ERRC files against Romania

12 April 2000

Branimir Pleše

On March 12, 2000 the ERRC lodged applications against Romania with the European Court of Human Rights regarding two notorious community violence incidents from the early 90’s (namely, Casinul Nou and Plaiesii de Sus).

Casinul Nou

On August 11, 1990, following a period of increased hostility between Roma and non-Roma residents of Casinul Nou, Romania, and amid accusations that local Roma had engaged in theft, approximately 400 predominantly ethnic Hungarian villagers chased out the entire Romani population and burned or otherwise destroyed their houses and property. As a consequence 150 people were left homeless, while many others faced a very real threat of being lynched.

In aftermath of the incident (August 1990), Romani residents of Casinul Nou filed a criminal complaint with the Harghita County Prosecutor’s Office. In addition to outlining the facts of the case, the complainants identified a number of individuals as responsible for what had happened. Following the filing of the complaint, several witnesses were questioned by the police. A few gave detailed statements as to how the event unfolded, what their own role was, and who the other people involved were. At the same time, however, the police failed to conduct an on-site investigation and found no reason to have forensic experts ascertain the pecuniary damage caused by the savage act at issue.

On November 27, 1990, the Harghita County Prosecutor’s Office issued a decision to terminate the investigation of the case — arguing that given the large number of people involved it was impossible to identify the perpetrators. However, on February 22, 1991, the General Prosecutor’s Office overturned this decision and ordered that the investigation be reopened with a view to identifying the perpetrators. The General Prosecutor’s Office specifically stated that the fact that numerous people were involved in the incident could not be regarded as grounds for terminating the investigation. On September 10, 1991, more than a year after the incident and almost six months following the order of the General Prosecutor’s’ Office, the Harghita County Prosecutor’s Office requested the Harghita County Police to reopen the investigation. On October 3, 1991, the police heard a few witnesses all of whom declared they knew nothing about the events in question. On September 7, 1995, the Harghita County Prosecutor’s Office again issued a decision to terminate the investigation. Given these facts it follows that for almost four years (from October 3, 1991, to September 7, 1995) no police investigation was undertaken.

On April 23, 1998, attorney Vasil Ghere of APADO (Lawyers Association for the Defence of Human Rights¹), filed a submission with the prosecution Department of the Tîrgu Mureş Court of Appeal. He requested therein that the competent prosecuting and investigative authorities should undertake the necessary steps to identify the perpetrators and secure their conviction. In addition, he requested that he be allowed to obtain access to the case files. On April 29, 1998, the Prosecution Department of the Tîrgu Mureş Court of Appeal responded with a communication stating that Mr Ghere was obviously not acquainted with the facts of the case and that therefore his impression that there was a lack of willingness on the part of the authorities to conduct an adequate investigation of the circumstances of the case was groundless. Mr Ghere’s request to obtain access to the case files was dismissed due to the fact that he had produced no evidence to prove that he was acting as a representative of the victims.

On July 6, 1998, Mr Ghere again wrote to the Prosecution Department of the Tîrgu Mureş Court of Appeal and simply stressed that he was only requesting the prosecuting authorities do their job according to law. To the letter he attached a power-of-attorney signed by one of the victims authorizing him to act as his representative and again asked to be granted permission to examine the files. In a communication dated July 10, 1998, the Prosecution Department of the Tîrgu Mureş Court of Appeal finally granted Mr Ghere access to the files.

Thereafter attorney Ghere, as an authorised representative of one of the victims, filed a new criminal complaint with the Prosecution Department of the Supreme Court. This department referred the case to the Prosecution Department of the Tîrgu Mureş Court of Appeal, which on October 5, 1998 sent Mr Ghere a notification informing him about its decision. It stated that with respect to the criminal offence at issue — destruction by arson (Article 217 of the Criminal Code) — no criminal charges can be brought because the statute of limitations for the crime expired after a period of five years commencing with the date when the offence was committed. At the same time, the Prosecution Department of the Tîrgu Mureş Court of Appeal also concluded that there was no evidence indicating that an aggravated form of destruction by arson — i.e. qualified destruction — pursuant to Article 218. Para 1. of the Criminal Code had been committed. Thus the longer prescription period which applied to this crime (ten years) was not considered relevant.

The reasons given for this decision, inter alia, disclosed that the Prosecution Department of the Tîrgu Mureş Court of Appeal had found that the offence at issue had been committed “due to serious provocative acts of the victims".

On October 28, 1998, Mr Ghere appealed this decision to the Prosecution Department of the Supreme Court which on January 16, 1999, confirmed the decision of the Prosecution Department of the Tîrgu Mureş Court of Appeal. This was the final decision in the case.

In view of the facts, as outlined above, it is obvious that the Romanian authorities have failed to carry out an adequate investigation into the incident² and to provide redress to the victims of the Casinul Nou tragedy.

On 12 March 2000, on behalf of one of the victims, the ERRC filed an application with the European Court of Human Rights in Strasbourg, alleging that the Casinul Nou incident discloses violation of a number of rights secured under the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the following:

• Article 3 — Notwithstanding the existence of abundant evidence to identify the perpetrators, the authorities have failed to carry out a prompt, impartial and effective investigation and to provide redress to the applicant for the community violence she had been subjected to — i.e. her home having been burnt and she herself having faced a real risk of being lynched.
• Article 6 (1) — Under Romanian law and practice, the authorities’ failure to carry out an adequate criminal investigation culminating in formal charges and a conviction has deprived the applicant of her right to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal in the determination of her civil rights to establish liability and recover damages for the injury she had suffered.
• Article 8 — The failure of the authorities to carry out a prompt, impartial and effective investigation and to provide redress to the applicant for the community violence she had been subjected to — i.e. the destruction of her home and possessions — amounts to a breach of the applicant’s right to respect for her home, private and family life.
• Article 1 of Protocol I — The facts of the case disclose a clear violation the applicant’s right to peaceful enjoyment of her possessions, namely, that the Romanian authorities have failed to provide redress for the destruction of the applicant’s home as well as her possessions.
• Article 13 — The applicant has been denied an effective remedy for the ill-treatment she had suffered and the destruction of her possessions.
• Article 14, in conjunction with Articles 3, 6 (1), 8, 1 Protocol I and 13 — The violations the applicant suffered as a result of community violence, and the inadequate investigation which followed, were due in substantial part to her Romani ethnicity.

Plaiesii de Sus

On June 6, 1991, in Plaiesii de Sus, Romania, a fight started between four Romani men and a non-Roma night guard after the night guard had called them “dirty Gypsies".

Shortly after the incident, out of revenge, a crowd consisting of predominantly ethnic Hungarian villagers assaulted and beat A.K. and A.M — two entirely different Romani men. As a result of the injuries sustained both of them eventually died.

On June 8, 1991, a public notice appeared on the outskirts of the Romani settlement, informing the inhabitants that on June 9, 1991, Sunday evening, their houses would be set on fire. The Roma informed both the police and the village municipality, but to no avail. Nobody intervened. Moreover, the Roma were “advised" by the authorities to leave their houses for their own safety.

On Sunday afternoon, the Roma fled from their homes to a nearby stable belonging to the local co-operative farm. An organised group of non-Roma villagers then cut the electrical wires leading to the Romani settlement, knocked down the telephone pole connecting the village with the neighbouring village of Miercurea Ciuc, and then set all of the 28 Romani houses on fire — those belonging to the applicants included. Both the houses and all of the personal/household possessions therein were completely destroyed.³

For a year following the incident, the Roma families with numerous children were forced to live in nearby stables in subhuman conditions. The stables had no heating, no running water. The Roma concerned, managed to make ends meet solely thanks to the help of their friends and family.

A year after the pogrom the Romani houses were rebuilt by ethnic Hungarian villagers who had set them on fire. None of the Roma ever received compensation for the destruction of their personal and household possessions.⁴

In the aftermath of the incident Harghita County Police Department allegedly started an investigation. In order to obtain access to the case file, Mr Silviu Jecu of APADO contacted the police and the Mayor’s office. In a subsequent unpublished APADO report from May 1996, Mr Jecu stated that both had categorically refused to allow him to examine the case file and that they had expressed the opinion that the Roma themselves, or “Gypsies" as they put it, were to blame for what had happened – the reason for this being that they “steal for a living and are aggressive towards other people". The case files were labelled “unknown offenders". Mr Jecu was also told that the investigation for the crime of destruction by arson, related to the community violence incident at issue, due to prescription, would be terminated on June 9, 1996. In addition, the officials stressed that for the same reason the homicide investigation into the death of A.K. would also be terminated on June 9, 1998. Mr Jecu was told that due to approaching prescription no further investigation was planned.⁵ Finally, both the Mayor’s office and the police officials said that given the large number of people involved in the incident it was impossible to identify the perpetrators.

On April 23, 1998, attorney Vasil Ghere of APADO filed a submission with the Prosecution Department of the Tîrgu Mureş Court of Appeal. He requested therein that the competent prosecuting and investigative authorities should undertake the necessary steps in order to identify the perpetrators of both the community violence incident at issue and of the murders and subsequently to secure their conviction. In addition, he requested that he be allowed to obtain access to the case files. Finally, in the submission Mr Ghere stated that the absence of an adequate investigation into the incidents to date appears to be due to the fact that the victims in the instant case were Roma.

On July 6, 1998, Mr Ghere again filed a submission with similar contents with the Prosecution Department of the Tîrgu Mureş Court of Appeal. To the submission he attached authorization forms signed by the applicants. Finally, Mr Ghere was allowed to examine the case files and on July 8, 1998, he did so.

From the content of the case files it became apparent that on June 27, 1996, a single file was split into two separate files Nos. 102/P/1991 and 7/P/1991 — one regarding the community violence incident and the other with respect to the death of one of the individuals killed in the anti-Roma revenge attack which was a result of mistaken identity. Neither contained evidence that a comprehensive or indeed any relevant official investigation had been undertaken by the competent authorities. Regarding the crime of destruction by arson — i.e. the community violence at issue it appeared that the case had been closed because of the applicable prescription period.

Finally, given the indivisible factual context of the events at issue, there seems to have been no justification for the creation of separate case files.

On July 14, 1998, Mr Ghere, as an authorized representative of the applicants, filed a complaint with the Prosecution Department of the Supreme Court. Regarding both arson and homicide, he requested that the competent prosecuting and investigative authorities undertake the necessary steps to identify the perpetrators and secure their conviction. On August 6, 1998, the Prosecution Department of the Supreme Court informed Mr Ghere that his complaint had been forwarded to Prosecution Department of the Tîrgu Mureş Court of Appeal which on October 9, 1998, notified Mr Ghere that the complaint had been rejected. Reasons given for this decision, inter alia, disclosed that the Prosecution Department of the Tîrgu Mureş Court of Appeal had found that the offence at issue had been committed “due to serious provocative acts of the victims" and implied that given the large number of people involved it was impossible to identify the perpetrators. Finally, it was stated that the investigation of the community violence incident at issue and that of the death of A.K. were unrelated. (It should be noted that the reasoning referred to was not stated in the October 9, 1998 decision itself but as an appended note in the prosecutor’s file which counsel for the applicant discovered while examining its contents.)

On October 28, 1998, Mr Ghere appealed this decision, on behalf of the applicants, to the Prosecution Department of the Supreme Court which on January 21, 1999, having examined the merits of the case, confirmed the decision of the Prosecution Department of the Tîrgu Mureş Court of Appeal. This was the final decision in the instant case.

In view of the facts outlined above, there are strong indications that the Romanian authorities have failed to carry out an adequate investigation into the incident⁶ and provide redress to the victims.

On 12 March 2000, on behalf of several victims, the ERRC filed an application with the European Court of Human Rights in Strasbourg, and alleged that the Plaiesii de Sus incident discloses violation of a number of rights secured under the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the following:

• Article 3 — Notwithstanding the existence of evidence to identify the perpetrators, the authorities have failed to carry out a prompt, impartial and effective investigation and to provide redress to the applicants for the community violence to which they had been subjected.
• Article 6 (1) — Under Romanian law and practice, the authorities’ failure to carry out an adequate criminal investigation culminating in formal charges and a conviction has deprived the applicants of their right to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal in the determination of their civil rights to establish liability and recover damages for the injury they suffered.
• Article 8 — The failure of the authorities to carry out a prompt, impartial and effective investigation and to provide redress to the applicants for the community violence they had been subjected to — i.e. the destruction of their homes and possessions — amounts to a breach of the their right to respect for their home, private and family life.
• Article 1 of Protocol I — The facts of the case disclose a clear violation the applicants’ right to peaceful enjoyment of their possessions, namely, that the Romanian authorities have failed to provide redress for the destruction of the applicants’ homes as well as their possessions.
• Article 13 — The applicants have been denied an effective remedy for the ill-treatment they had suffered and the destruction of their possessions.
• Article 14, in conjunction with Articles 3, 6 (1), 8, 1 Protocol I and 13 — The violations the applicants suffered as a result of community violence, and the inadequate investigation which followed, were due either exclusively or in substantial part to their Romani ethnicity.

A number of applicants, related to A.K, one of the individuals killed in the above described mistaken revenge attack, in addition to the above stated violations also asserted the following: 

• Article 2 — The Romanian authorities failed to conduct an effective investigation capable of leading to the identification and punishment of those responsible for the death of their uncle A.K.
• Article 6 — Under Romanian law and practice, the authorities’ failure to carry out an adequate criminal investigation culminating in formal charges and a conviction has deprived the applicants of their right to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal in the determination of their civil rights to establish liability and recover damages arising out of the death of their uncle.
• Article 13 — The applicants have been denied an effective remedy for the murder of their uncle.
• Article 14, in conjunction with Articles 2, 6(1), and 13 — The violations of the applicants’ rights as provided for under articles 2, 6(1), and 13 were due either exclusively or in substantial part to their Romani ethnicity.

Continuing violations

Although the incidents in Casinul Nou and Plaiesii de Sus happened on August 11, 1990 and June 6, 1991, respectively — almost four years before Romania ratified the Convention on June 20, 1994 — Romanian prosecuting and investigative authorities are nevertheless liable for will fully departing from their obligation to protect by law and in practice the rights set forth in the Convention. Their failure ever since the ratification to date to carry out an adequate investigation into the incidents and to provide redress for the applicants or indeed any other Romani victim of the Casinul Nou and/or the Plaiesii de Sus tragedies, undoubtedly amounts to a violation of the rights and freedoms enshrined in the Convention.

In the case of Yagci and Saragin the European Court of Human Rights rejected the preliminary objection of the Turkish Government that the Court’s jurisdiction was excluded in respect of events that took place subsequent to the date of Turkey’s acceptance of the Court’s compulsory jurisdiction where the events were merely ‘extensions of ones occurring before that date’. According to the Court, having regard to the wording of the declaration Turkey made under Article 46 of the Convention, it could not entertain complaints about events which occurred before the acceptance of the Court’s compulsory jurisdiction. However, when examining the complaints relating to Articles 5(3) and 6(1) of the Convention (the relevant articles applicable to the case), the Court took account of the state of proceedings at the time when the declaration was deposited. It therefore could not accept the Government’s argument that facts subsequent to the date of the Turkey’s declaration were excluded from its jurisdiction where they were merely extensions of an already existing situation. In its decision in the Yagci and Saragin case, the Court stated: “… when examining the complaints relating to Articles 5 para. 3 and 6 para. 1 … of the Convention, it will take account of the state of proceedings at the time when the above-mentioned declaration was deposited … From the critical date onwards all the State’s acts and omissions not only must conform to the Convention but are also undoubtedly subject to review by the Convention institutions".⁷

Similarly, the United Nations Human Rights Committee has repeatedly pointed out that it can consider violations alleged to have occurred prior to the date of entry into force, if the alleged violation is one which, although occurring before that date, continues or produces effects which themselves constitute violations after that date.⁸ The Committee has, for example, been prepared to examine whether the victim’s detention contravened the Covenant if it started prior to the entry into force but continued thereafter;⁹ a communication concerning continuing ill-treatment and torture was treated in the same way.¹⁰

In view of their case-law, the European Court of Human Rights and indeed the United Nations Human Right Committee have thus shown an unequivocal tendency to consider themselves competent ratione temporis, either if the events, taking place before the date of entry into force of an international instrument, constitute a violation continuing after that date, or if the events, taking place before the date of entry into force, do not amount to a violation, but have effects which themselves constitute a violation after that date.¹¹

Positive Obligations of the Romanian State

Relevant international human rights standards impose on states a positive obligation not merely to refrain from torture or inhuman or degrading treatment or punishment, but also to “secure" this right by providing protection against ill-treatment by private persons. This is particularly so when it comes to community violence incidents of such magnitude as in Casinul Nou and Plaiesii de Sus.

In the A v. United Kingdom judgment of 23 September 1998, para. 22, the Court stated that Articles 1 and 3 of the European Convention required “States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals".

The United Nations Human Rights Committee has also referred to a number of private actions threatening human rights and the State’s duty to deter such activity. In its General Comment of 1992, it clarified that the scope of protection to be undertaken by the State extends to cover torture, or other cruel, inhuman, or degrading treatment or punishment committed by people acting in their “private capacity". (HRC, General Comment 20, Article 7, Forty-fourth Session, 1992, para. 2.)

Similarly, in Velásquez Rodriguez v. Honduras,¹² the Inter-American Court of Human Rights held:

“An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."¹³

In view of the cited case-law two duties for the State emerge. First, where due diligence by the State could have prevented the abuse of human rights then the State is internationally responsible. Second, where the State fails to respond it is similarly responsible because “those [private] parties are aided in a sense by the government, thereby making the State responsible on the international plane".¹⁴

Endnotes:

1. A major Romanian Braşov-based human rights non-governmental organisation.
2. In the Judgement of Assenov and Others v. Bulgaria, the European Court stated that "... where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in the breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms in [the] Convention', requires by implication that there should be an effective official investigation. This obligation ... should be capable of leading to the identification and punishment of those responsible (...). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (...), would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity." (Assenov and Others v. Bulgaria, (90/1997/874/1086), Judgement of 28 October 1998, para. 102.)
3. Among the things destroyed were the applicants' furniture, home appliances, their own as well as their children's and their grandchildren's clothes and their other personal belongings.
4. For a factual description of the whole incident at issue see also: European Roma Rights Center, Sudden Rage at Dawn — Violence Against Roma in Romania, September 1996, p.18; Helsinki Watch, Destroying Ethnic Identity: The Persecution of Gypsies in Romania, New York: Human Rights Watch, 199, pp. 66-73; HRW/Helsinki, Lynch Law: Violence Against Roma in Romania, Vol. 6, No. 17, November 1994, pp. 16-17.
5. It should be noted that the facts of the case indicate that the community violence incident at issue instead of being legally classified as Destruction by Arson under Article 217 para. 4 of the Romanian Criminal Code should have been classified as an aggravated form of this offence — i.e. Qualified Destruction — pursuant to Article 218 para. 1. Had this been done a longer prescription period would have been relevant (ten instead of five years) and to date it would still not have expired thus making it legally possible to bring charges. Moreover, the facts of the case equally indicate that the wrongful death case was also inadequately legally classified as Grievous Bodily Harm Resulting in Death under Article 183 of the Romanian Criminal Code instead of as Murder/Manslaughter under Article 174 thereof. Again, had this been properly legally classified a longer prescription period would have applied and it would still be legally possible to initiate criminal proceedings — of course providing that the individuals responsible were identified in the first place.
6. See note 2 supra.
7. Judgement of 8 June 1995 paragraph 40.
8. Cf. Communication No. 1/1976, HRC Selection I, p. 17; Communication No. 24/1977, HRC 1981 report, p.168; Communication No. 196/1985, HRC 1989 report, pp. 191-192; Communication No. 310/1988, HRC 1991 report, p.285; Communication No. 457/1991, HRC 1992 report, p.439.
9. Communication No. 28/1978, HRC 1981 report, p.116; Communication No. 33/1978, HRC 1981 report, p. 127; Communication No. 5/1977, HRC 1979 report, pp. 127-129; Communication No. 37/1978, HRC 1981 report, pp. 144-145.
10. Communication No. 11/1977, HRC 1980 report, p. 136.
11. According to Sorensen, the European Commission, now the European Court, is competent ratione temporis to consider an application, if a provision in the Convention guarantees the enjoyment of a certain situation, and if the applicant claims that he has been deprived of this benefit during a period of time which continued after the Convention's entry into force.(Sorensen, Max, Le probleme inter-temporel dans l'application de la Convention Europeenne des Droits de l'Homme, in: Problemes des droits de l'homme et de l'unification Europenne (Melanges Modinos), Paris, 1968, p. 315.)
12. Judgement of 29 July I988; for the text of the judgement see 28 ILM (1989), 291.
13. Ibid., paras.172-173.
14. Ibid., para. 177.