Fedorchenko and Lozenko v Ukraine  ECHR 1721 (20 September 2012)
In this decision, the European Court of Human Rights considered the procedural obligations of the right to life. It held that States have a duty to conduct an independent and effective investigation into all deaths, and in particular deaths associated with State agents. The Court also considered the application of article 14 in circumstances where a violent crime may have been motivated by racial or ethnic hatred or prejudice. The Court indicated that in such circumstances, the State has an obligation to investigate the role played by such motivations, and that failure to do so would be “to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.”
This decision concerned an application brought by two Ukrainian nationals of Romani origin in relation to an arson attack that resulted in the deaths of several members of their family.
The first applicant, Mr Yuriy Fedorchenko, alleged that on 28 October 2001, Police Major I of the Kryukov police department and two strangers threatened him, hit him and pushed him inside his house. He stated that they then set the house on fire, barred the door and then left. The house exploded, resulting in the deaths of five members of the applicants' family.
Fedorchenko informed the police that the fire had been caused by Major I's arson attack, which he believed was punishment for failure to pay a monthly bribe claimed by police. The Poltava Regional Police conducted an internal inquiry into the allegations and concluded that Major I had not been involved. The prosecutor rejected the applicants' request for Major I to be prosecuted.
In December 2002, the Poltava Regional Court of Appeal (acting as a court of first instance), considering charges brought against another suspect, noted a number of deficiencies in the investigation and remitted the case for further investigation. This decision was upheld by the Supreme Court of Ukraine in March 2003. However, the Kremenchug Prosecutor's Office refused to institute criminal proceedings against Major I.
The applicants claimed that the State had violated a number of rights protected by European Convention on Human Rights, including the procedural and substantive limbs of the right to life (article 2) and also the right to enjoy rights without discrimination (article 14).
The European Court of Human Rights held that the State had breached the procedural obligations under article 2 of the Convention by failing to conduct an effective investigation into the deaths of the applicants' families. The Court further found a violation of article 14, in conjunction with article 2, stating that it was unacceptable that the authorities had failed to conduct an investigation into the possible racist motives behind the attack.
The State challenged the admissibility of the applicants' complaint on the basis that they had failed to exhaust domestic remedies because they had not challenged the prosecutor's refusal in 2003 to institute proceedings against Major I. The applicants noted that their claims had been rejected twice, and emphasised their efforts to lodge complaints and appeals.
The Court noted that the State's objection was closely linked to the applicants' complaint regarding breach of the procedural obligations of article 2 (the duty to investigate). It indicated that, in the absence of other grounds of inadmissibility, the complaint must therefore be considered admissible.
Article 2 – right to life
The applicants relied on article 2 to complain that their relatives had died as a result of an arson attack with which a State agent, Major I, was directly involved, and also that the State authorities had failed to conduct a thorough and effective investigation into the circumstances of those deaths.
The applicants complained that the investigation into the attack suffered from crucial shortcomings and was ineffective.
The Court noted that article 2 imposes a duty on the State to conduct an effective official investigation in all cases of killing and other suspicious deaths, regardless of whether the suspect or perpetrator is a private person or State agent. The Court observed that an effective investigation serves to maintain public confidence in the rule of law, prevent any appearance of collusion in or tolerance of unlawful acts, and ensure accountability (where State agents are implicated).
The Court provided the following further guidance regarding the duty to investigate:
- The investigation must be independent and impartial, in law and in practice. The investigation should be conducted by persons who lack any hierarchical or institutional connection with those implicated in the events.
- 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.
- The authorities must take reasonable steps to secure all evidence. The investigation's conclusions must be based on thorough, objective and impartial analysis of all relevant elements.
- Next of kin must be involved in the investigation to the extent necessary to safeguard their legitimate interests.
The Court further observed that the requirements of article 2 go beyond the official investigation, and that where the investigation leads to the institution of proceedings, the proceedings as a whole must satisfy the requirements of article 2.
The Court noted that, in this case, the State authorities had limited the investigation to certain basic procedural steps, two higher courts had noted numerous investigative shortcomings, there was no evidence that steps were taken to find six suspects, and Major I's involvement had been the subject of an internal police investigation. The Court therefore concluded that the investigation into the applicants' relatives' deaths had not been effective.
The applicants also alleged that the State had breached its substantive obligations under article 2 because their relatives' deaths had been caused by an attack that had been organised and carried out with the participation of a State agent.
The Court emphasised that article 2 is one of the most fundamental provisions of the Convention, and that it must therefore subject complaints about deprivation of life to the most careful scrutiny. However, because there was no evidence of Major I's participation other than the applicants' statements, the Court found that it could not conclude, beyond reasonable doubt, that Major I had been involved in the arson attack. The Court therefore held that it was not possible to find that there had been a violation of the substantive obligations of article 2.
Article 14 – discrimination
The applicants argued that, despite the existence of an explicit obligation to investigate possible racist motivations in crime, there was no evidence that State authorities had examined their allegations that the arson attack had been motivated by ethnic hatred.
The Court noted that article 14 complements the other substantive provisions of the Convention, and that the State's obligation to conduct an investigation into deaths must therefore be discharged without discrimination. It observed that when investigating violent incidents, there is an additional duty to take all reasonable steps to identify any racial motive and establish whether ethnic prejudice may have played a role. The Court stated:
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.
The Court clarified that the State's obligation is to use best endeavours, and that State authorities must do what is reasonable in the circumstances of the case. It noted that three houses occupied by people of Romani origin had been set on fire on 28 October 2001, that there was widespread discrimination against Roma in Ukraine and that it could not be excluded that the decision to burn the houses had been “nourished by ethnic hatred.” The Court therefore held that it was unacceptable that there was no evidence that the authorities had investigated the possible racist motives of the attack, and that an investigation that lasted more than eleven years did not give rise to any serious action to identify or prosecute the perpetrators.
This decision provides guidance regarding the scope and application of the right to life as articulated in section 9 of the Victorian Charter of Human Rights.
In particular, and consistent with other recent decisions by international courts and tribunals, this decision indicates that under the Charter, the Victorian Government may have an obligation to conduct an effective investigation into all killings and deaths that occur in suspicious circumstances, including where public authorities are involved. It is particularly relevant to the investigation of deaths associated with police contact, which are currently investigated by the Victoria Police rather than an institutionally and hierarchically independent body.
This decision also provides guidance regarding the obligation to investigate the potential racial motivations in crime. Section 8(2) of the Charter provides that a person has the right to enjoy his or her human rights without discrimination. This decision indicates that, where a crime may have been motivated by racial or ethnic hatred or prejudice, authorities may have an obligation to investigation the role of, if any, such motivations.
The full decision is available at: http://www.bailii.org/eu/cases/ECHR/2012/1721.html.
Catie Shavin is a lawyer at Allens.