CASE OF GEORGEL AND GEORGETA STOICESCU v. ROMANIA
Preliminary objection dismissed (victim);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
6. The applicant was born in 1929. She was retired and living in Bucharest before her death on 29 December 2007. 7. On 24 October 2000 the applicant, aged 71 at the time, was attacked, bitten and knocked to the ground by a pack of around seven stray dogs in front of her home in the Pajura neighbourhood, a residential area in Bucharest. As a result of the fall, the applicant suffered a head injury and fractured her left thigh bone which required four days’ hospitalisation in the CFR Hospital in Bucharest. After being discharged from hospital she was prescribed medical treatment which proved to be too expensive for her. 8. Following the incident, the applicant started suffering from amnesia and shoulder and thigh pains and had difficulty walking. In addition, she lived in a constant state of anxiety and never left the house for fear of another attack. By the year 2003 she had become totally immobile. 9. At the time of the incident the applicant and her husband were retired and their entire monthly income amounted to the equivalent in Romanian lei (ROL) of 80 euros. They claim that this amount was wholly insufficient for her medical treatment, and that they had to live at subsistence level. As a result, the applicant had lost weight. 10. The applicant’s state of health continued deteriorating with the result that two and a half years after the incident, on 4 June 2003, she was declared disabled by a medical panel of the Bucharest Local Council and was offered financial aid and free access to medical assistance and medicines. 11. On 10 January 2001 the applicant, represented by her husband, filed a civil action with the Bucharest District Court (Judecătoria Sectorului 1) requesting damages of ROL 100,000,000 (EUR 4,000) under the provisions of the Civil Code on civil liability for torts, and claiming that, as a result of the attack, she had become disabled. The applicant filed the action against the Bucharest Mayor’s Office because, according to the words embossed on the stamp used on a letter from the Animal Control Agency (Administratia pentru Supravegherea Animalelor - ACA), the latter was a body under the authority of the Mayor’s Office. 12. At the first hearing the court noted that the applicant had not paid the statutory court fee and ordered the payment of ROL 6,145,000 (EUR 250). Being unable to pay this sum, which amounted to her entire family income for four months, the applicant paid only ROL 500,000 (EUR 20), which she borrowed from various acquaintances. 13. By a judgment of 6 March 2001 the court declared the applicant’s civil action invalid for non-payment of the full court fee. 14. On 19 June 2001 the Bucharest County Court (Tribunalul Bucuresti) allowed an appeal by the applicant against the judgment of 6 March 2001. The County Court held that the first-instance court should have decided the case within the limits of the court fee paid and that in any event, the applicant was exempted by law from paying a court fee for this type of action. The court further held that the amount already paid should have been treated as a deposit, to be returned at the end of the proceedings. With respect to the merits of the case, the court held that the ACA, a public body under the authority of the Bucharest Mayor’s Office, had indeed not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity, and had thus violated the provisions of Bucharest Municipal Council decision no. 38/1996. According to that decision, the ACA had a duty to capture, control and sterilise all stray dogs in order to prevent any danger they may pose to the life, health and physical integrity of the population. The court further held that the attack had endangered the applicant’s life and health, causing her physical and psychological suffering and depriving her of a normal life because she was so traumatised that she did not dare leave her apartment for fear of another attack. Lastly, the County Court ordered the Bucharest Mayor’s Office to pay the applicant non-pecuniary damages, within the limits of the deposit paid, namely, ROL 10,000,000 (approximately EUR 400), which was 10% of the damages claimed by the applicant. 15. The Bucharest City Hall lodged an appeal on points of law (recurs) against the judgment of 19 June 2001, claiming that it did not have legal capacity as defendant because the ACA was placed under the authority of the Bucharest Municipal Council, and not the Bucharest Mayor’s Office. 16. By a final judgment of 17 December 2001, the Bucharest Court of Appeal allowed the appeal on points of law and dismissed the applicant’s action on the grounds that it had been lodged against a party who did not have legal capacity as defendant. The court found that the ACA had been created by decision no. 38/1996 of the Bucharest Municipal Council and that therefore the latter institution was the one against which the applicant should have brought her court action. 17. On 28 June 2002 the applicant, represented by her husband, filed a civil action with the Bucharest District Court requesting damages of ROL 50,000,000 (EUR 2,000) from the ACA and the Bucharest Municipal Council. The applicant did not pay the court fee. 18. On 3 December 2002 the Bucharest District Court dismissed the action, holding that the Bucharest Municipal Council did not have legal standing as defendant. With regard to the ACA, the court found that on 31 October 2001 the Municipal Council had adopted decision no. 287 by which the ACA was closed down and the control of stray dogs was transferred to the mayor’s offices of the six Bucharest districts. 19. By a final judgment of 13 March 2003, the Bucharest Court of Appeal dismissed an appeal on points of law lodged by the applicant and upheld the judgment of the first-instance court. 20. Under section 5 of the Local Public Administration Act of 1991 (Law no. 69/1991), local self-government was conferred on the local councils as legislative authorities and the mayor’s offices as executive authorities. 21. That Act was replaced on 23 April 2001 by a new Local Public Administration Act (Law no. 215/2001). Section 21 of that Act provides: “The local public administration authorities which ensure local self-government in municipalities and towns are the municipal authorities and the local town councils as legislative authorities, and the mayors’ offices as executive authorities.” 22. Section 39 of Law no. 60 of 29 October 1974 provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled, inter alia, to “organise the capture and destruction of stray dogs”. 23. Section 39 of Law no. 60/1974 was amended on 28 August 1998 to provide that the local authorities were in charge of “organising the capture of stray dogs and employing, for this purpose, specific techniques authorised by international veterinary norms”. 24. On 13 December 2001 Emergency Decree no.155/2001 on the stray dogs management programme entered into force. Its relevant provisions provide: “1. The local councils must create, within 30 days from the entry into force of this decree, specialised services in order to manage the stray dogs situation. [...] 4. Stray dogs shall be captured and transported to the shelters of specialised services set up for [this purpose], where they will be kept for up to seven days [...]. 5. (1) Following an examination by the veterinary doctor, any stray dogs that are aggressive or suffer from chronic or incurable illnesses shall be euthanised immediately [...]. [...]. 7. (1) Dogs which have not been claimed or adopted after the expiry of the seven-day time-limit referred to in Article 4 above shall be euthanised. [...]. ”  25. Section 1(2) of Law no. 205/2004 on the protection of animals, which entered into force on 24 June 2004, provided that the rules governing stray dogs on the territory of Romania would be adopted by means of a specific law. 26. On 15 January 2008 Law no. 9/2008, amending Law no. 205/2004, entered into force. It forbade, inter alia, the euthanasia of stray dogs. 27. In November 2009 a draft Law on stray dogs was put on the agenda of Parliament. The draft, which provided, inter alia, for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population, was rejected by the Senate on 25 November 2009. It is currently pending before the Chamber of Deputies, without any date set for its discussion so far, according to the web page of the Romanian Chamber of Deputies. 28. Article 1 of Decision no. 38 of 2 January 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides as follows: “With effect from the date of the present decision, the Municipal Knackers Service shall be renamed the Animal Control Agency, a public body with legal status functioning under the authority of the Bucharest Municipal Council and staffed by 33 to 50 employees.” 29. Annex no.1, Chapter 1, of Decision no. 75 of 16 May 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides, in its relevant parts, as follows: “a) The service provider within the Animal Control Agency has a duty to capture stray dogs on the basis of written complaints received from private or legal persons. ... c) The captured animals shall be sterilised, vaccinated, disinfested and identified in an integrated database, with the exception of those that are to be euthanised. d) Dogs shall be returned to the area in question upon request by the community (private or legal persons); these dogs shall have the protected status of community dogs (câini comunitari). e) Responsibility for community dogs shall be assumed by the community requesting the dogs’ return.” 30. Article 2 of Decision no. 82 of 19 April 2001, issued by the Bucharest General Council regarding the programme for the sterilisation of stray dogs in Bucharest, provides: “Bearing in mind that the Animal Control Agency is placed under the authority of the Bucharest General Council, the analysis, supervision and monitoring of compliance with the programme for the sterilisation of stray dogs in Bucharest shall henceforth be entrusted to the commission created for this purpose by Decision no.149/2000 ....” 31. Article 1 of Decision no. 287 of 31 October 2001 of the Bucharest Municipal Council on the improvement of the ACA’s activities provides: “The Animal Control Agency shall cease its activity with effect from 15 November 2001. From that date onwards, the organisation, control and monitoring of animals shall be undertaken by the mayor’s offices of Bucharest districts nos. 1 to 6, each within its own area of authority.” 32. Article 1 of Decision no. 105 of 10 April 2003 of the Bucharest Municipal Council on the functioning of the ACA provides as follows: “With effect from 15 April 2003, the Animal Control Agency, as a legal person having the aforesaid purpose, shall be placed under the authority of the Bucharest Municipal Council.” 33. Article 12 of the European Convention for the Protection of Pet Animals, ratified by Romania on 6 August 2004 (ETS no.125 – Strasbourg, 13 November 1987), provides: “When a Party considers that the numbers of stray animals present it with a problem, it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain, suffering or distress. a Such measures shall include the requirements that: i if such animals are to be captured, this is done with the minimum of physical and mental suffering appropriate to the animal; ii whether captured animals are kept or killed, this is done in accordance with the principles laid down in this Convention; b Parties undertake to consider: i providing for dogs and cats to be permanently identified by some appropriate means which causes little or no enduring pain, suffering or distress, such as tattooing as well as recording the numbers in a register together with the names and addresses of their owners; ii reducing the unplanned breeding of dogs and cats by promoting the neutering of these animals; iii encouraging the finder of a stray dog or cat to report it to the competent authority.” 34. Since the mid-1990s the Romanian and foreign printed, on-line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued: attacks by stray dogs resulting in serious injuries to many people or even death in some cases; huge indignation caused in Romania and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs; organisation of donation campaigns in favour of the sterilisation of stray dogs, and so on. By the year 2000, the population of stray dogs in the city of Bucharest alone numbered some 200,000. In March 2001 the mayor of Bucharest decided to have recourse to euthanasia, in the light of statistics for the city of Bucharest indicating that the population of stray dogs had doubled between 1996 and 2001; that in 2000 some 22,000 persons had received medical care following attacks by stray dogs; that from the beginning of 2001 more than 6,000 persons had been bitten by stray dogs; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people. The international media widely reported on the mayor’s attempt to tackle this issue, as well as on the other solutions envisaged by candidates in local elections throughout the country, and on the criticism of euthanasia measures by certain international public figures, such as the actress Brigitte Bardot, who in 2001 had donated some 100,000 euros to the City of Bucharest for the purpose of sterilising stray dogs instead of killing them. The euthanasia campaign in Bucharest was stopped in 2003, after some 80,000 dogs had been euthanised. In 2005 the media reported that the population of stray dogs had again risen alarmingly, and that between 40 and 50 complaints of dog attacks were being registered daily by the animal control service in the Bucharest City Hall. The issue of the situation of stray dogs in Romania, as a public health issue, and the proposed ways of tackling it by legislative measures, was reportedly raised by various Romanian politicians with European Union bodies. 35. Specific incidents were also widely and regularly covered by the media from 2000. Thus, national newspapers such as Evenimentul Zilei, Ziua and Adevărul reported on their internet pages the death of a sixty-eight-year-old Japanese businessman after being bitten by a stray dog in the centre of Bucharest and the death of a two-year-old boy and a forty-five year old schizophrenic, both bitten by stray dogs in Craiova. Several news agencies, such as Mediafax and Ziare.com, and most newspapers reported on the death in similar circumstances of a six-year-old girl and of two other elderly persons in various major cities throughout Romania. In January 2011, an elderly woman was bitten to death by stray dogs in the centre of Bucharest. 36. According to the news agency Hotnews, the number of persons bitten by stray dogs in Bucharest has kept on increasing every year; for instance, it is reported that between November 2009 and February 2010, some 10,000 persons were bitten by stray dogs in Bucharest alone. 37. The Government have not submitted any official statistics or reports on the issue of stray dogs in Romania. 38. On 13 October 2009, the advisory body to the prefect, the Prefectural College, met and discussed, inter alia, the issue of stray dogs on the streets of Bucharest. In a statement published on the website of the Bucharest Prefect’s Office following this meeting, the prefect stated that the problem of stray dogs was not yet solved and mentioned that: “... although they have been sterilised and have an identification microchip, they can still bite and therefore pose a threat to our health, our children’s health and to visitors to Bucharest.” The Prefect of Bucharest further stated that the data received from the Institute of Infectious Diseases of Bucharest were worrying and showed that a total of 9,178 persons had been bitten by stray dogs in Bucharest during the first six months of 2009, of which 1,678 were children. He also quoted a report by the Animal Control Agency, according to which 38% of the dogs collected by that authority from the streets of Bucharest in the first half of 2009 were infested with leptospirosis, an infectious disease transmissible to humans and which can cause meningitis, liver damage and renal failure. 39. On 2 February 2010, in a press release published on the website of the Bucharest Prefect’s Office, the same prefect stated that there were almost 100,000 stray dogs in Bucharest and that more than 10,000 people were bitten every year. 40. In an interview of 27 April 2010 the prefect of Bucharest indicated that, according to the latest statistics, the number of stray dogs in the streets of Bucharest was between 40, 000, according to the NGOs, and 100,000, according to the local administration, that in 2009 around 7, 000 persons had been bitten in Bucharest by stray dogs, that in the first four months of 2010 the number of persons bitten by stray dogs was more than 2,000, and the costs for the treatment of these persons was about 400,000 euros per year. The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances.