JOINT CONCURRING OPINION OF JUDGES BÃŽRSAN AND MULARONI

We share the view of the majority that there has been a violation of Articles 3 and 8 of the Convention.

However, we come to this conclusion on partially different grounds from the majority.

Noting that the facts at the origin of the applicants' complaints took place in September 1993, before the ratification of the Convention by Romania in June 1994, we consider that the following elements are essential for finding a violation of Articles 3 and 8:

(1) the failure of the Public Prosecutor's Office to institute criminal proceedings against those State agents who were clearly involved in the burning of the applicants' house, thus preventing the domestic courts from establishing the responsibility of these officials and punishing them;

(2) the applicants' living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants' health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities (who inter alia made some very unpleasant remarks about the applicants' Roma origin in the judgment of 17 July 1998 in the criminal case), which must have caused the applicants considerable suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement. Three houses have not to date been rebuilt and the houses rebuilt by the authorities are uninhabitable, with large gaps between the windows and the walls and incomplete roofs.

As to the other elements taken into consideration by the majority (see paragraph 107), we consider that the circumstance that the domestic courts refused for many years to award pecuniary damages for the destruction of the applicants' belongings and furniture and to award non-pecuniary damages is an unfortunate one but not a relevant argument to find a violation of Articles 3 and 8. The Convention system is a subsidiary one and provides for the exhaustion of domestic remedies. We observe that the Târgu-Mureş court of appeal, in its judgment of 24 February 2004, referring inter alia to the Court's case-law, confirmed the applicants' right to pecuniary damages and awarded non-pecuniary damages (see § 77). This conclusion was recently upheld by the Supreme Court. The fact that the amount requested by the applicants was diminished by the domestic courts due to the state of provocation under which the accused had committed the crimes does not raise, according to us, any problem under the Convention. This opinion of ours has at least two reasons, as follows:

(1) the Court has repeatedly stated that while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which it should be assessed, which are therefore primarily matters for regulation by national law and the national authorities (see, among many authorities, Garcia Ruiz v. Spain , GC, n o 30544/96, § 28, CEDH 1999-I);

(2) from the file it seems that the state of provocation taken into consideration by the Târgu-Mureş court of appeal did not lack any factual basis. The national courts were therefore entitled to draw consequences from their assessment of the evidence.

As to the specific circumstance that the proceedings lasted many years, we observe that the Court examined this issue separately and unanimously found a violation of Article 6§1.

PARTLY DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE LOUCAIDES

Contrary to the majority of the Court, I find that the applicants' right to a court within the meaning of Article 6 § 1 of the Convention was violated.

The applicants' complaint was that, since State agents were involved in the events of 1993, which had serious consequences upon their rights under Articles 3, 6, 8 and 14, they should have had the right to have a court determine their complaints and grant them compensation for the damage suffered as a result of the acts committed by those agents. However, the applicants were unable to file an action before a civil court since the prosecuting authorities decided not to bring criminal proceedings against the police officers.

The Court acknowledges that it was not able to conclude that an action for tort would have been an effective remedy for this aspect of the applicants' grievances (paragraph 120). In my opinion, the Court should then have drawn the conclusion that the applicants did not have an effective right to a court in order to claim compensation from the police officers allegedly involved in the incident.

Instead, the Court found that there has been no violation of Article 6 § 1 because of the damages awarded to the applicants by the civil courts in the course of an action lodged against the civilians involved in the riot.

However, Article 6 § 1 guarantees to the applicants the right to see a civil court, with full jurisdiction on questions of fact and law, rule on their claim of compensation directed against any tortfeasor including in this case the police officers.

At no moment did the domestic authorities acknowledge the violation of the Convention due to the behaviour of the police officers allegedly involved in the riot. As the Court has found, not only was there a lack of an effective investigation as regards the possible involvement of police officers in the burning of the houses, but the general attitude of the authorities was one of reluctance in admitting such illicit behaviour by members of the police (paragraphs 107 to 113). No court was ever able to examine the involvement of the State agents into the burning of the houses and allow, where appropriate, compensation in this respect.

Therefore I cannot agree with the Court's conclusion that the guarantees of Article 6 § 1 of the Convention concerning access to court are satisfied by the fact that civilians were held liable and obliged to pay compensation to the applicants. In the proceedings against the civilians, the applicants could not have had the State's responsibility established at the same time, with a more appropriate award of financial compensation being made as a consequence.

In my view, it would be unfortunate if the finding of the majority in paragraphs 121 and 122 could be understood as implying any acceptance that, where State agents allegedly violate human rights, they could escape their responsibility as soon as a private person is held liable for the impugned acts. To me, such a result would flout the rule of law.

For the reasons mentioned above, there has, in my opinion, been a breach of Article 6 § 1 of the Convention in the present case.

[1] Nowadays this would convert to around 720 euros (EUR)

[2] Around 1,525 EUR

[3] Around 920 EUR

[4] Around 3,745 EUR

[5] Around 460 EUR

[6] Around 805 EUR

[7] Around 17 EUR

[8] Around 1,725 EUR

[9] Around 72 EUR

[10] Around 18 EUR

[11] Around 9 EUR

[12] Around 2,880 EUR

[13] Around 1,440 EUR

[14] Around 865 EUR

[15] Around 575 EUR

[16] Around 430 EUR

[17] Around 2,015 EUR