Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants, whose names and dates of birth are listed in the annex to this decision (“the applicants”), are seventy-six Romanian nationals of Roma ethnic origin who live or used to live in Tulcea. They were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Budapest.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

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

The applicants are or used to be residents of the town of Tulcea. They are of Roma ethnic origin.

Before July 1999 many of the applicants had lived in an informal Roma slum located in central Tulcea. In July 1999 their homes were destroyed by an accidental fire and they were rendered homeless. Afterwards they were forced to live outdoors in unsafe conditions and did not receive any assistance from the authorities.

In December 1999 the applicants moved, with the local authorities’ permission, into an unoccupied building in Tulcea that had belonged to a State-owned factory.

For years the applicants and other people continued to live in that building even though the living conditions were poor and overcrowded. Despite not having a lawful right to occupy the building, the applicants’ presence there was tolerated and they paid charges for water and electricity.

According to the applicants, they asked the local authorities on numerous occasions to assist them with regularising their status but their requests remained unsuccessful.

The applicants were temporarily evicted from the building for the first time in 2005 following a court order. After the eviction order was overturned, they returned to the building and continued to live there.

On an unspecified date the building was sold by its former owner to a private investor, namely the company E.V. Prior to selling the building, the former owner had allegedly attempted to donate the building to the local authorities, but his offer was refused by them.

On 29 July 2004 Tulcea Local Council adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. The decision concerned social housing located in the city.

On 30 September 2004 Tulcea Local Council again adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. This decision concerned social housing located on a particular street.

On 25 January 2006 the company E.V. brought eviction proceedings against some of the occupants of the building, namely the third, ninth, tenth, fifteenth, sixteenth, twenty-first, twenty-third, twenty-fifth, twenty-ninth, forty, forty-first, forty-seventh, sixty-second, sixty-seventh, seventy-first and seventy-second applicants. The remaining the applicants were not parties to the eviction proceedings.

By a judgment of 27 March 2006 the Tulcea District Court allowed the company’s action for eviction. It held that the company was the lawful owner of the building and had a right to enjoy its use. The occupants had no lawful right to occupy the building and therefore had to vacate it. The judgment was upheld by the Tulcea County Court on 17 August 2006 and by the final judgment of the Constanța Court of Appeal on 19 January 2007.

On an unspecified date the applicants who were parties to the eviction proceedings contested the eviction order issued against them on the basis of the judgment of 27 March 2006.

By a judgment of 24 October 2006 the Tulcea District Court dismissed the proceedings seeking to contest the eviction order on the grounds that the said order was lawful. There is no evidence in the file that any of the applicants appealed against the judgment.

In October 2006 the occupants of the building, including all the applicants, were evicted. Among the applicants there were children, elderly and less able people.

The only shelter option offered to the applicants by the local authorities was a former army barracks building that had been disused since the 1970s located four kilometres outside Tulcea and known as “Pichet”. The aforementioned building was in an advanced state of disrepair and had been transferred to the local authorities in May 2006 in order to be converted into social housing. The area around the building was heavily industrialised and there were no other residential buildings in the same location. A large number of the applicants moved into the building, while the remaining applicants had to live on the street for two months. In December 2006 those of the applicants who remained homeless after the eviction accepted the local authorities’ offer, as a temporary solution, to move into mobile homes that were placed on a former rubbish dump.

According to the applicants, when they moved to “Pichet” they found that the building was not connected to electricity, mains water or sewage facilities. The building had no doors or windows, no heating, a broken roof and damp and damaged walls. It was also infested by rats. The toilet facilities were communal and out of order and rubbish collection was rare. The available water supply had a visible heavy sediment and caused recurring stomach problems. Trucks unloaded bauxite and gravel directly behind the building. The trucks made a lot of noise and raised large quantities of dust which caused breathing difficulties. The noise caused by the nearby shipyard also affected the applicants’ psychological well-being.

According to the applicants, they lived in overcrowded conditions because each family was assigned only one room and therefore up to seven people had to share it. Some of them had to abandon their jobs or found it increasingly difficult to find employment and the children were no longer able to attend school or kindergarten because of the travelling distance into Tulcea and the infrequent and unreliable public transport. Some of the children were too small to return home from school on foot unaccompanied by an adult. Others had been harassed or abused by drivers or other individuals when they returned home from school after dark.

According to the applicants, the mobile homes that were placed on the former rubbish dump were not meant to serve as long-term habitation, especially during extreme weather conditions. They deteriorated quickly and had to be repaired repeatedly by the authorities. Although they were connected to electricity, they were not connected to running water or sewage facilities. They had no heating system, were poorly ventilated and damp, and were very cold in the winter and very warm in the summer.

The rubbish dump had been closed down in 2006 and the land had not been properly decontaminated before the mobile homes were placed on it.

In press statements published in the local newspapers Obiectiv and Tulcea Express on 14 May 2005, 26 October 2006 and on an unspecified date during their eviction in 2006, the mayor of Tulcea stated in respect of the applicants’ situation that: “... morally there could be a duty, but as mayor I have a duty towards law-abiding citizens, a duty towards the citizens who respect the community, a duty towards families with children who are gainfully employed. Some of them are living there without any papers to prove that they are citizens of Tulcea”. Also: “...Some citizens accused me of racism and some of positive discrimination. I did not set out to become the king of the gypsies in this town, because this is not why I have been elected. I have done a lot to meet the problems of this social category, but now it’s enough...”. And: “We are doing everything possible to provide them with some comfort at “Pichet”, where sixteen families have been relocated. For the rest other options were found. We have no houses available. Where would they like me to find a living space for them, at kilometre zero? Perhaps close to the market? Those who are not from Tulcea can go back to where they came from”.

In a press statement published on 17 October 2006 in the local newspaper Obiectiv the Tulcea Prefect stated that “We are looking at an option with mobile homes, but I would like to say that many of the Roma faced with these problems have created them themselves. Many of them sold their homes and afterwards asked the Mayor’s Office for new ones. Of course, the Roma are confronted with many problems, but they are not frequent visitors of the jobs markets. Be that as it may, many non-Roma are in a similar situation to that of the Roma population and have no homes, but they do not knock at the Prefect Office’s door; they try to rent, to work and so on. I think that your organisation should also be more involved this way and educate them to work”.

On 12 March 2007 the sixth, fifteenth, seventeenth, twenty-first, forty-first, forty-seventh, fifty-fourth, sixty-first, sixty-seventh, seventy-first and seventy-second applicants, all of whom were living in the “Pichet” building, brought proceedings against Tulcea Local Council to obtain an injunction ordering the local authorities to carry out the urgent maintenance work needed on their building.

By a final judgment of 1 October 2008 the Constanţa Court of Appeal allowed the action brought by the applicants. It held that Tulcea Local Council had signed lease contracts for the building with the applicants. Therefore, as a lessor, according to the relevant domestic legislation and the provisions of the lease contracts, it had an obligation to provide adequate living conditions, and to repair the building and keep it safe for the entire duration of the contract. However, according to the available testimonies at the time, the housing conditions had been unfit for habitation and the building had been in a poor state when the applicants moved into it. In March 2007 the building had still not been connected to the town’s electricity grid and the sewage system was never fully functional. The building materials brought on site by Tulcea Local Council after the applicants moved there did not constitute fulfilment by the lessor of its obligations to repair the building because the quantity of materials was too small to ensure the complete repair of the building.

The argument that the building’s problems were caused by some of the tenants themselves was not supported by any proof. In addition, the argument that the applicants failed to pay rent for long periods of time was irrelevant for the case, since the lessor could not use that argument to justify a breach of his contractual duty to maintain the building. Consequently, the court ordered Tulcea Local Council to repair the building and maintain it and the communal areas at an acceptable standard for the entire duration of the lease contract.

On 24 August 2007 sixty-eight of the applicants living both at “Pichet” and in the mobile homes – all except the third, eleventh, twelfth, twenty-fourth, forty-sixth, forty-seventh, fortyeighth, and forty-ninth applicants – and other people brought a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code against Tulcea Local Council and the Tulcea mayor’s office seeking 245,000 Romanian lei (RON) (3,500 for each individual) (approximately 75,400 euros (EUR) (780 for each individual)) by way of compensation in respect of non-pecuniary damage sustained as a result of having their access to education restricted, the inadequacy of the living conditions in the social housing, and the interference with their health and social personality as a result of the inaction of the local authorities.

By a judgment of 20 October 2010 the Tulcea District Court dismissed the sixty-eight applicants’ action. It held that the applicants had not suffered any damage and therefore at least one of the conditions required for a general tort law action had not been met. The local authorities had taken steps to provide the applicants with suitable living conditions, even though they had failed to pay their outstanding taxes. Although the applicants had not paid their rent, the local authorities had not used the contract clause allowing them to terminate the lease contracts after the applicants’ failure to pay rent for three successive months. The means to help the disadvantaged were provided for by law. The responsibilities of Tulcea Local Council and the Tulcea mayor’s office did not include the duty to secure the necessary conditions in social housing belonging to persons of Roma ethnicity or their health.

The applicants appealed against the judgment. They did not submit reasons for their appeal but argued that the objectivity of the social investigation reports produced during the proceedings was doubtful because they were carried out by Tulcea Local Council employees. In addition, the social investigation reports had not reflected their living conditions as they had avoided providing details about the available utilities, furniture and living conditions by using the expression “equipped with the bare necessities”.

By a judgment of 14 December 2012 Tulcea County Court dismissed the applicants’ appeal and upheld the judgment of the firstinstance court. It noted that the applicants had failed to provide reasons supporting their appeal and had submitted only objections in respect of the social investigation reports. It held that according to the relevant domestic legislation the local authorities had to assign social housing to various categories of people in an order of priority set out by law. Consequently, homeless Roma could be assigned social housing only if the order of priority set out by law had been observed and if they met the monthly income criterion provided for by law. Therefore, the local authorities could not be forced to satisfy the social housing needs of all the applicants as long as such housing had to be assigned on a priority basis to other categories of people expressly provided for by law. The applicants’ needs could be met afterwards, if and when social housing became available.

The court further held that, even though the applicants had failed to pay their dues towards the State budget, some of them had nonetheless been provided with social housing. Consequently, the local authorities had already taken steps to ensure they had suitable living conditions.

As far as the applicants’ living conditions were concerned, the court noted that there was no evidence that the social housing was not connected to electricity or heating facilities, and this could also have been a consequence of the applicants’ failure to pay their monthly invoices. Moreover, the responsibilities of the local authorities did not include the duty to ensure adequate conditions in social housing belonging to persons of Roma ethnicity.

In respect of the applicants’ health, the court held that it was not proven that the alleged failure of the local authorities to fulfil their duties had caused the applicants’ state of health to deteriorate.

Finally, the court also noted that it had not been proven that the local authorities’ action – namely providing only some of the applicants with social housing based on availability – had restricted their access to education.

The applicants lodged an appeal on points of law against the judgment. They argued that according to the relevant domestic legislation the local authorities were responsible for assigning social housing for renting to disadvantaged persons, a category to which the applicants belonged. The authorities had a statutory responsibility to ensure decent living conditions for Tulcea’s citizens but they had failed to fulfil their duty by housing the applicants indefinitely in accommodation which was not connected to basic utilities. The absence of decent accommodation for Tulcea’s Roma was one cause of the applicants’ abandonment of school attendance and of their exclusion from the employment market. In these circumstances, the failure of the local authorities to fulfil their statutory obligations rendered them responsible for the non-pecuniary damage suffered by the applicants, estimated at RON 3,500 (approximately EUR 780) for each individual.

By a final judgment of 26 March 2014 the Constanța Court of Appeal allowed the applicants’ appeal on points of law in part, quashed the second instance court’s judgment, annulled the action lodged by the seventeenth applicant on account of her death and awarded each of the remaining applicants RON 2,000 (approximately EUR 450) in respect of non-pecuniary damage. It noted that the parties had submitted the final judgment of 1 October 2008 to it and that the seventeenth applicant had died on 28 February 2013 and that no relatives had accepted her inheritance. Moreover, it stressed that the object of the applicants’ action was strictly limited to the non-pecuniary damage claim of RON 3,500 for each individual in the light of having their access to education restricted, being provided with social housing offering inadequate living conditions, and the interference with their health and social personality resulting from the inaction of the local authorities. The applicants had not asked the court to examine the conditions in which their eviction in October 2006 had taken place. The aforementioned issue had been the object of another set of proceedings which were terminated by the final judgment of 18 May 2009.

The court held that the local authorities’ failure to fulfil all their statutory duties and ensure adequate living conditions for the applicants in the housing rented to them after their eviction in October 2006 amounted to a breach of their right to private and family life and home guaranteed by Article 8 of the Convention. It noted that, contrary to the applicants’ submissions, the local authorities’ decision to assign and rent homes to the applicants at “Pichet” had not been aimed at segregating the Roma families. Because winter was approaching when the applicants were evicted, the local authorities had actually been trying to urgently secure shelter for seventeen of the evicted families and their small children. According to Tulcea Local Council, the lack of social housing was endemic nationwide and particularly in Tulcea, where only ten social cases were solved yearly out of the two thousand five hundred pending requests for social housing.

As regards the “Pichet” building, the court held that, according to the available evidence, the building was functional and had offered adequate conditions for housing on the date when it was leased to the applicants. In particular, the building was connected to electricity, was fitted with stoves for heating, and running water was available from a tap located in the courtyard. In addition, on the date the applicants took over the building the local authorities provided the applicants’ representative, namely the ninth applicant, with some building materials in order to be able to carry out some maintenance work that was needed. However, according to the relevant domestic legislation it was not sufficient for a lessor to provide those who signed a lease contract with a functional building. The lessor had to provide during the entire period of the lease contract a building which was safe to use and which had functioning utililities. In the instant case, during the term of the lease contract the communal water, electric and sewage facilities were damaged.

Although the tenants reported the problems to the authorities, they had remained inactive and had failed to carry out repairs and the building had become unfit for habitation and a health hazard for the tenants. Although the Constanța Court of Appeal established on 1 October 2008 that the local authorities had failed to repair and maintain the building for the entire duration of the lease contract, and had ordered them to do so, the authorities had not demonstrated that they had complied with that judgment. Moreover, according to the available evidence, the building had become even more dilapidated and unfit for habitation. The fact that the building’s problems were caused by some of the tenants themselves could not exonerate the authorities or explain their inaction. The relevant domestic legislation provided for sanctions against tenants who damage a building, namely the cancellation of their lease contract. However, the local authorities had failed to take any punitive measures against those tenants. At the same time they had also failed to repair the building, thus creating an unsuitable living environment even for those tenants who had maintained their homes and had not damaged the building.

In respect of the mobile homes located on the former rubbish dump, the court held that they had represented an effective temporary solution for the applicants’ problems. However, given that the applicants have had to continue living there, the homes in question and their location amounted to a breach of the applicants’ right to enjoy their home in a healthy environment as guaranteed by Article 8 of the Convention. The mobile homes assigned to seven families were placed on a former rubbish dump, without any preliminary operation to decontaminate the soil or have the level of soil pollution measured by a specialist agency. The local authorities were responsible for taking measures to locate the mobile homes in an area of the city that would be appropriate for the applicants’ needs and would safeguard their right to a healthy environment. However, they had failed to fulfil their positive obligations under Article 8 of the Convention and to inform the applicants that the land in question had been used as a rubbish dump prior to 2006 and that their health and quality of life might be adversely affected by pollution. The failure of the local authorities to fulfil their duties and their passivity after 2006 also amounted to a breach of the applicants’ right to a home as guaranteed by Article 8 of the Convention.

Consequently, given the applicants’ living conditions, namely the overcrowded and unhealthy environment, and its effect on the applicants’ state of health throughout the long period of time they had to live under those conditions, combined with the general attitude of the authorities, the civil liability of the authorities could be engaged since the nature of the applicants’ living conditions had a negative impact on human dignity and the applicants’ right to private life and to a home.

In respect of the applicants’ claims that the local authorities had interfered with and restricted the applicants’ children’s right to education by renting them social housing located on the city’s outskirts, the court held that the local authorities were responsible for the applicants’ children’s inability to attend school regularly and liable for the damage thereby caused.

It noted that, according to the available evidence, the applicants’ children’s schools were located between three and three and a half kilometres from their homes. The absence of frequent public transport on those routes made travelling to school difficult and encouraged the abandonment of school attendance, particularly during adverse weather conditions. From 2006 to October 2008 there was no public transport connecting the “Pichet” building to the city centre and the form of transport referred to was introduced only after that date. In this context it pointed out that according to the case-law of the European Court of Human Rights (“the Court”), in cases where a general measure has a disproportionately prejudicial effect on a particular group of people, that measure could be deemed to be discriminatory even though it had not targeted that group of people. Consequently, even though the authorities’ cancellation of public transport in the area did not directly target the Roma and pursued a legitimate aim – namely to make public transport financially efficient – its effect did not strike a fair balance between the public interest and that of the applicants. By relying on the principles set out in the Court’s case-law concerning non-discrimination against people of Roma ethnicity and their right to education, the court concluded that the local authorities had indirectly breached the applicants’ children’s right to education by failing to discharge their duty of organising adequate public transport in the city.

In respect of the applicants’ claims that their health was affected, the court noted that they enjoyed free medical assistance without any discrimination or bias. However, it considered that, based on the available testimonial evidence, the authorities’ passivity in respect of the applicants’ inadequate living conditions, the lack of hygiene in the rented housing and the polluted environment had affected the applicants’ health.

Finally, in determining the non-pecuniary compensation to which the applicants were entitled (see paragraph 37 above), the court took into account the applicants’ individual situations, the fact that some of the applicants had failed to fulfill all their contractual obligations, that they had refused to comply with their lawful duty to participate in routine cleaning of the premises, and that some of their actions had contributed to the deterioration of their homes.

On 3 October 2007 the Romanian Helsinki Committee lodged civil claims in anti-discrimination proceedings against Tulcea Local Council, relying on Article 27 § 1 of Government Ordinance No. 137/2000 on combating and punishing all forms of discrimination. The action did not name any of the applicants or any of the victims of the measures taken by the authorities. The Romanian Helsinki Committee asked the court to acknowledge that the relocation of Roma families in a building deemed unfit for human habitation outside the town and in mobile homes on a former rubbish dump breached the domestic legislation on antidiscrimination, as did the criterion set by the local authorities requiring a certain level of education for awarding social housing. In addition, the Romanian Helsinki Committee asked the court to order Tulcea Local Council to pay RON 350,000 (approximately EUR 103,860) to the victims of the discrimination, and to restore the previous situation, or to remedy the situation caused by the discrimination.

The Committee argued, amongst other things, that part of the evidence used to prove that the Tulcea local authorities’ decision-making process had been influenced by their preconceptions about Roma was the racist language used by them in the press to describe the applicants on account of their ethnicity (see paragraphs 23 and 24 above). Moreover, the local authorities had moved the families in question to remote locations, into a polluted area and on a former rubbish dump, had segregated them, had created physical obstacles for them which prevented them from accessing regular public services, had restricted their children’s rights to education and had refused to fulfil their contractual and legal obligations. Furthermore, without any reasonable justification, Tulcea Local Council had added the criterion of higher education as a decisive condition for accessing social housing, even though the relevant domestic legislation did not impose this criterion as a requirement and it had been statistically proven that people of Roma ethnicity are less well educated than those of other ethnicities.

By a judgment of 20 May 2008 the Tulcea District Court dismissed the action brought by the Romanian Helsinki Committee. It noted that following its request, the National Council for Combating Discrimination had submitted its opinion on the case. The court held that the actions of the local authorities had been motivated not by racial discrimination but by the lack of social housing affecting both the Roma and the non-Roma population. Moreover, the allegedly offensive statements made by representatives of the local authorities were not discriminatory, because the domestic anti-discrimination legislation could not restrict freedom of speech, or the freedom to hold an opinion, or to impart information. According to press articles submitted by the Romanian Helsinki Committee, the representatives of the local authorities had stated the reason for the Roma families’ move to the impugned locations, namely the lack of any other social housing, not their ethnicity.

Furthermore, the criteria set by the local authorities for allocating social housing (see paragraphs 11 and 12 above) could not be considered discriminatory because in the court’s opinion it would be unconceivable that any one social group would have a better claim to social housing than another social group simply because the latter’s members were not educated, or that the interpretation of the legal provisions would generate positive discrimination. The local authorities were free to set certain criteria for awarding social housing and they could not be held responsible for the fact that Roma are less educated than the rest of the population. The local authorities had a duty to safeguard the rights and well-being of all the members of the community and the relocation of the Roma families to the area they favoured would have created a situation of conflict in that area that the authorities were duty-bound to avoid. The court furthermore considered that the Romanian Helsinki Committee’s claims for compensation, or to remedy the problems caused by the discrimination, were unfounded because the authorities had not committed acts of discrimination and the question of whether or not the housing assigned to the families in question was fit for habitation was not an issue of discrimination and could be remedied through a general law action. At the same time, restoring the previous situation would have contravened a final court judgment which was res judicata and ordered their eviction.

The Romanian Helsinki Committee appealed against the judgment and asked the appeal court to quash the first-instance court’s judgment and to allow its action the way it was formulated. It argued, inter alia, that the first-instance court had misapplied the relevant anti-discrimination legal provisions and had failed to reverse the burden of proof as required by law, even though they had proven by statistical data that the relocated families had been discriminated against. In addition, it claimed that the court had failed to examine evidence held on file such as the discriminatory statements made by the local authorities, had founded its judgment on inexistent evidence, had relied on the principle of free speech as an argument for dismissing the claims – even though free speech does not excuse discriminatory statements – had ignored the fact that of the people who had claimed social housing, it was only those with Roma ethnicity who had been assigned housing in the impugned locations, had relied on the argument that there was no social housing available in Tulcea without seeking evidence to substantiate this, and had not examined the question of whether the victims’ relocation and living conditions were discriminatory. The court had also failed to understand the argument concerning the higher education criterion, given that the organisation had contested not its actual existence, but rather the importance assigned to it for the purposes of awarding social housing. The local authorities had not shown any objective justification for assigning great importance to that condition.

By a judgment of 15 October 2008 the Tulcea County Court dismissed the appeal. It held that the relocation of the Roma families had not been motivated by racial discrimination as the decision for relocation had been taken on the basis of regulations provided for by law. Nor had the domestic authorities treated the Roma families differently from other families in a similar situation. In addition, the local authorities’ public statements had not been discriminatory and, as they did not play a decisive role in assigning housing to Roma families, were irrelevant. The Roma families had been provided with housing on the basis of clearly established criteria set out in decisions that had not been contested. The available evidence had not demonstrated fulfilment of the cumulative conditions required for an act to amount to discrimination within the meaning of the relevant domestic legislation.

The Romanian Helsinki Committee appealed on points of law against the judgment and asked the appeal court to quash the secondinstance court’s judgment and to allow its action the way it was formulated. It argued that the second-instance court had failed to provide reasons for its decision and to fully examine the claims concerning the relocation to polluted areas, and had omitted altogether to examine the arguments about the higher education criterion. The lower court, meanwhile, had failed to explain the basis for its statement that Roma families had not been treated differently from other families in a similar situation. Moreover, the court had shifted the burden of proof in respect of the discrimination claim to the plaintiff, whereas it was for the authorities to show that there had been no discrimination. The court’s argument that the Roma families had been provided with houses on the basis of clearly established criteria set out in decisions was irrelevant as it did not mean that the criteria in question were not discriminatory. In addition, the appellate court’s reasoning simply ignored the racist and discriminatory nature of the public officials’ statements, even though the same public officials were the ones who had ordered the relocation of the Roma families outside the city and on a former rubbish dump.

By a final judgment of 18 May 2009 (available on 3 July 2009) the Constanţa Court of Appeal dismissed the appeal on points of law. It held that if the interest in taking part in the proceedings lay in the purpose for which the non-governmental organisation was founded − namely, the protection of the rights of the persons in respect of whom the existence of the alleged discrimination was invoked − in the instant case the available evidence, including the succession of events as narrated by the media, did not confirm the existence of different treatment in a similar situation. The minutes of Tulcea Local Council’s meeting of 25 January 2007 and the press articles provided evidence of the efforts of the local authorities to remedy the problems caused by the eviction.

The local authorities had repeatedly attempted to delay the eviction pending the preparation of other housing solutions, and had succeeded in doing so. It was uncontested that after the eviction housing solutions had been found for all the families either at “Pichet” or in mobile homes. It had also been proved that the local authorities had constantly tried to remedy the particular housing problems of individual families by granting them social housing and by overruling the opposition of some of the members of the community to certain families’ being granted priority treatment. In this context the court noted the statements made by the mayor and by another representative of the local authorities in respect of the Amarioarei and Stanga families’ situation after their eviction. The Romanian Helsinki Committee’s arguments that the relocation of most of the families to “Pichet” amounted to segregation was therefore contradicted, since that had been the only housing option identified at the time of the eviction and there was no proof that alternative options had existed.

Also, the local authorities had tried to remedy the victims’ social problems, even though it was not denied that some of them had owned homes which they had sold after moving into the unoccupied building in Tulcea, which had previously belonged to a State-owned factory. In addition, the area where the “Pichet” building was located was connected to the town by public transport even though the bus service was infrequent. Travelling into the city was therefore possible, whereas by contrast it was a well-known fact that there were inhabited areas of the country which were not served by any transport connection at all, not even for children attending school. Furthermore, according to press reports about the investigation carried out by the Tulcea Environmental Agency, the area where the “Pichet” building was located did not constitute a health hazard for humans. What is more, after some of the families moved to “Pichet”, their homes had been connected to electricity.

As regards the mobile homes located on the former rubbish dump, the court considered that the lower courts had correctly dismissed the discrimination argument. In this connection it noted that – according to the press reports – the homes in question had initially been set up on a concrete platform at a separate location but were later moved at the request of the Roma families’ representatives in order to have access to water and sewage facilities. Subsequently, they were connected to the town’s electric grid.

Moreover, the Romanian Helsinki Committee had failed to prove the alleged stereotypical and offensive statements made by local officials about the Roma community, and the authorities’ action argued against the existence of a discriminatory stance based on ethnicity. Furthermore, leaving aside the fact that the Romanian Helsinki Committee had assumed without proof that members of the Roma community were less well educated, the education criterion set by the local authorities for allocating social housing had concerned social housing located on a particular street and it had not been proved that it was a rule applied in a ‘blanket’ manner when allocating all social housing in the city, or that it was relevant on the date of the eviction, or that it was a real obstacle for the members of the Roma community to enforce their rights as long as it was established that there were no other options available for shelter at the time. Also, the criterion had been imposed by a Tulcea Local Council decision dating back to 2004 (see paragraphs 11 and 12 above) that had not been challenged by the victims before the domestic courts. In addition, the relevant domestic legislation allowed local authorities to determine the criteria for awarding social housing.

On 27 July 2005 Tulcea Local Council informed the Tulcea prefect’s office that they could not agree to the relocation of some of the applicants on a certain street in the town since the local inhabitants objected to their return there because of past conflicts.

On 2 November 2006 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office, among other things, that they intended to provide transport services in the area of the “Pichet” building from 3 November 2006.

On 2 April 2008 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office that the buses serving the “Pichet” area had been discontinued since 15 October 2007 because nobody was using them. Two buses continued to serve the nearby industrial zone and their number could be increased on condition that the people living in the “Pichet” area bought monthly transport passes in advance.

On 15 April, 9 May, 24 July, and 1, 9 and 24 September 2008 the Tulcea prefect’s office informed the mayor of Tulcea that following individual complaints lodged by the applicants and non-governmental organisations and from inspections carried out at the “Pichet” building and in the mobile homes located on the rubbish dump by representatives of the Tulcea County Agency for Roma, the Tulcea Public Health Agency and the Tulcea Agency for Emergency Situations, it was apparent that the applicants’ homes were poorly maintained and infested by rodents, that the sewage system was either non-existent or not working, the sanitary facilities were not working, there was no access to water, the domestic refuse had not been collected for a long time and was being stored in a pit in front of the building, and maintenance work was urgently required. Consequently, it asked the mayor’s office to remedy the situation.

On 22 April 2008 the Tulcea schools inspectorate informed the Tulcea prefect’s office that they did not have the legal framework or the requisite funding to exempt children living in the “Pichet” area who wanted to attend school from paying for transport passes. They further submitted that pupils generally benefited from the statutory discount of 50% for transport passes.

On 24 April 2008 the Tulcea schools inspectorate asked the Tulcea mayor’s office and the schools attended by the children living in “Pichet” to get in contact each other and to examine the possibility of the aforementioned children being exempted from paying for public transport.

On 5 May 2008 and 22 October 2010 two of the schools that had enrolled some of the children living at “Pichet” sent to the local public transport company under the direction of the mayor’s office a list of names of the aforementioned children together with information stating when their classes started and ended.

On 3 June and 4 July 2008, respectively, the Tulcea prefect’s office and Tulcea Local Council informed each other and an applicant that a source of water had been installed in the vicinity of the mobile homes located on the rubbish dump and that some of the sanitary facilities of the “Pichet” building had been repaired, but they continued to break down as a result of improper use.

On 24 September 2008 the Tulcea prefect’s office informed the Tulcea Public Transport Company under the direction of Tulcea Local Council that according to information received from the inhabitants in the area, all the buses connecting the “Pichet” building and the nearby industrialised area with the town had been cancelled, with the result that many of the children living there could not travel to school any more and therefore abandonment of school attendance was increasing. It also asked Tulcea Local Council to reinstate the bus routes serving the area in question.

Between 15 September and 5 December 2006 the applicants signed lease contracts with Tulcea Local Council for rooms in the “Pichet” building or for mobile homes located on the former rubbish dump. According to the aforementioned contracts the twenty-third applicant was living together with the fiftieth, fifty-first and fifty-second applicants in a mobile home located on the rubbish dump. The fifteenth applicant was living together with the thirteenth, fourteenth, forty-third and forty-fourth applicants at “Pichet”. The twenty-fourth applicant was living together with the eleventh and the sixtyninth applicants in a mobile home located on the rubbish dump. The sixty-third applicant was living together with the twenty-eighth, twentyninth, sixty-fourth and sixty-sixth applicants at “Pichet”. The fortyfirst applicant was living together with the thirty-seventh, forty-second and seventy-sixth applicants at “Pichet”. The forty-seventh applicant was living together with the forty-sixth, forty-eighth and forty-ninth applicants at “Pichet”. The fifty-fourth applicant was living together with the thirtyeighth, thirty-ninth, fortieth, fifty-third and fifty-fifth applicants at “Pichet”. The sixty-first applicant was living together with the twenty-sixth, fifty-eighth, sixty-second, sixty-fifth and seventy-fifth applicants at “Pichet”. The sixteenth applicant was living together with the twentyseventh, fiftysixth and fifty-seventh applicants in a mobile home located on the rubbish dump. The third applicant was living together with the second and twelfth applicants in a mobile home located on the rubbish dump. The thirty-fifth applicant was living together with the thirty-third, thirty-fourth and thirty-sixth applicants in a mobile home located on the rubbish dump. The twenty-fifth applicant was living alone in a mobile home located on the rubbish dump. The seventeenth applicant was living together with the tenth applicant at “Pichet”. The seventy-first applicant was living together with the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants at “Pichet”. The twenty-first applicant was living together with the twentysecond, thirtieth, thirty-first, thirty-second, seventy-third and seventy-fourth applicants at “Pichet”. The forty-fifth applicant was living together with the fifty-ninth and the sixtieth applicants at “Pichet”. The sixth applicant was living together with the fourth, fifth, seventh and ninth applicants at “Pichet”.

According to social investigation reports produced by Tulcea Local Council on 28 January 2009, the twenty-second applicant was living at “Pichet” together with the twenty-first applicant and six months earlier the eighth applicant had moved in with the ninth applicant at “Pichet” from a different address in the city. The seventy-fourth applicant had moved to a different town and the forty-second applicant had moved to a different address in the city. Meanwhile, the fifty-fourth applicant had broken up with the fortieth applicant in December 2007 and had not been in touch since then.

On 19 May 2010, on their application form, the applicants informed the Court that they had mounted legal challenges against their evictions of 2005 and 2006. They also stated that, whilst important by way of background, those legal challenges did not form the focus of the application.

On 16 September 2011 the sixty-fifth applicant signed a lease contract with Tulcea Local Council for a home located at a different address in the city, neither at “Pichet” nor at the former rubbish dump.

In December 2012 the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in October 2008 by the Tulcea Social Protection and Assistance Agency, the applicants’ relatives and neighbours had informed the social investigators that the seventy-first applicant had moved to Spain a month earlier together with her children, the thirty-sixth applicant was living with her mother at a different address in the city, and the forty-sixth, forty-eighth and seventyfifth applicants were living at a different address in the city.

On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in February 2009 by the Tulcea Social Protection and Assistance Agency, the twenty-seventh and fifty-seventh applicants were living in mobile homes located on the former rubbish dump. Also, according to statements from the applicants’ relatives and neighbours, the fifty-sixth applicant had moved to another city in January 2009 in order to live with her partner; the thirty-sixth applicant was living with her mother at a different address in the city; the twenty-second applicant was living elsewhere with his mother; the seventyfirst applicant had moved to Spain together with her children, namely the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants; the seventy-fifth, the forty-sixth and forty-eighth applicants were living at a different address in the city; the sixty-seventh and sixty-eighth applicants were living at “Pichet”; and the fifty-second applicant was living in another town.

On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in December 2012 by the Tulcea Social Protection and Assistance Agency, the nineteenth, twentieth, twenty-seventh, fifty-sixth, fifty-seventh, sixty-seventh, sixty-eighth, seventieth, seventy-first and seventy-second applicants were no longer living at “Pichet” or in the mobile homes located on the former rubbish dumps. Also, according to statements from the applicants’ relatives and neighbours, the twenty-second applicant had moved and was renting an apartment at a different address in the city; the seventy-fifth applicant had been held in detention since 2010; the forty-second applicant had returned to “Pichet” in June 2012, having previously lived at a different address in the city where she had moved sometime after December 2006; the fortieth applicant was in detention; the forty-sixth and forty-eighth applicants were living at a different address in the city; the thirty-sixth applicant was living elsewhere with her mother; and the fourteenth applicant was living at a different address in the city together with her partner’s parents.

According to the social investigation report produced by Tulcea Local Council on 13 December 2012 the fifty-third applicant was living with her grandmother at a different address in the city, the seventy-fourth applicant was living together with the twenty-first applicant, and the sixtyfifth applicant was living together with his partner at “Pichet”. The eighth applicant was living together with the eighteenth applicant and the fifty-second applicant was living together with the fiftieth applicant at “Pichet”.

On 20 December 2012 the Tulcea County Agency for Payments and Social Inspection informed the Government that fifty-four applicants – excluding the sixth, eleventh, thirteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-ninth, thirty-fifth, thirty-seventh, thirty-eighth, forty-fifth, forty-sixth, forty-eighth, fifty-second, sixty-fifth, sixty-seventh, sixty-eighth, sixty-ninth, seventy-fourth and seventy-fifth applicants – had been receiving or continued to receive various forms of benefits and social allowances.

On the same date the Tulcea schools inspectorate informed the Government that of the applicants who lived at “Pichet”, twenty-one were and/or had been enrolled as school students before and/or after their eviction in October 2006, namely the fourth, fifth, seventh, thirteenth, fourteenth, nineteenth, twenty-sixth, twenty-eighth, thirtieth, thirty-first, thirty-eighth, thirty-ninth, forty-fourth, forty-sixth, fifty-third, fifty-fifth, fifty-ninth, sixtysixth, seventieth, seventy-second and seventy-third applicants. According to the aforementioned school inspectorate some of the twentyone children had been temporarily or permanently withdrawn from school by their parents or next of kin before, immediately after or some years after their eviction in October 2006 because their parents or relatives were not interested in their children obtaining an education.

On the same date the Tulcea schools inspectorate informed the Government that the schools closest to “Pichet” and the mobile homes on the rubbish dump were located one kilometre and 200 metres respectively from the two sites.

On 12 December 2012 the Tulcea Environmental Protection Agency informed the Government that none of the applicants had complained to it about the issues raised before the Court. Moreover, the Agency had not carried out an environmental impact evaluation regarding the pollution in the areas mentioned in their application before the Court because the mobile homes were positioned in a location in a residential neighbourhood within the city boundary with access to running water, electricity, household waste collection facilities and a school. The area in question had never been designated as a rubbish dump. The city’s rubbish dump for household waste was located 5 kilometres outside the city. The “Pichet” building was also located within the city boundary, within the confines of the industrial port zone on the banks of the River Danube with access to running water, electricity and household waste collection facilities. The Agency had an automated air quality monitoring station positioned in a location 1,500 metres from “Pichet”. The results produced by this station showed that the level of pollution from sulphur dioxide, nitrogen dioxide, carbon monoxide, suspended particles and volatile organic compounds had remained below dangerous levels throughout 2011 and none of the other automated stations for monitoring air quality within the city had reported dangerous levels of pollution that year either. Furthermore, the goods which were handled by the port authorities were not dangerous and an environmental impact evaluation with regard to the pollution in the area of the industrial port was therefore not necessary. Lastly, the Agency was unaware whether the applicants had been informed by the authorities about the environmental conditions in the area at the time of their eviction because the eviction had been carried out by the Tulcea mayor’s office. The Agency did not have a strategy for avoiding potential risks to the applicants’ health because such a strategy would fall within the spheres of competence of the Tulcea mayor’s office and the Tulcea Public Health Agency.

On 6 February 2013 the Romanian Ministry of Internal Affairs informed the Government that the nineteenth and the sixty-seventh applicants had been registered at other addresses since June 2011.

On 28 March 2013 the fifteenth applicant submitted a statement before the Court, co-signed by his partner and children, to the effect that he and his partner, the forty-third applicant, were still living together with the fourteenth, the forty-fourth and thirteenth applicants at the same address and that their living conditions had not improved. Moreover, the authorities had refused to renew their lease contract because they had fallen behind with the rent and electricity payments. He also submitted that the sixty-seventh and the sixty-eighth applicants had moved to a different address. At the same time the seventy-second applicant had been working in Spain but she had continued to make regular return visits to her home here.

On the same date the twenty-fourth, twenty-ninth, forty-first, fortysecond, fifty-fourth and sixty-third applicants submitted statements to the Court to the effect that they had been faced with poor living conditions after their re-location. The twenty-ninth, forty-first and fifty-fourth applicants stated that after their lease contracts had expired the authorities had refused to renew them because they had also fallen behind with paying rent and other charges. The twenty-ninth applicant confirmed the fifteenth applicant’s statement about the sixty-eighth applicant. The fifty-fourth applicant also confirmed the fifteenth applicant’s statements concerning the sixty-seventh and sixty-eighth applicants, as well as those regarding the family of the seventy-second applicant. She added that the nineteenth and the twentieth applicants were in a similar situation to that of the seventysecond applicant’s family.

On 29 March 2013 the sixty-first and seventy-sixth applicants submitted statements before the Court confirming the poor living conditions they had been faced with after their re-location. On the same date the fortyseventh applicant stated that her grand-daughter and son, the fortysixth and fortyninth applicants respectively, were living with her. She reiterated that their living conditions were inadequate and had not improved. On the same date the fiftieth applicant confirmed that his living conditions were still poor and stated that his son, the fifty-second applicant, was still living there with him.

The relevant provisions of Law no. 114/1996 on housing read as follows:

“A lease contract may be terminated prematurely in the following circumstances:

b) at the owner’s request if:

- the tenant has not paid the rent for at least 3 consecutive months;

- the tenant has significantly damaged the residence, the building, the facilities and any other property attached to them ...;

- the tenant’s behaviour makes cohabitation impossible or prevents the normal use of the residence;

- the tenant has breached the tenancy agreement;

c) at the request of the owners’ association if the tenant has not paid his share of the collective charges for 3 months...”

“If a leaseholder leaves the residence permanently, or if he or she dies, or if a non-resident leaseholder ... ceases to use the residence for more than 2 years continuously, the lease shall remain valid as the case may be:

a) to the benefit of the spouse, if he or she has lived together with the leaseholder;

b) to the benefit of the descendants and the ascendants, if they have lived together with him or her:

c) to the benefit of other individuals who shared the same domicile with the leaseholder for at least 1 year and were recorded in the lease contract;

In the absence of individuals who could benefit from the lease according to paragraph 1, the lease contract shall be terminated within 30 days of the date on which the leaseholder vacated the residence or died, or when the 2-year period of continuous non-use has expired.”

“The owner shall fulfil the following duties:

a) to hand over the residence to the tenant in a condition suitable for use;

b) to take steps to repair and maintain the building for safe use during the entire duration of the lease;

c) to maintain in good condition the building’s structural strength and the external parts of the building (roof, building front, pavement, surrounding area), yards and gardens as well as the building’s internal communal area (the stairwell, lift, hallways, corridor, underground, external stairs);

d) to maintain in good condition the building’s common facilities (elevator; hydrophore; water, sewage, central and water heating facilities; central heaters; ... waste collection facilities...).

“The tenant shall fulfil the following duties:

a) to carry out the maintenance, repair and replacement work of the building’s elements and facilities used exclusively by him;

b) to replace or repair damaged elements and facilities of the building used improperly and which are in common use, regardless if they are outside or inside the building...;

c) to clean and disinfect the residence and the parts of the building in common use during the entire duration of the lease;

d) to return the residence to the owner in a condition suitable for use once the lease ended...”

“If the owner fails to fulfil his duties to repair and maintain the leased residence, the tenant may carry out the works at the owner’s expense, by deducting the expenses from the rent.

The tenant may carry out these works if the problem in question affects normal use of the property and if the owner has not taken steps to carry out such works within 30 days of the tenant’s written notification of the problem.”

“Social housing shall be allocated by local councils on the basis of conditions which they revise annually under the law in force at the time. The following categories of persons may benefit from social housing according to an order of priority decided by the local councils: newlyweds under 35, formerly institutionalised young people over 18, disabled persons ... and other categories of entitled individuals and families.”

“There is no right to social housing for persons or families who:

a) have sold a residence after 1 January 1990;

d) have already leased another social housing residence from the State’s immovable property fund.”

The relevant provisions of the former Romanian Civil Code read as follows:

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

“Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.”

“Any injunction to act or not to act is changed to damages if unenforced by the debtor”

“If an injunction to act remains unenforced, the creditor may also ask to be authorised to enforce it at the debtor’s expense.”

“The lessor must by nature of the contract and without the need for a special provision:

hand over the leased property to the tenant...

maintain it a condition that makes it usable for the purpose for which it was leased....”

During the lease all the repairs that may be necessary must be made, except for small repairs (...) which are the responsibility of the tenant by virtue of his use thereof.”

The relevant provisions of Government Ordinance No. 137/2000 on combating all forms of discrimination read as follows:

“1. An individual who considers himself or herself discriminated against may lodge an application before a court for damages and restoration of the previous situation or cancellation of the situation caused by the discrimination, according to general law. The application shall be exempt from stamp duty and shall not be affected by an application before the National Council for Combating Discrimination.

The interested party shall present the facts that may be presumed to amount to direct or indirect dicrimination 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 recording or statistical data...”

“1. Non-governmental organisations which have as an objective the protection of human rights or which have a legitimate interest in combating dicrimination shall have locus standi if the discrimination happens within their area of activity and affects a community or a group of people.

The organisations mentioned in paragraph 1 shall also have locus standi in circumstances where the discrimination affects a natural person, at his or her request.”

Excerpts from the relevant international documents concerning the living conditions and education rights of Roma people, including recommendations, resolutions, reports, observations, memoranda and other relevant texts by the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights, the European Union Agency for Fundamental Rights and the United Nations Committee on Economic, Social and Cultural Rights, are given in the case of Winterstein and Others v. France (no. 27013/07, §§ 90-102, 17 October 2013).

Excerpts from the relevant international treaties concerning the right to education, inluding the Universal Declaration of Human Rights 1948, the Convention Against Discrimination in Education 1960, the International Covenant on Economic, Social and Cultural Rights 1966, the International Convention on the Elimination of All Forms of Racial Discrimination 1966 and the Convention on the Rights of the Child, are given in the case of Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 77-81, ECHR 2012 (extracts)).


Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants, Ms Antonina Ivanovna Filippova, Ms Albina Georgievna Ivannikova, Ms Irina Vasilyevna Medvedeva, are Russian nationals who were born in 1943, 1930, and 1966 respectively, and live in Podolsk (Moscow Region), Moscow, and Yubileyny (Moscow Region) respectively. They were represented before the Court by Mr I. Trunov and Ms L. Ayvar, lawyers practising in Moscow.

The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

On the evening of 23 October 2002 a group of terrorists belonging to the Chechen separatist movement took hostages in the “Dubrovka” theatre in Moscow (also known as the “Nord-Ost” theatre). For three days more than nine hundred people were held at gunpoint and under threat of explosions in the theatre’s auditorium. The terrorists refused to surrender, so in the early morning of 26 October 2002 the Russian security forces pumped an unknown gas through the building’s ventilation system. When the terrorists lost consciousness under the influence of the gas, special forces stormed the building. As a result of the operation the majority of the hostages were released (over 730 people). However, a large number of hostages were affected by the gas; according to information gathered by the investigative authorities by the end of 2002, 129 hostages died on the spot, in the hospitals or during transportation, and some of those who survived continued to suffer from serious health problems. Other facts concerning the hostage-taking, the liberation of the hostages, the medical assistance provided, and the ensuing investigation and civil proceedings are presented in the case Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, ECHR 2011 (extracts), concerning the same events.

A criminal investigation into the events was opened in October 2002. As regards the storming of the building and the rescue operation, the investigation into the terrorist act did not establish any fault on the part of the authorities and no separate inquiry into the officials’ actions has been conducted. The Finogenov and Others judgment covered those proceedings up to November 2003 (Finogenov and Others, cited above, §§ 30-102). All former hostages and next of kin of the deceased had been questioned and had been granted the status of victims by that time (ibid., § 40). Several applicants in the Finogenov and Others case challenged the investigation’s inaction and lack of results in the courts. Their complaints were dismissed by the courts in Moscow in 2005-2006 (ibid., §§ 123-42). The main criminal investigation was extended several times, and remained pending at the time of the Finogenov and Others judgment.

One episode of the case, concerning an accomplice of the terrorists, Mr T., was severed from the main case and brought to trial. Mr T. was convicted in September 2003.

In its judgment of 20 December 2011 the Court found that there had been a breach of the positive obligations under Article 2 of the Convention in so far as the planning and execution of the rescue operation was concerned; it also found a breach of the authorities’ obligation to effectively investigate the loss of life, since the “the investigation into the authorities’ alleged negligence in this case was neither thorough nor independent” (ibid., § 282). The Court found no violation of Article 2 in respect of the authorities’ decisions to storm the building and to employ potentially lethal gas to neutralise the terrorists (ibid., §§ 226 and 236). It also found that no separate issues arose under Articles 6 and 13. In making awards under Article 41, the Court took into account that the violations found concerned the failure to comply with positive obligations, resulting from the unintended consequences of the rescue operations, and noted the domestic payments made to the applicants.

At its 1265th meeting, on 20-21 September 2016, the Council of Europe Committee of Ministers adopted a decision concerning the execution proceedings in the Finogenov and Others case (CM/Del/Dec(2016)1265/H46-23/22 September 2016). Referring to the communications from the Russian authorities, the Committee of Ministers welcomed information about the payment of individual awards. At the same time, it regretted “the investigating authorities’ decision, taken after the European Court’s judgment, not to open a criminal investigation due to the previous domestic decision taken in this context”. It also invited the Russian authorities to inform the Committee in detail about the investigation’s further perspectives.

The applicants in the present case lost their relatives during the hostage crisis, or were themselves amongst the hostages. The first and the second applicants lost their daughters, Ms Zh. Goncharova and Ms Ye. Anisimova, respectively. The third applicant was amongst the hostages herself and, in addition, lost her husband, Mr V. Medvedev.

The applicants submitted no information or documents concerning participation in the criminal investigation. The Government submitted copies of the decisions to grant victim status to the first and third applicants, dated 15 December and 27 October 2002 respectively.

In 2002 the applicants brought proceedings against the Moscow City Administration, seeking compensation for the damage caused by the terrorist attack. They claimed that Article 17 of the Suppression of Terrorism Act established the strict liability of the regional authorities (liability without fault) for any non-pecuniary damage caused to the victims of a terrorist attack. The claims made no mention of the pending criminal investigation into the attack, although the copies of the decisions to grant victim status had been appended (but not submitted to the Court). On 28 May 2003 the Tverskoy District Court dismissed those claims as unfounded. The District Court found that the Moscow City Administration bore a number of obligations towards the victims, especially in respect of their rehabilitation and support, but was not responsible for the carrying out and coordination of anti-terrorist operations. The applicants decided not to appeal against the judgment, because they believed that it would be futile.

In March 2012 the Government submitted, in addition, information about proceedings for obtaining regular payments following the loss of a breadwinner. According to these documents, in 2003 several relatives of the deceased victims of the terrorist attack, including three applicants in the present case, sought additional payments for the loss of a breadwinner. On 20 January 2004 the Tverskoy District Court of Moscow partially granted the claims and awarded to each of the applicants additional regular payments, pursuant to the Moscow City Administration’s decree of 29 January 2003, no. 116-rp, on assistance to the victims of terrorist acts and the general obligation established by section 17 of the Suppression of Terrorism Act of 25 July 1998. The latter provided that the damage caused by a terrorist attack should be compensated by the authorities of the federal constituency where the attack took place. It does not appear that an appeal was lodged against the judgment of 20 January 2004. These proceedings did not mention the then pending criminal investigation.

The parties’ submissions contain no information to indicate that the applicants took any steps in the context of the criminal investigation into the terrorist attack or any other proceedings other than those described above.


CASE OF VISTIŅŠ AND PEREPJOLKINS v. LATVIA

Pecuniary damage - award (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Ján Šikuta;Julia Laffranque;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Linos-Alexandre Sicilianos;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen

At the time of the expropriation of the applicants’ land, the cadastral value of real estate within the perimeter of a town or city was determined in accordance with regulation no. 94 of 12 April 1994 concerning the valuation of urban land (Noteikumi “Par pilsētu zemes vērtēšanu”), which was in force until 12 June 1998. To the extent that it is pertinent in the present case, the preamble to the text contained the following definitions:

“... Cadastral value of a plot of land – the urban-planning and economic value of a plot of land, formulated in pecuniary terms.

Model value of a plot of land [zemes paraugvērtība] – maximum value of a square metre of urban land situated in a value zone [vērtību zona] for the purposes of its exploitation for a specific aim.

De facto model value of a plot of land [zemes faktiskā paraugvērtība] – maximum value of a square metre of urban land situated in a specific territory of a value zone [vērtību zona] for the purposes of its exploitation for a specific aim.

Value zone – a portion of urban territory corresponding to a constant set of data characterising the value of real estate.

Article 5 stipulated that the regulation was inapplicable to the determination of the market value of urban land. For the purposes of valuation, urban territory was to be divided into value zones based on the general land-use plan. The capital, Riga, was to be divided into seven or more zones (Article 7). Under Article 8, the main zoning criteria were as follows:

position [of land] in relation to the city centre;

level of development of public-works infrastructure and social services;

attractiveness of territory;

ecological conditions and consequences of negative factors;

local geological conditions;

Article 24 of the regulation laid down the methodology for the calculation of the model value (paraugvērtība) of a plot of land. For cities such as Riga, the model value did not have to be specially calculated because it corresponded to a scale in annex no. 2 to the regulation. In order to establish the de facto model value (faktiskā paraugvērtība), it was necessary to calculate the difference between the model value of the zone in question and the adjacent zone, multiply it by the distance from the next zone, then divide the result by the width of the zone in question, and, lastly, add the corresponding model value from the fixed scale (Article 25). The de facto model value then had to be adjusted to take account of any buildings erected on the land (Article 26).

The de facto model value had to be multiplied by the surface area of the plot of land for its cadastral value to be obtained. It was then subject to adjustment within a limit of 20% to take account of certain positive or negative factors (Articles 30-34). The calculation of the cadastral value of land was the responsibility of the State Land Authority (Valsts Zemes dienests).

The relevant provisions of the Civil Code (Civillikums) read as follows:

“Where the contract provides for the payment of interest, its percentage shall be fixed, failing which it shall be presumed that the statutory rate (see Article 1765) has been tacitly agreed.”

“The interest rate shall be clearly established in the deed or contract. Failing that, as in cases where the payment of statutory interest is required by law, the rate shall be six per cent per annum. Interest may be calculated only on the capital itself. However, should the interest not be paid within the allotted time in respect of one year or more, from that time onwards, at the creditor’s request, statutory interest shall be calculated on the interest then accruing”.

“The interest rate shall be clearly established in the deed or contract. Failing that, as in cases where statutory interest is required by law, the rate shall be six per cent per annum.

The interest rate for late payment of a pecuniary debt provided for under a contract as consideration for the delivery or purchase of a good or service, shall be eight per cent [“seven per cent” before 26 June 2013] above the base rate (Article 1765, third paragraph) per annum; as to contractual relations to which a consumer is party, [the base rate shall be] six per cent per annum.

The interest base rate shall be four per cent. The said rate shall be modified on 1 January and 1 July every year by the percentage corresponding to the increase or decrease in the most recent rate fixed for refinancing operations by the Bank of Latvia before the first day of the half-year in question. After 1 January and 1 July every year, the Bank of Latvia shall immediately publish in the [Official Gazette] information on the applicable interest rate for the coming half-year.

Interest may be calculated only on the capital itself. However, should the interest not be paid within the allotted time in respect of one year or more, from that time onwards, at the creditor’s request, statutory interest shall be calculated on the interest then accruing.”

“The interest shall cease to increase:

when the amount of the interest still unpaid reaches the amount of the capital;

According to the calculator of inflation rates of the Latvian Central Bureau for Statistics (Centrālā Statistikas pārvalde), the rate of inflation between 25 November 1997 (date of the entry into force of the relevant law on expropriation; see paragraphs 23 and 54 of the principal judgment) and 25 October 2012 (date of the principal judgment) was 94.3%.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1954 and lives in Petrozavodsk, in the Republic of Kareliya. She was a municipal unitary enterprise employee in Petrozavodsk, working for Auto Transport Column 1126 (“Avtokolonna 1126”, hereafter “the company”).

Avtokolonna 1126 was set up in accordance with a decision of the administration of the town of Petrozavodsk (“the town administration”), and provided public transport services in the town on a commercial basis. In order to carry out its statutory activities, the company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the town administration (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 55-75, 9 October 2014 for further details on the company’s status). In accordance with several agreements between the company and the town administration, the company undertook to provide certain sections of the population with transport services free of charge, and the town administration was to reimburse it for the expenses incurred out of the budget allocated for that purpose by the Ministry of Finance of the Republic of Kareliya or the federal budget. A letter from the town administration to the applicant dated 19 March 2003 shows that at some point, owing to the relevant budgets lacking funds, the company was owed a significant amount of money. Consequently, it was unable to pay its employees on time. In 2004 the town administration asked the legislative body of the Republic of Kareliya to consider allocating additional funds to cover the company’s debt, but to no avail.

On an unspecified date the town administration ordered the restructuring of the company in the form of a spin-off as a new entity, and transferred the assets mentioned in paragraph 5 above to the newly created municipal unitary enterprise “Avtokolonna 1126 Plus”. The debt which had accumulated in respect of the unpaid salaries was not transferred, and remained with the applicant’s employer. On 6 July 2003 the Commercial Court of the Republic of Kareliya declared the debtor company “Avtokolonna 1126” insolvent, and liquidation proceedings were commenced.

On 18 May 2004 the Petrozavodsk Town Court awarded the applicant 21,830 Russian roubles (RUB) in respect of salary arrears, default interest and non-pecuniary damage. The judgment became final ten days later. According to a payment note on a writ of execution of 20 July 2006, at some point the company paid the applicant RUB 9,206. The remainder of the judgment debt has remained unpaid.

On 10 April 2006 a justice of the peace of the 11th Court Circuit of Petrozavodsk ordered the company to pay the applicant RUB 614 in compensation for non-pecuniary damage. The award became final ten days later, but was not paid to the applicant.

On 4 October 2006 the Commercial Court of the Republic of Kareliya ordered the company’s liquidation. Creditors’ claims which had not been satisfied during the liquidation proceedings, including the applicant’s remaining claims, were considered settled. On 15 October 2006 the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist.

On 16 March 2005, in subsidiary liability proceedings, the Petrozavodsk Town Court refused to hold the town administration liable for the company’s debts. The court found that the applicant had failed to adduce evidence to demonstrate that it had caused the company’s insolvency. It appears that the judgment was not appealed against.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

A list of the applicants is set out in the appendix.

Ms C., a student of medicine, was reported missing by her father on 12 July 1976. Prior to her disappearance she had been seen at a dance event in a youth club in Bratislava on 9 July 1976.

On 14 July 1976 a female body was found drowned in a river some 20 kilometres from Bratislava. As the circumstances indicated that the woman had been murdered, a criminal investigation was instituted. Ms C. was later identified as the victim.

On 21 September 1976 several young men from Piešťany were accused of murdering Ms C. After several months a decision was taken not to prosecute. The proceedings were stayed from 31 March 1977 to 15 June 1981.

On 16 June 1981 the applicants and one other person were accused of several offences in the context of the above.

The accused were later indicted and, on 22 September 1982, the Bratislava Regional Court convicted them of several criminal offences including the rape and subsequent murder of Ms C. Prison terms of between four and twenty-four years were imposed. On 25 April 1983 the Supreme Court of the Slovak Republic dismissed appeals that had been lodged by the public prosecutor and the applicants.

Between 1983 and 1989 the applicants unsuccessfully attempted to have the case re-opened by pointing out shortcomings in the proceedings that had led to their conviction.

On 19 October 1990, a complaint in the interest of the law having been lodged by the General Prosecutor of the Czech and Slovak Federal Republic, the Supreme Court of the Czech and Slovak Federal Republic quashed the applicants’ convictions. The case was remitted to the Bratislava Regional Court for a fresh examination. The Federal Supreme Court held that the courts involved had failed to reliably establish all the relevant facts and to thoroughly examine the defence’s arguments. The proceedings leading to the applicants’ convictions were thus seriously flawed. Reference was made to more than twenty specific shortcomings. The trial court was ordered to take evidence and establish the relevant facts in accordance with the law.

The Bratislava Regional Court started dealing with the case anew in 1991. In a judgment delivered on 20 January 2004 it convicted Mr Lachmann (the fifth applicant in application no. 32336/11), of aiding rape and the other five applicants of restricting personal freedom, rape and murder. In addition, Mr Andrášik and Mr Čerman were found guilty of violation of privacy. It imposed prison terms ranging between three and thirteen years on the applicants.

In its judgment the Regional Court listed the reasons for which the Supreme Court of the Czech and Slovak Federal Republic had quashed the original decision on the case. As the judges composing the chamber of the Regional Court were not the same as those who had tried the accused initially, the whole proceedings had to be carried out anew. It noted that a part of the relevant evidence could no longer be gathered for objective reasons including the time which had lapsed since the offence was committed. Also, the criminal proceedings against the seventh accused had been stayed due to his ongoing mental disorder. His earlier statements could therefore not be used in the criminal proceedings against the applicants.

The Regional Court heard the applicants and examined statements they had made in the context of the original proceedings. It also heard more than sixty witnesses, including police investigators and prosecutors who had dealt with the case before, and four experts. With the parties’ consent it read out statements from seventy-three witnesses that had been made in the period leading up to the applicants’ new trial. Statements from three experts and five witnesses who had since died or were unable to attend were also read out. Opinions from experts in psychiatry, sexology, hydrobiology, judicial psychology and odorology were examined. Finally, reference was made to documentary evidence included in the file. In the judgment the description of the relevant facts as established on the basis of the above covered seventy pages.

In its judgment the Regional Court found that, after having considered the available evidence in its entirety, there was no reason for it to depart from the conclusions reached in the original set of proceedings. In particular, it relied on the confessions of three of the applicants and the statement of an eyewitness that had been obtained during the initial investigation. With reference to statements by the lawyers of the accused made prior to the main hearing in the original proceedings, and after having heard the investigators and public prosecutors involved at the pre-trial stage, the Regional Court dismissed the applicants’ argument that physical and psychological pressure had been used to elicit false confessions.

When addressing witness statements suggesting that the accused had been in a different place at the relevant time, the Regional Court concluded that they were not reliable. It noted that seven other witnesses had confirmed seeing two of the accused at the dance event on 9 July 1976.

The Regional Court considered it established that after she had left the dance event, at about 10.30 p.m., Ms C. had been forced to get into the Fiat car of one of the accused. She had then been brought against her will to a house without the knowledge of the owner. She had been forced to drink alcoholic beverages and to undress. The court further held that Ms C. had been tied up and that five of the accused had had sexual intercourse with her notwithstanding her attempts to resist. During the night of 9 July 1976, six of the accused had driven Ms C. to Kráľová pri Senci, where two of the applicants had drowned her in a pond under the supervision of the others. Subsequently three of the accused had dumped the body in a nearby river and it had been found downstream on 14 July 1976.

The judgment indicated that the above conclusions were based on confessions by three of the applicants and a witness statement against them assessed in the light of all the evidence obtained. When imposing the penalties, the Regional Court had taken into account the fact that the duration of the criminal proceedings had been excessive.

Both the public prosecutor and the applicants appealed.

In his appeal the public prosecutor argued that the sentences imposed were lenient.

In their appeals – which, including enclosures, comprised more than a thousand pages – the applicants challenged their conviction.

Mr F. Čerman and Mr P. Beďač thus submitted a forensic opinion which an expert had drawn up at their request on 25 June 2004. They argued that it cast doubts on the facts as they had been established by the Regional Court and proposed that the expert’s evidence be heard. In particular, they argued that the expert’s opinion undermined the first-instance court’s conclusions as regards the identification of the body found on 14 July 1976 as Ms C. The expert also disagreed with the conclusions as to the alleged rape, the date and manner of death of the victim, and the subsequent disposal of the body.

They further submitted that they had learned from witness statements made in the course of the first-instance proceedings that extensive evidence concerning mainly the initial investigation in 1976 and 1977 had been archived by the Ministry of the Interior. Following the firstinstance judgment, the applicants had discovered that the evidence comprised nine boxes containing statements from more than a hundred witnesses.

Those documents indicated that the evidence against the accused had been manipulated and that a number of relevant documents had not been included in the court file. Those documents included, for example, statements from two witnesses dated 23 August 1976 indicating that they had seen a young girl being spoken to by three men in a Volkswagen Beetle car, which she had subsequently got into, in the vicinity of the youth club concerned at approximately 10.30 p.m. on 9 July 1976. It also included a complaint by the lawyer of one of the accused indicating that his client’s defence rights had been breached in that the lawyer had not been notified of the interrogation and remanding in custody of his client.

The appellants submitted for inclusion in the court file copies of several documents from the Ministry of the Interior archives on which they relied.

In their appeals the applicants also argued that further documents gathered by an investigation team from Prague had been stored in the archives of the Ministry of the Interior of the Czech Republic. Their examination by the courts was desirable with a view to establishing the facts of the case. The appellants argued that their right to a fair hearing had been breached as the Regional Court had failed to give relevant and sufficient reasons for its judgment in view of the evidence available and the arguments before it.

On 4 December 2006 the Supreme Court dismissed the applicants’ appeals. The judgment stated that the Supreme Court had examined the appeals of the public prosecutor and of the accused, along with the enclosures, and had heard the latter’s counsels’ final submissions, which had lasted several hours. The appeal court held that the principal points in issue were whether (i) the confessions of several applicants at the pre-trial stage had been lawfully obtained; (ii) the witness statements against the applicants were trustworthy; and (iii) there was a need to take further evidence and, in particular, to examine documents which related to the initial investigation and which were held in the Ministry of the Interior archives.

The Supreme Court found no evidence demonstrating that the confessions of several of the accused and their statements against their coaccused had been elicited under pressure. It noted, among other things, that the accused parties concerned had admitted the offences in the presence of their defence counsels. The statements contained details which had been unknown to the investigators. One of the accused had maintained his statement at the main hearing before the trial court in the original proceedings, and he had withdrawn his appeal against the judgment leading to his conviction.

The witness statements against the accused in the original proceedings had been lawfully obtained. The Regional Court had correctly noted that certain modifications to the statements of those witnesses – to the advantage of the accused – were due to the lapse of time and pressure resulting from media coverage of the case. The file indicated that several witnesses had received anonymous threats pressurising them to abstain from making statements against the accused.

As to the statement by the eyewitness Ms B., in the course of the pre-trial investigation she had described in detail the individual involvement of the accused in the crime. The fact that she had later revoked her statements could not affect the position since she was convicted of having made false statements in that connection.

The Supreme Court held that the confessions of several of the accused and the evidence corroborating their statements had been obtained lawfully and found no reason to depart from the Regional Court’s conclusion as to the applicants’ guilt.

The Supreme Court considered it superfluous to take further evidence as requested by the applicants, including the hearing of witnesses whose statements had been archived by the Ministry of the Interior. The evidence available permitted the relevant facts to be reliably established. It could not be affected by the gathering of additional evidence, which would unduly delay the proceedings.

Finally, the Supreme Court held that the first-instance court had erred in reducing the prison terms imposed with reference to the duration of the proceedings because the Constitutional Court had found a breach of the accused persons’ rights and awarded them just satisfaction in that respect. The Supreme Court therefore increased the sentences imposed on three of the applicants, namely from 13 to 15 years for Mr Kocúr and Mr Andrášik, and from 10 to 12 years for Mr Dúbravický.

Mr Andrášik lodged an appeal on points of law. He argued that his conviction had resulted from errors of fact in that, among other things, the courts had failed to consider the evidence archived by the Ministry of the Interior and had disregarded the expert opinion of 2004.

The five other applicants filed a separate appeal on points of law. They contended that their defence rights had been disregarded and that their conviction had been based on evidence which had not been obtained lawfully. In particular, the applicants contended that the appeal court had disregarded extensive evidence which had been stored in the archives of the Ministry of the Interior, and which had not been included in the court file, as well as the forensic expert opinion submitted by them.

The applicants further argued that four of them had voluntarily undergone lie detector tests by a licensed U.S. polygraph examiner with thirty years’ experience. All four tests had concluded that they had not lied when repeatedly replying that they had not raped and killed Ms C.

On 1 June 2009 the cassation chamber of the Supreme Court dismissed the applicants’ appeals on points of law. It held that it lacked authority to deal with alleged errors of fact in proceedings at lower instances. The lower courts had duly addressed the argument that the confessions elicited from the accused had been false and the appeal court had explained why it was not necessary to take further evidence as requested by the accused. The polygraph tests could not be used as evidence in the proceedings.

Finally, the cassation chamber of the Supreme Court noted that the lower courts had committed errors in law to the advantage of the accused. Those errors could not be redressed in cassation proceedings because the prosecution had not filed an appeal on points of law.

On 12 November 2003 the Constitutional Court found that the Bratislava Regional Court had breached the applicants’ right to a hearing within a reasonable time. It ordered the Regional Court to proceed with the case without delay and granted the equivalent of 9,958 euros (EUR) to each of the applicants.

On 1 August 2007 the applicants in application no. 32336/11 lodged a complaint against the Supreme Court’s judgment of 4 December 2006. The Constitutional Court rejected it as premature on 24 September 2008. It referred to the fact that proceedings were still pending on the applicants’ appeals on points of law.

On 4 August 2009 the applicants lodged a new complaint for which they submitted further reasons on 29 September 2009. They alleged that their rights under Articles 6 §§ 1 and 3 of the Convention, inter alia, had been breached in the proceedings before the Regional Court and on their appeal.

In particular, they argued that their conviction had been based on evidence which had not been obtained lawfully. They also submitted that the Supreme Court had refused to examine a number of witness statements and a considerable amount of other evidence which the investigators had gathered – lawfully – between 14 July 1976 and 31 March 1977. Those documents had never been included in the court file despite their requests. The refusal to include those documents in the file and to examine them amounted to a serious breach of the applicants’ defence rights as that evidence had been obtained a relatively short time after the murder of Ms C.

The applicants also complained that the ordinary courts had (i) disregarded the conclusions expressed in the Federal Supreme Court’s judgment of 19 October 1990; (ii) failed to give relevant and sufficient reasons for their conclusions; and (iii) disregarded the circumstances under which the accused had been interrogated in the course of the initial investigation.

On 14 December 2010 the Constitutional Court dismissed the complaint. It held that the applicants, who had been assisted by lawyers, had not formally directed their complaint against the decision regarding their appeal on points of law. Their arguments concerning a breach of their rights as a result of errors of law allegedly committed by the cassation chamber of the Supreme Court therefore fell outside the purview of the Constitutional Court.

The Constitutional Court further held that it lacked authority to examine the proceedings before the Regional Court because the alleged shortcomings in them had been addressed subsequently by the Supreme Court upon appeal by the applicants. As to the appeal proceedings, the Constitutional Court held that in its judgment of 4 December 2006 the Supreme Court had explained in an adequate and acceptable manner why it had not considered it necessary to examine the evidence archived by the Ministry of the Interior. The ordinary courts had reliably established the relevant facts, had duly addressed the substantial arguments of the defence, and had given relevant and sufficient reasons for their conclusions which the Constitutional Court had not considered arbitrary.