Communicated on 8 March 2017

FOURTH SECTION

Application no. 16401/16 Fatme MEMET and O thers against Romania lodged on 30 March 2016

STATEMENT OF FACTS

1. The applicants are thirty-seven Romanian nationals of Roma origin who live in Eforie Sud and whose names and dates of birth are indicated in the appendix (see below). They are represented before the Court by the European Roma Rights Centre, a non-governmental organisation based in Budapest.

A. The circumstances of the case

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

3. The group of applicants is composed of ten families, including twenty-one children, a pregnant woman and two people with disabilities.

1. Background to the case

(a) The demolition of the applicants ’ homes and their first eviction

4 . On 19 September 2013 the mayor of Eforie issued Decision no. 296, which ordered the demolition of the applicants ’ homes, built without authorisation on public property. At the same time the applicants were notified that they had to leave their homes by 26 September 2013.

5 . In their application to the Court the applicants stated that on 27 September 2013 their homes, along with those of other Roma living in the city, had been demolished, and they had been rendered homeless. According to media reports, the victims of the demolition had been threatened by the numerous law-enforcement officers present at the location, and by the deputy mayor of Eforie Sud .

6 . In an interview given immediately after the demolition, the mayor of Eforie Sud referred to the applicants ’ homes as an “infection” and compared the applicants ’ behaviour to that of dogs.

7. In their application to the Court the applicants stated that they had initiated administrative court proceedings to seek a suspension of the eviction order which had led to the demolition of their homes, but by the time the domestic courts had granted the suspension their homes had already been demolished.

8 . On 3 October 2013 the Eforie Sud local authorities offered to shelter the applicants in an abandoned school.

9. On an unspecified date in 2014 all the applicants – except the ninth, fifteenth, twenty-fourth and thirty-sixth applicants – and other third parties initiated administrative court proceedings against the mayor of Eforie ’ s office and the Eforie local council, seeking the annulment of the mayor ’ s decision of 19 September 2013 (see paragraph 4 above), pecuniary and non-pecuniary damages, a court order that they be granted social housing which met the national and international minimum living requirements, as well as costs and expenses. They argued, inter alia , that the decision of 19 September 2013 and their subsequent eviction breached domestic and international law, Articles 3, 8 and 14 of the European Convention on Human Rights (“the Convention”), and Article 1 of Protocol No. 1 to the Convention, taken alone or in conjunction with the above-mentioned Articles.

10. On 1 June 2016 the Constanța County Court allowed in part the proceedings initiated by the applicants. It annulled the mayor ’ s decision of 19 September 2013, and ordered the local authorities to grant the applicants who were party to the proceedings social housing which met the national and international minimum living requirements, as well as costs and expenses. Relying on the Court ’ s case-law, it held that the enforcement of the decision by the local authorities had been disproportionate, given the short lapse of time between the decision and the applicants ’ eviction, the absence of alternative accommodation, and the applicants ’ inability to ask for an a priori judicial review of the proportionality of the measures taken. The court dismissed the applicants ’ claims for pecuniary and non-pecuniary damages on the grounds that they had not proved the damage sustained, had not taken steps to regulate their status in spite of previous threats of eviction, and had not been stopped from collecting and recovering their personal belongings at the time of their eviction.

11. The parties appealed against the judgment of 1 June 2016. At the date on the latest information available to the Court (23 November 2016), the proceedings were still ongoing before the domestic courts.

(b) The applicants ’ second eviction

12 . On 16 July 2014 the Eforie Sud local authorities evicted the applicants from the abandoned school they had been placed in on 3 October 2013 (see paragraph 8 above), and moved them to eight modular containers. Each of the containers measured 16 square metres and was too small to accommodate the applicants comfortably. Also, at the time when the applicants moved in, the containers lacked water, basic sanitation or electricity, and the applicants were provided with these utilities only after they moved in.

13 . On 16 October 2014 the local authorities signed six-month lease contracts for the containers with the first, second, fourth, twelfth, twenty-eighth, thirtieth and thirty-third applicants. According to the lease contracts, the seven lessees had to pay a monthly rent of 19.34 Romanian lei (RON – approximately 4 euros (EUR)) each. In addition, the family members expressly mentioned in the contracts were also allowed to use the containers, in particular: the twentieth, twenty-first and twenty-ninth applicants (the family of the first applicant); the third, sixth, seventh, eighth and twenty-sixth applicants (the family of the second applicant); the fifth, tenth and eleventh applicants (the family of the fourth applicant); the thirteenth, fourteenth and thirty-first applicants (the family of the twelfth applicant); the seventeenth applicant (the family of the twenty-eighth applicant); the twenty-seventh applicant (the family of the thirtieth applicant); and the twenty-fifth, thirty-second, thirty-fourth, thirty-fifth and thirty-seventh applicants (the family of the thirty-third applicant).

14. All the lease contracts of 16 October 2014 were renewed by the local authorities until 16 October 2015.

15. On 28 January 2015 the Eforie Sud local council adopted Decision no. 12, which approved the payment from the local budget of the debt for water and electricity charges accrued in respect of the applicants ’ homes until 31 March 2015.

16. In August 2015 the seven applicants who had signed the lease contracts on 16 October 2014 (see paragraph 13 above) were informed by the local authorities that they had accrued debts of between RON 808 (approximately EUR 183) and RON 3,264 (approximately EUR 740) following their failure to pay their rent, electricity and water charges.

17. In their application to the Court the applicants stated that, before August 2015, they had been unaware of the amounts owing for electricity and water. Also, they had been and remained unaware of the monthly and yearly charges for utilities. In addition, they had no regular income, apart from child benefits of EUR 18 per child per month.

18. On 11 August 2015 six of the seven applicants who had signed the lease contracts of October 2014 – except for the thirty-third applicant – signed written statements confirming that, within a month, each of them would repay the debts accrued following their failure to pay their electricity and water charges. However, they were unable to make the payments.

2. The decision and threat to evict the applicants from the modular containers and the relevant proceedings

19. On 16 December 2015 the local authorities notified the holders of the lease contracts that the validity of the contracts had expired, and that they had to repay their debt in respect of rent and charges. In addition, the local authorities notified them that they had to leave their homes by 30 December 2015 if they did not ask for a renewal of the contracts.

20. According to the local authorities, prior to 1 March 2016 the applicants had not asked for a renewal of the lease contracts, had not left their homes and had not paid their debts.

21. In their application to the Court the applicants stated that from October 2015 onwards they had enquired about the renewal of their contracts with the local authorities, but had been told that a renewal was impossible in the absence of a new local council decision.

22 . On 1 March 2016 the Eforie Sud local council adopted Decision no. 36, which approved the eviction of the first, second, twelfth and thirty-third applicants from their homes because they had been occupying them without a valid contract and had accrued debts by not paying their rent, electricity and water charges. In addition, the decision approved an extension of the lease contracts for a year only for people who paid their outstanding debts for 2015 by 31 March 2016.

23. In their application to the Court the applicants stated that the local authorities had adopted the decision of 1 March 2016 without their knowledge. Also, they stated that they had obtained the full text of the decision only after they had initiated Rule 39 proceedings before the Court. It had only been at that stage that they had found out that the local council had approved the eviction of only four families, and not of all of them.

24 . On 15 March 2016 the local authorities issued an eviction notice in the name of the second applicant and asked her to vacate her home and repay all the debts accrued in respect of the property by 30 March 2016.

25 . In their application to the Court the applicants alleged that similar eviction notices had been posted on all of their homes. They also alleged that on 28 March 2016 sixteen employees of the municipality had come to their homes and asked them to pack their belongings. In addition, they stated that neither the notices nor the verbal notifications had distinguished between the families of the four applicants mentioned in Decision no. 36 (see paragraph 22 above) and the other families.

26 . On 29 March 2016 all the applicants – except the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – and other third parties asked the Eforie Sud local council to revoke Decision no. 36 on the basis of Article 7 of Law no. 554/2004 on administrative litigation (see paragraph 47 below). They argued, inter alia , that they had been placed in a vulnerable situation because of the local authorities ’ actions. They submitted that their homes had been demolished in September 2013 (see paragraph 5 above). They had not been allowed to collect their belongings and, in spite of the adverse weather conditions, had remained homeless until 3 October 2013, when they had been relocated and placed in an abandoned school (see paragraph 8 above) in conditions acknowledged by the Romanian Ombudsman to be unsuitable for living, which had affected their physical and psychological well-being. In July 2014 the Eforie Sud local authorities had again evicted them from the abandoned school and had relocated them to the eight containers located on the city ’ s outskirts (see paragraph 12 above). They further submitted that the second eviction had been based on a decision which breached domestic and international law, as well as the case-law of the European Court of Human Rights. The decision to evict them had not been subjected to a preliminary judicial review and had not provided for alternative adequate shelter. Unpaid charges had not amounted to a situation of force majeure justifying their eviction in any circumstances. The applicants had only been notified of the debt which had accrued after they had been living in the containers for a year, and not on a monthly basis as would have been normal, and therefore they had not had the financial means to pay the amounts due. In setting a rent ceiling of a maximum 10% of monthly net revenue, and in ensuring access to housing and basic utilities and giving local councils the possibility to share part of the debt for basic utilities accrued by families, the Romanian legislator had been anxious to make social housing accessible to vulnerable families. In addition, the statements made by the mayor and deputy mayor of Eforie Sud when their homes had been demolished (see paragraph 6 above) and after that date, as well as the threats received from neighbours when they had been living in the abandoned school, had rendered the eviction based on Decision no. 36 of 1 March 2016 (see paragraph 22 above) discriminatory on account of the applicants ’ ethnicity. A third eviction would breach their rights and leave them in an even more vulnerable situation.

27. On the same date all the applicants – except the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – and other third parties initiated administrative court proceedings before the Constanța County Court against the Eforie Sud local council ’ s decision of 1 March 2016, seeking the suspension of the decision and its enforcement pending the outcome of the administrative proceedings. The proceedings were based on: Articles 1, 2, 7 and 14 of Law no. 554/2004 on administrative litigation (see paragraph 47-48 below); Articles 1038-1041 of the Romanian Code of Civil Procedure (see paragraphs 44-45 below); Article 12 of Government Ordinance no. 137/2000 on combating discrimination (see paragraph 49 below) ; Articles 3, 8 and 14 of the Convention; and Law decree no. 212/1974, ratifying the International Pact concerning socio-economic and cultural rights and the International Pact concerning civil rights. The applicants reiterated the arguments raised before the Eforie Sud local council (see paragraph 26 above). In addition, they argued that the local authorities had posted eviction notices on all of their homes and asked them to vacate the premises and repay the accrued debts by 30 March 2016. However, they had been placed in a vulnerable situation because they had been living in the containers provided by the authorities after being forcefully evicted twice, once from their demolished homes and once from an abandoned school. The order for the demolition of their homes had been enforced by the deputy mayor and staff members of the mayor ’ s office, who had been accompanied by police officers. Also, the deputy mayor had threatened them. After their eviction from the abandoned school they had been relocated to the eight containers located near a rubbish dump, without access to basic utilities such as showers, running water or sewage. They further submitted that a third eviction was imminent, would breach their right to physical and psychological well-being and human dignity, and would leave them in an even more vulnerable situation, considering that nineteen of the applicants were children and one of them was a pregnant woman.

28. The application to the Constanța County Court was sent by fax by the applicants ’ legal representatives and included, inter alia , copies of powers of attorney.

29. The Constanța County Court registered and processed the applicants ’ application on 30 March 2016, on the grounds that it had only been sent on the previous day in the afternoon, after the court had closed.

30. On 31 March 2016 the Constanța County Court informed the first applicant that the application was incomplete, and that it would reject it if the required additional documents were not submitted within ten days. The court instructed the first applicant to submit, inter alia , the original power of attorney, the power of attorney in relation to some of the other applicants and proof of payment of the required judicial stamp duty tax.

31. On 6 April 2016 the mayor of Eforie Sud informed the applicants ’ representative that the authorities had stopped ( au sistat ) the eviction measures taken against the people mentioned in the decision of 1 March 2016 after the applicants had lodged their administrative complaint. In addition, that decision had not concerned the fourth, fifth, tenth, eleventh, fifteenth, seventeenth, twenty-second, twenty-third, twenty-seventh, twenty-eighth and thirtieth applicants, even though they had been party to the administrative complaint.

32 . On 9 May 2016 the Eforie Sud local council adopted Decision no. 84, which rescinded the local council ’ s decision of 1 March 2016.

33. On 25 May 2016 the Constanța County Court dismissed the action initiated by the applicants on 29 March 2016 seeking the suspension of the enforcement of the decision of 1 March 2016, on the grounds that it had become moot ( a rămas fără obiect ). It held that the local council had rescinded the decision which the applicants had sought to suspend.

34 . On 8 September 2016 the Constanța County Court dismissed an action initiated by the prefect of Constanța County on 31 March 2016 seeking the annulment of the decision of 1 March 2016, on the grounds that it had become moot.

3. The applicants ’ subsequent situation

35. On 6 September 2016 the fourth applicant was notified that she had to repay the outstanding debts accrued in respect of electricity and water charges within ten days of the notification. In addition, she was notified that failure to repay that debt would result in court proceedings being initiated against her for recovery of the debt.

36. On 23 November 2016 the applicants informed the Court, inter alia , that similar notices to the one received by the fourth applicant on 6 September 2016 had been received by other applicants. They also stated that court proceedings had not yet been initiated against them. In any event, repayment of the debts they had accumulated was well beyond their means.

4. Other relevant information

37. On 30 March 2016 all the applicants – except for the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – lodged with the Court a request for an interim measure under Rule 39 of the Rules of Court. They asked for suspension of the execution of the local council ’ s decision of 1 March 2016 (see paragraph 22 above) , invoking Articles 3, 8, 13 and 14 of the Convention .

38. On the same date the Court granted the applicants ’ request and indicated to the Romanian Government that it should suspend the applicants ’ eviction until 5 April 2016 at noon. The Court also decided to grant priority to the application under Rule 41 of the Rules of Court. In addition, it asked the Government to submit additional information on the applicants ’ situation.

39. On 31 March 2016 the prefect of Constanța County initiated court proceedings against the Eforie Sud local council, seeking the annulment of the decision of 1 March 2016 (see paragraph 34 above).

40. On 4 April 2016 the applicants informed the Court that, according to Article 3 of Law no. 554/2004 (see paragraph 46 below), the prefect ’ s action suspended their eviction pending the outcome of the court proceedings.

41. On 5 April 2016 the Court decided not to prolong the interim measure, based on the information submitted by the parties and the absence of a request to have the measure prolonged.

42. On 26 April 2016 the applicants submitted a full application to the Court. Mr Sever Memet , Mr Nazar Memet , Ms Loredana Bianca Memet and Ms Rita Ibram , who were party to the request lodged with the Court for an interim measure under Rule 39 of the Rules of Court, did not submit application forms. However, Mr Metin Ergean Ahmed (the ninth applicant), Ms Iasemin Cerchez (the sixteenth applicant), Mr Mert Cercez (the eighteenth applicant), Ms Onur Cherchez (the nineteenth applicant) and Mr Sever Suliman (the thirty-sixth applicant), who were not party to the request lodged with the Court for an interim measure under Rule 39 of the Rules of Court, did submit applications forms.

43. In their application to the Court the applicants stated that the gravamen of their complaint was not the potential eviction, but the threat of eviction which had come in the form of the eviction notice they had all received between 15 and 28 March 2016 (see paragraphs 24-25 above).

B. Relevant domestic law

44 . Articles 997-1045 of the Romanian Code of Civil Procedure provide, inter alia , that once a court has established the appearance of a right in a claimant ’ s favour, it can order interim measures in pressing matters in order to prevent the loss of a right or imminent irreparable damage. The order is temporary and enforceable and remains valid pending the outcome of the proceedings examining the merits of the case, if a time-limit for its validity is not set. At the request of the claimant, the court may decide that the order is enforceable without prior notice or delay. The order may be issued even without summoning the parties. In the event of a special emergency, the court may issue the order on the same date, on the basis of the available documents and without observations from the parties. Unless otherwise provided for by law, the order may be appealed within five days of its date of issue if the parties were present, or within five days of the date the parties were notified if they were not summoned to attend the hearing. The Court of Appeal may stay the enforcement pending the examination of the appeal, but only if a deposit set by the court is paid.

45 . Articles 997-1045 of the Romanian Code of Civil Procedure also provide that an action for eviction is examined only after the parties are summoned, except where eviction is requested for failure to pay rent on the basis of a contract which is automatically enforceable. If the parties are summoned, the application for eviction is examined expeditiously, in chambers and with brief deliberations. The eviction order is enforceable and may be appealed within five days. Enforcement of the judgment ordering eviction may not be suspended, except in circumstances where the eviction is requested for failure to pay rent and the debtor repays the debt to the claimant, together with the relevant penalties, before the proceedings are concluded.

46 . Articles 3, 7, 8, 14 and 15 of Law no. 554/2004 on administrative litigation provide, inter alia , that a prefect may directly challenge before an administrative court the acts issued by local authorities if he or she considers them unlawful. The act which is challenged is automatically suspended pending the outcome of the proceedings.

47 . Articles 3, 7, 8, 14 and 15 of Law no. 554/2004 also provide that, before he or she can initiate proceedings before the competent administrative court, a person whose rights and interests are affected by an individual administrative act must ask the administrative authority which issued the act, or its more senior body, to revoke it, either in full or in part, within thirty days of being notified of the act. A person dissatisfied with the outcome of preliminary administrative proceedings, or a person who has not received a response to his administrative complaint, may lodge proceedings before the competent administrative court, seeking the annulment, either in full or in part, of the administrative act, as well as compensation. After exhausting the preliminary administrative procedure, in well-justified circumstances and in order to avoid imminent damage, the person affected by the administrative act may ask the competent court to stay the enforcement of the act pending the outcome of the proceedings on the merits. The court must examine the application for such a stay expeditiously by summoning the parties. The judgment allowing the stay is automatically enforceable. However, a person may appeal on points of law within five days of being notified of the judgment, and an appeal on points of law does not stay its enforcement. No action to enforce the administrative act may be taken once enforcement is stayed by the court.

48 . Articles 3, 7, 8, 14 and 15 of Law no. 554/2004 further provide that, the person whose rights and interests are affected by an individual administrative act may also ask the court which is competent to examine the annulment proceedings to stay the enforcement of the act, in well-justified circumstances and in order to avoid imminent damage. In such a case, the court may grant a stay of execution pending the outcome of the case. The application for a stay of execution may be lodged separately or together with the main application. The court must examine the application for a stay expeditiously by summoning the parties. The judgment allowing for the enforcement to be stayed is automatically enforceable. However, a person may appeal on points of law within five days of being notified of the judgment, and the appeal on points of law does not stay the enforcement of the impugned act. No action to enforce the administrative act may be taken once enforcement is stayed by the court.

49 . The relevant provisions of Government Ordinance no. 137/2000 on combating all forms of discrimination read:

Article 12

“1. Any action which amounts to threats, pressure, use of force ... seeking to change the ethnic ... component of an area of the country or of a town, is a contravention ...

2. ... Forcing a minority group to leave the town or the area where its members live is a breach of the present law ... ”

Article 27

“1. According to general law, an individual who considers himself or herself a victim of discrimination may lodge an application before a court for damages and restoration of the previous situation, or cancellation of the situation caused by the discrimination. The application is exempt from stamp duty and is not conditional upon an application before the National Council for Combating Discrimination.

...

4. The interested party shall present the facts which may be presumed to amount to direct or indirect discrimination, and the defendant must prove that the principle of equal treatment has not been breached. Any evidence may be adduced before the court ... including audio and video recordings or statistical data...”

COMPLAINTS

50. The applicants complain under Article 3 of the Convention that the threat of eviction, which came in the form of notices received by all of them and which continues to hang over their heads, without any provision of alternative housing, amounted to inhuman and degrading treatment. In particular, they were threatened with eviction at short notice without being offered any alternative shelter or support. This happened even though they belonged to a group of particularly vulnerable persons and the authorities were responsible for their ongoing housing conditions after they had evicted them from their homes and provided them with homes for several years.

51. The applicants complain under Article 8 of the Convention that the threat of eviction amounted to an interference with their right to respect for private and family life and home. The measure was unlawful because all the applicants were threatened with eviction, even though most of them were not even named in the decision of the local council. Also, the applicants named by the local council ’ s decision were selected arbitrarily and without any explanation as to why they were to be evicted, given the uncertainty regarding how much money they owed for utilities and the relevant period of time to be taken into account. Moreover, the measure was disproportionate, given the absence of alternative housing, the fact that the authorities ignored the applicants ’ vulnerable situation, the fact that they did not conduct a balancing exercise between the competing interests at stake and the fact that they did not comply with the procedural requirements for forced eviction set out in the Court ’ s case-law.

52. The applicants complain under Article 13 of the Convention that they did not have at their disposal an effective remedy against the alleged breaches of Articles 3 and 8, because the eviction notices did not contain information on how and when they could be challenged, and the domestic legislation did not provide for a remedy which would automatically stay the enforcement of the eviction pending the outcome of court proceedings contesting it. The available remedies provided by the relevant domestic legislation, including the interim measures provided by Article 997 of the Romanian Code of Criminal Procedure, did not offer any injunctive remedy against such unlawful conduct.

53. The applicants complain under Article 14 of the Convention, read in conjunction with Articles 3 and 8 of the Convention, that they were discriminated against by the authorities on account of their Roma ethnicity. In particular, it was only people of Roma ethnic origin who were housed in containers, even though the city of Eforie had a rather large stock of social housing. Also, from the moment their houses were demolished and the eviction cycles started, the authorities created a hostile environment for the applicants on account of their ethnic origin, by threatening them and comparing their homes to an infection and them to dogs. Consequently, the threat of eviction amounted to harassment which was in itself a form of discrimination.

QUESTIONS TO THE PARTIES

1. Was there a breach of Article 3 and/or Article 8 of the Convention on account of the Eforie Sud local authorities ’ decision of 1 March 2016 to evict the applicants from the accommodation they had been provided as social housing, and on account of the local authorities ’ attempt to enforce that decision?

2. Having regard to the timing of the eviction and to the alleged absence of automatic suspensive effect of the administrative court proceedings challenging the decision of 1 March 2016, did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?

3. Have the applicants exhausted, as required by Article 35 § 1 of the Convention, the domestic remedies available in respect of their complaint under Article 14 taken in conjunction with Articles 3 and 8 of the Convention?

4. Assuming that domestic remedies have been exhausted, have the applicants suffered discrimination on the basis of their ethnic origins in the enjoyment of their rights under Articles 3 and 8, contrary to Article 14 of the Convention?