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THIRD
SECTION
CASE OF GERGELY v. ROMANIA
(Application
no. 57885/00)
JUDGMENT
STRASBOURG
26
April 2007
This
judgment will become final in the circumstances set out in
Article 44§ 2 of the Convention. It may be subject to
editorial revision.
In the case of Gergely v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 29 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57885/00) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Romanian national of Roma origin, Mrs
Iren Gergely (“the applicant”), on 14 July 1999.
- The
applicant was represented before the Court by the European Roma
Rights Centre (ERRC), an association based in Budapest (Hungary).
The
Romanian Government (“the Government”) were represented
by their Agent, Mrs B. Rămăşcanu, from the Ministry of
Foreign Affaires.
- The
applicant complained that the destruction of her property,
the ensuing consequences and the subsequent proceedings before
the domestic authorities had violated Articles 3, 6 § 1,
8, 13 and 14 of the Convention, which guaranteed, inter alia,
the prohibition of inhuman and degrading treatment, the right to
access to a court for a fair determination of civil rights and
obligations, the right to respect for private and family life and
home, the right to an effective remedy and freedom from
discrimination in the enjoyment of Convention rights and freedoms.
- In
a partial decision of 9 December 2003, the Court decided to adjourn
the examination of the complaints concerning living conditions,
the investigation into the alleged inhuman or degrading
treatment and the right to respect for home, and private and family
life, the lack of access to a civil court, the right to an effective
remedy, and the alleged discrimination on the basis of the
applicant's ethnicity, insofar as they relate to the period after
20 June 1994, date on which Romania ratified the Convention. It
also declared inadmissible as incompatible ratione temporis
with the provisions of the Convention the remainder of the
application.
- On
19 May 2005, after obtaining the parties' observations, the Court
declared the adjourned complaints admissible.
- Both
parties filed proposals with the Registry in the context of friendly
settlement negotiations (Article 38 § 1 (b) of the Convention).
No settlement was reached.
- On
8 December 2006, the Government requested the Court to strike the
case out of its list and enclosed the text of a declaration with a
view to resolving the issues raised by the application. On 26 January
2007, the applicant's representative filed written observations
on the Government's request.
THE FACTS
- The
applicant was born in 1965 and used to live in the hamlet
Caşinul Nou, the district of Plăieşii de Jos,
Harghita County.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicant's submission on the facts
- On
the evening of 11 August 1990, following a period of increased
hostility between the Roma and non-Roma inhabitants of Caşinul
Nou, amid accusations that local Roma had been stealing,
approximately 60 to 400 non-Roma villagers gathered in front of
the village church and planned to chase out the entire Roma
population. Subsequently, they burned and otherwise destroyed several
houses and property - including the house of the applicant and
its whole contents. As a consequence, approximately 150 persons
were left homeless, while many others, including the applicant and
her four underage children, faced the threat of being lynched.
Leaving
behind all her belongings, the applicant and her family ran away and
hid in a nearby field from where they saw the villagers setting fire
to the Roma houses.
- Immediately after the events, the Roma residents of
Caşinul Nou filed a criminal complaint with the Harghita County
Prosecutor's Office. In addition to outlining the facts of the case,
the complainants identified a number of individuals as being
allegedly responsible for the attack.
- On
27 November 1990, the Harghita County Prosecutor's Office decided to
discontinue the investigation of the case on the ground that, given
the large number of persons involved in the attack, it had been
impossible identifying the culprits. Upon the applicant's lawyers
repeated interventions and complains, the investigations were
reopened and discontinued several times. Lastly, on 5 October 1998
the Prosecutor's Office of the Târgu-Mureş Court of Appeal
informed the applicant's lawyer that no criminal charges could be
brought by virtue of a time bar. The prosecutor found that the
offences had been committed “due to the serious, provocative
acts of the victims”, described as follows:
“...in august 1990 several Gypsies [ţigani]
from the hamlet Caşinul Nou, behaved contrary to the good
morals. They severely disturbed the public order which aggravated the
conflict with the... [non-Roma] population. These... [conflicts]
culminated ... when the Gypsies consumed alcohol in the local pub,
and then ... beat without any apparent reason the peaceful
passers-by. In this context, the other... [non Roma] inhabitants
decided to chase the Gypsies out of the hamlet. In order to determine
them to leave and not to return to the hamlet, they decided to burn
[the Roma's] houses down.”
- In
a final decision of 13 January 1999, the Prosecutor's
Office at the Supreme Court of Justice after having examined the
merits of the case, upheld this solution.
- On
9 September 1991, the mayor of Plăieşii de Jos purchased a
dismantled wooden stable in order to provide the Roma with materials
for the reconstruction of their homes. However, it appears from the
file that the applicant has yet to receive compensation for the
belongings and furniture she had lost during the events.
2. The Government's submission on the facts
- The
Government maintained that it was impossible for them to verify the
facts of the case since the criminal file of the investigation into
the August 1990 events had been destroyed. The regulations
applicable at the material time allowed the destruction of files on
which a decision not to prosecute due to time bars had been taken.
However, the Government expressed the intention to provide any
supplementary information in the case should the criminal file
of the investigations into the events be pieced together or relevant
documents be recovered.
THE LAW
- On
8 December 2006, the Court received the following declaration from
the Government:
“1. The Government sincerely regret the failure of
the criminal investigation to clarify fully the circumstances which
led to the destruction of the applicant's home and possessions, which
left her living in improper conditions, rendered difficult her
possibility of filing a civil action for damages, as well as the
exercise of her right to respect for home, private and family life.
The Government also regret that remedies for the enforcement of
rights in the Convention generally lacked at the time when
the applicant was seeking justice in domestic courts, and that
certain remarks were made by some authorities as to the applicant's
Roma origin.
It is therefore accepted that such events constitute
violations of Article 3 (prohibition of torture), Article 6 (right to
a fair trial), Article 8 (right to respect for private and family
life), Article 13 (right to an effective remedy) and Article 14
(prohibition of discrimination) of the Convention.
2. I, Mrs. Beatrice Rămăşcanu,
agent of the Government of Romania before the European Court of Human
Rights, declare that the Government of Romania offer to pay ex
gratia to the applicant, Irene Gergely, the amount of EUR 36,500
(thirty six thousand five hundred euros).
The Government undertake to pay the amount of EUR 1,615
(one thousand six hundred and fifteen euros) in costs
and expenses incurred by the applicant's representative, the
European Roma Rights Centre. This amount shall be paid in euros to a
bank account named by the ERRC.
These sums shall be free of any tax that may be
applicable and shall be payable within three months from the date of
the notification of the striking-out judgment of the Court pursuant
to Article 37 of the European Convention on Human Rights.
From the expiry of the above-mentioned period, 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. This payment will
constitute the final settlement of the case, including the
applicant's civil claims before the domestic courts.
3. The Government undertake to issue
appropriate instructions and to adopt all necessary measures to
ensure that the individual rights guaranteed by Articles 3, 6, 8, 13,
14 of the Convention are respected in the future.
The Government undertake to adopt the following general
measures aimed at fighting the discrimination against the Roma in the
Harghita County:
- ensure the eradication of racial
discrimination within the Romanian judicial system;
- enhance the educational programs for
preventing and fighting discrimination against Roma within the school
curricula in the Caşinul Nou community, Harghita County;
- draw up programs for public information and
for removing the stereotypes, prejudices and practices towards the
Roma community in the Harghita public institutions competent for the
Caşinul Nou community;
- support positive changes in the public
opinion of the Caşinul Nou community concerning Roma, on the
basis of tolerance and the principle of social solidarity;
- stimulate Roma participation in the
economic, social, educational, cultural and political life of the
local community in Harghita County, by promoting mutual assistance
and community development projects;
- implement programs to rehabilitate housing
and the environment in the community, in particular by
earmarking sufficient financial resources for the compensation;
- identify, prevent and actively solve
conflicts likely to generate family, community or inter-ethnic
violence.
4. The Government consider that the
supervision by the Committee of Ministers of the Council of Europe of
the execution of Court judgments concerning Romania in this and
similar cases is an appropriate mechanism for ensuring that
improvements will continue to be made in this context.
5. Finally, the Government undertake not to
request the reference of the case to the Grand Chamber pursuant
to Article 43 § 1 of the Convention after the delivery of the
Court's judgment.”
- The
applicant's representative requested the Court to dismiss
the Government's proposal and to continue the examination of the
merits of the case. In their view, the criteria for striking out a
case by means of a unilateral declaration, as they were set out
by the Court in the Tahsin Acar judgment are not met in
present case (see Tahsin Acar v. Turkey (Preliminary
issue) [GC], no. 26307/95, §§ 75-77,
ECHR 2003-VI). In particular, they considered that although the
Court had already adopted a judgment on the merits of a similar case,
that of Moldovan v. Romania ((no. 2), nos. 41138/98 and
64320/01, ECHR 2005 VII (extracts)), one single judgment of
this nature could not suffice, bearing in mind the complexity of the
matters at hand. Therefore, a new judgment on the merits would be
necessary at least to expose the flaws of the Romanian judicial
system and its systematic failure to provide redress for the Roma
victims. In addition, it would hold a great symbolic value in
particular as regards the new forms of discrimination against the
Roma population (with regard to access to education, health,
employment or other public services).
- They
also recalled that the Government had made no admission as to the
State's responsibility for the August 1990 events and had made
no commitment to reopening the investigations into the events.
- Furthermore,
they considered that the impact of the measures taken by the
Government in order to comply with the two Moldovan judgments
(no. 2, cited above and Moldovan and Others v. Romania
(friendly settlement), nos. 41138/98 and 64320/01, § 39,
5 July 2005) could not yet be assessed, as the execution of those
judgments had just started under the supervision of the Committee of
Ministers and was therefore still pending.
- In
addition, in their capacity of representative of the applicants both
in the present case and in the Moldovan case, they informed
the Court that the Government had not yet initiated several of the
actions they had committed themselves to following the Moldovan
judgments. Moreover, in their view, the Court is not equipped to
assess whether the same measures would work in the present case. They
recalled that monetary compensation should not outweigh the victim's
quest for justice.
- On
a more general note, the applicant's representative estimated that
the Government's declaration of 8 December 2006 could not be used in
the contentious proceedings before the Court, as it emerged in
the context of friendly settlement negotiations between the parties
which, according to Rule 62 § 2 of the Rules of the Court, were
strictly confidential.
- The Court recalls that under certain circumstances, it
may be appropriate to strike out an application under Article 37 §
1 (c) of the Convention on the basis of a unilateral declaration
by the respondent Government even if the applicant wishes the
examination of the case to be continued. The Court will have to
examine carefully the qualified declaration made by the Government in
the light of the principles emerging from its case-law, in particular
the Tahsin Acar judgment (as cited above, §§ 75-77);
Meriakri v. Moldova ((striking out), no. 53487/99,
1 March 2005); Swedish Transport Workers Union v. Sweden
((striking out), no. 53507/99, 18 July 2006) and Van
Houten v. the Netherlands ((striking out), no. 25149/03,
ECHR 2005 IX).
- The
relevant provisions of Article 37 read as follows:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that...
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.
2. The Court may decide to restore an
application to its list of cases if it considers that the
circumstances justify such a course.”
- Accordingly,
the Court notes that although the violations complained about are of
a very serious and sensitive nature (see paragraph 3 above), they
have already been exhaustively addressed by the Court in the case of
Moldovan, which raised issues similar to the present case.
- Moreover,
the Government admitted in their declaration made in the present
case that the facts of this case constituted violations of
Articles 3, 6, 8, 13 and 14 and proposed several individual and
general measures with a view to redressing the situation (see
paragraph 16 above).
- Therefore,
notwithstanding the complexity of the issues at hand, and bearing in
mind the existence of a final judgment on the merits in the Moldovan
case and the admission as to the violations made by the Government
in the present case, the Court, unlike the applicant's
representative, is not convinced of the usefulness of another
judgment on the merits. It recalls that the flaws of the judicial
system had been addressed both in the general measures set out in the
friendly settlement judgment adopted in the case of Moldovan,
cited above, and in the unilateral declaration signed by the
Government in the present case. As for the alleged new forms of
discrimination against Roma (see paragraph 17 above), the Court
recalls that they fall outside the scope of this case. So does the
initial complaint concerning the events of August 1990 (see the
partial decision of 9 December 2003, cited at paragraph 4
above); consequently, the applicant's request that the Government
make an admission as to alleged violations of the Convention in this
respect could not be addressed by the Court (see paragraph 18 above).
- Furthermore,
the implementation of the measures proposed in the Moldovan
case has already started under the supervision of the Committee
of Ministers. Therefore, the Court shall not address the applicant's
representative's submissions concerning the alleged ineffectiveness
of those measures and of their implementation (see paragraph 20
above), as their examination falls at this moment entirely to the
Committee of Ministers within the execution proceedings.
- The
Court does not share the applicant's concerns as to its capacity to
transpose the general measures from the Moldovan case to the
present case (see paragraph 20 above). The Court is satisfied that
these measures, as reiterated in the declaration above (see paragraph
16 of this judgment), will provide an effective reparation of the
alleged violations in the present case, in so far as they offer tools
for the redress of the faults the Court had identified in the system
with a view to improving the situation of the Roma communities
all over the country.
- In
addition, the Court considers that, along with the general measures,
the individual measures proposed by the Government offer redress to
the applicant in the present case (see paragraph 20 above).
- Lastly,
in so far as the applicant's procedural arguments are concerned (see
paragraph 21 above), it is to be noted that neither the Court nor the
Government made any reference to the content of the friendly
settlement negotiation. The unilateral declaration currently under
review was publicly made by the Government with a view to being used,
if the Court deemed necessary.
- Therefore,
having regard to the nature of the admissions contained in the
declaration as well as the scope and extent of the various
undertakings referred to therein, together with the amount of
compensation proposed, the Court considers that it is no longer
justified to continue the examination of the application (Article 37
§ 1 (c)).
- Moreover,
the Court is satisfied that respect for human rights as defined in
the Convention and the Protocols thereto does not require it to
continue the examination of the application (Article 37 § 1 in
fine).
- Accordingly,
the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes note of the terms of the respondent
Government's declaration and of the modalities for ensuring
compliance with the undertakings referred to therein (Rule 43 §
3 of the Rules of Court);
- Decides to strike the case out of its list of
cases;
- Takes note of the Government's undertaking not
to request a rehearing of the case before the Grand Chamber.
Done in English, and notified in writing on 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
