FIFTH SECTIONCASE OF MIGORYANU AND RELIGIOUS COMMUNITY JEHOVAH’S WITNESSES OF THE CITY OF IZMAIL v. UKRAINE(Application no. 36046/15)      JUDGMENT      STRASBOURG12 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:INTRODUCTION1. 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 FACTS2. 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 PRACTICEDomestic lawCriminal Code 200133. 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 High Specialised Court for Civil and Criminal Matters, in its circular letter of 30 January 2013 no. 223‑192/0/4-13 to the lower courts, explained as follows (the text is presented as summarised in the Commentary on the Criminal Code (O.М. Dzuzha, A.V. Savchenko, V.V. Cherney ed.), Yurinkom Inter, Kyiv 2018, p. 671):“[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.”Code of Administrative Offences 198437. 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.Relevant international material38. 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 LAWALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION39. 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.”Submissions by the partiesThe Government40. 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.The applicants42. 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.

Outcome for Article 9: violation