CASE OF KORNILOVA v. UKRAINE (European Court of Human Rights) Application no. 47283/14

INTRODUCTION. The applicant was hit by a man whom she had been attempting to invite to a Jehovah’s Witnesses’ meeting. The individual was eventually convicted of infliction of a minor injury, sentenced to a fine and ordered to pay damages. The applicant complained that the authorities had not sufficiently taken into account the alleged motive of religious prejudice behind the violence. She relied on Articles 3, 9 and 14 of the Convention.

FIFTH SECTION
CASE OF KORNILOVA v. UKRAINE
(Application no. 47283/14)
JUDGMENT
STRASBOURG
12 November 2020

This judgment is final but it may be subject to editorial revision.

In the case of Kornilova 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 an Ukrainian national, Ms Tetyana Vasylivna Kornilova (“the applicant”), on 27 June 2014;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 13 October 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicant was hit by a man whom she had been attempting to invite to a Jehovah’s Witnesses’ meeting. The individual was eventually convicted of infliction of a minor injury, sentenced to a fine and ordered to pay damages. The applicant complained that the authorities had not sufficiently taken into account the alleged motive of religious prejudice behind the violence. She relied on Articles 3, 9 and 14 of the Convention.

THE FACTS

2. The applicant was born in 1973 and lives in Nosivka. She was 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, most recently Mr I. Lishchyna.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. On 7 March 2013 the applicant, a Jehovah’s Witness, and her co-religionist, Ms N.S., were conducting door-to-door visits in the town of Nosivka, distributing printed invitations to a religious service. On the front of the invitations was an image of Jesus Christ and the words “One Died for All” in large print; on the back there was some text mentioning, in smaller print, that the invitation was to a Jehovah’s Witnesses’ meeting.

6. At about 1 p.m. the applicant and N.S. called at the house of V.S., a fifty-year-old man with whom they were unacquainted. He met them at the front gate of the house. According to the applicant, V.S. noticed the invitations and the Bible in the women’s hands and immediately punched the applicant in the head and started cursing at the two women, using obscenities and also calling them “shtundas” (штунди). Also according to the applicant, she and N.S. walked away as V.S. had threatened to unleash his dog.

7. Shtunda or shtundist is a colloquial term used in Ukraine to denote evangelical Protestants of various denominations. It is derived from the term shtundism, used to describe evangelical protestant groups active in the Ukraine in the 19th century, focused on evangelisation by spreading knowledge of the Bible.[1]

8. On 9 March 2013 the applicant was admitted to the neurology department of the Nosivka District Central Hospital in connection with her complaints of dizziness and nausea. She was diagnosed with concussion. A bruise on the face was also noted. She received inpatient treatment until 19 March 2013 and was authorised to return to work the following day.

9. Also on 9 March 2013 the applicant complained to the Nosivka District Police Department. The police opened a criminal investigation and notified her of that fact, also indicating that the alleged offence had been classified, on a preliminary basis, under Article 125 § 2 of the Criminal Code (intentional infliction of minor injuries, see paragraph 45 below).

10. On the same day the police questioned the applicant. She stated that she was a Jehovah’s Witness and that on 7 March she and a fellow believer, N.S., had been distributing invitations to a religious service. When they had called at one particular house, a fifty-year old man had come out and started cursing at them and calling them shtundas. He had then hit the applicant in the head without any reason (безпричинно).

11. Still on the same day, V.S. was questioned as a witness, in the absence of a lawyer. He stated that two previously unknown women had come to his property and offered him Jehovah’s Witnesses’ literature. He had refused to take it and had demanded that they leave and not visit his property again. They had refused to leave and “continued to try to recruit him into their fraternity” (продовжували агітувати у своє братство). At that point, V.S. had become angry and had slapped one of the women on the face. He stated that, even if he had uttered obscenities, they had not been addressed to the women.

12. On 12 March 2013 N.S. was questioned. She stated that V.S. had hit the applicant right away, as soon as he had seen her, before any words had been exchanged. N.S. had not seen whether he had slapped or punched her. She did remember, however, that V.S. had cursed constantly and had called the applicant and her “shtundas”.

13. On 18 March 2013, the local hospital informed the police investigator in charge of the case, in response to a request from him, that V.S. was not under medical supervision for any psychiatric or addiction problems. The investigator also requested background information about V.S. from the local council, which responded that there had been no complaints about him. Lastly, the investigator established that V.S. had no criminal record.

14. On 25 March 2013 the applicant was recognised as an aggrieved party (victim) in the proceedings and given information on her procedural rights in that capacity under the Code of Criminal Procedure (see paragraph 48 below).

15. On the same day the applicant was questioned and made a detailed statement setting out the events in terms similar to those described in paragraph 6 above. She stressed in great detail, making reference to Articles 3 and 9 of the Convention, how she had felt humiliated and traumatised by the experience and how that had interfered with her religious practice.

16. On 1 and 12 April 2013 the police questioned a member of the council of elders of the Jehovah’s Witnesses community to which the applicant belonged, the applicant’s daughter (also a Jehovah’s Witness) and two other members of the community. Those witnesses, based on conversations they had had with the applicant, repeated her account of the incident set out in paragraph 6 above.

17. On 2 April 2013 a forensic medical expert determined that the applicant had suffered minor bodily injuries which had had short-term implications on her health, defined in the relevant regulations as health problems lasting from six to twenty-one days. The expert concluded that the applicant’s injuries could have been inflicted either by a slap (the defendant’s version) or by a punch (the applicant’s version).

18. On 9 April 2013 the head of the district police informed the investigator that, at his request, police detectives had canvassed V.S.’s neighbours in an attempt to identify possible witnesses to the incident. However, nothing of relevance had been found.

19. On 25 April 2013 the applicant’s husband, who was not a Jehovah’s Witness, was questioned. He stated that the applicant had not told him about the incident with V.S. on the same day (7 March) or the following day, and he had only learned about it from her on 9 March at the hospital. According to the applicant’s account, V.S. had come out of his house to meet the applicant and her fellow believer N.S., and, as soon as he had seen in their hands printed material with the picture of Jesus Christ and the Bible, he had started shouting and cursing, and had hit the applicant.

20. On 14 May 2013 the investigator formally notified V.S. that he was suspected of having committed an offence under Article 125 § 2 of the Criminal Code. Questioned on that day, V.S. submitted that he could not remember whether the women had been holding anything in their hands or what they had been talking about; he could, however, remember that they had invited him somewhere; despite his requests, the women would not leave, so he had then slapped one of them. V.S denied any possible element of religious intolerance in his conduct.

21. On the same day the investigator organised a confrontation between the applicant and V.S. The applicant gave the account set out in paragraph 6 above. V.S. largely confirmed it, but stated that he had hit the applicant not out of a desire to offend her religious convictions but on account of the “sudden emergence of hostility” (із раптово виниклих неприязних відносин). V.S. repeated that formula when asked by the applicant why he had hit her (see paragraph 41 below for an explanation of the meaning of that formula).

22. On 15 May 2013 the applicant asked the investigator to reclassify the offence with which V.S. was charged from intentional infliction of minor injuries under Article 125 to discriminatory acts, an offence under Article 161 § 2 of the Criminal Code (see paragraph 46 below). She claimed that V.S. had known that she was a Jehovah’s Witness and that he had hit her for that reason.

23. On 16 May 2013 the investigator again questioned the applicant and N.S. They reiterated their previous accounts.

24. On 17 May 2013 the investigator refused the applicant’s reclassification request, stating that it had been established that V.S. had reacted to the “sudden emergence of hostility”. It had not been established that he had acted out of a desire to incite religious hatred.

25. On 20 May 2013 V.S. was questioned again. He stated that he had slapped the applicant on account of the “sudden emergence of hostility”, because she and N.S. had distracted him from his housework. They had insistently invited him to a meeting, indicating that there would be a lot of women there. The applicant had then humiliated him concerning his “man’s health” (Корнілова Т.В. тоді навіть образила мене з приводу мого чоловічого здоров’я), which was why he had hit her. He explained that he had not mentioned that aspect of the incident before because he had been too embarrassed. It had not been his intention to create religious hostility or offend the applicant’s religious convictions. V.S. insisted that he had respect for all religions. He had not known that the applicant was a Jehovah’s Witness, as there had been no signs of her belonging to that group. He had indeed uttered obscenities, but those words had not been addressed to the applicant and her companion. He might have uttered the word “shtundas”, but that had had no religious connotations. V.S. stated that he occasionally used that word when he was angry at women. Finally, V.S. denied that he had threatened to set his dog on the women. He stated that he regretted having committed the offence under Article 125 of the Criminal Code with which he was charged.

26. Within the criminal proceedings the applicant submitted a civil claim for damages against V.S.

27. On 20 May 2013 the investigation was concluded and the applicant examined the case file. She submitted no remarks.

28. During the trial the defendant pleaded guilty as charged. He testified that the applicant and N.S. had invited him to some celebration (на якусь гулянку), he could not remember what kind, at which there would be a lot of women. He had refused. The applicant had told him that he was probably not interested because he was “not capable of anything with women” (що він з жінками не способен). He had then swung at her and, because she had been standing close, had ended up slapping her.

29. The applicant, represented by a lawyer, insisted that she had been ill‑treated on account of her religion. She gave a description of the events as set out in paragraph 6 above, with the difference that she had not heard V.S. threaten to set his dog on her but had heard it from N.S.’s account of the events. When asked why there had been a two-day delay in seeking medical attention, she explained that she had not known how to tell her husband about the incident.

30. The other witnesses who had given statements in the course of the pre-trial investigation were also examined during the trial.

31. On the last day of the trial, 15 July 2013, the applicant lodged a formal application with the trial court asking that the offence be reclassified as discriminatory acts under Article 161 § 2 of the Criminal Code, or as hooliganism under Article 296 (see paragraph 47 below). She invoked Articles 3, 9 and 14 of the Convention and, citing the Court’s judgment in Milanović v. Serbia (no. 44614/07, § 96, 14 December 2010), pointed out that the State had a duty to take all reasonable steps to unmask any religious motive behind violent acts. She argued that it was improbable that the defendant had been motivated by “personal hostility”, as he had not been acquainted with her, had behaved violently without any provocation, had cursed at her, thus demonstrating his contempt for social rules, and had used the word “shtunda”.

32. On 16 July 2013 the Nosivka District Court found V.S. guilty of intentional infliction of a minor physical injury under Article 125 § 2 of the Criminal Code and fined him the equivalent of 78 euros (EUR). The court found that he had inflicted minor physical injuries on the applicant “due to the sudden emergence of hostility” (на ґрунті раптово виниклих неприязних відносин); no aggravating circumstances could be established. In rendering its judgment, the court relied on the statements of V.S., N.S. and the applicant, as well as on medical and other documentary evidence.

33. The court noted that V.S. had already paid the amount claimed in respect of pecuniary damage (notably the costs of the applicant’s hospital treatment). As for the claim in respect of non-pecuniary damage, the court took into account the defendant’s monthly income (1,200 Ukrainian hryvnias (UAH)) and awarded the applicant UAH 3,000 (the equivalent of about EUR 278) of the UAH 5,000 she had claimed.

34. The applicant appealed, arguing that the investigating authorities and the trial court had failed to examine the issue of religious hatred which had been behind the defendant’s criminal conduct, and that her freedom of religion had not been protected. She asserted that the case should have been classified under Article 161 § 2 of the Criminal Code. In addition, she argued that the crime had been committed on grounds of religious enmity, which was an aggravating circumstance under Article 67 of the Criminal Code.

35. The prosecutor responded, arguing that the defendant had been correctly charged and convicted of an offence under Article 125 of the Criminal Code, rather than of discriminatory acts based on religious prejudice. The prosecutor pointed out that the investigation had been unable to identify a religious motive in the defendant’s actions, referring in this respect to the defendant’s account of the events (see paragraph 25 above).

36. The defendant also appealed, arguing that the award in respect of non-pecuniary damage was excessive.

37. On 26 September 2013 the Chernihiv Regional Court of Appeal, after a hearing in which the applicant and the defendant took part, upheld the judgment of 16 July 2013.

38. At the close of the hearing the Court of Appeal dismissed the applicant’s allegation that the crime had been committed on account of her religion, noting that no such motive had been established in the course of the investigation or court proceedings. The classification of the offence had been correct and the applicant had failed to point to any evidence which would support reclassification of the offence as hooliganism or discriminatory acts, as she had requested, beyond her initial statement to the police indicating that she had been attacked for no reason (see paragraph 10 above). She had not asked the Court of Appeal to re-examine the evidence concerning the offence.

39. The applicant appealed on points of law, repeating her argument that the issue of religious intolerance had not been properly examined.

40. On 8 January 2014 the High Specialised Court for Civil and Criminal Matters upheld the decisions of the lower courts, finding that they had been lawful and substantiated. Based on the facts established by the courts, the legal classification of the defendant’s actions had been correct.

RELEVANT LEGAL FRAMEWORK

I. Criminal law

A. Terminology

41. In the Ukrainian legal context, 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 hostility, 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 47 below).

42. The elements of the offence of hooliganism, in particular the motives for an act of hooliganism, are explained in paragraph 47 below.

B. Criminal Code 2001

43. 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.

44. The part of the Criminal Code dedicated to particular offences classifies them by chapter based on the societal value that a given offence is considered to be directed against.

45. Article 125 of the Code, which is located in the chapter entitled “Offences against another person’s life and health”, criminalises the offence of “intentional infliction of a minor physical injury” with short-term health implications. The relevant regulations define “short-term health implications” as inability to work for six to twenty-one days. Article 125 makes this offence punishable by one of the following: (i) a fine of between the equivalent of EUR 58 and EUR 158; (ii) community work for a period of between 150 and 240 hours; (iii) the withholding of ten to twenty percent of wages for up to one year; (iv) short-term detention for up to six months; or (v) placement in a semi-open correctional institution for up to two years.

46. Article 161 of the Code, which is located in the chapter entitled “Offences against electoral, labour and other human and civil rights and freedoms”, criminalises the offence of “violation of the equality of citizens on grounds of race, ethnicity or religious beliefs”. At the relevant time it was punishable by a fine of up to the equivalent of EUR 790 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 of between two and five years.

47. Article 296, which is located in the chapter entitled “Offences against public order and morals”, 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 that offence 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 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.[2]

C. Code of Criminal Procedure 2012

48. Article 56 of the Code confers a range of rights on an aggrieved party (victim) in criminal proceedings, most notably the right:

(i) to have the complaint about the crime committed promptly registered;

(ii) to submit evidence in support of such a complaint and submit any other relevant evidence in the proceedings;

(iii) to be notified of one’s rights as an aggrieved party;

(iv) to be informed of the nature of the charges or suspicion against the defendant, the imposition or removal of restrictions on the defendant and completion of the investigation;

(v) to lodge requests and applications and to challenge judges and other officials in charge of the case;

(vi) where merited, to benefit from police protection;

(vii) to make statements and testify in a language the victim understands or to refuse to do so and to use the services of an interpreter;

(viii) to challenge the decisions of the investigator, prosecutor and the court;

(ix) to be represented;

(x) to claim and recover damages caused by the crime;

(xi) to examine the case-file material concerning the crime committed against him or her at the time of completion of the investigation or its discontinuation and to obtain copies of such material;

(xii) to participate in investigative actions, put questions to the participants, make requests and objections concerning the procedure observed in the course of the action, examine records of such actions and propose corrections to them;

(xiii) to use recording devices in the course of investigative actions in which the aggrieved party takes part, unless the authority in charge of the proceedings bans such use in order to protect the confidentiality of certain information;

(xiv) to be notified in advance of the time of court hearings, take part in them, and participate in the examination of the evidence;

(xv) to continue to pursue the prosecution in lieu of the prosecutor if the prosecutor decides to withdraw charges;

(xvi) to be heard on the matters of sentencing;

(xvii) to examine the trial records and audio recordings; and

(xviii) to appeal against court decisions.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 14 OF THE CONVENTION

49. The applicant complained, invoking Article 3 taken alone and in conjunction with Article 14 of the Convention, that the authorities had failed effectively to investigate the assault on her, 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

50. The Court notes that the applicant suffered a blow to her head, in the presence of her fellow believer and in the context of her religious activity, as a result of which she spent eleven days in hospital. In view of such circumstances, it considers that the situation was sufficiently serious to fall within the ambit of Article 3 of the Convention.

51. The Court further 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.

B. Merits

1. The parties’ submissions

(a) The applicant

52. The applicant submitted that the mere fact that investigative steps had been taken did not guarantee an effective investigation. The authorities had accepted the defendant’s version of events, despite plentiful evidence that it was untrue: his story had changed over the course of the pre-trial investigation and had defied common sense. V.S. would not have taken a sudden dislike to her, a complete stranger, other than because of the religious context.

53. The applicant argued that the authorities’ initial decision to classify the assault on her as an offence under Article 125 of the Criminal Code, as opposed to discriminatory acts under Article 161 of that Code, had prejudiced their ability to elucidate the religious motive behind the assault by narrowing the scope of their enquiries. Having chosen that classification, the authorities had been willing to accept the defendant’s improbable story of sudden dislike, because it had matched that classification. The applicant’s applications for reclassification of the offence had been dismissed without reasons, and the trial court and prosecutor had failed to formally rule on the reclassification applications lodged with them (see paragraph 31 above).

54. As to the conduct of the investigation, the applicant submitted that the authorities had failed to provide any records of interviews conducted in the process of the search for additional witnesses (see paragraph 16 above). They had also failed to explain why they had rejected the evidence of witnesses on the applicant’s side. They had failed to question individuals among the defendant’s entourage to verify whether he had manifested animosity towards Jehovah’s Witnesses in the past.

(b) The Government

55. The Government submitted that the investigation into the applicant’s complaint had started immediately, and that the perpetrator had been promptly identified and questioned. His background had been examined and no indication had been found of a pattern of prejudice against Jehovah’s Witnesses. The applicant, N.S. (the only other person who had witnessed the incident), the applicant’s daughter, her husband and members of her community had been questioned repeatedly. A confrontation had been conducted between the applicant and the defendant. The investigator had repeatedly put to the defendant specific questions aimed at unmasking any possible motive of religious hostility. The authorities had also tried to find additional witnesses to the incident, but to no avail.

56. It had been established that it had been the applicant’s refusal to accept V.S.’s initial refusal to attend the Jehovah’s Witnesses’ meeting and her obtrusiveness, rather than his prejudiced attitude towards her religious group, that had angered V.S. and had caused him to hit the applicant.

57. The applicant had been granted full rights of an aggrieved party early on in the proceedings. She had been able to exercise her right to request reclassification of V.S.’s offence. Her requests had been examined and rejected, as the requisite religious hate motive had not been established. That matter had also been examined by the Court of Appeal, which had also found the applicant’s arguments unpersuasive.

2. The Court’s assessment

(a) Relevant general principles

58. Article 3 requires that the authorities conduct an effective official investigation into alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 38, 28 January 2014, with further references).

59. 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 to 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).

60. 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 mutatis mutandis Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005‑XIII (extracts)).

(b) Application of the above principles to the present case

(i) Article 3 of the Convention taken separately

61. The Court notes that the authorities promptly investigated the assault on the applicant, identified and charged the perpetrator, completed proceedings in the case within a year and imposed on the perpetrator a sanction which does not appear out of proportion with the gravity of his acts. The applicant was fully involved in the proceedings at all stages.

62. The authorities, accordingly, sufficiently complied with their obligations under the procedural limb of Article 3 of the Convention taken separately.

63. There has, accordingly, been no violation of Article 3 of the Convention taken separately.

(ii) Article 14 taken in conjunction with Article 3 of the Convention

64. The remaining question, to be examined under Article 14 taken in conjunction with Article 3 of the Convention, is whether the authorities took all reasonable steps to uncover any possible motive of religious prejudice behind the assault. .

65. The Court notes at the outset that V.S. assaulted the applicant when she attempted to invite him to a religious service. He did not deny that he had referred to her and her fellow believer, N.S., as “shtundas”, a term sometimes used to refer to evangelical Christians (see paragraphs 7 and 25 above).

66. The applicant alleged that no words had been exchanged before V.S. had assaulted her and that he had reacted violently to the mere image of Jesus Christ on the invitation card and the Bible she had been holding (see paragraph 6 above). The copy of the invitation card in question which she submitted to the Court does not contain a prominent reference to Jehovah’s Witnesses which the perpetrator could have noticed just by looking at the invitation from a distance, as the applicant alleged.

67. Therefore, accepting for the sake of argument the applicant’s account of events, there is no indication that V.S. could have identified the applicant and her fellow believer as Jehovah’s Witnesses, or that he was sufficiently knowledgeable to have been able to distinguish between Jehovah’s Witnesses and various evangelical Christian denominations. The term he allegedly uttered could, in colloquial speech, be used for both.

68. However, regardless of the defendant’s possible confusion as to the specific group he was dealing with, his words did refer to religion and the assault occurred while the applicant had been attempting to invite him to a religious service. In such circumstances, the authorities were under an obligation to take all reasonable steps to uncover any motive of religious prejudice behind the assault. It is well-established in the Court’s case-law that discrimination within the meaning of Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of the victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic (see Škorjanec v. Croatia, no. 25536/14, § 56, 28 March 2017) or, as in this case, due to a possible confusion as to the victim’s religious identity.

69. The Court is not convinced by the applicant’s argument (see paragraph 54 above) that the authorities’ initial decision to classify the assault on her as an offence under Article 125 of the Criminal Code, as opposed to an offence under Article 161 of the Code, amounted in itself to failure to comply with the procedural obligation to uncover any possible hate-crime motive in V.S.’s acts. In this connection, the Court reiterates that it is 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).

70. Had a motive of religious prejudice been considered as proven by the domestic authorities, it could have been taken into account as an aggravating factor in sentencing the defendant even if his actions remained classified as an offence against the person (see paragraph 45 above).

71. The Court further notes that the authorities did take a number of steps to uncover possible religious motives behind the defendant’s violent act. He was repeatedly questioned on that point and the applicant had an opportunity to confront him in that respect (see paragraphs 20, 21 and 25 above). The authorities also took steps to investigate the defendant’s background (see paragraph 13 above), which may have allowed them to uncover any pattern of religious conflict or prejudicial conduct.

72. The authorities at different levels repeatedly examined the applicant’s requests to have the offence committed against her reclassified as a hate crime, the applicant having been able to make repeated extensive submissions in that respect (see paragraphs 22, 31, 34 and 39 above). They heard members of her community and also attempted to find additional witnesses to the incident (see paragraphs 16 and 18 above).

73. Nonetheless, the authorities failed to explain why they trusted the defendant’s account, in particular as to his motive, over that of the applicant and her fellow believer, N.S. (compare Stoica v. Romania, no. 42722/02, § 121, 4 March 2008), especially as their account remained largely consistent while the defendant’s changed on the crucial matter of his motive (see paragraphs 11, 20, and 25 above).

74. Nor did the authorities comment in any way on the defendant’s use of the word “shtundas” in respect of the applicant and N.S., which constituted a strong indicator of his possible religious prejudice. His explanation to the effect that he used that term to refer to women in general does not appear particularly convincing given the context. In any case, none of the authorities commented on it in any way.

75. The reasoning of the authorities’ decisions concerning V.S.’s motive was impaired by their use of the legal formula “sudden emergence of hostility” (see paragraph 41 above), rather than providing any actual reasoning in respect of his motive.

76. Aware of its subsidiary role, the Court is prevented from substituting its own assessment of the facts for that of the national authorities. It is also aware that, in criminal proceedings, the principle of in dubio pro reo dictates that doubts should be interpreted in favour of the defendant (see, for example, Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002, and Melich and Beck v. the Czech Republic, no. 35450/04, § 49, 24 July 2008). This may be particularly so where the matter in dispute, as here, concerns the defendant’s state of mind and motives.

77. At the same time, the Court has held that not only acts based solely on a victim’s characteristics can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude towards the group to which the victim belongs (see Balázs v. Hungary. no. 15529/12, § 70, 20 October 2015). In the present case, however, the authorities failed to address the possibility of such a double motive.

78. In summary, what the Court finds problematic in the authorities’ conduct in the present case is not the fact that they may have interpreted any doubts they may have had as to the defendant’s motive to his benefit, but rather that they failed sufficiently to explain their decisions, and in particular to address the possibility of a double motive for his actions. In doing so, they failed in their duty to unmask any religious motive in the defendant’s actions and to establish whether religious prejudice had played a role in the events.

79. There has, accordingly, been a violation of Article 14 taken in conjunction with Article 3 of the Convention in its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION taken alone and in conjunction with Article 14

80. The applicant complained that the authorities had failed to react appropriately to the attack she had suffered in the course of her religious activity. She invoked Articles 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.”

81. The Government contested that argument.

82. 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.

83. Having regard to its findings above in respect of the applicant’s complaint under Article 14 taken in conjunction with Article 3 of the Convention, the Court considers that her 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

84. 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

85. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

86. The Government considered that claim excessive.

87. In view of the degree of gravity of the violation concerning the procedural obligation of the respondent State, the Court finds it appropriate to award the applicant EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

88. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the domestic courts and EUR 1,500 for those incurred before the Court.

89. The Government pointed out that the claim was not supported by relevant documentation.

90. 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 applicant has provided only Mr Chernychenko’s invoice in substantiation of the costs claimed. No document has been provided that would indicate that she has actually paid the amount billed under that invoice or that she undertook and was bound to pay it.

91. Therefore, regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses.

C. Default interest

92. 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 no violation of Article 3 of the Convention taken separately;

3. Holds that there has been a violation of Article 14 taken in conjunction with Article 3 of the Convention in its procedural limb;

4. Holds that the applicant’s complaints under Article 9, taken alone and in conjunction with Article 14 of the Convention, raise no issue requiring a separate examination;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros), 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;

6. Dismisses the remainder of the applicant’s 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] The original term apparently derived from the German Bibelstunde, Bible study.
[2] 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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