BORZYKH v. UKRAINE

• ECLI: ECLI:CE:ECHR:2024:1119DEC001157524
• Court: Fifth Section (European Court of Human Rights)
• Date: 19 November 2024
• Application Number: 11575/24
• Respondent State: Ucrania
• Applied Rules: 8;10;35

FIFTH SECTION

DECISION

Application no. 11575/24
Yuriy Mykolayovych BORZYKH
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 19 November 2024 as a Chamber composed of:

Mattias Guyomar, President,
María Elósegui,
Armen Harutyunyan,
Gilberto Felici,
Diana Sârcu,
Kateřina Šimáčková,
Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to the above application lodged on 17 November 2017,

Having deliberated, decides as follows:

1. THE FACTS

1. The applicant, Mr Yuriy Mykolayovych Borzykh, is a Ukrainian national who was born in 1962 and lives in Kyiv.

2. The applicant complained under various Convention provisions about the prohibition on wearing the St George ribbon in public.

1. Background information

3. The ribbon of St George has two orange and three black parallel stripes and is a component of military honours, particularly in relation to the Soviet era. It has been widely used in former Soviet countries, namely during events commemorating the victory in the Second World War. Its common name, for example in Ukraine and Russia, omits the word “Saint” and is, essentially, “George’s ribbon”.

1. Ukraine

4. The St George ribbon was previously a common symbol during events in Ukraine commemorating the victory in the Second World War. In particular, it would be worn by veterans and/or members of their families, either as part of the original honours or on its own.

5. Since 2014 the St George ribbon has no longer been used during official commemorative events in Ukraine. Instead, a red poppy has been adopted, which is a more widespread European symbol. The change was triggered by the occupation of Crimea and the hostilities in the Donetsk and Luhansk regions, during which, as widely reported, the St George ribbon was used by the armed groups opposing the Ukrainian government forces.

6. On 9 April 2015 the Parliament of Ukraine passed the Law on the condemnation of the communist and national-socialist (Nazi) regimes in Ukraine and the prohibition of promotion of their symbols (Law no. 317‑VIII). It came into force on 21 May 2015. Law no. 317-VIII condemns, at the legislative level, the communist and national-socialist totalitarian regimes as criminal in order to prevent their crimes from being repeated in the future; to eliminate the threat to the sovereignty, territorial integrity and national security of Ukraine; and to establish historical justice. The law introduced, inter alia, a ban on public denial of the criminal nature of those totalitarian regimes, as well as on public use and promotion of their symbols. It also established the State’s obligation to investigate the crimes committed by those regimes and make the relevant information public. The law provides that those who breach the prohibitions established by it are to be held liable (for more details see paragraphs 23-25 below).

7. On 16 May 2017 the Code of Administrative Offences of Ukraine was amended by way of insertion of a new Article 173-3, which makes the production and promotion of the St George ribbon an administrative offence (Law no. 2031-VIII). Those amendments came into force on 15 June 2017. The explanatory note to the draft of Law no. 2031-VIII provides reasons for the need to introduce the amendments in question. It mentions that its provisions are based on Law no. 317-VIII and also proceeds from the premise that the St George ribbon has become a symbol of Russian military power and occupation and aggression in Ukraine. The note also gives detailed historical information regarding the St George ribbon (for more details see paragraph 27 below).

8. Since 24 February 2022 the Russian armed forces have continued to use the St George ribbon alongside other symbols and insignia (for example, the letters “Z” and “V”) that have become strongly associated with the war. On 22 May 2022 the Ukrainian Parliament passed the Law on the prohibition of propaganda in favour of the Russian Nazi totalitarian regime, the armed aggression of the Russian Federation as a terrorist State against Ukraine and the symbols of the military invasion of the Russian Nazi totalitarian regime in Ukraine. The Law defines the use of symbols of the military invasion as a separate type of propaganda of this kind. Examples of such symbols, explicitly indicated in the Law, include the Latin letters “Z” and “V” individually (without a legitimate context or in the context of justifying armed aggression against Ukraine or other hostilities) and symbols of the Armed Forces of the Russian Federation. An exception is provided for where those symbols are used for legitimate purposes which “have no signs of propaganda” (for more details see paragraphs 28-29 below).

2. Russia

9. In 1992 the Order of St George and the St George Cross were re‑established as military honours in the Russian Federation following the Resolution of the Presidium of the Supreme Council of the Russian Federation no. 2424-1 on State awards in the Russian Federation.

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