In most serious cases, the hate crime is considered to be a criminal offense. When a person is charged with a crime, they are called “the accused” and the criminal charges are examined in criminal proceedings.
Aggravating circumstances
In Ukraine, the Criminal Law establishes that any crime committed with a biased motive towards an individual or a group due to the victim‘s race, nationality (ethnicity), religion or sex may be considered to have aggravating circumstances. This means that due to the committed hate crime, the person is charged with such criminal offense as, for example, murder, bodily harm or property damage, but during the trial the court can take into account the aggravating circumstances, namely, the bias motive, when adopting the decision. In general, aggravating circumstances can be applied to all crimes, established in the Criminal Law.
example A person with a dark skin has been attacked and seriously harmed with a biased motive due to the person’s race.
However, the court can also not take into account the aggravating circumstances but recognize that in addition to the particular offense committed, as, for example, bodily harm, the person has also committed another crime, namely, triggering of national, ethnic and racial hatred or incitement of social hatred and enmity.
Read more about the right to a fair trial in criminal proceedings.
Triggering of national, ethnic, racial and religious hatred
If a person has committed a crime with a motive to trigger national, racial or religious hatred or enmity, it may be charged with two (or more) criminal offenses simultaneously: for the “base” offense done, for example, murder, bodily harm or property damage, and also for the triggering of national, ethnic, racial and religious hatred which is a substantive criminal offense, too. In such situation, aggravating circumstances are not additionally considered.
important The competent authorities and court have to thoroughly evaluate each hate crime case individually in order to decide whether it had a bias motive as an aggravating circumstance or whether it had a motive to trigger hatred in society.
example A person with a dark skin has been attacked and seriously harmed with a motive to incite racial hatred in society. The court found the attackers guilty under two articles of the Сriminal code – inflicting bodily harm (Article 127) and inciting ethnic hatred (Article 161).
Read more about the right to a fair trial in criminal proceedings.
Incitement of enmity
If a person has committed a crime with a motive to incite enmity depending on the person’s race, ethnicity, religion or region of origin, it may be charged with two (or more) criminal offenses simultaneously: for the “base” offense done, for example, murder, bodily harm or property damage, and also for incitement of enmity, which is a substantive criminal offense, too. In such situation, aggravating circumstances are not additionally considered.
important The competent authorities and court have to thoroughly evaluate each hate crime case individually in order to decide whether it had a biased motive as an aggravating circumstance or whether it had a motive to incite social hatred and enmity in society.
example A car with license plates that indicate registration in a certain region of the country was seriously damaged and covered with insulting statements with a motive to incite enmity against natives from the region.
Read more about the right to a fair trial in criminal proceedings.
Hate speech
Hate speech is not a hate crime, as it has a different structure from it. Unlike hate crime, hate speech does not have the element of the “base offence”. That means, if the hate speech would not contain the bias or intolerance motive, there would be no criminal offence to be punished, only an expression of a person. However, hate speech and hate crimes have certain similar characteristics, namely, both are motivated by hatred or intolerance against individuals or groups based on certain attributes. Sometimes during the hate crime, perpetrator may also publicly express hate or violence based on the victim’s ethnicity, religion or other characteristics. Thus, in Ukraine hate speech is often mentioned by public authorities and individuals in the context of hate crimes and sometimes categorized as a hate crime. The main article of the Criminal Code, 161, which classifies hate crimes, also defines the offenses of discrimination (as a criminal offense) and incitement to hatred.
Read more about hate speech and the differences between hate crimes and hate speech.