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THIRD
SECTION
CASE OF KALANYOS AND OTHERS v. ROMANIA
(Application
no. 57884/00)
JUDGMENT
STRASBOURG
26 April
2007
FINAL
26/07/2007
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 Kalanyos and Others 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. 57884/00) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Romanian nationals of Roma origin,
Mr Sandor Kalanyos, Tamas Kalanyos and Istvan Rozsa (“the
applicants”), on 19 July 1999.
- The
applicants were represented by the European Roma Rights Center
(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
applicants complained that the destruction of their 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 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, 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 remainder of the application 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 applicants' representative filed written observations
on the Government's request.
THE FACTS
- The
applicants were born in 1941, 1942 and 1972 respectively and used to
live in the hamlet of Plăieşii de Sus, in the district of
Plăieşii de Jos, Harghita County.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
6 June 1991 a fight started in Plăieşii de Sus between four
Roma and a nightwatchman. Following the events, a crowd made up of
non-Roma villagers assaulted and beat up two Roma men in a revenge
attack, fatally injuring one of them.
- On
8 June 1991 a public notice was displayed on the outer limit 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 village officials. However, the local authorities failed to
intervene, preferring instead to “advise” the Roma to
leave their homes for their own safety.
- On
9 June 1991 the Roma villagers, including the second applicant, fled
their homes and sought refuge in a nearby stable belonging to the
local farming cooperative while an organised group of non-Roma
villagers destroyed all the Roma houses, including those belonging to
the applicants.
- During
the following year, the Roma villagers, including the applicants
and their families, were forced to live in nearby stables in dreadful
conditions, without heating or running water. The applicants only
managed to survive with the help of their friends and family.
- The
Harghita County Police Department, under the supervision of the
Miercurea Ciuc District Prosecutor's Office started an
investigation into the events. Some of the Roma from the hamlet who
were questioned by the investigation team were able to give the
names of possible suspects.
The
final report concluded that the destruction by arson was caused by
the fight on 6 June 1991 and the fact that the Roma were in the habit
of putting their animals to graze on land belonging to non-Roma
villagers.
- The
local authorities are said to have expressed the opinion that the
Roma themselves, or the “Gypsies” as they put it, “are
to blame for what happened” as “they steal for a living
and are aggressive towards other people”.
- On
27 June 1996 the Prosecutor's Office of the Harghita County Court
closed the investigation on the ground that the prosecution of
the offences was statute-barred. Its decision was upheld, upon
the applicants' complaint, in a decision of 9 October 1998 of
the Prosecutor's Office at the Supreme Court of Justice.
- The
latter also found that the offences had been committed “as a
result of serious acts of provocation by the victims” and
considered that, given the large number of persons involved, it had
been impossible to identify the perpetrators of the attack.
- 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. The purchase price of 110,400
Romanian lei (“ROL”) was funded by the County of Mureş,
following a decision by the Prefect on 13 September 1991.
The local authorities also gave the applicants permission to
gather wood from a nearby forest. The destroyed houses were rebuilt
by the applicants with the help of friends and relatives between 1991
and 1993.
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 applicants' homes
and possessions, which left them living in improper conditions,
rendered difficult their possibility of filing a civil action for
damages, as well as the exercise of their 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 applicants were seeking justice in domestic
courts, and that certain remarks were made by some authorities as to
the applicants' 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 Sandor Kalanyos the amount of EUR 33,000
(thirty three thousand euros), to the applicant Tamas Kalanyos
the amount of EUR 33,500 (thirty three thousand five hundred
euros) and to the applicant Istvan Rozsa the amount of EUR
30,000 (thirty thousand euros).
The Government undertake to pay the amount of EUR 2,406
(two thousand four hundred and six euros) in costs and expenses
incurred by the applicants' 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
applicants' 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 Plăieşii de Jos 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
Plăieşii de Jos community;
- support positive changes in the public
opinion of the Plăieşii de Jos 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
applicants' 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 June 1991 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 victims'
quest for justice.
- On
a more general note, the applicants' 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 19 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 applicants'
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 20 above), the Court
recalls that they fall outside the scope of this case. So does the
initial complaint concerning the events of June 1991 (see the partial
decision of 9 December 2003, cited at paragraph 4 above);
consequently, the applicants' 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 21 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 applicants'
representative's submissions concerning the alleged ineffectiveness
of those measures and of their implementation (see paragraph 23
above), as their examination falls at this moment entirely to the
Committee of Ministers within the execution proceedings.
- The
Court does not share the applicants' concerns as to its capacity to
transpose the general measures from the Moldovan case to the
present case (see paragraph 23 above). The Court is satisfied
that these measures, as reiterated in the declaration above (see
paragraph 19 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 individual applicants in the present case (see paragraph 23
above).
- Lastly,
in so far as the applicants' procedural arguments are concerned (see
paragraph 24 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
