CAZACLIU AND OTHERS v. ROMANIA

FOURTH SECTION

DECISION

Application no. 63945/09
Aurel CAZACLIU and others
against Romania

The European Court of Human Rights (Fourth Section), sitting on 4 April 2017 as a Chamber composed of:

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,

Having regard to the above application lodged on 9 November 2009,

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

Having regard to the comments submitted by the International Centre for the Legal Protection of Human Rights (“Interights”) which had been granted leave by the President of the Section to submit such observations (Article 36 § 2 of the Convention and 44 § 3 (a) of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The applicants, whose names and dates of birth are listed in the annex to this decision (“the applicants”), are seventy-six Romanian nationals of Roma ethnic origin who live or used to live in Tulcea. They were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Budapest.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Background to the case

4. The applicants are or used to be residents of the town of Tulcea. They are of Roma ethnic origin.

5. Before July 1999 many of the applicants had lived in an informal Roma slum located in central Tulcea. In July 1999 their homes were destroyed by an accidental fire and they were rendered homeless. Afterwards they were forced to live outdoors in unsafe conditions and did not receive any assistance from the authorities.

6. In December 1999 the applicants moved, with the local authorities’ permission, into an unoccupied building in Tulcea that had belonged to a State-owned factory.

7. For years the applicants and other people continued to live in that building even though the living conditions were poor and overcrowded. Despite not having a lawful right to occupy the building, the applicants’ presence there was tolerated and they paid charges for water and electricity.

8. According to the applicants, they asked the local authorities on numerous occasions to assist them with regularising their status but their requests remained unsuccessful.

9. The applicants were temporarily evicted from the building for the first time in 2005 following a court order. After the eviction order was overturned, they returned to the building and continued to live there.

10. On an unspecified date the building was sold by its former owner to a private investor, namely the company E.V. Prior to selling the building, the former owner had allegedly attempted to donate the building to the local authorities, but his offer was refused by them.

2. The applicants’ relocation

11. On 29 July 2004 Tulcea Local Council adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. The decision concerned social housing located in the city.

12. On 30 September 2004 Tulcea Local Council again adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. This decision concerned social housing located on a particular street.

13. On 25 January 2006 the company E.V. brought eviction proceedings against some of the occupants of the building, namely the third, ninth, tenth, fifteenth, sixteenth, twenty-first, twenty-third, twenty-fifth, twenty-ninth, forty, forty-first, forty-seventh, sixty-second, sixty-seventh, seventy-first and seventy-second applicants. The remaining the applicants were not parties to the eviction proceedings.

14. By a judgment of 27 March 2006 the Tulcea District Court allowed the company’s action for eviction. It held that the company was the lawful owner of the building and had a right to enjoy its use. The occupants had no lawful right to occupy the building and therefore had to vacate it. The judgment was upheld by the Tulcea County Court on 17 August 2006 and by the final judgment of the Constanța Court of Appeal on 19 January 2007.

15. On an unspecified date the applicants who were parties to the eviction proceedings contested the eviction order issued against them on the basis of the judgment of 27 March 2006.

16. By a judgment of 24 October 2006 the Tulcea District Court dismissed the proceedings seeking to contest the eviction order on the grounds that the said order was lawful. There is no evidence in the file that any of the applicants appealed against the judgment.

17. In October 2006 the occupants of the building, including all the applicants, were evicted. Among the applicants there were children, elderly and less able people.

18. The only shelter option offered to the applicants by the local authorities was a former army barracks building that had been disused since the 1970s located four kilometres outside Tulcea and known as “Pichet”. The aforementioned building was in an advanced state of disrepair and had been transferred to the local authorities in May 2006 in order to be converted into social housing. The area around the building was heavily industrialised and there were no other residential buildings in the same location. A large number of the applicants moved into the building, while the remaining applicants had to live on the street for two months. In December 2006 those of the applicants who remained homeless after the eviction accepted the local authorities’ offer, as a temporary solution, to move into mobile homes that were placed on a former rubbish dump.

3. The applicants’ living conditions at “Pichet” and at the rubbish dump

19. According to the applicants, when they moved to “Pichet” they found that the building was not connected to electricity, mains water or sewage facilities. The building had no doors or windows, no heating, a broken roof and damp and damaged walls. It was also infested by rats. The toilet facilities were communal and out of order and rubbish collection was rare. The available water supply had a visible heavy sediment and caused recurring stomach problems. Trucks unloaded bauxite and gravel directly behind the building. The trucks made a lot of noise and raised large quantities of dust which caused breathing difficulties. The noise caused by the nearby shipyard also affected the applicants’ psychological well-being.

20. According to the applicants, they lived in overcrowded conditions because each family was assigned only one room and therefore up to seven people had to share it. Some of them had to abandon their jobs or found it increasingly difficult to find employment and the children were no longer able to attend school or kindergarten because of the travelling distance into Tulcea and the infrequent and unreliable public transport. Some of the children were too small to return home from school on foot unaccompanied by an adult. Others had been harassed or abused by drivers or other individuals when they returned home from school after dark.

21. According to the applicants, the mobile homes that were placed on the former rubbish dump were not meant to serve as long-term habitation, especially during extreme weather conditions. They deteriorated quickly and had to be repaired repeatedly by the authorities. Although they were connected to electricity, they were not connected to running water or sewage facilities. They had no heating system, were poorly ventilated and damp, and were very cold in the winter and very warm in the summer.

22. The rubbish dump had been closed down in 2006 and the land had not been properly decontaminated before the mobile homes were placed on it.

4. Press statements made by public officials

23. In press statements published in the local newspapers Obiectiv and Tulcea Express on 14 May 2005, 26 October 2006 and on an unspecified date during their eviction in 2006, the mayor of Tulcea stated in respect of the applicants’ situation that: “... morally there could be a duty, but as mayor I have a duty towards law-abiding citizens, a duty towards the citizens who respect the community, a duty towards families with children who are gainfully employed. Some of them are living there without any papers to prove that they are citizens of Tulcea”. Also: “...Some citizens accused me of racism and some of positive discrimination. I did not set out to become the king of the gypsies in this town, because this is not why I have been elected. I have done a lot to meet the problems of this social category, but now it’s enough...”. And: “We are doing everything possible to provide them with some comfort at “Pichet”, where sixteen families have been relocated. For the rest other options were found. We have no houses available. Where would they like me to find a living space for them, at kilometre zero? Perhaps close to the market? Those who are not from Tulcea can go back to where they came from”.

24. In a press statement published on 17 October 2006 in the local newspaper Obiectiv the Tulcea Prefect stated that “We are looking at an option with mobile homes, but I would like to say that many of the Roma faced with these problems have created them themselves. Many of them sold their homes and afterwards asked the Mayor’s Office for new ones. Of course, the Roma are confronted with many problems, but they are not frequent visitors of the jobs markets. Be that as it may, many non-Roma are in a similar situation to that of the Roma population and have no homes, but they do not knock at the Prefect Office’s door; they try to rent, to work and so on. I think that your organisation should also be more involved this way and educate them to work”.

5. Court proceedings

(a) Injunction proceedings

25. On 12 March 2007 the sixth, fifteenth, seventeenth, twenty-first, forty-first, forty-seventh, fifty-fourth, sixty-first, sixty-seventh, seventy-first and seventy-second applicants, all of whom were living in the “Pichet” building, brought proceedings against Tulcea Local Council to obtain an injunction ordering the local authorities to carry out the urgent maintenance work needed on their building.

26. By a final judgment of 1 October 2008 the Constanţa Court of Appeal allowed the action brought by the applicants. It held that Tulcea Local Council had signed lease contracts for the building with the applicants. Therefore, as a lessor, according to the relevant domestic legislation and the provisions of the lease contracts, it had an obligation to provide adequate living conditions, and to repair the building and keep it safe for the entire duration of the contract. However, according to the available testimonies at the time, the housing conditions had been unfit for habitation and the building had been in a poor state when the applicants moved into it. In March 2007 the building had still not been connected to the town’s electricity grid and the sewage system was never fully functional. The building materials brought on site by Tulcea Local Council after the applicants moved there did not constitute fulfilment by the lessor of its obligations to repair the building because the quantity of materials was too small to ensure the complete repair of the building.

27. The argument that the building’s problems were caused by some of the tenants themselves was not supported by any proof. In addition, the argument that the applicants failed to pay rent for long periods of time was irrelevant for the case, since the lessor could not use that argument to justify a breach of his contractual duty to maintain the building. Consequently, the court ordered Tulcea Local Council to repair the building and maintain it and the communal areas at an acceptable standard for the entire duration of the lease contract.

(b) General tort law proceedings

28. On 24 August 2007 sixty-eight of the applicants living both at “Pichet” and in the mobile homes – all except the third, eleventh, twelfth, twenty-fourth, forty-sixth, forty-seventh, forty‑eighth, and forty-ninth applicants – and other people brought a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code against Tulcea Local Council and the Tulcea mayor’s office seeking 245,000 Romanian lei (RON) (3,500 for each individual) (approximately 75,400 euros (EUR) (780 for each individual)) by way of compensation in respect of non-pecuniary damage sustained as a result of having their access to education restricted, the inadequacy of the living conditions in the social housing, and the interference with their health and social personality as a result of the inaction of the local authorities.

29. By a judgment of 20 October 2010 the Tulcea District Court dismissed the sixty-eight applicants’ action. It held that the applicants had not suffered any damage and therefore at least one of the conditions required for a general tort law action had not been met. The local authorities had taken steps to provide the applicants with suitable living conditions, even though they had failed to pay their outstanding taxes. Although the applicants had not paid their rent, the local authorities had not used the contract clause allowing them to terminate the lease contracts after the applicants’ failure to pay rent for three successive months. The means to help the disadvantaged were provided for by law. The responsibilities of Tulcea Local Council and the Tulcea mayor’s office did not include the duty to secure the necessary conditions in social housing belonging to persons of Roma ethnicity or their health.

30. The applicants appealed against the judgment. They did not submit reasons for their appeal but argued that the objectivity of the social investigation reports produced during the proceedings was doubtful because they were carried out by Tulcea Local Council employees. In addition, the social investigation reports had not reflected their living conditions as they had avoided providing details about the available utilities, furniture and living conditions by using the expression “equipped with the bare necessities”.

31. By a judgment of 14 December 2012 Tulcea County Court dismissed the applicants’ appeal and upheld the judgment of the first‑instance court. It noted that the applicants had failed to provide reasons supporting their appeal and had submitted only objections in respect of the social investigation reports. It held that according to the relevant domestic legislation the local authorities had to assign social housing to various categories of people in an order of priority set out by law. Consequently, homeless Roma could be assigned social housing only if the order of priority set out by law had been observed and if they met the monthly income criterion provided for by law. Therefore, the local authorities could not be forced to satisfy the social housing needs of all the applicants as long as such housing had to be assigned on a priority basis to other categories of people expressly provided for by law. The applicants’ needs could be met afterwards, if and when social housing became available.

32. The court further held that, even though the applicants had failed to pay their dues towards the State budget, some of them had nonetheless been provided with social housing. Consequently, the local authorities had already taken steps to ensure they had suitable living conditions.

33. As far as the applicants’ living conditions were concerned, the court noted that there was no evidence that the social housing was not connected to electricity or heating facilities, and this could also have been a consequence of the applicants’ failure to pay their monthly invoices. Moreover, the responsibilities of the local authorities did not include the duty to ensure adequate conditions in social housing belonging to persons of Roma ethnicity.

34. In respect of the applicants’ health, the court held that it was not proven that the alleged failure of the local authorities to fulfil their duties had caused the applicants’ state of health to deteriorate.

35. Finally, the court also noted that it had not been proven that the local authorities’ action – namely providing only some of the applicants with social housing based on availability – had restricted their access to education.

36. The applicants lodged an appeal on points of law against the judgment. They argued that according to the relevant domestic legislation the local authorities were responsible for assigning social housing for renting to disadvantaged persons, a category to which the applicants belonged. The authorities had a statutory responsibility to ensure decent living conditions for Tulcea’s citizens but they had failed to fulfil their duty by housing the applicants indefinitely in accommodation which was not connected to basic utilities. The absence of decent accommodation for Tulcea’s Roma was one cause of the applicants’ abandonment of school attendance and of their exclusion from the employment market. In these circumstances, the failure of the local authorities to fulfil their statutory obligations rendered them responsible for the non-pecuniary damage suffered by the applicants, estimated at RON 3,500 (approximately EUR 780) for each individual.

37. By a final judgment of 26 March 2014 the Constanța Court of Appeal allowed the applicants’ appeal on points of law in part, quashed the second instance court’s judgment, annulled the action lodged by the seventeenth applicant on account of her death and awarded each of the remaining applicants RON 2,000 (approximately EUR 450) in respect of non-pecuniary damage. It noted that the parties had submitted the final judgment of 1 October 2008 to it and that the seventeenth applicant had died on 28 February 2013 and that no relatives had accepted her inheritance. Moreover, it stressed that the object of the applicants’ action was strictly limited to the non-pecuniary damage claim of RON 3,500 for each individual in the light of having their access to education restricted, being provided with social housing offering inadequate living conditions, and the interference with their health and social personality resulting from the inaction of the local authorities. The applicants had not asked the court to examine the conditions in which their eviction in October 2006 had taken place. The aforementioned issue had been the object of another set of proceedings which were terminated by the final judgment of 18 May 2009.

38. The court held that the local authorities’ failure to fulfil all their statutory duties and ensure adequate living conditions for the applicants in the housing rented to them after their eviction in October 2006 amounted to a breach of their right to private and family life and home guaranteed by Article 8 of the Convention. It noted that, contrary to the applicants’ submissions, the local authorities’ decision to assign and rent homes to the applicants at “Pichet” had not been aimed at segregating the Roma families. Because winter was approaching when the applicants were evicted, the local authorities had actually been trying to urgently secure shelter for seventeen of the evicted families and their small children. According to Tulcea Local Council, the lack of social housing was endemic nationwide and particularly in Tulcea, where only ten social cases were solved yearly out of the two thousand five hundred pending requests for social housing.

39. As regards the “Pichet” building, the court held that, according to the available evidence, the building was functional and had offered adequate conditions for housing on the date when it was leased to the applicants. In particular, the building was connected to electricity, was fitted with stoves for heating, and running water was available from a tap located in the courtyard. In addition, on the date the applicants took over the building the local authorities provided the applicants’ representative, namely the ninth applicant, with some building materials in order to be able to carry out some maintenance work that was needed. However, according to the relevant domestic legislation it was not sufficient for a lessor to provide those who signed a lease contract with a functional building. The lessor had to provide during the entire period of the lease contract a building which was safe to use and which had functioning utililities. In the instant case, during the term of the lease contract the communal water, electric and sewage facilities were damaged.

40. Although the tenants reported the problems to the authorities, they had remained inactive and had failed to carry out repairs and the building had become unfit for habitation and a health hazard for the tenants. Although the Constanța Court of Appeal established on 1 October 2008 that the local authorities had failed to repair and maintain the building for the entire duration of the lease contract, and had ordered them to do so, the authorities had not demonstrated that they had complied with that judgment. Moreover, according to the available evidence, the building had become even more dilapidated and unfit for habitation. The fact that the building’s problems were caused by some of the tenants themselves could not exonerate the authorities or explain their inaction. The relevant domestic legislation provided for sanctions against tenants who damage a building, namely the cancellation of their lease contract. However, the local authorities had failed to take any punitive measures against those tenants. At the same time they had also failed to repair the building, thus creating an unsuitable living environment even for those tenants who had maintained their homes and had not damaged the building.

41. In respect of the mobile homes located on the former rubbish dump, the court held that they had represented an effective temporary solution for the applicants’ problems. However, given that the applicants have had to continue living there, the homes in question and their location amounted to a breach of the applicants’ right to enjoy their home in a healthy environment as guaranteed by Article 8 of the Convention. The mobile homes assigned to seven families were placed on a former rubbish dump, without any preliminary operation to decontaminate the soil or have the level of soil pollution measured by a specialist agency. The local authorities were responsible for taking measures to locate the mobile homes in an area of the city that would be appropriate for the applicants’ needs and would safeguard their right to a healthy environment. However, they had failed to fulfil their positive obligations under Article 8 of the Convention and to inform the applicants that the land in question had been used as a rubbish dump prior to 2006 and that their health and quality of life might be adversely affected by pollution. The failure of the local authorities to fulfil their duties and their passivity after 2006 also amounted to a breach of the applicants’ right to a home as guaranteed by Article 8 of the Convention.

42. Consequently, given the applicants’ living conditions, namely the overcrowded and unhealthy environment, and its effect on the applicants’ state of health throughout the long period of time they had to live under those conditions, combined with the general attitude of the authorities, the civil liability of the authorities could be engaged since the nature of the applicants’ living conditions had a negative impact on human dignity and the applicants’ right to private life and to a home.

43. In respect of the applicants’ claims that the local authorities had interfered with and restricted the applicants’ children’s right to education by renting them social housing located on the city’s outskirts, the court held that the local authorities were responsible for the applicants’ children’s inability to attend school regularly and liable for the damage thereby caused.

44. It noted that, according to the available evidence, the applicants’ children’s schools were located between three and three and a half kilometres from their homes. The absence of frequent public transport on those routes made travelling to school difficult and encouraged the abandonment of school attendance, particularly during adverse weather conditions. From 2006 to October 2008 there was no public transport connecting the “Pichet” building to the city centre and the form of transport referred to was introduced only after that date. In this context it pointed out that according to the case-law of the European Court of Human Rights (“the Court”), in cases where a general measure has a disproportionately prejudicial effect on a particular group of people, that measure could be deemed to be discriminatory even though it had not targeted that group of people. Consequently, even though the authorities’ cancellation of public transport in the area did not directly target the Roma and pursued a legitimate aim – namely to make public transport financially efficient – its effect did not strike a fair balance between the public interest and that of the applicants. By relying on the principles set out in the Court’s case-law concerning non-discrimination against people of Roma ethnicity and their right to education, the court concluded that the local authorities had indirectly breached the applicants’ children’s right to education by failing to discharge their duty of organising adequate public transport in the city.

45. In respect of the applicants’ claims that their health was affected, the court noted that they enjoyed free medical assistance without any discrimination or bias. However, it considered that, based on the available testimonial evidence, the authorities’ passivity in respect of the applicants’ inadequate living conditions, the lack of hygiene in the rented housing and the polluted environment had affected the applicants’ health.

46. Finally, in determining the non-pecuniary compensation to which the applicants were entitled (see paragraph 37 above), the court took into account the applicants’ individual situations, the fact that some of the applicants had failed to fulfill all their contractual obligations, that they had refused to comply with their lawful duty to participate in routine cleaning of the premises, and that some of their actions had contributed to the deterioration of their homes.

(c) Anti-discrimination proceedings

47. On 3 October 2007 the Romanian Helsinki Committee lodged civil claims in anti-discrimination proceedings against Tulcea Local Council, relying on Article 27 § 1 of Government Ordinance No. 137/2000 on combating and punishing all forms of discrimination. The action did not name any of the applicants or any of the victims of the measures taken by the authorities. The Romanian Helsinki Committee asked the court to acknowledge that the relocation of Roma families in a building deemed unfit for human habitation outside the town and in mobile homes on a former rubbish dump breached the domestic legislation on anti‑discrimination, as did the criterion set by the local authorities requiring a certain level of education for awarding social housing. In addition, the Romanian Helsinki Committee asked the court to order Tulcea Local Council to pay RON 350,000 (approximately EUR 103,860) to the victims of the discrimination, and to restore the previous situation, or to remedy the situation caused by the discrimination.

48. The Committee argued, amongst other things, that part of the evidence used to prove that the Tulcea local authorities’ decision-making process had been influenced by their preconceptions about Roma was the racist language used by them in the press to describe the applicants on account of their ethnicity (see paragraphs 23 and 24 above). Moreover, the local authorities had moved the families in question to remote locations, into a polluted area and on a former rubbish dump, had segregated them, had created physical obstacles for them which prevented them from accessing regular public services, had restricted their children’s rights to education and had refused to fulfil their contractual and legal obligations. Furthermore, without any reasonable justification, Tulcea Local Council had added the criterion of higher education as a decisive condition for accessing social housing, even though the relevant domestic legislation did not impose this criterion as a requirement and it had been statistically proven that people of Roma ethnicity are less well educated than those of other ethnicities.

49. By a judgment of 20 May 2008 the Tulcea District Court dismissed the action brought by the Romanian Helsinki Committee. It noted that following its request, the National Council for Combating Discrimination had submitted its opinion on the case. The court held that the actions of the local authorities had been motivated not by racial discrimination but by the lack of social housing affecting both the Roma and the non-Roma population. Moreover, the allegedly offensive statements made by representatives of the local authorities were not discriminatory, because the domestic anti-discrimination legislation could not restrict freedom of speech, or the freedom to hold an opinion, or to impart information. According to press articles submitted by the Romanian Helsinki Committee, the representatives of the local authorities had stated the reason for the Roma families’ move to the impugned locations, namely the lack of any other social housing, not their ethnicity.

50. Furthermore, the criteria set by the local authorities for allocating social housing (see paragraphs 11 and 12 above) could not be considered discriminatory because in the court’s opinion it would be unconceivable that any one social group would have a better claim to social housing than another social group simply because the latter’s members were not educated, or that the interpretation of the legal provisions would generate positive discrimination. The local authorities were free to set certain criteria for awarding social housing and they could not be held responsible for the fact that Roma are less educated than the rest of the population. The local authorities had a duty to safeguard the rights and well-being of all the members of the community and the relocation of the Roma families to the area they favoured would have created a situation of conflict in that area that the authorities were duty-bound to avoid. The court furthermore considered that the Romanian Helsinki Committee’s claims for compensation, or to remedy the problems caused by the discrimination, were unfounded because the authorities had not committed acts of discrimination and the question of whether or not the housing assigned to the families in question was fit for habitation was not an issue of discrimination and could be remedied through a general law action. At the same time, restoring the previous situation would have contravened a final court judgment which was res judicata and ordered their eviction.

51. The Romanian Helsinki Committee appealed against the judgment and asked the appeal court to quash the first-instance court’s judgment and to allow its action the way it was formulated. It argued, inter alia, that the first-instance court had misapplied the relevant anti-discrimination legal provisions and had failed to reverse the burden of proof as required by law, even though they had proven by statistical data that the relocated families had been discriminated against. In addition, it claimed that the court had failed to examine evidence held on file such as the discriminatory statements made by the local authorities, had founded its judgment on inexistent evidence, had relied on the principle of free speech as an argument for dismissing the claims – even though free speech does not excuse discriminatory statements – had ignored the fact that of the people who had claimed social housing, it was only those with Roma ethnicity who had been assigned housing in the impugned locations, had relied on the argument that there was no social housing available in Tulcea without seeking evidence to substantiate this, and had not examined the question of whether the victims’ relocation and living conditions were discriminatory. The court had also failed to understand the argument concerning the higher education criterion, given that the organisation had contested not its actual existence, but rather the importance assigned to it for the purposes of awarding social housing. The local authorities had not shown any objective justification for assigning great importance to that condition.

52. By a judgment of 15 October 2008 the Tulcea County Court dismissed the appeal. It held that the relocation of the Roma families had not been motivated by racial discrimination as the decision for relocation had been taken on the basis of regulations provided for by law. Nor had the domestic authorities treated the Roma families differently from other families in a similar situation. In addition, the local authorities’ public statements had not been discriminatory and, as they did not play a decisive role in assigning housing to Roma families, were irrelevant. The Roma families had been provided with housing on the basis of clearly established criteria set out in decisions that had not been contested. The available evidence had not demonstrated fulfilment of the cumulative conditions required for an act to amount to discrimination within the meaning of the relevant domestic legislation.

53. The Romanian Helsinki Committee appealed on points of law against the judgment and asked the appeal court to quash the second‑instance court’s judgment and to allow its action the way it was formulated. It argued that the second-instance court had failed to provide reasons for its decision and to fully examine the claims concerning the relocation to polluted areas, and had omitted altogether to examine the arguments about the higher education criterion. The lower court, meanwhile, had failed to explain the basis for its statement that Roma families had not been treated differently from other families in a similar situation. Moreover, the court had shifted the burden of proof in respect of the discrimination claim to the plaintiff, whereas it was for the authorities to show that there had been no discrimination. The court’s argument that the Roma families had been provided with houses on the basis of clearly established criteria set out in decisions was irrelevant as it did not mean that the criteria in question were not discriminatory. In addition, the appellate court’s reasoning simply ignored the racist and discriminatory nature of the public officials’ statements, even though the same public officials were the ones who had ordered the relocation of the Roma families outside the city and on a former rubbish dump.

54. By a final judgment of 18 May 2009 (available on 3 July 2009) the Constanţa Court of Appeal dismissed the appeal on points of law. It held that if the interest in taking part in the proceedings lay in the purpose for which the non-governmental organisation was founded − namely, the protection of the rights of the persons in respect of whom the existence of the alleged discrimination was invoked − in the instant case the available evidence, including the succession of events as narrated by the media, did not confirm the existence of different treatment in a similar situation. The minutes of Tulcea Local Council’s meeting of 25 January 2007 and the press articles provided evidence of the efforts of the local authorities to remedy the problems caused by the eviction.

55. The local authorities had repeatedly attempted to delay the eviction pending the preparation of other housing solutions, and had succeeded in doing so. It was uncontested that after the eviction housing solutions had been found for all the families either at “Pichet” or in mobile homes. It had also been proved that the local authorities had constantly tried to remedy the particular housing problems of individual families by granting them social housing and by overruling the opposition of some of the members of the community to certain families’ being granted priority treatment. In this context the court noted the statements made by the mayor and by another representative of the local authorities in respect of the Amarioarei and Stanga families’ situation after their eviction. The Romanian Helsinki Committee’s arguments that the relocation of most of the families to “Pichet” amounted to segregation was therefore contradicted, since that had been the only housing option identified at the time of the eviction and there was no proof that alternative options had existed.

56. Also, the local authorities had tried to remedy the victims’ social problems, even though it was not denied that some of them had owned homes which they had sold after moving into the unoccupied building in Tulcea, which had previously belonged to a State-owned factory. In addition, the area where the “Pichet” building was located was connected to the town by public transport even though the bus service was infrequent. Travelling into the city was therefore possible, whereas by contrast it was a well-known fact that there were inhabited areas of the country which were not served by any transport connection at all, not even for children attending school. Furthermore, according to press reports about the investigation carried out by the Tulcea Environmental Agency, the area where the “Pichet” building was located did not constitute a health hazard for humans. What is more, after some of the families moved to “Pichet”, their homes had been connected to electricity.

57. As regards the mobile homes located on the former rubbish dump, the court considered that the lower courts had correctly dismissed the discrimination argument. In this connection it noted that – according to the press reports – the homes in question had initially been set up on a concrete platform at a separate location but were later moved at the request of the Roma families’ representatives in order to have access to water and sewage facilities. Subsequently, they were connected to the town’s electric grid.

58. Moreover, the Romanian Helsinki Committee had failed to prove the alleged stereotypical and offensive statements made by local officials about the Roma community, and the authorities’ action argued against the existence of a discriminatory stance based on ethnicity. Furthermore, leaving aside the fact that the Romanian Helsinki Committee had assumed without proof that members of the Roma community were less well educated, the education criterion set by the local authorities for allocating social housing had concerned social housing located on a particular street and it had not been proved that it was a rule applied in a ‘blanket’ manner when allocating all social housing in the city, or that it was relevant on the date of the eviction, or that it was a real obstacle for the members of the Roma community to enforce their rights as long as it was established that there were no other options available for shelter at the time. Also, the criterion had been imposed by a Tulcea Local Council decision dating back to 2004 (see paragraphs 11 and 12 above) that had not been challenged by the victims before the domestic courts. In addition, the relevant domestic legislation allowed local authorities to determine the criteria for awarding social housing.

6. The correspondence between the local authorities

59. On 27 July 2005 Tulcea Local Council informed the Tulcea prefect’s office that they could not agree to the relocation of some of the applicants on a certain street in the town since the local inhabitants objected to their return there because of past conflicts.

60. On 2 November 2006 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office, among other things, that they intended to provide transport services in the area of the “Pichet” building from 3 November 2006.

61. On 2 April 2008 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office that the buses serving the “Pichet” area had been discontinued since 15 October 2007 because nobody was using them. Two buses continued to serve the nearby industrial zone and their number could be increased on condition that the people living in the “Pichet” area bought monthly transport passes in advance.

62. On 15 April, 9 May, 24 July, and 1, 9 and 24 September 2008 the Tulcea prefect’s office informed the mayor of Tulcea that following individual complaints lodged by the applicants and non-governmental organisations and from inspections carried out at the “Pichet” building and in the mobile homes located on the rubbish dump by representatives of the Tulcea County Agency for Roma, the Tulcea Public Health Agency and the Tulcea Agency for Emergency Situations, it was apparent that the applicants’ homes were poorly maintained and infested by rodents, that the sewage system was either non-existent or not working, the sanitary facilities were not working, there was no access to water, the domestic refuse had not been collected for a long time and was being stored in a pit in front of the building, and maintenance work was urgently required. Consequently, it asked the mayor’s office to remedy the situation.

63. On 22 April 2008 the Tulcea schools inspectorate informed the Tulcea prefect’s office that they did not have the legal framework or the requisite funding to exempt children living in the “Pichet” area who wanted to attend school from paying for transport passes. They further submitted that pupils generally benefited from the statutory discount of 50% for transport passes.

64. On 24 April 2008 the Tulcea schools inspectorate asked the Tulcea mayor’s office and the schools attended by the children living in “Pichet” to get in contact each other and to examine the possibility of the aforementioned children being exempted from paying for public transport.

65. On 5 May 2008 and 22 October 2010 two of the schools that had enrolled some of the children living at “Pichet” sent to the local public transport company under the direction of the mayor’s office a list of names of the aforementioned children together with information stating when their classes started and ended.

66. On 3 June and 4 July 2008, respectively, the Tulcea prefect’s office and Tulcea Local Council informed each other and an applicant that a source of water had been installed in the vicinity of the mobile homes located on the rubbish dump and that some of the sanitary facilities of the “Pichet” building had been repaired, but they continued to break down as a result of improper use.

67. On 24 September 2008 the Tulcea prefect’s office informed the Tulcea Public Transport Company under the direction of Tulcea Local Council that according to information received from the inhabitants in the area, all the buses connecting the “Pichet” building and the nearby industrialised area with the town had been cancelled, with the result that many of the children living there could not travel to school any more and therefore abandonment of school attendance was increasing. It also asked Tulcea Local Council to reinstate the bus routes serving the area in question.

7. Other relevant information

(a) The applicants sharing the same homes

68. Between 15 September and 5 December 2006 the applicants signed lease contracts with Tulcea Local Council for rooms in the “Pichet” building or for mobile homes located on the former rubbish dump. According to the aforementioned contracts the twenty-third applicant was living together with the fiftieth, fifty-first and fifty-second applicants in a mobile home located on the rubbish dump. The fifteenth applicant was living together with the thirteenth, fourteenth, forty-third and forty-fourth applicants at “Pichet”. The twenty-fourth applicant was living together with the eleventh and the sixty‑ninth applicants in a mobile home located on the rubbish dump. The sixty-third applicant was living together with the twenty-eighth, twenty‑ninth, sixty-fourth and sixty-sixth applicants at “Pichet”. The forty‑first applicant was living together with the thirty-seventh, forty-second and seventy-sixth applicants at “Pichet”. The forty-seventh applicant was living together with the forty-sixth, forty-eighth and forty-ninth applicants at “Pichet”. The fifty-fourth applicant was living together with the thirty‑eighth, thirty-ninth, fortieth, fifty-third and fifty-fifth applicants at “Pichet”. The sixty-first applicant was living together with the twenty-sixth, fifty-eighth, sixty-second, sixty-fifth and seventy-fifth applicants at “Pichet”. The sixteenth applicant was living together with the twenty‑seventh, fifty‑sixth and fifty-seventh applicants in a mobile home located on the rubbish dump. The third applicant was living together with the second and twelfth applicants in a mobile home located on the rubbish dump. The thirty-fifth applicant was living together with the thirty-third, thirty-fourth and thirty-sixth applicants in a mobile home located on the rubbish dump. The twenty-fifth applicant was living alone in a mobile home located on the rubbish dump. The seventeenth applicant was living together with the tenth applicant at “Pichet”. The seventy-first applicant was living together with the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants at “Pichet”. The twenty-first applicant was living together with the twenty‑second, thirtieth, thirty-first, thirty-second, seventy-third and seventy-fourth applicants at “Pichet”. The forty-fifth applicant was living together with the fifty-ninth and the sixtieth applicants at “Pichet”. The sixth applicant was living together with the fourth, fifth, seventh and ninth applicants at “Pichet”.

(b) Social investigation reports and other information

69. According to social investigation reports produced by Tulcea Local Council on 28 January 2009, the twenty-second applicant was living at “Pichet” together with the twenty-first applicant and six months earlier the eighth applicant had moved in with the ninth applicant at “Pichet” from a different address in the city. The seventy-fourth applicant had moved to a different town and the forty-second applicant had moved to a different address in the city. Meanwhile, the fifty-fourth applicant had broken up with the fortieth applicant in December 2007 and had not been in touch since then.

70. On 19 May 2010, on their application form, the applicants informed the Court that they had mounted legal challenges against their evictions of 2005 and 2006. They also stated that, whilst important by way of background, those legal challenges did not form the focus of the application.

71. On 16 September 2011 the sixty-fifth applicant signed a lease contract with Tulcea Local Council for a home located at a different address in the city, neither at “Pichet” nor at the former rubbish dump.

72. In December 2012 the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in October 2008 by the Tulcea Social Protection and Assistance Agency, the applicants’ relatives and neighbours had informed the social investigators that the seventy-first applicant had moved to Spain a month earlier together with her children, the thirty-sixth applicant was living with her mother at a different address in the city, and the forty-sixth, forty-eighth and seventy‑fifth applicants were living at a different address in the city.

73. On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in February 2009 by the Tulcea Social Protection and Assistance Agency, the twenty-seventh and fifty-seventh applicants were living in mobile homes located on the former rubbish dump. Also, according to statements from the applicants’ relatives and neighbours, the fifty-sixth applicant had moved to another city in January 2009 in order to live with her partner; the thirty-sixth applicant was living with her mother at a different address in the city; the twenty-second applicant was living elsewhere with his mother; the seventy‑first applicant had moved to Spain together with her children, namely the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants; the seventy-fifth, the forty-sixth and forty-eighth applicants were living at a different address in the city; the sixty-seventh and sixty-eighth applicants were living at “Pichet”; and the fifty-second applicant was living in another town.

74. On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in December 2012 by the Tulcea Social Protection and Assistance Agency, the nineteenth, twentieth, twenty-seventh, fifty-sixth, fifty-seventh, sixty-seventh, sixty-eighth, seventieth, seventy-first and seventy-second applicants were no longer living at “Pichet” or in the mobile homes located on the former rubbish dumps. Also, according to statements from the applicants’ relatives and neighbours, the twenty-second applicant had moved and was renting an apartment at a different address in the city; the seventy-fifth applicant had been held in detention since 2010; the forty-second applicant had returned to “Pichet” in June 2012, having previously lived at a different address in the city where she had moved sometime after December 2006; the fortieth applicant was in detention; the forty-sixth and forty-eighth applicants were living at a different address in the city; the thirty-sixth applicant was living elsewhere with her mother; and the fourteenth applicant was living at a different address in the city together with her partner’s parents.

75. According to the social investigation report produced by Tulcea Local Council on 13 December 2012 the fifty-third applicant was living with her grandmother at a different address in the city, the seventy-fourth applicant was living together with the twenty-first applicant, and the sixty‑fifth applicant was living together with his partner at “Pichet”. The eighth applicant was living together with the eighteenth applicant and the fifty-second applicant was living together with the fiftieth applicant at “Pichet”.

76. On 20 December 2012 the Tulcea County Agency for Payments and Social Inspection informed the Government that fifty-four applicants – excluding the sixth, eleventh, thirteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-ninth, thirty-fifth, thirty-seventh, thirty-eighth, forty-fifth, forty-sixth, forty-eighth, fifty-second, sixty-fifth, sixty-seventh, sixty-eighth, sixty-ninth, seventy-fourth and seventy-fifth applicants – had been receiving or continued to receive various forms of benefits and social allowances.

77. On the same date the Tulcea schools inspectorate informed the Government that of the applicants who lived at “Pichet”, twenty-one were and/or had been enrolled as school students before and/or after their eviction in October 2006, namely the fourth, fifth, seventh, thirteenth, fourteenth, nineteenth, twenty-sixth, twenty-eighth, thirtieth, thirty-first, thirty-eighth, thirty-ninth, forty-fourth, forty-sixth, fifty-third, fifty-fifth, fifty-ninth, sixty‑sixth, seventieth, seventy-second and seventy-third applicants. According to the aforementioned school inspectorate some of the twenty‑one children had been temporarily or permanently withdrawn from school by their parents or next of kin before, immediately after or some years after their eviction in October 2006 because their parents or relatives were not interested in their children obtaining an education.

78. On the same date the Tulcea schools inspectorate informed the Government that the schools closest to “Pichet” and the mobile homes on the rubbish dump were located one kilometre and 200 metres respectively from the two sites.

(c) Information provided by the Tulcea Environmental Protection Agency and the Romanian Ministry of Internal Affairs

79. On 12 December 2012 the Tulcea Environmental Protection Agency informed the Government that none of the applicants had complained to it about the issues raised before the Court. Moreover, the Agency had not carried out an environmental impact evaluation regarding the pollution in the areas mentioned in their application before the Court because the mobile homes were positioned in a location in a residential neighbourhood within the city boundary with access to running water, electricity, household waste collection facilities and a school. The area in question had never been designated as a rubbish dump. The city’s rubbish dump for household waste was located 5 kilometres outside the city. The “Pichet” building was also located within the city boundary, within the confines of the industrial port zone on the banks of the River Danube with access to running water, electricity and household waste collection facilities. The Agency had an automated air quality monitoring station positioned in a location 1,500 metres from “Pichet”. The results produced by this station showed that the level of pollution from sulphur dioxide, nitrogen dioxide, carbon monoxide, suspended particles and volatile organic compounds had remained below dangerous levels throughout 2011 and none of the other automated stations for monitoring air quality within the city had reported dangerous levels of pollution that year either. Furthermore, the goods which were handled by the port authorities were not dangerous and an environmental impact evaluation with regard to the pollution in the area of the industrial port was therefore not necessary. Lastly, the Agency was unaware whether the applicants had been informed by the authorities about the environmental conditions in the area at the time of their eviction because the eviction had been carried out by the Tulcea mayor’s office. The Agency did not have a strategy for avoiding potential risks to the applicants’ health because such a strategy would fall within the spheres of competence of the Tulcea mayor’s office and the Tulcea Public Health Agency.

80. On 6 February 2013 the Romanian Ministry of Internal Affairs informed the Government that the nineteenth and the sixty-seventh applicants had been registered at other addresses since June 2011.

(d) Statements submitted by the applicants before the Court

81. On 28 March 2013 the fifteenth applicant submitted a statement before the Court, co-signed by his partner and children, to the effect that he and his partner, the forty-third applicant, were still living together with the fourteenth, the forty-fourth and thirteenth applicants at the same address and that their living conditions had not improved. Moreover, the authorities had refused to renew their lease contract because they had fallen behind with the rent and electricity payments. He also submitted that the sixty-seventh and the sixty-eighth applicants had moved to a different address. At the same time the seventy-second applicant had been working in Spain but she had continued to make regular return visits to her home here.

82. On the same date the twenty-fourth, twenty-ninth, forty-first, forty‑second, fifty-fourth and sixty-third applicants submitted statements to the Court to the effect that they had been faced with poor living conditions after their re-location. The twenty-ninth, forty-first and fifty-fourth applicants stated that after their lease contracts had expired the authorities had refused to renew them because they had also fallen behind with paying rent and other charges. The twenty-ninth applicant confirmed the fifteenth applicant’s statement about the sixty-eighth applicant. The fifty-fourth applicant also confirmed the fifteenth applicant’s statements concerning the sixty-seventh and sixty-eighth applicants, as well as those regarding the family of the seventy-second applicant. She added that the nineteenth and the twentieth applicants were in a similar situation to that of the seventy‑second applicant’s family.

83. On 29 March 2013 the sixty-first and seventy-sixth applicants submitted statements before the Court confirming the poor living conditions they had been faced with after their re-location. On the same date the forty‑seventh applicant stated that her grand-daughter and son, the forty‑sixth and forty‑ninth applicants respectively, were living with her. She reiterated that their living conditions were inadequate and had not improved. On the same date the fiftieth applicant confirmed that his living conditions were still poor and stated that his son, the fifty-second applicant, was still living there with him.

B. Relevant domestic law and international material

84. The relevant provisions of Law no. 114/1996 on housing read as follows:

Article 24

“A lease contract may be terminated prematurely in the following circumstances:

(...)

b) at the owner’s request if:

- the tenant has not paid the rent for at least 3 consecutive months;

- the tenant has significantly damaged the residence, the building, the facilities and any other property attached to them ...;

- the tenant’s behaviour makes cohabitation impossible or prevents the normal use of the residence;

- the tenant has breached the tenancy agreement;

c) at the request of the owners’ association if the tenant has not paid his share of the collective charges for 3 months...”

Article 27

“If a leaseholder leaves the residence permanently, or if he or she dies, or if a non-resident leaseholder ... ceases to use the residence for more than 2 years continuously, the lease shall remain valid as the case may be:

a) to the benefit of the spouse, if he or she has lived together with the leaseholder;

b) to the benefit of the descendants and the ascendants, if they have lived together with him or her:

c) to the benefit of other individuals who shared the same domicile with the leaseholder for at least 1 year and were recorded in the lease contract;

(...)

In the absence of individuals who could benefit from the lease according to paragraph 1, the lease contract shall be terminated within 30 days of the date on which the leaseholder vacated the residence or died, or when the 2-year period of continuous non-use has expired.”

Article 28

“The owner shall fulfil the following duties:

a) to hand over the residence to the tenant in a condition suitable for use;

b) to take steps to repair and maintain the building for safe use during the entire duration of the lease;

c) to maintain in good condition the building’s structural strength and the external parts of the building (roof, building front, pavement, surrounding area), yards and gardens as well as the building’s internal communal area (the stairwell, lift, hallways, corridor, underground, external stairs);

d) to maintain in good condition the building’s common facilities (elevator; hydrophore; water, sewage, central and water heating facilities; central heaters; ... waste collection facilities...).

Article 29

“The tenant shall fulfil the following duties:

a) to carry out the maintenance, repair and replacement work of the building’s elements and facilities used exclusively by him;

b) to replace or repair damaged elements and facilities of the building used improperly and which are in common use, regardless if they are outside or inside the building...;

c) to clean and disinfect the residence and the parts of the building in common use during the entire duration of the lease;

d) to return the residence to the owner in a condition suitable for use once the lease ended...”

Article 30

“If the owner fails to fulfil his duties to repair and maintain the leased residence, the tenant may carry out the works at the owner’s expense, by deducting the expenses from the rent.

The tenant may carry out these works if the problem in question affects normal use of the property and if the owner has not taken steps to carry out such works within 30 days of the tenant’s written notification of the problem.”

Article 43

“Social housing shall be allocated by local councils on the basis of conditions which they revise annually under the law in force at the time. The following categories of persons may benefit from social housing according to an order of priority decided by the local councils: newlyweds under 35, formerly institutionalised young people over 18, disabled persons ... and other categories of entitled individuals and families.”

Article 48

“There is no right to social housing for persons or families who:

(...)

a) have sold a residence after 1 January 1990;

(...)

d) have already leased another social housing residence from the State’s immovable property fund.”

85. The relevant provisions of the former Romanian Civil Code read as follows:

Article 998

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

Article 999

“Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.”

Article 1075

“Any injunction to act or not to act is changed to damages if unenforced by the debtor”

Article 1077

“If an injunction to act remains unenforced, the creditor may also ask to be authorised to enforce it at the debtor’s expense.”

Article 1420

“The lessor must by nature of the contract and without the need for a special provision:

1. hand over the leased property to the tenant...

2. maintain it a condition that makes it usable for the purpose for which it was leased....”

Article 1421

“(...)

During the lease all the repairs that may be necessary must be made, except for small repairs (...) which are the responsibility of the tenant by virtue of his use thereof.”

86. The relevant provisions of Government Ordinance No. 137/2000 on combating all forms of discrimination read as follows:

Article 27

“1. An individual who considers himself or herself discriminated against may lodge an application before a court for damages and restoration of the previous situation or cancellation of the situation caused by the discrimination, according to general law. The application shall be exempt from stamp duty and shall not be affected by an application before the National Council for Combating Discrimination.

(...)

4. The interested party shall present the facts that may be presumed to amount to direct or indirect dicrimination and the defendant must prove that the principle of equal treatment has not been breached. Any evidence may be adduced before the court ... including audio and video recording or statistical data...”

Article 28

“1. Non-governmental organisations which have as an objective the protection of human rights or which have a legitimate interest in combating dicrimination shall have locus standi if the discrimination happens within their area of activity and affects a community or a group of people.

2. The organisations mentioned in paragraph 1 shall also have locus standi in circumstances where the discrimination affects a natural person, at his or her request.”

87. Excerpts from the relevant international documents concerning the living conditions and education rights of Roma people, including recommendations, resolutions, reports, observations, memoranda and other relevant texts by the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights, the European Union Agency for Fundamental Rights and the United Nations Committee on Economic, Social and Cultural Rights, are given in the case of Winterstein and Others v. France (no. 27013/07, §§ 90-102, 17 October 2013).

88. Excerpts from the relevant international treaties concerning the right to education, inluding the Universal Declaration of Human Rights 1948, the Convention Against Discrimination in Education 1960, the International Covenant on Economic, Social and Cultural Rights 1966, the International Convention on the Elimination of All Forms of Racial Discrimination 1966 and the Convention on the Rights of the Child, are given in the case of Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 77-81, ECHR 2012 (extracts)).

COMPLAINTS

89. Relying on Articles 3 and 8 of the Convention, the applicants complained that the authorities, without taking into consideration their vulnerable situation, had evicted them from their homes and had offered them social housing in an isolated, run-down and abandoned building and in mobile homes located on a former rubbish dump where they had been forced to live in inhuman conditions, without water or sanitary facilities, in polluted surroundings unfit for human habitation, and with their children having no access to schools, all of which amounted to inhuman and degrading treatment and was a breach of their right to a home and to private and family life. The applicants also complained that the local authorities had failed to provide them with adequate housing.

90. Relying in substance on Article 6 of the Convention, the applicants complained of a breach of their right to a fair trial in so far as the authorities had failed to enforce the final judgment of 1 October 2008 ordering the local authorities to undertake urgent repairs in respect of the “Pichet” building. Moreover, the domestic courts examining the complaint brought by the Romanian Helsinki Committee had failed to examine the substance of the complaint, had ignored the offensive and racist statements made by the authorities, had failed to consider all the details of the complaint or to shift the burden of proof onto the authorities once a prima facie discrimination case had been established.

91. Relying on Article 13 of the Convention, the applicants complained of a lack of an effective remedy on account of the violations complained of under Article 6 of the Convention (above).

92. Relying on Article 2 of Protocol No. 1 to the Convention, the applicants complained that the children living in the “Pichet” building had been unable to attend school because of its remote location and had been expelled or had had to abandon their schooling.

93. Relying on Article 14 taken in conjunction with Articles 3, 6, 8 and 2 of Protocol No. 1 and relying also on Article 1 of Protocol No. 12 to the Convention, the applicants complained of being discriminated against by local and judicial bodies on account of the authorities’ biased attitude towards their ethnic origin when examining their claims in respect of social housing, by making higher education a decisive criterion for access to social housing when allocating such housing to them, and by preventing the children in the “Pichet” building from attending school.

THE LAW

A. Preliminary observations

94. The Government submitted that in their view the sixteenth and seventeenth applicants’ applications should be struck out of the list. They argued inter alia that, although the sixteenth applicant was mentioned as an applicant in the documents submitted to the Court, he had not signed a power of attorney authorising the ERRC to submit an application on his behalf to the Court. In addition, the seventeenth applicant had died on 13 February 2013 and none of her relatives had expressed a wish to continue with the application lodged before the Court on her behalf.

95. The applicants affirmed that the sixteenth applicant did not wish to pursue his application before the Court. They did not comment in respect of the Government’s submissions concerning the seventeenth applicant.

96. In these circumstances and within the meaning of Article 37 § 1 (a) and (c) of the Convention, the Court considers that further examination of the sixteenth and seventeenth applicants’ applications is no longer justified. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which warrant the continued examination of their applications.

97. Accordingly, the sixteenth and seventeenth applicants’ applications should be struck out of the list.

B. Scope of the application

98. The Government argued that in their submissions to the Court the applicants had referred to the poor living conditions they had suffered over the years, which were the result of the burning down of their homes in 1999 and by their two evictions in 2005 and 2006, followed by periods during which they had been forced to live on the street. In this respect, the Government argued that the applicants’ general situation and living conditions over the years were not the focus of the case as communicated by the Court and that, furthermore, the applicants’ potential complaint about the events which allegedly took place in 1999, 2005 and 2006 fell outside the six-month time-limit.

99. The applicants disagreed with the Government’s argument that the events of 1999, 2005 and 2006 did not form part of the present case. They argued that, although their situation since the 2006 eviction amounted in itself to a violation of the rights claimed by them, their treatment over the preceding several years was crucial in understanding and examining the seriousness of their situation, the issue of discrimination and the liability of the authorities. They further argued that part of their claim related to the evictions of 2005 and 2006, after which they had been forced to live on the street for several months. They alleged that the State’s responsibility for the evictions was engaged because, even though the local authorities had been aware of the applicants’ precarious situation following the destruction of their homes in 1999, they had refused to take over ownership of the building where the applicants were living and the domestic courts had failed to examine the proportionality of the evictions under Article 8.

100. The Court notes that, according to the parties’ submissions, the applicants’ homes had burned down in 1999. The fire was accidental and there is no evidence in the file that any State agents had any involvement in the destruction of the applicants’ homes or that the applicants instituted proceedings in respect of the impugned event. They had subsequently occupied a building without having any lawful right to do so. They had been briefly evicted in 2005, but had returned to the occupied building after the injunction ordering their eviction was overturned by the domestic courts. They were permanently evicted in October 2006 and there is no evidence in the file that any of the applicants appealed against the judgment dismissing their challenge against the eviction order.

101. The Court also notes that in their application lodged before the Court the applicants expressly stated that – whilst important by way of background – their challenges against the evictions of 2005 and 2006 were not the focus of the application (see paragraph 70 above).

102. Given these circumstances, the Court considers that, although the events and the applicants’ situation prior to the actions undertaken by the authorities for their relocation to “Pichet” and the mobile homes located on the rubbish dump after the eviction are indeed relevant by way of background, they do not form the focus of the case at hand. Consequently, there is no need for the Court to examine the Government’s objection that the applicants’ complaint about the events which allegedly took place in 1999, 2005 and 2006 was lodged outside the six-month time-limit.

103. The Court will continue, therefore, to pursue the examination of the applicants’ complaints only in so far as they concern the authorities’ attitude and the living conditions they were faced with during and after their relocation to “Pichet” and the mobile homes located on the rubbish dump.

C. Complaints under Articles 3 and 8 of the Convention

104. The applicants complained that, following their eviction ‒ without taking into consideration their vulnerable situation ‒ the authorities had offered them social housing in an isolated, run-down and abandoned building and in mobile homes located on a former rubbish dump where they had been forced to live in inhuman conditions, without water or sanitary facilities, in polluted surroundings unfit for human habitation, and with their children having no access to schools, all of which amounted to inhuman and degrading treatment and a breach of their right to a home and to private and family life. They also complained that the local authorities had failed to provide them with adequate housing. They relied on Articles 3 and 8 of the Convention.

105. Having considered the circumstances of the case and the nature of the applicants’ allegations, the Court finds that the applicants’ allegations fall to be examined exclusively under Article 8 of the Convention (see Costache v. Romania (dec.), no. 25615/12, § 19, 27 March 2012), which reads:

Article 8

“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.”

1. The parties’ submissions

(a) The Government

106. The Government submitted that the applicants who had been parties to the general tort law proceedings which ended with the Constanța Court of Appeal’s final judgment of 26 March 2014 could no longer claim to be victims of a violation of their rights guaranteed by Article 8 of the Convention. The aforementioned domestic court decision had acknowledged, either expressly or at least in substance, that the applicants had been victims of a violation of their rights guaranteed by Article 8 of the Convention. In addition, the compensation awarded to the applicants for the damage sustained had been appropriate and sufficient. Although the Constanța Court of Appeal had not ordered the Tulcea local authorities to take specific measures in order to improve the applicants’ circumstances and living conditions, it must be noted that it had examined the applicants’ claims within the limits of its competence and based solely on the claims raised by the applicants themselves. The domestic court could not lawfully of its own motion extend the context of the proceedings or change the action brought by the applicants which had instituted the proceedings. The Government argued that in any event the Tulcea local authorities were under an obligation to be diligent and to respect the findings of the court as stated in its extended reasoning of the judgment of 26 March 2014. Even though the operative part of the judgment did not expressly impose any obligations on the local authorities, the judicial authorities had nonetheless exerted a form of lawful “pressure” on them. If the local authorities had continued to disregard or failed to protect the applicants’ rights, they could have found themselves facing the consequences of a new general tort law action brought by the applicants.

107. The Government also argued that the applicants had received appropriate and sufficient compensation. They had each claimed RON 3,500 in respect of non-pecuniary damage. Although the domestic courts had reduced the amount awarded to RON 2,000, the criteria applied by the domestic court had complied with the principle of proportionality. In respect of the question whether the aforementioned amount was comparable to amounts awarded by the Court by way of just satisfaction in similar cases, the Government submitted that the domestic courts could not have awarded the applicants an amount higher than the one they had claimed.

108. The Government also raised a preliminary objection of non‑exhaustion of domestic remedies. They contended that according to the Court’s finding in Costică Moldovan and Others v. Romania ((dec.), no. 8229/04 et al., § 136, 15 February 2011) a general tort law action constituted an effective remedy for the applicants’ complaint. The majority of them, namely sixty-six out of the seventy-four applicants, had instituted the aforementioned proceedings against the local authorities to obtain compensation for the damage sustained by them as a result of the restriction of their children’s right to education, the inappropriate living conditions they were faced with in the social housing provided by the authorities, and the damage caused to their health and social capabilities as a result of the inaction of the authorities. However, the applicants had failed to await the outcome of the proceedings and had lodged their complaint before the Court prematurely.

109. The Government argued that the applicants who had not instituted general tort law proceedings against the local authorities had failed to exhaust the available domestic remedies.

110. As regards the forty-second applicant’s victim status, the Government contended that she was not living at “Pichet” on the date the application was lodged before the Court. According to her own statements in the social investigation reports, she had moved there in June 2012, having previously rented an apartment at a different address.

111. The Government pointed out that the seventy-fifth applicant had been in detention since 2010, according to the available social investigation reports. Consequently, before the Court he could only have referred to his living conditions prior to his incarceration.

112. The Government stated that ‒ according to the available evidence ‒ no social investigation reports could be produced in December 2012 in respect of the sixty-seventh, sixty-eighth, fifty-sixth, fifty-seventh, twenty‑seventh, seventy-first, seventieth, seventy-second, nineteenth and twentieth applicants because they were no longer living at “Pichet” or on the former rubbish dump. According to the available evidence the sixty-seventh and the nineteenth applicants had moved to different addresses in 2011. Moreover, it appeared from the information obtained by the social investigators from the applicants’ neighbours that the seventy-first, seventieth, seventy-second, nineteenth and twentieth applicants had moved to Spain in September 2008. Furthermore, according to the statements given by the fifty-sixth applicant’s parents, their daughter had moved to a different city in January 2009. Consequently, in the absence of any information as to the exact dates on which the aforementioned applicants had left the social housing provided by the authorities, the Government were of the view that it was not clear that they had intended to pursue their applications or that their applications had been lodged within the six-month time-limit.

(b) The applicants

113. The applicants submitted that they continued to be victims of a violation of their rights. They argued that the domestic courts had acknowledged that there had been a violation of Article 8 of the Convention in respect of their living conditions.

114. However, relying on the case-law concerning unlawful detention, conditions of detention and detention in a psychiatric hospital, they argued that the Court’s position was that monetary compensation for damage resulting from a violation of the Convention constituted appropriate redress only in cases where the violation had ceased by the time the award was granted. In addition, in cases of treatment prohibited by Article 3 the State had to establish, over and above a compensatory remedy, an effective mechanism in order to put a rapid end to such treatment. Relying on Winterstein and Others v. France (no. 27013/07, §§ 148, 17 October 2013) and on Moldovan and Others (no.2) v. Romania (nos. 41138/98 and 64320/01, 12 July 2005) the applicants considered that in certain cases of particularly severe violations of Article 8 the same principles applied.

115. They further submitted that the outcome of the general tort law proceedings did not appropriately remedy their situation as it had not put an end to the ongoing poor living conditions they had suffered and continued to suffer. Although some of them were in possession of an injunction ordering the local authorities to carry out repairs at “Pichet”, it had never been enforced. Also, although the Constanța Court of Appeal judgment of 26 March 2014 had found that the local authorities had a duty to repair the applicants’ homes, it had not ordered them to do so. In addition, the compensation awarded to them had been insufficient. The domestic court granted the same amount to all the applicants irrespective of the classification, nature and severity of the violations claimed and each applicant’s personal circumstances. Furthermore, the amount awarded by the domestic court had been significantly lower than the amounts awarded by the Court in similar circumstances.

116. The applicants also contradicted the Government’s claim that they had failed to exhaust the available domestic remedies. They submitted that the injunction proceedings and the proceedings opened on 3 October 2007 had amounted to an exhaustion of the domestic remedies, since those proceedings had covered the substantive issues addressed in their application before the Court. The general tort law action had been a parallel procedure which did not need also to be exhausted in order to satisfy the requirements of Article 35 of the Convention.

117. The applicants contended that the applicants identified by the Government as no longer living in the housing at “Pichet” or on the former rubbish dump continued to be affected by the ongoing violations of their rights. The short periods of time they had spent away from “Pichet” and the homes on the rubbish dump had been necessitated by their attempts to seek jobs and decent living conditions elsewhere. However, like the other applicants, they had suffered periods of homelessness immediately after their eviction in 2006 and had lived for many years in the substandard conditions offered by their housing before and after 2009. The subsequent changes in their circumstances did not invalidate their allegations. Although the forty-second applicant had lived elsewhere briefly before June 2012, she had been forced to return to “Pichet” because she had no longer been able to afford the rent at the other address.

2. The Court’s assessment

118. The Court considers that the issues of the applicants’ victim status and the exhaustion of domestic remedies are intrinsically linked in the circumstances of the present case and should therefore be addressed together.

119. It also considers that it is not necessary to examine all the preliminary objections raised by the Government because, even assuming that some of them would be dismissed, the complaint is in any event inadmissible for the reasons given below.

(a) General principles

120. As to the applicants’ victim status, the Court reiterates that under Article 34 of the Convention it “may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. 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 Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III, and Centro Europa 7 SRL and Di Stefano v. Italy [GC], no. 38433/09, § 80, ECHR 2012). Such acknowledgment and redress are usually the result of the process of exhaustion of domestic remedies (see Koç and Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005, and D.J. v. Croatia, no. 42418/10, § 92, 24 July 2012).

121. The Court further reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007‑II; and Habulinec and Filipović v. Croatia (dec.), no. 51166/10, § 26, 4 June 2013).

122. As to the exhaustion of domestic remedies, the Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all the domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and Rummi v. Estonia, no. 63362/09, § 65, 15 January 2015). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Zhyzitskyy v. Ukraine, no. 57980/11, § 57, 19 February 2015).

(b) Application of these principles in the present case

123. The Court notes at the outset that only sixty-six of the applicants who lodged a complaint before the Court had instituted general tort law proceedings against the local authorities.

124. The Court also notes that in its judgment of 26 March 2014 the Constanța Court of Appeal acknowledged that the local authorities had been inactive and had failed to fulfil their legal and contractual duties as lessor to repair and maintain the applicants’ homes and had failed to carry out any of the maintenance work or repairs ordered by the injunction of 1 October 2008. The court also admitted that, although the homes located on the rubbish dump had been intended as temporary shelter, the applicants had continued to live there even though they were in an unhealthy environment and the authorities had failed to decontaminate the area and to inform them about potential consequences for their health. Furthermore, it acknowledged that the transport problems faced by the applicants whilst housed in a remote area, although not a measure aimed directly against the Roma, had affected them disproportionately and had restricted the children’s right to education. Lastly, it admitted that the inappropriate living conditions and polluted environment had affected the applicants’ health and acknowledged that the poor conditions and unhealthy environment ‒ and the impact thereof on the applicants’ health ‒ taken together with the long period of time the applicants had to live in those conditions and the general attitude of the authorities, amounted to a breach of the applicants’ human dignity and of their rights guaranteed by Article 8 of the Convention.

125. Although the domestic court relied expressly only on Article 8 of the Convention, the Court will not adopt an approach of excessive formalism and considers that the wording of the Constanța Court of Appeal’s judgment may be regarded as amounting, at least in substance, to an acknowledgement of a violation also of other Convention provisions relied on by the applicants, including Article 6 in part, Article 14, and Article 2 of Protocol No. 1.

126. As to the sufficiency of the redress, the Court notes that the applicants contested it, by relying among other things on the Court’s case‑law concerning unlawful detention, conditions of detention and detention in a psychiatric hospital, although they were never in such siuations. In any event, the Court notes that none of the applicants claimed compensation in respect of pecuniary damage. Each of them claimed RON 3,500 (approximately EUR 780) in respect of non‑pecuniary damage. After examining their claim, the domestic courts awarded each of the applicants RON 2,000 (approximately EUR 450), supporting the award with the reasoning that it was aimed at striking a fair balance between the parties’ rights and obligations.

127. Furthermore, with regard to the applicants’ argument that the Constanța Court of Appeal had failed to order the local authorities on 26 March 2014 to carry out the repairs, the Court notes that obtaining such an order had not been the object of the applicants’ general tort law action, which was limited only to a claim in respect of non‑pecuniary damage. The Court is mindful that an issue may arise in a situation in which the domestic authorities have persistently failed to honour the judgment debt, notwithstanding a compensation award, or even repeated awards made by domestic courts. That is indeed a hypothesis suggested by the facts of the present case, where the final judgment of 1 October 2008 apparently remains unenforced. However, given that the general tort law proceedings granting the applicants compensation ended on 26 March 2014 and that the most recent information from the parties dates back to May 2014, the Court does not find it appropriate to anticipate such an event, nor to decide this issue in abstracto at the present stage.

128. Even though the Court is aware that the amount awarded to the applicants may appear small, it does not consider that it is devoid of proportionality in respect of its case-law (contrast and compare Yordanova and Others v. Bulgaria, no. 25446/06, § 171, 24 April 2012) and taking into account the amount claimed by the applicants themselves. In this connection, the Court must take account of the fact that the domestic courts could in any event not lawfully have awarded the applicants an amount higher than that claimed.

129. In this context, notwithstanding the parties’ remaining arguments, the Court is satisfied that the redress awarded to the applicants who were parties to the general tort law proceedings was appropriate and sufficient.

130. It follows that the sixty-six applicants can no longer claim to be victims within the meaning of Article 34 of the Convention in respect of this part of the complaints raised before the Court. Consequently their application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.

131. As regards the remaining eight applicants who were not parties to the general tort law proceedings, the Court notes that they argued that the proceedings which opened on 3 October 2007 and ended with the final judgment of 28 May 2009 had been sufficient for the purposes of exhausting domestic remedies.

132. The Court notes that the proceedings of 3 October 2007 were instituted by the Romanian Helsinki Committee and that there is no evidence in the file that the applicants were parties to those proceedings or that they authorised the aforementioned organisation to institute the proceedings on their behalf. In the absence of any concrete evidence or express mention by the domestic courts, the Court cannot accept that the Romanian Helsinki Committee acted on the individual applicants’ behalf before the domestic courts or that they could therefore claim to have been parties to those proceedings. The fact that the domestic courts did not dismiss as inadmissible the general claim for compensation made by the Romanian Helsinki Committee for the victims of the authorities’ discrimination, that it examined it on the merits, and that they did not question the organisation’s capacity as representative does not amount, in the Court’s view, to a sufficiently strong argument that the applicants were parties to the proceedings, given that they have not advanced any objective reasons for the organisation’s failure to collect signed authorisation forms from them.

133. Consequently, the Court considers that in the particular circumstances of the present case, the said applicants should have instituted a general tort law action in order to obtain redress.

134. It follows that, as regards the applicants who were not parties to the general tort law action, this part of their application is inadmissible for non‑exhaustion of domestic remedies and must be dismissed pursuant to Article 35 § 1 and 4 of the Convention.

D. Complaints under Articles 6 and 13 of the Convention

135. Relying on Articles 6 and 13 of the Convention, the applicants complained of a breach of their right to a fair trial in so far as the authorities had failed to enforce the final judgment of 1 October 2008 ordering them to carry out urgent repairs on the “Pichet” building. In addition, the domestic courts examining the complaint brought by the Romanian Helsinki Committee had failed to examine the substance of the complaints, had ignored the offensive and racist statements made by the authorities, and had failed to consider all the details of the complaint and to shift the burden of proof onto the authorities once a prima facie discrimination case had been established. The applicants also argued that they lacked an effective remedy for the aforementioned breaches.

136. Since the role of Article 6 in relation to Article 13 is that of a lex specialis – the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 § 1 – the Court considers that the applicants’ complaints should be examined solely under Article 6, which in so far as relevant reads:

Article 6

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

1. Non-enforcement of the judgment of 1 October 2008

(a) The parties’ submissions

137. The Government argued that they had repeatedly carried out repair works at “Pichet” between June 2007 and September 2008, as shown by the evidence provided by the domestic administrative authorities. However, the applicants had failed to inform the Court about the aforementioned repair works carried out by the local authorities.

138. The Government also submitted that none of the applicants can still claim to be a victim within the meaning of the Convention in respect of the non-enforcement complaint. They further argued that only some of the applicants had been parties to the injunction proceedings and that even those who had been parties to the aforementioned proceedings had been deprived of their victim status following the Constanța Court of Appeal’s judgment of 26 March 2014 or had failed to exhaust the available domestic remedies if they had not instituted a general tort law action.

139. The Government submitted that the applicants had also had access to a further lawful remedy in order to have the “Pichet” building repaired. According to the rules of enforcement enshrined in Law no. 114/1996, the applicants could have made a written request to the owner of the building to have the requisite maintenance and repair works carried out. If the owner of the building had failed to reply to their letter or to act within thirty days, they could have carried out the required repair and maintenance works at the building owner’s expense by subsequently deducting the costs of such repair and maintenance works from the rent payable by them to the building’s owner. However, the applicants had not considered such an option, even though a substantial debt had accrued through their failure to pay their rent.

140. The Government contended that the applicants had failed to complain about the non-enforcement of the final judgment of 1 October 2008. According to the relevant domestic legislation they could have either instituted proceedings against the public officials potentially liable for the non-enforcement of the judgment or could have claimed compensation for the damage sustained as a result of the non-enforcement of the aforementioned judgment. However, the applicants had failed to initiate any such proceedings.

141. The applicants contended that the Constanța Court of Appeal’s judgment of 26 March 2014 had no bearing on the issue raised by them under Article 6 of the Convention as it had not addressed that issue. The aforementioned judgment acknowledged only that there was a breach of Article 8 in respect of the applicants’ living conditions and of Article 2 of Protocol No. 1 in respect of the right to education of the children applicants.

142. The applicants submitted that the Government did not argue that the judgment of 1 October 2008 had been enforced and that the repairs ordered by the domestic courts had been made.

(b) The Court’s assessment

143. The Court notes that only ten of the applicants ‒ specifically the sixth, fifteenth, twenty-first, forty-first, forty-seventh, fifty-fourth, sixty‑first, sixty-seventh, seventy-first and seventy-second applicants – were parties to the injunction proceedings. Consequently, the Court considers that the others cannot claim to be victims, within the meaning of the Convention, of a violation of their rights guaranteed by Article 6 and therefore their claim is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.

144. At the same time, in respect of the small number of applicants who were parties to the injunction proceedings, irrespective of whether or not they had initiated general tort law proceedings, the Court notes that their complaint is closely linked to their complaints under Article 8 above. Taking into account the Court’s finding above (see paragraphs 129 and 134 above), it considers that at this stage they can likewise no longer claim to be victims within the meaning of Article 34 of the Convention in respect of this part of the complaints raised before the Court or to have exhausted the available domestic remedies. Consequently their application is either incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 or inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 and must be dismissed pursuant to Article 35 § 4.

2. Failure of the domestic courts properly to examine the discrimination complaint lodged by the Romanian Helsinki Committee

145. The Government contended that the applicants could not claim to be victims of the alleged violation. They submitted that the Romanian Helsinki Committee had opened the discrimination proceedings in its capacity as a non-governmental organisation allowed by Article 28 of Government Ordinance no. 137/2000 and not as a representative of the Roma community affected by the actions of the local authorities. None of the members of the Roma community had been party to the domestic proceedings, nor had they been summoned to appear before the courts, and the domestic courts had not been called upon to examine the particular situation of certain individuals but rather the factual circumstances focused on the Roma community’s eviction. Although the organisation had asked the domestic courts to award compensation to the victims of discrimination, the first-instance and the appellate courts had dismissed its request.

146. The applicants submitted that the Romanian Helsinki Committee had lodged the discrimination claim before the domestic courts on their behalf and that they had been named during the proceedings. In addition, the first-instance court had allowed the claim for damages. If the organisation had acted in its capacity as an applicant, the domestic courts would have been prevented by law from allowing the claim. In any event the domestic courts had not questioned the organisation’s capacity as representative and the Government’s objection had therefore to be dismissed.

147. The applicants contended that the arguments raised during the domestic proceedings had included details about the treatment of individuals and family groups. The nature of the discrimination claim had been presented, however, in terms of their treatment as a group.

148. The Court notes that it has already established that the Romanian Helsinki Committee did not act as the applicants’ representative and that they could therefore not claim to have been parties to the discrimination proceedings (see paragraph 132 above).

149. Consequently, the Court considers that the applicants cannot claim to be victims, within the meaning of the Convention, of a violation of their rights guaranteed by Article 6 and therefore this part of their complaints is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.

E. Complaint under Article 2 of Protocol No. 1 to the Convention

150. The applicants complained of a breach of the right to education in so far as, due to the “Pichet” building’s remote location, the children living there were unable to go to school and were expelled or had to abandon their schooling. They relied on Article 2 of Protocol No. 1 to the Convention, which reads:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

1. The parties’ submissions

151. The Government submitted that the applicants had complained of a breach of the right to education only in respect of the children living at “Pichet” and not also with regard to the ones living in the homes located on the former rubbish dump.

152. The Government further argued that the applicants who had been parties to the general tort law proceedings had lost their victim status in respect of their complaint following the Constanța Court of Appeal’s judgment of 26 March 2014. The aforementioned judgment expressly acknowledged a breach of the right to education of the children housed at “Pichet” and afforded them sufficient and appropriate compensation. In addition, the applicants who had not been parties to the aforementioned proceedings had failed to exhaust the available domestic remedies.

153. The applicants accepted that a breach of the right to education of the children living at “Pichet” had been acknowledged by the judgment of 26 March 2014. However, they contested the appropriateness and sufficiency of the compensation.

154. The International Centre for the Legal Protection of Human Rights (“Interights”) submitted that the instant case provided an opportunity for the Court to further the development of its case-law on Article 2 of Protocol No. 1 and establish clear principles on access to education particularly for children and young people subject to relocation by the State following an eviction.

155. Interights argued that whilst States face different challenges in meeting their obligations to educate children within their jurisdiction, they must always act in accordance with the Convention and other obligations under international law. States must abide by their negative and positive obligations as outlined by the Court’s case-law and several other international bodies.

156. In terms of the State’s positive obligation to prevent, identify and correct interference with the rights to education, Interights contended that the Court and domestic courts internationally considered this positive element to include inter alia financial support, facilitation of transportation, risk assessment and special temporary measures.

157. Interights further submitted that the international and comparative legal standards required States to take into account relevant vulnerability factors when devising education policies or assessing compliance with the right to education. Children and young people subjected to housing relocation by the State following eviction were – because of their age – particularly vulnerable to breaches of their human rights. Their vulnerability was exacerbated by the presence of one or more other risk factors such as being from a minority group or living in poverty. Children in such situations were also more likely to be susceptible to previously existing disadvantages and/or prior breaks in, or reduced support for, their education.

158. Interights submitted that according to the Court’s case-law the vulnerable position of Roma meant that special consideration should be given to their needs and different lifestyle both within the relevant regulatory framework and in terms of reaching decisions in particular cases, including ones relating to education.

2. The Court’s assessment

159. The Court accepts the Government’s submission that the applicants’ complaint under Article 2 of Protocol No. 1 to the Convention concerned only the right of the children of schooling age housed at “Pichet”.

160. The Court notes that the applicants’ complaint is closely linked to their complaint under Article 8 of the Convention. Consequently, taking into account its finding above, the Court considers that the applicants who were parties to the general tort law action can no longer claim to be victims, within the meaning of the Convention, of a violation of their rights guaranteed by Article 2 of Protocol No. 1 and therefore this part of their complaints is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3. It also considers that those applicants who were not parties to the general tort law action cannot claim to have exhausted the available domestic remedies and their complaint must be dismissed pursuant to Article 35 § 4.

F. Complaint under Article 14 of the Convention taken together with Articles 3, 6 and 8 of the Convention and 2 of Protocol No. 1

161. Relying on Article 14 taken in conjunction with Articles 3, 6 and 8 of the Convention and 2 of Protocol No. 1 and relying also on Article 1 of Protocol No. 12 to the Convention, the applicants complained of being discriminated against by local and judicial bodies on account of the authorities’ biased attitude towards their ethnic origin when examining their claims in respect of social housing, by making higher education a decisive criterion for access to social housing when allocating such housing to them, and by preventing the children in the “Pichet” building from attending school.

162. The Court considers that the applicants’ complaint falls to be examined exclusively under Article 14 taken in conjunction with Articles 6 and 8 of the Convention and 2 of Protocol No. 1 to the Convention. This provision reads:

“The enjoyment of the rights and freedoms set forth in this 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 statues.”

163. The Government submitted amongst other things that the applicants who had been parties to the general tort law proceedings which ended on 26 March 2014 had lost their victim status in respect of their complaint. In addition, the applicants who had not been parties to the aforementioned proceedings had failed to exhaust the available domestic remedies.

164. The applicants disagreed.

165. The Court notes that this complaint is linked to all the applicants’ complaints examined above. Consequently, taking into account the Court’s findings above, it considers that the applicants cannot claim to be victims, within the meaning of the Convention, of a violation of their rights guaranteed by Article 14 or to have exhausted the available domestic remedies and therefore this part of their complaints is incompatible ratione personae with the provisions of the Convention or inadmissible for non-exhaustion of domestic remedies and must be dismissed pursuant to Article 35 § 4.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 27 April 2017.

Marialena TsirliGanna Yudkivska
RegistrarPresident

ANNEX

LIST OF APPLICANTS

 AMARIOAREI Adrian Florentin – born in 2000AMARIOAREI Gabriela Alexandra – born in 2001AMARIOAREI Preda – born in 1977ANTON Adriana – born in 1997ANTON Bianca – born in 2000ANTON Eugenia – born in 1966ANTON Ionuţ – born in 1994ANTON Liliana – born in 1985ANTON Ştefan – born in 1966BALASOIU Pamimonte – born in 1978BRINDUSOIU Nelu Ionel – born on an unspecified dateCADAR Mihaela – born in 1977CARAMAN Daniel – born in 1993CARAMAN Georgiana – born in 1996CARAMAN Viorel – born in 1970CAZACLIU AUREL – born on an unspecified dateCEACARU Lenuţa – born in 1953CEORAN Daniel – born in 1989CEORAN Mihai Dumitru – born in 1992CEORAN Vasile – born in 1987CIOBOTARU Violeta – born in 1958CIOBOTARU Cristache – born in 1981CONSTANTIN Anişoara – born in 1970CONSTANTIN Viorica – born on an unspecified dateCONSTANTIN Jenica – born on an unspecified dateCOSTIN Valentin Ionuţ – born in 1998CRISTIAN Adriana Vasilica – born in 1991DAINEANU Daniel Ionuţ – born in 2002DAINEANU Decebal Florin – born in 1983DONCIU Adrian – born in 2003DONCIU Alexandru – born in 2003DONCIU Florentina – born in 1984DUMITRU Angela Alina – born in 1983DUMITRU Florentina Camelia – born in 2004DUMITRU Ion – born in 1981DUMITRU Valentina – born in 2000DUMITRU Daniel – born in 1972FEODOROV George – born in 2007FEODOROV Ionuţ Florin – born in 2004FEODOROV Marcel – born in 1975GHEORGHE Dumitriţa – born in 1965GUZGANU (now TOMEI) Daniela – born in 1987HANTZ Daniela – born in 1977HANTZ Ionuţ – born in 2003ION Marian – born in 1970MIHAI Andra Cristiana – born on an unspecified dateMIHAI Angelica – born in 1962MIHAI Malina – born on an unspecified dateMIHAI Narcis – born in 1994PETREA Ciucur – born in 1966PETREA Ilie Fabian – born in 1998PETREA Vasile Remus - born in 1989POSTICA Fănică Daniela – born in 1998POSTICA Nicoleta – born in 1981POSTICA Octavian Dănuţ – born in 2001RADU Aurelia Maria – born in 1992RADU Marioara – born in 1971RĂDUCANU Cristian – born in 1990RĂDUCANU Daniela – born in 2002RĂDUCANU Fanica – born in 1986RĂDUCANU Florica – born in 1962RĂDUCANU Gheorghe – born in 1961RĂDUCANU Irina – born in 1983RĂDUCANU Irina – born in 2001RĂDUCANU Nicu – born in 1988RĂDUCANU Vasile – born in 2000ROSTAŞ Laurenţiu – born in 1981ROSTAŞ Mariana – born in 1978STAN Monica – born in 1984TARANU Elisabeta – born in 1996TARANU Georgeta – born in 1969TARANU Maria – born in 2001TUDOR Gheorghe – born in 1997TUDOR Nita – born on an unspecified dateTUDOR Marian – born on an unspecified dateVASILE (now LAVRIC) Doina – born in 1992

 

Full & Egal Universal Law Academy