FIFTH SECTIONCASE OF ZAGUBNYA AND TABACHKOVA v. UKRAINE(Application no. 60977/14)      JUDGMENT STRASBOURG12 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:INTRODUCTION1. 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 FACTS2. 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.

Outcome for Article 14: violation