Background

In Barsuk and Gyl v Ukraine [2026] ECHR 145, the applicants, two female Jehovah’s Witnesses, had been attacked and beaten up by one S when they were preaching door-to-door and distributing religious literature in 2017 [1-8]. S was subsequently arrested and charged with “infliction of minor injuries which caused short-term damage to health” and “infliction of injuries of medium severity” under the Criminal Code [10].

The domestic proceedings

S admitted at his trial that he had pushed and grabbed them. He was an Orthodox Christian and regarded the Jehovah’s Witnesses’ doctrines as false and dangerous, but he had not acted out of religious hatred but because he had previously seen a television news programme about fraudsters visiting people’s houses [16]. However, several Jehovah’s Witnesses, examined at the request of Ms Barsuk and Ms Gyl, testified that on other occasions S had been rude to them when they had been speaking to people in his neighbourhood, telling them that they belonged to a sect and were spreading propaganda, and that on some occasions he had pushed them [17]. He was convicted and sentenced to two years’ imprisonment, and the court awarded Ms Barsuk and Ms Gyl compensation for pecuniary and non-pecuniary damage [18].

Both the prosecution and S appealed: the prosecution arguing that the sentence was too lenient, and S claiming that he had attempted “from a subjective point of view, to prevent a crime and detain the applicants whom he had sincerely believed to be fraudsters” [21]. Ms Barsuk and Ms Gyl lodged objections to the appeals, requesting that no retrial be ordered and that a decision be made to hold S criminally liable on the basis of “religious enmity” in respect of the offence [22].

In 2017, the Kharkiv Regional Court of Appeal quashed the conviction and remitted the case for retrial [23].  The retrial began but kept being reassigned to new retrial judges, until in March 2021, at S’s request, the court discontinued the proceedings as time-barred – a decision which the prosecutor did not oppose [24 & 25]. The applicants appealed the discontinuation, but the Kharkiv Regional Court of Appeal upheld it [26 & 27].

Complaints and judgment

Before the Fifth Section, the applicants complained that the authorities had failed to carry out an effective investigation into the assault on them, in particular by failing to uncover the motive of religious prejudice behind it, in breach of Articles 3 (inhuman or degrading treatment), 9 (religion or belief) and 13 ECHR (effective remedy) taken alone and in conjunction with Article 14 (discrimination) [35]. The Government submitted that the applicants had failed to exhaust domestic remedies by, for example, failing to lodge a cassation appeal with the Supreme Court against the ruling of the Court of Appeal on the time-bar [37]. As to the alleged breach of Article 9, the acts complained of were carried out by a private individual and were not directly attributable to the Government [66].

The Court noted that it was not disputed that when they were attacked, the applicants had been disseminating the doctrines and literature of the Jehovah’s Witnesses [68], so the domestic authorities were confronted with prima facie indications of violent acts motivated by the applicants’ exercise of their religion [69]. The State’s positive obligations under Article 9 of the Convention were, therefore, engaged, and the authorities had failed to carry out an effective investigation into the applicants’ complaint that they had been attacked while exercising their religion [71]. The respondent State had failed to comply with its positive obligations and there had been a violation of Article 9 taken in conjunction with Article 14 of the Convention [72 & 73].