CASE OF PASTRAMA v. UKRAINE

FIFTH SECTION

CASE OF PASTRAMA v. UKRAINE

(Application no. 54476/14)

JUDGMENT
 

STRASBOURG

1 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Pastrama v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Ms Rita Oleksiyivna Pastrama (“the applicant”), on 24 July 2014;

the decision to give notice to the Ukrainian Government (“the Government”) of the application;

the decision to grant leave to intervene in the written procedure to the European Roma Rights Centre, and the third-party comments submitted by that organisation;

the parties’ observations;

Having deliberated in private on 11 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the applicant’s complaints that destruction of the Roma encampment where she used to live and the authorities’ alleged failure to conduct an effective investigation into the matter were in breach of Articles 3 and 8 of the Convention. It also concerns her complaint, under Article 14 of the Convention and Article 1 of Protocol No. 12, that the attack on the encampment and deficiencies in the investigation were motivated by anti-Roma sentiment.

THE FACTS

2.  The applicant was born in 1979. She died on 2 July 2018. The guardians of her two minor daughters, Yelyzaveta Oleksandrivna Pastrama and Kateryna Oleksandrivna Pastrama, born in 2009 and 2011 respectively, and of her minor son Oleksandr Oleksandrovych Pastrama, born in 2013, expressed the wish to pursue the application on their behalf. The applicant and her next-of-kin were represented by Ms O. Sapozhnikova, a lawyer practising in Kyiv.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Incident of 30 May 2012

5.  From an unspecified date until 30 May 2012 the applicant lived in an unauthorised tent encampment inhabited by Roma and located in Kyiv near railway tracks administered by Southwestern Railway, part of the State Rail Transport Administration.

6.  On 15 May 2012 a citizen complained to the mayor’s office about the encampment.

7.  According to the applicant, at around noon on 30 May 2012 a group of plain-clothed police officers came to the encampment. They led the residents out of the encampment and set their tents on fire with their personal belongings still inside. The officers fired shots in the air and shot a dog. They made the male residents strip to the waist and photographed them. The residents recognised one officer as the neighbourhood police officer (дільничний міліціонер) in charge of the area where they were living. According to the residents, the officers told them that they had an order to clear the encampment in preparation for the 2012 UEFA European football championship, hosted that year by Poland and Ukraine. The events were witnessed by children.Pre-investigation enquiries conducted following the intervention of the International Organization for Migration and NGOs

8.  On 1 June 2012 the applicant and two other former residents of the encampment contacted the Ukrainian Helsinki Human Rights Union (“the Helsinki Union”) for assistance in bringing their complaint concerning the encampment’s destruction to the authorities.

9.  On 5 and 6 July 2012 the Congress of Roma of Ukraine and the Helsinki Union respectively wrote to the Kyiv Police and the Kyiv prosecutor asking them to institute criminal proceedings in connection with the incident.

10.  On 13 June 2012 the International Organisation for Migration (IOM) Mission in Ukraine sent a letter expressing concerns about the incident to the Ministry of the Interior, the Prosecutor General’s Office and other State authorities.

11.  On an unspecified date the European Roma Rights Centre (ERRC) also raised concerns about the incident with the authorities.

12.  As part of the pre-investigation enquiries launched in response to that information, the applicant was questioned on 11 July 2012. Her lawyer Ms Sapozhnikova was present.

13.  The applicant stated at the time of questioning that she was living in a tent in Kyiv in the neighbourhood close to where the encampment used to be located. She stated that she had used to live in the previous encampment but that on 30 May 2012 ten individuals she had recognised as officers from the Darnytsya district police had come to the encampment dressed in civilian clothes. They had explained that living there was prohibited and that they had an order to clean up the city in the run-up to the Euro 2012 tournament. They had then set the tents on fire using cigarette lighters.

The applicant had heard several shots and after two of them had heard a dog whimper. Firefighters had come to extinguish the fire. The officers who had burned down the encampment had been accompanied by the neighbourhood police officer, who the applicant had recognised. The applicant had left Kyiv on 3 June and returned “about a week” prior to the police interview.

14.  Another former encampment resident, Ms S.G., also made a statement to the police as part of the same round of pre-investigation enquiries in July 2012. She stated that the majority of the individuals who had destroyed the encampment had been in police uniforms but she had not known them. One of them had shot her son’s dog. Other residents had told her that one of those in uniform had been the neighbourhood police officer who had previously visited the encampment and taken money from residents.

15.  On 23 July 2012 the Kyiv Police informed the Helsinki Union that the incident had been investigated and that the results of the investigation had been forwarded to the Kyiv Dniprovsky district prosecutor’s office (“the DPO”), which would decide whether or not to institute criminal proceedings.

16.  On 28 August 2012 the applicant was interviewed by an officer from the internal security department of the Kyiv Police. Her lawyer was not present. She stated that she had not previously known the individuals who had set the encampment on fire or whether they had been connected to the police. She was shown a photograph of a certain G. and stated that she identified him as the same man who had visited the encampment, introduced himself as the neighbourhood police officer, demanded money from residents and participated in setting the tents on fire.

17.  On 6 September 2012 the DPO decided not to institute criminal proceedings against the district police officers for lack of the constituent elements of an offence in their actions. The decision was reasoned as follows:

(i)  Upon receipt of letters from the IOM and ERRC concerning the incident, the DPO forwarded that material to the internal security service of the Kyiv city police, which completed its internal inquiry on 3 September 2012.

(ii)  Relying on the results of that internal inquiry, the DPO found that on 15 and 23 May 2012 two citizens had complained to the Dniprovsky district police (“the district police”) that a group of individuals had set up an illegal encampment near the railway tracks and had been disturbing public order. In response, on 26 May 2012, the neighbourhood police officer, S., had investigated the complaint and found an encampment of thirteen Roma. S. had photographed the residents and taken down their personal details. However, finding that the land where the encampment was located did not fall within the district police’s jurisdiction but rather the jurisdiction of Ukrainian Railways, on 31 May 2012 officer S. had forwarded the residents’ complaints to the Darnytsya railway station police unit. On 2 June 2012, after several Internet news sites had reported that the encampment had been burned down, officer S. and police Major D. had then visited the site, where they had discovered four Roma in the process of burning rubbish. The latter individuals had informed the officers that they had intended to join the other Roma, who had left for Mukacheve in the Zakarpattya region;

(iii)  The DPO proceeded to note that no complaints from the Roma about the police had been registered in 2012 and that the local fire brigade had had no records of any calls concerning any fires near the railway tracks in the relevant period. In response to the letters from the Helsinki Union and the Congress of Roma of Ukraine, an inspector of the Kyiv Police had questioned the applicant and two other former encampment residents as well as officer S. and Major D. The officers had denied any involvement in the attack on the encampment.

(iv)  The DPO concluded that there was no indication that police officers had been involved in the incident. At the same time, it noted that enquiries by the police internal security department had indicated that a guard from the Armed Rail Guard Service, G., might have been involved in the events. G.’s rail guard unit wore uniforms and carried firearms similar to those of the police (see paragraphs 43 and 44 below concerning the status of the Service). When interviewed, G. had confirmed that he had visited the encampment and threatened to burn it down. However, he had insisted that he had not actually set it on fire. The applicant and two other former residents of the encampment, T.D. and I.K., had identified G. from a photograph as the person who had extracted bribes from them to continue to tolerate the encampment before then participating in the attack.

18.  On 7 September 2012 the DPO informed the chief of police of Southwestern Railway of its findings, including those concerning the possible role of G. in the incident, and asked him to “take a decision in accordance with the law” and inform the IMO and ERRC of the decision taken. There is no information in the case file as to the follow-up given to this request.

19.  The applicant provided evidence that her lawyer Ms Sapozhnikova had attempted to obtain a copy of the decision of 6 September 2012 after 22 October 2012 but had been met with refusal because the case file had been between various prosecutor’s offices.

20.  On 13 March 2013 Ms Sapozhnikova examined the relevant case file and received a copy of the decision of 6 September 2012 refusing to institute criminal proceedings. In subsequent proceedings she considered that that was the date from which the seven-day time-limit for appealing against that decision (see paragraph 41 below) should be counted.

21.  On 20 March 2013 the applicant appealed against the decision of 6 September 2012. She argued, in particular, that the DPO had failed to verify her statements about the neighbourhood police officer’s role in the attack and about there being numerous attackers. She argued that the appeal was being lodged within the time-limit because she (and her lawyer) had not received a copy of the DPO’s decision of 6 September 2012 until 13 March 2013.

22.  On 1 April 2013 the Kyiv Dniprovsky District Court (“the District Court”) rejected the applicant’s appeal as lodged out of time, holding that she had failed to corroborate her allegation that she had not received a copy of the DPO’s decision until 13 March 2013.

23.  On 4 June 2013 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld the ruling of 1 April 2013.

24.  On 23 January 2014 the High Specialised Court for Civil and Criminal Matters upheld the rulings of 1 April and 4 June 2013, holding that the applicant had missed the time-limit without justification because the DPO had been under no obligation to inform her of the decision of 6 September 2012 since it had been taken in response to a third party’s complaint and not hers.Criminal investigation initiated by the applicant

25.  In the meantime, on 19 November 2012 a new Code of Criminal Procedure came into force, eliminating the pre-investigation enquiry stage. Under this Code, an investigation is commenced by creating an entry in the Central Register of Investigations (see also paragraphs 40 to 42 below).

26.  On 25 June 2013 the DPO, at the applicant’s request, made an entry in the Central Register of Investigations to investigate the allegation that employees of the Armed Rail Guard Service had committed the offence of abuse of official position in connection with the destruction of the encampment.

27.  In the course of the investigation, on 2 September 2013, the DPO questioned G., who stated that he had served as an armed rail guard and had carried a firearm in the course of his duties. He had indeed warned the residents of the illegal encampment that, if they did not leave, he and the officers “would be forced to burn [it down]”. He also admitted that he had issued a fine to the residents for crossing railway tracks in a prohibited place but had not taken bribes from them. However, he denied the allegation that he had set the tents on fire. He had received an order to do so from a superior in the Armed Rail Guard Service, M.I.Sh., but had not complied with it as he had known that it would have been illegal. G. considered that the residents of the encampment were slandering him because he had fined them.

28.  As part of that investigation, the DPO instructed detectives of the district police to interview the applicant and other former residents of the encampment. In response, a police detective reported to the chief of the district police that none of the people to be interviewed could be found. According to the applicant, despite having the necessary contact information on file, the police never attempted to contact her via her lawyer in order to arrange an interview.

29.  On 2 September 2013 the DPO decided to discontinue the investigation. It referred to the results of G.’s questioning (see paragraph 27 above). It also relied on the fact that the DPO investigator had instructed the police to locate the applicant and two other former encampment residents, T.D. and I.K., to question them about the incident but that they could not be found because they had moved on and had no registered addresses (see paragraph 28 above). For this reason, it had been impossible to question them. The DPO concluded that no corpus delicti had been established in the actions of employees of the Armed Rail Guard Service.

30.  On 19 December 2013, in response to an enquiry by the applicant, the DPO informed her of its decision of 2 September 2013. She appealed to the District Court.

31.  On 24 January 2014 the District Court rejected the applicant’s appeal.

32.  On 13 March 2014, following an appeal by the applicant, the Court of Appeal quashed the ruling of 24 January 2014 and the decision of 2 September 2013. It held that the DPO had limited its investigation to questioning G. and had not taken sufficient steps to question the applicant, T.D and I.K., despite the fact that there had been information in the case file indicating where they could be found. The court concluded that the DPO had failed to take any active steps to clarify the circumstances of the case.

33.  On 29 April 2014 the Dniprovskyy district police discontinued the criminal proceedings due to absence of the constituent elements of a criminal offence in the incident.

34.  On 2 December 2016 the DPO (in the meantime renamed Kyiv District Prosecutor’s Office no. 4) informed the applicant’s lawyer that the investigation had been resumed.

35.  On 29 April 2017 an investigator from the Dniprovsky district police decided to discontinue the investigation as the constituent elements of an offence had not been established:

(i)  The investigator stated that the applicant and two other former residents of the destroyed encampment had identified G. from a photograph as the person who had extracted bribes from them and participated in setting fire to their tents on 30 May 2012.

(ii)  The investigator noted, however, that G. denied his guilt. In this connection, the investigator referred to Article 62 of the Constitution, which provided that an accusation could not be based on assumptions and that any doubts with regard to the proof of a person’s guilt had to be interpreted in his or her favour (see paragraph 39 below).

36.  The applicant was not immediately informed of that decision. A copy of it was sent to her on 23 April 2018.

37.  On 8 June 2018, following a complaint by the applicant, the District Court quashed the decision of 29 April 2017 on the grounds that it was premature and based on an incomplete and biased assessment of the evidence. In particular, it was not clear why the investigator had trusted G.’s evidence and ignored that of the encampment residents.

38.  According to the most recent available information from the parties, it appears that the investigation is currently still pending.

RELEVANT LEGAL FRAMEWORK AND PRACTICEConstitution of 1996

39.  Article 62 of the Constitution guarantees the presumption of innocence. Article 62 § 4 states that all doubts with regard to the proof of a person’s guilt must be interpreted in his or her favour.Codes of Criminal Procedure of 1960 and 2012

40.  At the material time, the Code of Criminal Procedure of 1960 (“the 1960 Code”) provided for a procedure known as “pre-investigation enquiries”. That procedure resulted in a decision either not to institute criminal proceedings or to institute them. In case of the latter, a fully-fledged criminal investigation was conducted. The provisions concerning the pre-investigation enquiries procedure and the remedies available to alleged victims in that context can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

41.  Under Article 236-1 of the 1960 Code, an appeal against a decision refusing to institute criminal proceedings could be lodged with the relevant court by the person whose interests were concerned by the decision within seven days of notification.

42.  The 1960 Code was repealed with effect from 19 November 2012. The new Code eliminated the pre-investigation enquiry stage. Under the new Code, a fully-fledged investigation is commenced directly, by creating an entry in the Central Register of Investigations.Rail Transport Act of 1996 (as amended)

43.  At the relevant time, section 12 of the Rail Transport Act provided that the Armed Rail Guard Service of Ukrainian Railways was responsible for guarding rail cargo and installations and that employees of the Service were subject to the rights and duties defined in the Armed Rail Guard Service Regulations and other legislation.Armed Rail Guard Service Regulations of 1994 (as amended)

44.  The Cabinet of Ministers enacted the Armed Rail Guard Service Regulations on 11 January 1994. At the relevant time, paragraph 6 of the Regulations authorised employees of the Service to impose sanctions for administrative offences related to rail transport, arrest offenders and conduct searches.

THE LAWPRELIMINARY ISSUEsThe applicant’s death

45.  The Court notes that the applicant died after the application had been lodged but that the application is being pursued by her children, Ms Yelyzaveta Oleksandrivna Pastrama, Ms Kateryna Oleksandrivna Pastrama and Mr Oleksandr Oleksandrovych Pastrama, represented by their guardians (see paragraph 2 above). The Court considers that they have standing to continue the present proceedings in applicant’s stead.

46.  However, reference will still be made to “the applicant” throughout the following text.Scope of the case

47.  In a letter to the Court of 5 January 2019 the applicant’s lawyer, apparently still unaware of the applicant’s death, referred to events concerning the alleged destruction in 2017 of another irregular encampment in which the applicant lived and the applicant’s arrest in Kyiv that year.

48.  The Court considers that this information cannot be considered an elaboration of the applicant’s original complaints, on which the Government have commented. It considers, therefore, that it is not appropriate at this time to take up these matters in the context of the present case.ALLEGED VIOLATIONS OF ARTICLES 3 AND 14 OF THE CONVENTION

49.  The applicant complained that she had been subjected to treatment contrary to Article 3 of the Convention owing to her ethnic origin and that the authorities had failed to conduct an effective investigation in that regard, in particular to uncover the discriminatory motivation behind the attack on the encampment. She relied on Articles 3 and 14 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 14

“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.”

50.  The Government contested that argument.

51.  The Court notes at the outset that the Government did not dispute that the treatment the applicant allegedly suffered fell within the ambit of Article 3. However, the Court must address that matter since it concerns the Court’s jurisdiction ratione materiae.

52.  The relevant principles of the Court’s case-law concerning applicability of Article 3 can be found in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 116-19, 25 June 2019).

53.  The Court observes that the applicant’s description of the events of 30 May 2012 (see paragraph 7 above) is impersonal and describes the events in general, not the applicant’s personal role in them or their effect on her. She provided no detailed information on her situation prior to or after the settlement’s destruction. The only indication of the applicant’s situation is that she lived in a short-lived precarious illegal settlement consisting of tents rather than more permanent structures (contrast, for example, Burlya and Others v. Ukraine, no. 3289/10, § 134, 6 November 2018).

54.  There is also no indication to what extent the events had a long-term impact on the applicant since the case-file material indicates that within weeks of the incident she returned living to the same neighborhood in similar conditions (see paragraph 13 above and contrast Moldovan and Others v. Romania ((no. 2), nos. 41138/98 and 64320/01, §§ 102-107, ECHR 2005 VII (extracts)).

55.  In view of the foregoing, the Court finds that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention has not been attained. Accordingly, the Court rejects the applicant’s complaint under Article 3 of the Convention taken alone and in conjunction with Article 14 of the Convention as being manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 OF the CONVENTION and of ARTICLE 1 of PROTOCOL NO. 12

56.  The applicant complained that the attack of the encampment and the alleged failure of the domestic authorities to investigate it amounted to a violation of her rights under Article 8 of the Convention. This provision reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

57.  She also invoked Article 14 of the Convention and Article 1 of Protocol No. 12, which reads:

“1.  The enjoyment of any right set forth by law 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.

2.  No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”The submissions by the parties and the third-party intervener

58.  The parties initially made the bulk of their submissions under Articles 3 and 14 and then merely updated them also under Article 8 of the Convention.The Government

59.  The Government submitted that there was no indication that State agents had been involved in the alleged destruction of the applicant’s encampment. Apart from the applicant’s submissions to the Court, there was little evidence that the police had been involved: the applicant had changed her statements on this point (see paragraphs 13, 14 and 16 above).

60.  The applicant had identified G. as a participant in the incident (see paragraph 16 above) from a photograph. He had not been a police officer but an employee of Ukrainian Railways, an independent commercial entity that did not exercise any State powers in the field of law enforcement. In any event, even if the guarding of rail facilities had been the responsibility of that company under law, this did not mean that the State could be held responsible for plainly ultra vires actions of the company’s employees.

61.  In any event, besides the applicant’s allegations, there was no evidence that G. had been involved in the burning of the tents. He himself had denied that.

62.  In general, there was no evidence that the encampment had been burned down: there had been no independent witnesses to the incident, no calls to the police and no calls to the fire brigade for help. There was also a contradiction in the applicant’s statement to the police – she had claimed that the fire had been put out by firemen, but there was no record of the fire brigade having been called in connection with such an incident (contrast paragraphs 13 and 17 (iii) above).

63.  The complaints under Article 14 and Article 1 of Protocol No. 12 were outside of the six-month period since the applicant had failed to challenge the decision of 6 September 2013 refusing to institute criminal proceedings against police officers within the prescribed time-limit. This decision had been ultimately upheld by the High Specialised Court for Civil and Criminal Matters (see paragraph 24 above). Accordingly, the six-month time-limit had to be counted from the date of the DPO’s decision, 6 September 2012 (see paragraph 17 above), which fell outside of the six‑month period.

64.  As regards G.’s involvement, the above-mentioned discrimination‑related complaints were premature since the investigation in that regard was still pending.

65.  The Government submitted that the authorities had promptly launched an investigation into the alleged incident. The police and the prosecutor’s office had taken all possible steps to establish the circumstances of the event, in particular questioning individuals who could potentially have been involved in the incident or had information about it. The applicant and other alleged victims had been questioned but had been reluctant to give evidence, and their failure to cooperate (see paragraph 28 above) had significantly hindered the investigation.

66.  The applicant and other occupants of the encampment had never indicated in their statements given in the domestic proceedings that there had been racist motives behind the destruction of the encampment. They had stated, variously, that they had either been unaware of the motives, that it had been destroyed because it had been unlawfully placed near the railway or because the police had been clearing the city of various unlawful encampments in preparation for the Euro 2012 football championship.

67.  In any event, there was no indication that the encampment had been destroyed due to racism. The applicant’s ethnicity alone could not serve as such proof. In that connection, the Government contrasted the present case with the case of Šečić v. Croatia (no. 40116/02, § 68, 31 May 2007), where the racist motives could be inferred from the fact the attack had been conducted by a skinhead group.

68.  There was no evidence that the illegal tent encampment in question had been constantly located in the place in question, near railway tracks. Moreover, the applicant herself stated that she and her family were changing their place of living. Therefore, it was not shown that the applicant had had sufficient and continuous links with the mentioned place so as for it to constitute her “home”.The applicant

69.  Commenting on the contradiction in the applicant’s statements concerning the attackers belonging to the police (see paragraphs 13 and 16 above), the applicant’s lawyer submitted that there was no explanation for the decision to question the applicant for a second time in her absence, as the authorities had known that the applicant was being represented and had had her contact details on file. In such circumstances, she found it suspicious that the applicant would implicate the police when questioned in her presence, but would change her evidence to exonerate the police when questioned in her absence.

70.  As to the State’s responsibility for the attack, the applicant pointed out that G. had himself stated that he had received an order to burn the encampment down from his superior in the Armed Rail Guard Service.

71.  The applicant maintained that law enforcement officers had been involved in the attack on her encampment and that the investigation had been reluctant, biased and incomplete. As to the authorities’ alleged inability to contact her for questioning (see paragraphs 28 and 65 above), the police had known that she was represented (see paragraph 13 above) but had failed to contact her lawyer when they had allegedly been unable to locate her directly. The applicant argued that there had been flaws in the investigation because of the prejudiced attitude towards the Roma. In this connection, she referred to the third-party intervener’s submissions (see paragraph 73 below) and argued that a similar arson attack against a non-Roma person would have been investigated by the law enforcement authorities much more quickly.

72.  If the Court found no violation of Article 3 of the Convention, the applicant asked the Court to give consideration to at least recognising a violation of Article 8 of the Convention in its “private life”, “family life” and “home” aspects. She believed that the situation could be examined in terms of “interference” with the applicant’s rights and in terms of compliance with the State’s positive obligations.The third-party intervener

73.  The European Roma Rights Centre invited the Court to recognise that Roma were victims of institutional racism on the part of some elements of the Ukrainian law enforcement authorities.The Court’s assessmentAdmissibility

74.  The Court observes at the outset that the applicant did not make any submissions which would indicate that the applicant’s family life had been affected by the events in question or that the encampment constituted her “home” for the purposes of Article 8 of the Convention (compare Hirtu and Others v. France, no. 24720/13, § 65, 14 May 2020).

75.  However, the Court’s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant’s physical and moral integrity are sufficiently adverse (see, mutatis mutandis, Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247‑C; Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006‑X; and R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016).

76.  In the present case the applicant made a credible allegation that the tent encampment where she had lived had been destroyed in her presence. Such an event could not fail to leave a serious impression on her and affect her life circumstances. The Court, therefore, considers that the situation fell within the ambit of Article 8 of the Convention, in its “private life” aspect (compare Hirtu and Others, cited above, § 66).

77.  Even though, as the Government correctly pointed out, there were contradictions in the applicant’s own version of events that had occurred on 30 May 2012 and between her account and the established facts (contrast paragraphs 13, 16 and 17 (iii) above), it was up to the domestic authorities to clarify the relevant facts by conducting an effective investigation. The Government’s argument concerning the lack of evidence of involvement on the part of State agents in the destruction of the applicant’s encampment is closely linked to the merits of the application.

78.  As to the Government’s arguments concerning the applicant’s alleged failure to comply with the six-month rule (see paragraph 63 above), the Court notes that the decision of 6 September 2012 (see paragraph 17 above), to which the Government referred as the starting point for counting the six-month period, did not amount to definitive completion of domestic proceedings in respect of the incident. In fact, that decision only concerned complaints lodged by the International Organization for Migration and NGOs and in which, the domestic courts concluded, the applicant had no right to information (see paragraph 24 above). By contract, following a complaint by the applicant herself a separate investigation was initiated and it appears that it is still pending (see paragraphs 26 and 38 above).

79.  In so far as the Government argued that the applicant’s complaints were premature because the investigation in respect of G. was still ongoing, the Court reiterates that in such cases it is the duty of the applicant to lodge an application with the Court as soon as he or she realises, or ought to have realised, that the investigation in question is not effective (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 264, ECHR 2014 (extracts)). The issue of identifying the exact point in time that this occurs necessarily depends on the circumstances of the case, and it is difficult to determine it with precision (ibid., § 266).

80.  In the present case, the relevant proceedings have been ongoing for more than seven years. In such circumstances the applicant did not have to wait for that investigation to be completed before lodging the present complaints with the Court. In lodging them she acted in compliance with her duty of diligence and the complaints cannot be rejected as premature.

81.  Accordingly, the Court’s rejects the Government’s objections.

82.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   Relevant general principles

83.  The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91).

84.  The Court has held that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998‑VIII; M.C. v. Bulgaria, no. 39272/98, §§ 150-52, ECHR 2003‑XII; Moldovan and Others, § 96, and Burlya and Others, §§ 169 and 170, both cited above).

(b)   Application of the above principles to the present case

85.  The Court notes at the outset that, as submitted by the Government, the evidence of the applicant and other former encampment residents concerning the alleged involvement of State agents in the encampment’s destruction is indeed contradictory (see paragraphs 13 to 16 above). However, only an effective domestic fact-finding exercise could eliminate any doubts on that point.

86.  The Court considers, therefore, that the key issue in the present case is the authorities’ alleged inability to elucidate the circumstances of the incident which took place on 30 May 2012, including any possible involvement of State agents.

87.  It was never contested that, if the applicant’s account of events was shown to be correct, the actions of the persons who destroyed the encampment constituted a criminal offence. Therefore, a criminal investigation launched by the domestic authorities was the most appropriate avenue for elucidating the circumstances of the incident. On the facts of the present case, only within the framework of such an investigation could the identity of the actors involved be established with any degree of certainty. In such circumstances, any civil-law avenues of redress taken on their own could not be effective (see, for the relevant principles of the Court’s case‑law, Söderman v. Sweden [GC], no. 5786/08, §§ 84 and 85, ECHR 2013, with further references).

88.  The Court will, therefore, turn to the question of effectiveness of the domestic investigation.

89.  The domestic authorities did launch and conduct such an investigation and were able to obtain strong indications that G., at the time an armed guard of the State-owned company Ukrainian Railways, or his superior M.I.Sh. might have been involved in the encampment’s destruction (see paragraph 27 above).

90.  However, the authorities failed to follow up on those indications. The domestic investigating authority took G.’s denial of actual involvement in the attack on faith, without taking any steps to verify his statements (such as, for example, enquiring as to his whereabouts at the relevant time) and without explaining their decision to trust G.’s denials without such verification.

91.  This flaw in the investigation was pointed out by the domestic court (see paragraph 37 above), which was apparently unimpressed, as is this Court, by the investigating authority’s reliance on the constitutional principle that doubt must be interpreted in the defendant’s favour, in the absence of any effort to dispel those doubts.

92.  Moreover, despite G.’s direct accusation against his superior M.I.Sh. as the person who allegedly sought to organise the encampment’s destruction, there is no indication that the authorities took any steps to investigate the possibility that he or any of his subordinates were involved in the incident.

93.  The Government did not explain in what way following up on those elements required the applicant’s involvement. The Court, for its part, sees no such connection and therefore does not consider it necessary to examine in detail the allegation that the applicant failed to cooperate with the domestic investigation (see paragraphs 28 and 65 above).

94.  The foregoing considerations are sufficient for the Court to conclude that the authorities failed to react appropriately to the incident by conducting an investigation compliant with their positive obligation to ensure effective respect for the applicant’s private life.

95.  There has accordingly been a violation of Article 8 of the Convention.

96.  As to the applicant’s allegation that the destruction of her tent encampment and the failure to investigate the incident was linked to anti-Roma prejudice, the Court notes that those allegations are rather vague and general in nature and there is no specific evidence to support them in the file.

97.  In this context the Court reiterates that the authorities’ duty to investigate the existence of a possible link between discriminatory attitudes and any act of violence is an aspect of the States’ procedural obligations under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14. Owing to the interplay between Article 14 and the substantive provisions, issues of discriminatory violence may fall to be examined under only one of the two provisions, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005‑XIII (extracts)).

98.  The Court finds that similar considerations are relevant as far as Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 are concerned (compare R.B. v. Hungary, cited above, §§ 83 and 84). For the reasons stated above and in light of the material available to the Court it considers that, in the circumstances of the present case, no issue requiring a separate examination arises under Article 14 taken in conjunction with Article 8 of the Convention or under Article 1 of Protocol No. 12.APPLICATION OF ARTICLE 41 OF THE CONVENTION

99.  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.”Damage

100.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.

101.  The Government considered that claim unjustified and excessive.

102.  The Court, in view of the relative gravity of the violation concerning positive obligations of the State under Article 8, awards the applicant EUR 2,700 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

103.  The applicant also claimed EUR 3,183 for the costs and expenses incurred before the domestic courts and the Court, to be paid directly into the bank account of the applicant’s representative, Ms Sapozhnikova.

104.  The Government considered those claims unjustified and excessive.

105.  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 were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claimed sum of EUR 3,183, covering costs under all heads, to be paid directly into the bank account of the applicant’s representative.Default interest

106.  The Court considers it appropriate that the default interest rate 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, UNANIMOUSLYHolds that the applicant’s children, Ms Yelyzaveta Oleksandrivna Pastrama, Ms Kateryna Oleksandrivna Pastrama and Mr Oleksandr Oleksandrovych Pastrama, have standing to continue the present proceedings in her stead;Declares the complaints under Article 3 of the Convention taken alone and in conjunction with Article 14 of the Convention inadmissible and the remainder of the application admissible;Holds that there has been a violation of Article 8 of the Convention;Holds that no issue requiring a separate examination arises under Article 14 taken in conjunction with Article 8 of the Convention or under Article 1 of Protocol No. 12;Holds

(a)  that the respondent State is to pay the applicant’s children jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,183 (three thousand one hundred and eighty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of the applicant’s representative, Ms Sapozhnikova;

(b)  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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Mārtiņš Mits
Deputy RegistrarPresident

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