State of the World's Minorities and Indigenous Peoples 2014 - Case study: Ukraine fails to address hate crime against migrants and other groups

by Irene Fedorovych

The Ukrainian state has been slow to recognize the reality of hate crime in the country. Even now, there continues to be a clear gap between the small number of cases officially reported each year and the much larger number of incidents recorded by NGOs and rights groups. Furthermore, until recently, while Ukraine had legal provisions (Article 161 of the Criminal Code) criminalizing ethnic or religious hatred or hostility, this legislation was very difficult to apply. This was one of the reasons why many cases were not investigated properly and perpetrators were instead convicted for hooliganism or 'plain' crimes, without particular mention of hate crime or other aggravating circumstances. However, in 2009 the Criminal Code was amended, and in 2012 a new Criminal Code came into force. While civil society organizations were initially hopeful that this would help create a stronger framework for investigating and prosecuting hate crimes, in practice both police and the judiciary have shown little commitment to improving their work.

Ukraine's inadequate response to hate crimes against migrants, African students and other foreigners has attracted international criticism. In September 2012, following the failure of authorities to prosecute the arson of Roma houses in 2001 as a hate crime, Ukraine lost a case in the European Court of Human Rights (in Fedorchenko and Lozenko v. Ukraine) and was condemned for its inaction in the ruling:

'There is no evidence that the authorities have conducted any investigation into the possible racist motives of this crime.... The Court considers it unacceptable that in such circumstances an investigation, lasting over eleven years, did not give rise to any serious action with a view to identifying or prosecuting the perpetrators.'

However, even more troubling than the failure of the authorities to punish the perpetrators of hate crime is the prosecution of minority members who have themselves been victims of violence. While a number of cases have been documented, one of the most notorious instances is the case brought against Olaolu Femi, a Nigerian student who arrived in the country in 2007 to study medicine. On 5 November 2011, however, his life changed completely after he was subjected to an unprovoked assault by a local gang. In the ensuing moments, Femi defended himself and his friend against his attackers with a broken bottle. When police arrived shortly afterwards, however, it was not the assailants who were arrested but Femi himself on charges of attempted murder.

The subsequent investigation and trial have been marked by numerous procedural flaws that reflect the continued imbalances in Ukraine's judicial response. After spending 18 months in custody, Femi was released on bail in April 2013 only after the Ombudsman for Human Rights supported a petition from a number of civil society organizations in his support. A year later, despite these irregularities and insubstantial evidence against him, on 1 April 2014 Olaolu Femi received a suspended sentence of five years with a three-year probation period. The sentence attracted widespread criticism from rights groups, with Femi announcing that he would be challenging the verdict. However, the prosecution also announced its intention to appeal for a harsher sentence. Meanwhile, the authorities are doing far too little to address the continued vulnerabilities of sub-Saharan migrants in Ukraine.