THIRD SECTION

DECISION

Application no . 38353/05 Mihnea Dan DIACONESCU against Romania

The European Court of Human Rights (Third Section), sitting on 17 September 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 29 September 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mihnea Dan Diaconescu, is a Romanian national, who was born in 1954 and lives in Norwalk, the United States of America. He was represented before the Court by Mr C. Lupu, a lawyer practic ing in Râmnicu Vâlcea.

2 . The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea and their Agent Ms 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 . On 21 September 2001 the Râmnicu Vâlcea Mayor ’ s Office acknowledged the applicant ’ s property rights to 112,528 sq.m. of land, out of which 68,728 sq.m. were located intra muros of the town of Râmnicu Vâlcea, and issued his property title for the land.

5 . On 5 February 2004 the applicant applied for a town planning certificate ( certificat de urbanism ) with the Râmnicu Vâlcea Mayor ’ s Office, this being a required condition for obtaining a permit for construction on the 68,728 sq.m. of land he owned intra muros . The applicant intended to develop the area in question by building a new neighbourhood.

6. On 4 March 2004 the Râmnicu Vâlcea Mayor ’ s Office granted the applicant the town planning certificate he had requested for the 68,728 sq.m. of land he owned , on condition that he drafted a zoning plan ( plan urbanistic zonal ), authorised and approved according to the relevant legal provisions in force, which would regulate the routes and layout of the streets that would be built, by working out the issue of the vehicle and pedestrian traffic, the compatibility of the functions and the conformity of the constructions.

7 . By a report of 13 July 2004 the Town Planning Agency attached to the Râmnicu Vâlcea Mayor ’ s Office examined, in the light of the legislation in force including the General Rules on Town Planning as approved by Governmental Decision no. 525/1996 , the zoning plan which had been drafted by the applicant at his own expense, and recommended that the Râmnicu Vâlcea Local Council approve the said plan . It recommended that the work concerning utilities as well as the vehicle and pedestrian access routes between buildings be carried out at the applicant ’ s expense. In addition, the vehicle and access routes would be transferred at a later date to the public domain following an agreement signed by the applicant with the Mayor ’ s Office.

8 . By a decision of 27 September 2004 the Râmnicu Vâlcea Local Council, taking into account the report of the Town Planning Agency, approved the zoning plan drafted by the applicant. The Local Council held that, according to the applicable legal provisions, the applicant had to carry out the utility and vertical systematization works, while the pedestrian and vehicle access routes provided by the zoning plan would be transferred to the public domain. It also held that the applicant could be issued with a building permit only after he had carried out the above-menioned tasks at his own expense.

9. The applicant appealed against the decision of the Râmnicu Vâlcea Local Council. He argued that the conditions attached to the building permit were unlawful as they breached the provisions of Law no. 350/2001 on zone planning and the General Town Planning Rules as approved by the Governmental Decision no. 525/1996. Moreover, he submitted that the condition placed an excessive burden on him that prevented the development of the area in question and that he had received a different treatment from individuals in a similar situation. Lastly, he had offered to donate to the Local Council the land reserved for the public utility networks, including roads and access routes if the conditions imposed on him were to be dropped.

10. By a final decision of 30 November 2004 the applicant ’ s appeal was dismissed by the Râmnicu Vâlcea Local Council. The applicant appealed against the decision of 30 November 2004 before the domestic courts, seeking its partial overturn, in so far as he was required to fulfil unlawful conditions prior to obtaining a building permit. He argued that the Local Council ’ s decision had breached Law no. 350/2001 and the General Town Planning Rules as approved by the Governmental Decision no. 525/1996 and had imposed an excessive burden on him, subjecting him to discriminatory treatment compared with other individuals in a similar situation.

11. By a judgment of 1 February 2005 the Vâlcea County Court dismissed the applicant ’ s action as ill-founded. It held that the conditions imposed on the applicant were not unlawful considering that according to Article 38(k) of Law no. 215/2001 on public administration, the local councils examine and approve the town planning and zone planning documents and determine the financial and material means required for their implementation. In addition, Article 51 of Law no. 350/2001 on territorial zone planning, provides that town and land planning activities can also be financed by individuals interested in developing an area. Moreover, the decision of the Local Council did not amount to an expropriation and it clearly stated that the pedestrian and vehicle access routes would be expropriated only by applying available legal safeguards. Furthermore, the impugned decision had been issued on the basis of the report drafted by the Town Planning Agency. Also Law no. 326/2001 on management of public utility networks, which regulated investment in construction of public utility networks was not applicable in the present case, as the applicant had contested only a zoning plan approved by the Local Council. Lastly, the zoning plan in question did not have a public utility character and was undeniably of private interest.

12. The applicant appealed on points of law ( recurs ) against the judgment and relied on Article 304(9) of the former Romanian Code of Civil Procedure. He argued that the first-instance court had failed to examine his complaint and to apply the relevant legal provisions correctly. He submitted that he had not contested the zoning plan, as it had been approved by the Council, and that his action concerned exclusively the duty to build the public utility networks at his own expense, including all network connections as well as pedestrian and vehicle access routes. In these circumstances he considered that the provisions of Article 8 of Law no. 326/2001 were applicable in the present case, as the said law determined which entities were responsible for funding the building of public utility networks, which according to him included the road, pavements, public water, gas and sewage networks. In addition, Law no. 326/2001 acknowledged the public character of the funding of public utility networks; it followed that a private person could not be asked to fund them. Moreover, he submitted that Law no. 350/2001 concerned the funding of zoning plan activities, in particular the drafting of zoning plans and other documents required as conditions for obtaining town planning certificates and building permits, but did not regulate the funding of public utility networks. Furthermore, the refusal of a building permit for part of his land pending the construction of the public utility networks from his own funds amounted to an excessive burden on him, in so far as he was thus unable to use part of his land. Lastly, the limitation was discriminatory, as private parties in a similar situation had not been forced to fulfil those conditions prior to building on their land.

13. By a final judgment of 4 April 2005 the Piteşti Court of Appeal dismissed the applicant ’ s appeal on points of law on the ground that it was ill-founded. It held that the decision contested by the applicant was not unlawful as Articles 53 and 54 of Law no. 350/2001 provided a duty for the authorities to fund zoning plans as long as they concerned objectives of public interest. Consequently, private individuals were responsible for funding zoning plans which had other objectives. The court also dismissed the applicant ’ s argument that his property rights had been breached, on the grounds that the applicant was the owner of the land and the authorities had issued the town planning certificate requested by him and had approved his zoning plan. In addition, the applicant failed to fulfil his lawful duty to specify the damage incurred by him. Furthermore, Law no. 326/2001 was not applicable to the present case, as the authorisation of the zoning plan was a precondition for the expropriation of the infrastructure. Lastly, the court dismissed the applicant ’ s argument concerning alleged discriminatory treatment, on the ground that it did not fall within the grounds for an appeal on points of law provided by Article 304(9) of the former Romanian Code of Civil Procedure.

14. On 10 May 2005 the applicant opened extraordinary appeal to review proceedings ( revizuire ) against the final judgment of 4 April 2005. He argued that the last instance court failed to examine what he had requested.

15 . By a final judgment of 12 September 2005 the PiteÅŸti Court of Appeal dismissed the extraordinary appe al to review proceedings as ill ‑ founded. It held that the last-instance court could not have erred in respect of the object of the proceedings opened by the applicant as the impugned administrative act did not concern the cost of the town and zone planning documents. It addition, the courts examined the lawfulness of inserting such conditions in the contested administrative act, which they were actually called to do by the applicant.

B. Relevant domestic law

16 . Article 2(1) of Law no. 326/2001 on the management of public utility networks provides that the said networks include, inter alia, access to water, sewage, waste disposal, heating and public lighting.

17 . Article 3 (1) and (2) of Law no. 326/2001 provides that the public utility networks are formed by a web of technical equipment and installations which are part of the local public infrastructure. Together with the land they are located on, they belong to the private or public domain of the administrative unit.

18 . Article 8 (1) of Law no. 326/2001 provides that investments and implementation of investments concerning public utility networks are regulated by legislation concerning public investments.

19 . Article 38(k) of Law no. 215/2001 on public administration provides that the local council examines and approves, according to the law, town planning and territory arranging documents, establishing the material and financial resources needed for their implementation.

20 . Article 47 (2) of Law no. 350/2001 on zone planning provides that the zoning plan contains rules in respect of an area concerning the organisation of the street networks, the architectural layout, ways of using land, development of public infrastructure, legal status of land and the protection of historical monuments.

21 . Article 50 of Law no. 350/2001 provides that the drafting of zoning plans may be initiated by private individuals interested of developing an area.

22 . Article 51(1) of Law no. 350/2001 provides that the activities of arranging a territory and of town planning, provided by the present law, may be financed inter alia by private parties interested in developing a town or an area within the town.

23 . Article 53 of Law no. 350/2001 provides that local authorities participate in financing plans for arranging a territory or of general town planning projects.

24 . Article 54 (2) of Law no. 350/2001 provides that zoning plans which do not concern objectives of public interest are funded by private individuals, with the help, as the case may be, of local authorities.

25 . Article 13 (1) and (2) of the the General Town Planning Rules as approved by the Governmental Decision no. 525/1996 provides that it is prohibited to authorise constructions which require public utility equi p ping as a result of their size and purpose which surpass the financing and technical posibilities of the local administration or the interested private investors. The authorisation for construction may be subjected to the prior establishment, by contract, of the partial or entire obligation on the interested private investor to carry out the works for the required public utility equipping.

26 . Article 304(9) of the former Romanian Code of Civil Procedure provides that the change or the quashing of a court judgment can be requested, only for reasons of unlawfulness, when the judgment lacks any legal grounds or it was delivered in breach of or misapplying the law.

COMPLAINTS

27 . The applicant complained under Article 1 of Protocol No. 1 to the Convention that his inability to obtain the cancellation of part of a zoning plan prohibiting him from obtaining a building permit for the 68,728 sq.m. of his property pending the construction of public utility networks from his own funds amounted to a breach of his property rights. He argued that the condition was unlawful in so far as the domestic legislation acknowledged the public nature of such investments, and that it amounted to a disproportionate burden on him, considering the costs of construction. Moreover, Law no. 350/2001 on territorial zone planning did not contain provisions concerning the funding of public utility networks and regulated exclusively the funding of documents required as a condition of obtaining a building permit.

28 . The applicant complained under Article 6 § 1 of the Convention that the domestic courts failed to examine the merits of his complaint against the Râmnicu Vâlcea Local Council. He argued that while he contested the disproportionate obligation imposed on him to fund the construction of the public utility networks for his property, the domestic courts dismissed his complaint on account of the applicable legal provisions providing an obligation for private individuals to fund zoning plans, an obligation which he had never contested.

THE LAW

A. Alleged violation of Article 1 of Protocol No. 1 to the Convention

29 . The applicant complained that his inability to obtain the cancellation of part of the zoning plan prohibiting him from obtaining a building permit for part of his property amounted to a breach of his property rights. He relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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

30 . The Government submitted that the part of the applicant ’ s land for which the town planning certificate was issued was private property. In addition, according to the information sent to the Government by the local authorities which they attached to the observations submitted before the Court, the decision of 27 September 2004 of the Râmnicu Vâlcea Local Council did not breach the applicant ’ s property rights because after the zonning plan was approved, a third party bought part of the applicant ’ s land. The said third party obtained a building permit and the public utility networks and the connection routes to the third party ’ s property were carried out at the third party ’ s expense.

31 . The Government also contended that the applicant could not be considered a victim of the breach of his property rights because he obtained the approval of the zoning plan for his land. Moreover, his complaint under Article 1 of Protocol No. 1 to the Convention was premature because the exact prejudice suffered by the applicant could not be identified considering that he did not carry out any work in respect of his land or that he had not received any compensation for it. The applicant failed to specify the exact prejudice he had suffered even before the domestic courts.

32 . They also argued that the applicant failed to exhaust the available domestic remedies in order to recover any alleged prejudice. In particular, he failed to open any proceedings before the domestic courts seeking compensation for any works that he had to carry out and which in his opinion were of public nature. The remedy in question was accessible and was effective both in theory and in practice.

33 . Lastly, they contended that the alleged interference with the applicant ’ s property right was based on justified legislation, pursued the protection of a public interest and was not unjustified.

34 . The applicant disagreed with the Government ’ s arguments. He contended that the local authorities clearly had the financing required to support the public utility works required for his land because they offered to expropriate the land occupied by the said public utilities at a later date. However, the expropriation could have been carried out only after he would have been compensated for his investment. In addition, he submitted that there were no other remedies that he could have exhausted considering that he did not contest a potential expropriation measure or the absence of compensation for the work he would have been forced to carry out, but rather the restriction imposed on his property rights. Lastly, he was unaware that a building permit was awarded to a third party in respect of the land in question.

2. The Court ’ s assessment

(a) General principles

35 . The Court reiterates that Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not, however, ‘ distinct ’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 62, ECHR 2007 ‑ I and Potomska and Potomski v. Poland , no. 33949/05 , § 40, 29 March 2011 ).

36 . Any interference with the right to the peaceful enjoyment of possessions must achieve 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 to be realised. 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, amongst 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 ; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005 ‑ VI and Potomska and Potomski , cited above, § 64 ).

37 . In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. With particular reference to the control of the use of property, the State has a wide margin of discretion as to what is “in accordance with the general interest” (see, mutatis mutandis , Beyeler v. Italy [GC], no. 33202/96, §112, ECHR 2000 ). Moreover, it must not be assumed that every control of use of property invariably has to be accompanied by some form of compensation (see, mutatis mutandis , J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 79, ECHR 2007 ‑ X and Depalle v. France [GC], no. 34044/02, § 91, ECHR 2010).

(b) Application of the above principles to the present case

38 . The Court notes from 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 the said objections as, even assuming that they were dismissed, the complaint is in any event inadmissible for the following reasons.

39 . The Court observes that from 2000 the applicant is the owner of the part of the land for which he tried to obtain the approval for a building permit. In September 2004 the Râmnicu Vâlcea Local Council, subject to a condition, in particular the carrying out of the utility and vertical systematization works for the future buildings, approved the zonning plan required as a pre-condition for obtaining the building permit requested by the applicant.

40. The Court notes that the decision issued by the Râmnicu Vâlcea Local Council in September 2004 did not change the legal ownership of the concerned property, but subjected the use of the said possession to specific restrictions; hence, it may be regarded as a measure to control the use of property (compare, mutatis mutandis , Debelianovi v. Bulgaria , no. 61951/00, § 51, 29 March 2007; Longobardi v. Italy (dec.), no. 7670/03, 26 June 2007; Yildiz and Others v. Turkey (dec.), no. 37959/04, 12 January 2010 and Potomska and Potomski , cited above , § 63). The Court further observes that this restriction was not subject to a time-limit and remained in force until the present day. In view of this, the Court considers that the situation complained of constitutes an on-going control of the use of the applicant ’ s property which is to be examined under paragraph 2 of Article 1 of Protocol No. 1.

41 . The Court also considers that the relevant legal provisions relied on by the domestic authorities concerning town and zone planning and the financing of the activities imposed on the applicant as well as the interpretation of the said legal provisions by the domestic courts, even though couched in succinct reasoning, form a sufficient legal basis for the impugned restrictive measures. The Court further observes that the interference pursued a legitimate aim, namely the protection of the town ’ s interests and of the interests of the potential future owners of the buildings by ensuring that they purchased functional homes.

42 . The Court notes that by the time the applicant tried to obtain the required documents for building on his property, the relevant legal provisions regulating the circumstances in which the documents could be issued and the financing conditions for their implementation had been in force for several years. It follows that the applicant must have been aware about the potential impugned financial restrictions by the time he decided to develop a new neighbourhood on his property.

44 . Lastly, the Court finally observes that the applicant had the legal possibility to challenge the lawfulness of the restrictions. The domestic courts, in spite of the applicant ’ s allegations, examined his action, interpreted the applicable legal provisions and provided reasons for their decisions which do not appear arbitrary or erroneous.

45 . In the light of the above considerations, and taking into account the State ’ s wide margin of appreciation in respect of the control of the use of property, the Court considers that the decision not to annul the restrictive pre-conditions for obtaining the building permit did not impose a disproportionate and excessive burden on the applicant.

46 . 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 of Article 6 of the Convention

47 . The applicant complained that the domestic courts failed to examine the merits of his complaint against the Râmnicu Vâlcea Local Council. He relied on Article 6 of the Convention, which in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties ’ submissions

48 . The Government contended that the domestic courts examined the aspects of the applicant ’ s case and his grounds for appeals in the light of the relevant legal provision in force at the time and dismissed them by providing clear reasons.

49 . The applicant disagreed.

2. The Court ’ s assessment

50 . The Court notes that this complaint is closely linked to the one examined under Article 1 of Protocol No. 1 to the Convention. It has already found that the assessment of the applicant ’ s case by the domestic courts was in conformity with the requirements of that provision. For essentially the same reasons the Court considers that there is no indication of a breach of Article 6 § 1 of the Convention.

51 . It follows that this part of the app lication is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President