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Cite as: CE:ECHR:2019:0129JUD006629912, [2019] ECHR 98, ECLI:CE:ECHR:2019:0129JUD006629912

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FOURTH SECTION

CASE OF DEACONU v. ROMANIA

(Application no. 66299/12)

JUDGMENT

STRASBOURG

29 January 2019

This judgment is final but it may be subject to editorial revision.

In the case of Deaconu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 January 2019,

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

PROCEDURE

1. The case originated in an application (no. 66299/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Romanian nationals, Mr Cosmin Mihai Deaconu and Mr Alexandru-Bogdan Deaconu ("the applicants"), on 9 October 2012.

2. The applicants were represented by Mr M.B. Petre, a lawyer practising in Bucharest. The Romanian Government ("the Government") were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

3. On 17 September 2013 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1997 and 1999 respectively and live in Bucharest.

5. On 20 July 2010 X, the applicants' sister, nine-year-old at the time, was grievously injured in a car accident. She was immediately admitted to hospital where, after four days of intense suffering, she died.

6. A criminal investigation for involuntary manslaughter was initiated against the driver of the car. It was established that while driving at about ninety-two kilometres per hour (when the speed limit was fifty kilometres per hour) she lost control of her car and mounted the pavement where the applicants' sister was situated.

7. On 26 September 2010, during the pre-trial investigation stage, the applicants, their mother and their older brothers brought a claim for damages in the criminal proceedings.

8. On 24 October 2011 the Bucharest District Court severed the civil claims from the criminal proceedings.

9. On 6 December 2011 the Bucharest District court awarded each civil party (including the applicants) 100,000 euros (EUR) in compensation for non-pecuniary damage. It ordered the driver's insurance company to pay the damages.

10 . The court held that between the civil parties and the nine-year-old girl there had been a strong emotional relationship and the girl's violent death had caused intense pain to her family.

The wording of the court judgment read as follows:

"...the brothers of the deceased suffered non-pecuniary damage, consisting of the pain caused by the loss of their nine-year-old sister in violent circumstances and by their sister's suffering in the hospital until her death; from the evidence adduced before the court (the statements of the civil parties were corroborated by the statements of three witnesses) it can be determined that between the civil parties and the nine-year-old girl there was a strong emotional relationship. Therefore, having regard to the negative consequences, the importance of the infringed moral values, the way in which they were perceived by the civil parties, and the impact of their loss on the stability of their family, the court will grant to each civil party the equivalent of 100,000 euros".

11. All the parties appealed against the judgment.

12 . No new pieces of evidence were adduced before the Bucharest Court of Appeal.

13 . On 9 April 2012 the Bucharest Court of Appeal allowed the appeal on points of law lodged by the insurance company. It ordered the driver of the car to pay the damages, holding that the insurance company's liability was only contractual and therefore subsidiary. The court further dismissed the applicants' claim for non-pecuniary damages on the ground that at the time of their sister's accident they had been younger than fourteen and had therefore been unaware of the negative consequences of her death. In relation to the claims lodged by their older siblings, the court decreased the awards to EUR 25,000 each.

The wording of the court judgment read as follows:

"The court will dismiss the civil claims lodged by Cosmin Mihai Deaconu and Alexandru Bogdan Deaconu on grounds other than those invoked by the insurance company.

In the present case, the applicants' situation should be assessed in a different way, having regard to the fact that at the time of their minor sister's accident they were younger than fourteen and therefore they were not aware of the negative consequences of her death. This aspect was apparent to persons who had a close relationship with the deceased's family; thus, witness N.G.G. contended in her statement before the court that the younger brothers were less aware than their older brothers, who suffered..."

14. The court also decreased the award for their mother in respect of non-pecuniary damage to EUR 50,000.

II. RELEVANT DOMESTIC LAW

15. The relevant provisions of the Romanian Civil Code on civil liability for tort read:

Article 1349

"1. Any individual has a duty to observe the rules of conduct required by law ... and not to interfere by his actions or inaction with the rights and legitimate interests of others.

2. A person with legal capacity who breaches the aforementioned duty is liable for all consequent damage caused and must make full reparation for it.

3. In circumstances expressly provided for by law a person must make reparation for damage caused by the actions of another person, objects or animals under his control ..."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1

16. The applicants complained that they had suffered discrimination on grounds of age regarding the award of compensation for non-pecuniary damage in connection with their sister's death. They relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention.

These provisions read as follows:

Article 14

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

Article 1 of Protocol No. 1

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

A. Admissibility

17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

18. The applicants submitted that while their older siblings' claims for compensation in connection with their sister's death had been allowed, their similar claims had been dismissed by the court of last resort on the ground of their young age at the time of the accident (see paragraph 13 above). They claimed that the distinction made by the court of last resort between their claims and those of their older siblings had amounted to discrimination prohibited by Article 14 of the Convention and caused them substantial loss.

19. The Government contended that the difference in the treatment of the brothers' claims by the Bucharest Court of Appeal did not amount to a violation of Article 14 of the Convention since the applicants and their older brothers were not in similar situations. The domestic court had arrived at its conclusion by assessing the evidence in the file, and it had based its decision on the statement of one witness, not on the assumption that only a certain emotional development of the children (depending on their age) would entail mental suffering (see paragraph 13 above).

20. The Government further submitted that the applicants, compared to their older brothers, had not suffered any mental suffering as they had not been affected by their sister's death. Had the applicants proved that they had suffered mental suffering their claim would have been granted and the person responsible for the accident would have been ordered to pay non-pecuniary damages to them. As such, the fact that an amount had been awarded to the applicants' older siblings in respect of non-pecuniary damage had not amounted to an unjustifiable difference in treatment on account of their age as it had been proportionate to the damage suffered.

2. The Court's assessment

(a) General principles

21. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe it when read in conjunction with Article 14, for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it suffices that the facts of the case fall "within the ambit" of another substantive provision of the Convention or its Protocols (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08and 961/11, § 53, ECHR 2017).

22 . In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV). However, only differences in treatment based on a personal characteristic (or "status") by which persons or groups of persons are distinguishable from each other are capable of triggering the application of Article 14 (see Carvalho Pinto de Sousa Morais v. Portugal , no. 17484/15, § 45, ECHR 2017).

23. The Court reiterates that a differential treatment of persons in analogous or relevantly similar situations will only be deemed discriminatory if it has no objective and reasonable justification - in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vallianatos and Others v. Greece [GC], nos. 29381/09and 32684/09, § 76, ECHR 2013 (extracts)).

24. The Court is not in principle required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court's interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice, appears unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Fabris v. France [GC], no. 16574/08, § 60, ECHR 2013 (extracts)).

(b) Application of the above principles in the present case

25. The Court must first determine whether the facts in the present case fall within the ambit of Article 1 of Protocol No. 1 to the Convention. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular asset on a discriminatory ground covered by Article 14, the relevant test is whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right, enforceable under domestic law, in respect of the asset in question (see, mutatis mutandis , Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01and 65900/01, § 55, ECHR 2005-X, and Andrejeva v. Latvia [GC], no. 55707/00, § 79, ECHR 2009).

26. The Court considers that the test is satisfied in the present case; indeed, it is purely on account of their young age that the applicants were refused the right to be compensated for the suffering caused by their sister's death. It follows that the applicants' pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and of the right to the peaceful enjoyment of possessions which it safeguards. Article 14 of the Convention is therefore applicable.

27. Turning to the existence of a discriminatory treatment prohibited by this provision, the Court observes that the first-instance court awarded each applicant, their mother and each of their two older siblings, EUR 100,000 in respect of non-pecuniary damage in connection with the violent death of X, referring to criteria such as the physical and mental suffering caused by their loss. It considered in particular that the loss of the nine-year-old girl caused intense pain to each member of her family (see paragraph 10 above).

28. While confirming the findings of the first-instance court in respect of the older brothers and their mother, the Bucharest Court of Appeal dismissed the applicants' claim for compensation in respect of non-pecuniary damage on the ground of their young age. It relied on the same evidence (see paragraph 12 above), but considered that since the applicants had been younger than fourteen when the tragic accident occurred they had not been aware of the negative consequences of their sister's death (see paragraph 13 above).

29. In this factual context, the Court cannot but note the contrast in the approach taken between the applicants and their older siblings by the court of last resort.

30. As noted in paragraph 22 above, the Court has established in its case-law that, in order for an issue to arise under Article 14, the first condition is that there must be a difference in the treatment of persons in relevantly similar situations.

31. The Court must therefore first examine whether the applicants, when their claim for compensation for non-pecuniary damage was assessed, were in a relevantly similar situation to their older brothers.

32. In this respect the Court notes that all brothers, including the applicants, lost their sister in a tragic accident. Under normal circumstances, such a brutal and painful death would have caused all her brothers intense suffering, no matter what their age. However, the brothers' claims for compensation were assessed differently by the court of last resort on account of their age, a ground that falls within the scope of Article 14.

33. It remains to be determined whether particularly convincing and weighty reasons existed for this difference of treatment.

34. Firstly, the Court points out that its task is not to analyse the actual amounts awarded to the applicants by the Bucharest Court of Appeal. In that connection the Court reiterates that as a general rule it is for the national courts to assess the evidence before them, including the means used to ascertain the relevant facts (see Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003-VIII, and Vidal v. Belgium , 22 April 1992, § 33, Series A no. 235-B). The national authorities are thus, in principle, better placed than an international court to evaluate what is adequate compensation for the specific damage suffered by an individual. The issue which has to be determined, however, is whether or not the reasoning of the Bucharest Court of Appeal led to a difference of treatment of the applicants based solely on their age, amounting to a breach of Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis , Carvalho Pinto de Sousa Morais , cited above, § 51).

35. The Court acknowledges that in deciding claims related to non-pecuniary damage within the framework of liability proceedings, domestic courts may be called upon to consider the age of claimants, as in the instant case. In the present case the domestic courts of last instance, without hearing any of the injured parties, reached the conclusion that the applicants suffered less than their older brothers, based on the statement of one witness (see paragraphs 12 and 13 above). Thus, when assessing the applicants' claim for compensation in connection with their sister's death, the Bucharest Court of Appeal dismissed it without hearing the applicants, although at the time of the events they were over the age of ten (the minimum age for hearing a child in court, according to Romanian law).

36. Moreover, without basing its findings on expert reports or any psychological evaluations of the applicants, which would have allowed for a much more objective justification of the different treatment of the applicants in comparison to their older brothers, the Bucharest Court of Appeal set an arbitrary minimum age of fourteen years as a starting point for feeling pain and being negatively affected by the loss of their sister.

37. The Court also notes that at the time of the accident, the applicants were thirteen and eleven years old. Thus, not only were they very close to the minimum age of fourteen years set by the domestic court, but they were also, in the absence of any evidence to the contrary, at a point in their development when they were capable of feeling and understanding complex emotions.

38. In the Court's view, the wording of the judgment when dismissing the applicants' claim cannot be regarded as an unfortunate turn of phrase. Therefore, the Court finds that, in the absence of any reasonable justification, the dismissal of the applicants' claims for compensation on the sole ground that they did not suffer as much as their older brothers owing to their young age amounted to discrimination.

39. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

41. The applicants did not make a claim in respect of pecuniary damage, costs or expenses. As for non-pecuniary damage, they submitted that they had suffered anguish and distress caused by the death of their sister. The applicants left the determination of the amount of compensation to the Court.

42. The Government submitted that the claim should be rejected as no violation of the applicants' rights had taken place and that, in any event, the claim had been formulated in abstracto and was unsubstantiated.

43. Regard being had to the documents in its possession and its findings in the present case, and making its assessment on an equitable basis, the Court finds it reasonable to award each applicant EUR 3,000 in respect of non-pecuniary damage.

B. Default interest

44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to pay, within three months, EUR 3,000 (three thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President