FIFTH SECTION
CASE OF
FEDORCHENKO AND LOZENKO v. UKRAINE
(Application no. 387/03)
JUDGMENT
STRASBOURG
20 September 2012
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Fedorchenko and Lozenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
DeanSpielmann, President,
MarkVilliger,
KarelJungwiert,
Boštjan M.Zupančič,
AnnPower-Forde,
GannaYudkivska,
AngelikaNußberger, judges,
andStephen Phillips, Deputy Section Registrar,
Having deliberated in private on 10 July2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
387/03) 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, Mr Yuriy Fedorchenko and Ms Zoya
Lozenko (“the applicants”), on 28 November 2002.
The applicants were represented by the EuropeanRomaRightsCenter, Budapest, Hungary. The Ukrainian Government (“the Government”) were
represented by their former Agent, Mr Y. Zaytsev, from the Ministry of Justice
of Ukraine.
On 22 September 2008 the President of the Fifth
Section decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1951 and 1954 and
live in the towns of Novi Sanzghary and Zolotnosha, Ukraine.
According to the first applicant, between 8 and
8:30 a.m. on 28 October 2001, as he was leaving his house, he came face to
face with Police Major I. and two strangers. They threatened him and then hit
him and pushed him inside the house. The attackers then set the house on fire
and left, barring the door.
The house exploded and the first applicant was
projected outside, while other members of his family, who were asleep, remained
inside.
Later the same day the first applicant and four
other members of the applicants’ family, 21-year-old Z.F. (the second applicant’s
daughter),
6-year-old S.F. (the applicants’ granddaughter), 3-year-old M.F. (the
applicants’ grandson) and 15-year-old T.L., were admitted to hospital with
burns and gas intoxication. Z.F., S.F. and M. F. died in hospital.
Two other members of the applicants’ family were
found dead in the house: 25-year-old V.F. (the first applicant’s son) and
6-year-old Y.F. (the applicants’ grandson).
The first applicant informed the police that the
fire had been caused by an arson attack carried out by MajorI. from the Kryukov
police department. He believed that it was a punishment attack for failure to
pay a monthly bribe of 200 Ukrainian hryvnias (UAH) claimed by the police. MajorI.hadallegedly visited the first applicant’s house before and allegedly extorted money
from the applicants’ relative, Z.F.,in payment for not instituting criminal
proceedings against her for drug trafficking. In that connectionMajorI.hadallegedly already been bribedwith UAH 800.The first applicant also maintained
that MajorI. had previously threatened to set his house on fire.
According to an article in the local newspaper, “police
officers burned alive a Gypsy family since they had refused to pay a usual
share from selling drugs”. A local prosecutor said that in one of the burned
houses they used to sell drugs. He also said that the version of “police drug
lords’ complicity” in the crime was being checked. A neighbour testified that
the applicants’ family was a poor one and that Z.F. had been selling heroin (ширку) for a couple of
months but then she had been beaten by police officers “for she was
inexperienced”. The first applicant said that MajorI. had threatened to burn
them alive since they had failed to pay UAH 200 in monthly bribes.
The newspaper article also contained the following passages:
“Several dozens Gypsies, who came to the victims’ funeral, told
the journalists: “Yes, there exists fascism in respect of Gypsies in Ukraine, their ethnic minority rights are being breached”
[...]
“Very often it is mentioned in the police reports that
drugs are sold by “persons of Gypsy ethnicity”, while Ukrainians also sell
drugs”
On 28 October 2001 the Kremenchug District
Prosecutor instituted criminal proceedings for the murder of V.F. and Y.F. On 6
November 2001 the Poltava Regional Prosecutor’s Office instituted criminal
proceedings for the arson attack on the first applicant’s house. These two
cases were later joined.
The Poltava Regional Police Department (Управління
Міністерства
внутрішніх
справ
України в
Полтавській
області)
conducted an internal inquiry into the allegations of MajorI.’s involvement in
the arson attack on the first applicant’s house. During the inquiry, the first
applicant again stated that MajorI. had extorted 200 UAH from the first
applicant’s daughter-in-law for not prosecuting her for selling drugs. The
inquiry further established that at 9 a.m. on 28 October 2001MajorI. left home
with his wife. On their way they met their neighbours. However, the written
explanations given by MajorI. and his wife stated that they had left the house
at 8.20 a.m. Later MajorI.was seen with his wife at the markets in town, where
they talked to furniture and clothes retailers and to a couple named Su. At 1
p.m. MajorI. returned home. It was also found that on 4 October 2001 MajorI. had arrested Z.F., who was later released, and on 20 October 2001 he had
searched the first applicant’s house.
In particular, in his explanations given on an
unidentified date, MajorI. stated that “it was likely that I knew by sight the
inhabitants of the house on Shkolnaya street, but I did not know their names.
I’ve seen there all Gypsies and know that they sell drugs there. But it is
difficult to catch Gypsies...”
It was concluded that these circumstances, as
well as “the first applicant’s head injuries sustained as a result of the explosions”
could have been the reason why the first applicant slandered Major I. On
10 December 2001 the conclusion reached in the inquiry, namely that MajorI. had not been involved in the arson attack on the first applicant’s house, was
sent to the Poltava Regional Prosecutor’s Office.
On 14 November 2001 a certain N., who was
suspected of burning down the first applicant’s house, was charged with murder
and destruction of property.
On various dates further criminal proceedings
were instituted against at least sixindividuals for threecounts of arson and
murder, which took place on 28 October 2001. In April 2002 the cases against
these individuals were separated from the case against N., since theformerwere
all missing.
In May 2002 the applicants’ representative
requested the prosecutor to question (i) the doctors who had been providing
first aid to the victims, (ii) the applicants’ neighbour, who had allegedly
been told by police not to testify, and (iii) Major I.’s former wife, who had
allegedly seen his car.
On 1 June 2002 the applicants’ lawyer requested
the investigator to establish criminal responsibility on the part of MajorI. for the arson attack.
On the same day a face-to-face cross-examination
was held between the first applicant and Major I. The applicant gave his
account of events and described the clothes MajorI. had been wearing on the
morning of the arson attack. MajorI. denied all the accusations.
The same day the prosecutor rejected the
applicants’ request for MajorI. to be prosecuted for the arson attack, on the
basis of MajorI.’s contentions, the conclusions of the internal inquiry
and the existence of other accused who did not confirm the involvement of MajorI. in the attack. In particular, D. testified that in the morning of 28 October
2001 he had driven three people to the first applicant’s house, and that MajorI. had not been among them.
In July 2002 the criminal case against N. was
submitted to the court.
On 11 December 2002 the Poltava Regional Court of
Appeal, acting as a court of first instance, considered the criminal case
against N. and G., and remitted it for further investigation. In particular,
the court noted that a certain X. “had planned to destroy and damage by way of
arson three houses in which lived persons of Gypsy ethnicity”. N. and G. were
accused ofacting on the orders of X. together with seven other people. The
court indicated numerous shortcomings in the investigation. In particular, G.’s
complaints that he had been ill-treated by police with the aim of extracting a
confession from him had to be checked;it was not established who had taken part
in the arson attack and what each person’s role was;others allegedly involved
in arson attacks were wanted, but nothing had been done to search for them. The
court noted in particular that the investigation should check MajorI.’s alibi
and establish why and on what grounds, when arresting Z.F. and searching the
first applicant’s house, he had been working outside his area of territorial jurisdiction.
The applicants also testified in a court hearing that MajorI. had threatened
them with reprisal. The court, however, did not specify in its decision what
the reason for the alleged reprisal was. The court noted that MajorI. himself
admitted that he had visited the first applicant’s house several times in 2001.The
first applicant was also not informed about the decision not to institute
criminal proceedings against Major I. The documents from the internal
investigation were not joined to the criminal case file and the applicants’
representative’s request of May 2002 was not answered. The court noted that MajorI.’s former wife, the ambulance doctors, the firemen and the first applicant’s
neighbours should be questioned. Finally, the court indicated a large number of
various investigative actionswhich were to be performed by investigation
authorities.
According to the applicants, in a court hearing
N. said: “We had to put those [...] Gypsies in their place. The police should
do this!”
On 6 March 2003 the Supreme Court of Ukraine
upheld the decision of 11 December 2002. It has,however, decided that it was
not necessary to carry out the reconstruction of events as indicated by the
Court of Appeal.
On 16 June 2003 the Kremenchug Prosecutor’s
Office refused to institute criminal proceedings against Major I. It was held,
without any particular specifications, that further checks had been performed
and it had been established that MajorI. had not been involved in the arson
attack.
On 10 July 2004 the criminal proceedings were
stayed, becauseotherperpetrators could not be found.
On 23 September 2004 the criminal proceedings in
respect of N. were resumed.
On 21 January 2005 the Kremenchug Court found N.
guilty of wilful destruction of property which causedsignificant pecuniary
damageand sentenced him to five years’ imprisonment, suspended, with two years’
probation. The court found that N., No. and S. had arrived at the first
applicant’s house in order to “destroy the houses of persons of Gypsy ethnicity
who sell drugs”. N. chased people out of the house while No. and S. did not
wait until everybody was out before setting the house on fire. N. testified in
a court hearing that his aim had been to destroy the house of drug traffickers.
His task was to evict the people from the house, but his accomplices did not
wait for him, and had set the house on fire with people inside, including him.
The court found that N. had been “in some way” dependent on No. and S., and had
acted as their accomplice. His story was confirmed by various evidence, in
particular, he had received burns and spent some time in hospital afterwards. The
court awarded the first applicant UAH 13,820 for destruction of property and entirely
rejected the applicants’ civil claim for damages caused by the death of their
relatives and by the injuries sustained by the first applicant, on the ground
that these had not been caused as a result of the actions or intentions of N.
The prosecutor and the applicants appealed,
claiming that N.’s sentence was too lenient. In their appeal the applicants
noted that the first-instance court had not assessed the evidence of the first
applicant and one other survivor of the arson attack, who had witnessed the
involvement of Police Major I. in the attack. They also noted that according to
N. and G.’s testimonies the arsons had been planned and organised well ahead
since the inflammable mixture had been bought and several cars had been sent to
set on fire houses of persons of Romani ethnicity.
On 20 May 2005 the Poltava Regional Court of
Appeal quashed the judgment of 21 January 2005 due to procedural defects of the
trial in the first-instance court.
On 22 June 2005 the criminal proceedings against
N. were terminated because of his death.
On 4 December 2008 the decision of 10 July 2004
to stay the proceedings was quashed by a prosecutor. No further information
about the proceedings in the case is available.
II. RELEVANT
INTERNATIONAL DOCUMENTATION
Second report on Ukraine by the European Commission against Racism and Intolerance (ECRI) adopted on 14
December 2001
The relevant extracts from the report read as
follows:
“56. As is the case in some European countries, the Roma/Gypsy
population of Ukraine is faced with situations of severe socio-economic
disadvantage, but also with manifestations of prejudice, discrimination and
violence on the part of the majority population and sometimes on the part of
the authorities, particularly law enforcement officials. ECRI expresses concern
at this situation and considers that policies are urgently needed to address
the position of the Roma/Gypsy communities in Ukraine in order to ensure that
the members of these communities enjoy in practice the same rights as the rest
of the population of Ukraine. ECRI believes that the first necessary step
towards developing an appropriate response to the problems faced by the
Roma/Gypsy population of Ukraine is the recognition on the part of the
authorities that such problems exist and that they need to be addressed [...].
58. Another priority area for action identified by ECRI is the
behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy
communities. In this respect, ECRI notes with concern frequent reports of
excessive use of force, ill-treatment, verbal abuse and destruction of property
by law enforcement personnel. Discriminatory practices are also reported to be
widespread and include arbitrary checks, unwarranted searches, confiscation of
documents and, as noted in ECRI’s first report, discriminatory enforcement of
crime prevention policies targeting persons with criminal records. ECRI urges
that action be taken to address manifestations of unlawful behaviour on the
part of law enforcement officials generally, including through a more effective
institutional response to such manifestations and through training and
awareness raising measures. In addition, noting reports that the response of
the police to crimes committed by the general population against Roma/Gypsies
is often inadequate, ECRI recommends that the Ukrainian authorities take
measures to ensure that the police react promptly and effectively to all
crimes, including those committed against Roma/Gypsies and, in line with its
recommendations formulated above, to ensure that the racist element of such
offences is duly taken into account.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicants complained that their relatives
had died as a result of an arson attack with the direct involvement of a State
agent, Police Major I.
They further complained that the State authorities had failed
to conduct a thorough and effective investigation into the circumstances of the
death of their relatives and of MajorI.’s involvement in the arson attack.They
relied on Article 2, which provides, insofar as relevant, as follows:
“1. Everyone’s right to life shall be protected by
law. ... ”
A. Admissibility
The Government argued that the applicants had
failed to challenge the refusal of 16 June 2003 of the prosecutor to institute
criminal proceedings against MajorI.with the higher prosecutor or the court.
Therefore, they did not exhaust effective domestic remedies in respect to their
complaints under Article 2 of the Convention.
The applicants disagreed, pointing out that
there was no evidence that the State authorities, having twice rejected the
applicants’ claims, would reach a different conclusion if faced with another
complaint. The applicants noted that Article 35 of the Convention must be
applied with some degree of flexibility and without excessive formalism (seeKucheruk
v. Ukraine, no. 2570/04, § 109, 6 September 2007).They indicated that they
had done everything possible in the circumstances, had provided evidence to the
police, and had lodged complaints and appeals, although, according to the
applicants, all they had to do was bring the case to the attention of the
competent authorities. The applicant noted that in the case of Assenov and
Others v. Bulgaria(28 October 1998, § 86, Reports of Judgments and
Decisions 1998‑VIII) the Court had found that “the applicants made
numerous appeals to the prosecuting authorities at all levels, requesting that
a full criminal investigation of Mr Assenov’s allegations of ill-treatment by
the police be carried out” and considered that, “having exhausted all the
possibilities available to him... the applicant was not required... to embark
on another attempt to obtain redress”. Thus, the applicants concluded that they
had exhausted all available domestic remedies.
The Court notes that the Government’s objection
is closely linked to the applicants’ complaint under the procedural limb of
Article 2 of the Convention. In these circumstances, it joins the objection to
the merits of the applicants’ complaint (see,mutatis mutandis,Lotarev
v. Ukraine, no. 29447/04, § 74, 8 April 2010).
The Court notes that these complaintsare not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Procedural obligations under Article 2 of the Convention
(a) The parties’ submissions
The applicants noted that the investigation
following the arson attack on the first applicant’s house suffered from a
number of crucial omissions which made it ineffective. The conclusion that MajorI. was not involved in the arson attack was reached without interviewing key
eyewitnesses. According to the applicants, the first applicant was questioned
by investigating officers only a month after the events in question and because
he went to the investigator on his own initiative, without being summoned. The
applicants also underlined that the national authorities, and in particular the
Poltava Regional Court of Appeal in its decision of 11 December 2002, pointed
out numerous shortcomings in the investigation and remitted the case for
additional investigation. The applicants concluded that the authorities had not
complied with their procedural obligation under Article 2 of the
Convention.
The Government noted that both the police
internal investigation and the prosecutor’s office had established that MajorI. had not been involved in the arson attack. The Government further stated that
the circumstances of the incident had been clarified and those responsible for
the arson attack had been identified. Numerous and various procedural actions
had been taken, including four reconstructions of the incident, four searches,
eleven identification parades, sixty-three interviews, one confrontation
(between the first applicant and Major I.), and seventeen forensic
examinations. The applicants’ complaints that MajorI. had been involved in the
incident were properly checked and the national authorities did all which is
necessary to find those responsible for the arson attack.
(b) The Court’s assessment
i. General principles
The Court reiterates that Article 2 of the
Convention imposes a duty on the State to secure the right to life by putting
in place effective criminal-law provisions to deter the commission of offences
against the person, backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. It also requires by
implication that there should be an effective official investigation when
individuals have been killed. The duty to conduct such an investigation arises
in all cases of killing and other suspicious death, whether the perpetrators are
private persons or State agents, or are unknown (see Angelova and Iliev
v. Bulgaria, no. 55523/00, § 94, 26 July 2007, and Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts)).
The investigation must be effective in the sense
that it is capable of leading to the establishment of the relevant facts and
the identification and punishment of those responsible. The authorities must
have taken the reasonable steps available to them to secure all the evidence
concerning the incident. The investigation’s conclusions must be based on
thorough, objective and impartial analysis of all the relevant elements.
Furthermore, the requirements of Article 2 of the Convention go beyond the
stage of the official investigation, where this has led to the institution of
proceedings in the national courts: the proceedings as a whole, including the
trial stage, must satisfy the requirements of the positive obligation to
protect lives through the law. While there is no absolute obligation for all
prosecutions to result in conviction or in a particular sentence, any
deficiency in the investigation which undermines its capability of establishing
the circumstances of the case or the person responsible is liable to fall foul
of the required measure of effectiveness. The national courts should not under
any circumstances be prepared to allow life-threatening offences to go
unpunished(see, mutatis mutandis,Mojsiejew v. Poland, no.
11818/02, § 53, 24 March 2009, andEsat
Bayram v. Turkey, no. 75535/01, § 47, 26 May 2009).
For an investigation to be effective, the
persons responsible for and carrying out the investigation must be independent
and impartial, in law and in practice. This means not only a lack of hierarchical
or institutional connection with those implicated in the events but also
independence in practice. The effective investigation required under Article 2
serves to maintain public confidence in the authorities’ maintenance of the
rule of law, to prevent any appearance of collusion in or tolerance of unlawful
acts and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility. In all cases,
the next of kin of the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests (see, for example, Ramsahai
and Others v. the Netherlands [GC], no. 52391/99, §§ 321-322, ECHR 2007‑II;
Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010; Tahsin Acar v.
Turkey [GC], no. 26307/95, §§ 222-225, ECHR 2004‑III; and Güleç
v. Turkey, 27 July 1998, § 82, Reports
of Judgments and Decisions 1998-IV).
ii. Application of these principles in the present case
The Court notes that in the present case,
despite the heinous nature of the incident, in which small children were burned
alive, it appears that State authorities limited the investigation to some
basic procedural steps.
In particular, despite the Government’s
reference to a number of procedural actions performed during the investigation
of the criminal case, in the absence of the case-file materials it is unclear
what exactly was examined, who was questioned during the investigation and when
these actions were taken. In its decision of 11 December 2002 the Poltava
Regional Court of Appeal indicated numerous shortcomings of the investigation,
and noted numerous procedural actions which had to be performed. That was
confirmed by the Supreme Court of Ukraine. From the materials submitted by the
Government it is unclear whether these recommendations had been taken into
consideration and complied with by the investigation authorities.
The Court also notes that since 2004 none of the
at least six suspects of involvement in the arson attack on the first
applicant’s house and other houses on 28 October 2001 have been found, and
notes that there is no evidence that anything was done to find them.
As for the investigation of MajorI.’s possible
involvement in the arson attack, the Court also notes that it appears from the
available materials that the prosecutor’s office simply referred to the conclusion
of the police internal investigation. Although it was stated in the decision of
16 June 2003 that “further checks had been performed” there is no
evidence what exactly had been done.
The Court accepts that not every investigation
is necessarily successful or comes to a conclusion coinciding with the claimant’s
account of events. However, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove to be
true, to the identification and punishment of those responsible (see Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR
2002-II).
The foregoing considerations are sufficient to
enable the Court to conclude that the investigation of the applicants’
relatives’ deaths had not been effective. It accordingly dismisses the
Government’s objection (see paragraph 37).
There has therefore been a violation of the procedural limb of
Article 2 of the Convention.
2. The alleged violation of the right to life of the applicants’
relatives
The applicants stated that the deaths of their
relatives had been caused by a violent arson attack, organised and carried out
with the participation of a State agent.
The Government stated that it had been
established by an internal police investigation and by the prosecutor on 16
June 2003 that MajorI. had not been involved in the arson attack.
The Court reiterates that Article 2 of the
Convention, which safeguards the right to life, ranks as one of the most
fundamental provisions in the Convention. In the light of the importance of the
protection afforded by Article 2, the Court must subject complaints about
deprivation of life to the most careful scrutiny, taking into consideration all
relevant circumstances.
In assessing evidence, the Court adopts the
standard of proof “beyond reasonable doubt”. However, such proof may follow
from the co-existence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. The Court is sensitive to the
subsidiary nature of its role and recognises that it must be cautious in taking
on the role of a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case. Nonetheless, where
allegations are made under Articles 2 and 3 of the Convention the Court must
apply a particularly thorough scrutiny, even if certain domestic proceedings
and investigations have already taken place (see Aktaş v. Turkey,
no. 24351/94, § 271, ECHR 2003-V (extracts), with further references).
The Court notes that in the present case it is
undisputed that MajorI. knew the applicants, had been to the first applicant’s
house and had been involved in some police operations against one of the
applicants’ relatives, though it appears that in doing that he had been acting
outside his jurisdiction. The question to be answered is whether the applicants
slandered MajorI. in accusing him of involvement in the police operations, or
whether MajorI. had indeed been involved in the arson attack.
The Court first notes that there is no
convincing evidence that MajorI. had an alibi for the morning of 28 October
2001. For example, the time MajorI. allegedly left for the markets in the
morning has not been precisely established and is not corroborated by other
witnesses (such as Major I.’s neighbours).
Further on, the first applicant stated that he
had recognised MajorI. among the arsonists. The applicants further suggested
that several witnesses (a neighbour, MajorI.’s former wife) could have seen MajorI. on the morning of the tragic event near the first applicant’s house. However,
the Court does not have any other evidence, except for the applicants’
statements, that MajorI. had indeed participated in the events in question, as
it appears that these witnesses were not questioned. Although the first
applicant described the clothes which MajorI. had been allegedly wearing in the
morning of 28 October 2001, the investigation authorities did not check this
with other possible witnesses.
Therefore, in the absence of other evidence, and
given the above conclusion that there was no effective investigation in the
present case, the Court cannot draw a conclusion beyond reasonable doubt as to
whether Major I. was or was not involved in the arson attack which caused the
deaths of the applicants’ relatives, and if he was, in what capacity that was.
It is not, therefore, possible to conclude that there has been
a violation of the substantive limb of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTIONTAKEN IN CONJUNCTION WITH ARTICLE 2 OF THE CONVENTION UNDER ITS
PROCEDURAL LIMB
The applicants further invoked Article 14 taken
in conjunction with Article 2 of the Convention under its procedural limb.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
A. Admissibility
The Court notes that this complaint is linked to
the one examined above (see paragraphs 35-38) and must therefore likewise be
declared admissible.
B. Merits
The applicants noted that they had offered
evidence of racist motive in the crime. In this case there exists an explicit
obligation to investigate possible racist overtones in the events in question
(see Šečić v. Croatia, no. 40116/02, §§ 66-70, 31 May 2007). Despite
the information available to the authorities that several houses, in which the
Romani lived, had been set on fire during the same day, and the express racist
statement of one of the accused, there was no evidence that the authorities had
carried out any examination into allegations that there had been a crime
motivated by ethnic hatred.
The Government submitted that Article 14 of the
Convention applied only when the alleged violation had been committed by the
State agents. However, in the present case there were private persons charged
with a crime. The Government therefore contended that there has been no
violation of Article 14 of the Convention in the present case.
The Court recalls firstly that, according to its
established case-law, discrimination means treating differently, without any
objective and reasonable justification, persons in relevantly similar
situations. However, Article 14 does not prohibit a member State from treating
groups differently in order to correct “factual inequalities” between them;
indeed in certain circumstances a failure to attempt to correct inequality
through different treatment may in itself give rise to a breach of the Article
(see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175,
ECHR 2007-....).
The Court reiterates that Article 14 of the
Convention complements the other substantive provisions of the Convention and
its Protocols. It has no independent existence since it has effect solely in
relation to “the enjoyment of the rights and freedoms” safeguarded by those
texts. Although the application of Article 14 does not presuppose a breach of
those provisions – and to this extent it is autonomous – there can be no room
for its application unless the facts in issue fall within the ambit of one or
more of the latter (see Koppi v. Austria, no. 33001/03, § 25, 10
December 2009).
The Court further reiterates that in respect of
cases of deprivation of life, States have a general obligation under
Article 2 of the Convention to conduct an effective investigation including
cases which involve acts of private individuals (see Muravskaya v. Ukraine, no. 249/03, §§ 41-50, 13 November 2008),and that obligation must be
discharged without discrimination, as required by Article 14 of the Convention.
In particular, when investigating violent
incidents, State authorities have the additional duty to take all reasonable
steps to unmask any racist motive and to establish whether or not ethnic hatred
or prejudice may have played a role in the events. Failing to do so and
treating racially induced violence and brutality on an equal footing with cases
that have no racist overtones would be to turn a blind eye to the specific
nature of acts that are particularly destructive of fundamental rights. A
failure to make a distinction in the way in which situations that are
essentially different are handled may constitute unjustified treatment
irreconcilable with Article 14 of the Convention (see, Nachova and
Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII;
mutatis mutandis, Šečić v. Croatia,cited above, § 67).
Admittedly, proving racist motivation will often
be extremely difficult in practice. The respondent State’s obligation to
investigate possible racist overtones to a violent act is an obligation to use
best endeavours and is not absolute; the authorities must do what is reasonable
in the circumstances of the case (see Nachova
and Others, cited above,§ 160, ECHR 2005-...).
. In
the instant case the Court has already found that the Ukrainian authorities
violated Article 2 of the Convention in that they failed to conduct an
effective investigation into the incident. It considers that it must examine
separately under Article 14 of the Convention taken in conjunction with Article
2 of the Convention under its procedural limb the complaint that there was also
a failure to investigate a possible causal link between alleged racist
attitudes and the attack on the applicants’ relatives.
In
this respect the Court observes that on 28 October 2001 three houses, in which
lived people of Romani origin, were set on fire. The alleged motive of the
arsonists was destruction of houses of drug dealers. However, any information
as for whether the inhabitants of two other houses were involved in drug
trafficking is absent. Moreover, given the widespread discrimination and
violence against Roma in Ukraine as noted, in particular, by the report of the
ECRI, it cannot be excluded that the decision to burn the houses of the alleged
drug traffickers had been additionally nourished by ethnic hatred and thusit necessitated verification.
The Court, however, notes that there is no
evidence that the authorities have conducted any investigation into the
possible racist motives of this crime.
The Court considers it
unacceptable that in such circumstances an investigation, lasting over eleven
years, did not give rise toany serious action with a view to identifying or
prosecuting the perpetrators.
. Consequently,
the Court considers that there has been a violation of Article 14 taken in
conjunction with the procedural aspect of Article 2 of the Convention.
III. REMAINING COMPLAINTS
The applicants complained that they and their
deceased relatives had been subjected to inhuman and degrading treatment, and
that there had been no effective investigation of their complaints, in breach
of Article 3 of the Convention. They further cited Articles 8 and 13 of the
Convention and Article 1 of Protocol No. 1.The applicants further alleged that
the violations they had suffered as a result of the brutal incident at issue
had been predominately due to their Romani ethnicity. Theytherefore considered
that there had been a violation of Article 14 taken in conjunction with the
above Articles andwith Article 2 of the Convention under its substantive limb.
The Court notes that these complaintsare linked
to the ones examined above and must therefore likewise be declared admissible.
Having regard to the findings relating to
Articles2 and 14 (see paragraphs 44-49, 54-57 and 67-71 above), the
Court considers that it is not necessary to examine separately whether, in this
case, there has been a violation of these other provisions of the Convention (seeKoky
and Others v. Slovakia, no. 13624/03, §§241-244, 12 June 2012; among other authorities
in respect of Article 13 of the Convention, Timur v. Turkey,
no. 29100/03, §§ 35‑40, 26 June 2007).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The second applicant claimed 100,000 euros (EUR)
in respect of non-pecuniary damage inflicted on her by the deaths of her
relatives, damage caused to the health of her son, and improper investigation
of these events. The first applicant made no claims in this respect.
The Government stated that “the questions put to
the Government in this case as regards the applicants’ complaints of a
violation of Article 3 of the Convention had no connection with those
complaints by the second applicant”. The Government therefore considered that
the second applicant’s claims should be rejected.
The Court considers that the second applicant
must have sustained non-pecuniary damage and, deciding on an equitable basis,awards
herEUR 20,000 in this respect.
B. Costs and expenses
The applicants also claimed EUR 9,075 for costs
and expenses incurred before the Court. The applicants’ representative
submitted the time-sheet that between 2002 and 2009 the lawyers of the European
Roma Rights Centre had spent 121 hours on the case at a rate EUR 75 per hour.
The Government submitted that these claims were
unsubstantiated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
information in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 8,000 for the proceedings before the Court.
This amount is to be paid into the bank account of the European Roma Rights
Centre.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of the
procedural limb of Article 2 of the Convention;
3. Holds that there has been no violation of the
substantive limb of Article 2 of the Convention;
4. Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 2 in respect of its
procedural limb;
5. Holds that there is no need to examine
separately the remainder of the complaints;
6. Holds
(a) that the respondent State is to pay the second applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Ukrainian hryvnas at the rate
applicable at the date of settlement;
(b) that the respondent State is to pay to the bank
account of the European Roma Rights Centre, the applicants’ representative in
the proceedings before the Court, within three months of the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, EUR 8,000 (eight thousand euros) in costs and expensesplus any tax
that may be chargeable to the applicants;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 20 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean
Spielmann
Deputy Registrar President
