CASE OF BURLYA AND OTHERS v. UKRAINE

1. The case originated in an application (no. 3289/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nineteen Ukrainian nationals, whose particulars are set out in the Appendix (“the applicants”), on 11 January 2010.
2. The applicants were represented by the European Roma Rights Centre, a non-governmental organisation (NGO) based in Budapest. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. The applicants alleged that the attack on their homes in the course of an anti-Roma “pogrom”, which the authorities had allegedly been complicit in or had at least failed to prevent or to investigate effectively, as well as their inadequate living conditions following their displacement as a result of that attack, had breached Articles 3, 8, 13, 14 of the Convention and Article 1 of Protocol No. 1.
4. On 11 February 2016 the application was communicated to the Government.
5. The seventeenth and the eighteenth applicants had died on 16 October 2017 and 24 April 2013 respectively and certain individuals expressed their wish to pursue the application in their stead (see paragraphs 64 to 78 below).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants are Ukrainian nationals of Roma ethnicity. Before 10 September 2002 the applicants lived in the village of Petrivka, Ivanivskyy District, Odessa Region (hereinafter also “the village”). They currently live in Berezivka District, Odessa Region.
A. The events of 7 to 10 September 2002
7. On 7 September 2002 a 17-year-old ethnic Ukrainian was murdered in the village, allegedly by a Romany man who was apparently convicted of the murder afterwards. It appears that this occurred in the course of an altercation between Romany men and other youngsters from the village at a local bar or dancehall.
8. On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village. According to the statement of the village mayor, Mr M.S., made in the course of a subsequent criminal investigation, the local officials attempted to defuse the situation and urged the villages not to do anything illegal.
9. On the same day the village council met. Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”) and the head of the Ivanivskyy District Police Department (“the District Police Department”). According to the minutes of the meeting submitted by the applicants, in his opening remarks the mayor said, inter alia :
“... today a cruel crime was 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.”
10. 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”.
11. On 9 September 2002 the village council met again. The heads of the District Administration and the District Police Department and the chairperson and members of the Ivanivskyy District Council 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 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. A 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. furthermore 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”.
12. On the evening of the same day the mayor and 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, in the course of the night of 9-10 September 2002 a crowd of several hundred people, allegedly led by a certain Mr O.M., ransacked the houses belonging to the Roma, destroying their belongings. A number of police officers were present but did not intervene to prevent the looting and apparently concentrated solely on preventing human casualties. The house where the first applicant lived had burned down. According to the Government, the results of the expert analysis of the causes of the fire were inconclusive (see paragraph 118 below).
B. The applicants’ statements concerning their particular situation
13. The applicants submitted a number of written statements from the applicants addressed to Ms Duducehava, the leader of a Roma association, and Mr Stoyanov, a lawyer who represented a number of applicants in the domestic criminal proceedings (see below). The statements bear various dates from 2004 and 2007, contain descriptions of the events of 7 ‑ 10 September 2002, and ask for help in dealing with the authorities. According to the general tenor of the statements, the applicants’ had been urged to leave by the police prior to the pogrom, and in their absence their houses had been ransacked by the mob – in particular, doors and windows had been smashed, and furniture and belongings destroyed or stolen.
14. According to the fifth applicant’s statement, dated 17 November 2007, she and the fourth applicant (her husband) had been away from the village at the time of the events and had only learned about them when they had returned on 20 September. She had had to sell her house “at half the price” (“ за полцены ”), as had other Roma victims of the pogrom. The seventh, eighth, thirteenth and sixteenth applicants’ statements, as well as the statements of some other former Roma residents of Petrivka, were similarly worded, speaking of the houses having been sold for less than their normal price (for instance, Mrs M. Burlya, the second applicant’s wife, characterised the price for which her house had been sold as “very cheap”).
15. The applicants submitted eight undated photographs showing the ruins of one or several houses, certain photographs showing signs of fire. The origin of these photographs is unclear. In her statement to Ms Duducehava in 2004 the sixth applicant referred to certain photographs showing damage to her and her relatives’ houses.
16. The seventh and eighth applicants stated that all the Roma had left the village before the attack started.
17. Applicants identified in the Appendix asserted in their statements to Ms Duducehava, Mr Stoyanov or to the police in the course of the subsequent criminal investigation that they had been away from the village at the time of the events of 7-10 September 2002 and of the attack and had only learned about it later.
18. In her statement to Mr Stoyanov dated 18 November 2007 the ninth applicant stated that she had been at home with her two granddaughters (aged ten and fifteen at the time) when the attack started. Stones had started flying through the windows, four attackers had broken down the door and started shouting, and the older granddaughter had pleaded with the attackers not to kill them. The attackers had not touched the applicant or her granddaughters; the applicant had then fled.
However, in her statement to the police dated 26 September 2002 this applicant stated that she had fled the village prior to the attack and had returned the next day to find her home ransacked. In her statement (addressed to Ms Duducehava) and dated 13 June 2004 this applicant complained of having been expelled from her home but did not mention that she had personally witnessed any attack.
19. 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 ( Державний секретар ) for the Ministry of the Interior and by 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 concentrating solely on preventing casualties.
20. The events were reported in a number of regional and national newspapers.
21. The applicants alleged that after the attack they had had to move to another town and live with family and friends in overcrowded and inadequate conditions.
22. On 10 September 2002 the Ivanivka district police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group ( хуліганство вчинене групою осіб ).
23. On 10 September 2002 police investigators from Ivanivka, Berezivka, and several other districts conducted on-site examinations of the damaged houses in Petrivka (which included the taking of fingerprints). A regional police investigator conducted further on-site examinations in December 2002 and January 2003.
24. On 12 September 2002 it was decided to constitute an investigative team composed of a senior investigator from the regional police department and investigators and other police officers from the Ivanivka district and three other districts.
25. From 12 September to 9 October 2002 the regional police investigator obtained a number of expert opinions concerning the material found on the scene (notably assessing the damage there).
26. On 20 September 2002 an officer of the Ivanivka police questioned neighbours of some of the applicants. Those neighbours stated that on the night of the attack they had seen around 150 and 300 people near the applicants’ houses.
27. From 23 September 2002 to 27 January 2003 at least sixty village residents, including O.М. and P.M. (who were later accused by the applicants’ representative Ms Duducehava of having a role in the attack ‑ see paragraph 36 below), were questioned by the police – four of them by Ivanivka police officers and the rest by the regional police investigator. The villagers generally stated that there had long been tensions in the village between the Roma and non-Roma populations (many mentioning that this was connected with the alleged involvement of Roma residents in the drug trade), and that on the night of 9 September 2002 several hundred individuals had ransacked the houses of the Roma residents. This had been done to ensure that Roma would be expelled from the village. Some expressed approval of the attackers’ actions (as having been triggered by the authorities’ inaction against the drug trafficking), but denied that they had personally taken part in the attack.
28. The police also questioned a number of applicants, who gave statements largely consistent with the account of events set out in paragraphs 7-17 above.
29. On 14 November 2002 a certain Mr V. – apparently a Roma and a Petrivka resident at the time – was questioned. He stated that on 9 September he had been called in to Ivanivka district police station and told that residents of Petrivka would be attacking Roma houses. Upon learning this, he returned to the village and helped to evacuate his family, as well as other Roma residents, to another village.
30. The police recognised the applicants listed in the Appendix as having the official status of aggrieved parties or of civil claimants (see paragraphs 53 and 54 below).
31. In January 2003 (in the summary provided by the Government the relevant dates seem to be misstated as being in January 2002 and January 2007) the regional police investigator questioned three officers of the “Berkut” special police unit. They stated that about 2,000 persons had participated in the pogrom. They had asked the officers not to interfere in their actions. They had entered the houses and asked the individuals there not to resist and to leave.
32. In February 2003 the police obtained an expert opinion in an attempt to identify the voices on a video cassette. It appears that the video cassette contained a recording of a meeting of village residents held before the pogrom. The expert concluded that no voice could be identified owing to the poor quality of the recording.
33. On 4 February 2003 the police suspended the investigation for failure to identify the perpetrators. On 17 February 2003 the regional prosecutor’s office ordered that it be resumed.
34. On 20 February 2003 the Ivanivsky district prosecutor’s office (“the DPO”) refused to institute criminal proceedings against the village council’s officials for lack of constituent elements of a crime in their actions.
35. On 1 April 2003 the regional police investigator suspended it again.
36. On 27 February 2005 Ms 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., all of whom, 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 department, 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, summarising their statements to her (see, in particular, paragraph 13 above).
37. On 28 March 2005 the Odessa regional prosecutor’s office informed Ms Duducehava that an investigation into disorderly conduct had been initiated and suspended on 1 April 2003 but that operational measures were being taken to identify the perpetrators (see paragraph 58 below for a summary description of the legislative framework in respect of such measures). Twenty-three individuals, including those whose statements had been added to Ms Duducehava’s complaint, had been recognised as aggrieved parties or civil claimants. 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.
38. On 21 November 2005 Mr I. Stoyanov, a lawyer representing a number of the applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as merely disorderly conduct, even though it could be characterised as an act of discrimination and mass disorder. The identity of the guilty parties was well known.
39. On 31 December 2005 the head of the regional police informed Mr Stoyanov that the investigation had been suspended on 1 April 2003 and that the regional prosecutor’s office had examined the case and left the decision to suspend it in force.
40. On 25 January 2006 the DPO informed Mr Stoyanov of the decision not to institute criminal proceedings against the village officials (see paragraph 34 above) and stated that Mr Stoyanov could obtain information about the situation in the hooliganism case from the regional police, who were in charge of it.
41. On 27 January 2006 the Ivanivka district police took over the investigation in respect of the hooliganism case and decided to resume it. On 5 April 2006 they suspended it again.
42. On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General’s Office asking to be informed about the progress of the operational measures to identify the perpetrators and to be allowed to study the case file.
43. On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the aggrieved parties could only examine the case file once the investigation had been completed.
44. The applicants submitted a copy of a letter from the district police dated 13 July 2009 addressed to Mr Stoyanov. The letter 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. No reason for the alleged renewal was mentioned. The Government argued that the letter was not genuine (see paragraphs 88 to 91 below).
1. Quashing of the village council’s decision
45. On 21 March 2003 the Ivanivskyy District Court (“the District Court”), having heard an appeal by 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.
46. On 23 December 2005 the applicants (except the fourth and sixteenth) lodged with the District Court a civil claim for damages against the District Administration and the village council.
47. On 23 November 2007 the District Court rejected the applicants’ claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court. No appeal was lodged.
3. Administrative proceedings for the investigating authorities’ inaction to be declared unlawful
48. On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim seeking to have the failure of the DPO and the district police to investigate the incident declared unlawful.
49. On 9 February 2008 the Odessa Circuit 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. Complaints to courts in the context of criminal procedure
50. On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants under the Code of Criminal Procedure in which they challenged the decision to suspend the investigation. On 19 August 2008 and 8 April 2009 Mr Stoyanov lodged additional complaints on behalf of the first to third, sixth to fifteenth and seventeenth to nineteenth applicants in these proceedings. In those complaints, they stated that they had never been questioned and had never been recognised as aggrieved parties ( потерпілі ). They asked the court to order the police to recognise them as such. 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.
51. Article 24 of the Constitution of Ukraine provides as follows:
“... There shall be no privileges or restrictions based on race, skin colour, ... [or] ethnic or social origin ...”
B. Criminal Code of 2001, as worded at the material time
52. Articles 67, 161, 294, 296, 365 and 367 of the Code read as follows:
Article 67. Circumstances aggravating a punishment
“1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:
(3) the commission of a crime on the grounds of racial, national or religious enmity or hostility; ...”
Article 161. Violation of citizens’ equality on the grounds of their race, nationality or religious beliefs
“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 monthly non-taxable income or by correctional work for a period of up to two years, or by restriction on liberty for a period of up to five years, with or without a prohibition on occupying certain positions or engaging in certain activities for up to three years.
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 resulted in other grave consequences, shall be punishable by imprisonment for two to five years.”
Article 294. Mass disorder (rioting)
“1. Organisation and participation in mass disorder associated with violence against persons, pogroms, arson, destruction of property, occupation of buildings, [or] forceful expulsion of citizens... shall be punishable by five to eight years’ imprisonment.
2. The same acts, where they led to death or other grave consequences, shall be punishable by eight to fifteen years’ imprisonment.”
Article 296. Disorderly conduct (hooliganism)
“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.”
Article 365. Excess of power or office
“1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons shall be punishable by [the obligation to undertake] correctional works for a period of up to two years or by a limitation on liberty for a period of up to five years or by imprisonment for up five years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years.
3. Any actions provided by paragraph 1 or 2 of this Article, if they had any grave consequences, shall be punishable by seven to ten years’ imprisonment and by a prohibition on the right to occupy certain positions or engage in certain activities for up to three years.”
Article 367. Neglect of official duty
“1. Neglect of official duty – that is to say failure to perform or improper performance on the part of an official of his or her official duties owing to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a fine amounting to between fifty and one hundred and fifty times the [level of monthly non-taxable] income or by correctional work for up to two years or by a restriction on liberty for up to three years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years.
2. The same act, if it has any grave consequences, shall be punishable by imprisonment for two to five years and a prohibition on occupying certain positions or engaging in certain activities for up to three years with or without a fine amounting to between a hundred and two hundred and fifty times the [level of monthly non-taxable] income.”
C. Code of Criminal Procedure of 1960 (in effect at the relevant time)
53. Article 28 of the Code provided that a person who had sustained pecuniary damage as a result of a crime could lodge a civil claim against an accused or persons liable for the actions of the accused. Article 50 required the investigator or the court to deliver a formal decision recognising the person as a civil plaintiff or refusing such recognition.
54. Article 49 provided that a person who had sustained non-pecuniary, physical or property damage as a result of a crime could be recognised as an aggrieved party. It required the investigator or the court to issue a formal decision recognising the person as an aggrieved party or refusing such recognition.
55. Article 206 of the Code provided that a pre-trial investigation in a criminal case could be suspended, in particular, if the investigation had failed to identify the perpetrator.
56. Article 121 provided that any disclosure of information about pre-trial investigation had to be authorised by the investigator in charge of the case or the prosecutor.
57. Under Articles 234-36 of the Code, the acts of an investigator could be appealed against to a prosecutor. The investigator’s acts and the decisions of the prosecutor in respect of complaints could also be appealed against before a court, but the latter would only examine them at the preliminary hearing of the case in question – that is to say after the relevant investigation had been completed and the case had been sent to court with a bill of indictment.
D. Operational-Search Activities Act of 1992
58. Section 2 of the Act describes operational search activities as a system of open and covert search, intelligence and counterintelligence measures. Section 8 provides that in the course of operational search activities the relevant law enforcement units can interview individuals, conduct controlled purchases, examine documents, enter and examine premises (including in a covert manner), infiltrate criminal groups, engage in wiretapping and surveillance, employ informers, create decoy companies and establishments, etc.
III. RELEVANT INTERNATIONAL DOCUMENTS
59. 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.”
60. The relevant parts of the third report on Ukraine by the ECRI, adopted on 29 June 2007, read as follows:
“76. As previously indicated, Roma face a number of problems in their relationship with the police and other law enforcement agencies. ECRI has received reports according to which some police officers illegally arrest and harass members of Roma communities... Attempts to find a common understanding between Roma organisations and the Ministry of Interior, the Office of the Prosecutor and law enforcement officials have reportedly yielded few results. ECRI has also received reports according to which Roma do not receive an adequate response from the police when they are the victims of crime.”
61. On 27 November 2002 the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (“the Advisory Committee”) published its first opinion regarding Ukraine’s compliance with that Convention. It concerned the first monitoring cycle and was based on the Advisory Committee’s visit to Ukraine in December 2001. The relevant parts of the opinion read:
“30. The Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing... These problems are exacerbated by the unsatisfactory situation of Roma in the educational system... The Advisory Committee is of the opinion that these issues merit increasing attention.
36. The Advisory Committee notes with concern that societal attitudes towards Roma remain negative, and sociological studies suggest that the prejudices towards Roma are markedly more widespread than towards persons belonging to other national minorities. The Advisory Committee believes that it would be helpful to design further initiatives aimed at promoting inter-cultural dialogue between Roma and others.
37. The Advisory Committee notes with concern that there have been incidents of discrimination and ill-treatment of Roma, including by law-enforcement officials, which have been reported inter alia by the Parliamentary Ombudsman. It is also concerned about credible reports about discrimination and hostility, including by law-enforcement officials, concerning asylum-seekers and other persons who have arrived in Ukraine relatively recently... The Advisory Committee deeply regrets that there appears to be some reluctance within the law-enforcement bodies to acknowledge and examine these problems, and it urges the authorities to increase the vigour with which these incidents are investigated and prosecuted.”
62. The Advisory Committee’s second opinion on Ukraine, issued on 30 May 2008, reads, in the relevant part:
“79. Some interlocutors informed the Advisory Committee that persons belonging to national minorities are affected by unjustified and/or unlawful stop and search procedures which are carried out by law-enforcement officials. Roma, as well as persons belonging to visible minorities living in various regions of Ukraine, seem to be particularly targeted by this practice which is allegedly accompanied, in certain cases, by calls for bribes. Raids and home searches in Roma settlements, sometimes accompanied by an excessive use of force, have reportedly not ceased. Cases of ill-treatment by the police are still being reported, and the complaints brought against the officials under suspicion are often not properly investigated.
Moreover, there are reports of Roma convicted of crimes and subsequently sentenced to imprisonment, without substantive proof of guilt. By contrast, law-enforcement agencies are reported to be more reluctant to investigate crimes committed against Roma. Widespread negative stereotypes of the Roma population seem to be prevalent also within law enforcement agencies as well as the judiciary... and no doubt contribute to the risk of unequal treatment by these institutions.”
63. The seventeenth and the eighteenth applicants died after this application had been lodged (see paragraph 5 above).
64. The applicants’ representatives initially informed the Court of that fact in their letter of 23 February 2018. They stated that the seventeenth applicant’s wife and son and the eighteenth applicant’s wife and granddaughters wished to pursue the application in their stead. On that occasion they furthermore stated that the nineteenth applicant had also died and named certain individuals who wished to pursue the application in his stead.
65. In response to the Court’s invitation to provide evidence, the applicants’ representatives stated that in fact the nineteenth applicant had not died. On that occasion they also submitted that Ms Raisa Mikitovna Tsynya and Ms Lyubov Leontivna Tsynya – respectively, the wives of the seventeenth and eighteenth applicants – as well as Ms Ramina Nikolaevna Tsynya, Lyubov Nikolaevna Tsynya and Evgenya Tsynya – the eighteenth applicant’s granddaughters, had expressed their wish to pursue the application on behalf of the respective applicants. They submitted authority forms signed by those individuals and death certificates.
66. The Government submitted that the individuals purporting to pursue the application on behalf of the deceased had “failed to provide any supporting documents related to their relationship or consanguinity with the deceased, such as birth certificate, marriage certificate and more important (sic) inheritance certificates”. They invited the Court to refuse those individuals’ requests that they be allowed to pursue the application on behalf of the deceased.
67. The applicants’ representatives responded by submitting a copy of the marriage certificate showing that Lyubov Tsynya was the eighteenth applicant’s wife. As to Raisa Tsynya, they submitted that she had only been the seventeenth applicant’s partner (that is to say they had not been married to each other) and that she was therefore in no position to provide a marriage certificate. They pointed out that in the case of Velikova v. Bulgaria ((dec.), no. 41488/98, ECHR 1999 ‑ V (extracts)) the Court had allowed an unmarried partner to pursue a complaint following the death of the applicant. The applicants’ representatives submitted that the individuals in question were vulnerable and poor and could not be expected to provide certificates of inheritance.
68. The Court firstly notes that the applicants died after they had lodged the application, a situation which according to its case-law is viewed differently from those instances where the applicant has died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). In such cases, the decisive point is not whether the rights in question are or are not transferable to the heirs wishing to pursue the procedure, but whether the heirs can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Singh and Others v. Greece, no. 60041/13, § 26, 19 January 2017).
69. It is not contested that the individuals wishing to pursue the application on behalf of the deceased applicants have no formal status as their heirs. However, this in itself is not decisive as long as they can lay a claim to be their next of kin (contrast Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII – where the Court accepted that a relative who had not finalised his status as a heir nevertheless had such standing ‑ with Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III, ‑ where it did not recognise the locus standi of an individual who was not the applicant’s relative, even though he was his friend and universal legatee).
70. As far as the seventeenth applicant is concerned, there is no evidence before the Court which would show that the individuals purporting to pursue the application on his behalf are his next of kin, and the individuals in question have not explained why they could not provide such evidence.
71. While initially the seventeenth applicant’s son was mentioned by the applicants’ representatives as wishing to pursue the application, there was no follow-up and the applicants’ representatives made no reference to him again after the Court’s request for evidence (see paragraphs 64 and 65 above).
72. As to the seventeenth applicant’s unmarried partner, she did not pursue any domestic proceedings on his behalf and was not recognised as such either by any domestic authority or the Government (contrast, for example, Velikova (dec.), cited above, Vogrinčič and Others v. Slovenia (dec.), nos. 15829/05 and 18618/06, 28 June 2011, and Ivko v. Russia, no. 30575/08, § 66, 15 December 2015). Even after clarifying her status as his unmarried partner, she has not described her relationship with the applicant in any detail, such as the period of their cohabitation, common children, etc. (contrast, for example, Velikova (dec.), cited above, and Pisarkiewicz v. Poland, no. 18967/02, § 29, 22 January 2008).
73. Given these circumstances, the Court concludes that it has not been shown that the individuals purporting to pursue the application in the seventeenth applicant’s stead have a legitimate interest in doing so. Accordingly, they do not have standing to pursue the proceedings.
74. Given that the Court will continue to examine the other applicants’ complaints, which are based entirely on the same facts, no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires the Court to continue the examination of the application in respect of the seventeenth applicant (see, for example, Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, § 45, 28 March 2017).
75. The Court accordingly finds that, as far as that applicant is concerned, the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied and decides to strike the application in respect of the seventeenth applicant out of its list.
76. As far as the eighteenth applicant is concerned, the application is being pursued by his wife. The Court has no reason to doubt that she may pursue the application in his stead. By contrast, the individuals claiming to be that applicant’s granddaughters did not submit any evidence in support of that claim and, therefore, have not demonstrated that they have the requisite standing to pursue the application in his stead.
77. Accordingly, the Court holds that the eighteenth applicant’s wife has standing to continue the present proceedings in his stead.
78. However, reference will still be made to “the eighteenth applicant” throughout the ensuing text.
B. Victim status of some applicants
79. The Government submitted that the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants had not been recognised as victims in the domestic criminal proceedings (see the Appendix) and had not submitted any evidence to show that they had been affected by the events in issue in the case. Moreover, in the course of the domestic investigation the police did not examine the houses of the fifth, thirteenth, fourteenth and nineteenth applicants. The Government considered this to constitute evidence that their houses had not been damaged in the attack. Accordingly, they could not claim to be victims of the alleged violations of the Convention.
80. The applicants responded that what was important in this context was the ineffectiveness of the domestic investigation, not those applicants’ formal status in those proceedings. Moreover, they pointed out that they had complained about the authorities’ failure to confer on some of them the formal status of aggrieved parties in the domestic proceedings (see paragraph 50 above). The applicants furthermore submitted that the fact that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants and the damage done to them had not been examined by the police was attributable to the ineffectiveness of the investigation rather than to any fault on the applicants’ part.
81. The Court notes that in her letter to the regional prosecutor’s office of 27 February 2005 (see paragraph 36 above) an official of the Romani Zbora NGO, acting on behalf of all the applicants other than the sixteenth (Ms Tsykolan), identified them as victims of the attack, enclosing their statements to that effect. In its response, the regional prosecutor’s office did not contest their situation as victims; on the contrary, it apparently implied that all of them had been granted formal status in the investigation (see paragraph 37 above). In view of the Government’s observations, the latter assessment by the prosecutor’s office appears to have been incorrect as no formal decision to grant the status of aggrieved parties to the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants was ever taken. However, neither does it appear that any formal decision was taken refusing them that status, even though the domestic law appears to have required such a formal decision (see paragraphs 53 and 54 above). In fact, there is no indication that there has been any decision-making or assessment of facts in respect of those applicants on the part of the domestic authorities.
82. The Court reiterates, in this respect, that according to the Court’s long-established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity (see, for example, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). Therefore, a lack of recognition of applicants at the domestic level does not, in and of itself, prevent them being considered to be “victims” within the meaning of Article 34 of the Convention, which denotes the person or persons directly or indirectly affected by the alleged violation at issue (ibid.).
83. As to the Government’s argument that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants had not been examined by the police – which, in the Government’s opinion, signified that those houses had not been damaged – the Court is unable to perceive any specific basis for this conclusion in the domestic investigation material made available to it. Moreover, as far as fifth and thirteenth applicants are concerned, this argument would appear to contradict the formal decision of the domestic authorities to grant them the status of aggrieved parties.
84. Given that the Government did not submit specific evidence – in particular any reasoned domestic decision – to rebut the applicants’ account that they had been displaced from their homes and that their homes had been damaged in the course of the events of 7 to 10 September 2002, the Court considers that all the applicants, except the sixteenth, can claim to be victims of the violations of the Convention alleged by them.
85. As far as the sixteenth applicant is concerned, the Court notes that she has not submitted any evidence (beyond the applicants’ own assertion) to show that she was affected by the events in issue in the present application. She was granted no formal status at the domestic level and her name was not mentioned either in the Romani Zbora NGO’s complaint of 27 February 2005 (see paragraph 36 above) or in the lawyer’s complaints concerning the failure to recognise some of the other applicants as aggrieved parties (see paragraph 50 above). Therefore, the sixteenth applicant has not laid out an arguable case that she is a victim of the alleged violations of the Convention.
86. Therefore the Court, upholding the Government’s objection, considers that the application has to be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention, in so far as it concerns the sixteenth applicant.
87. Accordingly, in the following discussion, unless otherwise specified, the first to fifteenth and eighteenth to nineteenth applicants are collectively referred to as “the applicants”.
C. Question of an abuse of the right of individual application
88. The Government did not consider the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009, which the applicants had submitted (see paragraph 44 above), to be genuine. In particular it did not bear the appropriate police letterhead, did not bear the appropriate stamp, and was in Russian (even though normally it should have been in Ukrainian), and no record of it having been sent could be found in the district police department’s register of outgoing correspondence. The letter, therefore, appeared to have been forged. The Government accordingly invited the Court to consider the production of that letter to constitute abuse of the right of application and to reject the application on that ground.
89. The applicants insisted that the letter of 13 July 2009 was genuine. The fact that it was in Russian was not unusual since that language was widely used in the region. It bore a letterhead and a stamp. They provided a written statement from their representative Mr Stoyanov confirming that the letter was genuine. According to him, he had also visited Ivanivka police station on 7 November 2016 and the registrar there had confirmed to him that the 2009 letter had indeed been sent. The applicants also provided a new letter dated 21 October 2016 and signed by the deputy head of the investigation department at Ivanivka police station and confirming, in essence, that the 2009 letter was genuine.
90. As to the letter of 21 October 2016, the Government submitted that the police were investigating the circumstances under which it had been issued. Moreover, the grounds for the issuance of this letter were doubtful since the police department’s register of outgoing correspondence had been stored for five years and then destroyed in 2014, so it was impossible to verify whether the letter of 13 July 2009 had been issued.
91. On the basis of the material in its possession, the Court is unable to conclude that the letter of 13 July 2009 was forged and that the applicants committed an abuse. In fact, the key objection to its genuineness raised by the Government – namely that it could not be found in the police department’s register of outgoing correspondence – appears to contradict the Government’s own submission that that register had been destroyed in 2014 before this application was communicated (compare paragraphs 88 and 90 above). Moreover, the issuance of that 2009 letter was reconfirmed by the police as recently as 21 October 2016, after the Government had submitted their observations. Accordingly, this objection must be rejected.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
92. The applicants complained under Article 3 of the Convention that the attack on their houses and their destruction had amounted to inhuman and degrading treatment, for which the State was responsible on the grounds that the authorities had been complicit in the attack and had failed to protect them from it and to investigate it effectively. They furthermore argued that the State was responsible for the degrading living conditions that they had experienced following their displacement. In addition, they complained that on account of the above they had suffered discrimination owing to their Roma ethnic origin, contrary to Article 14, taken in conjunction with Article 3.
93. The invoked provisions read:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
94. In examining the above complaints the Court finds it appropriate to distinguish between two groups of applicants:
Group I applicants – applicants who were present in the village in the run-up to the attack of the night of 9-10 September 2002 and had to flee their homes in the village under the threat of that attack – namely, the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants;
Group II applicants – the applicants who, by their own admission, were away from their homes at the time of the events in question (see the Appendix for references to the relevant statements), and so had no knowledge of the imminent attack, having only learned about the damage done to them afterwards – namely the first, fourth, fifth, tenth and twelfth applicants.
(a) Exhaustion of domestic remedies
95. In the Government’s opinion, the applicants should have realised that the criminal investigation was incapable of establishing with sufficient clarity any given person’s criminal responsibility for violence committed by a mob. Instead, a claim for damages against the local council or the police department was the only effective remedy available to them. In fact, the applicants had lodged a claim for damages against the council on 23 December 2005 seeking damages in respect of their expulsion (see paragraph 46 above). By using this remedy they had forfeited the right to assert that it had not been effective. However, they had then failed to appeal against the first-instance court’s decision dismissing their claim (see paragraph 47 above). They had also failed to lodge an administrative claim for damages against the police. The Government provided examples of the domestic courts’ case-law according to which such claims for damages could be considered effective.
96. The Government also pointed out that the applicants had failed to challenge before a more senior prosecutor the decisions to suspend criminal proceedings.
97. The applicants pointed out that the Court had found violations of the Convention where States had failed to conduct an effective criminal investigation into mob violence (see Ouranio Toxo and Others v. Greece, no. 74989/01, § 43, ECHR 2005 ‑ X (extracts); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 124, 3 May 2007; and Identoba and Others v. Georgia, no. 73235/12, §§ 75-78, 12 May 2015). For them, this was a clear indication that they could have expected an effective criminal investigation into the attack. They had sought to initiate such a criminal investigation and had thus complied with the requirement to exhaust domestic remedies. It had only been after it had become clear that the investigation was ineffective that they had applied to the Court.
98. The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania, [GC], nos. 10865/09 and 2 others, §§ 120-127, ECHR 2014 (extracts).
99. In response to the Government’s submission that the applicants had to lodge civil claims for damages, the Court observes that, in fact, a criminal investigation was initiated in connection with the attack on the applicants’ houses, and the applicants played an active role in it (see paragraphs 30 ‑ 44 above and 109 below). Accordingly, the applicants made use of a domestic remedy which, according to the Court’s case-law, constitutes an effective domestic remedy for such complaints (see, for example, M.C. and A.C. v. Romania, no. 12060/12, § 61, 12 April 2016). Since the investigation concerned the attack in general, its outcome was important for all applicants, regardless of whether or not they had been granted formal status in the domestic proceedings (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 120-22, ECHR 2007 ‑ IV).
100. As to the Government’s argument that the applicants could have appealed to a more senior prosecutor against the decision to suspend the investigation, the Court notes that the applicants’ representatives did in fact raise arguments before the Prosecutor General questioning the validity of the suspension – namely the failure to identify the perpetrators; and the regional prosecutor’s office examined that complaint on the merits, having left in force the decision to suspend the investigation (see paragraphs 38 and 39 above). Given that the applicants did not have access to the case file (see paragraph 43 above), the Court is not convinced that they could have presented more detailed arguments in this respect (compare Betayev and Betayeva v. Russia, no. 37315/03, § 89, 29 May 2008).
101. In the light of the foregoing, the Court considers that the application cannot be rejected for failure to exhaust domestic remedies. The Government’s objection must therefore be dismissed.
(b) Compliance with the six-month rule
102. The Government submitted that the applicants’ complaints had been lodged outside of the six-month period. They presented two arguments in this respect.
103. Firstly, the Government argued that the criminal proceedings instituted in respect of the attack had been definitively suspended on 5 April 2006; this decision had been notified to the applicants on 25 September 2008 at the latest, and the investigation had remained dormant ever since. The Government did not consider as genuine the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009 (see paragraphs 44 and 91 above). Moreover, in the applicants’ claim lodged in 2007 with the administrative court the applicants had stated that they already considered the investigation to be ineffective. Thus, the applicants must have realised at the very latest by 25 September 2008 that the criminal investigation was ineffective and should then have applied to the Court. However, the applicants had actually applied to the Court more than six months after that date.
104. Secondly, the Government also argued that the village council’s decision concerning the expulsion of the Roma from the village had been quashed with effect from 21 April 2003, when the domestic court’s judgment of 21 March 2003 (see paragraph 45 above) had become final and enforceable. Accordingly, the council’s decisions “could not serve as the basis for any actions” as of the former date. The applicants had lodged their application more than six years after that date.
105. Referring to the Court’s judgment in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 137, ECHR 2015), the applicants submitted that the requirement for applicants to display due diligence in pursuing their claims was less pressing in cases concerning loss of property than in cases concerning violent loss of life, given that in the former the evidence was less likely to deteriorate over time. They referred to their arguments concerning the letter of 13 July 2009, which indicated that the investigation had been restarted in 2009 (see paragraphs 44 and 89 above).
106. The relevant principles of the Court’s case-law concerning the six-month rule period are set out in Mocanu and Others (cited above, §§ 259 ‑ 66). In accordance with those principles in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (ibid., § 263). That obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, applicants must contact the domestic authorities promptly concerning progress in the investigation in question – which implies the need to complain to them in a diligent manner, since any delay risks compromising the effectiveness of the investigation; on the other hand, they must lodge their application with the Court promptly as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264).
107. The Court agrees with the Government that had the applicants complained about the village council’s resolution of 9 September 2002 as such, it would have had to hold that such a complaint had been lodged outside the six-month period. The Court considers, however, that the applicants referred to the village council’s resolution as mere evidence of the authorities’ implication in the attack on their homes which was the subject of the subsequent criminal investigation.
108. As far as the criminal investigation and the applicants’ compliance with the obligation of diligence in that respect are concerned, the Court notes that the applicants’ compliance with the first aspect of that obligation is not contested (see paragraph 95 above).
109. As to the second aspect (see paragraph 106 in fine above), the Court notes that throughout the investigation the applicants maintained regular contact with the authorities, displaying active interest in the proceedings (compare M.C. and A.C. v. Romania, cited above, § 78; also contrast Narin v. Turkey, no. 18907/02, § 46, 15 December 2009, and Frandeş v. Romania (dec.), no. 35802/05, § 21, 17 May 2011). The suspension of proceedings was neither triggered nor influenced in any manner by the applicants’ activity or lack thereof (see M.C. and A.C. v. Romania, cited above, § 75).
110. Following its initial suspension in 2003, the criminal investigation was briefly renewed in 2006 (see paragraphs 35 and 41 above). Moreover, the applicants were assured that measures to identify the perpetrators were ongoing even in the period during which the formal investigation was suspended (see paragraph 37 above). Given the secrecy which characterised this stage of the proceedings, it was reasonable for the applicants to put their trust in such assurances (ibid., § 77; see also paragraph 56 above). Finally, on 13 July 2009 – that is to say less than six month before this application was lodged with the Court – the applicants were informed that the investigation had again been renewed (see paragraph 44 above). As the Court found above, it has no sufficient grounds to doubt that the letter in question is genuine (see paragraph 91 above).
111. Under such circumstances the Court cannot fault the applicants for having put their trust in the system (ibid., § 77), giving the authorities the benefit of the doubt and awaiting further progress before applying to the Court, so long as there was a realistic possibility, on the basis of the information the applicants were receiving from the authorities, that the investigative measures could be advancing (compare Mocanu and Others, cited above, § 280).
112. In the light of the foregoing, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed.
(c) Conclusion as to admissibility
113. The Court accordingly concludes that the complaints of the Group I applicants under Article 3 of the Convention (taken both alone and in conjunction with Article 14 of the Convention) are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring them inadmissible have been established. They must therefore be declared admissible.
114. The applicants maintained that there had been a violation of Article 3 on account of the authorities’ acquiescence in the attack (most notably on the part of the village council and of the police), their failure to prevent and effectively investigate it, and the applicants’ degrading post ‑ displacement living conditions.
115. The applicants submitted that the village council’s resolution had constituted incitement to violence. In this respect they referred to Ouranio Toxo and Others (cited above, § 42). The applicants may not have feared for their lives upon returning to inspect their properties but it would be unreasonable to expect them to continue living in a place where the only protection they could expect was advance warning to flee. The fact that most of the applicants had not witnessed the attack on their homes did not preclude the applicability of Article 3, since – according to the Court’s judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 249-64, ECHR 2011) – Article 3 could be engaged in the event that members of a particularly vulnerable group were made homeless in aggravated circumstances.
116. The Government submitted that the threshold of severity required to bring Article 3 into play had not been reached. Relying, in particular, on the Court’s judgments in Selçuk and Asker v. Turkey (24 April 1998, § 77, Reports of Judgments and Decisions 1998 ‑ II), and Ayder and Others v. Turkey (no. 23656/94, § 109, 8 January 2004), they argued that according to the Court’s case-law two factors were decisive for the triggering of the application of Article 3 in respect of the destruction of a home, namely (i) the factor of surprise and (ii) the applicant personally observing the destruction of his or her home. Neither of those had been present in the instant case since the Roma (i) had been warned by the village mayor and the police of the possibility of a pogrom, and (ii) had left; moreover, none of them had observed the attack. This also applied to the ninth applicant, who had not mentioned in her early statements that she had personally witnessed the attack (see paragraph 18 above).
117. There was no evidence that the authorities had instigated, the less so carried out, the destruction of the applicants’ property. On the contrary, the village mayor and police officers had warned the applicants of the possible pogrom and had asked them to leave their houses. Apparently there had been some police officers present during the “pogrom”, but there was no evidence that they instigated the violence, let alone participated in it. It appears that the police first contained the mob and then, when it became feasible, dispersed it. The local council’s decision regarding expulsion was quickly quashed. In short, there was no evidence that expulsion of the applicants had been part of State policy (see also paragraph 154 below).
118. Neither was there evidence that the applicants’ houses had been burned, which had been a factor in finding a violation in the cases of Selçuk and Asker and Ayder (both cited above) and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005 ‑ VII (extracts)). Only the home of the first applicant had burned down and there was no conclusive evidence that this had been due to arson rather than to an accident (see paragraph 12 above). The other homes were damaged but not destroyed, as evidenced by the fact that the applicants and other Roma residents had been able to visit their homes and to sell them afterwards. The applicants had not provided evidence concerning either the exact extent of damage to their homes or of the allegedly harsh living conditions they had experienced following their displacement.
(i) Relevant general principles
(α) Attribution of responsibility
119. A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties (see, for example, V.K. v. Russia, no. 68059/13, § 174, 7 March 2017). However, a State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Moldovan and Others, cited above, § 94). The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may also engage that State’s responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, § 81, ECHR 2001 ‑ IV).
120. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the ill ‑ treatment was inflicted, together with the intention or motivation behind it, although the absence of any intention to humiliate or debase the victim cannot conclusively rule out the finding of a violation of Article 3. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual ‑ showing a lack of respect for or diminishing his or her human dignity – or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Bouyid v. Belgium ([GC], no. 23380/09, §§ 86 and 87, ECHR 2015, with further references therein).
121. It should also be emphasised that Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering (see R.B. v. Hungary, no. 64602/12, § 45, 12 April 2016). The Court has thus held that a mere threat of torture can constitute inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 108, ECHR 2010). The Court has reached the same conclusion in respect of a fear of future assaults where there had already been a history of domestic violence (see Eremia v. the Republic of Moldova, no. 3564/11, § 54, 28 May 2013). The Court also found Article 3 to be applicable in a case where armed and masked police officers had entered the applicants’ home (where an infant had been present), pointed guns at the applicants and shouted death threats (see Hristovi v. Bulgaria, no. 42697/05, § 80, 11 October 2011).
In East African Asians v. United Kingdom (Commission’s report of 14 December 1973, Decisions and Reports 78-A, p. 62, § 207) the European Commission on Human Rights considered the meaning of degrading treatment under Article 3 of the Convention and stated that “treatment of an individual may be said to be “degrading” in the sense of Article 3 “if it grossly humiliates him before others or drives him to act against his will or conscience” (paragraph 195 of the Commission’s opinion). It further held that “... discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention. ...[P]ublicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity...” ( ibid ., paragraph 207).
122. Not every form of threatening behaviour, however, even if it involves a large group of individuals, will bring Article 3 into play (see, for example, Karaahmed v. Bulgaria, no. 30587/13, §§ 74-77, 24 February 2015, which involved mostly verbal intimidation of Muslim worshippers by a crowd of protesters), even though where threats reach a certain level of seriousness and target victims as members of a particular ethnic or racial group, they may bring Article 8 into play (see Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017, where the applicants, Roma residents of a village, were in their houses and had to observe a threatening demonstration, which involved anti-Roma speeches and the throwing of objects at their houses, and which was overseen and contained but not dispersed by the police).
123. The Court has further held that in the event of threatening actions on the part of third parties, a significant police presence protecting the applicants has a role in attenuating its effect so as to make Article 3 inapplicable while Article 8 was still engaged (see R.B. v. Hungary, cited above, §§ 51 and 52). By contrast, in Identoba and Others (cited above, § 70), the Court, in categorising the treatment suffered by the applicants at the hands of private protestors as falling within the ambit of Article 3, found relevant the inadequacy of police protection provided to the applicants. In a different context, the Court, in finding the treatment suffered by applicants to be contrary to Article 3 and even to constitute torture, found it relevant that they had been detained in a place where there had been no rule of law (“ zone de non-droit ”) and the most elementary guarantees of rights had been suspended and where, therefore, they had had no protection from abuse (see Azzolina and Others v. Italy (nos. 28923/09 and 67599/10, §§ 134 and 137, 26 October 2017).
124. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge (see O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)).
125. Furthermore, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill ‑ treatment, even if such treatment has been inflicted by private individuals (see T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 38, 28 January 2014).
126. An investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or for use as the basis of their decisions. They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 183 and 184, ECHR 2012, with further reference therein).
127. Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. Whatever mode is employed, the authorities must act of their own motion. In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances. Although this is not an obligation of results to be achieved but of means to be employed, any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness (see Bouyid, cited above, §§ 118-20).
128. When investigating violent incidents such as acts of ill ‑ treatment, State authorities have a duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events at hand. Proving racial motivation will admittedly often be difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially motivated violence (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII). Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Identoba and Others, cited above, § 67).
(ii) Application of the above-mentioned principles to the present case
(α) Substantive aspect of Article 3, taken in conjunction with Article 14
129. The Court considers it necessary, at this juncture, to (i) comment on the motives behind the attack on the applicants’ homes and (ii) to assess the authorities’ role in the applicants’ displacement.
130. As to the former matter, it is sufficient for the Court to note that it has never been substantively in dispute either domestically or before this Court that the attack on the applicants’ houses was motivated by anti-Roma sentiment among the villagers. Admittedly, the mob appears to have been motivated in part by desire for revenge against the families of those involved in the murder which had triggered the events (compare Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 68, 20 September 2012, where Roma houses were burned in an attack allegedly targeting houses of drug dealers).
131. As to the role of the authorities in respect of the attack, it appears that not only local police in the village but also police at the district level knew about the pogrom being prepared sufficiently ahead of time to call Roma residents to a meeting and to warn them to leave (see paragraph 29 above). That being so, there is no information as to why they did not intervene to protect the applicants’ homes. In particular, it has not been argued in any of the domestic decisions that the violence erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit police intervention and merely attempt to minimise the damage by advising the applicants to flee (contrast Király and Dömötör, cited above, §§ 63-69, and P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, §§ 40-47, 23 November 2010).
132. The case-file material shows that State agents explicitly urged the applicants to leave the village because they were either unwilling or considered themselves unable to protect them from mob violence. The Court also considers it established that police officers were present at the ransacking of the applicants’ houses but made no intervention worthy of note. This presence, coupled with the decision of the village council of 9 September 2002 appearing to endorse the expulsion of “socially dangerous individuals” from the village (see paragraph 11 above), created the appearance of official approval for the attackers’ actions.
133. While it is a positive fact that the council’s decision was quashed several months later (see paragraph 45 above), this is immaterial for the assessment of the gravity of the attack and its impact on the applicants at the time that it occurred and in its immediate aftermath. Also, while the council’s decision of 9 September 2002 did not refer to the ethnicity of individuals to be expelled, there could be no doubt, given the context and its previous decision of 8 September 2002, that Roma residents were targeted by it.
134. Therefore, the applicants who had been warned about the attack were put in a situation where they had to conclude that, because of their family relations and their ethnicity, they could not count on the protection of the law in the place where they had lived in regular accommodation for a substantial period of time (see the Appendix). The decision to leave their homes before the attack was thus not a result of the exercise of their free will but their way of protecting their physical integrity. Their feelings of fear, anguish, helplessness and inferiority were further exacerbated by understanding that their homes would likely be plundered, but that they were unable to protect them without putting their lives at risk. All in all, it grossly diminished their dignity. The Court concludes that the role of the police, which chose not to protect the applicants but advise them to leave before the “pogrom” (see paragraph 12 above) – and the fact that those events involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma (that is to say members of a vulnerable group) – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as “degrading” treatment. This assessment renders it unnecessary for the Court to resolve the dispute between the parties as to whether the ninth applicant was at home at the time of the attack and had to confront the attackers (see paragraph 18 above).
135. The Court, accordingly, does not agree with the Government’s assessment (see paragraph 118 above) that for Article 3 to be found applicable within the context of damage to property it is essential for the applicants to have watched his or her house being destroyed. The relevance of the presence or absence of any given circumstance should not be taken in isolation but should rather be seen in the context of all the circumstances of the case (see, mutatis mutandis, Gäfgen, cited above, § 88). In view of the above findings, the Court does not find this factor decisive in the present case.
136. As follows from the above discussion, the Court considers it established that:
(i) the attack on the applicants’ homes was motivated by anti-Roma sentiment;
(ii) the police failed to take any measures to protect the applicants’ homes from the attack and no objective reason was given for their inaction;
(iii) the village council’s resolution and in particular the police presence and passivity at the scene of the attack created an appearance of official endorsement for the attack; and
(iv) the attack constituted degrading treatment, in particular on account of the attitude of the authorities.
137. There has, accordingly, been a violation of the substantive aspect of Article 3, taken together with Article 14 of the Convention, in respect of the Group I applicants.
(β) Procedural aspect of Article 3, taken in conjunction with Article 14
138. The Court notes that the domestic investigation into the attack was characterised by a number of serious omissions.
139. To start with, the Court notes that there was abundant evidence before the investigating authorities that the local authorities, including the local police, knew that the attack was being prepared, did not take any steps to prevent it and stood by as it unfolded, apparently limiting themselves to avoiding human casualties (see, for example, the police officers’ statements in paragraph 31 above). However, no steps whatsoever were apparently taken to investigate this aspect of the case. To cite but one example, the offence which was being investigated, hooliganism (that is unmotivated violence), did not appear to cover any involvement of the State actors in the events, although there were other provisions in the Criminal Code of Ukraine which could have constituted a more appropriate ground for launching a criminal investigation into the events (see, for example, Articles 365 and 367 of the Criminal Code, paragraph 52 above, and compare Identoba and Others, cited above, § 76).
140. Moreover, despite the presence of abundant information indicating that the local police and the mayor knew about the attack being prepared (see, for example, paragraphs 13 and 29 above), no effort was made to clarify how much and when they knew, what the source of their information was, whether they knew any organisers of the attack, whether they were in contact with them, and why they limited their role to warning the applicants to leave rather than taking any steps to avert the attack.
141. The Court also notes that the local police, who clearly played a role in the events being investigated, took an active part in the investigation itself. Thus, the district police played an active role in the examination of the damaged houses and collecting statements in the early stage of the investigation (see paragraphs 23 and 26 above) and then had formal control over the investigation after its active phase was over and it had been suspended (see paragraph 41 above). It is true that the person in charge of the key, active part of the investigation was a senior investigator of the regional police. However, that investigator was assisted by a team which included officers from the local police (see paragraph 24 above).
142. Circumscribing the investigation in such a fashion and the failure to explore such a clearly required line of inquiry – apparently without reasonable justification – indicates not only inadequacy and lack of thoroughness in the investigation (compare Identoba and Others, cited above, § 75) but also a lack of independence (see, mutatis mutandis, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 222, 14 April 2015).
143. Even leaving aside the role of the authorities in the events, the steps taken to identify perpetrators who were private individuals were also insufficient. Of three individuals specifically identified as instigators of the pogrom – O.M., P.M. and I.D. (see paragraph 36 above) – apparently only two – O.M. and P.M. – were questioned. According to the summary of their statements provided by the Government, they denied any personal involvement in the attacks on the Roma houses. However, there is no indication as to whether they were questioned about their alleged role in the instigation of the attacks. Moreover, it appears that while witnesses uniformly denied that they had personally taken part in the attack on Roma houses, it appears that no witnesses – not even O.M. and P.M. – were questioned as to whether they knew any of the attackers. This is particularly striking in the case of the police officers who were present on the scene and who personally observed the attack and the attackers (see paragraph 31 above).
144. Lastly, despite clear evidence to the effect that the attack targeted members of a specific ethnic group, it was investigated as an ordinary disturbance, and the relevant provision of the Criminal Code – which is specifically aimed at supressing violence based on racial and other prejudice (Article 161 of the Code, paragraph 52 above) – was never invoked. Even considering the hooliganism offence, the only one invoked by the authorities, no attention was apparently given to anti-Roma prejudice as a possible aggravating circumstance (see Article 67 of the Criminal Code, at paragraph 52 above). In short, there is no evidence that the authorities have conducted any investigation into anti-Roma prejudice as a likely motive of the crime (compare Fedorchenko and Lozenko, cited above, § 69).
145. The above findings in this particular case should also be seen against the background of international reports describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine (see paragraphs 59-62 above; see also Fedorchenko and Lozenko, cited above – in particular §§ 33 and 68).
146. The above-mentioned considerations are sufficient for the Court to find that the investigation into the incident cannot be considered as having been effective.
147. There has, accordingly, been a violation of the procedural aspect of Article 3, taken in conjunction with Article 14, in respect of the Group I applicants.
148. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the Group I applicants’ complaints under Article 3 of the Convention, either taken alone or in conjunction with Article 14, because those aspects are subsumed by the already examined complaints under those provisions.
149. The Group II applicants (see paragraph 94 above and the Appendix) were, by their own admission, away from their homes at the time of the events in question and so had no knowledge of the imminent attack and were not prompted to flee their homes, having only learned about the damage done to them afterwards (see, mutatis mutandis, Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 152, 28 February 2012). Having regard to its analysis and conclusions above concerning the Group I applicants, the Court finds that the situation of the Group II applicants does not fall within the ambit of Article 3 and can be sufficiently addressed under Article 8 of the Convention (see below).
150. It follows that the first, fourth, fifth, tenth and twelfth applicants’ complaints under Article 3, taken alone or in conjunction with Article 14, are incompatible with the Convention ratione materiae and should be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
151. Under Article 8 of the Convention the applicants (both Groups I and II) complained that the respondent State had been responsible for the attack on their homes, had failed to protect them from it and to investigate it effectively and that the State was responsible for the inadequate living conditions that they had experienced following their displacement. They also complained that on account of the above they had suffered discrimination owning to their Roma origin, contrary to Article 14, taken in conjunction with Article 8.
152. Article 8 of the Convention reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
153. On the basis of the same arguments as those presented in respect of the Article 3 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103 and 104 above). The applicants disagreed.
154. The Government furthermore submitted that there was no evidence that the removal of the Roma from the village had been part of the State’s policy. In particular, the village council’s resolution had been adopted under pressure from the mob and had then immediately been challenged by the prosecutor and quashed, so it had in no way reflected State policy. There was no evidence of any threat to the Roma in the village after 9 September 2002, even though a certain resentment towards them might still remain. Many of them had been able to safely return and reside in their houses until they had sold them. They had not provided sufficient proof that they had sold their houses for less than their market price or that the proceeds had been insufficient to obtain new housing elsewhere. The Government considered this factor, together with the fact that they had been able to sell and move, decisive in the assessment of the applicants’ Article 8 complaint. In this respect they compared the Court’s findings in (i) Fadeyeva v. Russia (no. 55723/00, § 121, ECHR 2005 ‑ IV) (where the applicant was unable to move and this was a factor in finding of a violation) and (ii) Hatton and Others v. the United Kingdom ([GC], no. 36022/97, § 127, ECHR 2003 ‑ VIII) (where the house prices in the applicants’ area and, accordingly, their ability to move, were not affected by aircraft noise). In the Government’s opinion, that case-law was relevant because the applicants in the present case had essentially exercised their right to relocate from an environment (in the village) that they had found oppressive. Furthermore, there was no evidence that the applicants’ living conditions had deteriorated after they had moved from the village, and nor had they sought any help in improving them.
155. Accordingly, the Government considered that the applicants’ complaint was manifestly ill-founded and, alternatively, that there had been no violation of the provisions invoked by the applicants.
156. The applicants considered that the fact that the village council resolution had been adopted under the pressure of the mob did not rule out State responsibility. They cited in this respect the case of Sampanis and Others v. Greece (no. 32526/05, §§ 82-83, 5 June 2008), where non-Roma parents’ violent opposition to the enrolment of Roma children in school did not dispense the State of the responsibility to ensure equal study conditions for those children.
157. The fact that some of the applicants had been reduced to living in their destroyed homes while they worked out what to do in no way diminished the fact that they should not have been expected to remain in their homes in such conditions. The comparison made by the Government between the applicants’ situation and a mere decline in house prices showed a continuing failure to grasp the seriousness of the trauma they had suffered.
158. Above, the Court has examined and dismissed the Government’s objections related to the exhaustion of domestic remedies and compliance with the six-month rule. It considers that those objections should likewise be dismissed as far as they relate to the applicants’ complaints under Article 8, taken alone and in conjunction with Article 14.
159. Moreover, contrary to the Government’s submissions, the above-mentioned complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.
(a) Relevant general principles
160. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91).
161. Furthermore, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Moldovan and Others, cited above, § 96, which cites Osman v. the United Kingdom, judgment of 28 October 1998, § 128 Reports 1998-VIII).
162. Whether a case be analysed in terms of (i) a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or (ii) an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, § 41, Series A no. 172).
163. The Court has dealt with cases of harassment motivated by racism which involved no physical violence. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicants’ rights had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention (see Király and Dömötör, cited above, § 72).
(b) Application of the above-mentioned principles to the present case
164. The Court has found it established that there were grave failures on the part of the domestic authorities to protect the Group I applicants from the attack on their homes, which led it to find a violation of Article 3, taken in conjunction with Article 14 of the Convention.
165. The same conclusions are also valid for the Group II applicants because the only difference between them and the former group was that they were absent from the village at the time of events of 7-10 September 2002 and only returned to the village later to find their homes damaged. That factor was decisive for the Court in finding that the level of seriousness needed to bring Article 3 into play was not reached in respect of those applicants. However, that does not prevent Article 8 from being engaged (see Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006 ‑ X).
166. The Court finds it established that the homes of all applicants other than the sixteenth were targeted in the attack (see paragraph 84 above) and they suffered displacement from their homes as a result.
167. The Court is not convinced by the Government’s argument that the attack only led to the applicants being displaced for a brief period of time since they were able to return to the village afterwards and later freely chose to sell their houses and move. It acknowledges that in the present case, unlike in the case of Moldovan and Others (cited above, §§ 22, 25 and 26), there are no particular facts showing that the applicants were actively prevented from returning to the village. In fact, the applicants appear to implicitly admit that some of them were in fact able to return and live in their houses until they sold them. At the same time, the Court finds that it would have been unreasonable to expect the applicants to permanently live in damaged houses in a locality where the authorities had clearly communicated to them that they would have no protection against mob violence – particularly in circumstances where no investigation has been conducted and no person has been held responsible for the attack.
168. There can be no doubt, therefore, that the damage caused to the applicants’ houses constituted grave and unjustified interferences with the applicants’ right to respect for their private and family life and home.
169. The Court reiterates its findings above concerning:
(i) the lack of any objective reason for the authorities’ failure to protect the applicants;
(ii) the authorities’ role in the attack;
(iii) the absence of an effective domestic investigation; and
(iv) the general background of prejudice against Roma in Ukraine at the material time – in particular that manifested by certain law enforcement officers (see paragraphs 59-62 above).
170. Those considerations are sufficient for the Court to find that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the role the authorities played prior to and in the course of the attack on the applicants’ homes and their failure to conduct an effective investigation into the attack.
171. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the applicants’ complaints under the aforementioned provisions of the Convention because those aspects are subsumed by the already examined complaints under those provisions.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUCTION WITH ARTICLE 14
172. The applicants (both Groups I and II) complained of a violation of Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention on account of the damage done to their houses and the destruction of their household items. Article 1 of Protocol No. 1 reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
173. On the basis of the same arguments as those presented in respect of the Article 3 and 8 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103, 104 and 153 above). The applicants disagreed.
174. The Government also submitted that the applicants had failed to substantiate their arguments. In this context they referred to the Court’s decision in Lisnyy and Others v. Ukraine and Russia ((dec.), nos. 5355/15, 44913/15 and 50853/15, 5 July 2016). The Government argued that the applicants’ explanation that they had supposedly lost their title documents owing to the attack on their homes was not convincing since (i) the applicants had been warned ahead of time of the attack, (ii) some houses had been sold (so it follows that the owners did have the relevant title documents), (iii) copies of title documents could be obtained from State registries and archives, and (iv) in their civil claims lodged in the criminal case some applicants claimed very specific amounts (suggesting that they must have had some documents on which to base those claims). Accordingly, the Government considered that the applicants’ complaint under Article 1 of Protocol No. 1 was manifestly ill-founded.
175. The applicants disagreed with the Government concerning the degree of damage to their homes, relying on photographs that they provided (see paragraph 15 above) and their own statements. They considered a comparison with the Lisnyy and Others case misguided since, unlike in that case, the very fact that their homes had been damaged was not in dispute; it was only the extent of that damage that was in dispute. Moreover, they belonged to a particularly vulnerable group by virtue of their Roma ethnicity and being in a situation tantamount to that of internally displaced persons. Referring in particular to the statements of the thirteenth and sixteenth applicants (see paragraph 14 above), they stated that only “some” of them had sold their houses for “a small amount of money”. They considered that it was for the Government to search the registers and archives for proof of the applicants’ ownership. They furthermore considered the Government’s conclusion (that their complaint was manifestly ill-founded for lack of proof) to have been based on racist stereotypes about the Roma as being rootless.
176. The Court notes that the Government also raised objections as to the applicants’ failure to exhaust domestic remedies and to comply with the six-month rule. However, it does not consider it necessary to examine these objections, given that this part of the application is, in any event, inadmissible for the following reasons.
177. The Court notes that the applicants have failed to provide any evidence in support of their claims (see Lisnyy and Others (dec.), cited above, §§ 28-32, and contrast Kerimova and Others v. Russia, nos. 17170/04 and 5 others, §§ 292-93, 3 May 2011). The applicants have not refuted the Government’s submission, supported by statements by some of the applicants made in the domestic proceedings (see paragraph 14 above), that the former Roma residents of Petrivka were able to sell their homes in that village after the attack, strongly suggesting that they had had proof of title.
178. However, the applicants did not provide any details of those deals or any relevant documentation. Neither have they provided detailed descriptions of the property they lost, including the houses and the household items, or specified which of the applicants were the owners. They did not refer to any specific efforts by them or their representatives to obtain evidence from any public records which may remain available even if the Court is prepared to accept their assertion that their documents were lost as a result of their displacement. The latter also concerns the first applicant. It is true that it is undisputed that the house where he used to live was seriously damaged by fire (see paragraph 118 above) and so likely could not be sold. However, it remains the case that he has not provided any evidence of the title or any effort to obtain such evidence from public records, or even a detailed description of his property.
179. In such circumstances the Court considers that the applicants have failed to develop and substantiate their complaint or to provide a cogent explanation for their inability to do so. Accordingly, their complaint under Article 14, taken in conjunction with Article 1 of Protocol No. 1 is likewise unsubstantiated.
180. The Court concludes that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
181. The applicants complained that they had no effective remedy in respect of their other complaints. They relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
182. The Government contested that argument.
183. The Court, having declared inadmissible certain complaints under Article 3 and Article 1 of Protocol No. 1 (taken alone and in conjunction with Article 14, see paragraphs 150 and 180 above) concludes that there is no arguable claim for the purposes of Article 13 in respect of those complaints (see, for example, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014); therefore, the complaint under Article 13 in that part must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.
184. The remainder of the complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
185. However, in view of its findings above, the Court does not find it necessary to examine it separately because it is subsumed by the already examined complaints under Articles 3 and 8 of the Convention (see, mutatis mutandis, Sergey Savenko v. Ukraine, no. 59731/09, § 48, 24 October 2013).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
186. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
187. The first three, the fifth to fifteenth, the eighteenth and nineteenth applicants claimed 85,984.52 euros (EUR) each in respect of non-pecuniary damage. Their claims in respect of pecuniary damage are set out in the Appendix. The fourth applicant claimed EUR 36,684 for non-pecuniary damage but submitted no claim for pecuniary damage.
188. The Government considered that there was no causal link between the damage claimed and the violations found. In any event they considered the claims excessive.
189. In view of its findings above concerning the applicants’ complaint under Article 1 of Protocol No. 1, the Court rejects the applicants’ claim in respect of pecuniary damage. On the other hand, ruling on an equitable basis, the Court considers it reasonable to award the following amounts in respect of non-pecuniary damage:
(i) EUR 11,000 to the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants each, plus any tax that may be chargeable on those amounts; and
(ii) EUR 9,000 to the first, fourth, fifth, tenth and twelfth applicants each, plus any tax that may be chargeable on those amounts.
190. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head.
191. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to strike the application in the part pertaining to the seventeenth applicant out of its list;