The Religious Motivation for Violence Requires Separate Examination: ECHR Finds Ukraine in Violation over Investigation of Attack on Jehovah's Witnesses

The European Court of Human Rights, in the case of Barsuk and Gyl v. Ukraine (application No. 31582/20, decision dated 9 July 2026), considered the state's positive obligations to conduct an effective investigation into a violent attack. According to the applicants, this attack was motivated by their religious affiliation and occurred while they were exercising their freedom of religion.

This decision is significant for the practice of investigating hate crimes. The ECHR emphasised that state authorities cannot limit themselves to formal criminal prosecution if there are reasonable indications of a discriminatory motive. In such circumstances, they are obliged to take all reasonable measures to establish whether religious hatred was the cause of the violence.

Case Circumstances

In March 2016, two applicants, both Jehovah's Witnesses, were engaged in traditional door-to-door preaching and distributing religious literature. During this activity, a man attacked and brutally beat both women. One applicant sustained moderate bodily injuries, while the other suffered minor injuries resulting in a short-term health disorder.

From the outset, the applicants claimed the attack was specifically related to their religious activity. They reported that the attacker addressed them as Jehovah's Witnesses and scattered their religious literature after the beating. The victims requested that the attacker's actions be reclassified as crimes committed with motives of religious intolerance, but investigators and prosecutors refused.

National courts convicted the accused only for causing bodily harm. The question of a possible religious motive was effectively left without proper examination. After the initial verdict was overturned, the case was repeatedly reviewed by courts for a long time before being closed due to the expiration of the statute of limitations.

ECHR's Position

The ECHR noted that during investigations of violent incidents where there is reasonable information about a possible hate motive, state authorities have an additional duty to take all reasonable measures to establish any religious motive and determine whether religious hatred or prejudice may have played a role in the events. The Court acknowledged that proving such a motive in practice may be difficult, but the state must do everything reasonably possible under the specific circumstances of the case.

The Court emphasised that although criminal proceedings were initiated promptly, their subsequent delay led to the expiration of the statute of limitations and the closure of the case.

Effective protection against ill-treatment cannot be ensured if criminal prosecution is terminated due to the expiration of the statute of limitations caused by shortcomings in the actions of the state authorities themselves.

The ECHR stated that a prompt response by authorities to allegations of ill-treatment is necessary to maintain public confidence in the rule of law and to prevent the impression of state tolerance of unlawful violence.

The Court noted that the applicants consistently asserted a religious motive for the attack, and other Jehovah's Witnesses had reported similar hostility from the attacker in the past.

Despite this, the authorities did not explain why they refused to apply criminal law provisions that provide liability for violence motivated by religious intolerance, limiting themselves only to a general statement about insufficient evidence of such a motive.

The ECHR emphasised that the case materials do not indicate any targeted attempts by the authorities to establish the true motive of the attack. Instead, they merely repeated the standard legal formula about "a sudden emergence of hostile relations."

Even if national authorities were willing to accept the accused's explanation that he perceived the applicants as fraudsters, they did not state this explicitly nor explain why they preferred this version over the detailed and consistent explanations of the victims. Moreover, the case materials contained information about attempts by the accused to influence witnesses to confirm his version of events.

The Court stressed that after the applicants presented reasonable arguments about the existence of a religious hatred motive, the general characterisation of the accused's motives by simply repeating the formula about "a sudden emergence of hostile relations" was unacceptable. The ECHR highlighted that hate crimes may have mixed motives, so the authorities should have examined this possibility, which was not done.

Separately, the Court noted that the activity of spreading the teachings and literature of Jehovah's Witnesses is a form of exercising freedom of religion guaranteed by Article 9 of the Convention.

Under the circumstances of this case, the state was obliged to ensure the effective application of criminal law mechanisms through a prompt and effective investigation capable of establishing a possible hate motive.

However, such an investigation was not conducted. The authorities failed to ensure an effective investigation of the applicants' complaint that the attack occurred during the exercise of their religious practice, was motivated by hostility towards it, and aimed to violently obstruct its exercise.

Violation of the Convention

The ECHR found a violation of Article 3 of the Convention in conjunction with Article 14 due to an ineffective investigation of the violent attack and a failure to establish a possible religious motive for the crime. Additionally, the Court found a violation of Article 9 of the Convention in conjunction with Article 14, as the state failed to fulfil its positive obligation to ensure an effective investigation of violence that could have been aimed at obstructing the applicants' exercise of freedom of religion.

Thus, the ECHR unanimously found that Ukraine violated Articles 3 and 9 of the Convention in conjunction with Article 14.

The Court emphasised that when there are reasonable indications of a hate crime based on religious hatred, state authorities must actively establish a possible discriminatory motive and not limit themselves to a formal description of the circumstances. An effective and timely investigation is a necessary condition for the real protection of freedom of religion and combating crimes motivated by prejudice.

Additionally, read how the ECHR sided with Jehovah's Witnesses, recognising that the ban on visiting homes for religious discussions violated Article 9 of the Convention.

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