Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 68
Enero
Junio
2021
Recibido: 01/07/2020 Aceptado: 01/12/2020.
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 39, Nº 68 (Enero - Junio) 2021, 136-152
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal protection of vulnerable groups
of population: practice of the European
Court of Human Rights
DOI: https://doi.org/10.46398/cuestpol.3968.07
Liliia Matvieieva *
Polina Baltadzhy **
Iuliia Shmalenko ***
Natalia Yeftieni ****
Olga Ivanchenko *****
Abstract
The relevance of the problem under study is due to the need
to monitoring the general situation to respect to human rights.
The establishment, provision and realization of human rights is
an important indicator in a state, which indicates its democracy,
sociality, as well as the fact that such a state is legal. Purpose of
the article in the study the issues of legal protection of vulnerable
categories of population in the context of formation of active
human rights policy of state aimed at increasing the capacity of socially
vulnerable groups and reducing the risks of growing social tensions
in society. The leading method for studying this problem is the legal
sociological method, which allows us to study the effectiveness of state
and legal regulation of human rights protection. The article presents an
analysis of the results of the European experience in combating intolerance
and discrimination. Its types main determined have been. Highlighted the
criteria by which discrimination is prohibited. The legal system of human
rights protection mechanisms is analyzed. The article presents scientic
categories: discrimination, hate crimes, vulnerable groups. The practical
signicance lies in the development of proposals for improving domestic
legislation.
Keywords: human rights violations; Practice of the European Court of
Human Rights; vulnerability, protection of rights; Rule of
law.
* Department of Theory and Philosophy of Law, Odessa State University of Internal Affairs, Ukraine.
ORCID ID: https://orcid.org/0000-0002-8402-5584. Email: matvieieva5514-2-8@ust-hk.com.cn
** Educational and Scientic Institute of Law and Cybersecurity, Odessa State University of Internal
Affairs, Ukraine. ORCID ID: https://orcid.org/0000-0003-2346-4230. E-mail: baltadzhy@tanu.pro
*** Department of Socio-Economic Sciences, Odessa State University of Internal Affairs, Ukraine. ORCID
ID: https://orcid.org/0000-0003-0806-7907. Email: i_shmalenko@nuos.pro
**** Department of Common Law Disciplines, National University “Odessa Maritime Academy”, Ukraine.
ORCID ID: https://orcid.org/0000-0002-1251-3407. Email: yeftieni@nuos.pro
***** Department of General Theoretical Jurisprudence, National University “Odessa Law Academy”,
Ukraine. ORCID ID: https://orcid.org/0000-0003-2676-7798. Email: oivanchenko@tanu.pro
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Protección legal de grupos de población vulnerables:
práctica del Tribunal Europeo de Derechos Humanos
Resumen
El establecimiento, la provisión y la realización de los derechos humanos
es un indicador importante en un estado, lo que muestra su democracia,
así como el hecho de que dicho Estado es legal. Objeto del artículo es
el estudio de la protección jurídica de las categorías vulnerables de la
población en el contexto de lo que signica la formación de una política
activa de derechos humanos del Estado, dirigida a aumentar la capacidad
de los grupos socialmente vulnerables y reducir los riesgos de crecientes
tensiones sociales en la sociedad. El método principal para estudiar este
problema fue el sociológico-jurídico, que permite develar la efectividad de
la regulación estatal y legal de la protección de los derechos humanos. El
artículo presenta un análisis de los resultados de la experiencia europea
en la lucha contra la intolerancia y la discriminación. Destaca los criterios
por los que se prohíbe la discriminación en el contexto del sistema legal de
mecanismos de protección de los derechos humanos. El artículo también
discute, en la teoría y en la realidad concreta, las categorías cientícas de:
discriminación, delitos de odio, grupos vulnerables. La importancia práctica
radica en el desarrollo de propuestas para mejorar la legislación nacional.
Palabras clave: violaciones a los derechos humanos; práctica
del Tribunal Europeo de Derechos Humanos;
vulnerabilidad, protección de los derechos; Estado de
derecho.
Introduction
Analysis of scientic and practical research in the eld of human rights
in Ukraine, reports of national, regional, and international human rights
organizations, reports of the Ukrainian Parliament Commissioner for
Human Rights, suggests that along with the positive results of reforming the
legal system of Ukraine, human rights violations remain systemic. A special
place in the list of such violations is occupied by vulnerable groups who are
unable to counteract effectively illegal actions or to protect and restore their
rights in case of their violation. The urgency of the problem is exacerbated
by the fact that discrimination, as a manifestation of violations of the rights
of members of certain groups (on the basis of age, health, social status,
nationality, etc.) causes global negative consequences for society and state.
Violation of the rule of law, legality, leveling of the rule of law, negative
impact on international image of the state – only a small list of political and
legal consequences of discrimination. In the current crisis, the population
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Legal protection of vulnerable groups of population: practice of the European Court of Human
Rights
of Ukraine is acutely aware of instability – in families, personal security, in
social environment, as well as in global politics. The general situation with
respect for human rights in the state is reected in numerous violations of
the rights of vulnerable groups, which should cause special attention and
concern to public authorities and human rights organizations. In practice,
very often due to stigma and marginal characteristics of vulnerable groups,
the vast majority of violations of their rights remain hidden from society. In
such circumstances, the assessment of the real scale and features of these
violations, the development of effective legal mechanisms for counteraction
are quite difcult tasks.
Vulnerability is a condition in which a person is deprived or restricted
in his/her ability to resist violent or other unlawful acts due to physical
or mental characteristics or other circumstances caused by the relevant
characteristics. Vulnerabilities can affect individuals, groups of people,
communities, organizations, society, and ecological systems. It is expressed
in the inability to withstand certain stressful situations. To one degree or
another, all people are socially vulnerable to natural disasters or man-
made disasters. The vulnerability of population increases during periods of
political instability, economic downturn, and legal uncertainty.
Traditionally, vulnerable groups include elderly, sick persons, women,
children, members of various minorities and people in temporary need of
protection. Within a separate article it is impossible to present the features
of protection of all groups, so the subject of the study is the features of
protection of the rights of a particular ethnic group, namely the Roma
population. The Roma of Ukraine belongs to a national minority that is
constantly faced with discrimination in Ukrainian society. It is the Roma
who are discriminated against, attacked by extremist groups and persons,
they are the least socially protected group of the population and have a
much lower standard of living than the rest of the population. Regardless
of their way of life (dispersed or compact), Roma are considered one of
the most vulnerable groups to stigmatization, as most of them face human
rights abuses and are unable to defend themselves. Due to socio-economic,
cultural, and historical reasons, most members of this ethnic group belong
to the poorest strata of population.
Persistent negative stereotypes of the mass consciousness associated
with the Roma exist in Ukrainian society. The tool of inuence and
formation of perception is often the media, which manipulate stereotypical
attitudes, presenting a generalized portrait of the whole nation in a drug
dealer and swindler image. Information appears to be an exception in the
media, which portrays Roma as victims of racist violence. For example, in
February 2014, a group of approximately 15 people attacked four Roma
households in Korosten, and in April 2014, a Roma family home was set on
re in Cherkasy.
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In August 2016, a riot broke out in Loshchynivka, during which locals
robbed and burned several Roma households. More than 300 people took
part in acts of violence that resulted in property damage without inicting
bodily harm. Seven Roma families, including 17 children, ed the village
after the village council decided to evict them. The European Commission
against Racism and Intolerance notes that the central authorities have
responded by institution of a criminal investigation into forced evictions
and causing material damage (Report of the European Commission, 2017).
Vulnerability is not a clearly dened concept. This term is used
by sociologists, demographers, psychologists, economists, ecologists,
physicians, lawyers in the context of activities peculiarities in certain
areas of public life. The works of leading Ukrainian scientists are devoted
to various aspects of the system of legal protection of vulnerable groups
in Ukraine, among them: Boychuk and Vovk (2018), Halan (2014), Huz
(2012), Zhuravliova (2016), Kravchuk (2018), Ponomariov and Fedorovych
(2014), Radchuk (2014), and others. The subject of such research is the
problem of legal policy formation, analysis of the causes of low efciency of
legal protection, development of conceptual foundations of organization,
search for new and improvement of existing mechanisms for protection of
vulnerable groups.
However, the research does not pay enough attention to evaluation
and development of new areas of legal support. Particular attention needs
to be paid to improve methodological approaches to evaluation of legal
programs and entire system of legal support in Ukraine, as well as the
interpretation of decisions of the European Court and their use in legal
decisions. The theoretical importance and practical signicance of these
issues led to the choice of topic, purpose, and objectives of research. The
purpose of this study is to identify key areas for active legal policy aimed at
increasing the capacity of socially vulnerable groups, including the Roma
population, and reducing the risk of vulnerability in society. Analyze the
European experience in combating intolerance and discrimination and
make proposals to improve domestic legislation.
1. Methods
Among the methods that are considered the most effective for the study,
the authors should mention primarily the dialectical method, analytical
and synthetic methods, system method, activity method, hermeneutic
method, concrete-historical method, sociological method, formal-dogmatic
method, comparative-legal method, statistical method. In the study of the
EU and Ukraine legal systems essence in their relationship, a civilizational
approach becomes relevant, which allows to establish legal elements
through the prism of the diversity of scientic positions of representatives
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Legal protection of vulnerable groups of population: practice of the European Court of Human
Rights
of different legal systems and legal cultures. It helps to identify the national
legal system features in the eld of functioning of law principles and norms,
pointing to the uniqueness of legal system of Ukraine and at the same time
emphasizing the shortcomings and differences caused by public awareness,
law enforcement. The dialectical method of scientic cognition is a general
and universal method of forming legal concepts, it is a cognitive strategy
and aims to identify the causes, origins and consequences of the studied
phenomena, their internal contradictions, connections, and relationships
with other phenomena. Thus, with the help of this method it became possible
to know the categories’ content: “vulnerable groups”, “discrimination”,
“hate crimes” and others.
Analytical and synthetic research methods allowed selecting and
analyzing information on the research topic. The need to use the analytical-
synthetic method is due to the inadequate parity of dichotomous connection
analysis-synthesis. This method, expanding the possibilities of separate
tools of analysis and synthesis in understanding the legal factors of reliable
assessments, forms the preconditions for improving the legal regulation
mechanism of rights’ protection of vulnerable groups. The essence of the
system method is that the studied phenomena are considered as a certain
system that is included in the system of a broader order, performs certain
functions in it and is associated with various connections.
Thus, a systematic approach has given us the opportunity to analyze the
case law of the European Court of Human Rights on vulnerable groups in
relation to other phenomena of legal reality. The application of this method
allowed studying the legal status of vulnerable groups, legal procedures, and
processes as interdependent systems. The systematic method has played an
important role in the study of anti-discrimination norms of international,
regional, and national law. Application of the methods analyzed above
necessitates the activity method involvement in the methodology of our
study, which provides study of relevant legal phenomena through the prism
of their effectiveness. It is the activity of law subjects that creates, changes,
terminates, and renews certain types of relations. This method is used in
assessing the state bodies activities of Ukraine to create legal mechanisms
to protect the rights of vulnerable groups.
The hermeneutic method in the legal sphere is based on a set of methods
of interpretation and interpretation of legal texts, which take the form of
both regulations and law enforcement, and scientic and monographic
literature. The application of the hermeneutic method allowed analyzing
and clarifying qualitatively the legal texts content in the eld of protection
of vulnerable groups and their application practice. The use of concrete-
historical method contributed to the chronological framework denition of
the studied relations, allowed to trace the dynamics of its development. It is
determined with the help of the sociological method the social conditionality
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of vulnerable groups formation in modern society, as well as the mechanism
of their functioning and social interaction as a component of civil society.
The formal-legal method made it possible to study the connection between
the internal content and form of international and domestic cooperation
of states and state bodies in the eld of combating hate crimes and was
also used to formulate legal concepts and categories. The comparative law
method made it possible to compare the legislation of Ukraine and other
States-members, as well as the law of the Council of Europe on combating
intolerance and combating hate crimes. The normative basis of legal
protection study of vulnerable groups is the acts of current legislation of
Ukraine, international acts in the eld of protection of human rights and
freedoms, as well as the case law of the European Court of Human Rights.
2. Results and Discussion
Based on the topic relevance, the authors emphasize that at the present
stage of social evolution, it is very important to raise the issue of legal
protection of vulnerable groups and discuss the problem both among
scientists and at the level of public authorities, NGOs. The purpose of
such discussions is to identify the scale and causes of existing problems,
to determine the legal mechanism for the protection of vulnerable groups.
The problem of overcoming discrimination is relevant for most modern
states, and Ukraine in particular. The implementation of this task is related
to ensuring the fundamental human rights and freedoms enshrined in
international, regional, and domestic regulations. Recognizing the nature
of human rights, Article 1 of the Universal Declaration of Human Rights
(1948) states that “all human beings are born free and equal in dignity and
rights”. And Article 2 states “everyone shall have all the rights and freedoms
set forth in the Declaration, regardless of race, color, sex, language, religion,
political or other opinion, national or social origin, property, status or
other status”. The Constitutions of many countries contain references to
this international document and include a number of its provisions. The
Declaration is often referred to in the interpretation of national human
rights law, as well as in case law.
The International Covenant on Civil and Political Rights (1973) also
establishes a general prohibition of discrimination on any basis (Art.
2). The Covenant obliges States to provide in national law not only for
the prohibition of discrimination of any kind (Art. 26), but also for any
derogation in favor of national, racial, or religious hatred which constitutes
incitement to discrimination, hostility, or violence (Art. 20). In addition, Art.
4 of the Covenant provides that in a state of emergency in a state in which
the life of a nation is endangered and ofcially declared, states-parties of
the Covenant may take measures to derogate from their obligations under
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Rights
the Covenant only in to the extent that it is dictated by the severity of the
situation, provided that such measures are not incompatible with their other
obligations under international law and do not result in discrimination solely
on the basis of race, color, sex, language, religion or social origin (1966).
There are no special provisions on the rights of national minorities in the
International Covenant on Economic, Social and Cultural Rights (1973).
However, under Art. 2 of the Covenant, States-parties undertake to ensure
that the rights proclaimed in it are exercised without discrimination, in
particular as regards race, language, religion and national origin. State-
members undertake to guarantee the right of everyone to work and its fair
and favorable conditions, the right to form trade unions, the right to social
security, the right to protection of families and children and adequate food,
clothing and housing, the right to the highest attainable standard, physical
and mental health, the right to education, the right to participate in cultural
life (1966). Thus, states that have ratied the Covenant recognize and
guarantee these rights to every person without any discrimination on these
bases, regardless of a person’s membership in the majority or minority of
the population, his/ her citizenship.
The principle of non-discrimination is also enshrined in the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(1950) in Article 14, according to which the using of rights and freedoms
recognized by the Convention must be ensured without discrimination on
any basis (1950). Whenever the European Court of Human Rights examines
a possible violation of Article 14, it does so in conjunction with fundamental
Convention law. Applicants often complain of fundamental right’s violation
and, in addition, of a violation of that right in conjunction with Article 14. In
other words, interference with their rights, in addition to violating standards
of observance of a fundamental right, also constitutes discrimination.
Protocol No. 12 prohibits discrimination in the “exercise of any right
provided for by law” and therefore has a wider scope than Article 14, which
applies only to the rights enshrined in the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950). It should
be noted that the protocol guarantees protection against discrimination
primarily by the state, but it also applies to relations between individuals,
which are usually subject to state regulation, “for example, arbitrary denial
of employment, denial of access to restaurants or services, which may be
provided to the public by private persons, such as health services or utilities,
such as water or electricity” (2002).
In December 1965, the General Assembly adopted the International
Convention on the Elimination of All Forms of Racial Discrimination
(1994), as discrimination on racial basis was recognized as the most
common source of political and civil conict. Racial discrimination is
dened as “any distinction, exception, restriction or preference based on
race, color, race, national or ethnic origin” that impedes the realization of
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human rights and fundamental freedoms. The Convention established for
the rst time a body to monitor compliance with all approved provisions,
the Committee on the Elimination of Racial Discrimination, which consists
of eighteen experts of high moral character and recognized impartiality,
elected by States-Parties from among their citizens, must perform their
duties personally and attention is paid to the fair geographical distribution
and representation of various forms of civilization, as well as the main legal
systems (1965).
The Framework Convention has historically become the rst, legally
binding, multilateral, international instrument devoted directly to the
protection of national minorities in all spheres of public life. The legal
document enshrines the principle that all its provisions are implemented
exclusively through the national legislation of each state and its state
policy. At the national level, the Constitution of Ukraine (1996) guarantees
citizens equal constitutional rights and freedoms and equality before the
law (Art. 24) without any privileges or restrictions (1996). The domestic
legal system has created a legal framework aimed at combating hate crimes.
The negative consequences of hate crimes do not only affect individuals and
groups but affect the entire social order and pose a threat to every member
of society. It is the duty of the Ukrainian state to protect and ensure the
safety of people who are on its territory, regardless of race, nationality,
ethnic origin, language, skin color, religion, age, physical ability, sexual
orientation, gender identity or other characteristics. In November 2012, the
Law of Ukraine “On Principles of Preventing and Combating Discrimination
in Ukraine” № 5207-VI came into force, which denes the organizational
and legal framework for preventing and combating discrimination in order
to ensure equal opportunities for human rights and freedoms of citizens.
Discrimination is a situation in which a person and/or group of persons
on the basis of race, color, political, religious and other beliefs, sex, age,
disability, ethnic and social origin, citizenship, marital and property status,
place of residence , linguistic or other features that were, are and may be
valid or presumed, is subject to restrictions in the recognition, realization
or use of rights and freedoms in any form established by this Law, except
where such restriction is lawful, objective a reasonable goal, the ways to
achieve which are appropriate and necessary. The law stipulates that
manifestations of discrimination are direct and indirect discrimination,
incitement and oppression (Law of Ukraine, 2012).
The provisions of the law provide for the prohibition of any discrimination.
The only exception may be the so-called “positive discrimination” – actions
aimed at eliminating legal or factual inequality in the ability of a person and
/ or group of persons to realize equal rights and freedoms. Punishment for
discrimination on racial or ethnic basis is provided for in the Criminal Code
of Ukraine (2001), which contains a number of articles in the General (67)
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and Special Parts (115, 121, 122, 126, 127, 129, 294), which provide for more
severe punishment for crimes, committed on the basis of racial, national or
religious intolerance (which are hate crimes).
Article 161 establishes criminal liability for intentional acts aimed
at inciting national, racial and religious hatred and hatred, as well as
for discrimination on the basis of an open list of characteristics (2001).
However, this article is also rarely used in practice, as it is difcult to prove
intentionality in court. In 2009, amendments were made to the Criminal
Code of Ukraine, which increased criminal liability for certain crimes
committed on the basis of intolerance (Law of Ukraine, 2009).
Rapporteurs of the Council of Europe criticize the imperfection of
Ukrainian legislation on discrimination. In particular, the Criminal Code
of Ukraine (Law of Ukraine, 2009) does not provide for punishment
for incitement to hatred motivated by homophobia, and the law on the
principles of preventing and combating discrimination does not mention
that sexual orientation may be basis for discrimination. The Verkhovna
Rada of Ukraine registered the Draft Law “On Amendments to the Criminal
Code of Ukraine” (2019). The bill provoked a wave of protests from the
public, the church and religious organizations of various denominations. In
our opinion, the bill as a basis is promising, but needs to be nalized, as in
its current form the chances of its adoption are low.
In general, the provisions on crimes based on racial hatred are rarely
applied in the Ukrainian judiciary, and as a result the number of convictions
under these articles is very low. Hate crimes are crimes based on prejudice.
Such crimes happen everywhere because no society is safe from the
consequences of prejudice and intolerance. Hate crimes send a signal of
rejection to entire communities and carry the seeds of potential conict,
as they can increase both quantitatively and given the level of violence. In
Ukraine, foreigners, members of different ethnic communities and religious
minorities, LGBT communities most often suffer from hate crimes. An
indicator of prejudice presence is the fact that gives reason to believe that
the crime could have been committed precisely because of prejudice. Such
indicators serve as objective criteria for assessing the probable motives of
a crime and can help in the preliminary detection of cases of hate crimes.
A. Kravchuk (2018) in his research provides statistics that Ukrainian
state institutions register a relatively small number of manifestations of
xenophobia. Thus, the Parliamentary Commissioner for Human Rights in
2017 received 37 complaints of discrimination on the basis of race, color and
ethnic/national origin. In addition, according to the results of monitoring
the media, social networks and other sources of information, 16 proceedings
were instituted on the facts of alleged hate crimes and 14 proceedings on
hate speech on the above basis. In 2017, independent observers provided
the OSCE with 13 cases of racism and xenophobia, 4 cases of Roma-phobia
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and 21 cases of anti-Semitism (20 of which were property damage). In
2016, such data included 7 cases of racism and xenophobia (including
5 attacks on people) and 21 cases of anti-Semitism (of which 17 cases of
property damage). The author concludes that in ofcial statistics and data
from non-governmental organizations, cases of xenophobia and racism
are often mentioned together, which makes it impossible to separate
crimes and incidents of national hatred from racist ones. At the same
time, manifestations of xenophobia against Roma and Jews are mentioned
separately from other ethnic/national groups (Kravchuk, 2018).
At the end of the XX-th century, the problem of discrimination against
Roma attracted the attention of human rights organizations. Roma activists
and defenders received support from the Open Society Institute (New
York). In the Council of Europe, the “Roma issue” has become one of the
special areas of work: the human rights situation is constantly monitored,
seminars and trainings are held for young Roma and lawyers involved in
the protection of Roma rights, and open discussions are held on Roma
issues. With the participation of human rights defenders from various
countries, the European Center for the Protection of Roma Rights was
established in 1995, operating in Budapest with ofces in many countries
in both Western and Eastern Europe. The public of European countries
has begun to pay attention to the cases of violence against Roma, which
are increasingly occurring by the police. At the time, ECHR practice did
not take into account racist motives for violence. While acknowledging the
positive obligations of States to conduct effective investigations into forced
abductions, torture and inhuman treatment, the Court did not, however,
dare to apply the same approach to cases of racial violence.
This approach changes with the decision in the case of Nachova and
Others v. Bulgaria: ECHR judgment (2005). The case concerned the deaths
of two young Roma men who were shot dead in a Roma settlement where
they were hiding after their escape from imprisonment being accused of
leaving the military service without permission. During the investigation
into the legitimacy of the actions of Major G., who led the search and
detention operation and opened re, one of the witnesses said that shortly
after the shooting, Major G. shouted at him: “You are damn gypsies”.
Referring to the high levels of discrimination and hostility against Roma
in Bulgaria, the applicants, relatives of the victims, alleged a violation of
Article 14 of the Convention in conjunction with Article 2, pointing out that
excessive violence against Roma had been used by the authorities because
of their ethnic origin. The value of this decision is that the Court has
established procedural obligations under which the state must investigate
discriminatory motives for violent crimes if there is a reasonable suspicion
of such motives.
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Rights
The European Court of Human Rights, in its rulings, emphasizes that
crimes based on intolerance require a particularly decisive response from
the state – “the state must use all available means to combat violence based
on intolerance, thus strengthening the democratic principles of tolerance
and pluralism” (Nachova and others v. Bulgaria, 2005). The ECHR has
repeatedly emphasized that the application of the same methods and
approaches to the investigation of intolerance crimes and other violent
crimes that do not have such a motive is incorrect, as it means that the state
ignores the particularly destructive nature of intolerance crimes.
The rst Ukrainian case of discrimination is the “Case of Fedorchenko
and Lozenko v. Ukraine” (2012) one, in which the European Court of
Human Rights found Ukraine guilty of non-compliance with Article 14
of the European Convention on Human Rights, together with Article 2 of
the European Convention, which regulates the right to life and the need
for prompt, effective and impartial investigation. The decision on which
was on September 20, 2012. The text of the case concerns an attack on a
Roma family on October 28, 2001, which resulted in the burning of their
homes and the death of ve family members, including two six-year-old
children. The head of the family accused a police ofcer, who he and his
relative refused to pay a bribe for not being prosecuted for alleged drug
trafcking. During the investigation, information on a police ofcer
involvement in the incident was not conrmed, and the prosecutor ofce
refused to initiate a criminal case against him. At the same time, the main
suspects were identied: N. and six other persons. Citizen N. was later
charged, but no other suspects could be found. The case against N. was
repeatedly remanded for further investigation, and on June 22, 2005, it was
closed due to the latter’s death. The investigation into the other suspects
has not been completed. Having examined the case, the European Court
of Human Rights concluded that insufcient evidence had been adduced
to substantiate or disprove the police ofcer’s involvement in the arson.
However, ECHR found a violation: the state authorities limited themselves
to basic procedural steps. In addition, the ECHR noted that none of the six
suspects (except N.) had been found.
Given the widespread acts of violence and discrimination against Roma
in Ukraine, the European Court did not rule out that the decision to set
houses on re was further reinforced by ethnic hatred. However, there is no
evidence that the authorities tested the version of the xenophobic motives
for the attack. The ECHR found it unacceptable that in these circumstances
no signicant steps had been taken in the course of the investigation, which
had lasted for more than 11 years, to identify and convict the perpetrators.
Ukraine was ordered to pay the applicant EUR 20,000 in respect of non-
pecuniary damage. This is the rst case that Ukrainian Roma has won in
the European Court (Case of Fedorchenko and Lozenko v. Ukraine, 2012).
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The ECHR pointed to the presence of racist motives in the crime, which
would affect future jurisprudence. After all, in Ukraine, such qualications
are usually avoided in cases involving national minorities who have been
victims of violence. Also, the rulings of the European Court of Human
Rights clearly emphasize that the presence of a violation of human rights
and a sign protected from discrimination in the victim of the violation does
not mean the existence of discrimination. The decision in the case of the
ECHR “Burlya and Others v. Ukraine” (2018) was on November 6, 2018.
The events took place in September 2002 in the village of Petrivka, Odessa
region. The conict essence was that after the death of a 17-year-old boy in
the village, a group of several hundred of his fellow villagers began to destroy
the houses where the Roma lived, with one of whom the victim allegedly
had a conict. The village council decided to evict the Roma ethnic group
from the village and cut off the houses from electricity and gas, after which
a crowd of several hundred people destroyed the houses of nineteen Roma,
damaging their property, and police ofcers who were present. during the
“action”, had taken no measures to stop vandalism and preserve property.
The Court concluded that there had been a violation of the right to
respect for private and family life, housing, and correspondence (Art.
8 of the European Convention on Human Rights) and the prohibition
of discrimination (Art. 14), as well as the prohibition of torture and ill-
treatment (Art. 3). According to the ECHR, the damage caused to the
applicants’ homes amounted to serious and unjustied interference with
the applicants’ right to respect for their private and family life and home.
The European Court of Human Rights has ordered Ukraine to pay 5 million
hryvnias in compensation to the victims of the pogrom of the Roma camp in
Odesa region (Judgment of Burlya and others v. Ukraine, 2018).
In order to create appropriate conditions for the protection and
integration of the Roma national minority into Ukrainian society, ensuring
equal opportunities for its participation in the socio-economic and cultural
life of the state by the Decree of the President of Ukraine of 08.04.2013
№ 201 approved the Strategy for Protection and Integration of the Roma
national minority for the period up to 2020 (2013). The main objectives of
the Strategy are to promote legal and social protection of Roma, promote
their employment, improve education, ensure the health of Roma, improve
the living conditions of Roma, meet the cultural and information needs
of Roma (The strategy for protection and integration…, 2013). In 2013,
the Cabinet of Ministers approved an action plan for the implementation
of the strategy for the protection and integration of the Roma national
minority into Ukrainian society for the period up to 2020 (The strategy
for protection and integration…, 2013), which identies specic measures
aimed at integrating the Roma minority into the Ukrainian society and
their executors.
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Legal protection of vulnerable groups of population: practice of the European Court of Human
Rights
Current state policy of Ukraine, on the one hand, aimed at the inclusion
of Roma in socio-economic life of the country, on the other hand, does
not always cope with the challenges of Roma-phobia in society, with
discrimination against the Roma minority. The report of the European
Commission against Racism and Intolerance (ECRI) of the fth cycle of
monitoring on Ukraine of June 20, 2017 shows that legislation and law
enforcement practices in Ukraine on combating intolerance and hate
crimes are still imperfect and ineffective. ECRI is a special, independent and
oversight human rights monitoring body that specializes in issues related
to the ght against racism, discrimination based on “race”, ethnic/national
origin, color, nationality, religion, language, sexual orientation and gender
identity, xenophobia, anti-Semitism and intolerance in Europe; it prepares
reports and makes recommendations to Member States.
The Commission shall be composed of independent and impartial
members appointed on the basis of their moral authority and recognized
experience in dealing with racism, xenophobia, anti-Semitism and
intolerance. As part of its statutory activities, ECRI conducts country-by-
country monitoring, which includes an analysis of the situation in each of
the Council of Europe member states on racism and intolerance and makes
suggestions and recommendations on how to address the issues identied.
On 2 June 2020, ECRI published its conclusions on the implementation
of two priority recommendations provided to Ukraine in 2017. First,
ECRI strongly recommended that sexual orientation and gender issues be
included in the Criminal Code as basis and considered aggravating. In this
regard, ECRI notes that under the Criminal Code, there is no punishment
for incitement to hatred or violence motivated by homo/transphobia. In
addition, in aggravating circumstances, there are no references to sexual
orientation and gender under aggravating forms of certain crimes or in
an article of the Criminal Code. ECRI notes only one amendment to the
Criminal Code, which came into force in 2019 – the inclusion of basis for
“sexuality”.
Although the inclusion of a gender issue as an aggravating circumstance
is welcome, it does not cover sexual orientation or gender and is therefore
not in line with the recommendation, ECRI notes. This means that its
recommendation was not implemented. Second, ECRI recommended
refusing to hold court hearings on Roma cases seeking to prove their
identities in order to obtain personal identication documents. The
authorities informed ECRI that the 2012 Court Fees Act provides for deferral
of the court fee, reduction in its amount or exemption from payment. ECRI,
however, understands that the legislation is unfavorable for Roma seeking
to prove their identity, as, paradoxically; there is a requirement to prove
inability to pay the fee by providing documentary evidence to the court.
In this context, ECRI did not nd any indication of the application of this
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provision in such cases (News of the European Commission…, 2020).
Therefore, the conclusion is that the recommendation was not implemented,
because all the information collected indicates that no changes have taken
place in this regard. Thus, the Roma national minority is one of the most
vulnerable in society. Marginalization, social exclusion and stigma, as well
as other social and economic indicators, such as unemployment and poor
nancial conditions, affect access to legal services and the general legal
situation.
Conclusions
Based on the above, it can be concluded that discrimination on racial or
ethnic basis is particularly offensive form of discrimination. Discrimination
against minorities remains a central issue and affects the realization of all
rights. International human rights law prohibits discrimination on the
basis of race, color, language, national or social origin, or other status.
These human rights standards require States-Parties to take all appropriate
measures to eliminate discrimination and ensure that all public bodies
and institutions comply with this obligation. It is obvious that the correct
solution of the problems related to the situation of Roma in Ukraine
requires comprehensive, systematic and long-term program. Hate crimes
are the result of cruelty and, without proper legal response, spread to large
communities.
The introduction of anti-discrimination law in Ukraine is a prerequisite
for its formation as a European state governed by the rule of law. Any
victim has the right to seek protection of their rights from the ombudsman
and/or the court. At the same time, no court fee is paid for ling lawsuits
related to discrimination disputes. Support and implementation of anti-
discrimination policy should be provided at all levels of government. The
introduction into the national legal system of mechanisms and tools that can
stop or reduce hatred and protect human dignity, autonomy and equality
of every person, creates the basis for effective protection of fundamental
values, humanity and humanism. Only a systemic approach can guarantee
overcoming the stereotype, both in the state and in the social perception of
the Roma population.
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