"We Know Where You Live." Why Cases of Attacks on LGBT Rarely Reach Courts in Ukraine

25 June 2021 12:54

Vitalina Koval is an LGBT activist who was attacked three years ago. She is still awaiting a just court decision. Our Olesia Bida explored why Vitalina still does not feel safe and whether bill №5488 can help those who are attacked because of intolerance.

In June, the whole world celebrates Pride Month - the month of protection of the rights of the LGBT community. Activists flock to the main squares of cities and organize equality marches. There are still problems with the protection of LGBT rights in Ukraine. Cases of attacks on community members hardly ever reach the courts. They are often classified under other articles that are not related to hate crimes.

Peaceful demonstration

Inflammation on her right eyelid - a slight redness and swelling - still remind LGBT activist Vitalina Koval of what happened to her three years ago. It does not bother her too much, but it does bring back memories of the events in her native Uzhhorod in western Ukraine in the spring of 2018.

At that time, Vitalina was a co-organizer of the action dedicated to International Women's Day, which was to take place in the city center. It was announced in advance on social networks.

"We started receiving threats from unknown Facebook accounts. They demanded us to cancel the action. All my acquaintances refused to go ahead with it," Vitalina recalls.

Last year they tried to disrupt the same action. Then about 20 young men from the paramilitary right-wing radical organization "Carpathian Sich" came to the rally, encircled its participants, began to push, snatch posters from the hands of women and throw them in the trash. They stressed that feminist actions would not take place in Uzhhorod without their permission. Or else they will be destroyed.

Even when the police arrived half an hour later, the men did not stop with the pushing, Vitalina recalls. And when the participants turned to the department and filed reports, the police also refused to open a case. As if "there was no corpus delicti."

Then Vitalina decided: you need to speak louder and defend what you are fighting for. In 2018, despite the threats, she became the main and only organizer of the action dedicated to International Women's Day. Two weeks before the rally, activists worked diligently with police to explain how to respond to provocations. Vitalina understood - they can not be avoided.

On the day of the action, the central square was crowded by Uzhhorod standards. Approximately 30-40 women came, among them - representatives of the Transcarpathian Bar Association, public activists. They spoke about gender equality, women's rights, domestic violence, and shouted the slogan "Women's rights are human rights."

https://www.facebook.com/viktoriya.kovalyova.79/posts/10213583485052739

Five minutes before the end of the action, the members of the organization "Carpathian Sich" made their way to the stage and splashed red paint on the speakers. The chemical liquid got into Vitalina's eyes. She couldn’t see and heard only screams and frightened children's cries.

"Unbearable pain and shock. I thought I had lost my eyesight," the activist recalls.

While Vitalina was going to the hospital with chemical burns to her eyes, the attackers were sent to the police station.

"When I came with the other injured women to file a report, there were already attackers, girls from the Carpathian Sich," she says. “The policeman loudly asked me for my home address. I answered in a whisper, because I was afraid that it would be overheard."

But Vitalina's address was still heard.

Letters from the attackers

The case of the attack on the protesters was initiated under three articles of the Criminal Code. They concerned hooliganism (Part 2 of Article 296), obstruction of the lawful activities of public organizations (Article 170), and violation of the equality of citizens (Article 161). Immediately after the attack, two girls from the “Carpathian Sich” took the blame. One of them was a minor at the time.

Vitalina no longer felt safe in her own city. She was afraid to enter the building in the evening, constantly feeling strong psychological tension and anxiety.

On the back of the invitations that came to her from the investigator in the mailbox, someone added in pencil: "We know where you live." On March 30, in the central square of the city, Vitalina held an event against far-right violence.

And soon she was packing - she could not hope for an understanding with the attackers. The girl moved to Kyiv.

Vitalina Koval. Photo: Anastasia Vlasova / hromadske

Six months after the investigation, the case file was sent to court.

However, the investigator closed the cases under Articles 170 and 161. And 296 reclassified the article on hooliganism to 125, which was about inflicting light bodily harm on the protesters.

Oleksandr Zinchenkov, an expert with the LGBT Human Rights NASH MIR Center, says that this is a common practice of police officers in cases of attacks on LGBT people.

"Police officers classify statements according to articles that are convenient for them, and not according to those that correspond to the crime committed. If a person is robbed, but it was done for homophobic or transphobic motives, the case will be considered under the article on robbery. Thus, hate crimes are hidden among tens of thousands of others. And it is almost impossible to single them out from the rest," the human rights activist said.

The injured women filed complaints with the investigating judge to have the three-article closure orders overturned. Their petitions were granted, the case began to be considered in two parts: light bodily harm (under Article 125) separately from the articles on obstruction of lawful activity and violation of equality of citizens (Articles 170 and 161).

In March of this year, the lowest court closed the case under Article 125 - the terms of criminal prosecution have expired.

Vitalina Koval's lawyer, Oksana Huz, appealed the decision, although she does not have high hopes for it.

"I think the chances are slim that we will have the appeal granted. We plan to go to the Court of Cassation and then to the European Court of Human Rights. This is about access to justice, which the victims in the case are deprived of," the lawyer said.

The second part of the case under Articles 161 and 170 is still with the police. The victims were interrogated over it, the notices of suspicion were not served to anyone.

"At that time, the attackers also distributed leaflets with certain inscriptions and images. It is important for us that the experts give the answer that this is really a question of inequality, humiliation. From 2019, the police are waiting for a linguistic examination," adds Huz.

Vitalina Koval. Photo: Anastasia Vlasova / hromadske

Article 161

According to a study conducted by experts from the Legal Aid Foundation, from January 1, 2015 to June 30, 2020, police opened 616 criminal proceedings for offenses committed on the grounds of intolerance. 597 of them - under article №161, on violation of equality.

The experts analyzed information from the Unified Register of Pre-Trial Investigations. 62% of cases were closed at the stage of pre-trial investigation. 30% are still ongoing and only 4% have been sent to court.

In their study, the experts concluded that in recent years the number of offenses committed on the grounds of intolerance has increased. In addition, the pre-trial investigation authorities increasingly used article №161.

Zinchenkov notes that the figures from the register differ from those recorded by public organizations and human rights activists. According to them, the number of attacks on LGBT people due to intolerance to sexual orientation and gender identity is much higher.

In five years, the register has eight criminal proceedings under Article 161, probably on the grounds of LGBT intolerance. Three of them have been closed, five are still ongoing.

In 2020, the monitoring network of NASH MIR documented 188 cases of actions based on homophobia / transphobia, discrimination, and other violations of LGBT rights in Ukraine.

In addition, in recent years, according to Zinchenkov, the victims began to turn to the police about the attacks less often.

"In 2015, immediately after the police reform, there was a certain rise. People hoped that allegations of their attacks would go to court. We conducted trainings for the police, and they urged the victims not to remain silent and to report the attacks. So they did, called us, consulted. Since 2019, it has become clear that police reform has failed and cases are not being properly investigated - either barely or with an incorrect qualification," says Zinchenkov.

Now the flow of reports to the police, says Zinchenkov, is again approaching the number that was before 2014, when the victims appealed to law enforcement agencies only in difficult circumstances. After all, they did not want to suffer from another discrimination - by the police. And they knew: the cases will still not be investigated.

Protest action against radical attacks on members of the LGBT + community and for strengthening the fight against discrimination in Ukraine. Kyiv, June 5, 2021. Photo: Andriy Novikov / hromadske

Press for 5488

On June 5, LGBT NGOs and activists rallied outside the President's Office demanding the passage of Bill №5488. They had the slogan "Press for 5488 to avoid pressure on you."

This bill provides for amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code to combat discrimination.

The document defines the term "intolerance". It is suggested to be understood as an open, biased, negative attitude towards the category of people who differ in a number of ways. In particular, such as sexual orientation and gender identity.

The bill also amends Article 161 to provide for liability for incitement to hatred and hatred based on intolerance, and not for violating the equality of citizens, as it is today.

Lawyer Oksana Huz notes that under Article 161 it is really quite difficult to prosecute because of vague wording. But the bill №5488, in her opinion, will not solve the problem.

"It's good that this bill has appeared, but I have a feeling that it was done for the sake of showing that they are doing something. Even if it is accepted, it will still not work. It is imperfect. It was developed under the National Strategy for Human Rights in 2016. Since then, much has changed. The wording that needs to be included in it should be more specific," the lawyer comments.

In addition, the proposal to add the definition of "intolerance" to aggravating circumstances and use it in a number of articles does not make it possible to prosecute crimes based on hatred or intolerance, adds Huz.

Experts are now preparing proposals to amend the bill.

Zinchenkov notes: it is also important how exactly this bill will be implemented. After all, the police now refuse to accept reports from victims or register them as appeals from citizens, to which it is not necessary to respond.

Instead, Vitalina supports the implementation of this bill, because she still does not feel completely safe.

"I want those who suffer attacks on gender identity, sexual orientation or pink hair to report to the police and be sure that the attackers will be prosecuted for hate crimes," she said. "And as an activist, I will do my utmost for this."