Communicated on 17 December 2015
FIFTH SECTION
Application no. 54476/14
Rita Oleksiyivna PASTRAMA
against Ukraine
lodged on 24 July 2014
STATEMENT OF FACTS
The applicant, Ms Rita Oleksiyivna Pastrama, is a Ukrainian national who was born in 1979. She is represented before the Court by Ms O.Y. Sapozhnikova, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Incident of 30 May 2012
Until 30 May 2012 the applicant lived in an unauthorised encampment inhabited by Roma and located in Kyiv near railway tracks administered by Southwestern Railway, part of the State Rail Transport Administration.
According to the applicant, on 30 May 2012 at around noon a group of plain clothed police officers came to the encampment. They led the inhabitants out of the encampment and set their tents on fire with their personal belongings inside. The officers fired six shots in the air and shot a dog. The police officers made the male inhabitants strip to the waist and photographed them. Among the officers, the inhabitants of the encampment recognised the neighbourhood police officer (дільничний міліціонер) in charge of the area where they were living. According to the inhabitants, the officers said to them that they had an order to clear the encampment in preparation for the 2012 UEFA European (football) Championship. The events were witnessed by children.
2. Pre-investigation inquiries conducted following the interventions of the International Organisation for Migration and non-governmental organisations
On 1 June 2012 the applicant and two other former inhabitants of the encampment contacted the Ukrainian Helsinki Human Rights Union (“the Helsinki Union”) seeking aid in order to bring their complaint concerning the encampment’s destruction before the authorities.
On 5 and 6 July 2012 the Congress of Roma of Ukraine and the Helsinki Union respectively wrote to the Kyiv Police and the prosecutor of Kyiv asking them to institute criminal proceedings in connection with the incident.
On 13 June 2012 the mission of the International Organisation for Migration in Ukraine (“the IOM”) sent a letter expressing their concern about the incident to the Ministry of the Interior and the Prosecutor General’s Office, among other State authorities.
On an unspecified date the European Roma Rights Centre (“the ERRC”) also raised their concern about the incident with the authorities.
On 23 July 2012 the Kyiv Police informed the Helsinki Union that the incident had been investigated and the results of the investigation had been forwarded to the Kyiv Dniprovskyy district prosecutor’s office (“the DPO”) which would make a decision as to whether to institute criminal proceedings.
On 6 September 2012 the DPO issued its decision concerning the incident, stating that, upon receipt of the IOM’s and the ERRC’s letters concerning the incident the DPO forwarded these materials to the internal security department of the organised crime unit of the Kyiv Police, which completed its internal inquiry on 3 September 2012.
The DPO found that on 15 and 23 May 2012 two citizens had complained to the Dniprovskyy district police station (“the District Police”) that a group of individuals of Roma ethnicity had created 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 inhabitants and taken down their personal details. However, finding that the land where the encampment had been located did not fall within the district police’s jurisdiction, on 31 May 2012 Officer S. had forwarded the citizens’ complaints to the Darnytsya rail 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 visited the site where they had discovered four Roma who had been in the process of burning trash. The latter individuals had informed the officers that they had intended to join the other Roma who had left for Mukacheve in the Transcarpathia Region.
The DPO went on to note that no complaints from the Roma about the police had been registered in 2012 and the local fire brigade had no records of any calls concerning any fires in the relevant period near the railway tracks. In response to the letters from the Helsinki Union and the Congress of Roma of Ukraine, an inspector of the Kyiv Police questioned the applicant and two other former encampment inhabitants as well as Officer S. and Major D. The police officers denied any involvement in the attack on the encampment.
The DPO concluded that there was no indication that the police officers had been involved in the incident. At the same time the DPO noted that the enquiries of the police internal security department had indicated that a guard of the Armed Rail Guard Service, Mr G., might have been involved in the attack. G.’s unit of rail guards wore uniforms and carried firearms similar to those of the police. 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 fire to the encampment. The applicant and two other former inhabitants 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 and had then participated in the attack. In its decision of 6 September 2012, the DPO decided not to institute criminal proceedings against the district police officers for lack of a corpus delicti in their actions.
On 7 September 2012 the DPO informed the head of the police of the Southwestern Railway about the DPO’s findings, including those concerning the possible role of Mr G. in the incident, and asked him to “take a decision in accordance with the law” and to inform the IMO and the ERRC about it.
On 20 March 2013 the applicant appealed against the decision of 6 September 2013 to refuse to institute criminal proceedings. She argued, in particular, that the DPO had failed to verify the applicant’s statements about the neighbourhood police officer’s role in the attack and that the DPO had failed to verify the applicant’s statement that there had been numerous attackers. She argued that the appeal was being lodged within the time-limit because she had only received a copy of the decision of the DPO of 6 September 2012 on 13 March 2013.
On 1 April 2013 the Kyiv Dniprovskyy 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 only received a copy of the DPO decision on 13 March 2013.
On 4 June 2013 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld the ruling of 1 April 2013.
On 23 January 2014 the Higher Specialised Civil and Criminal Court 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 about the decision of 6 September 2012 since it had been taken in response not to the applicant’s but to a third party’s complaint.
3. Criminal investigation initiated by the applicant
On 25 June 2013 the DPO, at the applicant’s request, made an entry in the Integrated Register of pre-trial investigations to investigate the allegation that employees of the Armed Rail Guard Service had committed the offence of abuse of position in connection with the destruction of the encampment.
In the course of the investigation the DPO questioned G. who stated that he had indeed warned the encampment inhabitants that their tents would be burned if they did not leave voluntarily. He also admitted that he had issued a fine to these inhabitants for crossing railway tracks in a prohibited place. However, he denied the allegation that he had set the tents on fire.
On 2 September 2013 the DPO decided to discontinue the investigation. The DPO referred to the results of G.’s questioning. The DPO also relied on the fact that the DPO investigator had issued an instruction to the police on 23 August 2013 to search for the applicant and two other former encampment inhabitants, 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. 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.
On 19 December 2013 the DPO informed the applicant, in response to her inquiry, of its decision of 2 September 2013. The applicant appealed to the District Court.
On 24 January 2014 the District Court rejected the applicant’s appeal.
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. By way of reasoning the Court of Appeal stated that the DPO had limited its investigation to the questioning of 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 have been found. The court concluded that the DPO had failed to take any active steps to clarify the circumstances of the case.
B. Relevant domestic law
1. Rail Transport Act, 1996 (as amended)
Section 4 of the Rail Transport Act, 1996 (as amended) puts the Armed Rail Guard Service of the State Rail Transport Administration in charge of guarding rail cargo and installations. It provides that the staff of the Service shall have the rights and duties defined in the Armed Rail Guard Service Regulations and other legislation.
2. Armed Rail Guard Service Regulations, 1994 (as amended)
The Cabinet of Ministers enacted the Armed Rail Guard Service Regulations on 11 January 1994. Paragraph 1 of the Regulations puts the Service under the authority of State Rail Transport Administration. Paragraph 6 authorises the employees of the Service to impose sanctions for administrative offences related to rail transport, to arrest offenders, and to conduct searches.
C. Relevant international documents
The relevant provision of the fourth report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 9 December 2011, reads as follows:
“162. ECRI is deeply concerned by reports of frequent misconduct by police officers in their contacts with persons belonging to vulnerable groups. ECRI has received particularly serious allegations of abuses by police with respect to Roma. Arbitrary arrests, systematic taking of fingerprints and photographing are still practised and may even have increased since ECRI’s previous reports; some NGOs consider that these actions are part of deliberate efforts by police to build up a database of the Roma living in a given locality. There are also accounts of the police calling on non-Roma citizens to alert the police whenever Roma appear in their locality and of police searching Roma homes without warrants and planting evidence in order to extort bribes or increase their success rate in criminal investigations. There are reports that Roma have been detained incommunicado, without a court order and/or under trumped-up charges, that they have been threatened or badly beaten to extort a confession and that they have been detained on administrative charges such as insulting police officers if they failed to succumb to the pressure. Some sources suggest that police corruption and serious abuses are not only directed at Roma but also affect the broader population; however, most are clear that Roma are the main victims of such misconduct as they are perceived by the police as having little education or knowledge of their rights and, therefore, as easy targets. Representatives of civil society who attempt to report allegations of police misconduct often face reluctance to investigate or denial of the reported events by officials.”
COMPLAINTS
The applicant complains that due to the destruction of the encampment where she used to live she was subjected to treatment contrary to Article 3 of the Convention and that the State authorities failed to conduct an effective investigation of her complaint in this respect. She further complains, under Article 14 of the Convention and Article 1 of Protocol No. 12, that the attack on the encampment and the deficiencies of the investigation were the result of discrimination on the basis of her Roma ethnicity.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
3. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Article 3 of the Convention and/or contrary to Article 1 of Protocol No. 12? In particular, have the authorities taken all reasonable steps to investigate any possible racist motives behind the alleged attack on the encampment where the applicant used to live (see Šečić v. Croatia, no. 40116/02, §§ 66 and 67, 31 May 2007)?
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