Burlya and Others v. Ukraine

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 223

November 2018

Burlya and Others v. Ukraine - 3289/10

Judgment 6.11.2018 [Section IV]

Article 14

Discrimination

Police failure to protect Roma residents from pre-planned attack on their homes by mob motivated by anti-Roma sentiment: violations

Article 3

Degrading treatment

Effective investigation

Police failure to protect Roma residents from pre-planned attack on their homes by mob motivated by anti-Roma sentiment: violations

Article 8

Article 8-1

Respect for family life

Respect for home

Respect for private life

Police failure to protect Roma residents from pre-planned attack on their homes by mob motivated by anti-Roma sentiment: violations

Facts – Following a murder in the applicants’ village, a crowd of residents gathered and demanded that the Roma be expelled from the village. The village council met and decided, in particular, to support the decision of the village residents to expel persons of Gypsy ethnicity from the village. The applicants, Ukrainian nationals of Roma ethnicity, were advised by the mayor and the local police to leave the village, as a “pogrom” was about to start. Subsequently, a crowd of several hundred people ransacked the houses belonging to the Roma, destroying their belongings. The applicants complained about this attack on their homes and alleged that the authorities had been complicit in or had at least failed to prevent or to investigate the attack effectively.

Law – It was appropriate to distinguish between two groups of applicants. The first group had been present in the village in the run-up to the attack and had had to flee their homes and the second group of applicants had been away from their homes at the time of the events in question.

Article 3 (substantive aspect) taken in conjunction with Article 14: It was not in dispute that the attack on the applicants’ houses had been motivated by anti-Roma sentiment among the villagers.

The local and district police had known about the pogrom being prepared sufficiently ahead of time to call Roma residents to a meeting and to warn them to leave the village. There was no information as to why they had not intervened to protect the applicants’ homes. In particular, it had not been argued in any of the domestic decisions that the violence had erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit police intervention and merely attempt to minimise the damage by advising the applicants to flee.

State agents had explicitly urged the applicants to leave the village because they had been either unwilling or considered themselves unable to protect them from mob violence. Police officers had been present at the ransacking of the applicants’ houses but had made no intervention worthy of note. That presence, coupled with the decision of the village council appearing to endorse the expulsions from the village, had created the appearance of official approval for the attackers’ actions.

The applicants who had been warned about the attack had been put in a situation where they had had to conclude that, because of their family relations and their ethnicity, they could not count on the protection of the law in the place where they had lived in regular accommodation for a substantial period of time. The decision to leave their homes before the attack had not thus been a result of the exercise of their free will but their way of protecting their physical integrity. Their feelings of fear, anguish, helplessness and inferiority had been further exacerbated by understanding that their homes would likely be plundered, but that they were unable to protect them without putting their lives at risk. All in all, it grossly diminished their dignity. The role of the police, who had chosen not to protect the applicants but had advised them to leave before the pogrom – and the fact that those events had involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as “degrading” treatment.

The Court did not agree with the Government’s assessment that for Article 3 to be found applicable within the context of damage to property it was essential for the applicants to have watched his or her house being destroyed. The relevance of the presence or absence of any given circumstance should not be taken in isolation but should rather be seen in the context of all the circumstances of the case. In view of the above findings, the Court did not find that factor decisive in the present case.

Conclusion: violation (unanimously) in respect of the first group of applicants; inadmissible (incompatible ratione materiae) in respect of the second group of applicants.

Article 3 (procedural aspect) taken in conjunction with Article 14: The domestic investigation into the attack had been characterised by a number of serious omissions. There had been abundant evidence before the investigating authorities that the local authorities, including the local police, had known that the attack was being prepared, had not taken any steps to prevent it and had stood by as it unfolded, apparently limiting themselves to avoiding human casualties. However, no steps whatsoever had been taken to investigate this aspect of the case. No effort had been made to clarify how much and when they had known, what the source of their information was, whether they had known any organisers of the attack, whether they had been in contact with them, and why they had limited their role to warning the applicants to leave rather than taking any steps to avert the attack.

The local police, who had clearly played a role in the events being investigated, had taken an active part in the investigation itself. Circumscribing the investigation in such a fashion and the failure to explore such a clearly required line of inquiry – apparently without reasonable justification – indicated not only inadequacy and lack of thoroughness in the investigation but also a lack of independence.

The steps taken to identify perpetrators who were private individuals had also been insufficient. Of three individuals specifically identified as instigators of the pogrom only two had been questioned. They had denied any personal involvement in the attacks on the Roma houses. However, there was no indication as to whether they had been questioned about their alleged role in the instigation of the attacks. Moreover, it appeared that while witnesses had uniformly denied that they had personally taken part in the attack on Roma houses, it appeared that no witnesses had been questioned as to whether they knew any of the attackers. That was particularly striking in the case of the police officers who had been present on the scene and who had personally observed the attack and the attackers.

Lastly, despite clear evidence to the effect that the attack targeted members of a specific ethnic group, it had been investigated as an ordinary disturbance. There was no evidence that the authorities had conducted any investigation into anti-Roma prejudice as a likely motive of the crime.

The findings in the case had also to be seen against the background of international reports describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine.

Conclusion: violation (unanimously) in respect of the first group of applicants; inadmissible (incompatible ratione materiae) in respect of the second group of applicants.

Article 8 taken in conjunction with Article 14: The situation of the second group of applicants did not fall within the ambit of Article 3 and could be sufficiently addressed under Article 8. It had been established that there had been grave failures on the part of the domestic authorities to protect the first group of applicants from the attack on their homes, which had led the Court to find a violation of Article 3, taken in conjunction with Article 14 of the Convention.

The same conclusions were valid for the second group of applicants. The only difference between them being that they had been absent from the village at the time of events and had only returned to the village later to find their homes damaged. The applicants had been displaced from their homes as a result of the attack. While there were no particular facts showing that they had been actively prevented from returning to the village, it would have been unreasonable to expect them to have permanently lived in damaged houses in a locality where the authorities had clearly communicated to them that they would have no protection against mob violence – particularly in circumstances where no investigation had been conducted and no person had been held responsible for the attack.

There could be no doubt, therefore, that the damage caused to the applicants’ houses constituted grave and unjustified interferences with the applicants’ right to respect for their private and family life and home.

Conclusion: violation (unanimously).

Article 41: EUR 11,000 each to the first group of applicants and EUR 9,000 each to the second group of applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Moldovan and Others v. Romania (no. 2), 41138/98, 12 July 2005, Information Note 77)

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