Communicated on 11 February 2016

FIFTH SECTION

Application no. 3289/10 Boris Trofimovich BURLYA and others against Ukraine lodged on 11 January 2010

STATEMENT OF FACTS

The applicants are Ukrainian nationals who live in Berezivka , Odessa Region. Other information concerning the applicants is set out in the appendix. They are represented before the Court by the European Roma Rights Centre, an NGO based in Budapest.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are Ukrainian nationals of Roma ethnicity. Before 10 September 2002 the applicants lived in the village of Petrivka , Ivanivskyy District, Odessa Region.

1. The events of 7 to 10 September 2002 and their aftermath

On 7 September 2002 a 17-year-old ethnic Ukrainian, Mr K.M., was murdered in the village, allegedly by four young Romany men.

On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village.

On the same day the village council met. Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”); Mr P.S., the commanding officer of the military unit stationed in the village and a member of the Ivanivskyy District Council; and Mr O.V., the head of the Ivanivskyy District Police Department (“the District Police”). According to the minutes of the meeting submitted by the applicants, in opening the hearing the chairman of the council, Mr M.S., said, inter alia :

“... today a cruel crime has been committed [in the village] by a group of residents of Gypsy ethnicity. One student of [the village high school] was murdered and three others were injured and are now in hospital in a serious state. This crime was made possible by the fact that no appropriate measures are being taken against them in the event of their [engaging in crimes]. Everybody knows that the spread of drug addiction, which is taking place in our village, is their fault. Today a meeting of villagers took place at which a negative opinion was expressed about the banditry and other [forms of crime] on the part of this category of people ... I invite the council members to speak responsibly and to express their opinion about the crime committed and about the decision of the villagers. I would like this meeting not to turn into something which aggravates inter-ethnic relations.”

At the close of the meeting the council decided, in particular, to “support the decision of the meeting of the village residents to expel persons of Gypsy ethnicity from the village”. The resolution was proposed by Mr P.S.

On 9 September 2002 the village council met again. The heads of the District Administration and the District Police, and the chairperson and members of the Ivanivskyy District Council (including P.S.) were present. The village council examined the question of “bringing the decision of the village council [of 8 September] concerning the expulsion of the persons of Gypsy ethnicity into compliance with legal norms”. The head of the District Administration, Mr S.F., invited the village council members to carefully consider the wisdom of their decision, drawing a clear line between crime ‑ related problems and inter-ethnic relations. Council member D. stated that whatever the wording of the decision it would have no legal consequences and that legal action against drug dealers would also be ineffective. In fact, it was not possible to keep the situation under control. D. further stated that the neighbours of the Roma residents were saying that it was necessary to cut off their gas supply and to burn down the Roma ’ s houses.

At the close of the meeting the village council decided to ask law enforcement authorities “to ensure the expulsion of socially dangerous individuals, regardless of ethnic origin, from the village”.

According to the applicants, on the evening of the same day M.S. and the head of the local police advised the applicants to leave the village, as a “pogrom” was about to start. Electricity and gas supplies to their houses were cut. Subsequently, on the night of 9 to 10 September 2002, a crowd of several hundred people, allegedly led by a certain Mr O.M., looted and set on fire the houses of the applicants and other Roma, destroying their belongings, documents and cars. According to the applicants, the crowd threatened them and other Roma with death. It is unclear whether the applicants left their house prior to the attack or after it had begun.

According to a report published on 20 September 2002 in the regional newspaper Porto Franko and information given at a press conference held on 12 September 2002 by the Secretary of State for the Ministry of the Interior and the head of the Odessa Regional Police Department (“the Regional Police”), police officers had been present in force and had observed the attack. However, they had not attempted to prevent or stop it, apparently focussing solely on preventing casualties.

The events were also reported in a number of other regional and national newspapers.

The applicants allege that after the events they had to move to another town and live with family and friends in overcrowded and inadequate conditions.

On 21 March 2003 the Ivanivskyy District Court, having heard an appeal by the Ivanivskyy District Prosecutor ’ s Office (“the DPO”), quashed the village council ’ s decision of 9 September 2002 on the grounds that it was contrary to the Constitution and had been taken under the pressure exerted by a crowd of angry villagers in order to calm them down and prevent the lynching of the Roma.

2. Criminal investigation

On 10 September 2002 the District Police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group ( хуліганство вчинене групою осіб ).

On an unspecified date Mr S. Yermoshkin , chairman of the board of the Congress of Roma of the Odessa Region, an NGO, lodged a complaint seeking an investigation into the events of 8-10 September 2002.

According to the applicants, on 22 November 2002 the District Police informed Mr Yermoshkin that the owners of fifteen of the damaged properties had been recognised as aggrieved parties in the criminal proceedings for disorderly conduct.

On 20 February 2003 the DPO refused to institute criminal proceedings against the village council ’ s officials for lack of corpus delicti in their actions.

On 1 April 2003 the investigation initiated on 10 September 2002 was suspended for failure to identify the perpetrators.

On 27 February 2005 Mrs Z. Duducehava , the chairperson of Romani Zbora , an NGO, wrote to the Odessa Regional Prosecutor ’ s Office asking it to institute criminal proceedings against the persons who had participated in the attack and the officials who had allowed it. Specifically, she named Mr O.M., Mr P.M. and Mr I.D. who, she alleged, had incited the attack; she named M.S., the chairman of the village council, and O.V., the head of the District Police, as being among the officials who had allowed it. She named the first fifteen and the seventeenth to nineteenth applicants as persons whose property had been damaged.

On 28 March 2005 the Odessa Regional Prosecutor ’ s Office informed Mrs Duducehava that an investigation into disorderly conduct had been initiated and suspended o n 1 April 2003 , but that measures were being taken to identify the persons who had taken part in the attack. Concerning the failure of the police to prevent the disorderly conduct in question, the head of the Regional Police had imposed disciplinary sanctions on the police officers at fault.

On an unspecified date Mr I. Stoyanov , a lawyer apparently representing the first three and the fifth to nineteenth applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as simple disorderly conduct and that there had been no reason to suspend the investigation since the identity of the guilty parties was well known.

On 31 December 2005 the head of the Regional Police informed Mr Stoyanov that the investigation remained suspended and that the District Police and the Regional Police officials had been disciplined.

On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants in which they challenged the decision to suspend the investigation. According to the applicants, at the time of the application to the European Court of Human Rights the proceedings were still pending before the District Court and no decision had been made.

On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General ’ s Office asking to be informed about the progress of the measures to identify the perpetrators and to be allowed to study the case file.

On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the victims could only examine the case file once the investigation had been completed.

On 13 July 2009 the District Police informed Mr Stoyanov , in response to his query, that on 10 February 2009 the investigation had been renewed and on 2 March 2009 suspended again for failure to identify the perpetrators.

3. Judicial proceedings to declare the investigating authorities ’ inaction unlawful

On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim with the District Court seeking to have the failure of the DPO and the District Police to investigate the incident declared unlawful.

On 23 November 2007 the District Court dismissed the claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court.

On 9 February 2008 the Odessa District Administrative Court rejected the claim without considering it on the merits, holding that it fell outside the jurisdiction of the administrative courts. On 17 March 2008 the Odessa Administrative Court of Appeal upheld this ruling.

4. Civil claim for damages

On 23 December 2005 the applicants lodged with the District Court a civil claim for damages against the District Administration and the village council.

On 23 November 2007 the District Court rejected the applicant ’ s claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court.

B. Relevant domestic law

1. Constitution of Ukraine

Article 24 of the Constitution of Ukraine provides as follows:

“... There shall be no privileges or restrictions based on race, skin colour , ... ethnic or social origin ...”

2. Criminal Code of 2001, as worded at the material time

Article 161 of the Code provided as follows:

“1. Intentional acts aimed at inflaming ethnic, racial or religious hostility and hate, or attacking ethnic dignity or insulting citizens in connection with their religious beliefs, as well as the direct and indirect limitation of rights or the conferring of direct or indirect privileges on the basis of race, skin colour , political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, language or other characteristics, shall be punishable by a fine of up to fifty times the level of income exempt from taxation or by correctional work for a period of up to two years, or by restriction of liberty for a period of up to five years, with or without a prohibition for up to three years on the right to occupy certain positions or engage in certain activities.

2. The same acts, where combined with violence, deceit, or threats or committed by a person in a position of authority, shall be punishable by correctional work for a period of up to two years or by imprisonment for up to five years.

3. The acts described in paragraphs 1 and 2 of this Article, where committed by an organised group or if they have caused death or have other grave consequences, shall be punishable by imprisonment for two to five years.”

Article 296 of the Code provides as follows:

“1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect for the community, combined with particular impudence and exceptional cynicism [...]

2. . .. committed by a group of persons shall be punishable by a restriction on liberty for up to five years or imprisonment for up to four years.”

C. Relevant international documents

The relevant parts of the second report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 14 December 2001, read as follows:

“56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials. ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed ...

...

58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill ‑ treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI ’ s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.”

COMPLAINTS

The applicants complain under Article 3 of the Convention that the attack on their houses and their destruction amounted to inhuman and degrading treatment, for which the State was responsible on the grounds that the authorities – most notably the village council and the police – were complicit in and acquiesced in the attack. They also complain under the same provision that the State failed to take measures to protect them from the attack and to conduct an effective investigation into it. They further complain that the State was responsible for the degrading living conditions they experienced after their houses had been destroyed.

Under Article 8 the applicants complain that the authorities interfered with their private and family life and home by directing the destruction of their houses. According to them, the decision of the village council provided “legal cover” for the mob and encouraged it to take action. There was also direct involvement and connivance on the part of the State agents in the actual destruction of their homes. The authorities also breached their positive obligations under this provision by failing to conduct a thorough investigation and to provide adequate redress. T he authorities were also responsible for the applicants ’ inadequate living conditions following the attack.

The applicants complain under Article 1 of Protocol No. 1 that the authorities interfered with the peaceful enjoyment of their possessions on account of their involvement in the destruction of the applicants ’ homes and other property, and also breached their positive obligations by failing to protect their property and to afford them any redress.

They further complain that they suffered discrimination owing to their Roma ethnic origin and contrary to Article 14, taken in conjunction with Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.

Invoking Article 13 of the Convention, they complain that they did not have an effective domestic remedy in respect of their above Convention complaints.

QUESTIONS TO THE PARTIES

1. Have the applicants complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of their complaints, notice of which is being given to the Government? Have such remedies been available to them in theory and in practice?

2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of their complaints , notice of which is being given to the Government ?

3. Were the applicants subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention?

4. Having regard to the procedural protection from torture, 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?

5. Has there been a violation of the applicants ’ right to respect for their private or family life or their home, contrary to Article 8 of the Convention?

6. Has there been a violation of Article 1 of Protocol No. 1 in respect of the applicants?

7. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, as required by Article 13 of the Convention?

8. Have the applicants suffered discrimination on the ground of their ethnic origin, contrary to Article 14 of the Convention, read in conjunction with Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1? In particular, h ave the authorities taken all reasonable steps to investigate any possible racist motives behind the alleged attack and the destruction of the applicants ’ houses, as required by Article 14 of the Convention, read in conjunction with Article 3 (see Šečić v. Croatia , no. 40116/02, §§ 66 and 67, 31 May 2007) ?

Appendix

N o .

First name patronymic LASTNAME

Birth year

Boris Trofimovich BURLYA

1951Anatoliy Georgiyevich BURLYA

1954Artur Leonidovich BURLYA

1980Ivan Makarovich BURLYA

1958Natalya Yakovlevna BURLYA

1957Valentina Ivanovna BURLYA

1966Yekaterina Trofimovna BURLYA

1936Ivan Ivanovich CHUBEY

1963Valentina Yakovlevna CHUBEY

1937Fedor Fedorovich LUPASHCHENKO

1955Ivan Georgiyevich LUPASHCHENKO

1944Ivan Ivanovich LUPASHCHENKO

1959Nikolay Fedorovich LUPASHCHENKO

1968Snezhana Fedorovna LUPASHCHENKO

1974Vladimir Ivanovich LUPASHCHENKO

Unknown

Natalya Vladimirovna TSYKOLAN

1978Fedor Yakovlevich TSYNYA

1944Ivan Yakovlevich TSYNYA

1942Yakov Fedorovich TSYNYA

1970