SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57885/00 by Iren GERGELY 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 14 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Iren Gergely , is a Romanian national of Roma origin. She was born in 1965 and used to live in the hamlet of Caşinul Nou , in the village of Plăieşii de Jos , Harghita County.

The applicant is 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 applicant, may be summarised as follows.

1. The incident of 11 August 1990

The incident took place on the evening of 11 August 1990 following a period of increased hostility between the Roma and non-Roma inhabitants of CaÅŸinul Nou , amid accusations that local Roma had been stealing. According to various sources, approximately 60 - 400 non-Roma villagers chased out the entire Roma population and burned or otherwise destroyed their 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 a very real threat of being lynched.

During the incident, the applicant heard people shouting for her to leave the house because the non-Roma would burn the Roma houses and kill them. The bells of the village church tolled. With only the clothes they were wearing, 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.

During the summer of 1992 the very individuals who had destroyed the Roma Caşinul Nou settlement rebuilt them - including the applicant’s house. The applicant herself, for reasons of her own and her children’s safety, decided not to return to there, staying with her family and friends in Plăieşii de Sus . The applicant has to date not been compensated for the destruction of her personal and household possessions.

2. Investigation into the incident

In the aftermath of the incident, 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 incident.

During the investigation, several witnesses were questioned by the police. Most of them declared that, due to the darkness, they had been unable to identify the perpetrators. Certain witnesses, however, provided detailed statements as to how the events unfolded, what their own role was and who else was involved. Nevertheless, the police failed to conduct an adequate on-site investigation and deemed it unnecessary to have forensic experts ascertain the pecuniary damage caused by the incident. The investigating authorities had classified this incident as a possible crime of “destruction by arson” under Article 217 (4) of  the Criminal Code.

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 incident, it had been impossible to identify the perpetrators. On 22 February 1991 the General Prosecutor’s Office quashed this decision and ordered the reopening of the investigation in order to identify the perpetrators. The General Prosecutor’s Office noted that the fact that numerous persons were involved was not a sufficient reason to terminate the investigation. On 10 September 1991 the County Prosecutor’s Office requested the Harghita County Police to reopen the investigation of the case and to interrogate the persons previously identified by the witness D.S. as having participated in the incident. On 3 October 1991 the police heard witnesses, all of whom declared that they knew nothing about the events in the question. On 7 September 1995 the County Prosecutor’s Office again decided to discontinue the investigation. Accordingly, for almost four years (between 3 October 1991 and 7 September 1995) no investigations were made by the police.

On 23 April 1998 the applicant’s lawyer (acting on behalf of APADOR) filed a complaint with the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. He requested that the competent prosecuting and investigating authorities identify the perpetrators and secure their conviction. The lawyer also stressed that the investigating authorities had failed, to date, to conduct an adequate and comprehensive investigation, and had therefore tacitly contributed to the obstruction of justice only because of the victims’ Roma ethnicity. He also requested access to the case files. On 29 April 1998 the Prosecutor’s Office of the Court of Appeal replied that the lawyer was obviously unacquainted with the facts of the case and that, therefore, his impression that the authorities had been unwilling to conduct an adequate investigation of the case was groundless. The lawyer’s request to have access to the case files was dismissed as he had produced no evidence of a power of attorney to represent the victims.

On 6 July 1998 the lawyer filed a fresh complaint with the Prosecutor’s Office of the Court of Appeal and stressed that he was only requesting that the prosecuting authorities perform their duties in accordance with the law. He attached to the complaint a power of attorney signed by the applicant and again requested access to the case files, which was granted on 10 July 1998.

When examining the case files, the lawyer discovered the following statements of persons which had participated in the incident:

- D.S., questioned by three police officers, alleged that 60 or so of his fellow countrymen and I.C. had told him to go to the church reader, L.N., and ask him to toll the bells, so that the villagers would gather together and participate in the expulsion of the Gypsies. He asked L.N. for the steeple key and handed it to I.C. As they had decided to set the Roma houses on fire using diesel, V.G. went home and brought back five one-litre-bottles filled with diesel. He further alleged that he had approached the Roma houses and broke the bottles in the sacks. Others had wedged cloth into the neck of the bottles, lit them and threw them through the windows of the Roma houses. He also stated that I.M., C.L., C.K., L.R., S.A. and others had participated in the incident. He noted that they had finished at about 11 p.m. and that he personally had not set fire to any houses, but had only been watching.

- L.N., questioned on 13 August 1990, confirmed that he had handed the steeple key to the D.S.

- A.K., questioned the same day, stated that the Gypsies would never be allowed to stay in the hamlet.

- S.B., questioned on 14 August 1990, stated that he had not set fire to any houses, but had thrown stones in their direction.

- C.K., questioned the same day, stated that he had armed himself and joined the locals just to raise their spirits.

- G.B., questioned the same day, stated that lots of non-Roma showed up with sticks and beat the Roma out of the pub; about 200 - 250 persons were present when the fire was set.

- M.B. stated that the whole community participated in the incident.

The lawyer also found that the case file contained statements made by the victims of the incident:

- A.G. stated that he had seen I.C., I.B. and L.P. carrying diesel and lighting the fire.

- I.K. identified J.A. as having participated in the mob violence.

By letter of 6 November 1992, the Prosecutor’s Office of the Harghita County Court informed the Prosecutor’s Office of the Supreme Court of Justice that almost all of the inhabitants of the hamlet had participated in the incident.

According to the applicant’s lawyer, the case file contained no record that the Plăieşii de Jos police had conducted an investigation with the view to identifying the perpetrators. The case file did not contain any notification or report by the local police to the Harghita County Police Department concerning the incident. The records also showed that the prosecutor in charge of the case had only visited the site of the crime in order to find out about the complaints which the non-Roma inhabitants had had against the Roma, without trying to identify the perpetrators of the incident. The prosecutor also warned the Roma “to refrain from misdeeds as these may provoke a response from the non-Roma”.

On 14 July 1998, the applicant’s lawyer filed a fresh complaint with the Prosecutor’s Office of the Supreme Court of Justice. He noted that the investigating authorities had failed to conduct an adequate and comprehensive investigation into the incident. Notwithstanding the existing evidence, the authorities had failed to indict anyone or refer the case to a competent court. Both the police and the prosecuting authorities had failed to conduct an adequate on-site investigation or have forensic experts ascertain the pecuniary damage caused, even if this was of major importance for the legal classification of the incident and, subsequently, for the applicable prescription period. The lawyer also argued that the classification of the offence as “destruction by arson”, to which a five year prescription period was applicable, was incorrect, and that the alleged offence should have been classified as “aggravated destruction”, to which a ten year prescription period applied. The lawyer also alleged and offered evidence that certain materials in the case file had disappeared.

On an unspecified date, the Prosecutor’s Office of the Supreme Court of Justice referred the case to the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. On 5 October 1998 the latter informed the lawyer that it had dismissed his criminal complaint on the ground that no criminal charges could be brought by virtue of a time bar. The lawyer discovered the reason for this decision in a note attached to the prosecutor’s file. According to the Prosecutor’s Office of the Court of Appeal, there was no evidence indicating that “aggravated destruction” under Article 218 (1) of the Criminal Code had been committed. According to the applicant’s lawyer, a longer prescription period applicable to such an offence was not considered relevant. The Prosecutor’s Office of the Court of Appeal finally concluded that the offence has been committed “due to the serious provocative acts of the victims”.

On 28 October 1998 the applicant’s lawyer appealed against this decision to the Prosecutor’s Office of the Supreme Court of Justice. On 16 January 1999 that Office, after having examined the merits of the case, upheld the decision of the Prosecutor’s Office of the Târgu-Mureş Court of Appeal. This was the final decision in the present case.

B. Relevant domestic law and practice

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.”

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.”

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.

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 applicant complains under the Article 3 of the Convention that the Romanian authorities failed to prevent and suppress this incident of community violence, with the result that she and her four underage children were subjected to inhuman and/or degrading treatment. The applicant submits that the fact that she is of Roma origin and, as such, a member of a particularly vulnerable minority, has reinforced her feelings of degradation, utter helplessness and a lack of any legal protection.

The applicant also alleges that, notwithstanding the existence of evidence to identify the perpetrators, both before and after the ratification of the Convention by Romania, the authorities have failed to carry out a prompt, impartial and effective investigation, which would lead to the identification and the punishment of those responsible, or provide any kind of redress.

She also complains that, after the destruction of her home and belongings, she had to live in very poor conditions, which amounted to treatment contrary to Article 3 of the Convention.

2. Relying on Article 6 § 1 of the Convention, the applicant complains that the failure of the authorities to carry out an adequate criminal investigation, culminating in formal charges and the conviction of those responsible, has deprived her of her right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. This failure hindered the establishment of liability and the recovery of damages, both pecuniary and non-pecuniary, for the injury she had suffered.

3. The applicant complains under the Article 8 of the Convention that the incident of community violence, resulting in the deliberate destruction of her home, discloses an unequivocal violation of her rights to respect for her home, and private and family life. Even though the pogrom was organised by private parties, the Romanian authorities themselves have also breached the letter and spirit of Article 8 by not observing their positive obligations. They did so by i ) de facto failing to prevent the incident from happening in the first place and ii) failing to respond adequately, both after the incident and since the ratification of the Convention. She claims that, from the date of ratification, 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.

4. The applicant complains under Article 1 of Protocol No. 1 to the Convention that her home and its contents were completely destroyed during the pogrom. The applicant also alleges that the State must be held responsible for its failure to provide the applicant with comprehensive and adequate legal redress for the pecuniary damage.

5. The applicant complains under Article 13 of the Convention that, both before and after the ratification of the Convention, she has been denied an effective and comprehensive remedy for the inhuman and/or degrading treatment to which she was subjected, for the destruction of her home, as well as for the violation of her privacy.

Under Romanian law, the final domestic authority capable of providing a remedy for crimes prosecuted ex officio is the public prosecutor. There exits no opportunity for the victim of a crime to launch a private prosecution if the State authorities do not fulfil their responsibilities in carrying out a thorough and effective investigation. The victim does not have the possibility to seek judicial review of an arbitrary or capricious decision not to prosecute.

The applicant claims that the failure of the authorities to carry out a thorough and effective investigation into the case results, in part, from the fact that the public prosecutors - those officials to whom Romanian law assigns the exclusive and unreviewable authority for investigating allegations of crime - lack sufficient independence and impartiality (cf. the Silver and Others v. the United Kingdom judgement of 25 March 1983). As regards the issue of independence, she submits 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 applicant alleges that Romanian prosecutors do not enjoy the guarantees of independence, immovability and transparency, nor are prosecution activities subjected to public scrutiny in any meaningful sense. She refers in this respect to the Parliamentary Assembly Resolution no. 1123/1997 on the honouring of obligations and commitments by Romania, observing that “the role of the Public Prosecutor Office is still very pronounced” and urging Romania to “continue reform in this area”.

As for the lack of impartiality, the applicant alleges that this is particularly conspicuous when it comes to providing redress to the Roma victims of human rights abuse. She refers 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 applicant stresses that, according to that document, “the situation is especially threatening to vulnerable groups, such as the Roma”. religious intolerance”. She submits furthermore 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”.

6. The applicant finally complains that the violations she has suffered as a result of the incident were predominantly due to her 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 applicant, in numerous cases of alleged physical violence against Roma by the police or private parties, the Romanian justice system has simply failed to respond. Roma complaints to investigating bodies often encounter indifference, neglect or hostility.

She also stresses 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 applicant submits that the Court is competent ratione temporis to examine her complaints and refers to the jurisprudence of the Court and the Commission, which found themselves competent ratione temporis , if the events taking place before the date of entry into force of the Convention, either constituted a violation continuing 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 applicant also refers to the practice of the 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 continue to produce effects which themselves constituted violations after that date.

The applicant finally submits that all domestic remedies in the instant case have been exhausted. She notes that, under Romanian law, a court may not review a decision not to prosecute. Accordingly the decision of 16 January 1999 of the Prosecutor’s Office of the Supreme Court of Justice represents the final domestic decision in the case. The applicant has no recourse to any other effective remedy under domestic law for any of the alleged violations.

THE LAW

The applicant complains that the destruction of her home, 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. She alleges that the failure of the authorities to carry out adequate criminal investigations, culminating in formal charges and the conviction of those responsible, has deprived her of the right to file a civil action for damages, and breached her right to respect for her home, and her private and family life, as well as her property rights. Finally the applicant alleges a general lack of effective remedies for the enforcement of her Convention rights and discrimination against her on ethnic grounds.

She invokes Article 3, 6, 8, 13 and 14 of the Convention, and Article 1 of Protocol No. 1, which guarantee, inter alia , 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 destruction of the applicant’s property took place in August 1990, before the ratification of the Convention by Romania on 20 June 1994. The Court does not find elements of a continuing violation in respect of this matter. 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 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;

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