Important though dubious judgement on homophobic crime by Ukrainian court

A few days ago, the Podilskyi Court of Kyiv passed a judgement regarding a homophobic attack that took place at the end of May, when a group of youths, explicitly demonstrating a homophobic motive, attacked the artist Danyl Skrypnyk only because they did not like his flamboyant appearance. The victim was provided with legal support by lawyer Viktoria Deineka and Nash Svit Center.

The judgement states that the defendants “… expressing obscene insults about the possible homosexual orientation of the victim, having a joint intention, began to deliberately strike him …”

The offenders were sentenced to imprisonment for 2 years under Part 2 of Art. 296 of the Criminal Code of Ukraine (hooliganism committed by a group of persons) with exemption from serving the sentence with a probationary period of 1 year and taking into account the circumstance that aggravates the punishment in accordance with Art. 67 of the CCU. Also, the court partially satisfied the victim’s civil claim and awarded him moral damages in the amount of UAH 60,000.

This case is interesting by that for the first time a court applied Art. 67 of the Criminal Code in relation to a homophobic crime, namely, having recognized the commission of a criminal offense based on gender as a circumstance that aggravates the punishment. Bill 5488 on responding to manifestations of intolerance, which is currently under consideration by the Verkhovna Rada, particularly proposes to introduce in Art. 67 of the CCU the term “intolerance” regarding a certain list of grounds, including SOGI. If Art. 67 looked as proposed in Bill 5488, its application in this judgment would be quite legitimate, but in the current state it seems rather strange because “gender” and “sexual orientation” are different concepts.

This case, as well as the recent judgement of a Lviv court, in which Art. 161 of the Criminal Code (prohibiting discrimination on open list of grounds) was applied for the first time in regard to a transphobic crime, clearly demonstrate the efforts of the Ukrainian law enforcement and judicial systems to relevantly address crimes motivated by intolerance based on SOGI — even though rather weak and demonstrating that lawyers do not comprehend all the intricacies of the issue. Therefore, it is very important to give them the correct legal tools and finally to improve a number of legislative norms regarding the response to manifestations of intolerance, in particular on SOGI grounds, that is provided for in Bill 5488.h are provided for in Bill 5488.