ÎCCJ, decizie (scj.ro #86474)

ÎCCJ, decizie (scj.ro #86474) (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

(Applications nos.

41138/98 and 64320/01)

JUDGMENT No. 1

(

friendly

settlement

)

STRASBOURG

5 July

2005

This judgment is final (as regards the applicants

Valentina Rostaș, Lucreția Rostaș, Silvia Moldovan, Eleonora Rostaș, Octavian

Rostaș, Bazil Moldovan, Ghioloanca Lăcătuș, Adrian Moldovan, Lucreția Moldovan,

Maria Lăcătuș, Ferdinand Lăcătuș, Adrian Moldovan, Petru “Gălbinuș” Lăcătuș,

Petru “Petrișor” Lăcătuș, Persida Dorina Rostaș, Mariana Moldovan, Bazil-Sami

Lăcătuș and Lucaci Moldovan) but it may be subject to editorial revision.

In the case of Moldovan and Others v.

Romania

,

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 on

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 are twenty-five Romanian nationals of Roma origin: the

first applicant,

Iulius Moldovan

, was born in 1959; the second

applicant,

Melenuța Moldovan

, was born in 1963; the third applicant,

Valentina

Rostaș

, was born in 1964; the fourth applicant,

Lucreția Rostaș

, was

born in 1950; the fifth applicant,

Silvia Moldovan

, was born in 1955;

the sixth applicant,

Eleonora Rostaș

, was born in 1956; the seventh

applicant,

Octavian Rostaș

, was born in 1958; the eighth applicant,

Bazil

Moldovan

,

was born in 1943; the ninth applicant,

Maria Moldovan

, was born in 1940;

the tenth applicant,

Ghiolo

anca

Lăcătuș

, was born

in 1933; the eleventh applicant,

Adrian Moldovan

(resident at

Hădăreni, no. 195 A), was born in 1943; the twelfth applicant,

Lucreția

Moldovan

, wife of the eighth applicant, was born on an unknown date; the

thirteenth applicant,

Maria Lăcătuș

, wife of the nineteenth applicant,

was born in 1959; the dates of birth of the fourteenth, fifteenth,

sixteenth, seventeenth, eighteenth and nineteenth applicants -

Otilia Rostaș

,

Ferdinand Lăcătuș

,

Adrian Moldovan (resident at Hădăreni, no. 170)

,

Petru “Gălbinuș”‘ Lăcătuș

(resident at Hădăreni, no. 51),

Petru

“Petrișor”

Lăcătuș

(resident at Hădăreni no. 115) and

Petru

“Gruia” Lăcătuș

(resident at Hădăreni, no. 114) – are unknown; the

twentieth applicant,

Maria Florea Zoltan

, was born in 1964; the

twenty-first applicant,

Persida Dorina

Rostaș

, was born in 1970;

the twenty-second applicant,

Mariana Moldovan

, filed the

application on behalf of her late mother,

Rozalia Rostaș

(dates of birth

unknown); the twenty-third applicant,

Bazil-Sami

Lăcătuș

, the son

of the tenth applicant and the twenty-fourth applicant,

Lucaci Moldovan,

were similarly born on an unknown date, and the twenty-fifth applicant,

Petru 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, which

guarantee,

inter alia

, freedom from inhuman and degrading treatment,

access to a court for a fair determination of civil rights and obligations, the

right to respect for private and family life and home, and freedom from

discrimination in the enjoyment of Convention rights and freedoms.

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, the following eighteen applicants

and the Government, respectively, submitted formal declarations accepting a

friendly settlement of the case: Bazil Sami Lăcătuș, Adrian Moldovan and his

wife Silvia Moldovan, Ferdinand Lăcătuș, Ghiolo

anca

Lăcătuș,

Lucaci Moldovan, Octavian Rostaș and his wife Eleonora Rostaș, Lucreția Rostaș,

Adrian Moldovan (house no. 195 A), Mariana Moldovan, Maria Lăcătuș, Petru

“Gălbinuș” Lăcătuș, Persida Dorina Rostaș, Valentina Rostaș, Petru “Petrișor”

Lăcătuș, Bazil Moldovan and his wife Lucreția Moldovan.

19 April 2004

the following seven

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

settlement in this case: Iulius Moldovan, Melenuța Moldovan, Maria Moldovan,

Petru “Gruia” Lăcătuș, Petru (Dîgăla) Lăcătuș, Otilia Rostaș and Maria Floarea

Zoltan. Their case is the subject of a separate judgment on the merits, adopted

on the same day as the present text.

19 April 2004

the applicants’

representatives informed the Court that the applicant Silvia Moldovan had died

and that her husband, Adrian Moldovan, also an applicant in this case, and

their minor children, Adrian Silviu and Adriana Moldovan, wished to pursue the

case on her behalf.

17 August 2004

the applicants’

representatives informed the Court that the applicant Bazil Moldovan had died

and that his wife Lucreția Moldovan and their eleven children wished to

continue with the case.

1 November 2004

the Court changed the

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

former Second Section.

THE FACTS

origin who lived in the same village. In September 1993 a row broke out between

three Roma men and another villager that led to the death of the latter’s son

who had tried to intervene. The three men fled to a nearby house. A large,

angry crowd gathered outside, including the local police commander and several

officers. The house was set on fire. Two of the men managed to escape from the

house, but were pursued by the crowd and beaten to death. The third was

prevented from leaving the building and died in the fire. The applicants

alleged that the police had encouraged the crowd to destroy more Roma property

in the village. By the following day, thirteen Roma houses had been completely

destroyed and several more had been very badly damaged. Much of the applicants’

personal property was also destroyed.

residents of Hădăreni lodged a criminal complaint with the 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.

charged with extremely serious murder. They were released within a few hours,

however, and their arrest warrants were set aside. On account of police

involvement in the incident, the case was referred to the Military Prosecutors’

Office in October 1994.

police officers were dropped on the basis that their inability to stop the

crowd had not in itself constituted participation.

indictment against eleven civilians. A criminal trial, in conjunction with a

civil action, began the following November. At the trial a succession of

witnesses testified to the active involvement of the police in the killings and

burnings.

July 1998. The court found that the accused had acted jointly, in different

ways, to eliminate the Roma from their village. The preliminary investigation

was deemed to have been inadequate. Five villagers were convicted of extremely

serious murder and twelve villagers, including the former five, were convicted

of other offences. The court sentenced them to between one and seven years’

imprisonment.

the sentences. The appellate court convicted a sixth villager of extremely

serious murder and increased the sentence of one of the defendants; the other

defendants had their sentences reduced. In November 1999 the Supreme Court

upheld the convictions for the destruction of property but reduced the charge

of extremely serious murder to one of serious murder for three of the

defendants.

presidential pardon.

Romanian Government allocated 25,000,000 Romanian lei (ROL)[1] for the reconstruction of the

houses damaged or destroyed. Only four houses were rebuilt with these funds. In

November 1994 the Government allocated a further ROL 32,000,000[2] and four more houses were

rebuilt. The applicants have submitted photographs to show that these houses

were very badly rebuilt.

in the civil case on 12 May 2003. The court awarded the applicants pecuniary

damages for the destruction of the houses, noting that during the events on

20 September 1993 eighteen houses belonging to the Roma population in

Hădăreni had been totally or partially destroyed and that 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 the fifth, ninth, fifteenth,

seventeenth, eighteenth and nineteenth applicants. The applicants’ claims for

loss of personal property and for non-pecuniary damages were all dismissed as

unsubstantiated.

Appeal awarded the applicants non-pecuniary damages. Appeal proceedings are

currently pending before the Supreme Court.

following the events of September 1993, they were forced to live in hen-houses,

pigsties, (Rozalia Rostaș), windowless cellars (Bazil and Lucreția Moldovan) 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 (Ghioloanca

Lăcătuș, Maria Lăcătuș, Octavian and Eleonora Rostaș, Petru (Petrișor) Lăcătuș,

Valentina Rostaș), thirty-one victims of the riots in one house (Ferdinand

Lăcătuș, Lucaci Moldovan, Rozalia Rostaș, Adrian and Silvia Moldovan), fourteen

persons crowded into two small rooms with no electricity and inadequate heating

(Ferdinand Lăcătuș), twelve persons lived for a year in a summer kitchen

without a proper roof, door or windows (Adrian Moldovan), etc. These conditions

lasted for several years and in some cases were still continuing.

fell ill. In particular, Octavian Rostaș developed an ulcer; Eleonora Rostaș

developed hepatitis; Bazil Moldovan developed hepatitis and Lucreția Moldovan

spondylosis; Rozalia Rostaș developed a heart condition and died of a heart

attack in 1998; Adrian Moldovan developed diabetes; Valentina Rostaș’s

daughter developed meningitis because of a severe cold caught on the night of

the arson attack and because the applicant did not have money for treatment.

She is now mentally retarded.

THE LAW

I.  EIGHTEEN

APPLICANTS

A.  The friendly-settlement

declarations

letters of 18 May and 19 October 2004 the Government made the following

declaration:

“

declare that the Government of Romania offer to pay

ex gratia

to the applicants mentioned in the annex to this

declaration an all-inclusive amount of EUR 262,000 (two hundred and

sixty-two thousand euros) with a view to securing a friendly settlement of

their applications registered under Nos. 41138/98 and 64320/01. The

individual awards are set out in the annex to this declaration.

This sum, which also covers legal expenses connected

with the case, shall

be free of any tax that may be applicable

and shall

be paid in euros, to be converted

into Romanian lei at the

rate applicable at the date of payment,

to

a bank account named by the applicants and/or their duly authorised

representatives. This sum shall be payable within three months from the date of

the notification of the judgment delivered by the Court pursuant to Article 39

of the European Convention on Human Rights. F

rom the expiry of the

above-mentioned three months until settlement, simple interest shall be payable

on the above amount at a rate equal to the marginal lending rate of the

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

This payment will constitute the final

settlement of the case, including the applicants’ civil claims before the

domestic courts.

failure of the criminal investigation to clarify fully the circumstances which

led to the destruction of the applicants’ homes and possessions, which left

them living in improper conditions thus obliging a number of them to leave

their village, and rendered difficult the applicants’ possibility of filing a

civil action. It also regrets the length of the civil proceedings before the

domestic courts and certain remarks made by some authorities as to the

applicants’ Roma origin.

problems under

Articles

3, 6 and 8 and of the Convention

and,

given the consequences of the destruction of the homes and the ensuing

emotional suffering, exceptional issues may arise under Article 3 of the

Convention, as well as under Article 14.

The

Government undertake to issue appropriate instructions and to adopt all

necessary measures to ensure that the individual rights guaranteed by these

Articles are respected in the future. In particular, the Government undertake

to adopt the following general measures:

-  enhancing the educational programs for

preventing and fighting discrimination against Roma within the school curricula

in the Hǎdǎreni community, Mureș County;

-  drawing up programs for public information

and for removing the stereotypes, prejudices and practices towards the Roma

community in the Mureș public institutions competent for the Hǎdǎreni

community;

-  initiating programs of legal education

together with the members of the Roma communities;

-  supporting positive changes in the public

opinion of the Hǎdǎreni community concerning Roma, on the basis of

tolerance and the principle of social solidarity;

-  stimulating Roma participation in the

economic, social, educational, cultural and political life of the local

community in Mureș County, by promoting mutual assistance and community

development projects;

-  implementing programs to rehabilitate

housing and the environment in the community;

-  identifying, preventing and actively

solving conflicts likely to generate family, community or inter-ethnic

violence.

Furthermore, the Government undertake to prevent similar

problems arising in the future by carrying out adequate and effective

investigations and by adopting social, economic, educational and political

policies in the future to improve the conditions of the Roma community, in

accordance with the existing strategy of the Government in this respect. In

particular, it shall undertake general measures as required by the specific

needs of the Hădăreni community in order to facilitate the general settlement

of the case, also taking into account the steps which have already been taken

with this aim, namely the rebuilding of some of the destroyed houses.

supervision by the Committee of Ministers of the Council of Europe of the

execution of Court judgments concerning Romania in these cases is an

appropriate mechanism for ensuring that improvements will continue to be made

in this context.

request the reference of the case to the Grand Chamber pursuant to Article 43 §

1 of the Convention after the delivery of the Court’s judgment.

”

applicants’ representatives submitted the following declaration:

“1.  We

note that the Government of Romania are prepared to adopt a general strategy

for improving the situation of the Roma community and to pay us

ex gratia

the

sum

of EUR 262,000 (two hundred and

sixty-two thousand euros) with a view to securing a friendly settlement of our

applications registered under Nos. 41138/98 and 64320/01, the individual

payments being shown in the annex to this declaration.

This sum, which is to cover any pecuniary and

non-pecuniary damage as well as legal costs and expenses connected with the

case, shall be paid in euros, to be converted into Romanian

lei at the rate applicable

at the date of payment,

to a bank account

to be named by us. The sum shall be payable free of any taxes which may be

applicable, within three months from the date of the judgment delivered by the

Court pursuant to Article 39 of the European Convention on Human Rights. F

rom

the expiry of the above-mentioned three months until settlement simple interest

shall be payable on the above amount at a rate equal to the marginal lending

rate of the European Central Bank during the default period plus three

percentage points.

accept the proposal and waive any further claims against Romania in respect of

the facts of these applications. We declare that this constitutes a final

settlement of the cases, including our domestic civil claims.

declaration is made in the context of a friendly settlement which the

Government and we have reached.

further undertake not to request that the case be referred to the Grand Chamber

under Article 43 § 1 of the Convention after delivery of the Court’s

judgment.”

B.  The Court’s assessment

between the parties (Article 39 of the Convention). It is satisfied that the

settlement is based on respect for human rights as defined in the Convention or

its Protocols (Article 37 § 1

in fine

of the Convention and Rule 62 § 3

of the Rules of Court).

Bazil Sami Lăcătuș, Adrian Moldovan and his wife Silvia Moldovan, Ferdinand

Lăcătuș, Ghiolo

anca

Lăcătuș, Lucaci Moldovan, Octavian Rostaș and

his wife Eleonora Rostaș, Lucreția Rostaș, Adrian Moldovan (house no. 195 A),

Mariana Moldovan, Maria Lăcătuș, Petru (Gălbinuș) Lăcătuș, Persida Dorina

Rostaș, Valentina Rostaș, Petru (Petrișor) Lăcătuș, Bazil Moldovan and his wife

Lucreția Moldovan, should be struck out of the list. (The individual

payments are indicated in the appendix.)

II.  THE REMAINING SEVEN APPLICANTS

Moldovan, Melenuța Moldovan, Maria Moldovan, Petru (Gruia) Lăcătuș, Petru

(Dîgăla) Lăcătuș, Otilia Rostaș and Maria Floarea Zoltan did not wish to reach

a friendly settlement in the case. It decides to adjourn for a separate

examination on the merits the complaints introduced by them.

FOR THESE REASONS, THE

COURT UNANIMOUSLY

1.

Decides

to strike the cases out of the list in so far as it concerns Bazil Sami

Lăcătuș, Adrian Moldovan and his wife Silvia Moldovan, Ferdinand Lăcătuș,

Ghiolo

anca

Lăcătuș, Lucaci Moldovan, Octavian Rostaș and his wife

Eleonora Rostaș, Lucreția Rostaș, Adrian Moldovan (house no. 195 A), Mariana

Moldovan, Maria Lăcătuș, Petru (Gălbinuș) Lăcătuș, Persida Dorina Rostaș,

Valentina Rostaș, Petru (Petrișor) Lăcătuș, Bazil Moldovan and his wife

Lucreția Moldovan;

2.

Takes

note

of the parties’ undertakings not to request a rehearing of the case

before the Grand Chamber;

3.

Decides

to sever and adjourn the

applications, in so far as they concern Iulius Moldovan, Melenuța Moldovan,

Maria Moldovan, Petru (Gruia) Lăcătuș, Petru (Dîgăla) Lăcătuș, Otilia Rostaș

and Maria Floarea Zoltan.

Done in English, and notified in writing on 5 July 2005,

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

S.

Dollé

J.-P.

Costa

Registrar                                                                                 President

APPENDIX

Applicants

Amounts

1.

Bazil Sami LĂCĂTUȘ

11,000 euros

2.

Adrian and Silvia MOLDOVAN (no. 170)

27, 000 euros

3.

Ferdinand LĂCĂTUȘ

19,000 euros

4.

Ghiolo

anca

LĂCĂTUȘ

18,000 euros

5.

Lucaci MOLDOVAN

23,000 euros

6.

Octavian and Eleonora ROSTAȘ

24,000 euros

7.

Lucreția ROSTAȘ

18,000 euros

8.

Adrian MOLDOVAN (no. 195A)

16,000 euros

9.

Rozalia ROSTAȘ (Mariana MOLDOVAN)

13,000 euros

10.

Maria LĂCĂTUȘ

13,000 euros

11.

Petru (Gălbinuș) LĂCĂTUȘ

13,000 euros

12.

Persida Dorina ROSTAȘ

13,000 euros

13.

Valentina ROSTAȘ

13,000 euros

14.

Petru (Petrișor) LĂCĂTUȘ

13,000 euros

15.

Bazil and Lucreția MOLDOVAN

28,000 euros

16.

Silvia MOLDOVAN (see no. 2)

-

17.

Eleonora ROSTAȘ (see no. 6)

-

18.

Lucreția MOLDOVAN (see no. 15)

-

Total

EUR 262,000

[1]

Nowadays this would convert to around 720 euros (EUR)

[2]

Around 920 EUR