Attacks against Roma by members of the local community. Failure to take appropriate protective measures by the police and inadequate investigation have violated the ECHR.

JUDGMENT

Burlya and others v. Ukraine 6.11.2018  (no. 3289/10)

see here

SUMMARY

Expulsion and pillage of a Roma village in Ukraine. Lack of measures to protect homes and no objective explanation of the facts. The passivity of the police during the attack, coupled with the village council resolution on the persecution of the Roma community, served as an official ratification. Local police officers played an active role in the investigation despite being accused of involvement in the attack, resulting in serious research deficiencies. Violation of the right of residence and the prohibition of humiliating treatment.

PROVISIONS 

Article 8

Article 3

Article 14

PRINCIPAL FACTS 

The applicants are 19 Ukrainian nationals of Roma ethnicity who live in the Odessa Region.

On 7 September 2002, a 17-year-old ethnic Ukrainian was murdered in the village of Petrivka, in the
Odessa Region of Ukraine, allegedly by a Romany man. In response, a crowd of residents demanded
the expulsion of all Roma from the village. At a meeting the following day, the local council agreed
with this approach. Following an intervention by the District Administration and District Police
Department, the council, meeting again on 9 September, decided to ask law enforcement authorities
to expel “socially dangerous individuals, regardless of ethnic origin”.

That evening, the village mayor advised Roma residents to leave ahead of an impending “pogrom”.
That same night, a mob estimated at several hundred people ransacked the applicants’ homes and
destroyed belongings. Police officers were present during the attack but did not try to prevent the
looting and apparently concentrated solely on preventing human casualties.

Most of the applicants were in the village during the build up to the attack, between 7 and 9
September, although a small group had left beforehand and did not discover what had happened
until their return afterwards.

Criminal proceedings were initiated immediately, on 10 September, for suspicion of disorderly
conduct committed in a group. The investigation, led by a regional police investigator but also
involving local police, was suspended and reopened on a number of occasions before its definitive
suspension in March 2009.

The applicants are Boris Trofimovich Burlya, Anatoliy Georgiyevich Burlya, Artur Leonidovich Burlya,
Ivan Makarovich Burlya, Natalya Yakovlevna Burlya, Valentina Ivanovna Burlya, Yekaterina
Tromifovna Burlya, Ivan Ivanovich Chubey, Valentina Yakovlevna Chubey, Fedor Fedorovich
Lupashchenko, Ivan Georgiyevich Lupashchenko, Ivan Ivanovich Lupaschchenko, Nikolay Fedorovich
Lupashchenko, Snezhana Fedorovna Lupashchenko, Vladimir Ivanovich Lupashchenko, Natalya
Vladimirovna Tsykolan, Fedor Yakovlevich Tsynya, Ivan Yakovlevich Tsynya and Yakov Fedorovich
Tsynya

THE DECISION OF THE COURT 

The Court declared inadmissible the part of the application brought by Natalya Vladimirovna, since
there was no evidence to support her involvement in the events. Another applicant, Fedor
Yakovlevich Tsynya, died after the application had been lodged. The individuals wishing to pursue
the application on his behalf failed to show that they had requisite standing to pursue the
proceedings on his behalf. That part of the application was struck out from the Court’s list.

Article 8 taken in conjunction with Article 14

The Court found that the role the authorities had played prior to and in the course of the attack on
the applicants’ homes, and their subsequent failure to conduct an effective investigation, had
amounted to a breach of all 17 remaining applicants’ right to respect for their home, under Article 8
of the Convention. The Court noted that the events had been driven by anti-Roma prejudice and
thus the violation of Article 8 involved a breach of Article 14.

Article 3 taken in conjunction with Article 14

As concerned the 12 applicants who were present between 7 and 9 September 2002, the Court
rejected the Government’s arguments that the severity of the incident did not meet the required
threshold for a violation of Article 3 and that, in any case, there was no evidence to suggest that the
State was responsible.

Instead, the Court found that this group of applicants must have felt fear, anguish, helplessness and
inferiority at having to flee their homes, which would in turn have been exacerbated by the
knowledge that these would likely be ransacked. This had grossly diminished their dignity and had
amounted to degrading treatment, in violation of Article 3 of the Convention. This was despite the
fact that no person was injured in the events. The Court also noted, once again, that the attack on
the applicants’ homes had been motivated by anti-Roma sentiment, thus bringing Article 14 into
play.

In addition, the Court found that the Ukrainian authorities bore responsibility for this treatment. The
police had failed to take any measures to protect the applicants’ homes and had given no objective
reason for this. Indeed, the police presence and passivity during the attack, combined with the
village council resolution, had created an appearance of official endorsement.

The Court also held, with respect to those 12 applicants, that there had been a violation of Ukraine’s
procedural obligations under Article 3 of the Convention. The Court noted that the domestic
investigation into the attack was characterised by a number of serious omissions. For example,
members of the local police played an active role in the investigation despite being accused of
involvement in the attack. Similarly, the Court found no evidence that the authorities had conducted
any investigation into the ethnically motivated nature of the crime, which they instead investigated
as an ordinary disturbance.

Other articles

The Court thought it unnecessary to explore separately the applicants’ complaints that their postdisplacement
living conditions were inadequate. Similarly, the Court did not find it necessary to examine the applicants’ complaints of a violation of Article 13, since these were subsumed by their complaints under Articles 3 and 8, for which violations had been found.

The Court rejected the applicants’ claims concerning a violation of Article 1 of Protocol 1, which
guarantees the protection of property, as lacking substantiation and as manifestly ill-founded.

Just satisfaction (Article 41)

The Court held that Ukraine was to pay 11,000 euros (EUR) in respect of non-pecuniary damages to
each of the 12 applicants for whom a violation of Articles 3 and 14 was found, and EUR 9,000 in
respect of non-pecuniary damages to each of the five applicants for whom only a violation of Article
8 and 14 was found(echrcaselaw.com editing). 


ECHRCaseLaw

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