ECHR ruling of November 6, 2018 in the case of Burlya and Others v. Ukraine (application N 3289/10).
In 2010, complainants were assisted in preparing a application. Subsequently, the application was communicated to Ukraine.
The case was successfully considered the application of the applicants against the police officers taking measures to protect residents from a planned attack on their homes by a group of people on nationalistic grounds. The case has violated the requirements of Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
After the murder in the village where the applicants lived, a group of villagers gathered there and demanded that the Roma be expelled. The village council gathered, which decided, in particular, to support the decision of the villagers that the people of Gypsy origin should leave. The mayor and the local police advised the applicants, citizens of Ukraine of Roma origin, to leave the village, as the "pogrom" was planned. Subsequently, a crowd of several hundred people plundered the houses of Roma residents, destroying their property. The applicants complained about the attack on their homes and claimed that the authorities had contributed to their looting, or at least failed to take measures to prevent or effectively investigate the attack.
QUESTIONS OF RIGHT
It was necessary to distinguish two groups of applicants. The first group was in the village during the preparation of the attack and was forced to leave their homes. The second group of applicants was not in the village during the relevant events.
Regarding compliance with Article 3 of the Convention (substantive aspect) in conjunction with Article 14 of the Convention. The parties did not dispute that the looting of the applicants' houses was motivated by anti-Gypsyism among the villagers.
The local and district police were aware of the pogrom preparation in advance, and this period was enough to gather all the Roma residents and warn them about the need to leave the village. There is no information in the case file about why the police officers did not intervene to protect the applicants' houses. In particular, none of the decisions of the courts of Ukraine argued that the violence occurred so quickly or so exceeded the resources of the police that the decision to limit police intervention was reasonable and should only try to minimize the damage by warning the applicants about the need to leave.
The authorities clearly insisted that the applicants leave the village, since the authorities considered themselves unable or did not want to protect the applicants from attack. The police officers were present during the looting of the applicants' houses, but did not significantly intervene in the events taking place. Such a presence, in conjunction with the decision of the village council, from which, apparently, followed the approval of the applicants' eviction decision, created the impression of formal approval of the actions of the attackers.
The applicants, who had been warned about the attack, found themselves in a situation from which they had to conclude that because of their family ties and ethnicity, they could not count on the protection of the law in the place where they lived on a regular basis for a long period of time. . Their decision to leave home before the attack was thus not the result of the expression of their free will, but a way to protect their physical integrity. Their feelings of fear, pain, helplessness and humiliation were heightened by the realization that their homes were likely looted, but they could not protect their homes without endangering their lives. In general, all this is extremely demeaning their dignity. The role of the police officers who decided not to provide the applicants with protection, but advised them to leave before the pogrom, and the fact that this was accompanied by the invasion of the applicants' houses and their plundering by a huge crowd, hostile to the Roma, were such that they were so serious insulting the applicants' dignity that it could be qualified as “degrading treatment”.
The European Court disagreed with the opinion of the Ukrainian authorities that, in order for Article 3 of the Convention to be applied in the context of damage to property, it was necessary for the applicants to monitor the destruction of their own houses. The importance of the presence or absence of any circumstance cannot be assessed in isolation, but only in the context of all the circumstances of the case. In view of the above findings, the Court considers that this factor was not decisive in the present case.
The case violated the requirements of Article 3 of the Convention in conjunction with Article 14 of the Convention in respect of the first group of applicants, the complaint of the second group of applicants was considered incompatible with the Convention ratione materiae (adopted unanimously).
Regarding compliance with Article 3 of the Convention (procedural aspect) in conjunction with Article 14 of the Convention. During the investigation of the events, several serious mistakes were made. The investigating authorities had ample evidence that the local authorities, including the local police, knew about the preparation of the attack, but did not take any measures to prevent it and remained indifferent during the attack, apparently confining themselves to preventing casualties. However, no action was taken to investigate this aspect of the case. No effort was made to find out what and when they found out from which source, whether they knew any organizers, whether they contacted them, and why they limited their role to warning applicants of the need to leave instead of taking steps to prevent attacks.
The local police, which apparently played a certain role in the events that were being investigated, actively participated in the investigation itself. Such an investigation and the lack of verification of one of the obvious versions, and, apparently, without a reasonable justification, indicated not only the inadequate and superficial nature of the investigation, but also the lack of its independence.
Measures taken to identify perpetrators who were private individuals were also not sufficient. Of the three people who were identified as instigators of the pogrom, only two were questioned. They denied personal involvement in the plundering of Roma houses. However, there are no indications that they were interrogated in connection with their alleged incitement to the pogrom. In addition, it appeared from the case file that the witnesses denied their personal participation in the pogrom, but they were not asked if they knew of any of the attackers. This was especially surprising for police officers who were present at the scene and personally observed the pogrom and the persons who participated in it.
Finally, despite the clear evidence that the action in question was directed against members of a particular ethnic group, the investigation was carried out into the mere violation of public order. There is no evidence in the case file that the authorities conducted an investigation into possible nationalist motives for the pogrom.
The findings of the case were also considered in the light of international reports on the systematic negative attitude towards the Roma by some law enforcement officers in Ukraine.
The case was violated in respect of the first group of applicants, the complaint of the second group of applicants was declared incompatible with the Convention ratione materiae (adopted unanimously).
Regarding compliance with Article 8 of the Convention in conjunction with Article 14 of the Convention. The position of the second group of applicants was not within the scope of Article 3 of the Convention and could have been sufficiently considered from the point of view of Article 8 of the Convention. It found that the authorities had made serious omissions concerning the protection of the first group of applicants from looting their houses, which allowed the Court to conclude that there had been a violation of Article 3 of the Convention in conjunction with Article 14 of the Convention.
Similar conclusions could be made regarding the second group of applicants. The only difference between the second group of applicants was that they were not in the village during the relevant events and, having arrived there later, found that their houses had been looted. As a result of the attack, the applicants could no longer live in their homes. Although there is no indication in the case file of specific facts confirming that the applicants were prevented from returning to the village, it would be unreasonable to assume that they would permanently live in dilapidated houses in the village, the authorities of which made it clear to them that they would not provide them with any protection from mob violence, especially given that there was no investigation into the relevant events and no one was brought to justice.
Therefore, there can be no doubt that the damage caused to the applicants 'homes constituted a serious and unreasonable interference with the applicants' right to respect for their private and family life and home.
The case was violated in accordance with the requirements of Article 8 of the Convention in conjunction with Article 14 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded 11,000 euros to each applicant from the first group and 9,000 euros to each applicant from the second group as compensation for non-pecuniary damage; the claim for compensation for material damage was rejected.