ÎCCJ, decizie (scj.ro #86392)

ÎCCJ, decizie (scj.ro #86392) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES DROITS

DE L’HOMME

EUROPEAN COURT OF HUMAN

RIGHTS

THIRD SECTION

CASE OF

GERGELY v.

ROMANIA

(Application no. 57885/00)

JUDGMENT

STRASBOURG

26 April 2007

This judgment will become final in the

circumstances set out in Article 44§ 2 of the Convention. It may be

subject to editorial revision.

In the case of Gergely v.

Romania

,

The European Court of Human Rights (Third Section), sitting as

a Chamber composed of:

Mr

B.M.

Zupančič

,

President

,

Mr

C.

Bîrsan

,

Mrs

E.

Fura-Sandström

,

Mrs

A.

Gyulumyan

,

Mr

E.

Myjer

,

Mr

David Thór

Björgvinsson

,

Mrs

I.

Berro-Lefèvre,

judges

,

and Mr

S.

Quesada

,

Section Registrar

,

Having deliberated in

private on

29 March 2007

,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

against

Romania

lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms (“the

Convention”) by an Romanian national of Roma origin, Mrs Iren Gergely

(“the applicant”), on

14 July 1999

.

European Roma Rights Centre (ERRC), an association based in

Budapest

(

Hungary

).

The Romanian Government (“the Government”) were represented by

their Agent, Mrs B. Rămășcanu, from the Ministry of Foreign

Affaires.

property, the ensuing consequences and the subsequent proceedings before

the domestic authorities had violated Articles 3, 6 § 1, 8, 13 and 14

of the Convention, which guaranteed,

inter alia

, the prohibition of

inhuman and degrading treatment, the right to access to a court for a fair

determination of civil rights and obligations, the right to respect for private

and family life and home, the right to an effective remedy and freedom from

discrimination in the enjoyment of Convention rights and freedoms.

decided to adjourn the examination of the complaints concerning living

conditions, the investigation into the alleged inhuman or degrading

treatment and the right to respect for home, and private and family life, the

lack of access to a civil court, the right to an effective remedy, and the

alleged discrimination on the basis of the applicant's ethnicity, insofar as

they relate to the period after 20 June 1994, date on which Romania

ratified the Convention. It also declared inadmissible as incompatible

ratione

temporis

with the provisions of the Convention the remainder of the

application.

19 May 2005

, after obtaining the

parties' observations, the Court declared the adjourned complaints admissible.

context of friendly settlement negotiations (Article 38 § 1 (b) of the

Convention). No settlement was reached.

8 December 2006

, the Government

requested the Court to strike the case out of its list and enclosed the text of

a declaration with a view to resolving the issues raised by the application. On

26 January

2007

, the applicant's representative filed written observations on

the Government's request.

THE FACTS

the hamlet Cașinul Nou, the district of Plăieșii de Jos,

Harghita

County

.

may be summarised as follows.

11 August

1990

, following a period of increased hostility between the Roma and

non-Roma inhabitants of Cașinul Nou, amid accusations that local Roma had

been stealing, approximately 60 to 400 non-Roma villagers gathered in front

of the village church and planned to chase out the entire Roma population.

Subsequently, they burned and otherwise destroyed several houses and property -

including the house of the applicant and its whole contents. As a consequence,

approximately 150 persons were left homeless, while many others, including

the applicant and her four underage children, faced the threat of being

lynched.

Leaving behind all her belongings, the applicant and her family ran

away and hid in a nearby field from where they saw the villagers setting fire

to the Roma houses.

after the events, the Roma residents of Cașinul Nou filed a criminal

complaint with the Harghita County Prosecutor's Office. In addition to

outlining the facts of the case, the complainants identified a number of

individuals as being allegedly responsible for the attack.

27 November 1990

, the Harghita County

Prosecutor's Office decided to discontinue the investigation of the case on the

ground that, given the large number of persons involved in the attack, it had

been impossible identifying the culprits. Upon the applicant's lawyers repeated

interventions and complains, the investigations were reopened and discontinued

several times. Lastly, on

5 October 1998

the Prosecutor's Office

of the Târgu-Mureș Court of Appeal informed the applicant's lawyer that no

criminal charges could be brought by virtue of a time bar. The prosecutor

found that the offences had been committed “due to the serious, provocative

acts of the victims”, described as follows:

“...in

august 1990 several Gypsies [

țigani

] from the hamlet Cașinul

Nou, behaved contrary to the good morals. They severely disturbed the public

order which aggravated the conflict with the... [non-Roma] population. These...

[conflicts] culminated ... when the Gypsies consumed alcohol in the local pub,

and then ... beat without any apparent reason the peaceful passers-by. In this

context, the other... [non‑Roma] inhabitants decided to chase the Gypsies

out of the hamlet. In order to determine them to leave and not to return to the

hamlet, they decided to burn [the Roma's] houses down.”

13 January 1999

, the

Prosecutor's Office at the Supreme Court of Justice after having examined

the merits of the case, upheld this solution.

9 September 1991

, the mayor of Plăieșii

de Jos purchased a dismantled wooden stable in order to provide the Roma with

materials for the reconstruction of their homes. However, it appears from the

file that the applicant has yet to receive compensation for the belongings

and furniture she had lost during the events.

them to verify the facts of the case since the criminal file of the

investigation into the August 1990 events had been destroyed. The

regulations applicable at the material time allowed the destruction of files on

which a decision not to prosecute due to time bars had been taken. However, the

Government expressed the intention to provide any supplementary information in

the case should the criminal file of the investigations into the events be

pieced together or relevant documents be recovered.

THE LAW

8 December 2006

, the Court received the

following declaration from the Government:

“1. The

Government sincerely regret the failure of the criminal investigation to

clarify fully the circumstances which led to the destruction of the applicant's

home and possessions, which left her living in improper conditions, rendered

difficult her possibility of filing a civil action for damages, as well as the

exercise of her right to respect for home, private and family life. The

Government also regret that remedies for the enforcement of rights in the

Convention generally lacked at the time when the applicant was seeking

justice in domestic courts, and that certain remarks were made by some

authorities as to the applicant's Roma origin.

It is

therefore accepted that such events constitute violations of Article 3

(prohibition of torture), Article 6 (right to a fair trial), Article 8 (right

to respect for private and family life), Article 13 (right to an effective

remedy) and Article 14 (prohibition of discrimination) of the Convention.

2.  I,

Mrs. Beatrice Rămășcanu, agent of the Government of Romania

before the European Court of Human Rights, declare that the Government of

Romania offer to pay

ex gratia

to

the applicant, Irene Gergely, the amount of EUR 36,500 (thirty six thousand

five hundred euros).

The Government

undertake to pay the amount of EUR 1,615 (one thousand six hundred

and fifteen euros) in costs and expenses incurred by the applicant's

representative, the European Roma Rights Centre. This amount shall be paid in

euros to a bank account named by the ERRC.

These

sums shall be free of any tax that may be applicable and shall be payable

within three months from the date of the notification of the striking-out

judgment of the Court pursuant to Article 37 of the European Convention on

Human Rights.

From the

expiry of the above-mentioned period, simple interest shall be payable on

the above amounts at a rate equal to the marginal lending rate of the

European Central Bank during the default period plus three percentage points.

This payment will constitute the final settlement of the case, including the

applicant's civil claims before the domestic courts.

Government undertake to issue appropriate instructions and to adopt all

necessary measures to ensure that the individual rights guaranteed by Articles

3, 6, 8, 13, 14 of the Convention are respected in the future.

The

Government undertake to adopt the following general measures aimed at fighting

the discrimination against the Roma in the

Harghita

County

:

-  ensure

the eradication of racial discrimination within the Romanian judicial system;

-  enhance

the educational programs for preventing and fighting discrimination against

Roma within the school curricula in the Cașinul Nou community,

Harghita

County

;

-  draw

up programs for public information and for removing the stereotypes, prejudices

and practices towards the Roma community in the Harghita public institutions

competent for the Cașinul Nou community;

-  support

positive changes in the public opinion of the Cașinul Nou community

concerning Roma, on the basis of tolerance and the principle of social

solidarity;

-  stimulate

Roma participation in the economic, social, educational, cultural and political

life of the local community in

Harghita

County

, by promoting mutual

assistance and community development projects;

-  implement

programs to rehabilitate housing and the environment in the community, in

particular by earmarking sufficient financial resources for the compensation;

-  identify,

prevent and actively solve conflicts likely to generate family, community or

inter-ethnic violence.

Government consider that the supervision by the Committee of Ministers of the

Council of Europe of the execution of Court judgments concerning

Romania

in this and similar cases is

an appropriate mechanism for ensuring that improvements will continue to be

made in this context.

the Government undertake not to request the reference of the case to the Grand

Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the

Court's judgment.”

to dismiss the Government's proposal and to continue the examination of

the merits of the case. In their view, the criteria for striking out a case by

means of a unilateral declaration, as they were set out by the Court in

the

Tahsin Acar

judgment are not met in

present

case

(

see

Tahsin Acar v. Turkey

(Preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

In particular, they considered that although the Court had already adopted a

judgment on the merits of a similar case, that of

Moldovan v.

Romania

((no. 2)

, nos.

41138/98 and 64320/01, ECHR 2005‑VII (extracts))

, one single judgment

of this nature could not suffice, bearing in mind the complexity of the matters

at hand. Therefore, a new judgment on the merits would be necessary at least to

expose the flaws of the Romanian judicial system and its systematic failure to

provide redress for the Roma victims. In addition, it would hold a great

symbolic value in particular as regards the new forms of discrimination against

the Roma population (with regard to access to education, health, employment or

other public services).

admission as to the State's responsibility for the August 1990 events and had made

no commitment to reopening the investigations into the events.

measures taken by the Government in order to comply with the two

Moldovan

judgments (

no. 2,

cited above and

Moldovan and Others

v. Romania

(friendly settlement), nos. 41138/98 and 64320/01,

could not yet be assessed, as the execution of

those judgments had just started under the supervision of the Committee of

Ministers and was therefore still pending.

the applicants both in the present case and in the

Moldovan

case, they

informed the Court that the Government had not yet initiated several of the

actions they had committed themselves to following the

Moldovan

judgments. Moreover, in their view, the Court is not equipped to assess whether

the same measures would work in the present case. They recalled that monetary

compensation should not outweigh the victim's quest for justice.

representative estimated that the Government's declaration of 8 December 2006

could not be used in the contentious proceedings before the Court, as it emerged

in the context of friendly settlement negotiations between the parties which,

according to Rule 62 § 2 of the Rules of the Court, were strictly confidential.

it may be appropriate to strike out an application under Article 37 § 1 (c) of

the Convention on the basis of a unilateral declaration by the respondent

Government even if the applicant wishes the examination of the case to be

continued. The Court will have to examine carefully the qualified declaration

made by the Government in the light of the principles emerging from its

case-law, in particular the

Tahsin

Acar

judgment (as cited above,

§§ 75-77);

Meriakri v.

Moldova

((striking out), no. 53487/99, 1 March 2005);

Swedish

Transport Workers Union v. Sweden

((striking out), no. 53507/99, 18

July 2006) and

Van Houten v. the Netherlands

((striking out),

no. 25149/03, ECHR 2005‑IX

).

follows:

“1.  The

Court may at any stage of the proceedings decide to strike an application out

of its list of cases where the circumstances lead to the conclusion that...

(c)  for

any other reason established by the Court, it is no longer justified to

continue the examination of the application.

However,

the Court shall continue the examination of the application if respect for

human rights as defined in the Convention and the Protocols thereto so

requires.

Court may decide to restore an application to its list of cases if it considers

that the circumstances justify such a course.”

violations complained about are of a very serious and sensitive nature (see

paragraph 3 above), they have already been exhaustively addressed by the Court

in the case of

Moldovan

, which raised issues similar to the present

case.

declaration made in the present case that the facts of this case constituted

violations of Articles 3, 6, 8, 13 and 14 and proposed several individual

and general measures with a view to redressing the situation (see paragraph 16

above).

issues at hand, and bearing in mind the existence of a final judgment on the

merits in the

Moldovan

case and the admission as to the violations

made by the Government in the present case, the Court, unlike the

applicant's representative, is not convinced of the usefulness of another

judgment on the merits. It recalls that the flaws of the judicial system had

been addressed both in the general measures set out in the friendly settlement

judgment adopted in the case of

Moldovan

, cited above, and in the

unilateral declaration signed by the Government in the present case. As for the

alleged new forms of discrimination against Roma (see paragraph 17 above),

the Court recalls that they fall outside the scope of this case. So does

the initial complaint concerning the events of August 1990 (see the partial decision

of 9 December 2003, cited at paragraph 4 above); consequently, the applicant's

request that the Government make an admission as to alleged violations of the

Convention in this respect could not be addressed by the Court (see paragraph

18 above).

proposed in the

Moldovan

case has already started under the

supervision of the Committee of Ministers. Therefore, the Court shall not

address the applicant's representative's submissions concerning the alleged

ineffectiveness of those measures and of their implementation (see paragraph 20

above), as their examination falls at this moment entirely to the Committee of

Ministers within the execution proceedings.

to its capacity to transpose the general measures from the

Moldovan

case

to the present case (see paragraph 20 above). The Court is satisfied that these

measures, as reiterated in the declaration above (see paragraph 16 of this

judgment), will provide an effective reparation of the alleged violations in

the present case, in so far as they offer tools for the redress of the faults

the Court had identified in the system with a view to improving the situation

of the Roma communities all over the country.

the general measures, the individual measures proposed by the Government offer

redress to the applicant in the present case (see paragraph 20 above).

arguments are concerned (see paragraph 21 above), it is to be noted that

neither the Court nor the Government made any reference to the content of the

friendly settlement negotiation. The unilateral declaration currently under

review was publicly made by the Government with a view to being used, if the

Court deemed necessary.

admissions contained in the declaration as well as the scope and extent of the

various undertakings referred to therein, together with the amount of

compensation proposed, the Court considers that it is no longer justified

to continue the examination of the application (Article 37 § 1 (c)).

human rights as defined in the Convention and the Protocols thereto does not

require it to continue the examination of the application (Article 37 § 1

in

fine

).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.

Takes note

of the terms of the respondent

Government's declaration and of the modalities for ensuring compliance with the

undertakings referred to therein (Rule 43 § 3 of the Rules of Court);

2.

Decides

to strike the case out of its list of cases;

3.

Takes

note

of the Government's undertaking not to request a rehearing of the case

before the Grand Chamber.

Done in English, and notified in writing on

26 April 2007

, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago

Quesada

Boštjan

M.

Zupančič

Registrar                                                                         President