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    European Court of Human Rights

    You are here: BAILII >> Databases >> European Court of Human Rights >> Lusca MOLDOVAN and others v Romania - 8278/04 [2012] ECHR 862 (17 April 2012)
    URL: http://www.bailii.org/eu/cases/ECHR/2012/862.html
    Cite as: [2012] ECHR 862
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    THIRD SECTION

    DECISION

    Application no. 8278/04
    Luşca MOLDOVAN and others
    against Romania

    The European Court of Human Rights (Third Section), sitting on 17 April 2012 as a Chamber composed of:

    Josep Casadevall, President,
     Alvina Gyulumyan,
     Egbert Myjer,
     Ján Šikuta,
     Ineta Ziemele,
     Luis López Guerra,
     Mihai Poalelungi, judges,
    and Santiago Quesada, Section Registrar,

    Having regard to the above application lodged on 25 February 2004,

    Having regard to the decision taken by the President of the Chamber to appoint Mr Mihai Poalelungi to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

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

    Having deliberated, decides as follows:

    THE FACTS

  1. The present application, concerning the living conditions of Romanian citizens of Roma origin living in the village of Hădăreni, Mureş County, follows two initial applications that have been joined (nos. 41138/98 and 64320/01). The said applications were lodged with the Court on 14 April 1997 and 9 May 2000 respectively, by twenty-five Romanian nationals of Roma origin living in the above-mentioned village, as a consequence of the inter-ethnic clashes of 20 September 1993 which led to the killing of three people of Roma origin and the burning of eighteen Roma houses.

  2. It also follows thirty other applications lodged with the Court between 5 February 2004 and 5 November 2008, concerning the same issue, lodged by eighty-six applicants who are mainly relatives of the initial twenty-five applicants. Six of the eighty-six applicants had also been parties to the initial two applications.

  3. The thirty-two applications mentioned above have resulted in a friendly settlement agreement (see Moldovan and Others v. Romania (no 1) (friendly settlement), 5 July 2005), concerning eighteen of the initial twenty five applicants. In a judgment on the merits concerning the remaining seven of the initial twenty-five applicants (see Moldovan and Others v. Romania (no 2), 12 July 2005, ECHR 2005-VII) where the Court found a violation, inter alia, of Articles 3 and 8 of the Convention in respect of the applicants’ living conditions. As well as in a joined decision (see Costică Moldovan and Others v. Romania (dec.), no. 8229/04 and other applications, 15 February 2011) concerning the additional eighty-six applicants where the Court declared their complaint under Article 3 and 8 of the Convention inadmissible mainly for non-exhaustion of domestic remedies.

    4. 4.  The applicants in the present case, Mr Luşca and his wife Mrs Monica Simona Moldovan (born Lăcătuş), Ms Olguţa, Ms Sanda and Mr Traian Florin Lăcătuş and Mr Lucian-Gruia Rostaş, are Romanian nationals of Roma origin who were born in 1966, 1974, 1978, 1978, 1976 and 1981 respectively, and live in Saint Gilles, Belgium. Mr Luşca and his wife, Mrs Monica Simona Moldovan, lodged their complaints before the Court on 25 February 2004. Mr Traian Florin and Ms Olguţa Lăcătuş lodged their complaints before the Court on 24 August 2004. Ms Sanda Lăcătuş and Mr Lucian-Gruia Rostaş lodged their complaints before the Court on 9 August 2005. All the complaints were joined in the present application. The applicants were all represented before the Court by Mr Jean Paul Vidick, a lawyer practising in Brussels. The Romanian Government (“the Government”) are represented by their Agent, Mr Răzvan Horaţiu Radu, from the Ministry of Foreign Affairs.

    A.  The circumstances of the case

  4. The facts of the case submitted by the parties, in so far as they concern the current applicants, may be summarised as follows.

  5. The present case originates in the events which took place in 1993 in the village of Hădăreni and which are summarised in the judgments of Moldovan and Others (nos 1 and 2), cited above. The steps taken by the respondent Government prior to and after the adoption of the judgments of Moldovan and Others, (nos 1 and 2) with the aim of improving the living conditions of the Roma affected by the violent events of 20 September 1993 are summarised in Costică Moldovan and Others, cited above, §§ 93-109.

  6. Some of the applicants, namely, Mrs Monica Simona Moldovan, Ms Olguţa, Ms Sanda and Mr Traian Florin Lăcătuş and Mr Lucian-Gruia Rostaş, are the brothers and sisters of two of the three Roma who were killed during the violent events of 20 September 1993.

  7. Mr Luşca Moldovan had been living in the house where the three murdered Roma had been hiding prior to their death. The house was destroyed as a result of the violent events of 20 September 1993. Mr Moldovan’s personal belongings and a large sum of money he had saved from commercial activities were also destroyed together with the house. Moreover, two years after the violent incident the house was only partly rebuilt. Furthermore, as a result of the events he had needed psychological treatment.

  8. According to Mrs Monica Simona Moldovan, in the aftermath of the events her entire family, numbering seventeen individuals, was forced to live in a room of 30 sq.m without food, medicine or an income. Moreover, they had been “tortured” by police officers who had visited them at night and forced them to testify. Her mother, Ms Cătălina Lăcătuş had died allegedly as a result of the harassment on 12 February 1994. Mrs Moldovan had developed diabetes as a result of the stress and fear caused by the violent events of 1993. After one of the individuals involved in the killing of her brothers had been acquitted, he had started threatening her and her husband. Consequently, she and Mr Moldovan had moved to Belgium on 8 November 2002 and 10 June 2003 respectively, where they had been granted refugee status.

  9. On unspecified dates the other four applicants also moved to Belgium. In their first letters to the Court on 24 August 2004 (Mr Traian Florin and Ms Olguţa Lăcătuş) and on 9 August 2005 (Ms Sanda Lăcătuş and Mr Lucian-Gruia Rostaş) they stated that they had been granted refugee status in Belgium. They also contended that in the aftermath of the events they had been forced to live in cold and inappropriate conditions (sleeping in the woods, on floors or in crowded conditions) together with their family. They had lived in those conditions for several months.

  10. All six applicants consider that as a result they have developed a number of medical conditions, in particular tuberculosis, asthma and diabetes. Some of them have also developed psychological problems and have been obliged to pay for treatment themselves even though they lacked an income.

  11. Only Mrs Monica Simona Moldovan was a party to the criminal and civil domestic proceedings opened after the violent events of 20 September 1993. She did not appeal, however, against the judgment delivered by the first-instance court during the course of the civil proceedings opened against the third parties convicted for the destruction of her home.

    12. The outcome of the civil proceedings

  12. On 12 January 2001, following the discontinuance of the criminal investigation against the police officers involved in the incident and the criminal conviction and sentencing of twelve civilians by the final judgment of 22 November 1999 of the Court of Cassation, the Mureş County Court delivered its judgment in the civil case. The court noted that the victims had claimed compensation for pecuniary damage resulting from the destruction of the houses and their contents (furniture and so on), as well as compensation for non-pecuniary damage. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of those acts. Basing its decision on an expert report, the court awarded compensation for pecuniary damage for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded compensation for pecuniary damage in respect of the partial or total destruction of the houses of six Roma. The court rejected the other applicants’ request for compensation for pecuniary damage in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same as or higher than the original buildings. It further refused all claims for damages in respect of belongings and furniture, on the ground that the claimants had not submitted documents to confirm the value of their assets.

  13. The court finally rejected all claims in respect of non-pecuniary damage on the ground that they had not been substantiated, and that the crimes committed were not of a nature to produce such damage.

  14. The court ordered the villagers convicted in the criminal trial to pay the damages awarded.

  15. Relying on some procedural errors in the Mureş County Court’s judgment, the parties to the proceedings, including Mrs Moldovan, lodged an appeal with the Mureş Court of Appeal.

  16. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş County Court: the hearings had been held in the absence of the accused and their lawyers; one of the parties had not been summoned; the public prosecutor had not been given leave to address the court and a number of expert reports ordered by the court had not been completed. The Court of Appeal quashed the judgment of 12 January 2001 and ordered a new trial in the case.

  17. In the second procedural cycle, the Mureş County Court delivered its judgment in the civil case on 12 May 2003. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the civilians found guilty by the criminal court in respect of the destruction of the claimants’ houses to pay damages to some of the parties to the proceedings for the destruction of their homes, including Mrs Moldovan, who was awarded 60,000,000 lei (ROL) (approximately 1,725 euros (EUR)).

  18. The courts also ordered that the amounts be revised to take account of any devaluation in the national currency.

  19. However, the court rejected all the parties’ claims in respect of non pecuniary damage, on the ground that they were not substantiated.

  20. Mrs Moldovan did not appeal against the Mureş County Court judgment of 12 May 2003.

  21. The civil proceedings ended with the final judgment of 25 February 2005 of the Court of Cassation, with the domestic courts also awarding the appellants non-pecuniary damages.

  22. There is no evidence in the file that Mrs Moldovan opened any enforcement proceedings in respect of the judgment of 12 May 2003 before the domestic authorities or that she opened proceedings before the domestic authorities in respect of the death of her mother.

    23. B.  Relevant domestic law

  23. The relevant legal provisions, including the relevant provisions of the Romanian Civil Code, Code on Civil and Criminal Procedure, Law No. 188/2000 concerning enforcement officers, and the relevant case law, are set forth in the judgments Moldovan and Others v. Romania (nos. 41138/98 and 64320/01, §§ 79-85, 12 July 2005); Ursu v. Romania (no. 58670/00, (dec.), 3 May 2005); Kalanyos v. Romania (no. 57884/00, (dec.), 9 December 2003); Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006).

    24. Civil Code

  24. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it.

    25. Code of Civil Procedure

    Article 399 § 1

    “Any person, including any person who has suffered damage as a result of the enforcement, shall have the right to contest the enforcement or any procedural steps taken during the enforcement proceedings. In addition ... the enforcement proceedings can be contested ... when the enforcement officer refuses to carry out an act of enforcement in accordance with the applicable legal provisions.”

    COMPLAINTS

  25. Relying in substance on Article 2 of the Convention, the second applicant complained that her mother Ms Cătălina Lăcătuş had died on 12 February 1994 as a result of the harassment and ill-treatment she had allegedly been subjected to by the domestic authorities.

  26. The applicants complained under Articles 3 and 8 of the Convention about their living conditions after the events of September 1993 in so far as, following the destruction of their home, and owing to the failure of the authorities to remedy the situation and the villagers’ attitude towards them, they had been forced to abandon their home and seek refuge in the forest, and to live in poor and cramped conditions which had affected their health.

  27. The applicants complained under Articles 6 and 14 of the Convention, taken alone and together with Article 8 of the Convention, about the length of the civil proceedings, the lack of access to court and the discriminatory treatment they were allegedly subjected to by the domestic courts on account of their ethnic origin.

    28. THE LAW

    1.  Alleged violation of Article 2 of the Convention

  28. Relying in substance on Article 2 of the Convention the second applicant complained that her mother, Ms Cătălina Lăcătuş, had died on 12 February 1994 as a result of the harassment and ill-treatment she had allegedly been subjected to by the domestic authorities.

    29. Article 2 of the Convention reads as follows:

    “1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

    2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

    (a)  in defence of any person from unlawful violence;

    (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

    (c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

  29. The Court notes that the events the second applicant is complaining of happened on 12 February 1994, prior to the ratification of the Convention by Romania on 20 June 1994. Moreover, there is no evidence in the file that the applicant opened proceedings before the domestic authorities in respect of the death of her mother.

  30. Having regard to the above, the Court considers that the applicant’s complaint is incompatible ratione temporis and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

    31. 2.  Alleged violation of Articles 3 and 8 of the Convention

  31. The applicants complained under Articles 3 and 8 of the Convention that the destruction of their home and the discrimination they had been subjected to by the authorities had deprived them of the use of their house and belongings, forcing them to live in very poor and cramped conditions.

    32. Article 3 reads as follows:

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

    Article 8 provides as follows:

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

    2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

  32. The Government submitted, inter alia, that the applicants had failed to exhaust the available domestic remedies in respect of their complaints to the Court.




  33. They argued that any interested party who had been affected by the events of 20 September 1993 seeking to obtain compensation for alleged breaches of their rights could have either joined the criminal proceedings brought against the police officers and third parties who had burned down or destroyed their houses and homes, as civil parties, or lodged a separate action for compensation on the basis of general tort law, namely, Articles 998-999 of the Romanian Civil Code.

  34. Except for the second applicant none of the other applicants brought proceedings in respect of any alleged breaches of their rights or damage they may have suffered as a result of the events of 20 September 1993. Moreover, although the second applicant had joined the domestic proceedings as a civil party, she had failed to appeal against the judgment of 12 May 2003 of the Mureş County Court. Thus, before submitting their allegations to the Court, the applicants should have exhausted the available remedies capable of affording them adequate redress. Consequently, the situation of the present applicants is different from that of the applicants party to the previous proceedings before the Court, in particular Moldovan and Others (no. 2), cited above, in so far as the latter joined the criminal proceedings as civil parties, appealed against the judgment of 12 May 2003 and, therefore, exhausted the available domestic remedies.

  35. Lastly, the Government considered that a civil action by the applicants would have enabled the domestic courts to decide the cases on their merits and award just satisfaction to the applicants for any alleged damage they might have suffered. They consider that the remedies in question were available to the applicants, were sufficient to afford redress in respect of the breaches alleged and were sufficiently certain not only in theory but also in practice. In supporting their arguments they referred to the Court’s finding in the case of Moldovan and Others (no. 2), § 121, cited above, that the civil action brought by the victims of the events against the civilians who had been found guilty by the criminal courts claiming compensation in respect of their living conditions following the destruction of their homes, was successful and effective and the applicants were granted compensation.

  36. The applicants argued that following their departure from Romania and recognition of their refugee status by Belgium, they were unable to pursue and exhaust the proceedings before the domestic courts.

  37. The Court notes that all the applicants in the present case are in an identical situation to most of the applicants in the case of Costică Moldovan and Others, cited above, §§ 129-140, in respect of whom it has already dismissed an identical complaint under Articles 3 and 8 of the Convention for non-exhaustion of domestic remedies.

  38. Having regard to the factual situation, the complaints of the applicants and the submissions of the parties in the present case, the Court finds no reason to depart from its decision in the case of Costică Moldovan and Others, cited above.

  39. It follows that this part of the applicants’ complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

  40. Having found that the applicants in the present case have not exhausted the effective domestic remedies in respect of these complaints, the Court does not need to look into the other pleas of inadmissibility raised by the Government with regard to the case.

    1. Alleged violation of Articles 6 and 14 taken alone and together with Article 8 of the Convention

  41. The applicants complained under Articles 6 and 14 of the Convention taken alone and together with Article 8 of the Convention about the length of the civil proceedings, the lack of access to court and the discriminatory treatment they were allegedly subjected to by the domestic courts on account of their ethnic origin.

    42. Article 6 reads as follows:

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

    Article 14 reads as follows:

    “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.”

  42. The Court notes that except for Mrs Monica Simona Moldovan, none of the other applicants were party to the domestic proceedings. Consequently, the Court considers that they cannot claim to be victims, within the meaning of the Convention, of a violation of their rights guaranteed therein and therefore their applications are inadmissible as incompatible ratione personae.

  43. In respect of Mrs Moldovan the Court notes that she failed to appeal against the Mureş County Court judgment of 12 May 2003. At the same time, it observes that the applicant left for Belgium in June 2003 and lodged her complaint with the Court on 25 February 2004. Consequently her complaints fall outside the six-month time-limit.

  44. Having regard to the above, the Court considers that this part of the applicants’ complaints is inadmissible and must be rejected in accordance with Article 35 § 4 of the Convention.

    45. For these reasons, the Court unanimously

    Declares the application inadmissible.

    Santiago Quesada Josep Casadevall
    Registrar President



     


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