Communicated on 9 October 2017
FOURTH SECTION
Application no. 60977/14
Tetyana Sergiyivna ZAGUBNYA and Mariya TABACHKOVA against Ukraine
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the Appendix. The individual applicants are Ukrainian nationals. The applicant religious community in application no. 36046/15 is a religious organisation registered in Ukraine.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 60977/14
On 20 April 2009 the applicants were making door-to-door visits in the village of Novi Mlyny, in the Borzna District of Chernihiv Region, as part of their religious practice. According to them, Father L., an Orthodox Christian priest, arrived and began to shout at them. He asked what they were doing and told them not to spread the Jehovah’s Witnesses’ doctrine in the village. He also hit them with a wooden stick.
On the same day a forensic medical expert documented several haematomas on their bodies and they lodged complaints with the police, alleging that the attack had been motivated by religious hatred.
The next day Father L. gave a statement to the police in which he admitted to hitting the applicants with a walking stick in the course of an argument in which he had attempted to dissuade them from spreading their beliefs in the village.
Between 29 April 2009 and 2 December 2010 the local police and the prosecutor’s office decided on numerous occasions against instituting criminal proceedings under the provision invoked by the applicants, Article 161 of the Criminal Code (see “Relevant domestic law” below). They found that Father L.’s acts had been caused by personal rather than religious animosity and had not caused lasting bodily harm.
Between 21 July 2009 and 4 May 2011 senior prosecutors repeatedly quashed all the above-mentioned decisions as premature and based on a superficial analysis of the case.
On 19 May 2011 the police instituted criminal proceedings on suspicion of disorderly acts (hooliganism), an offence under Article 296 of the Criminal Code.
On 13 July 2011 the applicants wrote to the police alleging that on 4 October 2009 Father L. had attacked another group of Jehovah’s Witnesses. They asked that the victims’ complaint about that attack be used as evidence that his actions had been motivated by religious animosity.
In the course of a confrontation with the second applicant on 10 August 2011, Father L. again admitted hitting the applicants in a dispute about them spreading their teachings in the village.
On 14 September 2012 the police discontinued criminal proceedings for lack of the corpus delicti of hooliganism in Father L.’s actions. They found that they had been based on personal animosity towards the applicants, an offence under Article 125 of the Criminal Code, for which a private prosecution was necessary.
On 25 October 2012 the Borzna District Court upheld the decision of 14 September 2012. On 14 November 2012 the Chernihiv Regional Court of Appeal upheld the District Court’s decision, as did the High Specialised Civil and Criminal Court on 6 March 2014.
2. Application no. 16215/15
On the evening of 26 November 2013 the applicant was attacked in the street. According to him, there were three assailants. Two of them punched him and hit him on the head with a wooden bat while the third held him. The applicant was hospitalised with serious cranial traumas, a broken nose and other injuries. The attack took place near the applicant’s home in Strizhavka village in Vinnytsya Region as he was returning from a round of preaching visits in the village on behalf of the Jehovah’s Witnesses.
The applicant believes that the attack was motivated by religious hatred. He states that after he received the first punches, he thought that the attackers had taken him for someone else. He therefore said that he was a Jehovah’s Witness, but they did not stop hitting him. One of them said, “Get out of here all of you!” (Убирайтесь отсюда, чтобы вас тут больше не было). He interprets the plural in that statement as referring to all the Jehovah’s Witnesses in the village.
Based on the evidence of a number of witnesses, the applicant was able to identify his attackers as Ruslan I. (R.I.), Yevhen I. (Ye.I.), a traffic police officer, and A.D.
At 10 p.m. on the same day the police questioned the applicant’s friends and co-religionists who had accompanied him to the hospital.
On 27 November 2013 the police visited the applicant in hospital, he described the circumstances of the incident and said in particular that the first names of two of the assailants were Ruslan and Yevhen.
On 28 November 2013 the police questioned Ye.I. He stated that on the day of the incident he had seen his neighbour R.I. attack a stranger. R.I. had said that the stranger was a maniac who was wandering around the village disturbing women and children and that he had intended to teach him a lesson. Ye.I. had told R.I. to stop but had then gone back to his house after seeing that R.I. had carried on pursuing the stranger.
On 6 December 2013 A.D. was questioned by the police and stated that on the night of the incident he had seen R.I. beating up a stranger.
On 24 January 2014 the police charged R.I. in absentia with aggravated hooliganism, an offence under Article 296 § 4 of the Criminal Code.
On 30 January 2014 the police questioned R.I.’s mother, who said that R.I. had left to work in Russia on 27 November 2013 and that he had told her that he had beaten up the applicant.
On 10 February 2014 the applicant wrote a complaint to the Vinnytsya District Court challenging the police investigator S., who had conducted the investigation in his case. He stated that the investigator appeared to be using his position to try and exonerate Ye.I., who had been one of the attackers and was a police officer.
On 24 February 2014 R.I. was placed on the wanted list.
On 28 February 2014 S. examined the crime scene and drew up a report to that effect.
The investigation was suspended on the same day pending a search for R.I.
Subsequently the Border Guard Service informed the police that R.I. had crossed the Ukrainian border twice, in the direction of Russia, at 11 p.m. on 27 November 2013 and on 25 February 2014.
On 20 June 2014 the prosecutor’s office informed the applicant that it did not consider that there was proof that Ye.I. or A.D. had been involved in the attack on him.
On 6 October 2014 S. rejected a number of applications from the applicant’s lawyer in connection with the investigation. In particular, he refused to reclassify the crime as one motivated by religious animosity or to charge Ye.I. and A.D.
The case was still suspended at the time of the application.
3. Application no. 36046/15
The applicant organisation is a community of Jehovah’s Witnesses registered in Izmail, Odessa Region. At the relevant time one of its congregations functioned in the village of Komyshivka, in the vicinity of Izmail. The applicant, Mr Migorianu, was the minister (“elder”) responsible for that congregation.
On 5 April 2012 the congregation organised a ceremony called the Memorial of the Lord’s Evening Meal at the place of worship it had rented in the village.
According to the applicants, several minutes after the start of the service several dozen people arrived at the place of worship, acting aggressively. Several individuals, identified by the applicants by name as S.B., A.P., A.B., A.U., Yu.M., H.B., V.O. and Father G. of the local Orthodox church, entered the place of worship and disrupted the proceedings. According to the applicants, Father G. called the worshippers “devils” and ordered them to leave the village, while V.O. and H.B. pushed the presiding minister from the pulpit and threatened those present with violence. H.B. punched Mr Migorianu in the stomach and he was then taken outside and held against the wall. As the members of the congregation started leaving the premises, they were shouted at, spat upon and pushed by Father G. and the others present, who also threw the Jehovah’s Witnesses’ religious literature on the ground.
Mr Migorianu reported the incident to the police on the same day.
Between 9 April and 3 September 2012 the police repeatedly refused to institute criminal proceedings in connection with the incident, even though Father G. acknowledged in a formal statement to the authorities on 2 August 2012 that he had entered the room with his parishioners during the Jehovah’s Witnesses’ ceremony and had thrown their books on the ground.
Those decisions were quashed and the police eventually opened a criminal investigation on 10 September 2012, which was closed on 5 March 2013. The police found that even though unidentified persons had disrupted the applicants’ meeting, their actions had not had the requisite elements for the offence of hooliganism. The applicants received the decision on 9 July 2014 and appealed. On 4 February 2015 the regional prosecutor’s office overturned the decision and remitted the case for further investigation. The investigation was still ongoing at the time of the application.
The applicant organisation also stated that its members had been subjected to a number of other attacks, which it believes were motivated by what it calls the “impunity” enjoyed by those involved in the incident of 5 April 2012.
B. Relevant domestic law
Criminal Code of Ukraine of 5 April 2001
Article 67. Circumstances aggravating a punishment
“1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:
...
(3) the commission of a crime on the grounds of racial, national or religious enmity or hostility;”
Article 125. Intentional minor physical injury
“1. An intentional minor physical injury shall be punished by a fine of up to fifty times the non-taxable individual income ceiling or by up to two hundred hours of community service or by withholding of ten to twenty percent of earnings for up to one year;
2. An intentional minor physical injury resulting in a short-term health disorder or an insignificant loss of ability to work shall be punished by a fine of fifty to a hundred times the non-taxable individual income ceiling, by one hundred and fifty to two hundred and forty hours of community service or by withholding of ten to twenty percent of earnings for up to a year or by short-term imprisonment for up to six months or by detention in a semi-open correctional institution for up to two years.”
Article 161. Violations of equality on the grounds of race,
nationality or religious beliefs
“1. Intentional acts inciting national, racial or religious enmity and hatred ..., or insults to citizens’ feelings in respect to their religious convictions, ... shall be punishable by ...
2. The same acts accompanied by violence, deception or threats, and also committed by a public official, –
shall be punishable by a fine amounting to between five hundred and one thousand times the non‑taxable individual income ceiling; or by imprisonment for a period from two to five years, with or without deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.”
Article 180. Interference with religious ceremonies
“1. Unlawful interference with a religious ceremony which has actually disrupted or threatened to disrupt such a ceremony, –
shall be punishable by a fine of up to fifty times the non‑taxable individual income ceilings or by community service for a period of one hundred and twenty to two hundred hours or by short-term imprisonment for up to six months or by detention in a semi-open correctional institution for up to two years.”
Article 296. Disorderly acts (hooliganism)
“1. Disorderly acts, namely a serious breach of public order motivated by flagrant disrespect for society, combined with particular effrontery and exceptional cynicism, shall be punishable ...
4. The acts set out in the first ... paragraph of this Article, if committed with the use of ... an instrument adjusted specifically or constructed beforehand to inflict bodily harm, –
shall be punishable by imprisonment for between three and seven years.”
COMPLAINTS
In application no. 60977/14 the applicants complain under Article 3 and Article 9, each taken alone and in conjunction with Article 14, that their allegations of ill-treatment on the grounds of their religion have not been properly investigated by the domestic authorities.
In application no. 16215/15 the applicant complains under Article 3 and Article 9, each taken alone and in conjunction with Article 14, and under Article 13 that the attack on him was not effectively investigated and neither were alleged religious motives behind it.
In application no. 36046/15 the applicant religious community and its minister complain under Article 3 and Article 9, each taken alone and in conjunction with Article 14 and Article 1 of Protocol No. 12, and under Article 13 that the authorities have failed to investigate the incident in which their religious service was violently disrupted and a number of other violent attacks against its members.
QUESTION TO THE PARTIES
Have the domestic authorities carried out an effective investigation into the alleged attacks on the applicants and the alleged motives of religious animosity behind them, in particular having regard to the requirements of Articles 3, 9 and 14 of the Convention (see, for example and mutatis mutandis, Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007; Milanović v. Serbia, no. 44614/07, 14 December 2010; Begheluri v. Georgia, no. 28490/02, 7 October 2014; and Karaahmed v. Bulgaria, no. 30587/13, 24 February 2015) ?
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth and
place of residence for individuals or date of registration and address for legal entities
Represented by
60977/14
05/09/2014
Tetyana Sergiyivna ZAGUBNYA
16/11/1959
Mariupol
Mariya TABACHKOVA
05/07/1988
Mariupol
Kostyantyn CHERNYCHENKO
Richard
COOK
André
CARBONNEAU
16215/15
09/03/2015
Oleksandr Anatoliyovych TRETIAK
24/03/1972
Stryzhavka
Kostyantyn CHERNYCHENKO
Oleksii
LUKIANOV
André
CARBONNEAU
36046/15
15/07/2015
Vasyl MIGORYANU
01/10/1984
Bryukhovychi
RELIGIOUS COMMUNITY OF JEHOVAH’S WITNESSES IN THE CITY OF IZMAIL
09/03/1999
Izmail
Kostyantyn CHERNYCHENKO
Oleksii
LUKIANOV
André
CARBONNEAU
Full & Egal Universal Law Academy