Communicated on 28 May 2019
THIRD SECTION
Application no. 57385/18
Aleksandr Yuryevich LI
against Russia
lodged on 19 November 2018
STATEMENT OF FACTS
The applicant, Mr Aleksandr Yuryevich Li, is a national of Uzbekistan, who was born in 1982 and lives in the town of Sincheon-Ri, the province of Gyeonggi-do, South Korea. He is represented before the Court by Mr Anton I. Ryzhov, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
As of November 2007 the applicant, an ethnic Korean, moved to Moscow and worked as a cook.
1. Incident of 17 June 2014
At around 9.30 p.m. on 17 June 2014 the applicant waited for a tram next to the metro station Sokol. He was attacked by a group of young people who beat him up with sticks, feet and fists. They then stole his mobile phone and 10,000 Russian roubles (RUB) and left him on the pavement. A passer-by called an ambulance and the police.
As a result of the attack the applicant had a spinal contusion at the level of the sixth and seventh vertebrae involving the lower paraplegia and impeding the functioning of pelvis. This condition was later characterised “as life-threatening serious bodily harm” within the meaning of the relevant criminal law provisions.
The applicant was placed in a hospital and the next day he was visited by two police operatives who collected his statements. No official actions followed, so the applicant applied to NGO Committee on Civil Assistance, where he received financial and legal assistance.
2. Ensuing criminal proceedings
It appears that criminal investigation was eventually instituted. As it was discovered that the crime had been committed by a neo-nazi group called ‘Restrukt’, the applicant’s case was joined to the criminal cases of other victims of the group.
(a) Conviction of Ke., Ko. and She.
By a judgment of 27 June 2017 the Babushkinskiy District Court of Moscow (the District Court) found a group of individuals Ke., Ko. and She. guilty of having inflicted “life-threatening serious bodily harm” on the applicant, committed “without obvious reason” (из хулиганских побуждений) as part of a group under Section 111 of the Criminal Code of Russia and sentenced them to various terms of imprisonment. Ke. and Ko. received three years’ sentence, whilst She., who was also found guilty in respect of a similar attack on a different person, was sentenced to ten years in prison. The court established that it had been a premeditated attack which initially aimed a different person of Asiatic origin who had purportedly dealt drugs. The court also ordered Ke., Ko. and She. each to pay the applicant RUB 50,000 (around 800 euro).
The judgment of 27 June 2017 was upheld on appeal by the Moscow City Court on 21 May 2018. Despite the applicant’s objections that the trial court’s assessment failed to take into account the racist background of the crime, the court upheld the first instance judgment.
(b) Conviction of Fi. and Ma.
By two judgments of 11 April 2016 and 8 November 2016 the District Court also convicted individuals Fi. and Ma. of the same crime in respect of the same incident.
The judgments were upheld on appeal on 28 March 2017 and 11 April 2018.
It appears that at a later date these proceedings the proceedings were partly remitted back to the trial court in respect of certain unrelated episodes. According to the applicant, the result of this remittal is that he is, for the time-being, precluded from lodging a civil claim in respect of pecuniary damage in respect of the incident.
B. Relevant domestic law and practice
Section 111 of the Criminal Code of Russia provides that infliction of life-threatening serious bodily harm is punishable by up to eight years of imprisonment. Part 2 of the same Section in subparts (e) and (f) specifies that the same acts committed “without obvious reason” (из хулиганских побуждений) or motivated by racial or ethnic hatred (по мотивам расовой, национальной ненависти) are punishable by up to ten years of imprisonment.
COMPLAINTS
Under Article 3 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicant complains about the State’s breach of positive obligation properly to react to the incident. He claims, in particular, that the punishment was too mild and that the domestic courts failed to characterise the attack as racially motivated. The applicant also deplores the low amount of the non-pecuniary award as well as his inability to claim pecuniary damage in separate civil proceedings.
QUESTIONS TO THE PARTIES
1. Did the domestic authorities duly investigate and respond to the applicant’s allegation that the events of 17 June 2014 had a racist character? The respondent Government are requested to provide a copy of the entire investigation file into the events.
2. In view of the answer to the above question, was there a violation of either Article 3 or Article 8 of the Convention, taken alone or in conjunction with Article 14, on account of the reaction of the domestic authorities?
3. Was the existing Russian legal framework and in particular the provisions of Article 111 of the Criminal Code adequate for dealing with cases of racially motivated attacks? In view of the answer to this question, was there a violation of either Article 3 or Article 8 of the Convention, taken alone or in conjunction with Article 13?
4. Regard being had to the applicant’s allegation that the non-pecuniary awards ordered by the courts in his favour (around 800 euro from each perpetrator) were too low, did the domestic courts comply with the requirements of Article 3 and/or Article 8 of the Convention in so far as the amounts of non-pecuniary awards are concerned?
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