CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s24E6874 { margin-top:0pt; margin-bottom:18pt; text-align:center } .sB317A4DF { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } THIRD SECTION Application no. 26040/06 Ioana ŞCHIOPU and Tomița VERZESCU against Romania lodged on 15 June 2006 STATEMENT OF FACTS   The applicants, Ms Ioana Şchiopu and Ms Tomiţa Verzescu, are Romanian nationals, who were born in 1926 and 1931 respectively and live in Râmnicu-Vâlcea. Ms Ioana Şchiopu died on 4 September 2006. Her son, Mr Ion Şchiopu, applied to pursue the application before the Court in her name. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. By final judgments of 21 January 1993 and 23 January 1996 the Vâlcea District Court acknowledged the applicants’ property rights to approximately 1,800 sq.m. of land which had been nationalised during the communist regime. It also ordered the local authorities to issue property papers on the applicants’ names and to give them possession of the land. Because the local authorities envisaged to give the applicants possession of the land they were entitled to, on 16 June 1994 the Râmnicu-Vâlcea Energy and Sanitation Service informed the Râmnicu-Vâlcea Local Commission for the Enforcement of Law no. 18/1991 on land return (“the Local Commission”) that part of the land was occupied after nationalisation by its decommissioned oil tanks and could not be the object of Law no.   18/1991. It is unclear from the evidence in the file whether the applicants were also provided with the information. On 20 November 2000 the Local Commission gave the applicants possession of the land they were entitled to. According to the minutes of the meeting between the Local Commission and the applicants, drafted on the same day and signed by both parties, they accepted the land without any objection or comments. On 2 February 2001 the Râmnicu-Vâlcea County Commission issued the applicants with a property deed for the land. On 23 April 2001 and 7 March 2003 the Râmnicu-Vâlcea Mayor’s Office informed the applicants that ten oil tanks each containing 50 tones of oil formerly used to fuel the town’s heating system, had been built between 1968 and 1969 on part of the land they were given possession of. The Mayor’s Office also requested 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 the oil from the said 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 environmental pollution and the authorities would lodge injunction proceedings against them to force them to comply. On 26 February 2004 the Râmnicu-Vâlcea Mayor’s Office issued the town planning certificate required by the local authorities in order to apply for a building permit to remove the oil tanks located on the applicants’ property. On an unspecified date in 2004 the applicants brought proceedings against the Local Commission and the Râmnicu- Vâlcea Mayor’s Office seeking an injunction for them to remove the oil tanks from part of their property or to allow the applicants to remove the said tanks at the authorities’ expense. In addition they claimed damage for their inability to use the land. By a judgment of 25 May 2005 the Vâlcea District Court allowed the applicants’ action and ordered the local authorities to pay the applicants damage for the inability to use the land. It noted that according to the technical expert report available to the file, 750 sq.m. of the land owned by the applicants was occupied by a concrete platform and six oil tanks, each containing 50 tones of fuel. In addition the applicants had suffered pecuniary damage because of their inability to use the land. The local authorities appealed against the judgment. By a judgment of 25 October 2005 the Vâlcea County Court dismissed the local authorities’ appeal. It held that while the local authorities gave the applicants possession of the land they failed to discharge their lawful duty to ensure that the land could be used. In addition, according to the Râmnicu ‑ Vâlcea Environmental Agency and the town planning certificate issued by the Mayor’s Office the tanks were an environmental hazard and they had to be removed urgently. The local authorities appealed on points of law ( recurs ) against the judgment. By a final judgment of 10 February 2006 the Piteşti Court of Appeal allowed, by a majority opinion, 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 to ensure that the land could be used. Even though the part of the land in question could have been returned to the applicants according to the relevant domestic provisions only if it was occupied by agricultural investments, the applicants accepted to be given possession of the said plot of land. Consequently, the local authorities could not be held responsible for the applicants’ decision. The applicants lodged an extraordinary appeal to review ( revizuire ) against the judgment. By a final judgment of 4 October 2006 the Piteşti Court of Appeal dismissed the applicants’ appeal to review as ill-founded. In their submissions before the Court on 15 June 2006 and 6 April 2012 the applicants stated that the oil tanks are embedded into the soil and that only several concrete platforms are visible on the surface. They were unaware of the embedded oil tanks and their content and the authorities failed to inform them of their existence. In addition they were unable to use the land either for agriculture or construction purposes. B.     Relevant domestic law Article 19 of Law no. 137/1995 on the environment provides that the local and central authorities are required to undertake all necessary steps to prevent or eliminate the impact of hazardous substances on human health and the environment. COMPLAINTS 1.     Relying on Article 6 of the Convention the applicants complain about the unfairness of the proceedings in so far as the domestic courts lacked impartiality and independence. 2.     Invoking in substance Article 8 and expressly Article 1 of Protocol   No. 1 to the Convention the applicants complain that the oil tanks occupying their land prevented them from using their property, diminished its value and represented a dangerous environmental hazard. 3.     Relying on Article 13 of the Convention the applicants complain of a breach of their right to an effective remedy in so far as the domestic courts dismissed their complaint and they could no longer obtain just satisfaction for the damage incurred. QUESTIONS TO THE PARTIES   1.     Has there been an interference with the applicants’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol   No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest?   2.     Has there been an interference with the applicants’ right to respect for their private life and home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?