Moldovan and Others v. Romania (no. 2)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 77

July-August 2005

Moldovan and Others v. Romania (no. 2) - 41138/98

Judgment 12.7.2005 [Section II]

Article 14

Discrimination

Length and result of domestic proceedings brought by Roma villagers following the killing of fellow Roma and the destruction of homes: violation

Article 3

Degrading treatment

Inhuman treatment

Living conditions of, and discrimination against, Roma villagers following the killing of fellow Roma and the destruction of homes: violation

Article 8

Article 8-1

Respect for family life

Respect for home

Respect for private life

Authorities' general attitude, including their repeated failure to put an end to breaches of Roma applicants' rights, perpetuating their feelings of insecurity: violation

Facts: The case originally involved 25 applicants, of whom 18 agreed to a friendly settlement of their case (see Moldovan and Others v. Romania (N° 1), judgment of 5 July 2005). In 1993 a row broke out between three Roma men and a non-Roma villager that led to the villager's son, who had tried to intervene, being stabbed in the chest by one of the Roma men. The three Roma men fled to a nearby house. A large, angry crowd gathered outside, including the local police commander and several officers. The house was set on fire. Two of the Roma men managed to escape from the house, but were pursued by the crowd and beaten to death. The third man was prevented from leaving the building and burnt to death.

The applicants alleged that the police had encouraged the crowd to destroy more Roma property in the village. By the following day, 13 Roma houses had been completely destroyed including the homes of all seven applicants (in one case, the home of a mother). Much of the applicants' personal property was also destroyed. One applicant alleged that when she had tried to return to her home, rocks had been thrown at her. Another applicant alleged that she had been beaten by police officers who had also sprayed pepper in her face. A further applicant alleged that his pregnant wife had been beaten and that their baby had been born with a brain damage.

The Roma residents of the village lodged a criminal complaint against those allegedly responsible, including six police officers. In 1995 all charges against the police officers were dropped. In 1997 a criminal trial, in conjunction with a civil case for damages, began against 11 villagers before a county court. Various witnesses testified that police officers had instigated the incident and had allowed the three Roma men to be killed and houses to be destroyed. During the trial, all the civilian defendants stated that police officers had encouraged the crowd to set fire to the houses and had undertaken to cover up what had happened. The court established that the villagers, with the authorities' support, had set out to have the village “purged of Gypsies”. In its judgment the county court stated, inter alia, that the Roma community had marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society.

Five villagers were convicted of extremely serious murder and 12 villagers, including those five, were convicted of other offences. The court sentenced them to between one and seven years' imprisonment. The appellate court convicted a sixth villager of extremely serious murder and increased the sentence of one of the defendants; the other defendants had their sentences reduced. In November 1999 the Supreme Court upheld the convictions for the destruction of property but reduced the charge of extremely serious murder to one of serious murder for three of the defendants. In 2000 two of the convicted villagers received a presidential pardon.

The Romanian Government subsequently allocated funds for the reconstruction of the destroyed or damaged houses. Eight were reconstructed, though the applicants submitted photographs showing that those houses were uninhabitable, with large gaps between the windows and the walls and incomplete roofs. Three houses had not been rebuilt, including those belonging to two of the applicants. According to an expert report submitted by the Government, two applicants' houses had not been repaired, whereas two further applicants' houses had been rebuilt, but remained unfinished.

The applicants submitted that, following the 1993 events, they had been forced to live in hen-houses, pigsties, windowless cellars or in extremely cold and over-crowded conditions, which had lasted for several years and in some cases were still continuing. As a result, many applicants and their families fell seriously ill.

The regional court awarded the applicants pecuniary damage in relation to the houses destroyed in amounts ranging from EUR 17 to EUR 3,745. The widow of one of the deceased victims was awarded only half the minimum amount applicable as a maintenance allowance for her child on the ground that the deceased had provoked the crimes committed. Finally, the court rejected all applicants' requests for non-pecuniary damages. In 2004, however, the court of appeal awarded six of the applicants compensation for non-pecuniary damage, ranging from EUR 575 to EUR 2,880.

Law – Article 8: The Court could not examine the complaints about the destruction of houses and possessions or the applicant's alleged expulsion from their village as those events had taken place before the ratification of the Convention by Romania in 1994. However, it was clear from the evidence submitted by the applicants as well as from the civil court judgments that police officers had been involved in the burning of the Roma houses and had tried to cover up the incident. Having been hounded from their village and homes, the applicants had been obliged to live, and some of them still were still living, in crowded and unsuitable conditions and had been obliged to move in with friends or family, causing severe overcrowding. Having regard to the direct repercussions of the acts of State agents on the applicants' rights, the Government's responsibility was engaged with regard to the applicants' living conditions. The question of those conditions fell within the scope of the applicants' right to respect for their family and private life as well as for their homes.

Despite the involvement of State agents in the burning of the applicants' houses the Public Prosecutors' Office had failed to institute criminal proceedings against them, preventing the domestic courts from establishing the responsibility of those officials and punishing them; the domestic courts had refused for many years to award pecuniary damages for the destruction of the applicants' belongings and furniture; only ten years after the events had compensation been awarded for the destroyed houses, though not for the loss of belongings; in the judgment in the criminal case against the accused villagers, discriminatory remarks about the applicants' Roma origin had been made; the applicants' requests for non-pecuniary damages had been rejected at first instance; the regional court had decided to award only half of the maintenance allowance for a widow's minor child on the ground that the deceased victims had provoked the crimes; three houses had not been rebuilt by the authorities and those which supposedly had been rebuilt remained uninhabitable; most of the applicants had not returned to their village and were scattered throughout Romania and Europe. Those elements taken together indicated a general attitude on the part of the Romanian authorities which had perpetuated the applicants' feelings of insecurity after June 1994 and affected their rights to respect for their private and family life and their homes. That attitude, and the repeated failure of the authorities to put a stop to breaches of the applicants' rights, amounted to a serious violation of Article 8 of a continuing nature.

Conclusion: violation (unanimously).

Article 3: The applicants' living conditions over the last ten years, and its detrimental effect on their health and well-being, combined with the length of the period during which they had had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them feelings of humiliation and debasement. In addition, the remarks concerning the applicants' honesty and way of life made by some authorities dealing with the case appeared to be purely discriminatory. As discrimination based on race could of itself amount to degrading treatment within the meaning of Article 3 such remarks should be taken into account as an aggravating factor in the examination of the applicants' complaint under that provision. The applicants' living conditions and the racial discrimination to which they had been publicly subjected by the way in which their grievances had been dealt with by the various authorities, had constituted an interference with their human dignity which, in the special circumstances of the case, had amounted to “degrading treatment” within the meaning of Article 3.

Conclusion: violation (unanimously).

Article 6 § 1 – Access to court: It had not been shown that it had been possible for the applicants to bring an effective civil action for damages against the police officers in the particular circumstances of the case. The Court was not therefore able to determine whether the domestic courts would have been able to adjudicate on the applicants' claims had they, for example, brought a tort action against individual members of the police. However, the applicants lodged a civil action against the civilians who had been found guilty by the criminal court, claiming compensation for the destruction of their homes. That claim was successful and effective, the applicants having been granted compensation. In those circumstances, the Court considered that the applicants could not claim an additional right to a separate civil action against the police officers allegedly involved in the same incident.

Conclusion: no violation (five votes to two).

Right to a fair hearing within a reasonable time: The period under consideration had lasted more than 11 years.

Conclusion: violation (unanimously).

Article 14: The attacks were directed against the applicants because of their Roma origin. Whilst not able to examine the actual burning of the applicants' houses and the killings, the Court observed that the applicants' Roma ethnicity appeared to have been decisive for the length and the result of the domestic proceedings. It took particular note of the repeated discriminatory remarks made by the authorities throughout the whole case and their blank refusal until 2004 to award non-pecuniary damages for the destruction of the family homes. The Romanian Government had provided no justification for the difference in treatment of the applicants.

Conclusion: violation of Article 14 taken in conjunction with Articles 6 and 8 (unanimously).

Article 41: The Court awarded each applicant compensation for pecuniary and non-pecuniary damage in global amounts ranging from 11,000 to 95,000 euros.

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