Legal summary
April 2024
Karter v. Ukraine - 18179/17
Judgment 11.4.2024 [Section V]
Article 3
Degrading treatment
Inhuman treatment
Ineffective investigation into alleged verbal and physical attacks on the applicant, motivated by his sexual orientation: violation
Article 14
Discrimination
Ineffective investigation into alleged verbal and physical attacks on the applicant, motivated by his sexual orientation: violation
Facts – The applicant is openly gay and alleges that he was attacked on two separate occasions in which homophobic remarks were made. In 2015 he and a friend were attacked on the street by four individuals who made homophobic remarks. The applicant sustained a bruise to his face and his friend had his phone and tablet stolen. The applicant stressed to the police that the crime had been motivated by prejudice against homosexuals. The investigation appears to remain ongoing. In 2016 the applicant and another friend were harassed in a supermarket by two individuals who used offensive homophobic slurs before punching and kicking them as they entered an underground passage. Criminal proceedings were instituted on account of the injuries suffered by the friend but were discontinued on several occasions with the latest such decision being overruled as unlawful.
Law – Article 3 in conjunction with Article 14:
(a) Applicability – Both attacks fell within the ambit of Article 3. It had not been contested that the applicant had sustained injuries as a result of the 2015 attack or that Article 3 was applicable in that respect. As to the 2016 attack, although the Court could not find it established that the applicant had suffered physical injuries, it was uncontested that his companion had been physically attacked in his presence and the applicant had also been targeted. In those circumstances the applicant must have perceived the threat of physical violence not only very seriously, but as imminent, especially in view of the previous attack he had suffered in 2015. The fact that violence, or at least a threat of violence, had been directly associated with homophobic insults was also an important element in the Court’s assessment.
(b) Merits –
(i) 2015 attack – The Government had not explained why it had taken the authorities more than a week to order and conduct interviews with residents of the building at the location where the attack had taken place. There was also no indication that the searches requested into possible channels for the distribution of stolen goods had been conducted. In addition, there was no indication that the authorities had taken any steps to follow up on the applicants’ hate crime allegations. The attack had been initially classified as a robbery which had limited the nature of the police inquiries which had concentrated on the stolen property and had not included any search for individuals who might have been motivated by prejudice despite the applicant’s submissions that this might have been a motive for the crime. The authorities’ failure to react to such coherent and persistent submissions had undermined the prospects of the alleged hate crime offence being properly investigated.
Conclusion: violation (unanimously).
(ii) 2016 attack – To establish that the investigation into the 2016 attack had not been effective it was sufficient to observe that, on the day of the attack, the police had obtained statements from individuals who had essentially confessed to having participated in the attack, however the police had failed to follow up on those statements in any way. Another salient element indicating a breach of the State’s procedural obligations was the failure to respect the applicant’s rights in the proceedings. The authorities had initially refused the applicant’s application to be recognised as a victim but later noted that under domestic law there had been no need for a formal recognition decision. The police had nevertheless neglected for more than a year to inform him of its 2019 decision to discontinue the investigation, even though it had been required to do so by domestic law.
The classification of the attack as falling under the ordinary provisions of criminal law had allowed the authorities to disregard the applicant’s status as a victim by insisting that proof of physical injuries had been needed, even though he and the other victim had consistently alleged that the attack had involved not only physical violence but also homophobic slurs. By nevertheless categorising the attack as the infliction of bodily injuries, the authorities had evaded the question of such slurs and thus apparently justified their doubt that the applicant had been a victim at all as he had been unable to show any physical injuries. Therefore, there was a clear indication that the criminal-law classification the national authorities had chosen had undermined their ability to uncover the alleged homophobic motive behind the attack.
The Court also observed that the European Commission against Racism and Intolerance in its 2017 report on Ukraine had criticised the lack of explicit recognition of attacks motivated by sexual orientation as an aggravating circumstance in domestic criminal law, but its recommendation had not been followed. It had been essential for the relevant domestic authorities to conduct the investigation taking all reasonable steps with the aim of unmasking the role of possible homophobic motives for the attack. Without such a strict approach from the law‑enforcement authorities, prejudice‑motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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