Last Updated on December 4, 2020 by LawEuro
. The applicants, Jehovah’s Witnesses, were assaulted by an Orthodox Christian priest. They complained, relying on Articles 3, 9 and 14 of the Convention, that the domestic authorities’ investigation into the incident had been inadequate.
FIFTH SECTION
CASE OF ZAGUBNYA AND TABACHKOVA v. UKRAINE
(Application no. 60977/14)
JUDGMENT
STRASBOURG
12 November 2020
This judgment is final but it may be subject to editorial revision.
In the case of Zagubnya and Tabachkova 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 (no. 60977/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Tetiana Zagubnya and Ms Maria Tabachkova (“the applicants”), on 5 September 2014;
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 applicants, Jehovah’s Witnesses, were assaulted by an Orthodox Christian priest. They complained, relying on Articles 3, 9 and 14 of the Convention, that the domestic authorities’ investigation into the incident had been inadequate.
THE FACTS
2. The applicants were born in 1959 and 1988 respectively and live in Mariupol. They were represented by Mr K. Chernychenko, Mr R. Cook and Mr A. Carbonneau, lawyers practising in Lviv, London and Paris respectively.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 20 April 2009 the applicants were making door-to-door visits in the village of Novi Mlyny, in the Borzna district of the Chernihiv Region, as part of their religious practice. Father L., born in 1956, the priest of the local Orthodox church, was passing by on a bus, driving several of his elderly parishioners home after a church service. Some parishioners noticed the applicants on the street and told him that they were Jehovah’s Witnesses who had been visiting villagers’ homes. L. got off the bus, approached the applicants and asked them who they were and what they were doing. After receiving confirmation that they were Jehovah’s Witnesses engaged in preaching the group’s doctrine in the village, L. told the applicants to cease that activity. In the confrontation that followed, L. took a metre-long wooden stick (according to L., the walking stick of one of his parishioners) from the bus and hit the applicants several times. They ran away and hid in nearby properties.
6. On the same day a forensic medical expert documented haematomas on the first applicant’s right shoulder blade and left shoulder and a bruise on her right temple. The second applicant had bruises on both shoulders and her left buttock. The expert concluded that the injuries had been caused by being struck by an elongated blunt object, possibly a wooden stick, at least three times for the first applicant and at least four for the second applicant. The expert concluded that the injuries amounted to “minor bodily injuries” within the meaning of domestic law (see paragraph 32 below).
7. On the same day the applicants asked the police to institute criminal proceedings against L. who, in their view, had acted against the equality of citizens based on their religion. The applicants were interviewed by the police. They described the incident, essentially in the same terms as set out in paragraph 5 above.
8. The next day Father L. gave a statement to the police. He stated that on 20 April 2009 he had been driving his parishioners home. The parishioners had pointed out two women in the street and had told him that they had been trespassing on villagers’ properties. They had refused to leave when asked, had disparaged the Orthodox Christian faith and had been proselytising aggressively. He had stopped the bus, approached the women and asked them not to disturb people in their homes. They had refused. He had repeated his demand but the women had “started to behave insolently and annoy [him] with various words” (“розпочали вести себе зухвало та діставати мене різними словами”). In the course of the conflict that had followed, L. had hit the women with a walking stick several times.
9. On 29 April 2009 the police, after considering the versions of events given by the applicants and L., concluded that the conflict between them had arisen out of a “sudden emergence of hostility” (із раптово виниклих неприязних відносин) between them (see paragraph 28 below for an explanation of the meaning of that term). The investigator concluded that there had been no constituent elements of the offence of discriminatory acts under Article 161 of the Criminal Code in L.’s actions, but that there had been elements of hooliganism and intentional infliction of minor bodily harm (Articles 125 and 296 of the Criminal Code, paragraphs 32 and 34 below respectively). The investigator noted that the offence of intentional infliction of minor bodily harm required private prosecution (see paragraph 35 below).
10. The applicants’ lawyer appealed against that decision to the prosecutor’s office.
11. On 21 July 2009 the regional prosecutor’s office overruled the decision of 29 April 2009 as premature and remitted the case material for further pre-investigation enquiries (for the rules on the institution of criminal proceedings and pre-investigation enquiries in force at the relevant time, see paragraph 36 below).
12. In the course of the pre-investigation enquiries the police interviewed various witnesses:
(i) The villagers on whose properties the applicants had hidden following the incident, and members of the community of Jehovah’s Witnesses whom the applicants had told about the incident. The former stated that the applicants had indeed hidden on their properties and the latter confirmed the applicants’ version of events;
(ii) The parishioners who had been on the bus with Father L. on the day of the incident. They stated that he had stopped the bus because he and they had thought that the women they had seen on the street were Jehovah’s Witnesses. Father L. had stopped the bus and gone to talk to them. He had then returned, taken a wooden stick and hit them with it several times.
13. On 7 August 2009 the police investigator, after considering the versions of events given by the applicants and L., concluded that the conflict between them had arisen out of a “sudden emergence of hostility” between them. The investigator repeated, as in the previous decision (see paragraph 9 above), that there had been no constituent elements of the offence of discriminatory acts in L.’s actions, but that there had been elements of hooliganism and intentional infliction of minor bodily harm, the latter offence requiring private prosecution.
14. On 28 September 2009 the district prosecutor overruled the decision not to institute proceedings of 7 August 2009, stating that it had been based on a mere repetition of the statements collected by the police without any systematic analysis of the actus reus and mens rea elements.
15. On 2 February 2010 the police investigator repeated his decision of 7 August 2009 (see paragraph 13 above) with one change: the investigator stated, without giving any reasons, that L.’s actions only had the elements of the offence of infliction of minor bodily harm. Hooliganism was not mentioned.
16. The applicant’s lawyer Mr L. appealed against four further similarly reasoned decisions by the investigators not to institute criminal proceedings and the prosecutors repeatedly overruled them for similar reasons and remitted the case for further rounds of pre-investigation enquiries.
17. On 14 May 2010, in the course of one of those rounds, Father L. was again questioned by the police. He reiterated his previous statements. In addition, he stated that in the past several years he had been receiving complaints from the villagers that Jehovah’s Witnesses had been repeatedly visiting houses and proselytising despite the residents’ objections. L. stated that he had acted the way he had because he had been irritated by the applicants’ insolent behaviour. He had not intended to rouse religious animosity, humiliate them because of their religious views or limit their rights. He had wished to protect the rights of the villagers and prevent the applicants from putting further pressure on them. L. repeated essentially the same statements when questioned on 23 November 2010.
18. On 19 May 2011 the police instituted criminal proceedings for hooliganism. The decision stated that L. had inflicted minor bodily harm on the applicants without reason, out of “motivation for hooliganism” (безпричинно, з хуліганських спонукань) (for an explanation of the meaning of “motivation for hooliganism” in domestic law, see paragraph 34 below).
19. On 13 July 2011 the investigator formally recognised the applicants as aggrieved parties in the proceedings. On the same day they were interviewed. They gave the same account of the incident as in paragraph 5 above. They stressed that in the course of the confrontation with L. they had simply told him that they were Jehovah’s Witnesses and had been preaching the Kingdom of God, but that they had conducted themselves calmly and had not insulted him.
20. In the course of the investigation, a number of individuals were questioned again, including L., who largely confirmed his previous statements (in particular that of 14 May 2010, see paragraph 17 above), as well as members of the applicants’ religious community and L.’s parishioners, who also largely confirmed their previous statements.
21. In the course of a face-to-face confrontation with the applicants conducted by the investigator, L. again admitted hitting the applicants in a dispute about them spreading their doctrine in the village.
22. On 23 July 2012 the applicants lodged an application with the investigator urging that L.’s actions be classified as discriminatory acts under Article 161 of the Criminal Code rather than hooliganism. On 25 July 2012 the investigator rejected that application (the text of that decision was not provided to the Court). On 12 September 2012 the applicants appealed against that decision to the Regional Prosecutor’s office. There is no information on the outcome of that appeal but it appears that it did not receive a favourable response.
23. On 14 September 2012 the investigator discontinued the criminal proceedings for lack of the corpus delicti of hooliganism in Father L.’s actions. In reaching this conclusion, the investigator quoted L.’s statements and concluded that he had reacted to the “sudden emergence of hostility” and not out of disrespect for society, which was a required element of hooliganism (see paragraph 34 below).
24. The applicants appealed against that decision. They argued that Father L.’s actions had been motivated by religion rather than personal animosity. They cited the Court’s case-law concerning the State’s obligations to investigate of its own motion, and without relying on the victim’s initiative, incidents involving inhuman and degrading treatment, and to take steps to uncover possible discriminatory motives behind violent acts. They urged the authorities to examine whether proceedings had to be instituted against L. for the offence of discriminatory acts, under Article 161 of the Criminal Code.
25. On 25 October 2012 the Borzna District Court upheld the decision of 14 September 2012. The court found that it had been established that L. had a negative opinion of Jehovah’s Witnesses because his parishioners had complained to him about their activities. Expressing that negative attitude, he had inflicted injuries on the applicants. Accordingly, his actions had been motivated by personal animosity rather than a desire to break public order or out of contempt for society, which characterised the offence of hooliganism.
26. The applicants appealed. They argued, in particular, that the conclusions in the decisions by the investigator and the first-instance court were contradictory: the facts, as established, had shown that L. could not be seen as having been motivated by personal animosity, but had been motivated either by religious animosity or hooliganism.
27. On 14 November 2012 the Chernihiv Regional Court of Appeal upheld the first-instance court’s decision, as did the High Specialised Court for Civil and Criminal Matters on 6 March 2014. They considered, without extensive reasoning, the lower courts’ decisions lawful and well-founded.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. Criminal law
A. Terminology
28. In Ukrainian legal usage, the term “sudden emergence of hostility” is used to refer to a motive arising out of personal conflict or animosity. It is intended to distinguish offences arising out of such personal conflict or animosity from offences driven by other motives, such as financial gain or hooliganism, which may change the legal classification of an offence or can constitute an aggravating circumstance. For instance, if an assault causing a minor injury was motivated by such personal animosity, it can be classified under Article 125 of the Criminal Code. However, if the same assault was motivated by hooliganism, it can be classified as hooliganism, an offence against public order, under Article 296 of the Criminal Code (see paragraph 34 below).
29. The elements of the offence of hooliganism, in particular the motives for acts of hooliganism, are explained in paragraph 34 below.
B. Criminal Code 2001
30. Under Articles 12 and 49 of the Criminal Code, offences become time-barred upon expiry of the following periods after commission of the offence:
(i) minor offences punishable by punishments less severe than imprisonment – two years (this would apply to the offences of infliction of minor bodily harm or hooliganism, under Articles 125 and 296 of the Code, see paragraphs 32 and 34 below);
(ii) offences of medium severity punishable by up to five years’ imprisonment – five years (this would apply to the offence of discriminatory acts under Article 161 of the Code, see paragraph 33 below).
31. Article 67 of the Code lists, among various circumstances to be taken into account as aggravating factors in sentencing, the commission of a crime on grounds of racial, national or religious enmity or hostility.
32. Article 125 of the Code criminalises the offence of “intentional infliction of minor bodily harm” either with or without short-term health implications. Article 125 makes this offence punishable by one of the following: (i) a fine of up to 850 Ukrainian hryvnias (UAH); (ii) community work for up to 200 hours; or (iii) the withholding of 10 to 20% of wages for up to a year.
33. Article 161 of the Code criminalises the offence of “violation of the equality of citizens on the grounds of race, ethnicity or religious beliefs”, If such acts were combined with violence or threats, at the relevant time the offence was punishable by (i) the withholding of 10 to 20% of wages for up to two years or (ii) imprisonment for up to five years.
34. Article 296 criminalises “hooliganism” (хуліганство, sometimes also translated as “disorderly acts”), which is 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, the offence was punishable by one of the following: (i) a fine of between UAH 8,500 and 17,000, (ii) short-term detention for up to six months or (iii) placement in a semi-open correctional institution for up to five years.
A commentary to the Criminal Code, summarising the relevant case-law and established academic opinion, explains that the key element of the offence of hooliganism is that it must be motivated by “flagrant disrespect for society”. This is defined as a desire to show disregard for the established social rules of conduct, to reaffirm oneself at the expense of others, and to put oneself 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.”
II. Code of Criminal Procedure 1960
35. Under Article 27 of the Code, criminal proceedings concerning infliction of minor bodily harm (Article 125 of the Criminal Code, see paragraph 32 above) could be instituted by the courts only on application of the victim and examined in private prosecution proceedings. No pre-trial investigation was conducted in such cases.
36. The Code provided for a procedure known as “pre-investigation enquiries”. That procedure resulted in a decision either not to institute criminal proceedings or to institute them. In the case of the latter, a fully‑fledged criminal investigation was conducted. The provisions concerning the pre-investigation enquiries procedure and the remedies available to alleged victims in that context can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
37. The 1960 Code was replaced by the 2012 Code of Criminal Procedure with effect from 19 November 2012. However, the old Code continued to apply after that date to proceedings instituted while it was in force.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION
38. The applicants complained, relying on Article 3 taken alone and in conjunction with Article 14 of the Convention, that the authorities had failed effectively to investigate the assault on them, in particular by uncovering the motive of religious prejudice behind it. The relevant provisions 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. Admissibility
39. The Government submitted that it was relevant, in determining the threshold of severity which would bring Article 3 into play, whether the treatment in question had been inflicted by a State agent or a private party. The extent of a victim’s injuries and the effects on him or her had to be taken into account and treatment inflicted by private parties had to be more serious – the threshold of severity had to be higher – to fall within the ambit of Article 3. 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 at issue in the present case had not attained the requisite threshold of severity to fall within the ambit of Article 3. The bruises the applicants had suffered had had no lasting health consequences.
40. The applicants submitted that Father L. had hit them publicly, had been enraged and had humiliated them, using his physical superiority. They had been hit multiple times with a dangerous instrument, a wooden stick. They had been traumatised by the experience, and had had to run and hide to escape the attack (see paragraph 5 above). For those reasons, the attack had been sufficiently serious to make Article 3 applicable. The applicants also pointed to the Court’s case-law to the effect that Article 3 could be applicable even where a person had suffered no physical injuries, and that discriminatory motives and remarks were factors to be taken into account in assessing the applicability of Article 3 (citing, in particular, Abdu v. Bulgaria, no. 26827/08, §§ 37 and 38, 11 March 2014).
41. The Court notes that L. struck the applicants with a wooden stick, causing a number of bruises, including on the first applicant’s head. The incident happened in public. Such treatment was bound to create in the applicants feelings of fear, anguish, helplessness and inferiority, diminishing their dignity. Under such circumstances, the Court considers that the treatment L. inflicted on the applicants fell within the ambit of Article 3 of the Convention.
42. The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
43. The applicants considered that the only logical explanation for why the authorities had not charged Father L. with a hate crime under Article 161 of the Criminal Code was that the applicants were members of a minority faith. The investigation had not been prompt, as evidenced by the numerous reversals by supervising prosecutors of premature decisions not to institute proceedings. Because of that, the authorities had allowed the statute of limitations for hooliganism to expire (see paragraphs 5 and 30 above).
44. The sudden emergence of hostility motive found by the domestic authorities in Father L.’s actions was hardly credible given the circumstances in which the incident had happened: Father L. had been a total stranger to them, and the only reason for their interaction had been the fact that they were Jehovah’s Witnesses.
(b) The Government
45. The Government submitted that there was no indication that the investigation had not been independent. The applicants had been duly informed of the investigative measures and decisions taken. All those involved in the incident had been interviewed within days and all key evidence had been collected and essential investigating steps (interviews with witnesses and potential witnesses, forensic examination) completed by August 2009 (see paragraphs 6 and 12 above). A subsequent re-examination of the evidence had not changed the picture of the events and had ended in the decision to discontinue the investigation, which had been upheld by domestic courts at all levels of jurisdiction.
46. The authorities had taken all possible steps to establish the circumstances of the incident and, in particular, the defendant’s motive. However, no witnesses had confirmed that the conflict had been religious in nature. The authorities could not assume a religious motive from the mere fact that L. was an Orthodox Christian priest.
2. The Court’s assessment
(a) Relevant general principles
47. Article 3 requires authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals; that investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. Such an investigation should be conducted independently, promptly and with reasonable expedition. The victim should be able to participate effectively (see O’Keeffe v. Ireland [GC], no. 35810/09, § 172, 28 January 2014).
48. Just like in respect of racially motivated attacks, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any religious motive and establish whether or not religious hatred or prejudice may have played a role in the events. The Court concedes that proving such a motive may be difficult in practice. The respondent State’s obligation to investigate possible religious overtones to a violent act is thus an obligation to use best endeavours and is not absolute; the authorities must do whatever is reasonable in the circumstances of the case (see Milanović v. Serbia, no. 44614/07, § 96, 14 December 2010).
49. The authorities’ duty to investigate the existence of a possible link between discriminatory attitudes and any act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14. Owing to the interplay between Article 14 and the substantive provisions, issues of discriminatory violence may fall to be examined under only one of the two provisions, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005‑XIII (extracts)).
(b) Application of the above principles to the present case
50. The Court notes that it was open to the applicants from the outset to bring a private prosecution against L. for the offence of infliction of minor bodily harm (see paragraph 32 above). Within days of the incident L. admitted assaulting the applicants and their injuries were documented and classified by a forensic expert as “minor bodily injuries” (see paragraph 6 above).
51. There is no indication that there was any barrier preventing the applicants, who were legally represented, from seeking L.’s conviction and punishment by bringing a private prosecution for infliction of minor bodily harm, which could have potentially met the respondent State’s obligations under Article 3 in the circumstances (see, for example, Abdu, cited above, § 51, and contrast Leja v. Latvia, no. 71072/01, §§ 58 and 59, 14 June 2011, and Volodina v. Russia, no. 41261/17, § 82, 9 July 2019).
52. The applicants, however, insisted on L. being investigated for different offences (either discriminatory acts or hooliganism), which would, in their view, more fully take into account the religious motive behind L.’s actions. They focussed their submissions to this Court on that issue.
53. The Court considers that, in such circumstances, the applicants’ complaints fall to be examined only under Article 14 taken in conjunction with Article 3 of the Convention.
54. It is not seriously in dispute that Father L. acted in opposition to Jehovah’s Witnesses’ activities in the village where his parishioners lived. In that sense, it is a foregone conclusion that his actions were religiously motivated. The only question is whether the way the domestic authorities treated those actions and admitted motives under domestic law amounted to a breach of their obligations under the Convention.
55. In this context, the Court reiterates that it is the primarily for the domestic authorities to interpret and apply domestic law (see, for example, De Tommaso v. Italy [GC], no. 43395/09, § 108, 23 February 2017).
56. However, any decisions by the domestic authorities in this field must be based on reasoning free from religious prejudice and consistent with the State’s role as a neutral and impartial organiser of the exercise of various religions (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 107, 26 April 2016) and with its obligation to ensure the peaceful enjoyment of religious freedom in relations between private individuals (see Begheluri v. Georgia, no. 28490/02, § 160, 7 October 2014).
57. The domestic authorities failed to provide such reasons for their decisions, notably to rule out the application of two provisions of domestic criminal law under which the applicants wished L. to be prosecuted, the offences of discriminatory acts and hooliganism.
58. As to the former, the applicants insisted throughout the proceedings that the assault on them had to be classified as the offence of discriminatory acts under Article 161 of the Criminal Code (see paragraphs 7, 24 and 33 above). That argument was not without foundation and required an answer. However, no domestic authority ever provided any coherent reason for rejecting the applicants’ arguments in that regard and finding that provision inapplicable.
59. As regards the offence of hooliganism, the domestic authorities demonstrated a remarkable lack of consistency in their decisions on whether L.’s actions could be classified as such:
(i) the authorities initially, in their decisions of April and August 2009, considered that provision applicable but for some reason failed to institute criminal proceedings (see paragraphs 9 and 13 above);
(ii) then, still refusing to institute proceedings about a year after the incident in February 2010, they made no mention of hooliganism at all (see paragraph 15 above);
(iii) furthermore, as late as May 2011, more than two years after the incident, they instituted criminal proceedings for hooliganism (see paragraph 18 above);
(iv) but then finally, in September 2012, they decided that L.’s actions could not be classified as hooliganism (see paragraph 23 above).
60. The Court sees no reason to question the authorities’ eventual conclusion that L.’s actions could not be classified as hooliganism, as that offence was defined in domestic law as disorderly acts motivated purely by contempt for social rules (see paragraphs 23 and 34 above). L. himself admitted that his actions had actually been motivated by his opposition to Jehovah’s Witnesses’ activities. All the information on which the eventual decision taken in September 2012 was based had already been in the authorities’ possession in April 2009. Therefore, the authorities’ repeated decisions not to institute proceedings and their quashing only served to delay the proceedings unnecessarily.
61. As a result, by the time the authorities eventually concluded in September 2012 (three years and four months after the incident) that neither of the provisions under which the applicants wished L. to be prosecuted (discriminatory acts or hooliganism) applied, the prosecution had become time-barred under any provision of the Criminal Code (see paragraph 30 above).
62. It was open for the applicants to bring, from the outset, a private prosecution against L. for the offence the domestic authorities considered that he had committed, namely infliction of minor bodily harm. It may have been open to the applicants to ask the domestic courts, in any such proceedings, to take the religious motive behind the incident into account as an aggravating circumstance in sentencing L. (see paragraph 31 above). However, the domestic authorities’ delay effectively deprived the applicants even of that possible avenue of redress. The applicants cannot be reproached for not bringing such private prosecution proceedings while the authorities were still seriously considering whether L. had committed a more serious offence.
63. The Court concludes that by failing to explain their decisions not to prosecute L. for a more serious offence and by delaying the proceedings, the authorities failed in their duty to unmask any religious motive in his actions.
64. There has, accordingly, been a violation of Article 14 taken in conjunction with Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION taken alone and in conjunction with Article 14
65. The applicants complained that the authorities had failed to react appropriately to the attack they had suffered in the course of their religious activity. They relied on Article 9 taken alone and in conjunction with Article 14 of the Convention. The former provision 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.”
66. The Government contested that argument.
67. The Court, in view of its findings above, finds that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds. They must therefore be declared admissible.
68. Having regard to its findings above in respect of the applicants’ complaint under Article 14 taken in conjunction with Article 3 of the Convention, the Court considers that the applicants’ complaints under Article 9 taken alone and in conjunction with Article 14 of the Convention raise no issue requiring a separate examination.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
69. 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.”
70. The applicants claimed 12,500 euros (EUR) each in respect of non‑pecuniary damage. They also claimed EUR 2,000 jointly for the legal fees incurred before the domestic courts and EUR 6,200 for those incurred before the Court.
71. The Government considered that the applicants’ claims were unjustified and excessive. In addition, they submitted that the claims for costs and expenses were not supported by any relevant documentation.
72. The Court awards the applicants EUR 4,500 each in respect of non‑pecuniary damage, plus any tax that may be chargeable.
73. 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 the applicants have provided only Mr Chernychenko’s and Mr Carbonneau’s invoices in substantiation of the costs claimed. No document has been provided that would indicate that they have actually paid the amounts billed under those invoices or that they 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.
74. 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 application admissible;
2. Holds that there has been a violation of Article 14 taken in conjunction with Article 3 of the Convention;
3. Holds that the applicants’ complaints under Article 9, taken alone and in conjunction with Article 14 of the Convention, raise no issue requiring a separate examination;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 4,500 (four thousand five hundred 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
____________
[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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