ÎCCJ, decizie (scj.ro #86437)

ÎCCJ, decizie (scj.ro #86437) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES DROITS

DE L’HOMME

EUROPEAN COURT OF HUMAN

RIGHTS

THIRD SECTION

CASE OF

KALANYOS AND

OTHERS v.

ROMANIA

(Application no. 57884/00)

JUDGMENT

STRASBOURG

26 April 2007

This judgment will become

final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

In the case of Kalanyos and Others v.

Romania

,

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

composed of:

Mr

B.M.

Zupančič

,

President

,

Mr

C.

Bîrsan

,

Mrs

E.

Fura-Sandström

,

Mrs

A.

Gyulumyan

,

Mr

E.

Myjer

,

Mr

David Thór

Björgvinsson

,

Mrs

I.

Berro-Lefèvre,

judges

,

and Mr

S.

Quesada

,

Section Registrar

,

Having deliberated in private on

29 March 2007

,

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

PROCEDURE

against

Romania

lodged with the Court under Article 34 of the

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

Convention”) by three Romanian nationals of Roma origin, Mr Sandor

Kalanyos, Tamas Kalanyos and Istvan Rozsa (“the applicants”), on

19 July 1999

.

Rights Center (ERRC), an association based in

Budapest

(

Hungary

). The Romanian

Government (“the Government”) were represented by their Agent, Mrs B. Rămășcanu,

from the Ministry of Foreign Affaires.

their property, the ensuing consequences and the subsequent proceedings

before the domestic authorities had violated Articles 3, 6 § 1,

8, 13 and 14 of the Convention, which guaranteed,

inter alia

, the

prohibition of inhuman and degrading treatment, the right to access to a court

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

for private and family life and home, the right to an effective remedy and

freedom from discrimination in the enjoyment of Convention rights and freedoms.

decided to adjourn the examination of the complaints concerning the applicants'

living conditions, the alleged inhuman or degrading treatment and the right to

respect for home, and private and family life, the alleged lack of access to

a civil court, the alleged discrimination on the basis of the applicants' ethnicity,

and the right to an effective remedy, insofar as they relate to the period

after 20 June 1994, date on which Romania ratified the Convention. It also

declared inadmissible as incompatible

ratione temporis

with the provisions

of the Convention the remainder of the application.

19 May 2005

, after obtaining the

parties' observations, the Court declared the remainder of the application

admissible.

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

Convention). No settlement was reached.

8 December 2006

, the Government

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

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

26

January 2007

, the applicants' representative filed written observations on

the Government's request.

THE FACTS

respectively and used to live in the hamlet of Plăieșii de Sus, in

the district of Plăieșii de Jos,

Harghita

County

.

may be summarised as follows.

6 June 1991

a fight started in Plăieșii

de Sus between four Roma and a nightwatchman. Following the events, a crowd made

up of non-Roma villagers assaulted and beat up two Roma men in a revenge attack,

fatally injuring one of them.

8 June 1991

a public notice was

displayed on the outer limit of the Roma settlement informing the inhabitants

that on

9 June 1991

their houses would be set on fire. The Roma

informed the police and village officials. However, the local authorities

failed to intervene, preferring instead to “advise” the Roma to leave their homes

for their own safety.

9 June 1991

the Roma villagers,

including the second applicant, fled their homes and sought refuge in a nearby

stable belonging to the local farming cooperative while an organised group of

non-Roma villagers destroyed all the Roma houses, including those belonging to

the applicants.

including the applicants and their families, were forced to live in nearby

stables in dreadful conditions, without heating or running water. The

applicants only managed to survive with the help of their friends and family.

supervision of the Miercurea Ciuc District Prosecutor's Office started an

investigation into the events. Some of the Roma from the hamlet who were questioned

by the investigation team were able to give the names of possible

suspects.

The final report concluded that the destruction by arson was caused

by the fight on

6 June 1991

and the fact that the Roma were in the habit of

putting their animals to graze on land belonging to non-Roma villagers.

opinion that the Roma themselves, or the “Gypsies” as they put it, “are to

blame for what happened” as “they steal for a living and are aggressive towards

other people”.

27 June 1996

the Prosecutor's Office

of the Harghita County Court closed the investigation on the ground that the

prosecution of the offences was statute-barred. Its decision was upheld,

upon the applicants' complaint, in a decision of

9 October 1998

of the Prosecutor's

Office at the Supreme Court of Justice.

committed “as a result of serious acts of provocation by the victims” and

considered that, given the large number of persons involved, it had been

impossible to identify the perpetrators of the attack.

9 September 1991

the mayor of Plăieșii

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

materials for the reconstruction of their homes. The purchase price of 110,400

Romanian lei (“ROL”) was funded by the

County

of

Mureș

, following a

decision by the Prefect on

13 September 1991

. The local

authorities also gave the applicants permission to gather wood from a

nearby forest. The destroyed houses were rebuilt by the applicants with the

help of friends and relatives between 1991 and 1993.

THE LAW

8 December 2006

, the Court received the

following declaration from the Government:

“1.  The

Government sincerely regret the failure of the criminal investigation to

clarify fully the circumstances which led to the destruction of the applicants'

homes and possessions, which left them living in improper conditions, rendered

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

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

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

Convention generally lacked at the time when the applicants were seeking

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

authorities as to the applicants' Roma origin.

It is therefore

accepted that such events constitute violations of Article 3 (prohibition of

torture), Article 6 (right to a fair trial), Article 8 (right to respect for

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

14 (prohibition of discrimination) of the Convention.

2.  I,

Mrs. Beatrice Rămășcanu, agent of the Government of Romania

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

Romania offer to pay

ex gratia

to

the applicant Sandor Kalanyos the amount of EUR 33,000 (thirty three

thousand euros), to the applicant Tamas Kalanyos the amount of EUR 33,500

(thirty three thousand five hundred euros) and to the applicant Istvan Rozsa

the amount of EUR 30,000 (thirty thousand euros).

The

Government undertake to pay the amount of EUR 2,406 (two thousand four hundred

and six euros) in costs and expenses incurred by the applicants' representative,

the European Roma Rights Centre. This amount shall be paid in euros to a bank

account named by the ERRC.

These

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

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

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

Human Rights.

From the

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

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

European Central Bank during the default period plus three percentage

points. This payment will constitute the final settlement of the case,

including the applicants' civil claims before the domestic courts.

Government undertake to issue appropriate instructions and to adopt all

necessary measures to ensure that the individual rights guaranteed by Articles

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

The

Government undertake to adopt the following general measures aimed at fighting

the discrimination against the Roma in the

Harghita

County

:

-  ensure

the eradication of racial discrimination within the Romanian judicial system;

-  enhance

the educational programs for preventing and fighting discrimination against

Roma within the school curricula in the Plăieșii de Jos community,

Harghita

County

;

-  draw

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

and practices towards the Roma community in the Harghita public institutions

competent for the Plăieșii de Jos community;

-  support

positive changes in the public opinion of the Plăieșii de Jos

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

social solidarity;

-  stimulate

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

life of the local community in

Harghita

County

, by promoting mutual

assistance and community development projects;

-  implement

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

particular by earmarking sufficient financial resources for the compensation;

-  identify,

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

inter-ethnic violence.

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

Council of Europe of the execution of Court judgments concerning

Romania

in this and similar cases is

an appropriate mechanism for ensuring that improvements will continue to be

made in this context.

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

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

Court's judgment.”

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

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

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

the

Tahsin Acar

judgment are not met in

present

case

(

see

Tahsin Acar v. Turkey

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

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

judgment on the merits of a similar case, that of

Moldovan v.

Romania

((no. 2)

, nos.

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

, one single

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

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

at least to expose the flaws of the Romanian judicial system and its systematic

failure to provide redress for the Roma victims. In addition, it would

hold a great symbolic value in particular as regards the new forms of

discrimination against the Roma population (with regard to access to education,

health, employment or other public services).

admission as to the State's responsibility for the June 1991 events and had made

no commitment to reopening the investigations into the events.

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

Moldovan

judgments (

no. 2,

cited above and

Moldovan and Others

v. Romania

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

could not yet be assessed, as the execution of

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

Ministers and was therefore still pending.

the applicants both in the present case and in the

Moldovan

case, they

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

actions they had committed themselves to following the

Moldovan

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

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

compensation should not outweigh the victims' quest for justice.

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

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

emerged in the context of friendly settlement negotiations between the parties

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

confidential.

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

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

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

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

by the Government in the light of the principles emerging from its case-law, in

particular the

Tahsin Acar

judgment (as cited above,

§§ 75-77);

Meriakri v. Moldova

((striking

out), no. 53487/99, 1 March 2005);

Swedish Transport Workers Union

v. Sweden

((striking out), no. 53507/99, 18 July 2006) and

Van

Houten v. the Netherlands

((striking out), no. 25149/03, ECHR 2005‑IX

).

follows:

“1.  The

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

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

(c)  for

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

continue the examination of the application.

However,

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

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

requires.

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

that the circumstances justify such a course.”

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

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

in the case of

Moldovan

, which raised issues similar to the present

case.

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

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

and general measures with a view to redressing the situation (see paragraph 19

above).

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

merits in the

Moldovan

case and the admission as to the violations

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

applicants' representative, is not convinced of the usefulness of another

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

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

judgment adopted in the case of

Moldovan

, cited above, and in the

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

alleged new forms of discrimination against Roma (see paragraph 20 above),

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

the initial complaint concerning the events of June 1991 (see the partial decision

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

applicants' request that the Government make an admission as to alleged

violations of the Convention in this respect could not be addressed by the

Court (see paragraph 21 above).

proposed in the

Moldovan

case has already started under the

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

address the applicants' representative's submissions concerning the alleged

ineffectiveness of those measures and of their implementation (see paragraph

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

of Ministers within the execution proceedings.

to its capacity to transpose the general measures from the

Moldovan

case

to the present case (see paragraph 23 above). The Court is satisfied that

these measures, as reiterated in the declaration above (see paragraph 19 of

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

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

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

situation of the Roma communities all over the country.

the general measures, the individual measures proposed by the Government

offer redress to the individual applicants in the present case (see

paragraph 23 above).

arguments are concerned (see paragraph 24 above), it is to be noted that

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

friendly settlement negotiation. The unilateral declaration currently under

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

the Court deemed necessary.

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

various undertakings referred to therein, together with the amount of

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

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

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

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

in

fine

).

list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.

Takes note

of the terms of the respondent

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

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

2.

Decides

to strike the case out of its list of cases;

3.

Takes

note

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

before the Grand Chamber.

Done in English, and notified in writing on 26 April 2007, pursuant

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

Santiago

Quesada

Boštjan

M.

Zupančič

Registrar                                                                         President