ECHR finds Ukraine guilty of discrimination and more over investigation into fatal arson attack
In the case of Fedorchenko and Lozenko v. Ukraine, the European Court of Human Rights has found Ukraine guilty of a violation of the procedural limb of Article 2 through the inadequate investigation and of the prohibition on discrimination.
Yury Fedorchenko and Zoya Lozenko lost four members of their family in a terrible arson attack on 28 October 2001.
Yury Fedorchenko has always asserted that he met Police Major I and two other men as he was leaving the house in the morning of 28 October 2001. They threatened him, hit him and pushed him into the house which they then set alight. The house exploded and he was flung outside. Other members of his family were not so lucky.
Five people died: the 21-year-old daughter of Zoya Lozenko, the applicants’ 6-year-old granddaughter, 6-year-old grandson and 3-year-old grandson, as well as the 25-year-old son of Yury Fedorchenko.
Yury Fedorchenko informed the police that the fire had been caused by an arson attackcarried out by Major I. from the Kryukov police department. He believed that it was a punishmentattack for failure to pay a monthly bribe of 200 Ukrainian hryvnias (UAH) claimed by the police. Major I. had allegedly visited the first applicant’s house before and allegedly extorted money from the applicants’ relative, Z.F., in payment for not instituting criminal proceedings against her for drug trafficking. In that connection Major I. had allegedly already been bribed with UAH 800. The first applicant also maintained that Major I. had previously threatened to set his house on fire.
The story of the inadequate investigation into this terrible crime can be found in the judgement here.
The following summarizes the key points of the Court’s Judgment (the highlighting is ours)
1. Procedural obligations under Article 2 of the Convention
39. The applicants noted that the investigation following the arson attack on the first applicant’s house suffered from a number of crucial omissions which made it ineffective. The conclusion thatMajor I. was not involved in the arson attack was reached without interviewing key eyewitnesses. According to the applicants, the first applicant was questioned by investigating officers only a month after the events in question and because he went to the investigator on his own initiative, without being summoned. The applicants also underlined that the national authorities, and in particular the Poltava Regional Court of Appeal in its decision of 11 December 2002, pointed out numerous shortcomings in the investigation and remitted the case for additional investigation. The applicants concluded that the authorities had not complied with their procedural obligation under Article 2 of the Convention.
(b) The Court’s assessment
i. General principles
41. The Court reiterates that Article 2 of the Convention imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also requires by implication that there should be an effective official investigation when individuals have been killed. …
42. The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. …
43. For an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice.
ii. Application of these principles in the present case
44. The Court notes that in the present case, despite the heinous nature of the incident, in which small children were burned alive, it appears that State authorities limited the investigation to some basic procedural steps.
45. In particular, despite the Government’s reference to a number of procedural actions performed during the investigation of the criminal case, in the absence of the case-file materials it is unclear what exactly was examined, who was questioned during the investigation and when these actions were taken. In its decision of 11 December 2002 the Poltava Regional Court of Appeal indicated numerous shortcomings of the investigation, and noted numerous procedural actions which had to be performed. That was confirmed by the Supreme Court of Ukraine. From the materials submitted by the Government it is unclear whether these recommendations had been taken into consideration and complied with by the investigation authorities.
46. The Court also notes that since 2004 none of the at least six suspects of involvement in the arson attack on the first applicant’s house and other houses on 28 October 2001 have been found, and notes that there is no evidence that anything was done to find them.
47. As for the investigation of Major I.’s possible involvement in the arson attack, the Court also notes that it appears from the available materials that the prosecutor’s office simply referred to the conclusion of the police internal investigation. Although it was stated in the decision of 16 June 2003 that “further checks had been performed” there is no evidence what exactly had been done.
49. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicants’ relatives’ deaths had not been effective. It accordingly dismisses the Government’s objection (see paragraph 37).
There has therefore been a violation of the procedural limb of Article 2 of the Convention.
With respect to the allegation that the right to life of the applicants’ relatives had been violated, …
54. The Court notes that in the present case it is undisputed that Major I. knew the applicants, had been to the first applicant’s house and had been involved in some police operations against one of the applicants’ relatives, though it appears that in doing that he had been acting outside his jurisdiction. The question to be answered is whether the applicants slandered Major I. in accusing him of involvement in the police operations, or whether Major I. had indeed been involved in the arson attack.
55. The Court first notes that there is no convincing evidence that Major I. had an alibi for the morning of 28 October 2001. For example, the time Major I. allegedly left for the markets in the morning has not been precisely established and is not corroborated by other witnesses (such as Major I.’s neighbours).
56. Further on, the first applicant stated that he had recognised Major I. among the arsonists. The applicants further suggested that several witnesses (a neighbour, Major I.’s former wife) could have seen Major I. on the morning of the tragic event near the first applicant’s house. However, the Court does not have any other evidence, except for the applicants’ statements, that Major I. had indeed participated in the events in question, as it appears that these witnesses were not questioned. Although the first applicant described the clothes which Major I. had been allegedly wearing in the morning of 28 October 2001, the investigation authorities did not check this with other possible witnesses.
57. Therefore, in the absence of other evidence, and given the above conclusion that there was no effective investigation in the present case, the Court cannot draw a conclusion beyond reasonable doubt as to whether Major I. was or was not involved in the arson attack which caused the deaths of the applicants’ relatives, and if he was, in what capacity that was.
It is not, therefore, possible to conclude that there has been a violation of the substantive limb ofArticle 2 of the Convention.
II Alleged violation of Article 14 (prohibition of discrimination)
60. The applicants noted that they had offered evidence of racist motive in the crime. In this case there exists an explicit obligation to investigate possible racist overtones in the events in question.
Despite the information available to the authorities that several houses, in which the Romani lived, had been set on fire during the same day, and the express racist statement of one of the accused, there was no evidence that the authorities had carried out any examination into allegations that there had been a crime motivated by ethnic hatred.
63. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those texts. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see Koppi v. Austria, no. 33001/03, § 25, 10 December 2009).
64. The Court further reiterates that in respect of cases of deprivation of life, States have a general obligation under Article 2 of the Convention to conduct an effective investigation including cases which involve acts of private individuals (see Muravskaya v. Ukraine, no. 249/03, §§ 41-50, 13 November 2008), and that obligation must be discharged without discrimination, as required by Article 14 of the Convention.
65. In particular, when investigating violent incidents, State authorities have the additional 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. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. …
67. In the instant case the Court has already found that the Ukrainian authorities violated Article 2 of the Convention in that they failed to conduct an effective investigation into the incident. It considers that it must examine separately under Article 14 of the Convention taken in conjunction with Article 2 of the Convention under its procedural limb the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the attack on the applicants’ relatives.
68. In this respect the Court observes that on 28 October 2001 three houses, in which lived people of Romani origin, were set on fire. The alleged motive of the arsonists was destruction of houses of drug dealers. However, any information as for whether the inhabitants of two other houses were involved in drug trafficking is absent. Moreover, given the widespread discrimination and violence against Roma in Ukraine as noted, in particular, by the report of the ECRI, it cannot be excluded that the decision to burn the houses of the alleged drug traffickers had been additionally nourished by ethnic hatred and thus it necessitated verification.
69. The Court, however, notes that there is no evidence that the authorities have conducted any investigation into the possible racist motives of this crime.
70. The Court considers it unacceptable that in such circumstances an investigation, lasting over eleven years, did not give rise to any serious action with a view to identifying or prosecuting the perpetrators.
71. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention.
THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of the procedural limb of Article 2 of the Convention;
3. Holds that there has been no violation of the substantive limb of Article 2 of the Convention;
4. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 in respect of its procedural limb;
5. Holds that there is no need to examine separately the remainder of the complaints;
(a) that the respondent State is to pay the second applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnas at the rate applicable at the date of settlement;
(b) that the respondent State is to pay to the bank account of the European Roma Rights Centre, the applicants’ representative in the proceedings before the Court, within three monthsof the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in costs and expenses plus any tax that may be chargeable to the applicants;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
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