The Framework of Criminal Law
Legislation on Bias-motivated Violence:
|Bias-motivated Violent Crimes as Specific Offenses||Bias as an Express General Aggravating Factor||Bias as an Aggravating Factor in Specific Common Crimes|
Bias Types Covered by Provisions on Aggravating Circumstances:
|Race/National Origin/Ethnicity||Religion||Sexual Orientation||Gender||Disability||Other|
Bias as an Express General Aggravating Factor
The Criminal Code of Ukraine contains general provisions that expressly enable the racist or other bias motives of the offender to be taken into account by the courts as an aggravating circumstance when sentencing.
Article 67 of the Criminal Code is a general sentencing provision that identifies aggravating circumstances that give rise to more serious penalties, including under part (1)(c) “a motive of racial, national, or religious hatred” in the commission of crimes. It does not set out the scope of these enhanced penalties. 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 have until now 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. 
 Criminal Code of Ukraine, http://www.legislationline.org/legislations.php?jid=53<id=15.
 Mihail Sergushev, “Apellyatsionnyj sud Kieva prigovoril chetveryh kievlyan, zabivshih do smerti 31-letnego Kang Dzhonvonga, k 13 godam lisheniya svobody kazhdogo,” Fakty, May 16, 2008, http://www.facts.kiev.ua/2008/05/16/08.htm#1.
 Union of Councils for Jews in the Former Soviet Union, “For Fourth Time, Ukrainian Court Hands Down Hate Crimes Verdict,” May 19, 2008, http://www.fsumonitor.com/stories/051908Ukraine.shtml.
 ”New Report Shows Record Number of Attacks on Minorities in Ukraine,” Union of Councils for Jews in the Former Soviet Union, April 30, 2008, http://www.fsumonitor.com/stories/043008Ukraine.shtml.
 Vyacheslav Likhachev, Ksenofobiya v Ukraine: Materialy Monitoringa 2007-2008, Kyiv, May 2008, p. 38.