Information Note on the Court’s case-law 267
October 2022
Paketova and Others v. Bulgaria - 17808/19 and 36972/19
Judgment 4.10.2022 [Section IV]
Article 14
Discrimination
Authorities’ omissions resulting in ethnic Roma being driven away from their homes after anti-Roma protests and not being able to return: violation
Facts – The fifty-one applicants are members of several families of Roma origin. In the evening of 6 January 2019, public protests started in their village against the Roma inhabitants, following an incident earlier that day in which two members of the Roma community seriously injured a non-Roma member. After the village mayor told the Roma inhabitants to leave for their own safety, most of them fled that night and the rest on the following day. The protests continued in the following two weeks.
On 9 February 2019 some of the Roma inhabitants, including certain of the applicants, attempted to return to their homes but were prevented from doing so and thereafter were not able to move back, obstacles having been posed by both the authorities and the non-Roma inhabitants. They were only able to return on an individual basis to collect belongings. Judicial proceedings and complaints to the prosecutor’s office were unsuccessful.
On 24 April 2019, the Court indicated to the Government interim measures, under Rule 39 of the Rules of Court, which they had to put in place in respect of sixteen of the applicants, members of three families and identified as the most vulnerable. In particular, the authorities were asked to make all necessary efforts to lodge those applicants, ensuring that the children were not exposed to a risk of inhuman or degrading treatment prohibited by Article 3 of the Convention.
Law – Article 8 taken in conjunction with Article 14:
(a) Exhaustion of domestic remedies – Two separate but related complaints had been made to the regional prosecutor’s office and to the Chief Prosecutor respectively; they had both refused to open criminal proceedings. The first complaint had been made by twelve of the applicants and the second by the applicants’ representative in the name of the whole Roma community of the village. Since both complaints had concerned the alleged expulsion of that entire community and its return being prevented, the outcome of those proceedings had been important for all the applicants, regardless of whether or not they themselves had formally complained. The prosecutor’s office had been given an opportunity to rule on all the complaints which the applicants had referred to the Court.
(b) Merits – The applicants’ houses in the village, where they had been living before fleeing, constituted their “homes” within the meaning of Article 8. The applicants’ “private and family life” was also affected as their inability to live in their homes could have repercussions on their community and family ties
The facts of the instant case were distinguishable from those in earlier cases with similar issues which the Court had examined. During the events of the 6th of January, there had been no physical altercations, the applicants had not suffered any injuries or any damage to their property, and there was no indication that they had personally witnessed, at close range, racial slurs or affronts by members of an angry mob on that day. Further, there were no allegations of eviction.
The parties disagreed on key factual issues. The findings of the different domestic authorities had been incomplete with regard to these issues and the available evidence, and their conclusions contained important contradictions. The Court thus found it necessary to conduct its own assessment of the relevant facts.
As a result of the protests, most of the applicants had fled their houses on the evening or night of the 6th of January and the rest had done so on the following day. Protestors had called Roma “carrion” and “pikeys”, had paraded the slogan “This is Bulgaria, not Gypsyland” whilst some of those interviewed by the media had openly urged the Bulgarian population to unite and take things in their own hands if the authorities failed to do so. Many of the protests had been broadcast on television, had likely been seen by the Roma who had fled, and the neighbourhood had remained empty in the following weeks. In their submissions to the police and the courts, the applicants had referred to those protests and to the continued fear they had aroused in them. Thirty-four of the applicants had written to the police asking for protection so that they could return to their homes. They had stated that they had fled their homes under the threat of physical violence, and that they had continued to fear for their safety in view of the recurrent anti-Roma marches in the village.
Accordingly, the situation in which the applicants had found themselves on the 6th of January and in the following weeks could have legitimately provoked their fear, even if it had not been established that the protestors had actually come in close proximity to the applicants. In assessing the response of the domestic authorities with respect to the events on the above date as well as on the 9th of February, the Court accepted the applicants’ claim that they had left their homes as a result of a legitimate fear for their safety created by the public protests and had not been able to move back.
The Court could not ignore the broader context in which the events of the 6th of January had taken place. More specifically, there had been repeated public display of unacceptance of the Roma and opposition to their return by officials, including the then Deputy Prime Minister. In this respect it reiterated that it had long acknowledged the disadvantaged and vulnerable position of Roma and the need for their special protection. Such public display of unacceptance of the Roma had represented a real obstacle to the applicants’ peaceful return, and the officials’ statements had reinforced their fear for their safety. There was no need, however, to examine the matter further, given the authorities had known of the danger for the applicants, they should have taken reasonable measures in order to protect the individuals exposed to it so as to ensure effective respect for their private and family life, and home. Such positive obligations had been even more important in light of the applicants’ claims they had been targeted on ethnic grounds.
Although, the police’s reaction on both the 6th of January and 9th of February, had been rapid in dispatching officers to the village, the provision of incidental protection of the applicants’ physical integrity, while commendable, did not of itself suffice to satisfy the authorities’ obligation to deal with individuals’ complaints of recurring acts of intolerance impeding the peaceful enjoyment of their homes. Further, there was no indication that, following the events of the 6th of January, the village mayor had pursued measures of special protection in respect of the applicants that night so that they could have safely remained in their homes. Indeed, it had not been argued either on the domestic level or before the Court, that the tension had erupted so abruptly or had so overwhelmed the police resources as to justify a decision merely to attempt to minimise the damage by advising the applicants to flee. The village mayor had also not provided the applicants with any information that night, for example about shelters or social or legal services available, so as to assist the applicants with coping with the situation or enabling them to effectively exercise their rights. Nor had he informed them about when they could return to their homes or what authority they could turn to in that connection. Such disadvantaged social groups, and outcast communities, might need assistance in order to be able effectively to enjoy the same rights as the majority population.
On the basis of all of the above, the cumulative effect of the omissions of the different authorities, in terms of their positive obligations, had resulted in a situation where all of the applicants had been driven away from their home and for which there had been no legal consequences. The applicants had been left unable to peacefully enjoy their private and family life and their homes and had not been provided with the required protection of their Article 8 rights.
Conclusion: violation (unanimously).
Rule 39: Interim measures lifted.
Article 41: EUR 9,000 in respect of non-pecuniary damage jointly to the first, thirty-second, thirty-seventh and thirty-ninth applicants; jointly to the second, fourth, seventeenth, eighteenth and nineteenth applicants; jointly to the third, fifth, fifteenth, thirtieth, thirty-fifth, thirty-sixth and forty-fourth applicants; jointly to the forty-sixth, forty-seventh and forty-ninth; jointly to the twenty-sixth, twenty-seventh and twenty-eight applicants, jointly to the twentieth, twenty-second, twenty-fourth and twenty-fifth applicants; jointly to the seventh, ninth, forty-first and forty-second applicants; jointly to the fourteenth, sixteenth, fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth and fifty-fifth;
EUR 5,000 in respect of non-pecuniary damage jointly to the forty-fifth and forty-eighth applicants; jointly to the sixth and eight applicants; jointly to the twelfth and twenty-ninth applicants; jointly to the thirteenth and thirty-fourth applicants; jointly to the eleventh and thirty-third applicants;
EUR 4,000 in respect of non-pecuniary damage to the tenth applicant, the twenty-first applicant and the fortieth applicant.
(See also Moldovan and Others v. Romania (no. 2), 41138/98 and 64320/01, 12 July 2005, Legal summary; Király and Dömötör v. Hungary, 10851/13, 17 January 2017, Legal summary; Burlya and Others v. Ukraine, 3289/10, 6 November 2018, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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