THIRD SECTION

DECISION

Application no . 26040/06 Ioana ÅžCHIOPU and TomiÈ› a VERZESCU against Romania

The European Court of Human Rights ( Third Section ), sitting on 26 November 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Luis López Guerra, Nona Tsotsoria , Johannes Silvis, Valeriu Griţco , judges, and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 15 June 2006 ,

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. T he applicants, Ms Ioana Åžchiopu and Ms Tomi È› a Verzescu , both Romanian nationals, were born in 1926 and 1931 respectively . Ms Tomi È› a Verzescu live s in R â mnicu-V â lcea . Ms Ioana Åžc hiopu died on 4 September 2006. Her son, Mr Ion Åžchiopu , applied to pursue the application b efore the Court in her name. The applicants were represented before the Court by Ms M . C. Beniog , a lawyer practic ing in R â mnicu ‑ V â lcea .

2. The Romanian Government (“the Government” ) were represented by their Agent, M s C. Brumar , 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.

4. By final judgments of 21 January 1993 and 23 January 1996 the Vâlcea District Court acknowledged the applicants ’ property rights to 12,500 sq. m of land which had been expropriated from the applicants ’ predecessors during the communist regime. It also ordered the local authorities to issue title deeds i n the applicants ’ names and to grant them possession of the land , which lay within the boundaries of the town of Râmnicu-Vâlcea .

5. Because the local authorities envisaged granting the applicants possession of the land to which they were entitled , they proceeded to establish whether the same land that had been owned by the applicants ’ predecessors could be returned to them.

6. O n 16 June 1994 the Râm nicu-Vâlcea Energy Sanitation and Water Service informed the Râmnicu-Vâlcea Local Commission for the Enforcement of Law no. 18/1991 on L and R eturn (“the Local Commission”) that 1,767 sq. m of the land formerly owned by the applicants ’ predecessors, part of which had been occupied after nationali s ation by the Service ’ s decommissioned oil tanks , was under its administration and that the land was therefore not subject t o the Real Property Act ( Law no. 18/1991 ) .

7. On 20 November 2000 the Local Commission granted the applicants possession of the aforementioned 1,767 sq. m of land.

8. According to the minutes of the meeting between the Local Commission and the applicants, drafted on the same day and signed by both parties, the applicants accepted the land without any objection s or comments.

9. On 2 February 2001 the Râmnicu-Vâlcea County Commission issued the applicants with a title deed for the 1,767 sq. m of land.

10. On 23 April 2001 and 7 March 2003 the Râmnicu-Vâlcea mayor ’ s office informed the applicants that ten oil tanks – each containing 50 tonnes of oil – which had formerly been used to fuel the town ’ s heating system, had been installed between 196 8 and 1969 on part of the 1,767 sq.m . of land of which they were granted possession. The mayor ’ s office also asked the applicants to allow access to their property, and to assist the local authorities in removing the tanks because – according to the Râmnicu-Vâlcea Environmental Agency – oil from the tanks was leaking into the town ’ s sewage system and into the river Olt , polluting it. Lastly, the mayor ’ s office stated that if the applicants refused to allow access to their property, they would be entirely responsible for any resulting environmental pollution and the authorities would lodge injunction proceedings against them to force them to comply.

11. On 26 February 2004 the Râmnicu-Vâlcea m ayor ’ s o ffice issued the town planning authorisation re quired to obtain a permit to remove the oil tanks located on the applicants ’ property.

12. On 4 May 2004 the Technical Department attached to the Râmnicu ‑ Vâlcea m ayor ’ s o ffice produced a report stating that technical documents needed to be prepared in order to obtain a removal permit in respect of the oil tanks on the applicants ’ property. In addition, it recommended that such technical documents be prepared by a specialist company as required by law. It also stated that the oil tanks had to be removed as soon as possible – even though the funds required for the documents and the execution phase had not been allocated in the yearly budget – because they represented a danger to the environment. Lastly, they asked the mayor ’ s office to find the funds for the project when the yearly budget was reviewed.

13. On an unspecified date in 2004 the applicants brought proceedings against the Local Commission and the Râmnicu- Vâlcea m ayor ’ s o ffice , seeking an injunction for them t o remove the oil tanks from the 750 sq. m of their property they were occupying or to allow the applicants to remove the tanks at the authorities ’ expense. T hey also claimed damage s for their inability to use the land. Amongst other things, they argued that, at the time the land had been returned to them and they had been issued with the title deeds, the Local Commission had promised that the oil tanks would be removed from the land. Moreover, they argued that they were unable to use the land, in particular that they were unable to build on it or rent it out at the going rate for the area.

14. By a judgment of 25 May 2005 the Vâlcea District Court allowed the applicants ’ action and ordered the local authorities to pay the m 336,164,000 Romanian lei (ROL) (approximately 9,000 euros (EUR)) in damage s for the ir inability to use the land for the previous three years . It noted that , according to the technical expert report held on file, 612 sq. m of the land owned by the applicants wa s occupied by concrete platform s and six oil tanks, each containing 50 tonnes o f fuel. In addition , the applicants had suffered pecuniary damage because of their inability to use the land for the category of use assigned to it, particularly building purposes . The local authorities appealed against the judgment. They argued, inter alia , that the applicants had not proved that damage had been sustained considering that the tanks were buried between two and at least three metres underground and did not affect the soil at ground level. In addition, the land was suitable for agriculture. In these circumstances they would have suffered damage only if they had applied for a building permit.

15. By a judgment of 25 October 2005 the Vâlcea County Court dismissed the local authorities ’ appeal. It held that , although the local authorities had granted the applicants possession of the land , they had failed to discharge their lawful duty to ensure that the land could be used for the category of use assigned to it, particularly building purposes . In addition, according to the Râmnicu-Vâlcea Environmental Agency and the town planning authorisation issued by the m ayor ’ s o ffice , the tanks were an environmental hazard and had to be removed urgently. The local authorities appealed on points of law ( recurs ) against the judgment.

16. By a final judgment of 10 February 2006 , the Piteşti Court of Appeal by a majority allowed the local authorities ’ appeal on points of law, quashed the judgments of the lower courts and dismissed the applicants ’ action. It held that the local authorities had a lawful duty to return the land to the applicants, but were not responsible for ensur ing that the land could be used for the category of use assigned to it . Even though th e part of the land in question could have been returned to the applicants pursuant to the relevant domestic legal provisions only if it had been used for agricultural purposes , the applicants had accepted the plot of land. Consequently, the local authorities could not lawfully be held responsible for the applicants ’ decision. The applicants lodged an extraordinary appeal for review ( revizuire ) of the judgment. They argued that they had become aware on 11 August 2006 of the letter of notification of 16 June 1994 which proved that the local authorities had known about the existence of the oil tanks from an early stage of the restitution process, although they had failed to inform the applicants about it.

17. By a final judgment of 4 October 2006 the Piteşti Court of Appeal dismissed the applicants ’ appeal for review as ill-founded. It held that the letter of notification could not be considered as a new decisive element for the case which the applicants were unable to present before the courts which had examined the merits of the case. The notification in question had been held in the restitution file opened in the applicants ’ names by the authorities and could have been requested from the local authorities by them at any time.

18. In their submissions o f 15 June 2006 and 6 April 2012 before the Court , the applicants stated that the oil tanks we re embedded in the ground and that only s om e concrete platforms we re visible on the surface. They also stated that at the time they had been given possession of the land and issued with the title deeds, the local authorities had promised to carry out the work necessary to restore the land and return it to the category of use assigned to it. On the other hand, however, they contended that t hey had been unaware of the embedded oil tanks and their content s and that the authorities had failed to inform them of their existence. In addition, they had been unable to use the land either for building purposes or for agriculture.

B. Relevant domestic law

19. Section 19 of the Environmental Protection Act ( Law no. 137/1995 ) provides that the local and central authorities must take all necessary steps to prevent or eliminate the impact of hazardous substances on human health and the environment.

20. Section 42(3) of the Real Property Act (Law 18/1991) provides that land that has been developed, other than for agricultural purposes, cannot be returned.

COMPLAINTS

21. Relying on Article 6 of the Convention , the applicants complain ed that the proceedings had been unfair in so far as the domestic courts had lacked impartiality and independence.

22. Invoking in substance Article 8 and expressly Article 1 of Protocol No. 1 to the Convention , the applicants complain ed that the oil tanks occupying part of their land had prevented them from using their property , had diminished its value and constitu ted a dangerous environmental hazard.

23. Relying on Article 13 of the Convention , the applicants complain ed of a breach of their right to an effective remedy in so far as the domestic courts had dismissed their complaint and they could no longer obtain just satisfaction for the damage sustained .

THE LAW

A. Alleged violation o f Article 8 of the Convention

24. The applicants complained that the oil tanks occupying their land constitu ted a dangerous environmental hazard. They relied in substance on Article 8 o f the Convention, which reads :

“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.”

1. The parties ’ submissions

25. The Government contended that Article 8 was not applicable to the instant case because the plot of land occupied by the oil tanks was agricultural and the applicants could use it for agricultural purposes. They had never argued that they were living on the plot of land in question and none of the evidence in the file would support such an argument.

26. The Government also submitted that while the local authorities might be called upon to address the environmental concerns of the community, they were allowed some flexibility in assessing the seriousness of the situation and in assigning the correct degree of priority to it. Also, following the dismissal of the applicants ’ action by the domestic courts, there was no evidence that they had continued to pursue the environmental aspect of the matter with the local authorities. Moreover, no complaints or incidents had been recorded in respect of their property.

27. The applicants argued that the rights guaranteed by Article 8 of the Convention concerned not only their home. The applicants also had the right to enjoy their property, which affected their private life. The decommissioning of the oil tanks by the authorities without any measures for the protection of the environment being taken amounted to a serious interference with the applicants ’ rights. Such interference was not provided for by law, nor did it pursue a legitimate aim. Moreover, the applicants ’ land was located in a residential area and both the local neighbourhood and the applicants themselves were exposed to danger.

2. The Court ’ s assessment

28. The Court reiterates that according to its established case-law, severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely without, however, seriously endangering their health (see L ó pez Ostra v. Spain , 9 December 1994, § 51 Series A no. 303-C ). Yet the crucial element which must be present in determining whether, in the circumstances of a particular case, environmental pollution has adversely affected one of the rights safeguarded by paragraph 1 of Article 8 is evidence of a harmful effect on a person ’ s private or family sphere and not simply the general deterioration of the environment. Neither Article 8 nor any of the other Articles of the Convention is specifically designed to provide for general protection of the environment as such; other international instruments and domestic laws are more pertinent in dealing with this particular aspect.

29. The Court notes at the outset that the Government raised a preliminary objection in respect of the applicant s ’ complaint. However, it finds that it is not necessary to examine th i s objection as, even assuming that it were to be dismissed, the complaint is in any event inadmissible for the following reasons.

30 . In the present case, even if it is assum ed that the environment has been severely damaged by t he oil tanks embedded in their land, the applicants have not brought forward any convincing argumen ts showing that the potential dam age to part of their land was such as to directly impinge on their own rights under Article 8 § 1 of the Convention , and therefore to affect them personally or their home . It might have been otherwise if, for instance, the environmental deterioration complained of had amounted to the destruction of the garden or yard of their house, a situation which could have affected the applicants ’ own well-being more directly. The Court notes, however, that according to the Government ’ s submissions, uncontested by the applicants, the latter live in a different part of town. Moreover, the applicants themselves have stated that they were not using the land in question for building or for agricultural purposes. Consequently , the Court cannot accept that the embedded oil tanks on part of the applicants ’ land constitute an interference with the ir private or family life.

31. Having regard to the foregoing, the Court considers that there is no lack of respect for the applicants ’ private and family life.

32. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B . Alleged violation o f Article 1 of Protocol No. 1 to the Convention

33. T he applicants complain ed tha t the oil tanks occupying part of their land had prevented them from using their property and diminished its va lue . They relied on Article 1 of Protocol No. 1 to the Convention, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. The parties ’ submissions

34. The Government submitted that the fuel tanks had been placed on part of the applicants ’ property prior to Romania ’ s accession to the Convention in 1994. Consequently, the domestic authorities had been under no obligation to provide redress since it was an injustice that had occurred before Romania joined the Convention system. In addition, the applicants did not have any obligations towards the authorities as a result of the placement of the oil tanks on their property. Nor were the authorities under any obligation to carry out works that would have rendered the land appropriate for a particular use, such as building. Consequently, the applicants ’ claim to restitution of land appropriate for a particular purpose was not recognised by domestic law and therefore did not fall within the ambit of Article 1 of Protocol No. 1 to the Convention.

35. The Government also contended that the presence of the oil tanks on part of the applicants ’ land had not resulted in any interference with their property rights. The land in question appeared to be suitable for agriculture and no environmental obligation or encumbrance had been imposed on the applicants by the authorities. The applicants had accepted the land despite the presence of the impugned tanks and the public information about them available in the restitution file.

36. The applicants argued that when they were granted possession and were issued with the title deeds to the land in question, they had been unaware that oil tanks had been embedded in the soil. They had also thought that the visible concrete platforms were former pathways. The dismissal by the domestic courts of their extraordinary appeal for review had not amounted to proof that they had known about the embedded oil tanks. In addition, the authorities had had a lawful duty to return the land to the applicants free from any encumbrance. Moreover, the oil tanks were decommissioned and did not serve any public interest. Therefore, it was the duty of those who built them to remove them, given that the removal operation could not be carried out by the applicants on account of the special process required for the removal of the fuel, amongst other things.

37. They further contended that the applicants had not requested that the returned land should be appropriate for building. They had simply applied for the return of the land that had been expropriated from their predecessors. In addition, the injustice of which the applicants were complaining had occurred after Romania joined the Convention system, when the domestic courts had dismissed the action initiated by them against the authorities. Also, their property rights were absolute and had to be observed by the authorities. Their land was unusable and they had received no compensation for the damage sustained.

2. The Court ’ s assessment

38. The Court reiterates that a ny interference with the right to the peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden , 23 September 1982, § 69, Series A no. 52) . In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought. In each case involving the alleged violation of this right the Court must, therefore, ascertain whether by reason of the State ’ s action or inaction the person concerned had to bear a disproportionate and excessive burden (see, among other authorities, The former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 89 ‑ 90, ECHR 2000 ‑ XII; Sporrong and Lönnroth , cited above, § 73; Broniowski v. Poland [GC], no. 31443/96, § 150, ECHR 2004 ‑ V ; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005 ‑ V I ).

39. The Court notes at the outset that the Government raised several preliminary objections in respect of the applicant s ’ complaint. However, it finds that it is not necessary to examine th ese objections as, even assuming that they were to be dismissed, the complaint is in any event inadmissible for the following reasons.

40 . The Court observes that the applicant s have had possession of the part of the land in which the oil tanks are embedded since 2000. I n February 2001 the Râmnicu-Vâlcea County Commission issued the applicants with a title deed to the land in question .

41 . The Court also notes that the refusal of the local authorities to remove the oil tanks occupying part of the applicants ’ property did not change the legal ownership of the land in question.

42 . The Court considers that the relevant legal provisions relied on by the domestic authorities concerning land return and the interpretation of th os e legal provisions by the domestic courts, even though expressed somewhat succinct ly , together form a sufficient legal basis for t he impugned interference with part of the applicants ’ property . The Court further observes that the interference had pursued a legitimate aim, namely the conserva tion of the town ’ s financial resources.

43 . The Court notes that by the time the applicant s sought acknowledgment of their property rights in their predecessors ’ land, the oil tanks had already been embedded in the soil. In addition, although they have repeatedly contended that they were completely unaware of the presence of the embedded oil tanks, they acknowledge that they were aware of the concrete platforms visible on the surface at the time they were granted possession and were issued with the title deeds to the land in question. Moreover, the letter of notification of 16 June 1994 confirming the existence of the tanks on part of their property and the unsuitability of the land for restitution purposes was available in the file concerning the return of the applicants ’ property which had been opened by the domestic authorities. This file was public and – according to the available information – the applicants could have had direct access to it. Furthermore, they failed to put forward any compelling argument as to why they could not have obtained full access to the information in the public file opened in their names . It follows that the applicant s must have been aware – or at least should have been aware – of the existence of the embedded oil tanks on part of their land by the time they decided to accept possession of the land and to be issued with the title deeds .

44 . With regard to the refusal of the local authorities to remove the oil tanks from part of their property , it appears that the applicants accepted possession of the land in question without reservation, and without clearly stating a willingness to accept it only on condition that the authorities remove the concrete platforms or indeed the oil tanks from it. Moreover, the applicants are not completely prevented from u sing this part of their property, as they can administer the land in question, change, displace and dispose of it or parts of it without any restrictions. The Court notes in thi s respect that the applicants have not submitted that they had sought and been denied authori s ation for any specific transaction relating to the property. Accordingly, it has not been e stablished that the applicants are completely prevented from using this part of their property in a reasonable way. In addition, the Cour t observes that the oil tanks in question occupy a relatively small part of the property in relation to which the domestic courts had acknowledged their property rights.

45 . Lastly, the Court observes that the applicant s had the legal possibility o f challeng ing th e lawfulness of the interference. The last instance court examined their action, interpreted the applicable legal provisions and provided reasons for its decision which do not appear arbitrary or erroneous.

46 . In the light of the above cons iderations , the Court considers that the decision of the court of final instance to dismiss the action brought by the applicants against the local authorities for the removal of the oil tanks did not impose a disproportionate and excessiv e burden on them .

47 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention.

C . Other alleged violation s of the Convention

48 . The applicant s also raised other complaints before the Court by relying on Articles 6 and 13 of t he Convention (see paragraphs 21 and 23 above).

49. The Court has examined these complaint s as submitted by the applicant s . However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaint s do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President