London, 4 October 2012
In the latest case to add to a line of jurisprudence on police failures to investigate discriminatory abuse suffered by Roma communities, on 20 September 2012 the Chamber of the European Court of Human Rights (ECHR) delivered its judgment in the case of Fedorchenko and Lozenko v Ukraine. The case had been brought by two members of a Romani family whose house had been set on fire in an arson attack in 2001, killing five family members.
The applicants alleged that the fire had been started by a member of the police force but an internal police inquiry concluded that the accused policeman had not been involved and state prosecutors decided not to take any action. A regional court of appeal and the Supreme Court of Ukraine criticised the extent of the investigations into the attack. No individual was ever ultimately held accountable for the attack. The ECHR found that there had been inadequate investigations by the Ukrainian authorities into both the potential racial motivation for the attack and the possible involvement of a state agent, and that this violated both Article 2 and Article 14 of the European Convention on Human Rights (the Convention). It awarded damages to the applicants.
The ECHR heard the applicants’ allegations that there had been both substantive and procedural breaches of Article 2. As to the first, the applicants argued that the attack had been carried out by a state agent. As to the second, they alleged that the Ukrainian authorities had not done enough to investigate the crime, highlighting the fact that the national courts themselves had criticised the investigations. The applicants also argued that these failures had a discriminatory element and so breached the Article 14 freedom from discrimination. The applicants argued that despite evidence that the crime was racially motivated, there was no indication that the authorities had investigated this.
In response, Ukraine argued that there was no breach of Article 2 as the policeman had been found not to have been involved in the crime and the investigation had identified those believed to have carried out the attack. It also argued that the Article 14 obligation not to discriminate only applied in cases where a state agent had been involved in the crime and so, given the authorities’ findings in relation to the policeman’s lack of involvement, Article 14 was not applicable in this case.
The Court did not accept Ukraine’s assessment that Article 14 only applied in such limited circumstances and held that the state was in breach of both Articles 2 and 14. Regarding Article 2, it found that procedurally, the authorities’ investigations were unsatisfactory and it highlighted that two national courts had identified inadequacies in the investigations. In particular, the ECHR noted that measures to track down suspects had been ineffective. However, the Court held that it was not able to conclude that there had been a violation of the substantive element of Article 2 as there was insufficient evidence to conclude one way or the other as to the involvement of the policeman in the attack. In relation to Article 14, the Court ruled that the authorities had a responsibility to investigate the possibility that the crime was racially motivated, especially given that two other houses lived in by members of the Roma community had been burned down that same night and there was clear evidence of the discrimination suffered by the Roma in Ukraine. This obligation existed regardless of whether or not a state agent was implicated in the attack. The Court could find no evidence that the authorities had undertaken such an investigation, which it declared “unacceptable”. It therefore concluded that the Respondent had indeed violated Article 14 (taken together with Article 2) of the Convention.
ERT welcomes the decision although notes that it comes almost a decade after it received the complaint. The case adds to an already considerable body of cases across countries which host a Roma population in which police authorities have been found to inadequately investigate allegations of abuse by both police (e.g. Nachova and others v Bulgaria) and civilians (e.g. Angelova and Iliev v Bulgaria) against members of the Roma population.
To read the ERT case summary click here
