December 19, 2018
By Tess Heirwegh, PhD researcher at the Human Rights Centre, Ghent University
This blog post will focus on the recent case of Burlya and Others v. Ukraine to highlight the negative role that local authorities may play in human rights realisation and why it is essential that the Court held them explicitly accountable for it. In this judgment of 6 November 2018, the Strasbourg Court dealt with the complaints of 19 Ukrainian nationals of Roma ethnicity following a pogrom by village residents against their houses. First, the Court held that this attack had undoubtedly been motivated by anti-Roma sentiment. Second, it stated that the applicants who had been forced to flee their homes due to this attack had suffered degrading treatment. One important factor for this finding was the local authorities’ attitude during the events, namely the appearance of their official endorsement for the attack, as well as the ineffective investigation into the crime. Therefore, the Court found a violation of both the substantive and procedural aspect of Article 3, taken in conjunction with Article 14 ECHR. Moreover, these findings were sufficient for the Court to rule that Article 8, taken in conjunction with Article 14 ECHR, had been violated as well.
The facts and national proceedings
On 7 September 2002, the murder of a 17-year-old ethnic Ukrainian took place in the village of Petrivka. This crime was allegedly committed by a Roma person after an argument between Roma and local youngsters. The next day, a group of village residents gathered and asked for the village council to expel all persons of Gypsy ethnicity from Petrivka. Subsequently, the council members met later that day. In the end, they decided to support the residents’ request. On 9 September 2018, the council met again to discuss how to bring this decision in conformity with legal norms. This time, the head of the District Administration was present and “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” (§ 11). Hereafter, the council changed the wording of its decision and asked the law-enforcement officers to expel “socially dangerous individuals, regardless of ethnic origin” (§ 11).
That evening, the mayor gathered all Roma residents to warn them that a ‘pogrom’ would start and to advise them to leave their homes. Indeed, several hundred people initiated a mob attack that night. They ransacked the applicants’ homes – one of the houses even burned down – and destroyed their belongings. Although local police officers had been present during the attack, it was argued by the applicants that they had done nothing to prevent or stop the event, but had concentrated solely on preventing human casualties.
Immediately after these events, the District Prosecutor’s office initiated criminal proceedings “against persons unknown on suspicion of disorderly conduct committed in a group” (§ 22). However, the District Prosecutor refused to open criminal proceedings against the village council’s officials “for lack of constituent elements of a crime in their actions” (§ 34). The investigations were conducted by a team involving local police officers, led by a regional police investigator. They were suspended and reopened several times before being definitively closed in 2009. During this time, in 2003, the village council’s decision to expel socially dangerous individuals was quashed by the domestic courts because “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” (§ 45). Several other claims had been lodged, but these were either rejected or no decision was made at the time of application to the European Court.
The Court’s reasoning
First, the Court made a distinction between two groups of applicants: (1) those who had been present in the village during the build-up to the attack and had to flee their homes under the threat of that attack, and (2) a smaller group of applicants who, by their own admission, had left beforehand and had only discovered the damage done to their possessions afterwards.
A violation of the substantive aspect of Article 3 taken in conjunction with Article 14 ECHR in respect of the first group
The Court started by noting that the attack on the applicants’ houses had clearly been driven by anti-Roma sentiment among the village residents. It went on to examine the role of the authorities in respect of the attack and found that both the local and district police had known about the threat of a pogrom. This is illustrated by the fact that they had the time to arrange a meeting where they warned the Roma residents to leave the village. However, the authorities did not explain or justify why the local police had taken such a passive attitude during the attacks, although being present, and why the police officers had merely tried to minimise the damage by giving the Roma a warning to flee. According to the Court, these findings taken together with the village council decision of 9 September 2002 to expel socially dangerous individuals “had created the appearance of official approval for the attackers’ action” (§ 132). Even though the domestic courts quashing this decision in 2003, several months after the events, was a positive fact in favour of the Government, the Court considered it irrelevant for the assessment of the applicants’ damage at the time of and immediately after the attack. Furthermore, even though the council decision did not refer to Roma people as such, “there could be no doubt, given the context and its previous decision of 8 September 2002, that Roma residents were targeted by it” (§ 133). Therefore, the authorities had not offered the necessary legal protection to them due to “their family relations and their ethnicity” (§ 134). Moreover, the knowledge that their homes would probably be ransacked whilst not being able to “protect them without putting their lives at risk” (§ 134) must have caused them “feelings of fear, anguish, helplessness and inferiority” which “grossly diminished their dignity” (§ 134). In addition, the Court rejected the Government’s argument that Article 3 could only be applicable in the context of damage to property if the applicants watch their houses being destroyed. The Court held that, given all the circumstances of the case, this factor had not been decisive. In the light of these findings, the Court concluded that the applicants had suffered degrading treatment due to their Roma identity. There had therefore been a violation of the substantive aspect of Article 3, taken together with Article 14, in respect of the first group of applicants.
A violation of the procedural aspect of Article 3 taken in conjunction with Article 14 ECHR in respect of the first group
While examining the domestic investigations on the attack, the Court found a number of serious omissions. First of all, no steps had been taken to investigate the local authorities’ passivity in trying to prevent the attack or limited intervention during the attack. Furthermore, despite evidence of their prior knowledge of the attack, there had been no investigation into their precise knowledge of and possible contact with the attackers and, again, a lack of preventive measures. Moreover, the investigation of the local authorities had been inadequate, not thorough, and clearly lacked independence as the local police, “who clearly played a role in the events being investigated, took an active part in the investigation itself” (§ 141). In addition, the identities of the private village residents who attacked the houses had been insufficiently investigated. Lastly, the Court emphasised that this attack had targeted members of a specific ethnic group. Many international reports had been “describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine” (§ 145). Nonetheless, it had been investigated as an “ordinary disturbance” (§ 144), despite having relevant provisions in the Criminal Code “specifically aimed at supressing violence based on racial and other prejudice” (§ 144). In the light of these findings, the Court found a violation of the procedural aspect of Article 3, taken in conjunction with Article 14 ECHR, in respect of the first group of applicants.
A violation of Article 8 in conjunction with Article 14 ECHR
Although the same conclusions could be made for the second group of applicants, the Court found that Article 3 ECHR did not apply to their situations. This was because they had not been present in the village during the build-up to the attacks and the attack itself, a decisive factor for the Court to conclude that this article was applicable to the first group. However, it noted that this did not prevent the application of Article 8 ECHR. It went on to recognise that the applicants’ homes had been targeted in the attack and, therefore, they suffered displacement. Unlike in the Court’s previous case of Moldovan and Others v. Romania (No. 2) in which it dealt with similar facts, the facts did not show that the applicants “were actively prevented from returning to the village” (§ 167). Nonetheless, 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” (§ 167). Therefore, there was no doubt that the damage suffered by the applicants had interfered with their Article 8 rights in a grave and unjustified way. The findings of the Court with regard to Article 3 ECHR were sufficient to also find a violation of Article 8, in conjunction with Article 14 ECHR.
The applicants also complained under Article 13 ECHR that they had no effective remedy. However, the Court found it unnecessary to examine these separately as they had been subsumed by the complaints under Articles 3 and 8 ECHR. Furthermore, it rejected the applicants’ claims on the basis of Article 1 of Protocol 1 ECHR as it considered their complaints unsubstantiated and, therefore, manifestly ill-founded.
Recently, human rights advocates have paid an increasing amount of attention to the city as a logical setting for human rights implementation. This development put a spotlight on local authorities as relevant duty bearers, responsible for upholding human rights obligations. In this respect, the positive role of local authorities in realising human rights has often been highlighted. A central argument on this point is, for instance, that cities hold promising potential to step in when nation states fail to respect, protect and fulfil human rights. Sometimes, this may even lead to situations of ‘decoupling’ where local authorities adopt policies contrary to the ones of higher authorities (see e.g. the city of Utrecht and its bed-bath-bread policy). Another example is the focus among human rights scholars on the rise of so-called human rights cities. In these cities, local authorities explicitly express their commitment towards international human rights (see e.g. San Francisco and its ratification of the CEDAW Convention).
However, cases such as Burlya and others show the other half of the story. Especially in the context of conflicts concerning Roma and Travellers, it has become painfully clear how local authorities in Europe can actually cause or contribute to human rights violations (see e.g. the Report on Human Rights of Roma and Travellers in Europe of the Council of Europe for numerous examples). One reason for this is that these conflicts often manifest themselves at the local level where local authorities possess the necessary competences to take decisions on these issues, thereby having considerable impact on human rights realisation. Another important factor could be that these conflicts only seldom take place in a local vacuum. Most of the time, they occur within larger societal settings of deeply rooted hostility towards Roma, which may encourage local authorities to violate human rights in this context. Moreover, the Human Rights Council has pointed out that neither local officials nor the public perceive local authorities as important actors for human rights implementation. As a consequence, “human rights remain distant as a frame of reference or analysis” (§ 26) when taking decisions, which may lead to less human rights sensitive decisions.
The pervasive role that local authorities can play in violating the rights of Roma people has become visible again during recent events in Ukraine. Due to the ongoing war between the country and Russia, nationalist groups have been on a rise. These groups have recently attacked several Roma camps, arguing that they are “cleaning” Ukraine’s cities. The attacks, and especially the inaction of the government in this regard, have been condemned by the Office of the UN High Commissioner for Human Rights. It urged both state and local authorities “to systematically and publicly condemn acts of violence committed based on […] national or ethnic origin […] or any other grounds of discrimination prohibited under international human rights standards […].” Also, in July 2018, a group of UN human rights experts urged Ukraine to “take immediate action to stop what amounts to a “systematic persecution” of the country’s Roma minority” and “deplore the absence of effective measures to protect members of the Roma minority against such actions by the Ukrainian authorities, and in particular by the national and [emphasis added by the author] local police.”
In view of this observation – namely that local authorities often violate the rights of Roma people, illustrated again by current events in Ukraine – I argue that it is of the utmost importance that the Strasbourg Court explicitly addressed the responsibility of local authorities for the emergence of human rights violations in the judgment of Burlya and Others. Whilst the national level does bear a responsibility in preventing human rights violations, this case illustrates the multi-tiered approach the Court must take by looking to the role of local authorities as well. By recognising this, the Court held the local authorities directly accountable for their actions, thus bringing more justice to the victims. Furthermore, a broader implication of this recognition is that it may contribute to the awareness among both local authorities themselves and the general public that local authorities do indeed play a crucial role in the story of human rights realization. In turn, this could lead to more human rights mainstreaming in the work of local authorities. For these reasons, I support the Court for its approach in this case and encourage it to keep addressing local authorities’ responsibilities explicitly in cases concerning Roma people as well as in other relevant cases.