ÎCCJ, decizie (scj.ro #86476)

The case originated in two applications (nos. 41138/98 and 64320/01) against Romania lodged respectively with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 April 1997 and with the European Court of Human Rights on 9 May 2000. The applicants were twenty-five Romanian nationals of Roma origin. Eighteen of the applicants are the subject of a separate judgment (No. 1) involving a friendly settlement. The seven applicants who are the subject of the present judgment on the merits (No. 2) are as follows: the first applicant, Iulius Moldovan , was born in 1959; the second applicant, Melenuța Moldovan , was born in 1963; the third applicant, Maria Moldovan , was born in 1940; the date of birth of the fourth and fifth applicants, Otilia Rostaș and Petru (Gruia) Lăcătuș (resident at Hădăreni, no. 114), is unknown; the sixth applicant, Maria Florea Zoltan , was born in 1964; and the seventh applicant, Petru (Dîgăla) Lăcătuș (resident at Hădăreni, no. 148) was born in 1962.

The applicants in both applications, with the exception of the first applicant, Mr Iulius Moldovan, were represented before the Court by the European Roma Rights Centre (“the ERRC”), an organisation based in Budapest , some of them having originally been represented by the first applicant. The Romanian Government (“the Government”) were represented by their Agent, Mrs R. Rizoiu, from the Ministry of Foreign Affairs.

The applicants alleged, in particular, that the destruction of their property during a riot on 20 September 1993, and the ensuing consequences, disclosed a breach by the respondent State of its obligations under Articles 3, 6, 8 and 14 of the Convention.

Application no. 41138/98 was transmitted to the Court on 1 November 1998 , when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 13 March 2001 the Chamber decided to join the proceedings in the applications (Rule 42 § 1).

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

By a decision of 3 June 2003 , the Court declared the applications partly admissible.

The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations.

On 4 and 19 March 2004, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 19 April 2004 and 18 May 2004 eighteen of the original applicants and the Government, respectively, submitted formal declarations accepting a friendly settlement of the case.

On 19 April 2004 , the present applicants informed the Court that they did not wish to reach a friendly settlement.

On 1 November 2004 the Court changed the composition of its sections (Rule 25 § 1), but this case was retained by the former Second Section.

On 16 June 2005 , the Court adopted the first judgment striking the case out of the list insofar as it concerned the friendly settlement between the eighteen applicants and the Government. That judgment severed the application insofar as it concerns the present applicants and adjourned the examination of the complaints introduced by them.

The present judgment (No. 2) examines the merits of those complaints. THE FACTS I. THE

The facts of the case, as submitted by the parties, may be summarised as follows: A. The incident in 20 September 1993

On the evening of 20 September 1993 a row broke out in a bar in the centre of the village of Hădăreni (Mureș district). Rapa Lupian Lăcătuș and Aurel Pardalian Lăcătuș, two Roma brothers, along with another Rom, Mircea Zoltan, began to argue with a non-Rom, Chețan Gligor. The verbal confrontation developed into a physical one which ended with the death of Chețan Crăciun, who had come to the aid of his father. The three Roma then fled the scene and sought refuge in a neighbour’s house.

Soon afterwards, news of the incident spread and a large number of villagers learned of Chețan Crăciun’s death. Enraged, they gathered together to find the Roma. The angry mob arrived at the house where the three were hiding and demanded that they come out. Among the crowd were members of the local police force in Hădăreni, including the Chief of Police Ioan Moga, and Sergeant Alexandru Șușcă, who had heard of the incident. When the brothers refused to come out, the crowd set fire to the house. As the fire engulfed the house, the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs. The two brothers died later that evening. Mircea Zoltan remained in the house, where he died in the fire. It appears that the police officers present did nothing to stop these attacks. The applicants alleged that, on the contrary, the police also called for and allowed the destruction of all Roma property in Hădăreni.

Later that evening the villagers decided to vent their anger on all the Roma living in the village and proceeded to burn the Roma homes and property in Hădăreni, including stables, cars and goods. The riots continued until the following day. In all, thirteen Roma houses belonging to the applicants were destroyed. The individual applicants made the following allegations: 1. Iulius Moldovan

The applicant alleged that it was on his property that the three Roma were killed on 20 September 1993 . His home and other property were set on fire and destroyed. 2. Melenuța Moldovan

The applicant alleged that her house and various personal possessions were destroyed by the fire. 3. Maria Moldovan

The applicant alleged that, on the evening of 20 September 1993 , an angry mob had appeared at her door, entered the house and destroyed all her belongings. The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it. The next day, when she had returned home with her husband and daughter, she had been met by an enraged mob of villagers who had prevented her from entering the house. Police officers Ioan Moga, Alexandru Șușcă and Florin Nicu Drăghici had taken hold of her, sprayed pepper in her face and then proceeded to beat her badly. Costică Moldovan had witnessed these events. Colonel Drăghici had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs. The applicant declared that her house had been damaged and that she had lost valuables and other possessions. 4. Otilia Rostaș

The applicant alleged that on the evening of 20 September 1993 she had learned from her eleven-year-old daughter what was happening in Hădăreni. Her daughter had told her that a neighbour had said that the non-Roma villagers wanted to kill all the Gypsies in retaliation for the death of Chețan Crăciun.

Fearing for the safety of her children, the applicant had taken them to her mother’s house. Later that evening, when she returned, she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire. As she ran back to her mother’s house, she saw three people armed with clubs, urging the mob to set fire to it. Within minutes, her mother’s home was in flames.

The following day the applicant had attempted to return to what was left of her home to assess the damage. As she approached her property, she had been threatened verbally and physically by an angry mob of non-Roma villagers and police officers. One villager had threatened her with a shovel and others had violently thrown rocks at her. The villagers, including the police officers present, had prevented her from entering what remained of her home. Fearing for her safety, the applicant and her children had left Hădăreni.

Later that day she had once again attempted to return to her home along with other Roma villagers. This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers, all of whom had been carrying clubs. Police officers had also been among the crowd. Among the enraged mob of villagers, the applicant had recognised Officer Nicu Drăghici, who was holding a truncheon. A police car had even pursued the applicant and other Roma trying to return to their homes, firing shots at them and shouting at them to leave the village. The applicant alleged that her house had been destroyed and that she had lost valuable goods. 5. Petru (Gruia) Lăcătuș

Petru (Gruia) Lăcătuș alleged that his house had been destroyed, as had the three cars he had had in the courtyard. 6. Florea Maria Zoltan

The applicant stated that, on the night of 20 September 1993 , her husband, Mircea Zoltan, and her two brothers, Rapa Lupian Lăcătuș and Aurel Pardalian Lăcătuș, had been brutally murdered in the Hădăreni pogrom. She alleged that one of the thirteen Roma houses set on fire that evening had belonged to her late mother, Cătălina Lăcătuș. 7. Petru (Dîgăla) Lăcătuș

The applicant alleged that his house had been destroyed and that he had lost valuable goods. His wife had been pregnant at the time of the incident and, because she had been beaten and had experienced severe fear, the baby had been born with brain damage. B. The investigation into the incident

In the aftermath of the incident the Roma residents of Hădăreni lodged a criminal complaint with the Public Prosecutors’ Office. The complainants identified a number of individuals responsible for what had occurred on 20 September 1993 . Among those identified were several police officers: Chief of Police Ioan Moga, his assistant Sergeant Alexandru Șușcă, Colonel Florentin Nicu Draghici, a certain Panzaru from Luduș, and Lieutenant Colonel Constantin Palade, the Mureș County Chief of Police.

Thereafter, an investigation was initiated which identified the offenders who had actively participated in the killing of the Lăcătuș brothers and Mircea Zoltan, and the destruction of Roma houses and other property.

On 21 July 1994 three civilians – P.B., I.B. and N.G. - were remanded in custody. They were charged with extremely serious murder (under Articles 174 and 176 of the Criminal Code) and arson (under Article 217 § 4 of the Criminal Code). However, a few hours later they were released and all warrants for their arrest were set aside by order of the General Prosecutor.

By an order of 31 October 1994 , on the basis of ample evidence that suggested police involvement in the incident, the case was sent to the Târgu-Mureș Military Prosecutors’ Office, which had jurisdiction to investigate crimes committed by police officers. According to the order of the Public Prosecutors’ Office of the Târgu-Mureș Court of Appeal, Lieutenant Colonel Palade had organised a small meeting with non-Roma villagers after the incident, advising them “not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves.”

By a resolution dated 15 November 1994 , the Târgu-Mureș Military Prosecutors’ Office ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and Sergeant Șușcă. According to the military prosecutor, the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the Lăcătuș brothers and had even directly participated in setting fire to certain houses. On the basis of oral evidence, the prosecutor found that officers Moga and Șușcă had participated in the events and “repeatedly” incited the villagers to take action against the men barricaded in the house, telling them to “set them on fire, because we cannot do anything to them”. Moreover, he found that Lieutenant Colonel Palade had required the inhabitants of Hădăreni “not to tell anyone anything about the actions of the police officers, and everything will be forgotten and you shall bear no consequences.”

On 10 January 1995, having regard to the involvement of Colonel Palade, the Târgu-Mureș Military Prosecutor declined jurisdiction to investigate the case and referred it to the Bucharest Territorial Military Prosecutors’ Office.

On 22 August 1995 Colonel Magistrate M.S., the military prosecutor at the Bucharest Military Court, decided not to open a criminal investigation, stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga, Lieutenant Colonel Palade or Sergeant Șușcă in the crimes committed during the riots. As to the statements made by various witnesses confirming the involvement of these police officers, the prosecutor found that one of them had been made by the sister of two of the victims and, given the fact that the officers had punished the victims several times, her evidence was obviously tendentious. The prosecutor found the other oral evidence confused. He concluded that the police officers could not be accused of having committed crimes, “even though one should accept that during the events they had used words such as ‘do what you want, I have a family to take care of’ or ‘they will come out immediately if you set the house on fire’. Moreover, we cannot consider the lack of initiative and the inability of the two policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity.”

In September 1995, the Head of the Bucharest Territorial Military Prosecutors’ Office upheld the decision, refusing to open an investigation, and all charges against the police officers were dropped. An appeal lodged by the injured parties was dismissed by the Military Prosecutors’ Office of the Supreme Court of Justice.

On 12 August 1997, the Public Prosecutor of the Târgu-Mureș Court of Appeal issued an indictment charging eleven civilians suspected of having committed crimes on 20 September 1993.

Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident. Several defendants testified that two police cars driving to the scene of the incident that night had ordered, over their loudspeakers, that the house where the three Roma victims were hiding be set on fire.

On 11 November 1997 a criminal trial, in conjunction with a civil case for damages, began against the civilian defendants in the Târgu-Mureș County Court. During these proceedings, the applicants learned of the overwhelming extent of the evidence against the police. Various witnesses testified that police officers had not only been present that evening but had actually instigated the incident and then stood idly by as the two Lăcătuș brothers and Mircea Zoltan were killed and Roma houses destroyed. In this connection, witnesses cited the names of Chief of Police Moga, Colonel Drăghici and Sergeant Șușcă.

In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants’ lawyer asked the court to extend the indictment of 17 July 1997. As a result, the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned.

The applicants Iulius Moldovan and Floarea Zoltan asked the court in writing to extend the criminal charges. According to them, the prosecutor refused to do so.

On 23 June 1998 the Târgu-Mureș County Court severed the civil and the criminal case because the criminal investigation had already lasted four years and the determination of the civil aspect would take even longer. C. The judgment of 17 July 1998 and the decisions on appeal

On 17 July 1998 the Târgu-Mureș County Court delivered its judgment in the criminal case. It noted the following: “The village of Hădăreni, belonging to the commune of Chețani, is situated in the south-west Mureș district on the main road between Târgu-Mureș and Cluj and has a population of 882 inhabitants, of which 641 are Romanians, 145 Hungarians and 123 Roma. The Roma community represents 14% of the total population and the marginal lifestyle of some categories of Roma, especially the ones who settled in the village after 1989, has often generated serious conflicts with the majority of the population. Due to their lifestyle and their rejection of the moral values accepted by the rest of the population, the Roma community has marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society. Most of the Roma have no occupation and earn their living by doing odd jobs, stealing and engaging in all kinds of illicit activities. As the old form of common property that gave them equal rights with the other members of the community was terminated, the Roma population were allocated plots of land. However, they did not work the land and continued to steal, to commit acts of violence and to carry out attacks, mainly against private property, which has generated even more rejection than before. Groups of Roma have started arguments with the young people in the village, attacked them or stolen their goods and money. Moreover, they ostentatiously use insults, profanities and vulgar words in public places… The records of the criminal-investigation authorities and of the courts of law in Mureș County disclose that seven criminal cases were registered between 1991 and 1993, having as their object acts of violence ranging from simple blows to murder. In fact, the real number of the crimes committed by the Roma was much higher, but many of them were not judged in court because the injured parties did not file complaints, withdrew them or made peace with the perpetrators, for fear of vindictive threats by the Roma. The community feels that most of the disputes were solved in an unfair, unsatisfactory manner in favour of Roma and this has caused an increase in the number of personal or collective vindictive actions.”

The court went on to establish that, on the evening of 20 September 1993, the Lăcătuș brothers and Mircea Zoltan had been waiting at the village bus station and had quarrelled with Chețan Gligor about the attempts made by the three Roma to attract the attention of a girl. Answering the Roma’s mockery and insults addressed to him and to his cow, Chețan Gligor started to threaten the Roma with his whip and even hit Pardalian Lăcătuș. A fight followed, during which Chețan Crăciun, who had intervened to defend his father, was stabbed in the chest by Rapa Lupian Lăcătuș. The Roma ran away, while Chețan Crăciun was brought to the hospital, where he died about half an hour later. During that time the Roma took refuge in the house of the applicants Lucreția and Iulius Moldovan, while villagers gathered around the yard of the house. Two police officers, Chief of Police Moga and Sergeant Șușcă, arrived at the scene of the incident minutes later, having been called by some villagers. The policemen were allegedly under the influence of alcohol. Before and after the arrival of the police, the villagers threw stones, pieces of wood and clods of earth at the house and shouted things like “Set fire to the house! Let them burn like rats!” A villager started to throw flammable materials at the house and was soon followed by others, including children. When the fire spread, two of the Roma men came out of the house. Rapa Lupian Lăcătuș was immediately immobilised by Mr Moga, while Pardalian Lăcătuș managed to run away. Mircea Zoltan was stopped from coming out of the house by a villager and was hit by another’s fist and a shovel, which finally led to his dying in the fire. His carbonized body was found the following day in the burned-down house. The autopsy report established that he had died from respiratory failure, 100% carbonized.

To escape the fury of the villagers, Chief of Police Moga took Rapa Lupian Lăcătuș to the cemetery, after trying in vain to enter several courtyards in the village, which were all locked. The court noted that “the policeman [Moga], realising his presence was useless, abandoned his prisoner to the infuriated crowd”. According to the autopsy report, Rapa Lupian Lăcătuș died a violent death from shock and internal bleeding, with multiple traumatic injuries affecting his liver, a hemiperitoneum and peripheral haematoma on 70% of his body.

Pardalian Lăcătuș was caught by the crowd near the cultural centre, where he was beaten to death. The autopsy report found that he had died as a result of direct blows from blunt objects causing eighty-nine lesions on his body (multiple fractures of his arms, ribs and thorax, and multiple traumatic injuries and contusions).

During the trial, all the civilian defendants stated that, in addition to officers Moga and Șușcă, two other policemen had arrived from the city of Luduș and encouraged the crowd to set fire to the houses. Two police cars had also arrived at Hădăreni, from which it was announced over loudspeakers that only the detached houses of the Gypsies should be set on fire in order not to cause accidents. At a meeting held the next day in the village square, Lieutenant Colonel Palade stated that the case would be covered up and a scapegoat found.

All the accused stated that they had been arrested for the first time in 1994, but only for a few hours or days, after which they had been released in order to allow them to harvest the crops, a reason they found strange, since most of them were not farmers. They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them. They were not questioned further until 1997, when they were arrested again.

The court further established that the villagers had declared that, on the night in question, the village was to be “purged of the Gypsies”, an intention clearly put into action, and found that, “The majority of the population of Hădăreni was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire, but also surrounded the area with groups of gendarmes.”

The court found that the action was not premeditated, but that all those present had acted jointly, in different ways (assault, murder, fire, destruction, etc.), to reach their declared goal of eliminating the Roma community from the village.

The court held that the preliminary investigation had been inadequate: “We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims (Chețan Crăciun, Lăcătuș Rapa Lupian and Zoltan Mircea died on 21 September 1993 and the forensic reports were drafted in November 1993; mention should be made of the fact that none of the four forensic reports gave specific dates, but only an indication of the month when they were drafted) ... [Moreover,] the electoral meeting organised at the village stadium, attended by politicians, representatives of the police and the law, ... asked the population not to tell the truth and to delay the resolution of the case.”

The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “other persons”. Therefore, the court could only rule in respect of those perpetrators prosecuted in accordance with Article 317 of the Code of Criminal Procedure.

The court convicted five civilians of extremely serious murder under Articles 174 and 176 of the Criminal Code and twelve civilians, including the former five, of destroying property, outraging public decency and disturbing public order. Among those convicted of destruction of property and disturbance was V.B., the Deputy Mayor of Hădăreni. The court pronounced prison sentences ranging from one to seven years, and noted that those given terms of less than five years had half the sentence pardoned under Law no. 137/1997. The court justified the sentences as follows: “Taking into consideration the characteristics of this particular case, the punishments applied to the defendants might seem too mild compared to the gravity of the crimes. We consider that, as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation, although there was enough evidence to prove their guilt, the defendants who were prosecuted should not be held responsible for all the crimes committed, but only for that part for which they are liable.”

On 17 July 1998, the Public Prosecutors’ Office appealed against this judgment, asking, inter alia , for heavier sentences. On 15 January 1999, the Târgu-Mureș Court of Appeal convicted a sixth civilian, P.B., of extremely serious murder under Articles 174 and 176 of the Criminal Code, sentencing him to six years’ imprisonment. It also increased the sentence under Article 174 in respect of N.G. to six years’ imprisonment. However, it reduced the other sentences under Articles 174 and 176: in respect of V.B. and S.I.P. from seven to six years’ imprisonment, in respect of V.B.N. and S.F. from five to two years’ imprisonment, and in respect of N.B., I.B. and O.V. from three to two years’ imprisonment. Finally, it discontinued the criminal proceedings against the Deputy Mayor V.B.

The Court of Appeal also reduced the sentences of those convicted of destruction of property under Article 217 of the Criminal Code.

On 22 November 1999, the Supreme Court of Justice upheld the lower courts’ convictions for destruction, but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for V.B., P.B. and S.I.P., sentencing them to five years’ imprisonment. It acquitted P.B. and N.G.

By a decree of 7 June 2000, the President of Romania issued individual pardons to S.I.P. and P.B., convicted of serious murder, whereupon they were released. D. The appeal procedure concerning the refusal to open an investigation against State authorities

On 22 August 1999, following new evidence brought to light in the criminal trial, the applicants lodged an appeal with the Military Prosecutors’ Office of the Supreme Court of Justice against the decision of 22 August 1995 not to open an investigation against the police officers involved in the incidents of 20 September 1993.

On 14 March 2000 the Chief Military Prosecutor of the Supreme Court of Justice upheld the Bucharest Military Court’s decision of 22 August 1995. E. Reconstruction of the houses destroyed during the events and the victims’ living conditions

By decision no. 636 of 19 November 1993, the Romanian Government allocated 25,000,000 Romanian lei (ROL)[1] for the reconstruction of the eighteen houses destroyed by fire on 20 September 1993. The Government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance.

By a Government decision of 30 November 1993, a commission for the co-ordination of the reconstruction of the houses was created. Members of this commission included the mayor of Chețani, G.G., and his Deputy, V.B.

In a letter of 30 June 1994 addressed to the Government, the Prefect of Mureș indicated that an additional amount of ROL 53,000,000[2] was needed to rebuild the remaining ten houses.

By decision no. 773 of 25 November 1994, the Government granted an additional sum of ROL 32,000,000[3] in funds, which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. As shown in photographs submitted by the applicants, these constructions were defective, as there appear to be huge gaps between the window frames and the walls, and the roofs only partially cover the houses.

In a letter dated 30 November 1994 addressed to the Prefect of Mureș, Petru Rostaș, the father-in-law of the applicant Otilia Rostaș, requested that her house be rebuilt as a priority because, since the events, she had been living with her four children in a hen-house.

In a letter dated 8 November 1995, Liga Pro Europa , a human-rights association based in Târgu-Mureș, informed the Prefect that six houses had still not been rebuilt, which meant that six families had to spend another winter without a dwelling. Moreover, according to the association, most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used. In a letter addressed to the Prefect in 1995, the mayor of Chețani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems” based in part on “the behaviour of the three families”, “the seriousness of the acts committed and the attitude of the population of Hădăreni towards these families”. In particular, one of the houses to be rebuilt was on land near the non-Rom family’s victim (Chețan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma “criminals” who had died during the 1993 events. It appeared that, after the events, the Lăcătuș family had started living in the city of Luduș, so the mayor had proposed that a house be built for them at a place of their choice.

To date, six houses have not been rebuilt, of which two belonged to the applicants Petru (Dîgăla) Lăcătuș and Maria Floarea Zoltan. According to an expert report submitted by the Government, the damage caused to the houses of Petru (Gruia) Lăcătuș and Moldovan Maria had not been repaired, whereas the houses of Iulius Moldovan and Otilia Rostaș had been rebuilt but required finishing work.

On 2 September 1997 the applicant Iulius Moldovan wrote a letter to the President of Romania, informing him that six houses, including his, had still not been rebuilt. He urged the President to grant the necessary funds for the reconstruction of the houses, since he and his family were living in very difficult conditions in the home of the Rostaș family: fifteen people, including nine children, were living in two rooms and sleeping on the floor, which resulted in the children being continually ill.

The applicants submitted that, in general, following the events of September 1993, they had been forced to live in hen-houses, pigsties, windowless cellars, or in extremely cold and deplorable conditions: sixteen people in one room with no heating; seven people in one room with a mud floor; families sleeping on mud or concrete floors without adequate clothing, heat or blankets; fifteen people in a summer kitchen with a concrete floor (Melenuța Moldovan), etc. These conditions had lasted for several years and, in some cases, continued to the present day.

As a result, the applicants and their families fell ill. In particular, the applicant Petru (Gruia) Lăcătuș had developed diabetes and begun to lose his eyesight. F. The outcome of the civil case

Following the decision of 23 June 1998 to sever the civil and criminal proceedings, on 12 January 2001 the Mureș Regional Court delivered its judgment in the civil case. The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents (furniture, etc.), as well as non-pecuniary damages. 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 these acts. Basing its decision on an expert report, the court awarded pecuniary damages 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 pecuniary damages in respect of the partial or total destruction of the houses of six Roma, including those of the third and fifth applicants. The court rejected the other applicants’ request for pecuniary damages in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same or even higher than the original buildings. It further refused all applicants damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets. The court stated, inter alia : “Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings. He claimed in particular that he was in the sheep business, from which he drew a substantial income, for instance, that he had a ton of wool in the attic of his house. However, from the information obtained by the court from the local tax office in Chețani, it appears that the civil party was not registered as having any income… The damage suffered because of the destruction of the chattels and furniture has not been substantiated. The civil parties consider that their own statements, the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims. Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses, the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties. Last but not least, the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have. Neither civil party adduced proof of having an income such as to allow them to acquire so many goods. As noted previously, the parties had no income at all. Moreover, the shape of the houses, the materials used for their construction and the number of rooms show an evident lack of financial resources. It should be stressed in this context that only work can be the source of revenue, and not events such as the present one...”

The court finally rejected all the applicants’ requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.

The court ordered the villagers convicted in the criminal trial to pay the damages awarded.

Having regard to some procedural errors in the Mureș Regional Court’s judgment, the applicants lodged an appeal with the Mureș Court of Appeal.

On 17 October 2001 the Mureș Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureș Regional Court: the hearings had been held in the absence of the accused and their lawyers; one of the original applicants, Adrian Moldovan, had not been summoned; the public prosecutor had not been given leave to address the court; a number of expert reports ordered by the court had not been completed, and confusion had been created as to the number and names of the victims and their children. The Court of Appeal concluded that these errors rendered the proceedings null and void. It therefore quashed the judgment of 12 January 2001 and ordered a new trial of the case.

The Mureș Regional Court delivered its judgment in the civil case on 12 May 2003. The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents (furniture, etc.), as well as non-pecuniary damages. 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. As a result of these events, the State had granted some money for the reconstruction of the houses. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the following damages to be paid by the civilians found guilty by the criminal court: (a) Iulius Moldovan was awarded ROL 130,000,000[4] in pecuniary damages in respect of the destroyed house, to be revised to take account of any devaluation in the national currency. The court further heard evidence from witnesses confirming that various assets belonging to the applicant, including furniture, belongings and the proceeds from the sale of more than 260 sheep, had been destroyed during the fire. However, the court refused to award damages on the ground that it was impossible to assess the loss. (b) As regards Otilia Rostaș, the court noted that her house did not appear on the list of the houses (totally or partially) destroyed drawn up by Chețani Town Hall. The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house, but noted that there was no evidence to evaluate the damage. Therefore, it rejected the request for pecuniary damages. (c) Petru (Gruia) Lăcătuș was awarded ROL 16,000,000[5] in pecuniary damages in respect of the destroyed house. The court noted the applicant’s claim that various assets he had owned had been destroyed during the fire – furniture, three cars, jewellery and money – but rejected it as unsubstantiated. (d) As regards Melenuța Moldovan, the court awarded ROL 28,000,000[6] for the destroyed house. The court heard evidence from two witnesses confirming that the applicant had had various belongings which had been destroyed by the fire, but refused to award damages in that respect, as there was no evidence as to their value. (e) Maria Moldovan was awarded ROL 600,000[7] for the destroyed house. The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value. (f) Petru (Dîgăla) Lăcătuș was awarded, together with Floarea Maria Zoltan and Monica Simona Lăcătuș, as the brother and sisters of the deceased victims, ROL 60,000,000[8] for the destroyed house, to be revised to take account of any devaluation in the national currency. The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated. It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims. (g) Floarea Maria Zoltan, the widow of one of the victims who had died burned alive during the riots, also requested a maintenance allowance for her minor child. The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats, she had not submitted any evidence as to his income, and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance, namely, ROL 2,500,000[9]. Moreover, it found that it was impossible to establish how much the applicant’s husband used to spend on his child’s maintenance, and applied the minimum granted by the Family Code, that is one quarter of the minimum wage, which amounted to ROL 625,000[10]. Finally, the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above-mentioned amount. It therefore awarded ROL 312,500[11] per month in maintenance allowance for the applicant’s minor child. Finally, the court rejected all the applicants’ requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.

On appeal by the persons convicted and the applicants, the Târgu-Mureș Court of Appeal gave judgment on 24 February 2004. The court recalled that, under the combined provisions of the Civil Code and the Codes of Criminal and Civil Procedure, it was bound by the ruling of the criminal court. Referring to recent publications by Romanian authors in the field of civil law and the Court’s case of Akdivar v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV), the court found that, “By their behaviour, the accused infringed the property rights of the complainants, for which pecuniary damages had already been awarded; however, some of the civil parties should also be awarded damages from a moral point of view. Some of the civil parties were deprived emotionally, as a result of the damage sustained, of the security which they had felt in the destroyed houses, of the comfort they had enjoyed as a result of the facilities of the houses, all these movable and immovable goods being the result of their work, which guaranteed them a normal standard of living, having regard to their personalities ... As shown above, the accused committed the crimes in a state of provocation, which led the court to apply the provisions of Article 73 of the Criminal Code [regarding extenuating circumstances]. For this precise reason, the civil parties enumerated below are entitled to a certain amount of damages, but not the amount requested...” The court awarded the following amounts: ROL 100,000,000[12] to Floarea Maria Zoltan as it found that she had had to leave the village and wander homeless in the country and abroad; ROL 50,000,000[13] to Iulius Moldovan as he had been profoundly affected by the events, had lost his fortune and his health had deteriorated substantially; ROL 30,000,000[14] to Otilia Rostaș as she had suffered psychological and emotional trauma for the same reasons; ROL 20,000,000[15] to Melenuța Moldovan for the same reasons as Otilia Rostaș; ROL 15,000,000[16] to Maria Moldovan for the psychological trauma suffered as a result of the partial destruction of her house; and ROL 70,000,000[17] to Petru (Dîgăla) Lăcătuș since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents’ house. No award was made in respect of Petru (Gruia) Lăcătuș.

The civil parties filed an appeal against this judgment, which was rejected by a final decision of the Court of Cassation, on 25 February 2005.

Article 244 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action can suspend the proceedings: “...2. if criminal proceedings have been instituted in relation to a crime, the determination of which is decisive for the outcome of the civil dispute.” Code of Criminal Procedure Article 10 (c) “Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ... c) the act was not committed by the defendant; ... ” Article 15 “The person who has suffered civil damage can join the criminal proceedings... He or she can do so either during the criminal investigation... or before the court...” Article 22 “The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed, and the identification of the perpetrator and his guilt, are binding on the civil court when it examines the civil consequences of the criminal act.” Article 343 § 3 “In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action. Civil damages cannot be awarded if an acquittal was decided on the ground that the impugned act did not exist or was not committed by the accused.” Civil Code 80 . Articles 999 and 1000 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 negligently caused it. 81 . Article 1003 of the Civil Code provides that, where more than one person has committed an intentional tort, they shall be jointly and severally liable. Case law of the domestic courts 82 . The Government submitted a number of cases in which domestic courts had decided that the prosecutor’s decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question. 83 . The Government submitted only one case, dating back to 1972, in which the Supreme Court had decided that the prosecutor’s decision, based on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. The Supreme Court’s decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action. Legal doctrine 84 . The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996).

The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor’s decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant. In such a case, civil courts are entitled to decide whether the acts were committed and by whom, but have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crișu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988). THE LAW

Article 8 of the Convention provides, insofar as relevant, as follows: “1. Everyone has the right to respect for his private and family life, [and] his home... 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 ... 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.” A. Arguments of the parties 1. The applicants

The applicants complained that, after the destruction of their houses, they could no longer enjoy the use of their homes and had to liv