FIFTH SECTIONCASE OF PASTRAMA v. UKRAINE(Application no. 54476/14)     JUDGMENT STRASBOURG1 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:INTRODUCTION1. 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 FACTS2. 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 20125. 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 NGOs8. 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 applicant25. 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 199639. 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 201240. 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 death45. 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 case47. 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 CONVENTION49. 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.

Outcome for Article 8: violation