ÎCCJ, decizie (scj.ro #86476)

ÎCCJ, decizie (scj.ro #86476) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES

DROITS DE L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

FORMER SECOND SECTION

CASE OF MOLDOVAN AND

OTHERS v.

ROMANIA

(as regards the

applicants Iulius Moldovan, Melenuța Moldovan, Maria Moldovan, Otilia Rostaș,

Petru (Gruia) Lăcătuș

,

Maria

Floarea Zoltan and Petru (Dîgăla) Lăcătuș

)

(Applications nos. 41138/98

and 64320/01)

JUDGMENT No. 2

STRASBOURG

12 July

2005

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 Moldovan and Others v. Romania

(as regards

Iulius Moldovan, Melenuța Moldovan, Maria Moldovan, Otilia Rostaș, Petru

(Gruia) Lăcătuș

,

Maria Floarea Zoltan

and Petru (Dîgăla) Lăcătuș

)

,

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

a Chamber composed of:

Mr

J.-P.

Costa

,

President

,

Mr

L.

Loucaides

,

Mr

C.

Bîrsan

,

Mr

K.

Jungwiert

,

Mr

V.

Butkevych

,

Mrs

W.

Thomassen

,

Mrs

A.

Mularoni,

judges

,

and Mrs

S.

Dollé

,

Section Registrar

,

Having deliberated in private on

3 June

2003

and

16 June 2005

,

Delivers the following judgment, which was adopted on the last‑mentioned

date:

PROCEDURE

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.

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.

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.

Court on

1 November 1998

, when Protocol No. 11 to the

Convention came into force (Article 5 § 2 of Protocol No. 11).

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.

13 March 2001

the Chamber decided

to join the proceedings in the applications (Rule 42 § 1).

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).

3 June

2003

, the Court declared the applications partly admissible.

parties, that no hearing on the merits was required (Rule 59 § 3

in fine

),

the parties replied in writing to each other’s observations.

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.

19 April 2004

, the present applicants

informed the Court that they did not wish to reach a friendly settlement.

1 November 2004

the Court changed the

composition of its sections (Rule 25 § 1), but this case was retained by the

former Second Section.

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.

of those complaints.

THE FACTS

I.  THE

CIRCUMSTANCES OF THE CASE

origin. They used to live in the

village

of

Hădăreni

, in the Mureș

district, and are agricultural workers.

After the events

described below, some applicants returned to live in Hădăreni, while others,

who are homeless, live in various parts of the country. Mr Iulius Moldovan is

currently living in

Spain

and Mrs Maria Floarea Zoltan is living in the

United

Kingdom

.

parties, may be summarised as follows:

A.  The incident in

20 September

1993

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.

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.

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:

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.

personal possessions were destroyed by the fire.

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.

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.

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.

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.

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.

been destroyed, as had the three cars he had had in the courtyard.

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.

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

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.

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.

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.

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.”

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.”

of Colonel Palade, the Târgu-Mureș Military Prosecutor declined

jurisdiction to investigate the case and referred it to the Bucharest

Territorial Military Prosecutors’ Office.

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.”

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.

Târgu-Mureș Court of Appeal issued an indictment charging eleven civilians suspected

of having committed crimes on 20 September 1993.

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.

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.

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.

asked the court in writing to extend the criminal charges. According to them,

the prosecutor refused to do so.

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

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.”

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.

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.

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).

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.

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.

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.”

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.

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.”

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.

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.”

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.

those convicted of destruction of property under Article 217 of the Criminal

Code.

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.

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

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.

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

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.

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.

Government, the Prefect of Mureș indicated that an additional amount of ROL 53,000,000[2] was needed to rebuild the

remaining ten houses.

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.

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.

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.

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.

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.

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.

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

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...”

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.

criminal trial to pay the damages awarded.

Mureș Regional Court’s judgment, the applicants lodged an appeal with the Mureș

Court of Appeal.

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.

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.

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.

judgment, which was rejected by a final decision of the Court of Cassation, on

25 February 2005.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

Code of Civil Procedure

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).

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

I.  ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION

“No one shall be subjected to torture or to inhuman or

degrading treatment or punishment.”

relevant, as follows:

“1.  Everyone has the right to respect for his

private and family life, [and] his home...

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

applicants complained that, after the destruction of their houses, they could

no longer enjoy the use of their homes and had to liv