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THIRD
SECTION
DECISION
Application no.
8278/04
Luşca MOLDOVAN and others
against Romania
The
European Court of Human Rights (Third Section), sitting on
17 April 2012 as a Chamber composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi, judges,
and Santiago Quesada, Section
Registrar,
Having
regard to the above application lodged on 25 February 2004,
Having
regard to the decision taken by the President of the Chamber
to appoint Mr Mihai Poalelungi to sit as ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court), as Mr Corneliu Bîrsan, the judge
elected in respect of Romania, had withdrawn from the case (Rule 28
of the Rules of Court),
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
present application, concerning the living conditions of Romanian
citizens of Roma origin living in the village of Hădăreni,
Mureş County, follows two initial applications that have been
joined (nos. 41138/98 and 64320/01). The said applications were
lodged with the Court on 14 April 1997 and 9 May 2000
respectively, by twenty-five Romanian nationals of Roma origin living
in the above-mentioned village, as a consequence of the inter-ethnic
clashes of 20 September 1993 which led to the killing of three
people of Roma origin and the burning of eighteen Roma houses.
- It
also follows thirty other applications lodged with the Court between
5 February 2004 and 5 November 2008, concerning the same issue,
lodged by eighty-six applicants who are mainly relatives of the
initial twenty-five applicants. Six of the eighty-six applicants had
also been parties to the initial two applications.
- The
thirty-two applications mentioned above have resulted in a friendly
settlement agreement (see Moldovan and Others v. Romania (no 1)
(friendly settlement), 5 July 2005), concerning eighteen of the
initial twenty five applicants. In a judgment on the merits
concerning the remaining seven of the initial twenty-five applicants
(see Moldovan and Others v. Romania (no 2),
12 July 2005, ECHR 2005-VII) where the Court found a violation, inter
alia, of Articles 3 and 8 of the Convention in respect of the
applicants’ living conditions. As well as in a joined decision
(see Costică Moldovan and Others v. Romania (dec.),
no. 8229/04 and other applications, 15 February 2011) concerning the
additional eighty-six applicants where the Court declared their
complaint under Article 3 and 8 of the Convention inadmissible mainly
for non-exhaustion of domestic remedies.
4. The
applicants in the present case, Mr Luşca and his wife Mrs Monica
Simona Moldovan (born Lăcătuş), Ms Olguţa, Ms
Sanda and Mr Traian Florin Lăcătuş and Mr Lucian-Gruia
Rostaş, are Romanian nationals of Roma origin who were born in
1966, 1974, 1978, 1978, 1976 and 1981 respectively, and live in Saint
Gilles, Belgium. Mr Luşca and his wife, Mrs Monica Simona
Moldovan, lodged their complaints before the Court on 25 February
2004. Mr Traian Florin and Ms Olguţa Lăcătuş
lodged their complaints before the Court on 24 August 2004. Ms Sanda
Lăcătuş and Mr Lucian-Gruia Rostaş lodged
their complaints before the Court on 9 August 2005. All the
complaints were joined in the present application. The applicants
were all represented before the Court by Mr Jean Paul Vidick, a
lawyer practising in Brussels. The Romanian Government
(“the Government”) are represented by their Agent,
Mr Răzvan Horaţiu Radu, from the Ministry of Foreign
Affairs.
A. The circumstances of the case
- The
facts of the case submitted by the parties, in so far as they concern
the current applicants, may be summarised as follows.
- The
present case originates in the events which took place in 1993 in the
village of Hădăreni and which are summarised in the
judgments of Moldovan and Others (nos 1 and 2), cited above.
The steps taken by the respondent Government prior to and after the
adoption of the judgments of Moldovan and Others, (nos
1 and 2) with the aim of improving the living
conditions of the Roma affected by the violent events of 20 September
1993 are summarised in Costică Moldovan and Others, cited
above, §§ 93-109.
- Some
of the applicants, namely, Mrs Monica Simona Moldovan, Ms Olguţa,
Ms Sanda and Mr Traian Florin Lăcătuş and Mr
Lucian-Gruia Rostaş, are the brothers and sisters of two of the
three Roma who were killed during the violent events of 20 September
1993.
- Mr
Luşca Moldovan had been living in the house where the three
murdered Roma had been hiding prior to their death. The house was
destroyed as a result of the violent events of 20 September 1993.
Mr Moldovan’s personal belongings and a large sum of money
he had saved from commercial activities were also destroyed together
with the house. Moreover, two years after the violent incident the
house was only partly rebuilt. Furthermore, as a result of the events
he had needed psychological treatment.
- According
to Mrs Monica Simona Moldovan, in the aftermath of the events her
entire family, numbering seventeen individuals, was forced to live in
a room of 30 sq.m without food, medicine or an income. Moreover, they
had been “tortured” by police officers who had visited
them at night and forced them to testify. Her mother, Ms Cătălina
Lăcătuş had died allegedly as a result of the
harassment on 12 February 1994. Mrs Moldovan had developed diabetes
as a result of the stress and fear caused by the violent events of
1993. After one of the individuals involved in the killing of her
brothers had been acquitted, he had started threatening her and her
husband. Consequently, she and Mr Moldovan had moved to Belgium on
8 November 2002 and 10 June 2003 respectively, where they had
been granted refugee status.
- On
unspecified dates the other four applicants also moved to Belgium. In
their first letters to the Court on 24 August 2004 (Mr Traian Florin
and Ms Olguţa Lăcătuş) and on 9 August 2005 (Ms
Sanda Lăcătuş and Mr Lucian-Gruia Rostaş) they
stated that they had been granted refugee status in Belgium. They
also contended that in the aftermath of the events they had been
forced to live in cold and inappropriate conditions (sleeping in the
woods, on floors or in crowded conditions) together with their
family. They had lived in those conditions for several months.
- All
six applicants consider that as a result they have developed a number
of medical conditions, in particular tuberculosis, asthma and
diabetes. Some of them have also developed psychological problems and
have been obliged to pay for treatment themselves even though they
lacked an income.
- Only
Mrs Monica Simona Moldovan was a party to the criminal and civil
domestic proceedings opened after the violent events of
20 September 1993. She did not appeal, however, against the
judgment delivered by the first-instance court during the course of
the civil proceedings opened against the third parties convicted for
the destruction of her home.
The outcome of the civil proceedings
- On
12 January 2001, following the discontinuance of the criminal
investigation against the police officers involved in the incident
and the criminal conviction and sentencing of twelve civilians by the
final judgment of 22 November 1999 of the Court of Cassation, the
Mureş County Court delivered its judgment in the civil case. The
court noted that the victims had claimed compensation for pecuniary
damage resulting from the destruction of the houses and their
contents (furniture and so on), as well as compensation for
non-pecuniary damage. The court further noted that, during the events
of 20 September 1993, eighteen houses belonging to the Roma
population in Hădăreni had been totally or partially
destroyed and three Roma had been killed, a criminal court having
found twelve villagers guilty of those acts. Basing its decision on
an expert report, the court awarded compensation for pecuniary damage
for those houses which had not been rebuilt in the meantime, and
maintenance allowances for the children of the Roma killed during the
riots. On the basis of an expert report, the court awarded
compensation for pecuniary damage in respect of the partial or total
destruction of the houses of six Roma. The court rejected the other
applicants’ request for compensation for pecuniary damage in
respect of the rebuilt houses, finding, on the basis of the same
expert report, that their value was either the same as or higher than
the original buildings. It further refused all claims for damages in
respect of belongings and furniture, on the ground that the claimants
had not submitted documents to confirm the value of their assets.
- The
court finally rejected all claims in respect of non-pecuniary damage
on the ground that they had not been substantiated, and that the
crimes committed were not of a nature to produce such damage.
- The
court ordered the villagers convicted in the criminal trial to pay
the damages awarded.
- Relying
on some procedural errors in the Mureş County Court’s
judgment, the parties to the proceedings, including Mrs Moldovan,
lodged an appeal with the Mureş Court of Appeal.
- On
17 October 2001 the Mureş Court of Appeal found that a number of
procedural errors had occurred during the public hearings on the
merits before the Mureş County Court: the hearings had been held
in the absence of the accused and their lawyers; one of the parties
had not been summoned; the public prosecutor had not been given leave
to address the court and a number of expert reports ordered by the
court had not been completed. The Court of Appeal quashed the
judgment of 12 January 2001 and ordered a new trial in the case.
- In the second procedural cycle, the Mureş County
Court delivered its judgment in the civil case on 12 May 2003. Basing
its decision on an expert report drafted in 1999 and updated in 2003,
the court ordered the civilians found guilty by the criminal court in
respect of the destruction of the claimants’ houses to pay
damages to some of the parties to the proceedings for the destruction
of their homes, including Mrs Moldovan, who was awarded 60,000,000
lei (ROL) (approximately 1,725 euros (EUR)).
- The
courts also ordered that the amounts be revised to take account of
any devaluation in the national currency.
- However,
the court rejected all the parties’ claims in respect of
non pecuniary damage, on the ground that they were not
substantiated.
- Mrs
Moldovan did not appeal against the Mureş County Court judgment
of 12 May 2003.
- The
civil proceedings ended with the final judgment of 25 February 2005
of the Court of Cassation, with the domestic courts also awarding the
appellants non-pecuniary damages.
- There
is no evidence in the file that Mrs Moldovan opened any enforcement
proceedings in respect of the judgment of 12 May 2003 before the
domestic authorities or that she opened proceedings before the
domestic authorities in respect of the death of her mother.
B. Relevant domestic law
- The
relevant legal provisions, including the relevant provisions of the
Romanian Civil Code, Code on Civil and Criminal Procedure,
Law No. 188/2000 concerning enforcement officers, and the
relevant case law, are set forth in the judgments Moldovan
and Others v. Romania (nos. 41138/98 and 64320/01, §§ 79-85,
12 July 2005); Ursu v. Romania (no. 58670/00, (dec.), 3 May
2005); Kalanyos v. Romania (no. 57884/00, (dec.),
9 December 2003); Fociac v. Romania, no. 2577/02, §
70, 3 February 2005; and Topciov
v. Romania (dec.), no. 17369/02,
15 June 2006).
Civil Code
- Articles
998 and 999 of the Civil Code provide that any person who has
suffered damage can seek redress by bringing a civil action against
the person who has intentionally or negligently caused it.
Code of Civil Procedure
Article 399 § 1
“Any person, including any person who has suffered
damage as a result of the enforcement, shall have the right to
contest the enforcement or any procedural steps taken during the
enforcement proceedings. In addition ... the enforcement proceedings
can be contested ... when the enforcement officer refuses to carry
out an act of enforcement in accordance with the applicable legal
provisions.”
COMPLAINTS
- Relying
in substance on Article 2 of the Convention, the second applicant
complained that her mother Ms Cătălina Lăcătuş
had died on 12 February 1994 as a result of the harassment and
ill-treatment she had allegedly been subjected to by the domestic
authorities.
- The
applicants complained under Articles 3 and 8 of the Convention about
their living conditions after the events of September 1993 in so far
as, following the destruction of their home, and owing to the failure
of the authorities to remedy the situation and the villagers’
attitude towards them, they had been forced to abandon their home and
seek refuge in the forest, and to live in poor and cramped conditions
which had affected their health.
- The
applicants complained under Articles 6 and 14 of the Convention,
taken alone and together with Article 8 of the Convention, about the
length of the civil proceedings, the lack of access to court and the
discriminatory treatment they were allegedly subjected to by the
domestic courts on account of their ethnic origin.
THE LAW
1. Alleged violation of Article 2 of the Convention
- Relying
in substance on Article 2 of the Convention the second applicant
complained that her mother, Ms Cătălina Lăcătuş,
had died on 12 February 1994 as a result of the harassment and
ill-treatment she had allegedly been subjected to by the domestic
authorities.
Article
2 of the Convention reads as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
Court notes that the events the second applicant is complaining of
happened on 12 February 1994, prior to the ratification of the
Convention by Romania on 20 June 1994. Moreover, there is no evidence
in the file that the applicant opened proceedings before the domestic
authorities in respect of the death of her mother.
- Having
regard to the above, the Court considers that the applicant’s
complaint is incompatible ratione temporis and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Alleged violation of Articles 3 and 8 of the
Convention
- The
applicants complained under Articles 3 and 8 of the Convention that
the destruction of their home and the discrimination they had been
subjected to by the authorities had deprived them of the use of their
house and belongings, forcing them to live in very poor and cramped
conditions.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article
8 provides as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government submitted, inter alia, that the applicants had
failed to exhaust the available domestic remedies in respect of their
complaints to the Court.
- They
argued that any interested party who had been affected by the events
of 20 September 1993 seeking to obtain compensation for alleged
breaches of their rights could have either joined the criminal
proceedings brought against the police officers and third parties who
had burned down or destroyed their houses and homes, as civil
parties, or lodged a separate action for compensation on the basis of
general tort law, namely, Articles 998-999 of the Romanian Civil
Code.
- Except
for the second applicant none of the other applicants brought
proceedings in respect of any alleged breaches of their rights or
damage they may have suffered as a result of the events of 20
September 1993. Moreover, although the second applicant had joined
the domestic proceedings as a civil party, she had failed to appeal
against the judgment of 12 May 2003 of the Mureş County Court.
Thus, before submitting their allegations to the Court, the
applicants should have exhausted the available remedies capable of
affording them adequate redress. Consequently, the situation of the
present applicants is different from that of the applicants party to
the previous proceedings before the Court, in particular Moldovan
and Others (no. 2), cited above, in so far as the latter joined
the criminal proceedings as civil parties, appealed against the
judgment of 12 May 2003 and, therefore, exhausted the available
domestic remedies.
- Lastly,
the Government considered that a civil action by the applicants would
have enabled the domestic courts to decide the cases on their merits
and award just satisfaction to the applicants for any alleged damage
they might have suffered. They consider that the remedies in question
were available to the applicants, were sufficient to afford redress
in respect of the breaches alleged and were sufficiently certain not
only in theory but also in practice. In supporting their arguments
they referred to the Court’s finding in the case of Moldovan
and Others (no. 2), § 121, cited above, that the civil
action brought by the victims of the events against the civilians who
had been found guilty by the criminal courts claiming compensation in
respect of their living conditions following the destruction of their
homes, was successful and effective and the applicants were granted
compensation.
- The
applicants argued that following their departure from Romania and
recognition of their refugee status by Belgium, they were unable to
pursue and exhaust the proceedings before the domestic courts.
- The
Court notes that all the applicants in the present case are in an
identical situation to most of the applicants in the case of Costică
Moldovan and Others, cited above, §§ 129-140, in
respect of whom it has already dismissed an identical complaint under
Articles 3 and 8 of the Convention for non-exhaustion of domestic
remedies.
- Having
regard to the factual situation, the complaints of the applicants and
the submissions of the parties in the present case, the Court finds
no reason to depart from its decision in the case of Costică
Moldovan and Others, cited above.
- It
follows that this part of the applicants’ complaints must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
- Having
found that the applicants in the present case have not exhausted the
effective domestic remedies in respect of these complaints, the Court
does not need to look into the other pleas of inadmissibility raised
by the Government with regard to the case.
Alleged violation of Articles 6 and 14 taken alone and together
with Article 8 of the Convention
- The
applicants complained under Articles 6 and 14 of the Convention taken
alone and together with Article 8 of the Convention about the length
of the civil proceedings, the lack of access to court and the
discriminatory treatment they were allegedly subjected to by the
domestic courts on account of their ethnic origin.
Article
6 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
Article
14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other statues.”
- The
Court notes that except for Mrs Monica Simona Moldovan, none of the
other applicants were party to the domestic proceedings.
Consequently, the Court considers that they cannot claim to be
victims, within the meaning of the Convention, of a violation of
their rights guaranteed therein and therefore their applications are
inadmissible as incompatible ratione personae.
- In
respect of Mrs Moldovan the Court notes that she failed to appeal
against the Mureş County Court judgment of 12 May 2003. At the
same time, it observes that the applicant left for Belgium in June
2003 and lodged her complaint with the Court on 25 February 2004.
Consequently her complaints fall outside the six-month time-limit.
- Having regard to the above, the Court considers that
this part of the applicants’ complaints is inadmissible and
must be rejected in accordance with Article 35 § 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
