THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57885/00 
by Iren GERGELY 
against Romania

The European Court of Human Rights (Third Section), sitting on 19 May 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 14 July 1999,

Having regard to the partial decision of 9 December 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Iren Gergely, is a Romanian national of Roma origin. She was born in 1965 and used to live in the hamlet Caşinul Nou, the district of Plăieşii de Jos, Harghita County. She was represented before the Court by the European Roma Rights Centre (ERRC), an association based in Budapest (Hungary).

The respondent Government were represented by Mr B. Aurescu, followed by Mrs R. Rizoiu, Agents.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The events of 11 August 1990

The attack took place on the evening of 11 August 1990 following a period of increased hostility between the Roma and non-Roma inhabitants of Caşinul Nou, amid accusations that local Roma had been stealing. According to various sources, approximately 60 to 400 non-Roma villagers gathered in front of the village church and planned to chase out the entire Roma population. Subsequently, they burned and otherwise destroyed their houses and property - including the house of the applicant and its whole contents. As a consequence, approximately 150 persons were left homeless, while many others, including the applicant and her four underage children, faced the threat of being lynched.

During the events, the applicant heard people shouting for her to leave the house because the non-Roma would burn the Roma houses and kill them. The bells of the village church tolled. Leaving behind all her belongings, the applicant and her family ran away and hid in a nearby field from where they saw the villagers setting fire to the Roma houses.

2.  Investigation into the events

Immediately after the events, the Roma residents of Caşinul Nou filed a criminal complaint with the Harghita County Prosecutor's Office. In addition to outlining the facts of the case, the complainants identified a number of individuals as being allegedly responsible for the attack.

During the investigation, several witnesses were questioned by the police. Most of them declared that, due to the darkness, they had been unable to identify the perpetrators. Certain witnesses, however, provided detailed statements as to how the events unfolded, what their own role was and who else was involved. It appears that no on-site investigation was conducted and that the police deemed it unnecessary to have forensic experts ascertain the pecuniary damage caused by the events. The investigating authorities had classified the events as a possible crime of “destruction by arson” under Article 217 § 4 of the Criminal Code.

On 27 November 1990 the Harghita County Prosecutor's Office decided to discontinue the investigation of the case on the ground that, given the large number of persons involved in the attack, it had been impossible identifying the culprits. On 22 February 1991 the General Prosecutor's Office quashed this decision and ordered the reopening of the investigation on the ground that the fact that numerous persons were involved was not a sufficient reason to terminate the investigation. On 10 September 1991 the County Prosecutor's Office requested the Harghita County Police to reopen the investigation and to interrogate the persons previously identified by witnesses as having participated in the events. On 3 October 1991 the police heard witnesses, all of whom declared that they knew nothing about the events in the question. On 7 September 1995 the County Prosecutor's Office again decided to discontinue the investigation.

On 23 April 1998 the applicant's lawyer (acting on behalf of APADO) filed a complaint with the Prosecutor's Office of the Târgu-Mureş Court of Appeal. He requested that the competent prosecuting and investigating authorities identify the perpetrators of the attack and secure convictions. He also stressed that the authorities had failed, to date, to conduct an adequate and comprehensive investigation and had therefore tacitly contributed to the obstruction of justice. In his view, this seemed to be due to the Roma ethnicity of the victims. He also requested access to the case files. On 29 April 1998 the Prosecutor's Office of the Court of Appeal replied that the lawyer was obviously unacquainted with the facts of the case and that, therefore, his impression that the authorities had been unwilling to conduct an adequate investigation of the case was groundless. The lawyer's request to have access to the case files was dismissed as he had produced no evidence of an authority signed by the victims.

On 6 July 1998 the lawyer filed a fresh complaint with the Prosecutor's Office of the Court of Appeal and stressed that he was only requesting that the prosecuting authorities perform their duties in accordance with the law. He attached to the complaint an authority signed by the applicant and again requested access to the case files, which was granted on 10 July 1998.

When examining the case files, the lawyer discovered the following statements of persons who had participated in the events:

-  D.S., questioned by three police officers, alleged that some 60 villagers had told him to go to the church reader, L.N., and ask him to toll the bells, so that the villagers would gather together and participate in the expulsion of the Roma. He asked L.N. for the steeple key and handed it to I.C. As they had decided to set the Roma houses on fire using diesel, V.G. went home and brought back five one-litre-bottles filled with diesel. He further alleged that he had approached the Roma houses and broke the bottles in the sacks. Others had wedged cloth into the neck of the bottles, lit them and threw them through the windows of the Roma houses. He also stated that I.M., C.L., C.K., L.R., S.A. and others had participated in the events. He noted that they had finished at about 11 p.m. and that he personally had not set fire to any houses, but had only been watching;

-  L.N., questioned on 13 August 1990, confirmed that he had handed the steeple key to the D.S.;

-  A.K., questioned the same day, stated that the Gypsies would never be allowed to stay in the hamlet;

-  S.B., questioned on 14 August 1990, stated that he had not set fire to any houses, but had thrown stones in their direction;

-  C.K., questioned the same day, stated that he had armed himself and joined the locals just to raise their spirits;

-  G.B., questioned the same day, stated that lots of non-Roma showed up with sticks and beat the Roma out of the pub; some 200 to 250 persons were present when the fire was set;

-  M.B. stated that the whole community participated in the events.

The lawyer also found that the case file contained statements made by the victims of the attacks:

-  A.G. stated that he had seen I.C., I.B. and L.P. carrying diesel and lighting the fire;

-  I.K. identified J.A. as having participated in the mob violence.

In a letter of 6 November 1992, the Prosecutor at the Harghita County Court informed the Prosecutor's Office of the Supreme Court of Justice that almost all of the inhabitants of the hamlet had participated in the events.

According to the applicant's lawyer, the case file contained no record that the Plăieşii de Jos police had conducted an investigation with the view to identifying the culprits. The records also showed that the prosecutor in charge of the case had only visited the site of the crime in order to find out about the complaints which the non-Roma inhabitants had had against the Roma, without trying to identify the perpetrators of the attacks. The prosecutor also warned the Roma “to refrain from misdeeds as these may provoke a response from the non-Roma”.

On 14 July 1998, the applicant's lawyer filed a fresh complaint with the Prosecutor's Office of the Supreme Court of Justice. He considered that the investigating authorities had failed to conduct an adequate and comprehensive investigation into the attack. Notwithstanding the existing evidence, the authorities had failed to indict anyone or refer the case to a competent court. He requested that the authorities establish the real value of the damage incurred and classify the crimes accordingly. In this respect, he claimed that the correct classification of the crimes was aggravated criminal damage for which the limitation period had not yet expired. The lawyer also alleged and offered evidence that certain materials in the case file had disappeared.

On an unspecified date, the Prosecutor's Office of the Supreme Court of Justice referred the case to the Prosecutor's Office of the Târgu-Mureş Court of Appeal. On 5 October 1998 the latter informed the lawyer that it had dismissed his criminal complaint on the ground that no criminal charges could be brought by virtue of a time bar. The prosecutor found that the offences had been committed “due to the serious, provocative acts of the victims”, described as follows:

“...in august 1990 several Gypsies [ţigani] from the hamlet Caşinul Nou, behaved contrary to the good morals. They severely disturbed the public order which aggravated the conflict with the... [non-Roma] population. These... [conflicts] culminated ... when the Gypsies consumed alcohol in the local pub, and then ... beat without any apparent reason the peaceful passers-by. In this context, the other... [non-Roma] inhabitants decided to chase the Gypsies out of the hamlet. In order to determine them to leave and not to return to the hamlet, they decided to burn [the Roma's] houses down.”

According to the Prosecutor's Office at the Court of Appeal, there was no evidence indicating that “aggravated criminal damage” under Article 218 § 1 of the Criminal Code had been committed. He noted as follows:

“Based on the victims' statements, the facts can only be qualified under... ['destruction by arson']. The conditions for a qualification under 'aggravated criminal damage are not met. Such consequences did not occur, even if the acts of arson are regarded as a whole...

Although the prosecutorial authorities did not consider establishing the real value of the damage, the victims themselves quantified their loss in the statements made during the investigations.

On the other hand, bearing in mind that the investigation was done by the police and that the prosecutor only exercised supervision, it is not the prosecutor's fault that the police did not identify the culprits before the end of the limitation period.”

On 28 October 1998 the applicant's lawyer appealed against this decision to the Prosecutor's Office at the Supreme Court of Justice. On 13 January 1999, after having examined the merits of the case, it upheld the decision of the Prosecutor's Office of the Târgu-Mureş Court of Appeal. It found that:

“...although the events have been investigated since 1990... it has been impossible to identify the culprits... since the majority of the villagers participated in the attack.”

This was the final decision in the present case.

3.  Reconstruction of the houses

On 9 September 1991 the mayor of Plăieşii 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 Mureş, following a decision by the Prefect on 13 September 1991. The local authorities also gave the Roma inhabitants permission to gather wood from a nearby forest. The houses were rebuilt by the Roma with the help of friends and relatives between 1991 and 1993.

On an unspecified date the Mayor's Office included the Roma settlement in its programme for extending the electricity network. The houses belonging to the Roma are now connected to the electricity supply.

On 20 January 2004, the applicant's mother made the following statement, in a letter sent to the Court by the applicant's representative:

“My daughter had a one room furnished house and a stable. She did not have the time to take anything from the house [during the events]. She found refuge with her relatives. I was living with her and two other persons.

Since then we have lived in Plăieşii de Sus, because we were too afraid to return [to Caşinul Nou].

I had a house in Plăieşii de Sus and my daughter came to live with me after the events. In 1991 my house was also burnt, so my daughter had to go twice through this sufferance.”

It appears from the file that the applicant has yet to receive compensation for the belongings and furniture she had lost during the events.

4.  Government's submission on the facts

The Government maintained that it was impossible for them to verify the facts of the case since the criminal file of the investigation into the August 1990 events had been destroyed. The regulations applicable at the material time allowed the destruction of files on which a decision not to prosecute due to time bars had been taken. However, the Government expressed the intention to provide any supplementary information in the case should the criminal file of the investigations into the events be pieced together or relevant documents be recovered.

B.  Relevant domestic law and practice

1.  Code of Civil Procedure

Article 244 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action may stay civil proceedings.

Article 244

“2.  if criminal proceedings have been instituted in relation to an offence and the verdict in those proceedings is decisive for the outcome of the civil dispute.”

2.  Code of Criminal Procedure

Article 10

“Criminal proceedings may not be instituted or, if already instituted, continued if ...

(c)      the act was not committed by the defendant; ...”

Article 15

“A person who has suffered civil damage may join the criminal proceedings...

He or she may do so either during the criminal investigation... or during the proceedings before the court...”

Article 22

“Findings in a final judgment of a criminal court concerning the commission of the act in question, the identity of the perpetrator and his or her guilt, shall be binding on a civil court when it examines the civil consequences of the criminal act.”

Article 278

“Complaints about decisions and acts of the prosecutor ... shall be examined by the prosecutor-in-chief at the Prosecutor's Office. If it is the prosecutor-in-chief who adopted the decision ... the complaint shall be examined by the Prosecutor's Office which is his or her hierarchical superior...”

Law no. 281/24 June 2003 amended the Code of Criminal Procedure. It introduced, inter alia, a new Article 2781 regulating appeals to the courts against the prosecutor's decision. It prescribes the time-limit for lodging an appeal, the competent court and the procedure to be followed.

3.  Decision no. 486 of 2 December 1997 of the Constitutional Court

In a decision of 2 December 1997, the Constitutional Court ruled that Article 278 of the Code of Criminal Procedure is constitutional only in so far as it does not deny anyone who is dissatisfied with a decision of the Prosecutor's Office direct access to a court in accordance with Article 21 of the Constitution.

4.  The Constitution

Article 21 Free access to justice

“1.  Everyone shall be entitled to apply to the courts for the protection of his rights, liberties and legitimate interests.

2.  The exercise of this right shall not be restricted by any law.”

 

5.  Civil Code

Articles 999 and 1000 of the Civil Code provide that a person who suffers damage may seek redress through a civil action in tort against the person responsible.

Article 1003 of the Civil Code provides that the liability of joint tortfeasors is joint and several.

6.  Case-law of the domestic courts

The Government have submitted examples of decisions in which the domestic courts have ruled that a prosecutor's decision not to open a criminal investigation on the grounds that there was no criminal intent did not prevent the civil courts from examining a civil claim arising out of the same facts.

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that after the destruction of her home and belongings, she had to live in very poor conditions, which amounted to treatment contrary to Article 3 of the Convention.

2.  Relying on Article 6 § 1 of the Convention, she complained that the authorities' failure to carry out an adequate criminal investigation into the events, culminating in formal charges and the conviction of those responsible, had deprived her of her right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. This failure hindered the establishment of liability and the recovery of damages, both pecuniary and non-pecuniary, for the losses she had suffered.

3.  The applicant complained that the Romanian authorities had breached the letter and spirit of Article 8 of the Convention by failing to prevent and to respond adequately to the events that had led to the destruction of her home, both before and after the ratification of the Convention. She claimed that, since ratification, there had been a continuing breach of her right to respect for her home and private and family life as the authorities had neither conducted a thorough and comprehensive investigation nor provided redress for the alleged violations.

4.  The applicant complained under Article 13 of the Convention that following the events, even after the ratification of the Convention, she has been denied an effective and comprehensive remedy for the inhuman and/or degrading treatment to which she was subjected, for the destruction of her home, as well as for the violation of her privacy.

Under Romanian law, the public prosecutor was the final domestic authority capable of providing a remedy for crimes prosecuted ex officio. Victims of crime had no right to bring a private prosecution if the State authorities failed to fulfil their duty to conduct a thorough and effective investigation or to seek judicial review of an allegedly arbitrary decision not to prosecute.

The applicant claimed that the authorities' failure to conduct a thorough and effective investigation in the instant case resulted, in part, from the fact that the public prosecutors – the officials to whom Romanian law assigned exclusive and unreviewable authority for investigating allegations of crime – lacked sufficient independence and impartiality (she referred to Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61). As regards the issue of independence, she submitted that, due to their dual and contradictory functions – as parties to and supervisors of the criminal process – prosecutors in Romania could not be considered sufficiently independent for the purposes of Article 13. The applicant alleged that Romanian prosecutors did not enjoy guarantees of independence, immovability and transparency, while prosecution activities were not subjected to public scrutiny in any meaningful sense. She referred in this respect to Parliamentary Assembly Resolution no. 1123/1997 on the honouring of obligations and commitments by Romania, observing that “the role of the Public Prosecutor's Office is still very pronounced”, and urging Romania to “continue the reform in this area”.

As for the lack of impartiality, the applicant alleged that it was particularly conspicuous when it came to providing redress to Roma victims of human-rights abuses. She referred in this respect to the Concluding Comments of the United Nations Human Rights Committee on Romania of November 1993, expressing “concern at the continuing problems in Romania regarding discrimination against persons belonging to minorities and, in particular, offences committed as a result of incitement to ethnic or religious intolerance”. The applicant stressed that, according to that document, “the situation is especially threatening to vulnerable groups, such as the Roma”. Furthermore, she submitted that, in its Concluding Observations concerning Romania, issued in 1995, the United Nations Committee on the Elimination of Racial Discrimination had voiced concern “at the continuing reports of racism among police forces, which have been said to occasionally use excessive force against members of certain groups, or, alternatively, are said not to take action when acts of violence against certain groups are committed in their presence”.

5.  Finally, the applicant complained that the violations she had suffered as a result of the events were predominantly due to her Roma ethnicity, and therefore discriminatory, in breach of Article 14 of the Convention, taken together with Articles 3, 6 § 1 and 8 of the Convention.

THE LAW

The applicant alleged that the destruction of her property, its ensuing consequences and the subsequent proceedings before the domestic authorities had violated Articles 3, 6 § 1, 8, 13 and 14 of the Convention, which guarantee, inter alia, freedom from inhuman and degrading treatment, access to court for a fair determination of civil rights and obligations, the right to respect for private and family life and the home, the right to an effective remedy and the freedom from discrimination in the enjoyment of Convention rights and freedoms.

A.  The Government's objections

1.  Non-exhaustion of domestic remedies

The Government submitted that the applicant had failed to exhaust domestic remedies in respect of any of the complaints to the Court. In their view, the applicant should have lodged an action with the criminal courts after the decision of the Prosecutor's Office to close the investigation in the case. Such an action constituted an effective remedy available and sufficient to afford redress in respect of the breaches alleged. Under Articles 275-279 of the Code of Criminal Procedure (hereinafter the “CCP”) as interpreted by the Constitutional Court decision of 2 December 1997, a claimant could bring proceedings in the criminal courts against any decision of the prosecutor. The Government submitted a series of decisions, four by the Braşov Court of Appeal (decisions of 10 January 2000, 7 February 2001, 28 March 2001 and 30 March 2001) and one by the Supreme Court of Justice (decision of 14 September 2001), in which appeals against decisions of the prosecutor had been allowed under the aforementioned provisions.

The applicant contested the effectiveness of the remedy suggested by the Government. In her view, an appeal against the prosecutor's decision to close the investigation because of the time bar would have been rejected by the courts under Article 11 § 2 (b) of the CCP which provided that criminal proceedings could not be instituted, or if already instituted, could not be continued, if the limitation period had expired. She reiterated that the proposed appeal was not expressly provided for by law, but was based solely on an extensive interpretation of the provisions of the CCP. Moreover, she considered that the Romanian courts had no consistent practice of allowing such appeals. She referred, in this respect, to court decisions in which similar actions had been rejected, namely the decisions of the Supreme Court of Justice dated 25 January 2000, of the Cluj-Napoca Court of Appeal dated 24 October 2000 and of the Braşov Court of Appeal dated 9 November 2001. According to the case-law of the Court, therefore, such a remedy could not be considered effective (see X v. Denmark, no. 8395/78, Commission decision of 16 December 1981, Decisions and Reports (DR) 27, p. 52).

The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegations made of violation of a Convention right and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, 28 April 2004, Kudla v. Poland [GC] no. 30210/96, § 152, ECHR 2000-XI).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, no. 26102/95, § 38, ECHR 1998-I).

In this respect the Court notes that the remedy suggested by the Government was not expressly provided for by the law at the time of the events in the case. It was inserted into the CCP by Law no. 281/2003, which amended the Code. Before the adoption of this law, the courts hearing such appeals relied on decision no. 486 of the Constitutional Court. However, it seems that this practice was not generalised (see Rupa v. Romania (dec.), no. 58478/00, 14 December 2004).

Furthermore, at the time of the events there were no regulations in place concerning the procedural aspects of the appeal, so that it is not clear which court would have had jurisdiction to examine it, what the time-limit for appealing would have been or whether there was any further right of appeal if the initial appeal failed.

Lastly, the Court notes that all decisions submitted by the Government date from after the final decision adopted in the present case, that is the decision of 13 January 1999 by the Prosecutor's Office attached to the Supreme Court of Justice. Moreover, the applicant has produced decisions contemporaneous with the proceedings in her case in which the domestic courts rejected similar appeals against the prosecutors' decisions.

In the light of the above aspects and bearing in mind the fact that a similar objection has been already rejected by the Court in the case of Rupa v. Romania (cited above), this preliminary objection must be dismissed.

2.  Lack of victim status in respect of the complaints under Articles 3 and 8 alone and combined with Article 14

a)  The Government alleged that the applicant was not victim as she failed to allege, either expressly or in substance, a violation of Articles 3 and 8 of the Convention in respect of her living conditions after the ratification of the Convention by Romania, on 20 June 1994.

The applicant contested the argument. She recalled that the Court had in previous cases considered and raised with the respondent state possible violations disclosed by the facts even though the applicants themselves had not specifically raised the issue as a claim. She relied in this respect on the cases of Moldovan and others and Rostas and others v. Romania ((dec.), no. 41138/98 and 64320/01 joined, 3 June 2003), and Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, pp. 22-23, §§ 60-63).

The Court reiterates that it is master of the characterisation to be given in law to the facts of the case (see Assenov v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3295, §§ 131-132). In the present case the applicant provided enough evidence to enable the Court to picture her living conditions after the destruction of her home.

Therefore, it is open to the Court to consider the applicant's allegations concerning her living conditions under Articles 3 and 8 of the Convention.

b)  The Government submitted that, with the help of the authorities and the non-Roma villagers, the Roma houses had been entirely rebuilt before the ratification of the Convention and are now of a better quality than before. Therefore, the applicant could no longer claim to be victim of the alleged violation of Articles 3 and 8 of the Convention alone or combined with Article 14 of the Convention.

The applicant contended that the only contribution the authorities had made was to allow the Roma to gather wood from a nearby forest and from a dismantled stable situated in the hamlet of Plăieşii de Sus. However the applicant being unmarried and without any male friends that could help her rebuild the houses, she had been forced to move into her mother's house in the hamlet of Plăieşii de Sus. To date, she has not received any compensation for the loss of her belongings and furniture.

The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 846, § 36). It appears from the documents submitted by the two parties in the present case that the authorities have not recognised even in substance a violation of the applicant's right to respect for her home and private and family life following the destruction of her house and belongings and that the applicant has still not received any compensation for the loss incurred.

Accordingly, the applicant can claim to be victim of the alleged violations, as required by Article 34 of the Convention.

In the light of the above, the Court dismisses all limbs of the Government's preliminary objection of lack of standing as victim.

 

B.  The merits

1.  The applicant complained, in substance, under Articles 3 and 8 of the Convention, that the destruction of her home had deprived her of the use of her house and belongings, forcing her to live in very poor and cramped conditions.

Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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 national security, 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.”

The Government claimed that the State bore no responsibility for the destruction of the applicant's house, which was the work of private individuals, and reiterated that the State's positive obligations under Articles 3 and 8 had been fulfilled as the authorities provided help for the reconstruction of the house. They argued that the living conditions in which the applicant lives currently are better than they had been before the events and, thus, do not attain the minimum level of severity required to fall within the scope of Article 3 of the Convention. They added that there was no obligation under the Convention to provide a home for persons who were in a difficult situation, or to carry out an investigation into the alleged violation of the applicant's right to respect for her home that had occurred before the Convention was ratified (see Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, p. 1271; Chapman v. the United Kingdom, [GC], no. 27238/95, ECHR 2001-I; and M.C. v. Bulgaria, no. 39272/98, 4 December 2003).

The applicant contended that the State's positive obligations could not be considered, in principle, to be limited solely to the cases of ill-treatment by State agents. Any conduct that amounted to a violation of the Convention required a remedy, which meant undertaking an investigation and, if appropriate, providing redress. Furthermore, she argued that the State must have been aware that an attack was likely, especially since it had been preceded by a period of increased hostility between the two ethnic groups. In addition, the non-Roma villagers gathered before the attacks and planned their actions. Similar cases, where the Roma inhabitants had either been killed or injured and then left homeless, had already happened in the nearby village of Lunga and in other parts of Romania, such as: Turunulg, Reghin, Cuza Vodă, Calnic, Heudin and Mihail Kogălniceanu.

The applicant reiterated that, apart from the permission to use wood from the nearby forest and the dismantling of the stable, she did not receive any help from the authorities in rebuilding her home. Even this support proved to be useless in her case, since she had no financial means to buy construction materials nor any relative or friend who could help her with the construction. Moreover, she contested the Government's allegations concerning the support given by the authorities and said that the Government could not furnish any invoices for the purchase of construction materials or any expert reports establishing the value of the reconstruction works. As for the ROL 110,400 that had been allotted to the Mayor's Office on 13 September 1991, she claimed that the amount had been allocated for the reconstruction of a total of 51 houses that had been destroyed in both Caşinul Nou and Plăieşii de Sus, another hamlet from the district of Plăieşii de Jos, where similar events had occurred.

She considered that the extreme poverty and the poor living conditions, and the fact that she had received no compensation for the loss of her personal belongings or the emotional distress caused by the destruction of her home reached the threshold of both Articles 3 and 8 of the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 59, § 30; Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001-II; and Selcuk v. Turkey, judgment of 24 April 1998, Reports 1998-II, p. 909, § 74).

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant claimed that the authorities' failure to carry out an adequate criminal investigation had deprived her of her right to bring a civil action to establish liability and recover damages for pecuniary and non-pecuniary losses she had suffered, in violation of Article 6 § 1, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submitted that after the decision of the prosecutor to discontinue the investigation, the applicant should have lodged an action with the civil courts, under Articles 998-999 of the Civil Code. Such an action would have had prospects of success, since the civil courts were not bound by the decision of the prosecutor (they also relied on the case of Assenov, cited above, p. 3292, § 112). In their view, the findings of a criminal court were only binding on the civil courts in so far as they concerned the existence of the facts, the person responsible and his or her liability.

The Government reiterated that the criminal investigation was closed because the limitation period had expired. In that connection, they stressed that Romanian law distinguished between criminal and civil liability in various ways, including as regards the applicable limitation periods. In their view, the applicant would have been entitled to institute a civil action within three years from the date of the prosecutor's decision.

Lastly, the Government submitted that the investigation conducted by the authorities following the destruction of the settlement had been effective, unlike the situation in the case of Kaya v. Turkey (judgment of 19 February 1998, Reports 1998-I, pp. 328-329, § 102).

The applicant contested the Government's position. She alleged that while the criminal investigation was pending, her expectation had been that her claims for damages for her losses would be examined by the court that was dealing with the criminal and civil proceedings together. Moreover, she considered that the three-year period for bringing a civil action had started to run on the date of the event, so that by the time of the prosecutor's decision to discontinue de investigations, she was prevented from bringing a civil action by the time bar. In any event, she contested the effectiveness of the remedy pointing out that, in the Moldovan and Rostas case cited above, a similar action had been brought by the applicants in 1997 and was still pending in the domestic civil courts.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The applicant complained that she had no effective remedy for inhuman and degrading treatment, for the destruction of her home and for the infringement of her privacy, in violation of Article 13 of the Convention taken in conjunction with Articles 3 and 8 of the Convention. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contended that at the time of the events, the destruction of a house was an offence under the Criminal Code, which would be investigated ex officio by the police, and rendered the culprit liable to between one and five years' imprisonment. Moreover, in 1996, the Code had been amended and the sentence increased to between three and fifteen years' imprisonment.

In any case, the Court would not be competent ratione temporis to examine the complaint concerning the lack of an effective remedy concerning the conditions of living of the applicant, since her house had been rebuilt before the Convention was ratified.

They reiterated that a criminal investigation had been conducted in the case and argued that it had been effective and had thus met the requirements of Article 13 of the Convention.

Referring to Chahal v. the United Kingdom (judgment of 15 November 1996, Reports 1996-V, pp. 1869-1870, § 145), they noted that the aggregate of remedies provided by national law could satisfy the requirements of Article 13. In that connection, they considered that the applicant could have lodged an action with the civil courts for the recovery of damages. The civil courts would have decided her claim on its merits and the applicant would have received compensation for the alleged violation of Articles 3 and 8 of the Convention.

The Government reiterated that the effectiveness of the remedy for the purpose of Article 13 did not depend on the certainty of a favourable outcome (see Nekvedavcius v. Germany (dec.), no. 46165/99, 19 June 2003).

Furthermore, they submitted that the applicant had a remedy for any alleged discrimination against her in the form of a criminal complaint for defamation under Article 206 of the Criminal Code. The outcome of such proceedings would not have been dependent in any way on the outcome of the criminal investigation into the events during which the alleged defamation occurred.

Lastly, the Government submitted that in so far as the applicant alleged a lack of access to courts, Article 6 § 1 was deemed to constitute a lex specialis in relation to Article 13, in accordance with the Court's case-law (they referred to Kudla v. Poland, cited above, § 146).

The applicant considered that the investigation carried out by the authorities had not been effective, as the prosecutors had not charged anyone, preferring instead to wait until the statute of limitations had excluded any criminal liability.

She submitted that the lack of an effective remedy should be considered in the context of widespread violence and discrimination against Roma in Romania as well as of the continued lack of an adequate response from the authorities.

Lastly, she said that she had not complained of a lack of effective remedy either in respect of the alleged discrimination against her or of the alleged lack of access to a court. However, she contended that the Government had not proved the effectiveness of a complaint for defamation by any relevant case-law in which the victims of a crime investigated by a prosecutor had been able to file a complaint based on Article 206 of the Criminal Code and obtain redress for their allegations of an inadequate investigation due to racial considerations.

Bearing in mind the applicant's submissions, the Court will limit the examination of the case to the alleged lack of an effective remedy for inhuman and degrading treatment, for the destruction of the applicant's home and for the violation of her privacy (Article 13 taken in conjunction with Articles 3 and 8 of the Convention).

The Court considers, in the light of the parties' submissions, that the complaint formulated by the applicant under Article 13 taken in conjunction with Articles 3 and 8 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The applicant complained that the violations she had suffered as a result of the attack were predominantly due to her Roma ethnicity, contrary to the principle of non-discrimination set forth in Article 14 of the Convention, taken together with Articles 3, 6 and 8 of the Convention. In particular, she complained about her living conditions after the ratification of the Convention by the respondent State and the remarks made by the prosecutor about her ethnicity in the proceedings following the events. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government contended that the applicant had not proved “beyond reasonable doubt” the alleged discrimination (see Anguelova v. Bulgaria, no. 38361/97, § 166, ECHR 2002-IV). Furthermore, she had not substantiated in any way the claims of alleged racist speech used by the authorities.

Lastly, they reiterated that the word “ţigan” (Gipsy) has been used in Romanian literature and music without any negative or pejorative connotation and that, at the time of the events, the word was widely used to designate ethnic Roma nationals.

The applicant contested the Government's position. Firstly, she had not been afforded any redress for the destruction of her home and belongings. In her view, the Court had demonstrated its willingness to relax the “reasonable doubt” requirement with respect to substantive violations of the Convention where the respondent State had failed to cooperate in providing evidence. Hence, she considered that the evidence adduced before the Court was sufficient to allow the Court to shift the burden of proof.

Secondly, she argued that the authorities had made no attempt to investigate whether discriminatory attitudes had played a role in the events, despite having compelling evidence before them that should have prompted them to carry out such an investigation.

Lastly, she stressed that the respondent Government had not denied the use of the term “Gypsies” in the official documents, but justified it by the widespread usage of the term at the material time. In her view, the respondent State was responsible for the level of human-rights awareness of its nationals and the fact that a pejorative term was widely use in connection with a minority group did not make it less offensive for the applicant or, as a matter of fact, the vast majority of the Romanian Roma.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

GERGELY v. ROMANIA DECISION


GERGELY v. ROMANIA DECISION