SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57884/00 by Sandor KALANYOS and others against Romania

The European Court of Human Rights (Second Section), sitting on 9 December 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 19 July 1999,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Sandor Kalanyos , was born in 1941. The second applicant, Tamas Kalanyos , was born in 1942. The third applicant, Istvan Rozsa , was born in 1972. The applicants are Romanian nationals of Roma origin. They all used to live in the hamlet of Plăieşii de Sus , in the village of Plăieşii de Jos , Harghita County. The third applicant, Istvan Rozsa , presently lives in the village of Sfântu Gheorghe, Covasna County.

The applicants are represented before the Court by the European Roma Rights Centre (ERRC), an association based in Budapest (Hungary), and the Lawyers’ Association for the Defence of Human Rights (APADOR), an association based in Bucharest (Romania).

A. The circumstances of the case

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

1. The incidents of  June 1991

On 6 June 1991 a fight started in Plăieşii de Sus between four Roma and one non-Roma night-watchman, apparently concerning the Romas ’ treatment of their horse and after the night-watchman had called them “dirty Gypsies”. The first applicant was one of the four Roma involved in the fight. Soon after, he was arrested by the police and placed in custody along with other three persons involved in the incident. In the subsequent criminal proceedings, he was found guilty of an unspecified offence and sentenced to three years’ imprisonment.

Following the incident, a crowd consisting of non-Roma villagers assaulted and beat two other Roma men out of revenge, as a result of which, soon afterwards, one of the Roma died - the uncle of the first and second applicants, Adam Kalanyos . The other victim of the assault, Majlath Antal , died a year later.

On 8 June 1991 a public notice appeared at the outskirts of the Roma settlement informing the inhabitants that, on 9 June 1991, their houses would be set on fire. The Roma informed the police and the village municipality. However, the local authorities failed to intervene. Moreover, the authorities “advised” the Roma to leave their houses for their own safety.

On 9 June 1991 the Roma villagers, including the second applicant, fled from their homes to a nearby stable belonging to the local farming co-operative. An organised group of non-Roma villagers then cut the electrical wires leading to the settlement, knocked down the telephone pole connecting the village with the neighbouring village of Miercurea Ciuc , and set fire to all of the twenty-eight Roma houses, including those belonging to the applicants. The houses and their contents were completely destroyed. At the time of the incident, the first applicant was still in pre-trial detention, and the third applicant was also not in the hamlet.

During the following year, the Roma villagers, including the applicants and their families, were forced to live in nearby stables in subhuman conditions. The stables had no heating and no running water. The applicants only managed to survive with the help of their friends and family.

One year after the incidents, the non-Roma villagers, who had set fire to the Roma houses, rebuilt them, including those belonging to the applicants. None of the Roma from the hamlet of Plăieşii de Sus ever received compensation for the destruction of their personal and household possessions.

2. Investigation into the incidents

In the aftermath of the accident, the Harghita County Police Department allegedly started an investigation.

The applicants’ lawyer (acting on behalf of APADOR) requested the police and the local mayor’s office to allow access to the case file. The local authorities categorically refused this and expressed the opinion that the Roma themselves, or “Gypsies” as they put it, “were to blame for what has happened” as “they steal for a living and are aggressive towards other people”.

The case files were labelled “unknown offenders” and the offence was classified as “destruction by arson” under the Article 217 (4) of the Criminal Code. On an unspecified date, the lawyer was informed that the investigations into the incidents would be closed, because of time bars, and that no further investigations were planned due to other imminent time bars. Finally, both the mayor’s office and the police officials stated that, given the large number of persons involved in the incident, it had not been possible to identify the perpetrators.

On 23 April 1998 the applicants’ lawyer filed a complaint with the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. He requested that the competent prosecuting and investigative authorities identify the perpetrators of both the incident and the murder of Adam Kalanyos and to secure convictions. In addition, he requested access to the case files. The lawyer noted in his submissions that the absence of adequate investigations to date appeared to be due to the Roma ethnicity of the victims.

On 6 July 1998 the applicants’ lawyer filed a similar complaint with the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. He attached to the complaint the powers of attorney signed by the applicants. He was allowed to examine the case files on 8 July 1998. Their content showed that on 27 June 1996 a single file had been divided in two: one file regarding the community violence and the other file regarding the death of Adam Kalanyos . Neither file contained evidence that a comprehensive, official investigation has been conducted by the competent authorities. Concerning the offence of “destruction by arson”, it appeared that the case had been discontinued because of the applicable prescription period. According to the applicants’ representative, given the indivisible factual context of the events, there seemed to be no justification for the creation of two separate case files.

On 14 July 1998 the lawyer filed a complaint with the Prosecutor’s Office of the Supreme Court of Justice. He requested that the competent prosecuting and investigative authorities identify the perpetrators and secure the conviction of those responsible for both the arson and murder.

On 6 August 1998 the Prosecutor’s Office of the Supreme Court of Justice informed the lawyer that his complaint had been forwarded to the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. On 9 October 1998 the Prosecutor’s Office informed the lawyer that his complaint had been rejected. When examining the case file, the lawyer saw a note in which the Prosecutor’s Office had provided the grounds for its decision, namely, that it had found that the offences had been committed “due to the serious, provocative acts of the victims”. It also stated that the investigations into the incident and the death of Adam Kalanyos were unrelated and that, given the large number of persons involved, it had been impossible to identify the perpetrators.

On 28 October 1998 the lawyer appealed against this decision to the Prosecutor’s Office of the Supreme Court of Justice. On 21 January 1999 the latter upheld the decision of the Târgu-Mureş Court of Appeal. This was the final decision in the present case.

B. Relevant domestic law and practice

1. Code of Civil Procedure

Article 244 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action can suspend the proceedings,

“...2. if criminal proceedings were instituted in relation to a crime, the determination of which is decisive for the outcome of the civil dispute.”

2. Code of Criminal Procedure

Article 10 (c)

“Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ...

c) the act was not committed by the defendant;... ”

Article 15

“The person who has suffered civil damage can join the criminal proceedings...

He or she can do so either during the criminal investigation... or before the court...”

Article 22

“The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed, the identification of the perpetrator and his guilt, are binding on the civil court when it examines the civil consequences of the criminal act.”

3. Civil Code

Articles 999 and 1000 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, through fault, caused it.

Article 1003 of the Civil Code provides that when more than one person has committed an intentional or negligent tort, they shall be jointly and severally liable.

4. Case law of the domestic courts

The Government submitted in earlier cases a number of criminal complaints examined by domestic courts in respect of which it was decided that the prosecutor’s decision not to open a criminal investigation on the ground of the absence of intention - as an element of the offence - did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question.

COMPLAINTS

1. The first and second applicants complain under Article 2 of the Convention that the Romanian authorities failed to conduct a prompt, thorough and effective, or almost any, relevant investigation into the murder of their uncle and have consequently charged no one for this crime.

2. The applicants complain under the Article 3 of the Convention that the Romanian authorities failed to prevent and suppress the incident of community violence, even after the police has been informed about the imminent tragedy. This resulted in the applicants and their families being subjected to inhuman and/or degrading treatment. The applicants also submit that the fact that they are of Roma origin and, as such, members of a particularly vulnerable minority, has resulted in reinforcing their feelings of degradation, utter helplessness and a lack of any legal protection.

The applicants also allege that, before and after the ratification of the Convention, the prosecuting authorities failed to carry out a prompt, impartial and effective investigation, which would lead to the identification and the punishment of all those responsible, or to provide any kind of redress for the applicants.

They also complain that, after the destruction of their homes, they had to live in very poor, cramped conditions, which amounted to treatment contrary to Article 3 of the Convention.

3. Relying on Article 6 § 1 of the Convention, the applicants complain that the failure of the authorities to carry out an adequate criminal investigation into the incident, culminating in formal charges and the conviction of those responsible, has deprived them of the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal in the determination of their civil rights. This failure hindered the establishment of liability and the recovery of damages, both pecuniary and non-pecuniary, for the injury they suffered.

The first and second applicants make a similar claim in relation to the absence of an adequate investigation into the murder of their uncle.

4. The applicants complain under Article 8 of the Convention that the incident of community violence, resulting in the deliberate destruction of their houses, discloses an unequivocal violation of their rights to respect for their home, and private and family lives. Even though the incidents were organised by private parties, the Romanian authorities themselves have also breached the letter and spirit of Article 8 by failing to prevent the incident from happening and to respond adequately, both before and after ratification of the Convention. They claim that, since the ratification of the Convention, there has existed a continuing breach of Article 8 due to the fact that the authorities never conducted a thorough and comprehensive investigation, and never provided redress for the alleged violations.

5. The applicants complain under Article 1 of Protocol No. 1 to the Convention that their homes, with their contents, were completely destroyed during the incidents. They also allege that the State must be held responsible for its failure to provide the applicants with comprehensive and adequate legal redress for the pecuniary damage.

6. The applicants complain under Article 13 of the Convention that following the incident, both before and after the ratification of the Convention, they have been denied an effective and comprehensive remedy for inhuman and/or degrading treatment, the destruction of their houses and possessions, and the violation of their privacy. Given that the deceased Adam Kalanyos was their uncle, the first and second applicants also claim that the authorities failed to carry out a thorough and effective, or almost any, relevant investigation into the murder of their uncle, and have not formally charged anyone with the crime.

The first and second applicants claim that the absence of an adequate investigation into the murder of their uncle was due to his Roma ethnicity and, therefore, in breach of Article 13 read in conjunction with Article 2 of the Convention (see also ensuing Article 14 complaint).

As under Romanian law, the final domestic authority capable of providing a remedy for crimes prosecuted ex officio is the public prosecutor, there exists no opportunity for the victim of a crime to launch a private prosecution in the event that the State authorities do not fulfil their responsibilities to conduct a thorough and effective investigation. The victims do not have the possibility to seek judicial review of an allegedly arbitrary decision not to prosecute.

The applicants claim that the failure of the authorities to conduct a thorough and effective investigation in the instant case results, in part, from the fact that the public prosecutors - those officials to whom Romanian law assigns exclusive and unreviewable authority for investigating allegations of crime - lack sufficient independence and impartiality (cf. the Silver and Others v. United Kingdom judgement of 25 March 1983). As regards the issue of independence, they submit that, due to their dual and contradictory functions - as parties to and supervisors of the criminal process - prosecutors in Romania cannot be considered sufficiently independent for the purposes of Article 13. The applicants allege that Romanian prosecutors do not enjoy guarantees of independence, immovability and transparency, nor are prosecution activities subjected to public scrutiny in any meaningful sense. They refer in this respect to Parliamentary Assembly Resolution no. 1123/1997 on the honouring of obligations and commitments by Romania, observing that “the role of the Public Prosecutor’s Office is still very pronounced”, and urging Romania to “continue the reform in this area”.

As for the lack of impartiality, the applicants allege that this is particularly conspicuous when it comes to providing redress to Roma victims of human rights abuse. They refer in this respect to the Concluding Comments of the United Nations Human Rights Committee on Romania of November 1993, expressing “concern at the continuing problems in Romania regarding discrimination against persons belonging to minorities and, in particular, offences committed as a result of incitement to ethnic or religious intolerance”. The applicants stress that, according to that document, “the situation is especially threatening to vulnerable groups, such as the Roma”. Furthermore, they submit that in its Concluding Observations concerning Romania, issued in 1995, the United Nations Committee on the Elimination of Racial Discrimination voiced concern “at the continuing reports of racism among police forces, which have been said to occasionally use excessive force against members of certain groups, or, alternatively, are said not to take action when acts of violence against certain groups are committed in their presence”.

7. The applicants finally complain that the violations they suffered as a result of the incident were predominantly due to their Roma ethnicity, and therefore inconsistent with the requirement of non-discrimination guaranteed by Article 14 of the Convention taken together with Articles 3 and 8, and Article 1 of Protocol No. 1, for which there was no remedy, contrary to Article 13 read in conjunction with the same provisions. According to the applicants, in numerous cases of alleged physical violence against Roma on the part of the police or private parties, the Romanian justice system has simply failed to respond. Roma complaints to investigative bodies often encounter indifference, neglect or hostility.

The first and second applicants claim that the absence of an adequate investigation into the murder of their uncle was due to his Roma ethnicity and, therefore, in breach of Article 14 read in conjunction with Article 2 of the Convention.

They also stress that the report of the European Commission against Racism and Intolerance of 1999 on Romania stated that “... violent acts are publicly committed against members of various minority groups, particularly Roma/Gypsies, which could have the effect of implying certain approval of racist acts and attitudes.”

The applicants submit in respect of all their complaints that the Court is competent ratione temporis to examine them. They refer to the jurisprudence of the Court and the Commission, which found themselves competent ratione temporis , either if the impugned events took place before the date of entry into force of the Convention but constituted a continuing violation after that date, or had effects which themselves constituted a violation after that date (judgments Yağci and Sargın v. Turkey and Mansur v. Turkey of 8 June 1995, Series A no. 319-A; Loukanov v. Bulgaria decision of 20 March 1997; the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgements and Decisions 1997-IV).

Quoting a certain number of cases, the applicants also refer to the practice of the United Nations Human Rights Committee, which had pointed out that it could consider violations alleged to have occurred prior to the date of entry into force of an instrument if the alleged violation was one which, although occurring before that date, continued, or continued to produce effects which themselves constituted violations, after that date.

The applicants finally submit that all domestic remedies in the instant case have been exhausted. They note that, under Romanian law, a court may not review decisions of the prosecutor not to issue an indictment. Accordingly, the decision of 21 January 1999 by the Prosecutor’s Office of the Supreme Court of Justice represents the final domestic decision in the case. The applicants have no recourse to any other effective remedy under domestic law for any of the alleged violations.

THE LAW

The first and second applicants complain that the Romanian authorities failed to conduct an effective investigation into the murder of their uncle, even after the ratification of the Convention by Romania.

All the applicants complain that the destruction of their homes, property and belongings amounted to severe ill-treatment, for which there has been no effective investigation, even after the ratification of the Convention by Romania. The applicants allege that the failure of the authorities to carry out adequate criminal investigations, culminating in formal charges and the conviction of those responsible, has deprived them of the right to file a civil action for damages, and breached their right to respect for their homes, and their private and family lives, as well as their property rights. Finally the applicants allege a general lack of effective remedies for the enforcement of their Convention rights and discrimination against them on ethnic grounds.

They invoke Articles 2, 3, 6, 8, 13 and 14 of the Convention, and Article 1 of Protocol No. 1, which guarantee, inter alia , the right to life, a prohibition on inhuman and degrading treatment, the right of access to court, the right to respect for private and family life and the home, the right to effective domestic remedies for Convention breaches, freedom from discrimination in the enjoyment of Convention rights, and the right to property, respectively.

The Court notes that the murder of the uncle of the first two applicants and destruction of the applicants’ property took place in June 1991, before the ratification of the Convention by Romania on 20 June 1994. It follows that this aspect of the case is incompatible ratione temporis with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.

However, as regards the complaints which arose or were of continuous effect after the ratification of the Convention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints at the present stage, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously,

Decides to adjourn the examination of the complaints concerning the applicants’ living conditions, the alleged inhuman or degrading treatment and the right to respect for home, and private and family life, the alleged lack of access to a civil court, the alleged discrimination on the basis of the applicants’ ethnicity, and the right to an effective remedy, insofar as they relate to the period after 20 June 1994;

Declares inadmissible the remainder of the application, insofar as it is incompatible ratione temporis with the provisions of the Convention.

S. Dollé J.-P. Costa Registrar President