Moldovan and Others v. Romania

Application No. 41138/98 and 64320/01; (2007) 44 EHRR 16
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The applicants were 25 Romanian nationals of Roma origin that faced attacks against their property and persons during a riot and the following few days. By the time of the present case, 18 of the applicants had participated in a friendly settlement and only seven remained as parties to this judgment. In September 1993, a bar fight in the village of Hădăreni between three Romas and a non-Roma person resulted in the death of a non-Roma individual. The three Roma individuals fled to a neighbor’s house. Soon after, a large number of villagers sought revenge against the persons involved in the attack and the entire Roma community. In the course of the subsequent riot, the three Roma individuals involved in the incident were killed by the crowd, two by beating and one burned alive in the house where he sought refuge. The villagers then attacked the homes of other Roma individuals, setting fire to the houses, destroying both the homes and personal belongings.  During the riot and in the days following, members of the Roma community were threatened and beaten by the villagers. Testimony later revealed that the local police actively participated in the riot and subsequent assaults by encouraging and assisting the villagers and telling them that they would not face repercussions for destroying the homes of the Roma community.

The Roma residents filed a criminal complaint because of the riot. The presence of police officers gave jurisdiction to a military prosecutors’ office, but the office ultimately refused to investigate. Eventually 11 civilians were indicted on criminal charges with accompanying civil claims. Overwhelming evidence of police involvement came out during the criminal trial. However, the police were never indicted. In June of 1998, the court severed the criminal and civil cases.

The criminal case found the civilians guilty for destroying property, outraging public decency and disturbing public order. Five of the civilians were found guilty of extremely serious murder. Prison sentences were issued ranging from one to seven years. In the decision, the court noted that the Roma community had marginalized themselves and had often committed crimes against others in the village. The Public Prosecutors’ Office appealed the decision, seeking harsher sentencing, but with mixed results.

The judgment in the civil came in 2003, after procedural errors nullified an earlier judgment. Although it did award a small amount of compensation to the applicants for the damage to the houses, the court refused to grant non-pecuniary damages and pecuniary damages for personal belongings. The applicants had not substantiated their claim for non-pecuniary damages, and the court found “that the crimes committed were not of a nature to produce moral damage.” The justification for denying relief regarding personal belongings was that there was insufficient evidence to show what personal belongings each applicant owned as the applicants had not registered as taxpayers, which would corroborate the extent of their personal belongings.

The Romanian Government did allocate funds to local officials for assisting in the rebuilding of the homes, but as of the time of the case, six houses still had not been rebuilt. And those that had been rebuilt were of suspect quality and largely uninhabitable. Evidence showed that the residents without housing lived in very poor and cramped conditions, which frequently caused illness to the residents.

The applicants alleged that the events of the riot, the failure to investigate the involvement of the state authorities, and the discriminatory discussion of Roma persons in subsequent court decisions violated their rights under Articles 3, 6, 8 and 14 of the Convention.

The Court held that the events in the case constituted violations of Article 8 (right to respect for family life and the home), Article 3 (prohibition of inhuman and degrading treatment), Article 6 (right to a fair trial) in respect of the length of the proceedings, and Article 14 (prohibition of discrimination). The Court held there was not a violation of Article 6 with regards to the denial of access to a court. It was noted that the acts of the riot itself occurred before Romania ratified the Convention and therefore the decision of the Court is based on the subsequent action, or inaction, of the State.

With regards to Article 8, the Court held that the hindrances or failures to act carried out by the authorities amounted to a violation of the right to respect for private and family life and the home. The Court highlighted as inappropriate of the authorities the prosecutors’ office not investigating the police, the lack of relief for pecuniary damages for belongings and non-pecuniary damages, discriminatory remarks by authorities, the unbuilt homes and the provision of less than statutory minimum maintenance allowance for a minor child.

With regards to Article 3, the Court held that, in light of the violation of Article 8, the State’s actions amounted to degrading treatment in violation of Article 3. The Court found that the long duration in sup-par living conditions and frequent ill-health of the applicants caused considerable mental suffering. This was aggravated to a level that constitutes interference of human dignity by the racially discriminatory comments in judicial opinions regarding the dishonesty and unethical way of life of the Roma population.

With regards to Article 6, the Court held that there was a violation based on the unreasonable length of the proceedings, but not based on the denial of access to the courts. There was access to the courts as there was a criminal and civil proceeding against the civilians, even if there was no proceeding against the police. The period of seven years between when the criminal and civil cases were severed and when the civil court delivered its second judgment was unreasonable as the delays were caused by various errors of the domestic courts.

With regards to Article 14, the Court held that there was a violation when taken in conjunction with Articles 6 and 8. This decision was based on observations that the length and result of domestic proceedings, repeated discriminatory remarks and rejection for non-pecuniary and some pecuniary damages occurred because of applicants’ Roma ethnicity.

“110. It [the Court] furthermore considers that 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, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.”

“111. In addition, the remarks concerning the applicants' honesty and way of life made by some authorities dealing with the applicants' grievances … appear to be, in the absence of any substantiation on behalf of those authorities, purely discriminatory. In this connection the Court reiterates that discrimination based on race can of itself amount to degrading treatment within the meaning of Article 3 of the Convention ….”

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