounded as to why local media was treating the incident as a racist attack. Rather, he claimed that the attacks were “just hooligan excesses.” Similarly, in response to the January 21, 2008, murder of a student from Congo and a subsequent call for action from UN officials, Mykola Onischuk, the Justice Minister, characterized this and other recent hate crimes simply as “isolated incidents.”

B. The Absence of Data and the Problem of Underreporting

The government’s response to—and even recognition of—hate crime is seriously limited by the absence of any systematic data collection by law enforcement bodies, an essential component in any effective strategy to combat bias-motivated violence. The Ukrainian authorities are not currently engaged in any official data collection or public reporting on the incidence of violent hate crimes. Without this, it is difficult for the authorities to assess the extent of the violence, as well as the extent to which law enforcement officials are responding.

In addition, underreporting of incidents by victims to the police is likely one of the greatest factors contributing to a distorted official picture. The fact that victims frequently choose not to report hate crimes can be explained by a number of factors: victims may not believe that pressing charges will bring any concrete results; hate crime victims may fear further abuse at the hands of the police; and/or they may be fearful of further violence at the hands of the perpetrator if they should report their attack to the police.

In a July 2008 report on racial discrimination in Ukraine, Amnesty International documented cases in which police have ignored reports of attacks, have been slow to respond to threats of hate violence, and have made victims and friends of victims feel as though they themselves were under suspicion.

C. Government Initiatives to Combat Hate Crimes

Despite the overall failure to collect data on hate crimes and report on responses to incidents, the government has taken some steps toward combating bias-motivated offenses, in particular by creating specialized units to address racism and xenophobia within certain ministries.

• In May 2007, the Interior Ministry developed an action plan for addressing xenophobia for the period through 2009. The plan contains a number of useful strategies for combating hate crimes, such as training law enforcement officers and reaching out to NGOs working on these issues. The plan also calls for the creation of a special unit to investigate and prevent crimes against foreigners; a unit on ethnic crime was subsequently established. However, the unit was created to combat both crime committed against foreigners as well as crimes committed by foreigners, with an initial focus on the latter. The unit subsequently shifted its attention to crimes committed against foreigners and was able to produce statistics on such crimes; however, the data was not disaggregated to show bias-motivated offenses.
• On October 24, 2007, in accordance with a presidential decree, the Security Service of Ukraine (SBU) established a special unit on combating xenophobia and intolerance. The unit is largely responsible for monitoring the activities of known neo-Nazi groups and for investigating and preventing crimes committed by such groups.
• On November 13, 2007, the Foreign Ministry created the office of Special Ambassador on Racism, Xenophobia and Discrimination. Oleksandr Gorin was appointed to the new post with a mission “to combat antisemitism, prevent instigation of interethnic and inter-religious conflicts, and coordinate activities with other ministries and departments in this context.”Gorin was subsequently appointed Deputy Foreign Minister in 2008, although he retained the special ambassadorship.
• The State Committee for Nationalities and Religion (SCNR) is another body involved in combating racism and racial discrimination. The Committee informed ECRI that it has started monitoring the media and conducting an awareness-raising campaign to involve civil society in creating a climate against intolerance and discrimination. The SCNR is also reportedly establishing an advisory council for combating xenophobia, racism and intolerance, which will include lawyers and representatives of international organisations and government agencies. The council will study the Committee’s proposals to the government and advise courts and law enforcement officials on addressing racially motivated crimes. As of the end of August 2008, however, the council had yet to be created.

Most recently, in April 2008, an Inter-Ministerial Commission on Combating Racism, Xenophobia, and Discrimination was established by the Cabinet of Ministers of Ukraine. The Commission is chaired by the SCNR and includes representatives of the Interior Ministry, the SBU, and Foreign Ministry. The SCNR organized three meetings, drafted and submitted an action plan on counteraction of xenophobia for 2008-2009, which was approved on August 6 by the Cabinet of Ministers. In addition to the above-mentioned ministries, the action plan involves the justice, education, youth, and culture ministries. Among other activities, the plan sets out:

• to initiate parliamentary hearings on combating xenophobia, racial, and ethnic discrimination;
• to improve related legislation;
• to develop bilateral partnerships with intergovernmental organizations and other governments to gain experience in practices aimed at combating xenophobia and discrimination;
• to strengthen the response to acts of bias-motivated acts of vandalism;
• to train law enforcement and criminal justice officers—including through the OSCE/ODIHR’s hate crime training program.

If fully implemented, these activities would strengthen considerably the government’s response to violent hate crime.

The Human Rights Ombudsman, Nina Karpachova, has also played a role in addressing violent hate crime. On December 10, 2007, in the course of signing a Memorandum of Understanding between U.N. agencies operating in Ukraine and the Ukrainian Ombudsman for Human Rights, Karpachova declared that preventing racism and xenophobia would be among the priority areas. In March 2008, the Ombudsman issued a public statement raising concerns regarding an anti-immigrant march in Kyiv to the SBU security services, Kyiv city officials, and the Administration of the Kyiv Polytechnic University, where the march took place. Karpachova used that occasion to note her concern over the rise of xenophobic incidents in Ukraine, particularly the “cruel murders” of African nationals. In another incident, the Ombudsman drew public attention to the attack on five Chinese nationals, who were brutally assaulted and stabbed by a group of unknown assailants.

While the creation of an inter-ministerial commission and specialized units in relevant government bodies constitutes positive steps forward, there has been no regular reporting to the public on the concrete activities of these bodies. Also, consultations between these bodies and civil society groups have been irregular. The work of these official bodies will be advanced by making their activities and achievements transparent and actively involving civil society in their efforts.

D. Hate Crime Prosecutions

In those cases where hate crimes have been reported and suspects are apprehended, police often charge them with hooliganism or another related offense that fails to recognize the bias motive. This is apparent from the lack of acknowledgement of bias motivations in sentencing by Ukrainian courts.

As mentioned above, there is no official data available to determine the extent to which suspects were apprehended in potential hate crime cases or with what criminal offenses such suspects are charged. Moreover, civil society groups have been unable to systematically gather this information.

The Ukrainian criminal code contains general provisions that permit a racist or other bias motive of the offender to be taken into account by the courts as an aggravating circumstance during sentencing. Article 67 of the criminal code is a general sentencing provision that identifies aggravating circumstances that give rise to more serious penalties, including “a motive of racial, national, or religious hatred” in the commission of crimes. A judge is not obliged, however, to consider these motivations in the sentencing, and there are no reported cases in which a judge has applied the aggravating circumstances in the final verdicts.

Article 161 criminalizes incitement to hatred, insults or discrimination based on nationality, race, or religion. The law provides for punishment of a fine, correctional labor for up to two years, or imprisonment for up to five years, depending on the seriousness of the crime, whether it was accompanied by violence, and whether it was committed by a group or by a public official. Although this provision is more applicable to cases of hate speech and discrimination, it has also been applied in cases of violent hate crimes, and has served in those cases as a means for the state to recognize the bias motivations inherent in the crimes.

Unfortunately, investigators generally lack an explicit instruction and adequate training to fully investigate possible racial or other bias motivations behind violent attacks. Furthermore, in most cases of suspected hate crimes, hate crime monitors report that prosecutors have been reluctant to bring charges under article 161 or request more serious penalties under the provisions in article 67.

However, there is evidence that police are beginning to investigate bias motivations more actively, especially in the most serious crimes, and prosecute them in a way that reflects those bias motivations. In early 2008, there were three guilty verdicts handed down in violent hate crime cases in which violations under article 161 were among the charges. These are the first such recorded cases since 1992.

• On May 6, 2008, four youths were convicted of premeditated murder of a 31-year-old Korean citizen Kang Jong Von, which occurred on April 23, 2007. The murder was described in the police report as exceptionally cruel, as the attackers beat the victim while screaming racial slurs and profanities at him. Each defendant was sentenced to thirteen years of imprisonment, and the four of them together were ordered to pay one million hryvnias ($ 220,000) to Von’s family in compensation for moral damage. The trial was marred by the perpetrators’ unapologetic behavior in court, which included laughing at a witness from the Korean Embassy.
• On April 17, 2008, the Darnitsky District Court of Kyiv convicted four suspects of murdering Kunon Mievi Godi in October 2006. The 44-year-old Nigerian citizen, who spent many years in Ukraine, was killed on the evening of October 25, 2006 near a metro station. Eyewitnesses reported that the attackers shouted racist slogans. Mievi Godi, who is survived by a Ukrainian wife and a son, died of knife wounds before police arrived. Oleksandr Shepitko was found guilty of first degree murder and incitement of ethnic hatred (article 115, part 2, and article 161) and was sentenced to eleven years in prison, while Yana Komlyuk was convicted solely of incitement of ethnic hatred, receiving a four and a half year sentence. The other two defendants avoided prosecution: one of them was a minor, and the other testified as a witness.
• On April 17, 2008, the Podolsky District Court of Kyiv sentenced 18-year-old skinhead Vyacheslav Dmitruk to three years in prison for attacking a Japanese tourist on October 27, 2007. Dmitruk was found guilty of incitement of ethnic hatred (article 161, part 2). However, the other perpetrators were never charged or investigated by the police.

These cases stand out as precedents for future investigations and prosecutions.

In what is a worrying development, in several cases, victims of hate crimes who have reportedly sought to defend themselves in the course of being attacked, have themselves been detained or faced charges of assault.

• On February 19, 2008, in Kyiv, in a supermarket near the Shuliavska metro station, three young men confronted a group Africans. One of the attackers hit and verbally insulted Daniel Osaemor, a Nigerian market trader. Upon exiting the supermarket, Osaemor was attacked again, by the original assailant and several others. He fought back, even as he was stabbed, using a metal pipe to strike one of the attackers. Both the victim and one of the assailants required hospitalization, while the other attaclers fled.

  According to the Kharkiv Human Rights Protection Group, Ukraine’s leading human rights organization, the investigator in charge of the case objected to the victim characterizing his actions as defense against a racist attack, arguing that there are no grounds to state that the assault was motivated by racism. Police reportedly allowed the man accused of wielding the knife, a Russian citizen, to leave the country for medical treatment, yet charged Osaemor with assault. Although the charges against him were later dropped, this case is an example of a predisposition in some cases of the police against victims of hate crimes. While high ranking Ukrainian law enforcers are publicly engaged in blame shifting and criminalizing foreigners, low ranking officers apply this rhetoric in practice, which can lead to mistreatment of hate crime victims.

• On April 5, 2007, Emmanuel Emanche and Jacob Ezeofor, two first-year students from Nigeria, were attacked on their way back from a nightclub in Lviv. The victims were able to defend themselves, but one of the attackers, a Ukrainian teenager, was wounded in the incident. The police arrested the original victims, Emanche and Ezeofor, although no charges were filed. One year later, the pair was still imprisoned in Lviv, and both were expelled by their universities.

E. Legislative Developments

As of August 2008, there were several proposed packages of amendments to the criminal legislation dealing with incitement and violent hate crimes, although none of them fully overcome the current weaknesses in the legal framework addressed above. Some of them seek to amend legislation that deals specifically with cases of violence:

• On January 11, 2008, Gennadiy Moskal, the people’s deputy from the Our Ukraine—People’s Self-Defense Party, introduced a bill On amending certain legislative acts in Ukraine, which would provide concrete definitions and increase the punishment for displays of extremism, xenophobia, antisemitism, racial and religious intolerance. Moskal’s bill also proposed amendments to article 161, including provisions that criminalize violence against national minorities and foreigners.
• On March 27, 2008, Anna German of the Party of Regions introduced a bill aimed to increase the punishment for incitement of political, ideological, racial, national, and religious intolerance. The draft legislation also included provisions that would allow for penalties to be enhanced in cases of assault, murder and other violent offenses in which the perpetrator was motivated by racial or national hatred.
• On March 28, 2008, Taras Chornovil, also of the Party of Regions, introduced a similar bill, aiming to amend the criminal code provisions concerning responsibility for crimes motivated by racial, national, and religious hatred. Chornivil’s bill proposed amending eight different articles of the Criminal Code.

Other bills relate more specifically to the incitement to hatred provisions in article 161 or seek to create new provisions that criminalize hate speech:

• On January 21, 2008, President Yushchenko proposed draft law no. 1395, introducing amendments to article 161 of the Criminal Code. The bill would create stiffer punishments for crimes stipulated in the article without seeking to amend the language of the article. The president’s bill was rejected in committee in April 2008.
• On April 17, 2008, Oleksandr Feldman of the Yuliya Tymoshenko Bloc registered the bill On liability for publicly praising and propagandizing Nazism and discriminatory ideology. The draft law proposed to define what is meant by Nazism and discriminatory ideology and to outline punishments for the propaganda of both.