Communicated on 10 December 2015

FIFTH SECTION

Application no. 47283/14 Tetyana Vasylivna KORNILOVA against Ukraine lodged on 27 June 2014

STATEMENT OF FACTS

The applicant, Ms Tetyana Vasylivna Kornilova , is a Ukrainian national, who was born in 1973 and lives in Nosivka , the Chernihiv Region.

A. The circumstances of the case

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

The applicant is a Jehovah ’ s Witness.

On 7 March 2013 the applicant and a co-religionist, N.S., were carrying out door-to-door visits in the town of Nosivka , distributing printed invitation cards for a special religious service. The visits constituted a part of their religious practice.

At about 1 p.m. they visited the house of V.S., a fifty-year-old man they were unacquainted with. He met them at the front gate of the house. According to the applicant, V.S. noticed the invitations and immediately identified the women as Jehovah ’ s Witnesses; he started to shout invectives at them calling them “ shtundists ” and “whores”; then he punched the applicant in the head causing her to stagger. The applicant and N.S. moved away as V.S. threatened to unleash his dog.

On 8 March 2013 the applicant ’ s health deteriorated: she had dizziness and nausea.

On 9 March 2013 she was admitted to the neurological department of the Nosivka District Central Hospital for inpatient treatment. She was diagnosed with concussion. A bruise on the face was also noted.

On the same day the applicant complained to the Nosivka District Police Department. The police opened a criminal investigation.

The police decided to question V.S. concerning the incident with the two women. V.S. submitted that the two women had offered him literature and evangelised for the Jehovah Witnesses ’ beliefs. He had demanded that they leave. At a certain point, as the women would not leave, he had slapped one woman on the face.

During the investigation the applicant insisted that the police should investigate the case under Article 161 § 2 of the Criminal Code. She claimed that V.S. had known that she had been a Jehovah ’ s Witness and that he had ill-treated her on those grounds. N.S. was questioned by the police and confirmed the applicant ’ s statements.

On 14 May 2013 the investigator informed V.S. that he was suspected of having committed a crime under Article 125 § 2 of the Criminal Code. When questioned on that day, V.S. submitted that he could not remember if the women had been holding anything in their hands and 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 woman on the face. V.S denied any possible element of religious intolerance in his conduct.

On 20 May 2013 V.S. additionally submitted to the investigator that he had slapped the applicant because she had humiliated him; he might have said obscenities but those words had not been addressed to the applicant and her companion. V.S. denied the incident had any religious connotations.

Within the criminal case the applicant submitted a civil claim in respect of damage caused by V.S.

During the trial the applicant insisted that she had been ill-treated on the grounds of her religion and requested that the case be classified under Article 161 § 2 of the Criminal Code.

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 punished him with a fine of 850 Ukrainian hryvnias (UAH). The court found that V.S. had inflicted minor physical injuries on the applicant following of a sudden bout of anger; no aggravating circumstances could be established. In 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.

As to the civil claims, the court noted that V.S. had paid the claim in respect of pecuniary damage; in respect of non-pecuniary damage, the court awarded the applicant UAH 3,000.

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

On 26 September 2013 the Chernihiv Regional Court of Appeal upheld the judgment of 16 July 2013. It dismissed the applicant ’ s allegation that the crime had been committed on the grounds of her religion noting that no such motive had been established in the court proceedings.

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

On 8 January 2014 the Higher Specialised Civil and Criminal Court upheld the decisions of the lower courts considering that they had been lawful and substantiated.

B. Relevant domestic law

Criminal Code of Ukraine of 5 April 2001

Article 67. Circumstances aggravating a punishment

“ 1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:

...

(3) the commission of a crime on the grounds of racial, national or religious enmity or hostility;

... ”

Article 125. Intentional infliction of a minor physical injury

“ ...

2. The intentional infliction of a minor physical injury with short-term health implications ... shall be punishable by a fine amounting to between fifty and one hundred times the non ‑ taxable individual minimum monthly income; or by community work for a period of between one hundred and fifty and two hundred and forty hours, or correctional labour for up to one year, or arrest for up to six months, or restriction of liberty for up to two years. ”

Article 161. Violation of citizens ’ equality on the grounds of their race, nationality or religious beliefs

“1. Intentional acts inciting national, racial or religious enmity and hatred ..., or the insult of citizens ’ feelings in respect to their religious convictions, ... shall be punishable by ...

2. The same acts accompanied with violence, deception or threats, and also committed by a public official, –

shall be punishable by a fine amounting to between five hundred and one thousand times the non ‑ taxable individual minimum monthly income; or by imprisonment for a period from two to five years, with or without deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.”

COMPLAINTS

The applicant complains under Articles 3, 9 and 14 of the Convention that her allegations of ill-treatment on the grounds of her religion have not been properly investigated and examined by the domestic authorities.

QUESTIONS TO THE PARTIES

Having regard to the requirements of Articles 3, 9 and 14 of the Convention, have the authorities carried out an effective investigation into the alleged attack of 7 March 2013? Were they under an obligation to investigate whether that attack had been motivated by religious hatred? Did they discharge that obligation properly and without discrimination?