Last Updated on December 4, 2020 by LawEuro
. The case concerns the allegation of the applicants, a community of Jehovah’s Witnesses and its elder, under Articles 3, 9 and 14 of the Convention, that a group of Orthodox Christian believers disrupted their meeting in a violent fashion and that the authorities failed to react adequately to that incident.
FIFTH SECTION
CASE OF MIGORYANU AND RELIGIOUS COMMUNITY JEHOVAH’S WITNESSES OF THE CITY OF IZMAIL v. UKRAINE
(Application no. 36046/15)
JUDGMENT
STRASBOURG
12 November 2020
This judgment is final but it may be subject to editorial revision.
In the case of Migoryanu and Religious Community Jehovah’s Witnesses of the City of Izmail v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and, Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Vasyl Migoryanu, a Ukrainian national and by the Religious Community of Jehovah’s Witnesses in the City of Izmail (“the applicants”), on 15 July 2015;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 13 October 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the allegation of the applicants, a community of Jehovah’s Witnesses and its elder, under Articles 3, 9 and 14 of the Convention, that a group of Orthodox Christian believers disrupted their meeting in a violent fashion and that the authorities failed to react adequately to that incident.
THE FACTS
2. The first applicant, Mr Migoryanu, was born in 1984 and lives in Lviv. The second applicant (“the applicant community”) 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 district of Izmail. The first applicant, Mr Migorianu, was the minister (“elder”) responsible for that congregation.
3. The applicants were represented by Mr K. Chernychenko and Mr O. Lukianov, lawyers practising in Lviv, and Mr A. Carbonneau, a lawyer practising in Paris.
4. The Government were represented by their Agent, Mr I. Lishchyna.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 5 April 2012 the congregation organised a ceremony called the Memorial of the Lord’s Evening Meal, also known as the Memorial of Christ’s Death, on the premises it had rented in the village, a former shop. Before the event, invitations had been distributed in the neighbouring villages.
7. According to the applicants, some time after the start of the ceremony several dozen people arrived at the place of worship, acting aggressively. Several individuals, led by Father G. of the local Orthodox church, entered the place of worship and disrupted the proceedings. According to the applicants, there were about twenty people with Father G. and he called the worshippers “devils” and ordered them to leave the village “before it was too late”, while Mr O. and Mr B. pushed the presiding minister from the pulpit and threatened those present with violence. B. punched the first applicant. As all eighteen members of the congregation started leaving the premises, they were shouted at, insulted and pushed by Father G. and others present, who also threw the Witnesses’ religious literature on the ground.
8. The first applicant reported the incident to the police on the same day.
9. On 9 April 2012 the first applicant gave to the police an account of events of 5 April largely similar to that set out in paragraph 7 above. He stated that B. had hit him in the chest and G. had told the assembled Jehovah’s Witnesses to leave. The first applicant stated that he had not sought and was not planning to seek medical assistance, unless there were complications from the blow he had received.
10. On the same day B. stated to the police that the village residents were against the Jehovah’s Witnesses’ preaching as they were turning people away from the Orthodox faith. On 5 April 2012, in the course of a “conversation” on the premises of a former shop, he had pushed one of the Jehovah’s Witnesses in the chest.
11. On the same day the Izmail police decided not to institute criminal proceedings since there was no indication of a criminal offence in B.’s actions. However, they drew up a report charging B. with petty hooliganism, an offence under Article 173 of the Code of Administrative Offences (see paragraph 37 below), in that connection.
12. The applicants appealed to the Izmail prosecutor’s office, asking that criminal proceedings be instituted against G., B. and others under Articles 161 and 180 of the Criminal Code, which criminalised “violation of citizens’ equality” and “unlawful interference with a religious ceremony” respectively (see paragraphs 34 and 35 below). The attackers had disrupted a religious ceremony on the occasion of the Memorial of Christ’s Death, which had been held in accordance with Jehovah’s Witness doctrine.
13. On 14 May 2012 the Izmail prosecutor’s office quashed the decision not to institute criminal proceedings as premature and instructed the police to conduct further enquiries, notably to identify the individuals who had acted with Father G., interview the village mayor regarding the inter‑religious tensions, interview the Jehovah’s Witnesses who had been present on the day of the incident, and assess the actions of G. and others in light of Article 180 of the Criminal Code (unlawful interference with a religious ceremony).
14. On 23 May 2012 Father G. stated to the police that the Jehovah’s Witnesses had distributed invitations to an assembly on 5 April 2012. He had invited several people to come to the Witnesses’ assembly and ask them to explain why they had reneged on their Orthodox faith and had started following the Jehovah’s Witness doctrine. It had not been his intention “to disrupt anything”. On entering the building, he had seen no ceremony going on. He had asked the assembled to leave and had thrown some magazines to the ground.
15. Mr and Ms D. stated that they regularly attended Jehovah’s Witnesses’ meetings. On the relevant date, while the service had been proceeding and an invited speaker had been speaking, B. had entered the building and hit the first applicant in the chest. Father G. had then entered, told the Jehovah’s Witnesses to leave, taken their magazines out of the building and thrown them to the ground. After the members of the congregation had come out of the building, Father G. had calmed down and left. Afterwards, the witnesses had picked up the magazines and had taken them inside.
16. Mr O. stated that after the Jehovah’s Witnesses had distributed invitations to their event on the premises of the former shop on 5 April 2012, he had come to that place to talk to those who had abandoned the Orthodox faith for the Jehovah’s Witnesses doctrine. His intention had not been to disrupt the ceremony and, when he had entered, he had not seen a ceremony being held. He had told those present to leave, had taken some magazines and thrown them to the ground.
17. On 25 May 2012 the police again refused to institute criminal proceedings on the grounds that G. and others had had no requisite intent to disrupt a religious ceremony. The decision stated that there had been hostile relations and conflicts had existed for some time between the first applicant and Father G. over religious differences. According to the villagers’ statements, Jehovah’s Witnesses had been calling to houses and insistently proselytising their faith and many residents had been against that practice. On 5 April 2012 Father G. and other villagers had come to the place where Jehovah’s Witnesses had been meeting to speak to those who “had betrayed the Orthodox faith” (изменившими православной вере). They had not intended to disrupt any ceremony but explained their conduct by their desire to prevent further activity of the Jehovah’s Witnesses in the village. The video of the incident provided by the applicants did not show that any ceremony had been going on when the individuals in question had entered the building. Accordingly, there had been no constitutive elements of the offence under Article 180 of the Criminal Code in G.’s and others’ actions.
18. On 7 June 2012 the prosecutor’s office overruled the decision of 25 May 2012 as premature but on 10 and 21 June, 6 August and 3 September 2012 the police repeatedly issued similar decisions again, all overruled by the prosecutor’s office.
19. In the decision of 3 September the police concluded that there had been inter-religious tensions in the village caused by the differences in religious beliefs and the Jehovah’s Witnesses’ evangelism, but there had been no constituent elements of offences under Articles 161 (discriminatory acts) and 180 (unlawful interference with a religious ceremony) in the actions of G. and the other individuals who had accompanied him.
20. On 10 September 2012 the police decided to institute criminal proceedings on suspicion of hooliganism, an offence under Article 296 of the Criminal Code (see paragraph 36 below). The decision stated that on 5 April 2012 unidentified individuals had committed a serious breach of public order motivated by flagrant disrespect for society, combined with particular effrontery and exceptional cynicism (that is to say the statutory definition of “hooliganism”).
21. On 23 October 2012 the first applicant was recognised as a victim in the proceedings.
22. On 17 November 2012 G. and B. were interviewed as witnesses.
23. G. stated that he had received complaints from his parishioners about the Jehovah’s Witnesses’ insistent evangelism, in particular one incident where they had allegedly intruded into the courtyard of a parishioner who had used to be a Jehovah’s Witness despite her lack of desire to talk to them and had frightened her. On the day of the incident G. and thirty to forty people had come to where the Witnesses’ had been meeting. G. had asked the Witnesses to leave, had thrown their magazines to the ground and B. had pushed one of the Witnesses present.
24. B. explained that on the day of the event he had come to the Jehovah’s Witness meeting to ask them to leave. When one of the Witnesses had blocked B.’s path, he had pushed him in the chest. B. also stated that he had already been fined for his actions.
25. On 19 November 2012 the investigator suspended the investigation for failure to identify the perpetrators of the disorderly conduct committed on 5 April 2012.
26. On 12 December 2012 the prosecutor’s office overruled that decision as premature and ordered further investigation.
27. As part of that investigation, the investigator interviewed the first applicant and a number of other Jehovah’s Witnesses present at the time of the incident. They presented accounts of the events consistent with that set out in paragraph 7 above.
28. On 15 March 2013 the investigation was discontinued. The investigator found that even though unidentified individuals near the former shop had started an argument with Jehovah’s Witnesses, their actions had not had the requisite elements of the offence of hooliganism. That offence required a serious breach of public order motivated by flagrant disrespect for society combined with particular effrontery and exceptional cynicism, which had been absent in the actions of those individuals.
29. Following a complaint from the applicants, on 4 February 2015 the regional prosecutor’s office overruled the decision and ordered further investigation.
30. On 22 May 2015 the police investigator again discontinued the investigation. In his decision he stated that the first applicant could not be found. The investigation established that unidentified individuals, near the former shop, had breached public order. However, the constitutive elements of hooliganism had been lacking, for the following reasons:
“The motivation for hooliganism [хуліганський мотив] is a desire … for self-affirmation through insolence [and] contempt for others, characteristic of people suffering from unchecked egotism … [It is characteristic of] the mode of self-expression of a boor, a barbarian, a savage. At the bottom of the motivation for hooliganism is unchecked egotism, frustration and dissatisfaction reaching the level of senseless anger and despair caused by the mismatch between the level of the person’s ambitions and the actual ability to achieve them. The distinguishing feature of hooliganism is that the immediate cause of the act is always internal, it lies in the actor him or herself, in his or her intentions, his or her will. This is an internal cause in the sense that the acts are not caused by a combination of specific circumstances, are illogical … In circumstances where the immediate cause of the event is external vis-à-vis the actor, that is to say when his or her actions are caused by external circumstances, are logical, such acts do not constitute the offence of hooliganism.”
31. According to the applicants, they were not invited to participate in any further investigative actions before the decision of 22 May 2015 and they were not informed of that decision.
32. The applicant community also alleged that its members had been subjected to a number of other attacks on later dates. However, in the observations submitted after notice of the application had been given to the Government the parties did not make detailed submissions on that point.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. Domestic law
A. Criminal Code 2001
33. Article 67 of the Code lists, among various circumstances to be taken into account in sentencing as aggravating a crime, the commission of a crime on the grounds of racial, national or religious enmity or hostility.
34. Article 161 of the Code criminalises the offence of “Violation of equality of citizens on the grounds of race, ethnicity or religious beliefs”. At the relevant time it was punishable by a fine of up to the equivalent of 790 euros (EUR) or by placement in a semi-open correctional institution for up to five years and, if the same acts were accompanied by violence, deception or threats or were committed by a person exercising official authority, by a fine of up to the equivalent of EUR 1,580 or by imprisonment for a period from two to five years.
35. Article 180 of the Code criminalises “Unlawful interference with a religious ceremony which has actually disrupted or threatened to disrupt such a ceremony”. At the relevant time it was punishable by a fine of up to the equivalent of EUR 79 or by community service for a period of 120 to 200 hours or by detention for up to six months or by placement in a semi‑open correctional institution for up to two years.
36. Article 296 criminalises “hooliganism” (хуліганство, sometimes also translated as “disorderly acts”), defined as “a serious breach of public order motivated by flagrant disrespect for society, combined with particular effrontery or exceptional cynicism”. At the relevant time it was punishable by a fine of up to the equivalent of EUR 1,580, short-term detention for up to six months or placement in a semi-open correctional institution for up to five years. The same acts committed in a group were punishable by placement in a semi-open correctional institution for up to five years or imprisonment for up to four years. If combined with the use of an instrument adjusted specifically or constructed beforehand to inflict bodily harm, hooliganism was punishable by imprisonment for between three and seven years.
A commentary to the Criminal Code, summarising the relevant case-law and established academic commentary, explains that the key element of the offence of hooliganism is that it must be motivated by “flagrant disrespect for society”. This is defined is as the desire to show disregard for the established social rules of conduct, to reaffirm him- or herself at the expense of others, to put him- or herself in opposition to others, society and the State.[1]
The Supreme Court, in its circular letter of 30 January 2013 no. 223‑192/0/4-13 to the lower courts, explained as follows:
“[T]he motivation for hooliganism is a desire for self-affirmation, self-expression of a poorly raised, spoiled, egoistic person, of a boor, a barbarian, a savage. There could be different motivation for such acts but the unifying characteristic is that, for the most part, they are devoid of any necessity, they arise from the desire to show his or her superiority or from unchecked self-centredness, associated with disrespect for persons, human dignity, indifference to laws and rules of conduct.”
B. Code of Administrative Offences 1984
37. Article 173 of the Code defines “petty hooliganism” as “swearing in public, offensive behaviour or other similar actions which amount to a breach of the peace or disturb public order” and makes it punishable by a fine equivalent to about EUR 10 at the time or by retention of 20% of earnings for one to two months. If in the circumstances of a particular case the above measures are deemed insufficient, taking into account the character of the perpetrator, administrative detention for up to fifteen days can be imposed.
II. Relevant international material
38. The Human Rights Committee stated in its Concluding observations on the seventh periodic report of Ukraine, adopted by the Committee at its 108th session (8–26 July 2013, CCPR/C/UKR/CO/7):
“11. The Committee is concerned at reports of hate speech, threats and violence against members of ethnic groups, religious and national minorities, in particular Roma, Jehovah’s Witnesses and Crimean Tatars, resulting in physical assaults, acts of vandalism and arson, most of which are committed by groups driven by extreme nationalist and racist ideology. It is also concerned that article 161 of the Criminal Code (inciting ethnic, racial or religious animosity and hatred) which requires proving deliberate action on the part of the perpetrator is rarely used and that such crimes are usually prosecuted under hooliganism charges.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION
39. The applicants complained, relying on Article 3 taken alone and in conjunction with Article 14 of the Convention, that the authorities had failed to investigate effectively the attack on the first applicant and other members of the applicant community, in particular to take all reasonable measures to establish whether religious prejudice had played a role in the relevant events. Those provisions of the Convention read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Submissions by the parties
1. The Government
40. The Government submitted that it was relevant, in determining the threshold of severity which would bring Article 3 into play, whether the treatment had been inflicted by a State agent or a private party. The degree of injuries of the victim and the effect on him or her had to be taken into account and treatment inflicted by private parties had to be more serious on those accounts, the threshold of severity had to be higher, to fall within the ambit of Article 3, than if it had been inflicted by State agents. Otherwise, the burden imposed on the State by the positive obligations under Article 3 of the Convention would be unreasonable. Based on this approach, the treatment in issue in the present case had not attained the requisite threshold of severity to fall within the ambit of Article 3. It was notable in this connection that the first applicant had only been pushed in the chest and had refused to undergo a medical examination since his injuries had been insignificant.
41. In any event, the investigation into the incident met the requirements of Articles 3, 9 and 14. There was nothing to suggest that the investigation had not been independent or that the applicants had been denied an opportunity to participate. The investigation had been started and all key evidence collected without delay, by September 2012. All participants in the conflict and possible witnesses had been identified and interviewed. All allegations of religious motivation behind the incident as well as other versions of the events had been thoroughly checked by the domestic authorities.
2. The applicants
42. The applicants submitted that Article 3 was applicable. They pointed out that Article 3 was not limited to acts of physical ill-treatment but also covered infliction of psychological suffering. The purpose of the relevant acts also had to be taken into account. Discriminatory remarks had to be taken into account as an aggravating factor and, in such cases, the seriousness of any injuries was a less important factor. In the present case, moreover, the first applicant had suffered a punch to the stomach. Committed in the course of a religious service, that assault had reached the requisite level of severity.
43. As to the merits, the applicants submitted that the domestic authorities had failed to conduct an effective investigation into the incident. In particular, they pointed out to the unreasonableness of the conclusion in the domestic procedural decisions that it had been impossible to identify the perpetrators, to the delays in the institution of proceedings and the repeated annulment of procedural decisions by prosecutors. They also pointed to the Human Right Committee’s criticism of the practice of investigating religiously-motivated incidents as acts of hooliganism (see paragraph 38 above).
B. Admissibility
1. The applicant community
44. As far as the applicant community is concerned, the Court notes that it, as a legal entity, cannot claim to be a victim of a violation of Article 3 of the Convention. Neither is there any reason to consider that it has standing to claim a violation of Article 3 on behalf of its members that were involved in the events of 5 April 2012 (see Identoba and Others v. Georgia, no. 73235/12, § 45, 12 May 2015, with further references).
45. This part of the application is thus incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
2. The first applicant
46. The parties disagreed as to the precise nature of the assault the first applicant had suffered, namely whether he had been hit on the chest or stomach (see, respectively, the Government’s and the applicants’ submissions in paragraphs 40 and 42 above). The Court finds it established, based on the first applicant’s own and B.’s statements to the domestic authorities (see paragraphs 9 and 10 above), that the applicant was hit on the chest.
47. The single blow the applicant suffered caused no injury and was not inflicted by a State agent (contrast, for example, Bouyid v. Belgium [GC], no. 23380/09, §§ 103-106, ECHR 2015). Neither did it involve State agents failing to intervene to protect the applicant from attack (contrast Begheluri and Others v. Georgia, no. 28490/02, §§ 104 and 118-21, 7 October 2014). Even though it happened in front of some of the applicant’s fellow believers, it was not filmed by the attackers and was not subsequently subject to public exposure (contrast Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 105, 3 May 2007) or was premeditated to generate media coverage (see Karaahmed v. Bulgaria, 30587/13, §§ 15-25 and 75, 24 February 2015).
48. As to the applicant’s allegation that the discriminatory intent behind the attack had been humiliating and had thus generated intense suffering, the Court observes that, however much the attack succeeded in disrupting the applicants’ religious ceremony, for the above-cited reasons it was not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3 to apply (ibid., § 75).
49. Therefore, without diminishing the distress the incident caused to the first applicant, the Court considers that it was not so serious as to bring Article 3 into play (contrast P.F. and E.F. v. the United Kingdom (dec.) no. 28326/09, 23 November 2010, where considerable mental suffering was found to have been caused to young schoolgirls and their parents when they had been exposed to two months of daily abuse; also contrast Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, and Begheluri and Others, cited above, which involved severe beatings, forced searches and a series of other humiliating acts; and contrast Identoba and Others, cited above, § 18, where the applicants were surrounded by a mob which insulted and threatened them and some of them suffered bruising, concussion and head trauma).
50. The fact that owing to the attackers’ actions the religious occasion in which the first applicant was taking place was disrupted is not sufficient of itself to bring Article 3 into play (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, § 104, and Karaahmed, cited above, § 75, where the Court found no violation of Article 3 even though the demonstration had disrupted Muslim Friday prayers and had involved such actions – arguably more dramatic than in the present case – as cutting up of a fez and setting prayer mats on fire). That aspect of the situation will be addressed under Article 9 of the Convention below.
51. It follows that the first applicant’s complaint under Article 3 is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
52. Given that Article 14 has no independent existence from the substantive provisions of the Convention (see, for example, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 68, 76‑77, ECHR 2002‑VII), it follows that the applicant’s complaint under Article 14 taken in conjunction with Article 3 is likewise incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
II. ALLEGED VIOLATION OF ARTICLES 9 AND 14 OF THE CONVENTION
53. The applicants complained, under Article 9 taken alone and in conjunction with Article 14 of the Convention, that the authorities had failed to react effectively to the disruption of the applicant community’s meeting. Article 9 reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. Submissions by the parties
54. The Government made submissions, which are set out in paragraph 41 above.
55. The applicants submitted that by failing to investigate effectively the attack against them the authorities had failed to take the necessary measures to ensure that they were able to exercise their right to freedom of religion.
B. Admissibility
56. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
C. Merits
1. Relevant general principles
57. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 103, 26 April 2016). While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest an individual’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith his or she shares. Article 9 lists the various forms which the manifestation of an individual’s religion or beliefs may take, namely worship, teaching, practice and observance (ibid., § 104).
58. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on an individual’s freedom to manifest his or her religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (ibid., § 106).
59. The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society (ibid. § 107). This duty requires the State to ensure mutual tolerance between opposing groups (see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005‑XI, and Begheluri and Others, cited above, § 158).
60. The responsibility of the State may be engaged where religious beliefs are opposed or denied in a manner which inhibits those who hold such beliefs from exercising their freedom to hold or express them. In such cases the State may be called upon to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs. The Court must consider such issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction (see Begheluri and Others, cited above, § 160, and Karaahmed, cited above, § 93).
61. Article 9 (like Articles 10 and 11) cannot be interpreted as authorising an individual who disagrees with a religious organisation on a given point to interrupt or cause a disturbance during a ceremony. The Court thus declared manifestly ill-founded a complaint from a Romanian Orthodox nun for causing a disturbance during a ceremony conducted by the Romanian Orthodox Patriarch and exclaiming that he “did not deserve to be prayed for”. Since the fine imposed had been geared to punishing the public disturbance rather than the expression of an opinion, the Court held that the authorities had reacted within the framework of their normal margin of appreciation in such matters (see Bulgaru v. Romania (dec.), no. 22707/05, §§ 54-58, 15 May 2012). Likewise, in Mariya Alekhina and Others v. Russia (no. 38004/12, §§ 213-14, 17 July 2018) the Court considered that imposition of certain sanctions could in principle be justified for an art performance which had involved an intrusion into a place of worship and violation of the accepted rules of conduct there, even though the Court found, on the facts, the sanctions imposed on the applicants disproportionate to the legitimate aim pursued.
2. Application of the above principles to the present case
62. In the present case the respondent State exercised one aspect of its duty to ensure mutual tolerance between opposing religious groups by putting in place administrative- and criminal-law prohibitions on disturbances and attacks, notably against those motivated by religious prejudice, and unlawful interference with religious ceremonies. If appropriately interpreted and applied, provisions sanctioning hooliganism could also play a role in that legislative framework (see paragraphs 34 to 37 above).
63. The Court considers it useful to stress that, as the Court’s case-law described in paragraph 61 above illustrates, such rules provide protection not only for minority religions but also for the majority ones.
64. Putting such legislative provisions in place is not sufficient, however, to comply with a State’s obligations under Article 9. The State must also take measures to ensure that the right guaranteed by that provision is respected in practice (see Karaahmed, cited above, § 94). The manner in which the relevant legislative mechanisms are implemented is a relevant factor for the assessment of the State’s compliance with the relevant positive obligations (see, in the context of Article 8, Király and Dömötör v. Hungary, no. 10851/13, § 72, 17 January 2017).
65. The Court notes that the authorities did not remain entirely passive in enforcement of the relevant laws: B. was charged with petty hooliganism in connection with the incident and it appears that a fine was imposed on him for that offence (see paragraphs 11 and 24 above). The Court notes that in its case-law concerning Ukraine it has considered administrative-offence proceedings, notably those for petty hooliganism, to be “criminal” for Convention purposes (see, for example, Shvydka v. Ukraine, no. 17888/12, §§ 48-55, 30 October 2014).
66. Given the relatively limited seriousness of the disruption the applicant community suffered, a response based on the administrative‑offence proceedings may have been appropriate. However, it was incumbent on the domestic authorities to explain adequately the reasons for any decisions made. The domestic authorities failed to do so and demonstrated a lack of consistency in their response and in the reasoning of the relevant decisions.
67. As far as the administrative-offence proceedings are concerned, the Government did not provide detailed information concerning them: while it appears that B. was fined for his role in the incident in question (see paragraph 24 above), there is no information as to any details, such as the amount of the fine. Moreover, those administrative-offence proceedings concerned B.’s actions only. It has not been explained why no sanction was imposed on anyone else, even though at least two other specific individuals admitted to having taken part in the disruption of the Jehovah’s Witnesses’ religious ceremony (see paragraphs 14, 16 and 23 above).
68. Lastly, B. was fined for the administrative offence of “petty hooliganism” and, when criminal proceedings were eventually instituted (with a delay of five months), it was also in connection with the criminal offence of “hooliganism”. The authorities’ conduct, therefore, followed the pattern identified as problematic by the Human Rights Committee (see paragraph 38 above). The Court has already criticised Ukrainian authorities for categorising violence which occurs in the context of inter-ethnic tensions as “hooliganism” (see Burlya and Others v. Ukraine, no. 3289/10, § 139, 6 November 2018).
69. Somewhat similar considerations apply here. The “hooliganism” classification tended to obscure the key aspect of interdenominational hostility which lay at the heart of the incident. This is because, under Ukrainian law, one of the key characteristics of the offence of hooliganism is that the perpetrator must have the “motivation for hooliganism”, meaning that his or her actions are motivated by mere contempt for social rules and a desire to demonstrate superiority (see paragraphs 30 and 36 above).
70. Given that the actions of individuals who disrupted the Jehovah’s Witnesses’ meeting were clearly motivated by the desire to counteract and disrupt their activities, it is difficult to perceive how they could be classified as being driven merely by simple contempt for social rules.
71. That being said, it is the primarily for the national authorities to interpret and apply domestic law (see, for example, De Tommaso v. Italy [GC], no. 43395/09, § 108, 23 February 2017). Therefore, the “hooliganism” classification in itself may not have been problematic had it allowed the authorities to react to the incident in a duly reasoned and appropriate fashion (see, for example, Karaahmed, cited above, §§ 48, where the Court mentioned that the offence of hooliganism constituted part of an appropriate legal framework for the protection of worshippers from disruption by anti-Muslim demonstrators prone to violence).
72. In the present case, however, it appears that it was in large part precisely the “hooliganism” classification that led to the discontinuation of proceedings on 15 March 2013 and 22 May 2015, with the investigating authority concluding that the relevant actors had lacked the requisite “motivation for hooliganism” (see paragraphs 28 and 30 above).
73. The question which logically flowed from that conclusion but which, for unclear reasons, was never examined was what motivation was behind the acts in question. The obvious line of enquiry was in plain sight: B., G. and O. had all repeatedly admitted that their actions had been motivated by the desire to counteract the Jehovah’s Witnesses’ proselytising activity in the village (see paragraphs 10, 14, 16, 23 and 24 above).
74. Despite the fact that by 23 May 2012 all the above-mentioned individuals admitted to having disrupted the Jehovah’s Witnesses’ meeting (see paragraphs 14 and 16 above), the authorities inexplicably suspended the proceedings on account of purported failure to identify the perpetrators (see paragraph 25 above; and compare, in the context of Article 3, Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, § 138; Begheluri and Others, cited above, § 137; and Basenko v. Ukraine, no. 24213/08, § 65, 26 November 2015; and, in the context of Article 9, Karaahmed, cited above, § 110).
75. Despite overwhelming evidence to the contrary, the incident continued to be treated as having involved “unidentified individuals” until the final decision to discontinue the proceedings (see paragraph 30 above).
76. None of those decisions was adequately explained. In other words, after eventually choosing, with a considerable delay, to treat the incident in the context of “classic” criminal proceedings, the authorities unduly delayed them, applied a criminal-law classification which, in its effect, prevented them from adequately taking the context of inter-religious tension and hostility into account, and eventually discontinued the proceedings citing no coherent reason for that decision.
77. These considerations are sufficient for the Court to conclude that the authorities of the respondent State failed to comply with their positive obligation to ensure mutual tolerance between opposing religious groups.
78. There has, accordingly, been a violation of Article 9 of the Convention.
79. In view of this finding the Court considers that no issue requiring a separate examination arises under Article 9 taken in conjunction with Article 14 of the Convention (see Perry v. Latvia, no. 30273/03, § 70, 8 November 2007).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
80. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
81. The applicants claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
82. The Government contested that claim. They considered that the applicants have not proven the existence of causal link between the alleged violations and amount of the non-pecuniary damage claimed by them and that, in any case, the claimed amount was exorbitant.
83. The Court awards the applicants EUR 2,250 each in respect of non‑pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
84. The applicants also claimed EUR 2,000 for the costs and expenses incurred before the domestic authorities and EUR 6,500 for those incurred before the Court. They also claimed unspecified amount of VAT on the above sums.
85. The Government contested those claims.
86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. The Court observes that, by way of substantiation of the costs claimed, the applicants provided only Mr Chernychenko’s and Mr Carbonneau’s invoices. No document has been provided that would indicate that the applicants have actually paid the amounts billed under those invoices or undertook and were bound to pay them. Regard being had to the documents in its possession and the above criteria, the Court makes no award under this head.
C. Default interest
87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
1. Declares the complaints under Article 9 taken alone and in conjunction with Article 14 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 9 of the Convention;
3. Holds that no issue requiring a separate examination arises under Article 9 taken in conjunction with Article 14 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 2,250 (two thousand two hundred and fifty euros) each, plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 12 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Stéphanie Mourou-Vikström
Acting Deputy Registrar President
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[1] Academic and Practical Commentary of the Criminal Code of Ukraine (Науково-практичний коментар Кримінального кодексу України) (О.М Dzhuzha, А.V Savchenko and V.V Cherney editors) – Kyiv: Yurinkom Inter, 2018 – p 671 (Article 296).
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