ITEMID: 001-71026
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HAYDARIE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants are a mother and her four children. They are all Afghan nationals. The first applicant, Mrs Marjam Popal Haydarie, was born in 1954 and is currently residing in the Netherlands together with her son Haydar, who was born in 1984. The other three children, Fatma, Yusuf and Ali, were born in, respectively, 1984, 1988 and 1989 and are currently residing in Pakistan with a sister of their maternal grandmother. They are represented before the Court by Mrs E.L. Garnett, a lawyer practising in ‘sHertogenbosch. The Netherlands Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 1996, the applicants’ home in Kabul was searched and ransacked by the Taliban. A hand grenade thrown in their kitchen killed the first applicant’s mother and seriously injured her sister.
The first applicants’ husband and the other applicants’ father disappeared in January 1998, likely after having been arrested by the Taliban. One week after his disappearance, the applicants fled from Kabul to Jalalabad where they stayed in the home of the first applicant’s father. However, also in Jalalabad, the Taliban regularly visited and questioned them about the whereabouts of their husband/father. At an unspecified date, when trying to take the first applicant’s injured sister to hospital, the second applicant, Haydar, was stopped by the Taliban who beat him and broke his hand.
On 4 October 1998, in order to escape from the continuous Taliban harassment and as the first applicant’s sister could not obtain adequate medical treatment in Afghanistan, the first applicant together with her sister and Haydar fled to Pakistan. Fatma, Yusuf and Ali remained in Afghanistan in the care of their maternal grandfather. They were to join the first and second applicants in Pakistan as soon as possible. On 9 October 1998, with the assistance of a “travel agent” who had been paid by her father, the first applicant, her sister and Haydar travelled by air from Karachi to the Netherlands, where they applied for asylum.
On 15 June 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum request filed by the first applicant and her son Haydar, but did grant them a conditional residence permit (voorwaardelijke vergunning tot verblijf) valid until 10 October 1999 as – in light of the general situation in Afghanistan at that time – their expulsion to Afghanistan would entail undue hardship.
On 15 July 1999, the first applicant filed an objection (bezwaar) against this decision with the Deputy Minister.
On 13 September 1999, the validity of the first and second applicants’ conditional residence permit was prolonged by one year, i.e. until 10 October 2000.
On 23 March 2000, the Deputy Minister rejected the first applicant’s objection of 15 July 1999. The first applicant filed an appeal against this decision with the Regional Court of The Hague on 18 April 2000.
On 11 September 2000, the validity of the first and second applicants’ conditional residence permit was again prolonged by one year, i.e. until 10 October 2001. As from 10 October 2000, the first applicant became entitled to work in the Netherlands. She further started attending Netherlands language and sewing courses. She successfully passed a first exam in both courses on 9 February 2001.
On 1 April 2001, pursuant to the terms and the transitory arrangements under the 2000 Aliens Act (vreemdelingenwet) which entered into force on that date and replaced the 1965 Aliens Act, the first and second applicants’ conditional residence permit was automatically transformed into a residence permit for the purposes of asylum for a fixed period (verblijfsvergunning asiel bepaalde tijd).
In April 2001, the first applicant learned from a friend, who had gone to Pakistan for a family visit, that her three children – who had stayed behind in Afghanistan in the care of their maternal grandfather and with whom the first applicant had not had any contacts since she had left Afghanistan in 1998 – were living in Pakistan with a maternal aunt of the first applicant.
On 21 May 2001, the first applicant filed a request with the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) for a provisional residence visa (machtiging tot voorlopig verblijf) for the purposes of family reunion for her three children living in Pakistan. The first applicant was not able to produce these children’s birth certificates but submitted four photographs of them, and declared to be willing to undergo DNA testing. She further declared that she had never been gainfully employed and was livinglived on benefits under the General Welfare Act (Algemene Bijstandswet).
By letter of 28 May 2001, she advised her three children in Pakistan to apply as soon as possible to the Netherlands consular authorities in Pakistan for the purposes of obtaining a provisional residence visa.
On an unspecified date and in accordance with the policy rule that after three years a temporary residence permit for the purposes of asylum is replaced by a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd), the temporary residence titles granted in the instant case were changed into permanent residence permits for the purposes of asylum.
On 12 July 2001, the first applicant passed a second exam in the Netherlands language and sewing courses attended by her.
On 21 November 2001, the first applicant withdrew the appeal that she had filed on 18 April 2000.
On 31 January 2002, the Minister of Foreign Affairs rejected the request of 21 May 2001, considering at the outset that the transformation of the first applicant’s residence title from a conditional residence permit under the 1965 Aliens Act to a temporary residence permit for the purposes of asylum under the 2000 Aliens Act did not entail entitlement to a residence permit under Article 29 § 1 (e) or (f) for family members having joined the person who has been granted asylum in the Netherlands within three months after the latter’s arrival in the Netherlands. This rule applied only where it concerned a first issuance of a residence permit for the purposes of asylum, which was not the first applicant’s case. Consequently, her request fell to be examined under the regular immigration rules on family reunion set out in Chapter B2/6 of the 2000 Aliens Act Implementation Guidelines (Vreemdelingencirculaire).
The Minister further found that the first applicant’s family tie with the three children had not been demonstrated by means of official documents as no birth certificates of the three children had been submitted. Although this requirement could be replaced by DNA testing, this possibility was only offered if all other conditions for family reunion were met. This did not apply to the instant case, as in addition the first applicant did not comply with the minimum income requirements under the applicable immigration rules. On this point, the Minister noted that her sole income consisted of general welfare benefits whereas, pursuant to Article 3.73 § 1 (c) of the 2000 Aliens Decree (Vreemdelingenbesluit) and the provisions of Chapter B1/2.2.3.1 of the 2000 Aliens Act Implementation Guidelines, benefits under the General Welfare Act are not accepted as constituting (a part of the) means of subsistence within the meaning of the immigration rules. The Minister further found no special circumstances on the grounds of which it should be held that the aim served by the income requirement under the immigration rules entailed disproportionate consequences for the first applicant.
As regards Article 8 of the Convention, the Minister acknowledged the possibility of the existence of an objective obstacle to family life being exercised in the country of origin. Although this possible obstacle weighed heavily in the balancing-of-interests exercise to be carried out under this provision, it was not necessarily decisive. The first applicant’s personal interests were to be weighed against the general interest served by the restrictive immigration policy pursued by the Netherlands and in which context it was justified to require persons seeking family reunion to have, independently and lastingly, sufficient means of subsistence. The Minister considered – in order to avoid that the exercise of family life would become permanently impossible – that in balancing these interests it had to be assessed whether it was possible that the first applicant’s personal situation would change within a reasonable time. The Minister was only prepared to accept the existence of a positive obligation under Article 8 when, despite serious efforts made by the first applicant, there were no real prospects for her to obtain, lastingly, sufficient and independent means of subsistence and, given the circumstances in which she was finding herself, it would be unreasonable to maintain the income requirement. Finding that it was not excluded that the first applicant would be able to comply with the income requirement within a reasonable time, the Minister concluded that, for the time being, it could not be said that a hopeless situation had arisen in which it was impossible for the first applicant ever to comply with the requirements for family reunion. Consequently, the Minister concluded that the Netherlands authorities were not under a positive obligation to allow the three children in Pakistan to join the first applicant in the Netherlands.
On 27 February 2002, the three children filed an objection against this decision with the Minister of Foreign Affairs.
On 23 September 2002, after a hearing held on 13 August 2002 before an official committee (ambtelijke commissie), the Minister of Foreign Affairs rejected the objection in two separate decisions. The Minister noted that the family tie between the first applicant and the children had still not been demonstrated by means of official documents and that, as the first applicant did not comply with the income requirement, she and the children did not qualify for the possibility of DNA testing in lieu. Furthermore, as Fatma had come of age in the meantime, the first applicant’s request was also to be examined under the policy rules on extended family reunion (verruimde gezinshereniging). The Minister noted that, according to the contents of a letter submitted, the three children had left Afghanistan after the death of their maternal grandfather and, since 15 January 2001, were staying in Pakistan with a maternal aunt of the first applicant. As her younger brothers were also not granted entry to the Netherlands, the Minister held that the refusal to grant Fatma entry to the Netherlands could not be regarded as entailing disproportionate hardship.
As regards Article 8 of the Convention, the Minister found no particular facts or circumstances on the basis of which the Netherlands were under a positive obligation to admit the three children. The Minister considered that, in view of the first applicant’s personal situation in her country of origin, there was in any event a suspicion of an objective obstacle to family life being exercised in that country. Although this possible obstacle weighed heavily in the balancing exercise to be carried out, it was not necessarily decisive. The responsibility of the first applicant to ensure that she would comply with the requirements for family reunion also played an important role. In this context it was expected of the first applicant that, for a reasonable period of time, she would make serious efforts to find employment so that she would lastingly possess sufficient and independent means of subsistence. This reasonable period, of generally three years, had begun to run when the first applicant had become entitled to work in the Netherlands, i.e. on 10 October 2000. The Minister found no special circumstances on the basis of which this three-year period should be shortened in her case. The Minister further stated that the serious efforts asked from the first applicant required an active attitude on her part, implying actively looking for and accepting work even where a job would not correspond to her education or professional experience, registering at an employment office (arbeidsbureau) and interim employment agencies indicating to be willing to accept any kind of work, reacting to vacancy announcements, intensive writing of (un)solicited job applications, and undertaking labour-market oriented studies. In so far as the first applicant had argued that she had to care for her wheel-chair bound sister who refused aid from strangers and that she did not wish to leave her sister alone in the house fearing that she might cause a fire, the Minister held that it was the first applicant’s own choice to care for her sister and that she could appeal to aid providing bodies. Finding it not excluded that the first applicant would be able to comply with the income requirement within a reasonable time, the Minister held that it could not be said that a hopeless situation had arisen entailing a permanent impossibility for family reunion in the Netherlands and that, therefore, at present no positive obligation arose under Article 8 to allow the three children entry to the Netherlands. It could be expected from the first applicant that she would make serious efforts aimed at complying with the income requirement and, in all reasonableness, there was no reason in the present case to anticipate this by giving more weight to the personal interests of those concerned than to the general interest at issue.
On 16 October 2002, the three children filed an appeal with the Regional Court of The Hague.
On 23 March 2001, the applicant registered at the Maastricht office of the Centre for Work and Income (Centrum voor Werk en Inkomen).
In its judgment of 19 June 2003, following a hearing held on 8 May 2003, the Regional Court rejected the appeal of 16 October 2002. In so far as the appellants relied on Article 8 of the Convention, the Regional Court held:
“Where, such as in this case, there is no interference [with the rights under Article 8 as the refusal at issue does not concern a withdrawal of a residence permit] the question arises whether there are facts and circumstances of such a nature that the right to respect for family life nevertheless gives rise to a positive obligation for the Minister to grant the appellants residence [in the Netherlands]. In order to determine that question, the interests [involved] ... must be balanced against each other. To strike a ‘fair balance’ between those interests is of primary importance, in which [exercise] the Minister enjoys a certain margin of appreciation.
In the court’s opinion, the Minister could in all reasonableness conclude that the appellants’ interests did not outweigh the general interest of the Netherlands State. In this finding, the court takes into account that, given that at the present time there is no hopeless situation for the [first applicant] to comply eventually with the income requirement, there is no situation entailing a permanent impossibility of family reunion. The Minister has therefore considered on good grounds that there is no positive obligation to admit [the three children] under Article 8 of the Convention.
In this, the court further takes into consideration that, in the present case, the Minister has held that, due to the [first applicant’s] personal situation in her country of origin, there is a suspicion of an objective obstacle to the exercise of family life in the country of origin, but that this was not decisive in the context of the balancing of interests. In this connection the court further notes that [the appellants’] submission made in the present proceedings that [the first applicant and Haydar] are recognised refugees and that the Minister – other than suspecting – has acknowledged the existence of an objective obstacle to the exercise of family life in Afghanistan finds no support in the documents.
Noting this and the improving human rights situation in Afghanistan after the removal of the Taliban regime and the prior, apparently ill-founded request [of the first applicant] for admission as refugee [under the Geneva Convention relating to the Status of Refugees], it cannot be excluded in the court’s opinion that the [first applicant] can also exercise her family life in Afghanistan. This applies even more since the [first applicant] has submitted that she has been separated for a long time from her children and that she has difficulties integrating into the Netherlands society whereas she and [the children] are rooted in the Afghan culture.
In the court’s opinion, the [Minister] did further in all reasonableness not have to see grounds to deviate from the guideline that within a reasonable period of three years everything should be undertaken to comply with the income requirement as meant in [Chapter] B2/13.2.3.1 of the 2000 Aliens Act Implementation Guidelines. The point of departure for the [Minister’s] policy is that the main person with whom stay is sought bears his or her own responsibilities, also as regards his or her living expenses and those of the family members by whom he or she wishes to be joined. That is why it is expected from the main person that he or she has done everything during a lengthy period to find work and thus lastingly to dispose of sufficient and independent means of subsistence. In this an active attitude is expected from him or her.
The above-cited Chapter of the 2000 Aliens Act Implementation Guidelines also provides that in a special case the position in which the family members outside of the Netherlands find themselves, also if that position is not so harrowing (schrijnend) that already for that reason alone residency should be granted, may form a ground for applying a shorter period than three years. Also special circumstances in respect of the admitted main person can in principle lead to applying a shorter period.
The court is of the opinion that the [Minister] has correctly found no special circumstances as regards the [first applicant] which should lead to applying a shorter period. The court agrees with the [Minister] that it has not or at least insufficiently appeared that the [first applicant] has done the utmost to find work as meant in the 2000 Aliens Act Implementation Guidelines. She has not substantiated by means of concrete documents – such as for instance several negative written replies to job applications – that she has intensively applied for several existing job openings or has sought assistance in every feasible manner [in finding gainful employment].
On the other hand it has appeared that the [first applicant] has taken on the care for her disabled sister, which choice apparently entailed that she distanced herself from the labour market and thereby indirectly from her [three] children on account of failing to comply with the income requirement. In this connection the [Minister] has, in the court’s opinion, justly considered that there is no hopeless situation in which the conditions for admission can never be met. In this [finding] the court takes into account that according to the case file documents the [first applicant] was allowed already since 10 October 2000 to look for work on the labour market and that the [Minister] could hold in all reasonableness that the [first applicant] could appeal to aid providing agencies for the care of her sister.
Consequently, the appellants’ reliance on Article 8 of the Convention fails.”
The three children’s subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) was rejected on 21 October 2003. It upheld the impugned ruling of 19 June 2003. It held, inter alia, that the Regional Court had correctly concluded that it had not been established that the first applicant had made any effort to meet the income requirement. Further noting that the first applicant was not permanently and completely unfit for work and having found no indication that she would be permanently unable to meet the income requirement, it concluded that the Regional Court had correctly rejected the applicants’ arguments under Article 8 of the Convention.
On an unspecified date, the first applicant and Haydar were granted Netherlands nationality and, on 28 December 2004, a Netherlands passport was issued to both of them.
On an unspecified date in 2005, the first applicant travelled to Pakistan in order to visit her youngest son Ali who had been admitted to hospital as he was suffering from serious diarrhoea. Two days after having arrived in Pakistan, the first applicant suffered a stroke, causing partial paralysis. She returned to the Netherlands, where she is currently staying in hospital. It is still uncertain whether the stroke she suffered will have any lasting effects. Her son Ali was discharged from hospital in Pakistan after three weeks.
The Netherlands Government pursue a restrictive admissions policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations under international law, if their presence serves an essential national interest, or for compelling humanitarian reasons, with most policy rules for admission being more detailed formulations of this last criterion. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act (“the Act”). On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act (“the Decree” and “the Implementation Guidelines”).
Under the system in force until 1 April 2001, a person having been granted asylum in the Netherlands on grounds of being a “refugee” within the meaning of Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 was in principle entitled to family reunion if his or her family members had joined him or her within a period of six months after his or her admission to the Netherlands. For this specific category, no income requirement applied. However, a limited income requirement had to be met if it concerned family reunion with family members having joined him or her in the Netherlands more than six months after his or her admission to the Netherlands. For persons having been granted a residence permit on any other ground, a higher income requirement applied when family reunion was sought. Persons having been granted a conditional residence permit were not entitled to family reunion under domestic law, as their residence title was only of a provisional nature.
Under the system in force after 1 April 2001, the income requirement for all categories of persons having been granted an “asylum-related” (i.e. on the basis of personal facts and circumstances, or the general situation in the country of origin) residence permit who seek family reunion in the Netherlands is identical. For a person holding an “asylum-related” residence permit, no income requirement applies if his or her family members have joined him or her within three months after his or her admission to the Netherlands. After this date, an income requirement must be met where family reunion is sought. Under the new system, also persons having been granted a temporary residence permit for the purposes of asylum are entitled to family reunion.
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
Pursuant to Article 14 of the Act, a temporary residence permit (verblijfsvergunning voor bepaalde tijd) for the purpose of family reunion may be issued by the Minister for Immigration and Integration if a number of eligibility requirements – set out in Articles 3.13 to 3.22 of the Decree – have been satisfied. These requirements include, inter alia, the possession of a valid provisional residence visa, actual cohabitation in the country of origin (“feitelijk behoren tot het gezin in het land van herkomst”), possession of a valid international travel document, and the person in the Netherlands with whom family reunion is sought having sufficient means of subsistence as defined in Article 3.74 (a) of the Act, i.e. having a net income from work of at least the amount equal to benefits under the General Welfare Act for the corresponding category (such as for instance a single parent).
The Centre for Work and Income (Centrum voor Werk en Inkomen) is an independent administrative body that works on assignment from the Ministry of Social Affairs and Employment (Ministerie van Sociale Zaken en Werkgelegenheid). It is centrally managed and has about 130 offices throughout the Netherlands. It invites employers to offer vacancies and helps and activates job seekers to find work in every possible way. It can further help job seekers to apply for unemployment or supplementary benefits. If attempts to find work are unsuccessful, the municipal social services together with the Centre for Work and Income will do everything possible to provide the person concerned with work or training. If necessary, a route plan will be drawn up. This contains all concrete arrangements that have been made for job application courses, for example, acquiring work experience and participation in a social assimilation.


ITEMID: 001-103739
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF MOLDOVAN AND OTHERS v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The present applications, concerning the living conditions of Romanian citizens of Roma origin living in the village of Hădăreni, Mureş County, follow two other applications that have been joined (nos. 41138/98 and 64320/01). The said applications were lodged with the Court on 14 April 1997 and 9 May 2000 respectively, by twenty-five Romanian nationals of Roma origin living in the above-mentioned village, as a consequence of the inter-ethnic violent events of 20 September 1993 which led to the killing of three people of Roma origin and the burning of eighteen Roma houses.
2. The two applications mentioned above have resulted in a friendly settlement agreement (see Moldovan and Others v. Romania (no 1) (friendly settlement), 5 July 2005), concerning eighteen of the twenty-five original applicants and in a judgment on the merits concerning the remaining seven applicants (see Moldovan and Others v. Romania (no 2), 12 July 2005, ECHR 2005-VII) where the Court found a violation, inter alia, of Articles 3 and 8 of the Convention in respect of the applicants’ living conditions.
3. The applicants in the present cases, some of them also parties to the proceedings in the cases of Moldovan and Others v. Romania (no 1 and 2), cited above, are eighty-six Romanian nationals of Roma origin. They all used to live in the village of Hădăreni, Mures County. Since the events of September 1993 some applicants have returned to Hădăreni, while others have been living in various parts of the country. Mr Dănuţ Moldovan, Ms Florina Lăcătuş, Mr Ionel-Dafin Lăcătuş, Ms Eleonora Rostaş, Mr Nicolae-Florin Moldovan and Ms Maria Moldovan are currently living in Spain; Mr Petrică-Florin Lăcătuş, Mr Ovidiu-Stelian Lăcătuş and Mr Tarzan-Ferdinand Rostaş are living in Switzerland; Ms Elena Moldovan, Mr Cosmin-Florin Lăcătuş and Mr Bazil Moldovan are living in France; Ms Mariana Moldovan is living in Italy; while Ms Lenuca-Petruţa Moldovan is living in Germany.
4. The name and year of birth of each applicant, the date of the lodging of each application and the blood relationships between the applicants are described in the attached table (see annex below).
5. On 25 February 2009 the applicants, who originally either had no representation or were represented by some of the other applicants, sent powers of attorney authorising Mr Ovidiu-Laurenţiu Podaru to represent them before the Court.
6. Consequently, all applicants in all the applications are currently represented before the Court by Mr Ovidiu-Laurenţiu Podaru, a lawyer practising in Cluj-Napoca. The Romanian Government (“the Government”) are represented by their Agent, Mr RăzvanHoraţiu Radu, from the Ministry of Foreign Affairs.
7. The present cases originate in the events which took place in 1993 in the village of Hădăreni and which are summarised in the judgments of Moldovan and Others, (no 1 and 2), cited above. In so far as they concern the current applicants they may be summarised as follows.
8. The applicants are mainly the children, the grandchildren, the nephews and the nieces of the twenty-five original applicants, victims of the events of 20 September 1993. Many of them were minors at the time of the events and were living with their relatives.
9. In the aftermath of the events they were forced to live in hen-houses, stables, pigsties, windowless cellars or in cold and inappropriate conditions (sleeping on concrete and muddy floors, in crowded conditions or in outhouse kitchens without a proper roof or windows) together with their families. Those conditions lasted for several years and in some cases they have not been fully remedied to date.
10. Many applicants consider that as a result they fell ill and developed a number of medical conditions, in particular heart conditions resulting in heart attacks, meningitis and diabetes. Some of them have now also developed mental disabilities. Although they all had access over the years to treatment provided by the national health care system, their limited financial resources and the alleged discriminatory treatment they were faced with in the hospitals and medical private practices prevented them from curing their illnesses.
11. Only some of the applicants have been party to the domestic proceedings. They include, among others, Maria “Raria” Rostaş (Moldovan), Tiberiu Moldovan, Bazil Moldovan, Gabriela Moldovan, Mariana Moldovan and her brothers Octavian Rostaş, Petru-Doru Lăcătuş and Tarzan-Ferdinand Rostaş (the last four applicants as heirs of their mother Rozalia Rostaş). However, none of the said applicants appealed the judgment delivered by the first-instance court during the course of the civil proceedings brought against the third parties convicted for the destruction of their homes.
12. The applicants, who were minors at that time and were legally represented by their parents or grandparents, were not included as parties to these proceedings. They consider, however, that the Public Prosecutor’s Office had an obligation under Article 45 of the Romanian Code of Civil Procedure, taken in conjunction with Article 173 of the Romanian Code of Criminal Procedure, to represent their best interests and to introduce them as parties to the proceedings.
1) The facts of each application, partly in dispute by the parties, can be summarised as follows:
13. The applicants declared that they had fled the village after they had witnessed the burning and destruction of Iulius Moldovan and Maria “Raria” Rostaş’ houses. They sought refuge in the forest, in the fields, in the neighbouring villages and with relatives. When they attempted to return to the village they were met by an angry mob and chased by the police, who fired on them. They declare that their houses were burned down or destroyed by the mob, together with their belongings. Consequently, they were forced to sleep outdoors for various periods of time with no food or clothing. In the aftermath of the events, they were forced to live in pigsties for years with no furniture and some of them, like Costică Moldovan, were beaten by the police. Călina Rostaş, Nadia Moldovan and Virgil-Sorin Moldovan declared that as a result of the living conditions they became physically or mentally ill. In his letter of 19 August 2008 Costică Moldovan informed the Court that he was not party to the civil proceedings before the domestic courts. He argued that the civil proceedings depended on the outcome of the criminal proceedings, and the latter had been rejected for political reasons. Consequently, he did not have the opportunity to lodge his complaints before the domestic courts. Lenuţa and Claudiu Rostaş declared that only one room of their parental home had been renovated with Governmental funds. Radu-Mihai Rostaş considers that he was never able to graduate from school because he was allegedly discriminated against by his colleagues.
14. The Government submitted that Costică and Loredana Moldovan continued to live in Hădăreni and that Loredana had completed the fifth grade at school. Social welfare visits conducted at Loredana’s home in 2001 showed that her family was living in a two-room house with gas and electricity supply. According to a letter of 11 June 2009 from the Mureş Social and Child Protection Agency (the Child Protection Agency), between 4 April 2001 and 30 April 2002 Loredana was registered as suffering from a medium degree of learning disability. Radu-Cristureanu Rostaş was living with his parents in 1993 and their home was not affected by the events. With the exception of Claudiu Rostaş, who lives in Petroşani and has completed the fourth grade at school, Lenuţa, Cosmin-Sebastian and RaduMihai Rostaş live at no 77 Hădăreni and have completed the fifth, seventh and second grades at school, respectively. Their parents’ home was rebuilt with Government funds. Both Nadia and Virgil-Sorin Moldovan have completed the third grade at school.
15. The applicant declared that on 20 September 1993 part of her house and all her belongings were destroyed by the mob, leaving her and her children without shelter. In the aftermath of the events her children became ill because of the inhuman conditions they were forced to live in. She was party to the domestic proceedings and was awarded damages of 240,000 lei (ROL) for the partial destruction of her house by a judgment of 12 May 2003 of the Mureş County Court. She did not appeal against the judgment. 16. The Government submitted that the applicant was living at no. 157 Hădăreni at the time of the events. The Mureş County Court awarded the applicant six euros (EUR) in damages, on the ground that according to the expert report available in the file only the windows of the applicant’s house had been broken as a result of the events. Moreover, according to the said judgment, the applicant declared before the domestic courts that only the windows of her house, four earrings, four icons, a lamp, an armchair and a bed had been destroyed as a result of the events. This contradicts her statement before the Court, where she declared that her house was burned down together with many of her belongings.
17. The applicant declared that in September 1993 she was forced to abandon her home, together with her daughter, her mother, her partner and her siblings. She declares that both she and her daughter have mental health problems as a consequence of the events, and her belongings were destroyed when her mother’s house was set on fire.
18. The Government submitted that at the time of the events the applicant was living at no. 152 Hădăreni, where she continues to reside to date. She had always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services.
19. The applicant declared that at the time of the events he was serving in the army. In November 1993 he returned to the village and he was threatened and hit with stones thrown by some of the villagers. They followed him to his mother’s house, where they continued throwing stones, which damaged the windows and the roof of the house. Following the incident, the applicant spent the rest of his leave at his sister’s house (Alexandrina Rostaş – application no. 13129/04) located in another village. Because he was afraid for his and his family’s safety, he would return to the village of Hădăreni only at night. Since 2003 the applicant has been living in Spain.
20. The Government submitted that the applicant was not present in the village at the time of the events. At the time of the events his official residence was at no. 76 Hădăreni. However, he has been living in Spain since 2003.
21. The applicant declared that at the time of the events she was visiting her relative, Meneluţa Moldovan, and was alone in her relative’s house together with her relative’s three minor children when she was alerted by her mother, Maria Moldovan, that an angry mob had started burning Roma houses in the village. She gathered her relatives and took them all to her house in the village of Cheţani. The applicant believes that both she and her family were affected by the events, in so far as the police stopped seventeen non-Roma individuals from setting fire to the applicant’s home located at Cheţani no. 3. Moreover, she could sell her house in Cheţani village only for a very low price.
22. The Government submitted that the applicant was living at no. 3 Cheţani at the time of the events. From 2002 the applicant was registered as living in Luduş and she had never lived in Hădăreni.
23. The applicants alleged that their house and belongings had been destroyed by the angry mob. In the aftermath of the events, they had had to live for days in stables with no food, electricity or heating. Later on they had sought shelter with family and friends. They declared that as a result of the stress they were subjected to they had become mentally and physically ill. They are allegedly suffering from various degrees of handicap, diabetes and other ailments they have developed as a result of the events, such as loss of hair in Florina Lăcătuş’ case. Ancuţa-Lucreţia, Petruţa-Maria and Iuliu Lăcătuş consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings. Rada-Didina Moldovan, Petruţa-Maria Lăcătuş, Iuliu Lăcătuş and Petru-Valentin Lăcătuş declare that they were discriminated against at school and Florina Lăcătuş stated that she is currently living on a rubbish dump in Spain. In her letter of 29 July 2008 Maria-Gherghina Lăcătuş informed the Court that she was one of the original twenty-five applicants and that she was awarded EUR 13,000 as a result of the friendly settlement agreement.
24. The Government submitted that at the time of the events the applicants were living at no. 114 Hădăreni. With the exception of RadaDidina Moldovan and Florina Lăcătuş, all of them continue to live at the same address. Social welfare visits conducted at the applicants’ home in 2004, 2005 and 2007 showed that the house of the Lăcătuş family had electricity and gas, three rooms, a bathroom and a kitchen and the family’s income consisted of Petru “Gruia” Lăcătuş’ pension and the child allowance awarded by the State for the upbringing of minor children. At the same time Ancuţa-Lucreţia Lăcătuş was living in a house consisting of a room and a kitchen equipped with gas and electricity and located in the same courtyard as her parents’ house, and her income consisted of an allowance for her son. Petruţa-Maria Lăcătuş had completed the eighth grade at school in 1998. On 17 January 2007, 9 April 2008, and 21 and 22 January 2009 Iuliu, MariaGherghina, Petru-Valentin and Ancuţa-Lucreţia Lăcătuş were diagnosed with various degrees of mental disability which they had had since 1976 and 1984. However, they had always had access to adequate medical assistance provided by the general practitioners they are registered with and by the Hădăreni medical assistance services.
25. The applicants alleged that in September 1993 they witnessed the destruction of their house and belongings. They were forced to abandon their house, and sought refuge in a neighbouring village, where they remained for weeks with no food or clothes and slept in the fields. Tiberiu Moldovan declares that he was awarded ROL 1,300,000 in pecuniary damages for the destruction of his house by the Mureş County Court judgment of 12 May 2003. However, he did not appeal against the judgment on the ground that he had left to work abroad and no one was at home to notify him. The judgment has not been enforced to date, although on 25 August 2003 the applicant was informed by the enforcement officer’s office that the judgment had become enforceable and the applicant needed to pay the enforcement fees. They also declare that they had had to borrow money from third parties in order to restore one room of their house and repair their belongings. Moreover, they had developed health problems as a result of the events and the overcrowded living conditions. In a letter of 10 January 2010 Tiberiu Moldovan informed the Court that Petrică-Cidu Moldovan had died by drowning and that he would like to continue his application.
26. The Government submitted that Tiberiu Moldovan, Ţiţo Rostaş, Petrică-Cidu Moldovan, Maria-Gabi Moldovan, Dolfi Rostaş and OlgaMirela Moldovan were living at no. 41 Hădăreni at the time of the events and they continue to live there. They had always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services. Lidia-Sonia Moldovan, Florin Rostaş and Crîşmaru Moldovan were not living in Hădăreni at the time of the events. Between 1981 and 2005 the official legal residence of Lidia-Sonia Moldovan was no. 15 Cuiesd and starting from 2005 no. 32 Crizantemelor Street, Sighişoara. In 1997 Florin Rostaş’ official residence was changed to no. 41 Hădăreni, where he continues to live. In 1995 Florin dropped out of school. Currently the official residence of Crîsmaru Moldovan is no. 3 Tineretului Street in Lupeni. In 1999 Crîşmaru and Petrică-Cidu Moldovan completed the sixth and fourth grades at school respectively. In 2001 Maria-Gabi Moldovan completed the sixth grade, but she no longer lives in the village. In 2002 Dolfi Rostaş had completed the fifth grade and in 2005 he dropped out of school, although he continues to live in the village. Currently Olga-Mirela Moldovan lives in the village of Răuseni.
27. The applicant declared that on 20 September 1993 he was living with his grandmother, whose house was burned down. He allegedly had to live in inhuman conditions for months, was forced to sleep in a pigsty in December, was refused treatment for his illnesses by the doctor, was beaten up by the police and was discriminated against at school. Consequently, he was forced to leave Romania for Spain. He declared that he had become ill as a result of the conditions he was forced to live in for years, and had had to undergo surgery. Moreover, he considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings.
28. The Government submitted that the applicant was living with his grandparents at no 195A Hădăreni at the time of the events. He is currently living in Spain. In 1994 all seven members of his family were living in the kitchen of his parental house, which had been partially destroyed. The applicant and his family received some assistance from the authorities over the years. They were given four blankets in 1993, ROL 4,130,000 in 1994, and their house was rebuilt in 1995. On 19 May 2009, according to the National Authority for Roma (NAR) some more work needed to be done on the applicant’s house: the replacement of six windows and four doors, the reinforcement of the rear wall, paving around the foundations and the installation of drainpipes.
29. The applicants declared that their house and belongings had been burned down or destroyed. They all had to leave the village with no clothes or food. The police refused to help them during the events and they declared that their house had not been rebuilt to date because they did not have title to the house or the land it was built on. Consequently they were all forced to live for four years in a damp cellar. Moreover, they continue to live in overcrowded conditions in another village, sharing two rooms with eight other people. They all suffer from various physical and mental health problems because of the dampness and the cold they were exposed to for several years. The children were discriminated against at school and could not attend school any more. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings.
30. The Government submitted that Lucaci Moldovan and his children were living in Hădăreni at the time of the events in a house that was burned down. They all moved to the village of Frata, where they still live.
31. The applicants declared that in September 1993 their parental home was burned down and they were forced to leave the village. For months they lived in the forest with no food or clothes and slept on the ground. Consequently, they became ill with tuberculosis and other lung and kidney diseases. They were allowed to return to the village only in April 1994, but continued to be discriminated against both at school and on the labour market. They consider that the Public Prosecutor’s Office had failed to discharge its legal obligation to protect the interests of the minor children and introduce them as parties to the proceedings. Petrică-Florin and OvidiuStelian Lăcătuş declared that they had left Romania and were currently living in Switzerland on a rubbish dump.
32. The Government submitted that the applicants were living with their parents at no. 115 Hădăreni at the time of the events and were still living in the village. However, only Nicolae-Romică Lăcătuş is still living with his parents at no. 115. Ovidiu-Stelian Lăcătuş is living at no. 116 with his friend and Petrică-Florin Lăcătuş is living at no. 121. They all attended school in Hădăreni, Nicolae-Romică and Ovidiu-Stelian have completed eight grades, while Petrică-Florin has completed only seven. They have always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services.
33. The applicant declared that in September 1993 her parents’ house was burned down. The house was only partially rebuilt and therefore she had to live in the summer house even during the winter. For years she was forced to sleep on the floor and suffered from the cold every winter; she had no money for medication. Consequently, she became ill. Her parental home was still not finished. She was discriminated against at school even though she had successfully completed eight grades and had enrolled in a technical college in Câmpia-Turzii. Here she continued to be subject to treatment contrary to Article 3 of the Convention. She is currently working in Spain to support her family. She considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings.
34. The Government submitted that the applicant was living with her parents at no. 78 Hădăreni at the time of the events. She continued to live in the village at the same address. She attended school in the village and completed eight grades in 1992. She had always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services.
35. The applicants declared that Radu-Iţoc Moldovan was dead and his widow Maria Moldovan was continuing his application. Their parents’ and grandparents’ house was burnt down and they were forced to leave the village and live for months in a basement and a shed until their parental home was rebuilt. As a result of the conditions they were forced to live in they became ill. Moreover, they continued to be discriminated against at school and in society. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and introduce them as parties to the proceedings. Elena Moldovan declared that she currently lived in France and earned her living by begging, while Lenuca-Petruţa Moldovan lived in Germany.
36. The Government submitted that all the applicants with the exception of Radu-Iţoc, Geta-Romina and Lenuca-Petruţa Moldovan lived at no. 2 Hădăreni. Sandi-Adrian, Aurica and Elena Moldovan do not attend school. Bazil-Cosmin, Robert-Ştefan and Bobi-Aladin Moldovan have completed the seventh, eighth and first grades, respectively. Geta-Romina, LenucaPetruţa and Crina-Simina Moldovan live at no. 227A Hădăreni and they have completed the eighth, eighth and seventh grade respectively. The applicants’ parental home at no. 2 Hădăreni was rebuilt with Government funds.
37. The applicant declared that she provided shelter in her house located in the village of Mărtineşti for her mother and her mother’s husband after her mother’s house was burned down. Moreover, her mother and her mother’s family lived with her until 1995, when their house was rebuilt. She alleged that as a direct consequence of the events in Hădăreni she had been threatened by her neighbours in Mărtineşti with the burning of her house and her children started being discriminated against at school. They were allegedly also refused medical treatment by the local doctor.
38. The Government submitted that the applicant did not live in Hădăreni at the time of the events and she does not live there now. In 2002 her official place of residence was no. 20 Mărtineşti.
39. The applicants allege that their husband and father died following the events of 20 September 1993. Consequently, they had to leave their home and go to the neighbouring villages. They declare that for days they had to live in the fields with no food or clothes, which caused them to become ill. They are still homeless.
40. The Government submitted that Simona-Cerasela Lăcătuş’ husband was killed on 14 October 1993 by three other Roma citizens (Bazil-Sami, Adrian and Bazil Moldovan) with no causal link between his death and the events of 20 September 1993. The applicants were living, and still live, at no. 111 Mărtineşti.
41. The applicant alleges that following the events in September 1993 he became mentally ill. He declares that he was saved from the flames which burned down his parents’ house by his grandparents. His belongings were destroyed by the fire and his parental home has not been rebuilt to date. He was discriminated against at school and therefore completed only five grades. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and introduce him as party to the proceedings. He is currently living in France.
42. The Government submitted that the applicant was living with his grandmother at no. 1 Hădăreni at the time of the events. The applicant attended school in the village until 2005. He is currently enrolled in sixth grade but he abandoned school. He continues to live with his grandmother, who is also raising him. On 12 July 1996 the Commission for the Protection of Minor Children working within the Mureş County Council (the Child Protection Commission) decided to entrust the applicant to his grandparents on account of his family situation (his father was in prison and his mother had abandoned him), following a social enquiry which examined the living conditions of his grandmother and assessed whether he could be entrusted to her for upbringing. From 1996 he was monitored by the relevant local authorities and offered assistance relevant to his needs. On 4 April 2001 the Medical Commission for Children with Mental Disabilities diagnosed the applicant with “minor mental disability and behavioural problems” and acknowledged that the applicant has a third-degree mental disability. He has always had access to adequate medical assistance provided by the general practitioner he is registered with and by the Hădăreni medical assistance services. On 29 September 2006 the Child Protection Commission decided to discontinue the special support measures awarded to the applicant and the special allowance given to his grandmother. His medical file of 19 July 2007 states that the applicant’s condition was present at his birth.
43. The applicants allege that their parents’ house was burned down in September 1993 and has not yet been rebuilt. Their family sought refuge at their grandparents’ house, but that house was also burned down. They left the village and hid in the woods for three days with no food or clothes. Consequently, as a result of the cold they became physically and mentally ill. The applicants also declare that as a result of the events they were discriminated against at school and were unable to graduate. Eventually, on an unspecified date they moved to the village of Teaca. They consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings.
44. The Government alleges that the applicants, with the exception of Sabina Moldovan, lived with their mother at no. 170 Hădăreni at the time of the events. Between 1997 and 2001 Adrian-Silviu Moldovan attended school in Hădăreni. Currently, Adrian-Silviu and Adriana Moldovan live at nos. 131 and 170 Hădăreni respectively, and they have always had access to adequate medical assistance provided by the general practitioner they are registered with and by the Hădăreni medical assistance services. Adrian-Silviu Moldovan is being treated for diabetes. Sabina Moldovan was living in the village of Pinticu at the time of the events and she is currently still registered as living in the same village, as a farmer. Moreover, her mother did not mention her in her statement following the events of Hădăreni where she declared that she was living in the village with her other two children. On 30 January and 6 February 2003 the Pinticu local authorities twice visited Sabina’s address at no. 25 Pinticu to check whether she is eligible for social welfare.
45. The applicant declared that at the time of the conflict she was living with her parents at no. 183 Hădăreni. They were forced to leave the village for five months and did not have a proper place to sleep. As a result she developed a heart condition and she continues to have to use special medication. Moreover, for years her family had to share a single room with the roof and the windows covered with cellophane. She stated that she was discriminated against by her school teachers and consequently she had to abandon school.
46. The Government submitted that the applicant was living with her parents at the time of the events. Between 1987 and 1992 she attended school in the village, but in 1996 she stopped going to school. Currently she lives in her own house in the village at no. 212 and is the beneficiary of social aid awarded by the Cheţani Mayor’s Office. She has always benefited from adequate medical assistance provided by the general practitioner she is registered with and by the Hădăreni medical assistance services.
47. The applicants alleged that in September 1993 their house was burned down. They were forced to leave their house and were not allowed by the local police to return to the village. Consequently, they had to sleep outdoors and they became physically and mentally ill. The same local police used mace on them and beat up Adrian “Costică” Moldovan’s wife. She allegedly lodged a criminal complaint against the police with no results. Adrian “Costică” Moldovan declared that his wife, whose application he continues, died as a result of the fear caused by the beating. Nicolae-Florin Moldovan alleges that as a result of the events he started being discriminated against at school and had to abandon school. Moreover, Nicolae-Florin and Maria Moldovan consider that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce them as parties to the proceedings.
48. The Government submitted that the applicants lived at no 195A Hădăreni at the time of the events. Their house was rebuilt in 1995 from Government funds. On 19 May 2009, according to the NAR, more work needed to be done on the applicants’ house: the replacement of six windows and four doors, the reinforcement of the rear wall, paving around the foundations and installation of drainpipes.
49. The applicant alleged that as a result of the events of 20 September 1993 her parental home was destroyed and she was forced to sleep on the floor for a long time. Consequently, she developed a number of lung problems. Moreover, at school she was discriminated against by her teachers and classmates and as a result of the stress she had to endure at school she developed psychological problems. She considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce her as party to the proceedings.
50. The Government submitted that the applicant was living with her grandmother at no. 1 Hădăreni at the time of the events. On 12 July 1996 the Child Protection Commission decided to entrust the applicant to her grandparents on account of her family situation (her father was in prison and her mother had abandoned her), following a social enquiry which examined her grandmother’s living conditions and assessed whether the applicant could be entrusted to her for upbringing. Until 29 June 2006 the applicant was granted a special allowance because she had been entrusted to her grandparents to be brought up. From that date the allowance was discontinued by the Child Protection Commission on the ground that the applicant’s father had been released from prison and he was living with her and her grandparents. Starting from 1996 the applicant’s situation was periodically examined by the local social services and followed up by social enquiries, reports and psychosocial investigations, which did not recommend that the applicant be enrolled in a social protection programme. She always had access to adequate medical assistance provided by the general practitioner she was registered with and by the Hădăreni medical assistance services. At the end of 2006 she graduated from school in Hădăreni and is currently enrolled in a school in Turda. She is living in Hădăreni with her family. According to the information provided by the NAR., the Mureş County Council, the Mureş Prefect’s Office and the United Nations Development Programme (UNDP) the house owned by her grandmother has been restored and repaired.
51. The applicants alleged that on 20 September 1993 their parents’ house was destroyed by the villagers. They were forced to leave the village for months. In the aftermath of the events, their family was forced to live in one damp room covered with cellophane, sleeping on the floor and without electricity. Consequently, they became ill. Moreover, they declared that they were discriminated against at school by their teachers.
52. The Government submitted that the applicants were living in Hădăreni at the time of the events together with their parents. However, they are currently living in Lugoj (Ramona-Paraschiva and Mirela-Geanina) or elsewhere (Gabriel-Marius and Aurel-Matei).
53. The applicant alleged that following the events of September 1993 he had suffered burns in the fire which destroyed his parents’ house and had been forced to live outdoors for months. Moreover, in October 1993 he was chased and beaten by the police. Consequently, he became ill and was left with a disability which prevented him from supporting his family. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings.
54. The Government submitted that the applicant continued to live in the village and was the recipient of social aid from the local Mayor’s Office.
55. The applicant alleged that following the events of 20 September 1993 his parents’ house was burned down. Consequently, he was forced to live outdoors for two months. As a result he developed lung problems and a physical disability which prevented him from supporting his family. Moreover, in October 1993 he was chased and beaten by the police. He declared that he was discriminated against at school by his teachers and colleagues. He considers that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as party to the proceedings.
56. The Government submitted that the applicant was living with his parents at no. 195A Hădăreni at the time of the events and that he continues to live in the village to the present.
57. The applicants alleged that in September 1993 their house was burned down and they were forced to leave the village. They were not able to take any clothes or food with them. As a result they are currently suffering from a number of physical and mental disabilities, including meningitis and serious eye problems, which they are unable to have treated due to lack of money. They declared that in 2001 they left the village of Hădăreni and they now live in the village of Unirea. Moreover, SibiancaLămîiţa Lăcătuş also declared that she was discriminated against by her school teachers.
58. The Government submitted that the applicants were all living at no. 152 Hădăreni at the time of the events. According to the Mureş Prefect’s Office, in 1994 the members of Valentina Rostaş’ family were housed by one of her sisters. Moreover the applicants were granted some aid by the authorities (two blankets) and in September 1995 their house was rebuilt with Government funds. Apart from Sibianca-Lămîiţa Lăcătuş, none of them now live in Hădăreni.
59. The applicants declared that their house was burned down. They left the village and walked twenty-five kilometres to the village of Unirea, where their relatives live. They alleged that they continued to live with their relatives to date and their house in Hădăreni had not been rebuilt.
60. The Government submitted that while the applicants had been living in Hădăreni at the time of the events they are currently living in Unirea.
61. The applicants alleged that for five years they were unable to return to the village. They declared that they had suffered physical and mental traumas as a result of the events. Moreover, their family has had to sell the house they owned in the village for an unreasonably low price.
62. The Government submitted that the applicants were living with their parents in Hădăreni at the time of the events. Afterwards their family left the village and moved to the village of Unirea.
63. The applicant alleged that his parents’ house was burned down. Consequently, he was forced to raise his children in inhuman conditions. He declared that he was a civil party to the domestic proceedings of 12 January 2001, but did not appeal against that, judgment, on the ground that he was under arrest at the time and was not summoned. He also declared that he had been discriminated against and was unable to find a job. Consequently, he left Romania and is currently living in France on a rubbish dump.
64. The Government submitted that the applicant was in prison for murder at the time of the events and did not own a house. Currently he lives at no. 2 Hădăreni. His parents’ house was burned down and was subsequently rebuilt with Government funds.
65. The applicant alleged that in September 1993 her parents’ house was burned down and she had to leave the village together with her three children. They were forced to live with relatives in inappropriate conditions for five months. Until their house was repaired the entire family lived in one room with no electricity. In so far as her house was renovated with Government funds, the applicant declared that the Government only provided beams, one door and two windows. Moreover, the roof had to be improvised out of nylon and other materials that offered extremely poor insulation. She further declared that she could not send her children to school because of their living conditions. Consequently, her children left Romania and are currently living abroad on rubbish dumps. Moreover, she was a civil party to the domestic proceedings of 12 January 2001, but failed to appeal against the said judgment.
66. The Government submitted that the applicant was living in her parents’ house at the time of the events. Currently she lives at no. 227A Hădăreni. The house was rebuilt with Government funds. On 19 May 2009, according to the NAR, some more work needed to be done on the applicant’s parents’ house: repairs to all the ceilings in the house, the roof and the replacement of three or four windows.
67. The applicants alleged that following the events of 20 September 1993 they were discriminated against at school. Their parents’ home was totally destroyed. For half a year they were forced to live in a field in a hut made of clay. Afterwards they moved into a house with broken windows and a missing roof and were forced to sleep on the floor for three years. Mariana Moldovan declared that she was forced to go to Italy to work in deplorable conditions in order to be able to support her family, while Tarzan-Ferdinand Rostaş left for Switzerland. By a judgment of 12 May 2003 Mureş County Court awarded the applicants jointly ROL 10,000,000 in compensation for the partial destruction of their home. The applicants did not appeal against the said decision. They allege that their parents died of heart attacks as a result of the conditions they were living in. Moreover, Mariana Moldovan herself has the same heart condition. The parental home has not been rebuilt to date. Tarzan-Ferdinand Rostaş considered that the Public Prosecutor’s Office failed to discharge its legal obligation to protect the interests of the minor children and to introduce him as a party to the proceedings.
68. The Government submitted that the applicants’ house had not been affected by the events. At the time they were all living at no. 49 Hădăreni. In 1989 and 1993 Octavian Rostaş and Petru-Doru Lăcătuş completed the first grade at school, while Tarzan-Ferdinand Rostaş has never attended school.
69. The applicant alleged that his house has not been rebuilt to date, although it was burned down in 1993. He declares that he currently lives in a single room next to a stable and has been living there for the last eighteen years. As a result, he and his children have developed a number of medical conditions and he even had to undergo surgery as a result of the stable flies which invade his room regularly. He considers that the just satisfaction awarded by the Court is also discriminatory, because the amount awarded to him for damages was very small.
70. The Government submitted that the applicant was in prison at the time of the events, following a conflict between Roma families which led to the killing of a third party. His house at no. 1 Hădăreni was burned down during the events and was not rebuilt with Government funds. Currently he lives in Hădăreni with his girlfriend. He has always had access to adequate medical assistance provided by the general practitioner he is registered with and by the Hădăreni medical assistance services.
71. The applicant alleged that following the events of 20 September 1993 his house was burned down and he was forced to sleep outdoors. As a result he suffered a number of health problems and continued to be discriminated against. He considers the present application to be his first one before the Court referring to the burning of his home, which has not been rebuilt to date. He declared that he was beaten up several times because he was of Roma origin but was too afraid to go to the police.
72. The Government submitted that the applicant was living at no. 78 Hădăreni at the time of the events and his house was burned down. He is currently living at the same address and his house has been rebuilt with Government funds. He is a beneficiary of the medical insurance system and receives free or subsidised medicine.
73. In relation to all thirty applications, all applicants consider the statements made by the Government in respect of some of them in order to prove they were not living in the village at the time of the events partial and misleading. In particular, this is because the Government relies mainly on the information provided in the applicants’ identity cards, which may not be entirely accurate, taking into consideration the lack of adequate identity and property papers available for Roma people.
74. The applicants also contest the Government’s allegations that some of their houses have not been affected by the conflict. They claim that all the houses have been affected.
75. On 12 January 2001, following the discontinuance of the criminal investigation against the police officers involved in the incident and the criminal conviction and sentencing of twelve civilians, the Mureş Regional Court delivered its judgment in the civil case. The court noted that the victims had claimed compensation for pecuniary damage resulting from the destruction of the houses and their contents (furniture and so on), as well as compensation for non-pecuniary damage. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts. Basing its decision on an expert report, the court awarded compensation for pecuniary damage for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded compensation for pecuniary damage in respect of the partial or total destruction of the houses of six Roma. The court rejected the other applicants’ request for compensation for pecuniary damage in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same as or higher than the original buildings. It further refused all applicants, including Bazil and Gabriela Moldovan (applications nos. 34568/07 and 48126/07), damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets.
76. The court finally rejected all the applicants’ claims in respect of non-pecuniary damage on the ground that they had not been substantiated, and that the crimes committed were not of a nature to produce such damage.
77. The court ordered the villagers convicted in the criminal trial to pay the damages awarded.
78. Relying on some procedural errors in the Mureş County Court’s judgment, some of the applicants, with the exception in particular of Bazil and Gabriela Moldovan (applications nos. 34568/07 and 48126/07), lodged an appeal with the Mureş Court of Appeal.
79. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş County Court: the hearings had been held in the absence of the accused and their lawyers; one of the applicants had not been summoned; the public prosecutor had not been given leave to address the court and a number of expert reports ordered by the court had not been completed. The Court of Appeal quashed the judgment of 12 January 2001 and ordered a new trial of the case.
80. In the second procedural cycle, the Mureş County Court delivered its judgment in the civil case on 12 May 2003. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the civilians found guilty by the criminal court in respect of the destruction of the applicants’ houses to pay damages to some of the applicants for the destruction of their homes, including the following:
(a) Maria “Raria” Rostaş who was awarded EUR 6;
(b) Tiberiu Moldovan who was awarded EUR 35;
(c) Mariana Moldovan, Octavian Rostaş, Petru-Doru Lăcătuş and Tarzan-Ferdinand Lăcătuş (as heirs of Rozalia Rostaş) who were awarded jointly EUR 287.
81. The courts also ordered that the amounts be revised to take account of any devaluation in the national currency:
82. However, the court rejected all the applicants’ claims in respect of non-pecuniary damage, on the ground that they were not substantiated.
83. None of the above-mentioned applicants appealed against the Mureş County Court judgment of 12 May 2003.
84. The civil proceedings ended with the final judgment of 25 February 2005 of the Court of Cassation, with the domestic courts also awarding the appellants non-pecuniary damages.
85. Following the conclusion of the domestic civil proceedings and of the proceedings before the Court in respect of the twenty-five original applicants, an enforcement file was opened with the Enforcement Officers’ Office for a number of applicants, including Tiberiu Moldovan.
86. The applicant Tiberiu Moldovan was informed by the Enforcement Officers’ Office that the judgment had become enforceable and the applicant needed to pay the enforcement fees.
87. The villagers contested the enforcement proceedings of the said judgments and asked for the temporary suspension of the enforcement proceedings until their action seeking to contest the enforcement of the domestic judgments was examined by the domestic courts.
88. By a final President’s Order of 2 September 2005 the Luduş District Court allowed the villagers action, against, inter alia, Tiberiu Moldovan, seeking the suspension of the enforcement of the judgments delivered by the domestic civil courts. The court grounded its judgment on the potential damage that might be suffered by the third parties in the event the domestic judgments were enforced without first waiting for the outcome of the contestation of the enforcement procedure. Consequently, the court temporarily suspended the enforcement proceedings while the proceedings contesting the enforcement were still pending before the domestic courts.
89. By a final judgment of 19 January 2007 the Mureş County Court allowed in part the third parties’ action contesting the enforcement of the domestic judgments awarding the individuals of Roma origin civil damages following the events of 20 September 1993, on the ground that the said damages had been incorporated into the sums awarded by the European Court of Human Rights as just satisfaction or as part of the friendly settlement agreements accepted by the applicants following the Moldovan and Others judgments, cites above. The applicant Tiberiu Moldovan was not party to the proceedings, which ended on 19 January 2007, and therefore the said judgment is not applicable to him.
90. In a letter of 15 May 2009 addressed to the Government the Enforcement Officers’ Office stated that except for Petru Lăcătuş no other enforcement requests had been lodged by any of the creditors, Tiberiu Moldovan in particular, in the enforcement file no. 66 of 2003 concerning the domestic judgments. Moreover, even in Petru Lăcătuş’ case he withdrew his request and was reimbursed the enforcement fee he had already paid.
91. The Enforcement Officers’ Office also stated that according to Article 399 of the Romanian Code of Civil Procedure and Article 53 of Law No. 188 of 2000 any of the creditors could have brought proceedings before domestic courts against any bailiff refusing to perform his or her duties concerning any act of enforcement. However, no such proceedings were lodged by any of the applicants.
92. The judgment of 12 May 2003 remains unenforced to date.
93. By decision no. 636 of 19 November 1993, the Romanian government allocated ROL 25,000,000 for the reconstruction of the houses destroyed by fire on 20 September 1993. The government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items which were strictly necessary and had been destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance.
94. By a government decision of 30 November 1993, a commission for the coordination of the reconstruction of the houses was created. Members of this commission included the mayor of Cheţani and his deputy.
95. In a letter of 30 June 1994 addressed to the government, the Prefect of Mureş indicated that an additional amount of ROL 53,000,000 was needed to rebuild the remaining ten houses.
96. By decision no. 773 of 25 November 1994, the government granted an additional sum of ROL 32,000,000 from funds which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. However, some of the constructions suffered from building defects.
97. In a letter addressed to the prefect in 1995, the mayor of Cheţani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems”: in particular, one of the houses to be rebuilt was on land near the family of the non-Rom victim (Cheţan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma who had died during the 1993 events. It appeared that after the events the Lăcătuş family had moved to the city of Luduş, so the mayor had proposed that a house be built for them at a place of their choice.
98. On 4 May 2006 the Government published in Official Journal No. 385 the Development Programme for the Community of Hădăreni for 2006-2008 (the Programme) which had previously been adopted. The Programme allocated 3,487,000 new Romanian lei (RON) for a number of areas, such as education (including health and justice education), combating discrimination, prevention of domestic or community violence, professional training, employment, culture, development of infrastructure and so on.
99. On 17 July 2007 the responsibility for the implementation of the Programme was transferred to the United Nations Development Programme (UNDP) which in turn contributed 10% of the total sum allocated for the 2007-08 period. The NAR was charged with the supervision and appraisal of the implementation process.
100. The NAR, the Cheţani Mayor’s Office and a local initiative group discussed the priority task that needed to be performed taking into account the available budget.
101. By the end of 2007 six houses affected by the events of 1993 had been rebuilt inside.
102. According to the report of 6 October 2008 concerning the prospects for the Hădăreni Roma community, Government Decision No. 734 of 11 July 2007 had allocated in 2007 ROL 9,000,000,000 for the implementation of the Programme. The money was used to build twelve kilometres of paved roads, to rehabilitate six houses, to install a heating system for the school and to partially refurbish the school and the local activities centre.
103. Between September 2006 and December 2007 a number of awareness raising campaigns, workshops and training sessions were organised with the involvement of the local Roma community, the authorities, the media and the police force. They focused mainly on combating discrimination, access to public health services and to education, inter-ethnic communication and professional qualification for professions in demand on the labour market.
104. By Government Decision No. 980 of 29 August 2008, the Government allocated RON 2,160,000 to the NAR in order for the Agency to be able to continue the implementation of the Programme. The UNDP also contributed RON 133,488 during 2008.
105. The activities performed over the course of the year included: the complete rehabilitation of six houses; the drafting of building plans for three other houses, a medical centre and an industrial building for those who are economically active; the signing of a contract for the building of a local school and the refurbishment of the local activities centre.
106. According to appraisal reports of 13 and 17 March, 2 and 29 April and 6 and 12 May 2009 the local kindergarten, the local activities centre and the local school have all been entirely rebuilt and all the building defects previously identified repaired.
107. Also, the local authorities have drafted a detailed action plan for the year 2009, which included as a first stage the encouragement of inter-ethnic and social dialogue, of community cooperation and of the development of economic activities in the region.
108. The second stage of the plan concerned the building of three new homes, the rehabilitation of ten others, encouraging profitable activities in the region and the organisation of awareness-raising seminars in respect of themes such as post-ethnic-conflict regions.
109. The above-mentioned action plan for 2009 extended the time frame of the initial Programme until 31 December 2009. The necessary budget was estimated at RON 1,750,045 with the Government and the UNDP providing the financial support, while further information of the implementation of the action plan would be provided to the Committee of Ministers of the Council of Europe as per its latest decision of September 2010.
110. The relevant legal provisions, including the relevant provisions of the Romanian Civil Code, Code on Civil and Criminal Procedure, Law No. 188/2000 concerning enforcement officers, and the relevant case-law, are set forth in the judgments Moldovan and Others v. Romania (nos. 41138/98 and 64320/01, §§ 79-85, 12 July 2005); Ursu v. Romania (no. 58670/00, (dec.), 3 May 2005); Kalanyos v. Romania (no. 57884/00, (dec.), 9 December 2003); Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006).
111. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it.
“Against the enforcemnet or any acts of enforcement, any person, including any person who has suffered a damage as a result of the enforcement can contest the enforcement proceedings. At the same time... the enforcement proceedings can be contested ... when the enforcement officer refuses to carry out an act of enforcement as required by the applicable legal provisions.”
Case-law of the domestic courts
112. The Government submitted a number of final judgments delivered between 1996 and 2009 by both criminal and civil domestic courts belonging to various territorial jurisdictions. The civil proceedings brought by victims of various unlawful acts committed either by third parties or by state agents whose criminal liability had been established have been allowed and the victims have been awarded compensation. In all the cases the said victims have either joined the criminal proceedings as civil parties or have brought separate actions for compensation on the basis of general tort law, namely Articles 998-999 of the Civil Code.