BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF TĂNASE AND OTHERS v. ROMANIA
(Application
no. 62954/00)
JUDGMENT
(striking out)
STRASBOURG
26 May 2009
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 Tănase and Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and
Santiago Quesada, Section
Registrar,
Having deliberated in
private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 62954/00) against Romania
lodged on 28 August 2000 with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by 24 Romanian nationals of
Roma origin. The applicants are as follows: Constantin Catalan
(the first applicant), born in 1936; Victor Păun (the
second applicant), born in 1952; Ion Rupiţă (the
third applicant), born in 1957; Paul Catalan (the fourth
applicant); Sidef Niculae (the fifth applicant), born in 1966;
Petre Panciu (the sixth applicant), born in 1940; Stoica
Răducanu (the seventh applicant), born in 1952; Emilian
Niculae (the eighth applicant), born in 1963; Călin Ion
(the ninth applicant), born in 1928; Alexandru Nicolae (the
tenth applicant), born in 1941; Dumitru Catalan (the
eleventh applicant), born in 1957; Ion Nicolae (the twelfth
applicant), born in 1956; Gheorghe Staicu (the thirteenth
applicant), born in 1949; Arestiţa Ion (the fourteenth
applicant), born in 1942; Ştefan Catalan (the fifteenth
applicant), born in 1963; Botonică Dumitru (the
sixteenth applicant), born in 1980; and Claudia Florea
(the seventeenth applicant), born in 1973.
The
following applicants filed the application on behalf of their
deceased parents or spouses respectively: Grecu Catalan, born
in 1969, represents Marin Catalan, deceased in 2000 (the
eighteenth applicant); Irina Catalan, born in 1980, represents
Ion Catalan, deceased in 2001 (the nineteenth applicant); Tudor
Ion, born in 1971, represents Ion Ion, deceased in 2001, (the
twentieth applicant); Ioana Constantin, born in 1938,
represents Lucian Niculae, deceased in 2000 (the twenty-first
applicant).
The
following applicants died while the proceedings were ongoing; their
heirs expressed the wish to continue the proceedings on their behalf:
Vasile Tănase (the twenty-second applicant, heir:
Elena Tănase, born in 1968); Nicolae Ion (the
twenty-third applicant, born in 1974, heir: Ion Garibaldi);
Gheorghe Dumitru (who was representing Iarca Mitea, the
twenty-fourth applicant, deceased before the proceedings, heir:
Dumitru Jupiter).
- The
applicants were represented by Ms Sarah Perkins, director of the
International Human Rights Program from the faculty of Law,
University of Toronto. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- In
a partial decision of 9 December 2003, the Court decided to adjourn
the examination of the complaints raised under Articles 3, 6 § 1,
8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the
Convention concerning the applicants' living conditions after the
destruction of their properties in a mob attack; alleged inhuman or
degrading treatment; the right to respect for home and private and
family life; the length and the alleged lack of fairness of the civil
proceedings; the right to an effective remedy; and freedom from
discrimination in the enjoyment of Convention rights and freedoms,
insofar as the complaints relate to the period after 20 June 1994,
the date on which Romania ratified the Convention. It also declared
the remainder of the application inadmissible as incompatible ratione
temporis with the provisions of the Convention.
- On
17 August 2004 the President of the Chamber granted leave, under Rule
44 § 2 of the Rules of Court, for the European Roma Rights
Centre (ERRC) to intervene as a third party in the Court's
proceedings (Article 36 § 2 of the Convention).
- 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 2008 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 19 December 2008
the applicants' representative filed written observations on the
Government's request.
THE FACTS
- The
applicants are Romanian nationals of Roma origin who, during the
events which gave rise to the present case, lived in the village of
Bolintin Deal, Giurgiu County.
A. The origin of the case and the situation of the
community
- Following
the killing, on the night of 6/7 April 1991, of a non-Roma from
Bolintin-Deal by a Roma villager, a crowd of more than two thousand
non Roma inhabitants from the same village and from the
neighbouring village, together with the priest and the mayor, burned
and otherwise destroyed the applicants' houses and their contents.
As a
consequence, the entire Roma community fled their houses and were
left homeless for a month.
- When,
on 7 May 1991 the evacuated Roma villagers tried to negotiate their
return, the non Roma community gathered together again and
burned four more houses belonging to Roma. The applicants, who were
helped by the police to flee the village in a windowless military
van, lost all their belongings while being evacuated. The attacks
against the applicants continued on the following days and the Roma
inhabitants were denied access to the village, the orthodox church
and the cemetery.
- It
appears that the applicants have not returned to Bolintin Deal. They
have had to change their addresses several times and now have no
legal documents attesting their actual residence. Some of them have
been contacted by the mayor of
Bolintin Deal with offers to purchase their land and, in
desperate need of money, have accepted the offers.
B. Investigation into the events
- In
April 1991 the applicants filed a criminal complaint with the Giurgiu
County Prosecutor's Office. An investigation was started and the
applicants joined the proceedings as civil parties, seeking
compensation for their destroyed houses and belongings.
- On
17 October 1996 the criminal trial commenced, in conjunction with a
civil action for damages. The Bucharest District Court gave its
judgment on 18 May 1998. It convicted thirteen individuals of
unlawful entry into a person's home and destruction of property and
gave them each a three to six months' suspended prison sentence.
The
District Court awarded the applicants compensation for their houses;
it based its ruling on an expert report of 1994 and rejected the
applicants' request to take the inflation rate into account. It then
halved the amount of the compensation, on the ground of the
mitigating circumstances of provocation. The District Court did not
afford any redress for the movable property, as it considered that
its existence, and subsequent destruction during the incidents, had
not been proven.
- The
appeals lodged by the applicants were rejected and the judgment
upheld, first by the Bucharest County Court on 4 January 1999 and
then by the Bucharest Court of Appeal in a final decision of 27 May
1999.
- The
applicants were referred to as “gypsies” (in Romanian
“ţigani”) on several occasions in the court
decisions above.
THE LAW
- On
8 December 2008 the Court received a declaration from the Government
with a view to resolving the issue raised by the application. The
Government further requested the Court to strike out the application
in accordance with Article 37 of the Convention.
The
declaration provided as follows:
“1. The Government sincerely regret the
circumstances which led to the destruction of the applicants' home
and possessions, which left them living in improper conditions,
rendered difficult 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 Articles 3, 6, 8, 13 and 14 of the Convention and of
Article 1 of Protocol No. 1 to the Convention.
2. I, Mr Răzvan-Horaţiu Radu,
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 applicants the amount of EUR 565,193.75. The
individual awards are set out in the annex to this declaration.
The Government undertake to pay the amount of EUR 5,000
in costs and expenses incurred by the applicants' representative, the
International Human Rights Clinic. This amount shall be paid in euros
into a bank account named by the IHRC.
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,
and 14 of the Convention and Article 1 of Protocol No. 1 to the
Convention are respected in the future.
The Government undertake to adopt the following general
measures:
– enhancing the educational programs
for preventing and fighting discrimination against Roma within the
school curricula in Bolintin Deal, Giurgiu County;
– drawing up programs for public
information and for removing the stereotypes, prejudices and
practices towards the Roma community in the Giurgiu public
institutions competent for the Bolintin Deal community;
– initiating programmes of legal
education together with the members of the Roma communities;
– supporting positive changes in the
public opinion of the Bolintin Deal community concerning Roma, on the
basis of tolerance and the principle of social solidarity;
– stimulating Roma participation in the
economic, social, educational, cultural and political life of the
local community in Giurgiu County, by promoting mutual assistance and
community development projects;
– implementing programs to rehabilitate
housing and the environment in the community;
– identifying, preventing and actively
solving conflicts likely to generate family, community or
inter-ethnic violence.
Furthermore, the Government undertake to prevent similar
problems arising in the future by carrying out adequate and effective
investigations and by adopting social, economic, educational and
political policies in the future to improve the conditions of the
Roma community, in accordance with the existing strategy of the
Government in this respect.
In particular, they shall undertake general measures as
required by the specific needs of the Bolintin Deal community in
order to facilitate the general settlement of the case, also taking
into account the steps which have already been taken with this aim.
4. The Government consider that the
supervision by the Committee of Ministers of the Council of Europe of
the execution of the 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 referral of the case to the Grand Chamber pursuant to
Article 43 § 1 of the Convention after the delivery of the
Court's judgment.”
- The
Government made reference to the progress made, through the United
Nations Development Programme for Romania, in the execution of the
judgments adopted by the Court in previous Romanian cases that raised
similar issues to the present case: Moldovan v. Romania
(nos. 41138/98 and 64320/01, 5 July 2005); Kalanyos and
Others v. Romania (no. 57884/00, 26 April 2007);
and Gergely v. Romania (no. 57885/00, ECHR 2007 ...
(extracts)).
- The
applicants considered that the Government had based the monetary
awards on an inadequate evaluation of their losses and had proposed
insufficient non monetary measures. In particular, they stressed
that in so far as the Government were not willing to redress the
violation of the applicants' property rights, it would be impossible
for the latter to return to the Bolintin Deal community, which, in
turn, would render the general measures proposed by the Government
irrelevant. The applicants further averred that as they continued to
live in appalling conditions, they were unable to benefit from the
existing employment, educational and health programmes. The
Government should, in their view, take substantial and targeted
measures in order to recognise the systemic discrimination and seek
to counteract it.
- The
applicants denounced the Government's alleged attempts, made through
the National Agency for the Roma, to pressure them into accepting a
settlement, which only further degraded the applicants' human
dignity.
- The
Court reiterates that Article 37 of the Convention provides that it
may at any stage of the proceedings decide to strike an application
out of its list of cases where the circumstances lead to one of the
conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the
Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- It
also reiterates that in certain circumstances it may strike out an
application under Article 37 § 1(c) on the basis of a unilateral
declaration by a respondent Government even if the applicant wishes
the examination of the case to be continued.
- To
this end, the Court will examine carefully the Government's
declaration in the light of the principles emerging from its
case-law, in particular Tahsin Acar v. Turkey ([GC],
no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri
v. Moldova ((striking out), no. 53487/99, 1 March
2005); WAZA Spółka z o.o. v. Poland ((dec.) no.
11602/02, 26 June 2007); Kalanyos and Others (cited
above, §§ 34-36); Gergely
(cited above, §
22); and Lazàr v. Romania ((dec.), no. 30159/03,
25
November 2008).
- 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.
Furthermore, the Court accepted unilateral declarations by the
Government in Kalnyos and Others and Gergely, cases
which also raised issues similar to those addressed in Moldovan
and in the present case.
- Moreover,
the Government admitted in their declaration that the facts of this
case constituted violations of Articles 3, 6, 8, 13 and 14 of
the Convention and of Article 1 of Protocol No. 1 to the Convention
and proposed several individual and general measures with a view to
redressing the situation (see paragraph 19 above).
The
general measures proposed are similar to the ones undertaken by the
Government in the Moldovan, Kalnyos and Others and
Gergely cases. The implementation of the measures proposed in
those cases has already started, under the supervision of the
Committee of Ministers.
- The
Court is satisfied that these measures, as reiterated in the
declaration above, 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 has identified in the system
with a view to improving the situation of Roma communities all over
the country. Unlike the applicants, it does not consider that more
specific measures are required at this stage of the proceedings (see
paragraph 18 above).
- 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.
- In
so far as the applicants complain about an alleged unwillingness of
the authorities to secure their property rights and their return to
the village the Court points out that nothing in the case file
indicates that the authorities would hinder the applicants' return to
their village. The Court also notes that some of the applicants have
in fact already sold their lands.
- Lastly,
in the absence of any evidence of threats and intimidation of the
applicants by the Government, it can but acknowledge the efforts of
the authorities to settle the situation at the national level and
takes this as an indication that the Agency for the Roma is taking an
active part in the projects aimed at the Roma communities, in
accordance with its mandate.
- Having
regard to the nature of the admissions contained in the Government's
declaration, as well as 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)).
- In
light of the above considerations, and in particular given the clear
case-law on the topic, 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,
it 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);
2. Decides to strike the case out of
its list of cases;
3. 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 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
Annex to the Government's
unilateral declaration
|
|
Applicant's name
|
Amount (EUR)
|
|
1
|
Vasile TANASE
|
19,848.00
|
|
2
|
Constantin CATALAN
|
21,938.76
|
|
3
|
Victor PAUN
|
22,123.80
|
|
4
|
Ion RUPITA
|
22,782.77
|
|
5
|
Paul CATALAN
|
24,806.78
|
|
6
|
Nicolae ION
|
31,121.46
|
|
7
|
Sidef NICOLAE
|
22,216.31
|
|
8
|
Petre PANCIU
|
31,538.40
|
|
9
|
Stoica RADUCANU
|
25,985.37
|
|
10
|
Emilian NICOLAE
|
21,181.34
|
|
11
|
Calin ION
|
25,985.37
|
|
12
|
Alexandru NICOLAE
|
19,848.00
|
|
13
|
Dumitru CATALAN
|
21,938.76
|
|
14
|
Ion NICOLAE
|
21,291.14
|
|
15
|
Gheorghe STAICU
|
24,339.33
|
|
16
|
Ion ARISTIA
|
21,661.21
|
|
17
|
Stefan CATALAN
|
27,785.99
|
|
18
|
Dumitru BOTONICA
|
19,892.03
|
|
19
|
Claudia FLOREA
|
21,448.58
|
|
20
|
Iarca MITEA
|
24,251.68
|
|
21
|
Grecu CATALAN
|
21,198.63
|
|
22
|
Irina CATALAN
|
23,419.03
|
|
23
|
Tudor ION
|
24,339.33
|
|
24
|
Ioana CONSTANTIN
|
24,251.68
|
|
|
TOTAL
|
565,193.75
|
