Published on 20 September 2021

FIFTH SECTION

Application no. 18179/17 Nik Vitaliyovych KARTER against Ukraine lodged on 2 March 2017 communicated on 30 August 2021

SUBJECT MATTER OF THE CASE

The application concerns the State’s alleged failure to conduct an effective investigation into the alleged verbal and physical attacks on the applicant motivated by his sexual orientation.

On 14 September 2015 the applicant who is openly homosexual and who also identifies himself as LGBT rights activist - and his friend I. were the subject of an alleged physical assault in a street by a group of four individuals. The latter were allegedly using brass knuckles and making homophobic remarks. As a result of the assault the applicant suffered a bruise to his face while I. had his phone and tablet stolen.

The police instituted criminal proceedings on account of robbery. The applicant and I. were questioned and received a status of aggrieved parties. The forensic medical expert issued a report stating that the applicant suffered light bodily injuries. The applicant requested the investigator to obtain recordings of the street security cameras and information from the cell phone service providers, as well as to classify the offence under Article 161 of the Criminal Code which criminalises “violation of equality of citizens on the grounds of race, nationality, religious beliefs, disability and other grounds”. It appears that those requests were not granted while the investigation continues to be pending.

On 13 March 2016 the applicant and his friend Y. were allegedly harassed in a supermarket by two individuals. The latter were allegedly using offensive homophobic slurs. The applicant and Y. tried to escape but were physically attacked in the street by the same individuals. The applicant states that the police, which arrived shortly after, apprehended the attackers. Criminal proceedings were instituted on account of infliction of light body injuries. On several occasions the police investigator issued decisions to discontinue the proceedings, which were subsequently overturned by a prosecutor or a court. The applicant requested to be recognised as an aggrieved party and to classify the offence under Article 161 of the Criminal Code. It appears that those requests were not granted. On 20 November 2019 the proceedings were discontinued.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection from inhuman or degrading treatment (see, for example, M.C. v. Bulgaria , no. 39272/98, § 151, 4 December 2003, and Gordiyenko v. Ukraine , no. 27620/09, §§ 92-97, 16 October 2014), were the investigations in the present case by the domestic authorities in breach of Article 3 of the Convention?

2. Did the authorities investigate the existence of a discriminatory motive behind the acts of alleged violence (see, for example, Balázs v. Hungary , no. 15529/12, §§ 47-76, 20 October 2015, M.C. and A.C. v. Romania , no. 12060/12, §§ 105-26, 12 April 2016, and Grigoryan and Sergeyeva v. Ukraine, no. 63409/11 , §§ 93-98, 28 March 2017), as required by Article 14 of the Convention taken in conjunction with Article 3