Last Updated on November 21, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 16401/16
Fatme MEMET and Others
against Romania
The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 30 March 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, thirty-seven Romanian nationals of Roma ethnic origin, is set out in the appendix. All applicants are represented before the Court by the European Roma Rights Centre (ERRC), a non‑governmental organisation based in Budapest.
2. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
(a) The demolition of the applicants’ homes, their first eviction and the ensuing administrative proceedings
4. On 19 September 2013 the mayor of Eforie issued Decision no. 296, which ordered the demolition of the applicants’ homes. Their homes had been built without authorisation on public property. At the same time the applicants were notified that they had to leave their homes by 26 September 2013.
5. On 27September 2013 the applicants’ homes, along with those of other Roma living in the city, were demolished, and they were rendered homeless. According to media reports, the victims of the demolition were threatened by numerous law-enforcement officers present at the location in question, and by the deputy mayor of Eforie Sud.
6. In an interview given immediately after the demolition, the mayor of Eforie Sud referred to the applicants’ homes as an “infection” and compared the applicants’ behaviour to that of dogs.
7. On 3 October 2013 the Eforie Sud local authorities offered to shelter the applicants in an abandoned school.
8. On an unspecified date in 2014, on the basis of Law no. 554/2004 on administrative litigation (see paragraph 48 below), all the applicants – except the ninth, fifteenth, twenty-fourth and thirty-sixth applicants – and other third parties, all represented by the Roma Center for Social Intervention and Studies (Romani CRISS), initiated administrative court proceedings against the mayor of Eforie’s office and the Eforie local council. They sought the annulment of the mayor’s decision of 19 September 2013 (see paragraph4above), compensation in respect of pecuniary and non-pecuniary damage, a court order that they be granted social housing which met national and international minimum living requirements, and costs and expenses. They argued, inter alia, that the decision of 19 September 2013 and their subsequent eviction had breached domestic law and international law, Articles 3, 8 and 14 of the Convention, and Article 1 of Protocol No. 1 to the Convention, taken alone or in conjunction with the above-mentioned Articles.
9. On 1 June 2016 the Constanța County Court allowed those claims in part. It annulled the mayor’s decision of 19 September 2013, and ordered the local authorities to grant the applicants who were party to the proceedings the social housing which they claimed, as well as costs and expenses. Relying on the Court’s case-law referring to Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, it held that the enforcement of the local authorities’ decision had been disproportionate, given the short period of time between the decision and the applicants’ eviction, the absence of alternative accommodation, and the applicants’ inability to ask for an a priori judicial review of the proportionality of the measures taken. The court dismissed the applicants’ claims in respect of pecuniary and non-pecuniary damage on the grounds that they had not proved the damage allegedly sustained, had not taken steps to regulate their status in spite of previous threats of eviction, and had not been stopped from collecting and recovering their personal belongings at the time of their eviction.
10. The parties appealed against that judgment. On 10 March 2017 the Constanţa Court of Appeal allowed the applicants’ appeal in part, granting 2,000 Romanian lei (RON – approximately 450 euros (EUR)) to each of the applicants in respect of pecuniary and non-pecuniary damage, and upholding the lower court’s order that the local authorities provide the applicants with social housing.
11. The Government contended that the domestic authorities had provided the applicants with a form of compensation (compensare) for the amounts owed in respect of pecuniary and non-pecuniary damage, in view of some of the debt owed by the applicants in respect of utility and rent charges for their current places of residence, namely the modular containers (see below).
(b) The applicants’ second eviction and relocation to modular containers
12. On 16 July 2014 the Eforie Sud local authorities evicted the applicants from the abandoned school they had been placed in on 3 October 2013 (see paragraph 7 above), and moved them to eight modular containers. Each of the containers measured 16 square metres.
13. According to the applicants, at the time when they moved in, the containers lacked water, basic sanitation and electricity, and these utilities were provided at a later date. The Government refuted this allegation, arguing that all utilities had been available to the applicants when they had taken over the modular containers.
14. On 16 October 2014 the local authorities signed six-month lease contracts for the containers with the first, second, fourth, twelfth, twenty-eighth, thirtieth and thirty-third applicants. In accordance with the lease contracts, the seven lessees had to pay a monthly rent of 19.34 RON (approximately 4 EUR) each. In addition, family members expressly mentioned in the contracts were also allowed to use the containers, in particular: the twentieth, twenty-first and twenty-ninth applicants (the family of the first applicant); the third, sixth, seventh, eighth and twenty‑sixth applicants (the family of the second applicant); the fifth, tenth and eleventh applicants (the family of the fourth applicant); the thirteenth, fourteenth and thirty-first applicants (the family of the twelfth applicant); the seventeenth applicant (the family of the twenty-eighth applicant); the twenty-seventh applicant (the family of the thirtieth applicant); and the twenty-fifth, thirty-second, thirty-fourth, thirty-fifth and thirty-seventh applicants (the family of the thirty-third applicant).
15. All the lease contracts of 16 October 2014 were renewed by the local authorities until 16 October 2015.
16. On 28 January 2015 the Eforie Sud local council adopted Decision no. 12, which approved the payment from the local budget of the water and electricity charges accrued in respect of the applicants’ homes until 31 March 2015.
17. In August 2015 the seven applicants who had signed the lease contracts on 16 October 2014 (see paragraph 14 above) were informed by the local authorities that they had accrued debts of between RON 808 (approximately EUR 183) and RON 3,264 (approximately EUR 740) following their failure to pay their rent, electricity and water charges.
18. In their application to the Court the applicants stated that before August 2015 they had been unaware of the amounts owed for electricity and water. Also, they had been and were still unaware of what the monthly and yearly charges were for utilities. In addition, they had no regular income, apart from child benefits of EUR 18 per child per month.
19. On 11 August 2015 six of the seven applicants who had signed the lease contracts of October 2014 – except for the thirty-third applicant – signed written statements confirming that, within a month, each of them would repay the debts accrued following their failure to pay their electricity and water charges. However, they were unable to make the payments.
2. Decision and threat to evict the applicants from the modular containers, and the relevant proceedings
20. On 16 December 2015 the local authorities notified the lessees that the validity of the lease contracts had expired, and that they had to repay their debt in respect of rent and charges. In addition, the local authorities notified them that they had to leave their homes by 30December 2015 if they did not ask for the contracts to be renewed.
21. According to the local authorities, prior to 1 March 2016 the applicants did not ask for the lease contracts to be renewed, did not leave their homes, and did not pay their debts.
22. In their application to the Court the applicants stated that from October 2015 onwards they had enquired about renewing their contracts with the local authorities, but had been told that this was impossible in the absence of a new local council decision.
23. On 1 March 2016 the Eforie Sud local council adopted Decision no. 36, which approved the eviction of the first, second, twelfth and thirty‑third applicants from their homes on the basis that they had been occupying them without a valid contract and had accrued debts by not paying their rent, electricity and water charges. In addition, the decision approved an extension of the lease contracts for a year only for people who paid their outstanding debts for 2015 by 31 March 2016.
24. In their application to the Court the applicants stated that the local authorities had adopted the decision of 1 March 2016 without their knowledge. Also, they stated that they had obtained the full text of the decision only after they had initiated Rule 39 proceedings before the Court (see paragraph 40 below). It had only been at that stage that they had found out that the local council had approved the eviction of only four families, and not all of them.
25. On 15 March 2016 the local authorities issued an eviction notice in the name of the second applicant, and asked her to vacate her home and repay all the debts accrued in respect of the property by 30March 2016. The applicants alleged that similar eviction notices had been posted on all of their homes.
26. According to the applicants, on 29 March 2016 sixteen employees from the municipality had come to their homes and asked them to pack their belongings, without any distinction being made between the families of the four applicants mentioned in Decision no. 36 (see paragraph 23 above) and the other families.
27. The minutes drafted on that day mention that the persons present undertook to pay their utility charges, and that written statements to this effect were given. The minutes also mention that the modular containers were in a precarious state, while the state of hygiene of the surrounding land was poor.
(a) Preliminary administrative procedure
28. On 29 March 2016 all the applicants – except the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – and other third parties, represented by the ERRC, asked the Eforie Sud local council to revoke Decision no. 36 (see paragraph 23 above) on the basis of Article 7 of Law no. 554/2004 on administrative litigation (see paragraph 48 below).
29. While referring to the two previous forced evictions (see paragraphs 4 and 12 above), which they considered unlawful, they argued that the decision to evict them for the third time had not been subject to a preliminary judicial review, as required by Article 1041 of the Romanian Civil Procedure Code (see paragraph 47 below), and had not provided for alternative adequate shelter, in breach of the Convention. A third eviction would breach their rights and leave them in an even more vulnerable situation.
30. Those applicants and other third parties further argued that the unpaid charges did not amount to a situation of force majeure justifying their eviction in any circumstances. The applicants had only been notified of the debt which had accrued after they had been living in the containers for a year, and not on a monthly basis as would have been normal, and therefore they did not have the financial means to pay the amounts due.
31. In addition, the statements made by the mayor of Eforie Sud when their homes had been demolished (see paragraph 6 above) and after that date, and the threats which they had received from neighbours when they had been living in the abandoned school, rendered the eviction based on Decision no. 36 of 1March 2016 (see paragraph 23 above) discriminatory on account of the applicants’ ethnicity.
32. On 6 April 2016 the mayor of Eforie Sud informed the applicants’ representative that the authorities had stopped (au sistat) the eviction measures taken against the people mentioned in the decision of 1 March 2016 after the applicants had lodged their administrative complaint. In addition, that decision had not concerned the fourth, fifth, tenth, eleventh, fifteenth, seventeenth, twenty-second, twenty-third, twenty‑seventh, twenty-eighth or thirtieth applicants, even though they had been party to the administrative complaint.
33. On 9 May 2016 the Eforie Sud local council adopted Decision no. 84, which rescinded the local council’s decision of 1 March 2016.
(b) Proceedings before the administrative courts
34. On 29 March 2016 all the applicants – except the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – and other third parties, represented by the ERRC, initiated administrative court proceedings against the Eforie Sud local council’s decision of 1 March 2016 before the Constanța County Court, asking for the decision and its enforcement to be suspended pending the outcome of the administrative proceedings. The proceedings were based on: Articles 1, 2, 7 and 14 of Law no. 554/2004 on administrative litigation (see paragraph 48 below); Articles 1038-1041 of the Romanian Code of Civil Procedure (see paragraph 47 below); Article 12 of Government Ordinance no. 137/2000 on combating discrimination (see paragraph 49 below); Articles 3, 8 and 14 of the Convention; and Law decree no. 212/1974 ratifying the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The applicants reiterated the arguments raised before the Eforie Sud local council (see paragraphs 29-31 above). In addition, they arguedthat the local authorities had posted eviction notices on all of their homes and had asked them to vacate the premises and repay the accrued debts by 30 March 2016. However, they had been placed in a vulnerable situation because they were living in containers provided by the authorities after being forcefully evicted twice: once from their demolished homes, and once from an abandoned school. A third eviction, which appeared to be imminent, would breach their right to physical and psychological well-being and human dignity, and would leave them in an even more vulnerable situation, considering that nineteen of the applicants were children and one of them was a pregnant woman.
35. On 25 May 2016 the Constanța County Court dismissed the applicants’ action, on the grounds that it had become moot (a rămas fără obiect). It held that the local council had rescinded the decision which the applicants had sought to suspend (see paragraph 30 above).
36. On 31 March 2016 the prefect of Constanța County initiated court proceedings against the Eforie Sud local council, seeking the annulment of the decision of 1 March 2016. In accordance with the law, the prefect’s action suspended the enforcement of the impugned decision.
37. On 8 September 2016 the Constanța County Court dismissed the prefect’s action on the grounds that it had become moot.
3. The applicants’ subsequent situation
38. On 6 September 2016 the fourth applicant was notified that she had to repay the outstanding debts accrued in respect of electricity and water charges within ten days of receiving the notification. In addition, she was notified that failure to repay that debt would result in court proceedings being initiated against her for recovery of the debt.
39. On 23 November 2016 the applicants informed the Court, inter alia,that similar notices to the one received by the fourth applicant on 6 September 2016 had been received by other applicants. They also stated that court proceedings had not yet been initiated against them. In any event, repayment of the debts they had accumulated was well beyond their means.
4. Other relevant information: Rule 39 proceedings before the Court
40. On 30 March 2016 all the applicants – except for the ninth, sixteenth, eighteenth, nineteenth and thirty-sixth applicants – lodged with the Court a request for an interim measure under Rule 39 of the Rules of Court. They asked for suspension of the execution of the local council’s decision of 1 March 2016 (see paragraph 23 above), invoking Articles 3, 8, 13 and 14 of the Convention.
41. On the same date the Court granted the applicants’ request and indicated to the Romanian Government that they should suspend the applicants’ eviction until 5 April 2016 at noon. The Court also decided to grant priority to the application under Rule 41 of the Rules of Court, and asked the Government to submit additional information on the applicants’ situation.
42. On 4 April 2016 the applicants informed the Court that, in accordance with Article 3 of Law no. 554/2004 (see paragraph 48 below), the prefect’s action lodged on 31 March (see paragraph 36 above) had suspended their eviction pending the outcome of the court proceedings.
43. On 5 April 2016 the Court decided not to extend the interim measure, based on the information submitted by the parties and the absence of a request to have the measure extended.
44. On 26 April 2016 the applicants submitted a full application to the Court, in which they stated that the gravamen of their complaint was not the potential eviction, but the threat of eviction which had come in the form of the eviction notice that they had all received between 15 and 28 March 2016 (see paragraphs 25-26 above).
B. Relevant domestic law and practice
45. The relevant parts of the general conditions on tort liability from the new Civil Code, in force since 1 October 2011, generally reiterate the text of Articles 998-99 of the previous Civil Code; they now read as follows:
Article 1349
“(1) Everyone shall respect the code of conduct which the law or local custom imposes, and shall not breach, by action or inaction, the rights or legitimate interests of others.
(2) Anyone who knowingly breaches this duty shall be liable for all damage, and shall make amends for it in full.
(3) In the cases provided for by the law, a person may also be liable for damage caused by the actions of another …”
Article 1357
“(1) Anyone who causes damage to another as a result of an unlawful deed committed negligently shall be liable to make reparation for it.
(2) The person who causes the damage shall be held liable [in any event] for very slight negligence (culpa levissima – ‘cea mai ușoară culpă’).”
46. Articles 997-999 of the Romanian Code of Civil Procedure set out the general rules on injunction proceedings, providing, inter alia, that once a court has established the appearance of a right in a claimant’s favour, it can order interim measures in pressing matters in order to prevent the loss of a right or imminent irreparable damage. Such an order is temporary and enforceable, and remains valid pending the outcome of the proceedings examining the merits of the case if a time-limit for its validity is not set.
47. Articles 1039-1044 of the Romanian Code of Civil Procedure set out the procedural rules for an action for eviction, providing that such an action is examined only after the parties are summoned, except where eviction is requested for failure to pay rent in accordance with a contract which is automatically enforceable. If the parties are summoned, the application for eviction is examined expeditiously, in chambers, and with brief deliberations. The eviction order is enforceable and may be appealed against within five days. Enforcement of the judgment ordering eviction may not be suspended, except in circumstances where the eviction is requested for failure to pay rent and the debtor repays the debt to the claimant, together with the relevant penalties, before the proceedings are concluded.
48. Law no. 554/2004 on administrative litigation provides, inter alia,that a prefect may directly challenge before an administrative court acts issued by local authorities if he or she considers them unlawful. An act which is challenged is automatically suspended pending the outcome of the proceedings (Article 3 of the Law).
Article 7 sets out the rules on the preliminary administrative procedure, which requires that a person whose rights and interests are affected by an individual administrative act must ask the administrative authority which issued the act, or its more senior body, to revoke it, either in full or in part, within thirty days of being notified of the act. This procedure is mandatory.
If this preliminary procedure fails to give the claimant satisfaction, then the claimant is entitled to lodge proceedings before the competent administrative court, seeking the annulment, either in full or in part, of the administrative act, as well as compensation (Article 8 of the Law).
Pending this procedure, in accordance with Articles 14-15 of the Law, in well-justified circumstances, and in order to avoid imminent damage, the claimant may ask the competent court to stay the enforcement of the impugned administrative act pending the outcome of the proceedings on the merits.
Claims in respect of compensation, whether pecuniary or non-pecuniary, shall be examined by the courts in accordance with the provisions of Article 18 of the Law.
49. The relevant provisions of Government Ordinance no. 137/2000 on combating all forms of discrimination are cited in the case of Cazacliu and Others v. Romania ((dec.), no. 63945/09, § 86, 4 April 2017).
COMPLAINTS
50. The applicants complained under Article 3 of the Convention that the threat of eviction, which had come in the form of notices received by all of them and which continued to hang over their heads, without any provision of alternative housing, had amounted to inhuman and degrading treatment. In particular, they had been threatened with eviction at short notice, without being offered any alternative shelter or support. This had happened even though they belonged to a group of particularly vulnerable persons, and the authorities were responsible for their ongoing housing conditions after they had evicted them from their homes and provided them with homes for several years.
51. The applicants complained under Article 8 of the Convention that the threat of eviction had amounted to an interference with their right to respect for private and family life and home. The measure had been unlawful because all the applicants had been threatened with eviction, even though most of them had not even been named in the decision of the local council. Also, the applicants named by the local council’s decision had been selected arbitrarily and without any explanation as to why they were to be evicted, given the uncertainty regarding how much money they had owed for utilities and the relevant period of time to be taken into account. Moreover, the measure had been disproportionate, given: the absence of alternative housing, the fact that the authorities had ignored the applicants’ vulnerable situation, the fact that they had not conducted a balancing exercise between the competing interests at stake, and the fact that they had not complied with the procedural requirements for forced evictions set out in the Court’s case-law.
52. The applicants complained under Article 13 of the Convention that they had not had at their disposal an effective remedy against the alleged breaches of Articles 3 and 8, because the eviction notices had not contained information on how and when they could be challenged, and the domestic legislation did not provide for a remedy which would automatically stay the enforcement of an eviction pending the outcome of court proceedings contesting it. The available remedies provided by the relevant domestic legislation, including the interim measures provided by Article 997 of the Romanian Code of Civil Procedure (see paragraph 46 above), did not offer any injunctive remedy against such unlawful conduct.
53. The applicants complained under Article 14 of the Convention, read in conjunction with Articles 3 and 8, that they had been discriminated against by the authorities on account of their Roma ethnicity. In particular, it was only people of Roma ethnic origin who were housed in containers, even though the city of Eforie had a rather large stock of social housing. Also, from the moment their houses had been demolished and the eviction cycles had started, the authorities had created a hostile environment for the applicants on account of their ethnic origin, by threatening them and comparing their homes to an infection and them to dogs (see paragraph 6 above). Consequently, the threat of eviction had amounted to harassment, which was in itself a form of discrimination.
THE LAW
54. The applicants alleged a breach of their rights under Articles 3, 8, 13 and 14 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Scope of the application
55. The Court notes at the outset that in their application the applicants expressly stated that, although important by way of background, the evictions of 2013 and 2014 (see paragraphs 4 and 12 above) were not the focus of the present application, and the gravamen of their complaints was the threat of eviction which had been triggered by the decision of 1 March 2016 and which materialised with the eviction notice that they had all received between 15 and 28 March 2016 (see paragraph 44 above).
56. Given these circumstances, the Court acknowledges that although the events and the applicants’ situation prior to the eviction decision of 1 March 2016 are indeed relevant by way of background, they do not form the focus of the case at hand.
57. The Court will therefore examine the applicants’ complaints only in so far as they concern the authorities’ attitude in relation to the threat of eviction triggered by the decision of 1 March 2016, which the applicants were notified of between 15 and 28 March 2016. While noting the applicants’ allegations that the threat continues to exist so long as their difficult financial situation prevents them from paying their debts related to rents and utilities (see respectively paragraphs 39 above and 64 below), the Court considers that for the purposes of the present application, the relevant time frame for the applicants’ complaints must be considered to start on 15 March 2016, when they were first notified of the eviction decision, and end on 9 May 2016, when the eviction decision was rescinded (see paragraph 33 above).
58. Furthermore, in view of the above, and having considered the circumstances of the case and the nature of the applicants’ allegations, the Court, who is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicants’ allegations relating to Articles 3 and 8 of the Convention fall to be examined exclusively under Article 8 (see, mutatis mutandis, Cazacliu and Others v. Romania (dec.), no. 63945/09, § 105, 4 April 2017).
B. The parties’ submissions
1. The Government
59. The Government firstly submitted that the eviction decision of 1 March 2016 had concerned only those lessees with the largest debts in respect of rent and charges. It followed that only those applicants – namely the first, second, twelfth and thirty-third applicants, as well as those family members declared to be living with them at the moment they had signed the leases – could claim to be victims of the impugned measures. The Government therefore submitted that the application should be dismissed in respect of the fourth, fifth, tenth, eleventh, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-second, twenty-third, twenty-fourth, twenty-seventh, twenty-eighth and thirtieth applicants, for lack of victim status.
60. The Government further questioned whether the minor children involved could be considered victims of the impugned threat of eviction for non-payment of rent and utility charges, having regard to their capacity to understand the significance of such measures.
61. In any event, the Government argued that the applicants had failed to exhaust the domestic remedies available to them in respect of the claims brought directly before the Court. They pointed out that general tort law proceedings (see paragraph 45 above) represented an available and effective avenue for all of the applicants’ complaints. The proceedings lodged by the applicants in respect of the 2013 eviction, which had been terminated by the judgment of 10 March 2017 granting their claims in respect of pecuniary and non-pecuniary damage (see paragraph 10 above), constituted proof that the domestic courts had clear jurisprudence in that regard.
62. The Government also pointed out that not only did the applicants know from their own experience about the jurisprudence of the domestic courts as regards claims relating to forced evictions, but they had also had the benefit of advice from qualified lawyers throughout the proceedings – in the previous proceedings, and in those relevant to the present application. However, the applicants had preferred to come directly before the Court, without allowing the national authorities to examine their complaints and potentially grant a remedy in this regard.
63. Lastly, the Government underlined that in similar cases the Court had found that an action in general tort law constituted appropriate redress (see Cazacliu, cited above), and there was no reason to allow for a different conclusion in the present case.
2. The applicants
64. The applicants argued that they were all in the same precarious housing situation, whether or not they had been expressly notified of the decision of 1 March 2016. The anxiety of facing homelessness was similar for all of them, and they were aware that, in view of their difficult financial situation, they would not be able to pay their debts, and thus they would face eviction sooner rather than later. The fact that not all of the applicants had been notified of the decision only proved the arbitrariness of the eviction process, which, without any explanation, had targeted only some of them, leaving all the applicants in an intense state of uncertainty.
65. Furthermore, such a state of anxiety and uncertainty was even more severe in the case of young children, who witnessed their parents’ frustration without being able to help or cope with its causes or consequences.
66. Lastly, the applicants submitted that there had been no domestic remedies available to them, in view of the particular nature of the eviction decision of 1 March 2016, which had not allowed for any judicial review. They therefore considered that their case raised a different issue from that considered in the case of Cazacliu.
C. The Court’s assessment
67. The Court considers that, in the circumstances of the present case, the issues of the applicants’ victim status and the exhaustion of domestic remedies are intrinsically linked, and should therefore be addressed together.
68. The Court reiterates its case-law in respect of the exhaustion of domestic remedies, as recently summed up in Mendrei v. Hungary ((dec.), no. 54927/15, §§ 23-26, 19 June 2018).
69. Turning to the facts of the case before it, the Court reiterates that the applicants’ complaints refer essentially to the anxiety they felt over the course of approximately eight weeks (see paragraph 57 above) on account of an allegedly unlawful and discriminatory threat of eviction, which eventually was not enforced.
70. The Court notes that the applicants’ requests before the domestic authorities – seeking to have the eviction decision revoked and its enforcement suspended – were eventually dismissed as they had become moot, as the impugned eviction decision had been rescinded (see paragraphs 35 and 33 above).
71. Therefore, the Court takes cognisance of the fact that administrative proceedings under Law no. 554/2004 were no longer available to the applicants, proceedings which had been used successfully in relation to the 2013 eviction, in so far as the applicants had eventually obtained compensation and an acknowledgment of a breach of their rights under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraphs 9 and 10 above).
72. Nevertheless, the Court observes that the applicants never brought tort claims before the domestic civil courts (see paragraph 45above) specifically as regards the anxiety which they experienced while there was an ongoing threat of eviction. Furthermore, in relation to the uncertainty felt by the applicants on account of the amount of debt owed in respect of rent and utility charges, and on account of the lease period, the Court notes that the applicants never complained before the civil courts that the terms of their lease contracts were unfair.
73. The Court therefore notes that the claims brought before it in the present case have in fact never been put before the domestic courts, which would otherwise have had an opportunity to put matters right through their own legal system. Indeed, the Court has frequently held that, in accordance with the principle of subsidiarity, it is appropriate that the national courts should initially have the opportunity to determine questions of compatibility of the domestic law with the Convention, and that, if an application is nonetheless subsequently brought to Strasbourg, the Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).
74. The Court also notes that general tort proceedings (see paragraph 45 above) have been found to constitute an effective remedy in respect of claims similar to those formulated in the present case (see Cazacliu and Others, cited above, §§129-134, and Costică Moldovan and Others v. Romania (dec.), no. 8229/04 and 29 others, § 136, 15 February 2011).
75. In view of the above, and having regard to the fact that the applicants had the benefit of legal representation and advice throughout the relevant events (see paragraphs 28 and 34 above), the Court does not see any justified reason for their failure to have recourse to the available redress offered by the domestic law in the form of a general tort law action (see paragraph 45 above).
76. Therefore, even assuming that all the applicants could claim to be victims of the alleged breaches, their complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 October 2019.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
_____________
Appendix
List of applicants
| No. | Applicant’s Name | Birth date | Place of residence |
| 1 | Fatme MEMET | 18/02/1974 | Eforie Sud |
| 2 | Altina AHMED | 18/06/1985 | Eforie Sud |
| 3 | Ana-Maria AHMED | 23/04/2009 | Eforie Sud |
| 4 | Anife AHMED | 14/06/1981 | Eforie Sud |
| 5 | Armani AHMED | 24/10/2010 | Eforie Sud |
| 6 | Denis-Gabriel AHMED | 09/09/2012 | Eforie Sud |
| 7 | Edie AHMED | 03/02/2005 | Eforie Sud |
| 8 | Melisa AHMED | 23/06/2007 | Eforie Sud |
| 9 | Metin-Ergean AHMED | 20/05/2015 | Eforie Sud |
| 10 | Mirela Cicec AHMED | 13/06/2012 | Eforie Sud |
| 11 | Sibel AHMED | 28/03/2001 | Eforie Sud |
| 12 | Altîna AMET | 17/11/1966 | Eforie Sud |
| 13 | Ana-Maria AMET | 16/09/2001 | Eforie Sud |
| 14 | Nagie AMET | 25/05/2010 | Eforie Sud |
| 15 | Keanie BACÎ | 17/11/1982 | Eforie Sud |
| 16 | Iasemin CERCHEZ | 27/08/2006 | Eforie Sud |
| 17 | Metin CERCHEZ | 12/06/1967 | Medgidia |
| 18 | Mert CHERCHEZ | 27/08/2003 | Eforie Sud |
| 19 | Onur CHERCHEZ | 01/04/2001 | Eforie Sud |
| 20 | Geanser ENACHE | 10/11/2001 | Eforie Sud |
| 21 | Vasile ENACHE | 27/09/1979 | Șupitca |
| 22 | Elena Mariana ION | 11/09/1994 | Grădinari |
| 23 | Mirela-Elena ION | 30/06/1975 | Grădinari |
| 24 | Cadir IUSMEN | 07/09/1976 | Eforie Sud |
| 25 | Cadîr IUSMEN | 29/05/2012 | Eforie Sud |
| 26 | Ion LUPAȘCU | 25/11/1968 | Eforie Sud |
| 27 | Bairam MEMET | 17/10/1973 | Eforie Sud |
| 28 | Emine MEMET | 10/10/1964 | Eforie Sud |
| 29 | Genghiz MEMET | 04/02/2007 | Eforie Sud |
| 30 | Kiazim MEMET | 20/03/1987 | Eforie Sud |
| 31 | Samir SINAN | 25/05/1989 | Eforie Sud |
| 32 | Aise SULIMAN | 20/02/2005 | Eforie Sud |
| 33 | Emine SULIMAN | 20/10/1986 | Eforie Sud |
| 34 | Melec SULIMAN | 24/04/2013 | Eforie Sud |
| 35 | Sali SULIMAN | 17/06/2003 | Eforie Sud |
| 36 | Sever SULIMAN | 21/03/2015 | Eforie Sud |
| 37 | Turchian SULIMAN | 03/05/2006 | Eforie Sud |
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