Let’s Fight Racism Together

14.12.2008

Some Provisions of the Criminal Code of Ukraine and the Specifics of Their Application

Filed under: Uncategorized — legalantiracism @ 08:33

Crimes against the life and the health of a person (Section II of the CC of Ukraine)

Article 126. Battery and torment

1. Intentional blows, battery or other violent acts which have  caused physical pain but no bodily injury, — shall be punishable by a fine of up to 50 tax-free minimum incomes, or community service for a term of up to 200 hours, or correctional labor for a term of up to one year.

2. The same acts characterized by torment, committed by a group of people or for the purpose of intimidating the victim or his relatives, — shall be punishable by restraint of liberty for a term of up to five years, or imprisonment for the same term.

Article 125. Intentional trivial bodily injury

1. Intentional trivial bodily injury, — shall be punishable by a fine of up to 50 tax-free minimum incomes, or community service for a term of up to 200 hours, or correctional labor for a term of up to one year.

2. Intentional trivial bodily injury that caused a short-term health disorder or insignificant loss of working capability, -shall be punishable by community service for a term of 50 to 200 hours, or correctional labor for a term of up to one year, or arrest for a term of up to six months, or restraint of liberty for a term of up to two years.

In the case of these types of crimes (namely Article 125, and Article 126 (Para. 1) of the CC of Ukraine) the preliminary and pre-trial investigation is not conducted (Article 111 of the CPC of Ukraine). Moreover, Article 27 of the CPC of Ukraine provides that the criminal proceedings on these cases may only be initiated on the basis of the application (report) by the victim. Whereas concerning the other types of crimes considered in this publication, a report by a third party may also be the ground for initiation of the criminal case. In cases where the currently analyzed types of crimes are concerned the burden of supporting the accusation (educing the evidence on the presence of the body of the crime in the acts of the accused at the court hearing) fully lies with the victim.

Report on crime, for which the liability is prescribed by these provisions, shall be filed to the local rayon or municipal court, depending upon the place of the incident.  Surely, in those cases, where the bodily injuries are concerned, medical certification and ascertainment of the severity level is required. Medical certification shall be conducted by a specialist of the forensic medical examination bureau. It may be carried out by the referral of law enforcement agencies or upon the victim’s initiative (however, the latter case is on a fee paid basis). Therefore, in case you have suffered bodily injuries, even if they are obviously insignificant, we recommend you to address the police (See the section Report on Crime for more details) first, preferably with written report on crime, and request a referral for the medical certification. Mind also the fact that bodily blows vanish with time! Hence, if the police is delaying the referral, take the initiative and undergo the medical certification at your own expense.

If it is established by the forensic medical examination, that the bodily injuries are of low level severity, without delay, submit the report on crime to the local court at the place of the incident (see Attachment 4 for the template of such report). Attach to the report the certificate of the forensic medical examination as well as other evidence of the crime.  In case you had to undergo the medical certification on your own cost, as a result of the delay in issuing the referral by the police, request the compensation of these expenses in the report of the crime. To support this request attach the copy of your report to the police, whereby you requested such referral and the evidence of the receipt of this report by the police.

However, even if the forensic medical examination ascertains that the bodily injuries you have suffered are trivial or if the battery and torment you have suffered have not caused any bodily injuries, but you are reasonably convinced that the incident was motivated by racism, then while addressing the police insist on your version of the perpetrator(s)’ motive and provide the evidence of it. Point to the necessity of classification of such incidents as the accumulation of crimes defined by Articles 125 (or 126) and 161. If the police officers do not take your arguments into account and reject you in initiating the criminal case on the accumulation of crimes, then you may appeal against their action in accordance with the procedure, prescribed by law. The specifics of the mechanism will be analyzed in detail in the Report on crime section.

Note that Para. 2 of the Article 126 is the exception from the rules outlined above. However, for the act (infliction of blow, battery or other acts causing physical pain, but not bodily injuries) to qualify for this provision, presence of one of the following classificatory characteristics is essential. This act should have a character of torment; or/and be committed by the group of people; or/and be committed with the aim of intimidating the victim or his or her kin. Presence or absence of these characteristics shall be ascertained in the course of the investigation and classification of the crime. If you are personally convinced that the incident, which has happened to you, falls under this definition, insist on your version. The crimes, which are embraced by this provision are subject to an investigation by the MoI agencies, hence, it is better to submit the report on such crime directly to  them (Para 1 Art 112 of the CPC of Ukraine).

This provision from our point of view has special significance. Because the attacks committed by neo-nazi groupings, even when, fortunately, have not caused bodily injuries fall under the category of the crimes embedded by this provision. Since, such attacks a) are committed by a group of people; b) their motive and real consequences, usually, is the intimidation of the victim and his/her kin and kiths[1], furthermore c) the torment of a person (abasement of the dignity) on the basis of his/her perceived race of ethnic origin, has the incitement of inter-ethnic hatred as are its actual consequences. Such hatred is stemming from fear and the sense of defenseless, which these actions give rise to. The latter characteristic (point «c») also points out to the presence of the features of the crime defined by the Article 161 of CC of Ukraine, which will be considered below.   Hence, in such cases, when reporting a crime to the police, indicate all the details listed above with regard to the character and consequences of the crime, as well as insist on appropriate classification of the crime. But again, if the police refuses to initiate the criminal proceedings while classifying the incident under the Article 126 Para 1, then challenge the refusal (strategy of action in such situations will be discussed below).

Therewith, if any of the incidents analyzed above occur, then we recommend you to call the police to come to the place of incident as soon as possible. It might help to catch the criminals faster or identify them. If this is impossible, as well as after the preliminary classification is carried out, follow the scheme described above.

Article 122. Intentional bodily injury of medium gravity

Intentional bodily injury of medium gravity, that is a willful bodily injury which is not dangerous to the life and does not result in the consequences provided for by Article 121 of this Code, but which have caused a lasting health disorder or a significant and persisting loss of not less than one-third of working capability,-

shall be punishable by correctional labor for a term of up to two years, or restraint of liberty for a term of up to three years, or imprisonment for a term of up to three years.

2. The same actions committed for the purpose of intimidating the victim or his/her relatives, or coercion to certain actions, — shall be punishable by imprisonment for a term of three to five years.

Article 121. Intentional grievous bodily injury

1. Intententional grievous bodily injury, that is a willful bodily injury which is dangerous to the life at the time of  the infliction, and has resulted in a loss of any organ or its functions, or has caused a mental disease or any other health disorder attended with a persisting loss of not less than one-third of working capability, or interruption of pregnancy, or permanent disfigurement of face, —

shall be punishable by imprisonment for a term of five to eight years.

2. Intententional grievous bodily injury committed by a method characterized by significant torture, or by a group of people, and also for the purpose of intimidating the victim or other persons, or committed as a contracted offense, or which has caused death of the victim, — shall be punishable by imprisonment for a term of  seven to ten years.

As it was noted above, the decisive precondition for the delimitation of the types of crimes defined by the Articles 121 (Intentional grievous bodily harm), 122 (Intentional bodily injury medium gravity) and 125 (Intentional trivial bodily injury) is the gravity of injuries suffered by the victim. The level of gravity of the bodily injuries is ascertained by the results of forensic medical examination. The fundamental procedural difference between these articles is that on the cases, having the features of the crimes defined by Articles 121 and 122, unlike in the cases where Article 125 is concerned, the preliminary and pre-trial investigation shall be carried out. Such cases lie within the investigative competence of the MoI agencies. Within the framework of the judicial proceedings on these cases, the victim has a right (but not a duty) to support the accusation. Moreover, the role of the victim in the judicial proceedings on such cases is only supplementary to the prosecutor, who implements the principle accusation functions. In such cases one should report on the crime to the MoI agency according to the place of the incident.

Please, pay attention of the content of the Immediate reaction tips section:  if you feel pain (which is inevitable in case you have suffered severe bodily injury) seek medical assistance immediately (call the emergency ambulance), and call up police immediately.   Mind that doctors are obliged to inform the law enforcement authorities for the admission of the person whose bodily injuries appear to have been caused violently. Calling up the police by you or by medical doctors is considered as «report on crime» from a legal perspective. Still, after the victim is capable answering the questions, the police will come to the hospital or invite him/her to the police station for interrogation on the incident.  However, if the police had not reacted on your call, or you had not called the police and/or the emergency ambulance, then as soon as possible address the territorial unit of the police at the place of the incident and report the crime orally or in writing.

Article 115. Intentional homicide

1. Intentional homicide, which has willfuyl and unlawfuyl caused the death of another person, — shall be punishable by imprisonment for a term of seven to fifteen years

2. Intentional homicide:

(1) of two or more persons;

(2) of a young child or a woman who, to the knowledge of the culprit, is pregnant;

(4) committed with special brutality

(7) based on hooligan motives;

(12) committed by a group of people upon prior conspiracy;

…, —

shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment with forfeiture of property in the case provided for by subparagraph 6 of paragraph 2 of this Article.

Article 129. Threat to kill

1. Any threat to kill, if there was a reasonable cause to believe that this threat may be fulfilled, — shall be punishable by arrest for a term of up to six months, or restraint of liberty for a term up up to two years.

2. The same act committed by a member of an organized group, — shall be punishable by imprisonment for a term of three to five years.

These crimes are also subject to the investigation by the agencies of MoI.

Note that apart from classifying principles, provided by the Articles of the Special Part of the Criminal Code themselves, the provisions of the General Part of the Code also have fundamental importance.

Thus Article 67 of CC of Ukraine (Circumstances aggravating the punishment) provides the following:

1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:

(2) the commission of a crime by a group of people upon prior consent;

(3) the commission of a crime based on racial, national or religious enmity and hostility;

(4) the commission of a crime in connection with the discharge of official or public duty by the victim;

(10) the commission of a crime in an extremely brutal maner;

(13) the commission of a crime by a person in a state of alcohol or drug intoxication;

2. Depending on the nature of a crime committed, a court may find any of the circumstances specified in paragraph 1 of this Article, other than those defined in subparagraphs (2)[2], (6)[3], (7)[4], (9)[5], (10)[6], and (12)[7], not to be aggravating, and should provide the reasons for this decision in its judgment.

Thus when inflicting a punishment within the limits of the sanction provided by each of the provisions cited above, a court shall take into account the aggravating circumstances, defined in the Article 67 (Para. 1) of the Criminal Code of Ukraine. In particular, the fact that a crime had been committed on the basis of racial, national or religious enmity or hostility (Art. 67 Para 1(3)), shall be regarded as a circumstance aggravating the punishment by a court. Art. 67 (Para. 2) however, provides that some of these circumstances, including the one defined by Art. 67 Para 1(3), a court may disregard it, depending on the nature of the crime. This nonetheless doesn’t mean that a judge (a court) may just ignore this circumstance. Firstly, this decision should be legally motivated (the reasons for non-recognition of the circumstance listed in the provision should be stated in the verdict). Secondly, such decision of the judge should be predicated upon the nature of the crime. It is hard to suppose that a judge could consider the racist motive of the serious offense, especially when that motive plays a significant role in the crime, as non-aggravating.

But the practice shows that for some reason judges in Ukraine do not apply this provision (Art. 67 Para 1(3) at all. Furthermore, while taking into account other aggravating circumstances listed in Art. 67, they seem to «forget» the existence of the provision relating to the racist motivation of the crime. Thus, although the authors of this publication have been keeping a close watch on the adjudication of cases involving racist motivation by national courts (as well as law enforcement practices in the field) for quite a long period of time, do not know of any case, where the Article 67 Para (3) was referred to in any form.  Unfortunately, this is most probably caused by the lengthy non-recognition of the existence of racism as a social phenomenon in Ukraine by the authorities. As a result, the experience of the application of anti-racism laws has been practically absent. In other words, the law enforcement authorities and judiciary simply don’t know that this legal provision exists.

What are the consequences of such ignorance? Continued non-recognition of the scope of the problem, it’s inadequate prophylactics, and impunity of perpetrators. That is why the active position of the victim, his/her efforts aimed at assertion of the due consideration to the racist motive of the crime in the process of investigation and adjudication of each particular is of great importance.  Law enforcement agencies and courts tend to classify racist crimes as simple hooliganism or as violent crimes motivated by hooliganism. Often such practice does not result from the prejudicial attitude of the public officials (though this may also be the case), but rather, from their desire to find the easiest way of handling things. In our opinion, namely the victims’ understanding of their rights and their commitment to stand for them through  the insistence on the adequate classification of the racist crimes is an effective tool to break this «vicious circle». Ukrainian human rights NGOs are ready to provide their support in this anything but simple task.

Crimes against … personal rights of persons and citizens (Section V of the CC of Ukraine)

Article 161. Violation of citizens[8] equality based on their race, nationality or religious preferences

1. Intended actions aimed at inciting national, racial or religious enmity and hatred, humiliation of national honor and dignity, or the insult of citizens’ feelings in respect to their religious convictions, and also any direct or indirect restriction of rights, or granting direct or indirect privileges to citizens based on race, color of skin, political, religious and other convictions, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics, -shall be punishable by a fine of up to 50 tax-free minimum incomes, or correctional labor for a term of up to two years, or restraint of liberty for a term of up to five years, with or without the deprivation of the right to occupy certain positions or engage in certain activities for a termof  up to three years.

2. The same actions accompanied with violence, deception or threats, and also committed by an official, -shall be punishable with correctional labor for a termof  up to two years, or imprisonment for a term of up to five years.

3. Any such actions, as provided for by paragraph 1 or 2 of this Article, if committed by an organized group of persons, or where they have caused the death of people or other grave consequences, -shall be punishable by imprisonment for a term of two to five years.

This article is a specific provision of the Criminal Code of Ukraine providing for the mechanism for brining persons to criminal liability for the propaganda of racist ideology, discrimination on the basis of color of the skin, ethnicity or religion, affronting the person (group of people) solely on the ground of their ethnic origin or the attitude to religion.

The identical article was first introduced into the criminal law of Ukraine (Soviet Republic of Ukraine -SRU) back in 1989. Introduction of this provision, most probably, was due to the pressure of the U.N. Committee for the Convention on the Elimination of All Forms of Racial Discrimination (the Committee) upon the USSR, and consequently SRU. The Committee demanded that the USSR and its republics (SRB and SRU)[9] implement their obligations under Article 4 of the Convention, in particular the one prescribed by clause «a»:

«declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof».

During «perestroika», the Soviet Union was actively trying to demonstrate to the international community positive changes in the field of human rights protection in the country. In 1980’s the Committee, when considering USSR[10] reports, repeatedly draw the attention of the Government to the necessity to duly implement the cited provision. In the run-up to the next report by USSR before the Committee, the article aimed at meeting the  obligation under the cited provision of the convention, was introduced into the criminal codes of some of the USSR Republics, uncluding SRU (Art. 66 of the CC of SRU). It’s hard to disagree with the opinion, expressed by many lawyers and human rights activists, that the wording of this article is far from perfect. Probably its deficiancy is due to the fact that the introduction of the Article did not result from the aknowlenged necessity to bring the perpetrators of these acts to justice, but rather, if one can say so, «for the sake of appearance» — to show to the international community USSR’s striving to implement the obligations under the international human rights law.

After the collapse of the USSR the Criminal Code of SRU remained in force in the territory of the independant Ukraine. It was sligtly ammended for the purposes of operation on the territory of the independant state with a new type of social order, however this changes did not affect the analysed article. In 2001 the new Criminal Code of Ukraine was addopted (which is currently in force), the provision of Article 66 migrated there without any changes as the current article 161.

Regardless of the deficiency of the wording of this provision — it remains the only beggotten instrument to oppose the iniquity of racism in the Ukrainian society, which at least some times is taken up by the state authorities. We believe that only relevant practice of the application of this provision can turn it from «the norm for the sake of appearance» into the effective mechanizm of counterstand to the racist propoganda. Hence, we’ll consider this provision and possibilities for its use in detail:

As the body of the crime prescribed by Article 161, is fully based on the racist motive, according to the rules of the crimes classification, Article 67 Para 1(3) may not be applied to the acts defined in Article 161 as an aggravating circumstance. Classic example of the application of the provision of Article 161[11] is to bring to criminal liability the person who publicly expressed (for example through a newspaper article) comments on superiority of one group of people over the other on the basis of the  national origin, color of skin etc. These actions should be classified as a crime under Article 161 Para 1. Furthermore, if these people’s comments lead to violence (for example bashing) committed by members of one group against the members of another group on the basis of perceived ethnic or other origin of the victims, where someone was seriously injured, the comments leading to these events, should be classified as a crime under Article 161 Para 3, as such that caused grave consequences.

However, in Ukraine there are only few examples of such «classical» application of the provision of Article 161. Unfortunately, the Prosecutor’s Office within the competence of which the investigation of the crimes classified under Article 161 lie, is for some reason reluctant to initiate criminal cases under this provision. In a way this reluctance may be attributed to the lack of understanding of the problem by the Prosecutor’s Offices and to its insufficient practical experience in this field. In some way this can also be attributed to the insufficient effectiveness of the system of the Prosecutors’ Offices in Ukraine as a whole. The only effective way to overcome this problem and to  effectively prosecute propaganda of racism by the neo-nazi groupings, some media as well as some politicians, is again the active positions of those who are concerned with this problem.

The crimes, defined by this article, lie within the investigative competence of the Prosecutor’s Office. Therefore, it is better to report on the acts, which on your opinion have features defined by Article 161, straight to Prosecutor’s Office. See Attachment № 3. This report should contain the same elements as all the other types of reports on crimes (considered in more detail in the Report on crime section of this publication). The only specific is that it should be filed in a written form.

The Prosecutor’s office should react on the report of the crime as soon as practicable. However, if after one month, after your report had been received by the Prosecutor’s Office, no reply is followed, or you have received a runaround in reply[12], then you can file a law-suite against the Prosecutor’s office for its failure to act, if you are certain of the nature of the facts you have reported to it. In this case you should adduce a proof of your position[13]. For example, you can subject the publication to the expert analysis to ascertain the presence of the comments inciting inter-ethnic or other hatred in it. Such expert analysis should be however authoritative enough for the court to recognize it as an evidence in the proceedings where the failure of the Prosecutor’s Office to act is being tried. Some of the NGOs, whose contacts are listed in the Directory of Useful Contacts, can assist you in the preparation of the law suit for these purposes.

Nonetheless, the «classic» application of Article 161 considered above is not the only appropriation it was designed and can be used for. Any violent act motivated with racism on its own terms is «intentional act aimed at incitement of ethnic, racial and religious enmity and hatred. Any such act, especially committed by the adepts of neo-nazi ideology (absolutely unprovoked attack motivated solely by racism) leads to deepening the isolation of the group it was directed against, stirs up the atmosphere of fear and alienation of the different ethnic, religious and other groups in the society.  This effect in its turn is a factor stirring up the enmity between such groups.

The object of the crimes embraced in Article 161 is the human dignity and the social order as such. Whilst, the object of these violent acts are: the person’s life, his/her health, and physical integrity. This means that according to the rules of the crime classification, when the racially motivated violent act is committed, there is an accumulation of crimes. Namely, simultaneously by one action, two crimes are committed. Which means that racially motivated violence should be considered as a crime under the relevant article of the Section II of the Special Part of Ukrainian CC (e.g. Article 115, or Article 121 etc.), with due consideration of the aggravating circumstance defined by Article 67 Para (3), combined with a crime under the relevant paragraph of the Article 161. See Attachment № 17.

Thus, if from your point of view the violent attack was racially motivated, then you have to explain to the investigator from which words or actions of the perpetrators or other attributes of the crime you understood this. In such cases you should also insist on classification of the crime under Article 161 of the CC of Ukraine in addition to that, under which the violent act itself is classified. Moreover, you should insist that due consideration to the motive should be given in light of the provision of Article 67 Para 1(3).


[1] Often these crimes intimidate visible minorities because they identify themselves with the victim, since the violence was racially motivated. In practice the infromation on racially motivated attacks and consequently, the athmosphere of fear, caused by these information, spreads among all the representatives of visible minorities living in the same town/city in Ukraine. Even more, such information often also rapidly spreads among visible minorities living beyond the city, where the incident happened.

[2] The commission of a crime by a group of persons upon prior concent.

[3] The commission of a crime against a minor, an elderly or helpless person.

[4] The commission of a crime against a woman who, to the knowledge of the culprit, was pregnant.

[5] The commission of a crime using of a minor, a person of unsound mind or mentally defective person.

[6] The commission of a crime in the extremely brutal maner.

[7] The commission of a crime by a person in a state of alcohol or drug intoxication.

[8] Note! For the purposes of the Criminal Code of Ukraine the term «citizen» means «person», regardless the nationality. The presence of such wording in the current Code is a vestige of the Soviet legal system, this however, is not applied or interpreted literally in practice.

[9] Ukrainian Soviet Socialist Republic and Belarussian Soviet Socialist Republic constituting no separate states were UN Member-States de jure however.

[10] Ukrainian Soviet Socialist Republic and Belorussian Soviet Socialist Republic as well.

[11] This example concerns firs of all the application of similar provisions found in criminal laws of foreign countries , first of all those, which are EU Member-States

[12] For exemple: «The examination has been conducted. The body of the crime in the acts was not detected.»

[13] The acts of the governemtal bodies may be subjected to the judicial review within the framework of the proceedings at the administrative court. Therewith both the governmental body whose actions are reviewed and the plaintiff are equal in rights before the administrative court, thus you have to be prepered to prove that your position was standing on the rigtful position.

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