THIRD SECTION
DECISION
Application no. 15315/09
Lucia APETRII and Traian OLTEANU
against Romania
The European Court of Human Rights (Third Section), sitting on 5 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 11 March 2009,
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. The first applicant, Ms Lucia Apetrii, is a Romanian national who was born in 1946 and lives in Vatra Dornei. The second applicant, Mr Traian Olteanu, is a Romanian national who was born in 1948 and lives in Şaru Dornei. The applicants are siblings.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. As part of the general restitution process by which confiscated land is returned to its previous owners (or their heirs in title), the applicants became the owners of 48.47 hectares (ha) of forestry land. A title deed for 9 ha was issued on 23 October 2003 and one for 39 ha and 4.7 sq. m was issued on 30 May 2006. These areas of land were included within the boundaries of the Călimani National Park (“the national park”) by virtue of a governmental decision of 2003.
4. The applicants lodged an application with the forestry inspectorate to be granted approval for the exploitation of 1,300 cubic meters of timber, using the clear-cutting method (“metoda tăierii rase”). Their request was approved on 10 September 2006. Subsequently they lodged a similar request with the management authorities of the national park. By letter of 21 September 2006 their request was denied, with the reasoning that clear‑cutting was contrary to the legislation governing the management of protected areas.
5. The applicants lodged a complaint with the Suceava County Court relying on the provisions of a ministerial order. The order provided that, until the adoption of a management plan for each protected area, some forms of felling were allowed in national parks.
6. By a judgment of 12 June 2008 the Suceava County Court dismissed their action as unsubstantiated. Their appeal on points of law was dismissed by the Suceava Court of Appeal on 15 January 2009. The appellate court noted that, up to that date, no management plan had been adopted for the national park. Nevertheless, even if the authorities were at fault for not having adopted the said plan, which should have set conditions for the exploitation of forest applicable to that national park, the applicants could still seek compensation for the restrictions imposed on the use of their land, either on the basis of Government Emergency Ordinance 57/2007 on the protection of natural areas and the conservation of natural habitats and wild flora and fauna (“the Ordinance”) or on the basis of common law.
7. By letter of 24 May 2010 the Suceava Inspectorate for Forestry and Hunting of the Romanian Ministry of Environment and Forests informed the applicants that only 0.5 ha of their land was in a special protection area. The remaining surface of 47.97 ha was in a buffer zone and no compensation was provided by law for this type of land. In seeking to exploit the forest resource on their land, the applicants were advised to follow the same procedure as the one they had already used: asking for approval from the forestry inspectorate and then from the management authorities of the national park.
B. Relevant domestic law and practice
8. The Forestry Code (Codul Silvic) was adopted on 27 March 2008. It forbids in its Article 28 § 5 the use of the clear-cutting method in the national parks.
9. Government Emergency Ordinance no. 57/2007 sets out in its Article 22 the different protected areas in natural parks and the different activities that are allowed in each of these areas. In the special protection areas, only scientific and educational activities and ecological tourism are allowed, provided that the latter does not require any facilities to be built. Tree felling is prohibited in these areas but the owners can collect the wood and other resources that derive from ecological reconstruction and rehabilitation of the forest or from natural accidents. In the buffer zones, any tree cutting needs to be carried out in accordance with the restrictions set by the park’s management plan and by the guidelines for forest management within protected areas. In addition, several other activities are allowed, such as ecological tourism or traditional use of renewable sources.
10. Article 26 of the Ordinance provides the following:
“(1) For forestry land located within a protected natural area which is owned by private individuals [...], the owners [...] shall receive compensation for complying with the restrictive provisions of the management plan for the relevant protected area. The mechanisms for submitting a request [for compensation] and for calculating and granting compensation shall be established by a government decision.
(2) Until the adoption of a management plan [for their area...], the managers of the relevant protected area have a duty to draw up a set of conservation measures, which may necessitate the granting of compensation, and to submit this information to the National Agency for Protected Areas within six months from the date of taking over the management of the protected area...”
11. Ministerial Order 552/2003 of the Ministry of Agriculture, Forests, Water and the Environment allows some forms of tree felling in the buffer zones of the national parks, even before the adoption of a management plan for the park.
12. The Romanian Minister of Agriculture, Forestry and Rural Development and the Minister of Finance jointly adopted a ministerial order establishing the methodology for calculating the compensation to be paid to legal persons who own forest land subject to special protective measures. The order provides for compensation for restrictions on the use of forest land included in the special protection areas.
13. The management plan for the Călimani National Park was adopted on an unspecified date, in 2010 at the earliest.
COMPLAINTS
14. The applicants complained under Article 6 § 1 of the Convention that the outcome of the proceedings had not been fair, without providing any further detail.
15. Under Article 1 of Protocol No. 1, they complained that they could neither make use of the forest land that they own, nor receive compensation for this restriction, because their forestry land is located in the buffer zone of a national park.
THE LAW
I. THE COMPLAINT UNDER ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
16. The applicants claimed that their property rights had been breached because they cannot use their property as they wish nor receive compensation for the lack of use. They 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.”
17. The Government raised a preliminary objection and claimed that the applicants had not exhausted effective domestic remedies. In particular, they claimed that the applicants had not sought compensation under the Ordinance in respect of the 0.5 ha of forest land located in the special protection area of the national park. They claimed that this procedure had been successfully used by other owners; the compensation already awarded by the State had amounted in total to 1,711,000 Romanian lei.
18. They further argued that in respect of the remaining part of their forest land the applicants could have used the common law procedure in seeking compensation, especially since the Suceava Court of Appeal had already acknowledged in its decision of 15 January 2009 that the authorities had failed to adopt a management plan for the national park. They did not submit any examples of pertinent domestic case-law.
19. The Government finally submitted that the complaint was in any event manifestly ill-founded, as the applicants remained owners of the forest land and had made use of it. Between 2004 and 2010, the applicants had collected and subsequently sold 6,700 m3 of wood in the buffer zone which had become available to them as a result of natural accidents or forest management works.
20. The applicants disputed the Government’s allegations. They claimed that they had not made use of any of the remedies that the Government had referred to because both the procedure established by the Ordinance and the common law procedure had been ineffective in their case, given that the national park’s management plan had not yet been adopted.
21. In a letter of 18 December 2012, the applicants referred to a note from the forestry inspectorate that set the prices per cubic meter for different types of wood. They argued that the wood they had collected had been of inferior quality and therefore its price had been lower than that of wood collected using the clear-cutting method.
22. The Court notes that the Government’s objection raises two separate questions: on one hand, the effectiveness of the compensation procedure created by the Ordinance and, on the other hand, the effectiveness of the common law compensation procedure. The Court will examine these questions separately.
1. The remedy in the Ordinance
23. The Court reiterates that the obligation to exhaust domestic remedies requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention complaints. To be effective, a remedy must be capable of directly remedying the state of affairs complained of (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996‑IV and, more recently, Erkapić v. Croatia, no. 51198/08, § 61, 25 April 2013).
24. In the instant case, it is not disputed between the parties that Ordinance provided for compensation for owners of forest land located in special protection areas, such as was the case in respect of the applicants’ parcel of land measuring 0.50 ha (see paragraph 10 above).
25. The Government claimed that the procedure under the abovementioned legislation was effective and that it had been successfully used by owners in the same situation as the applicants. However, the applicants claimed that this procedure had been ineffective in their situation because the management plan for the national park had not been adopted.
26. The Court notes that in January 2009 the domestic courts took note of the fact that the authorities had not yet adopted a management plan for the national park (see paragraph 6 above). According to the information available to the Court, a management plan has been recently adopted (see paragraph 13 above). The applicants have not informed the Court whether after the adoption of the management plan they made use of the procedure established in the Ordinance. Neither have they claimed that they were seriously and objectively impeded from doing so.
27. In this connection, the Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above, § 68, and Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, § 58, 16 October 2007).
28. Therefore, the Court takes the view that after the adoption of the management plan the applicants should have claimed compensation under the provisions of the abovementioned legislation in respect of their plot of 0.50 ha of forest land located in the special protection area of the national park.
29. It follows that this part of the complaint is inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The remedy available at common law
30. With respect to the remainder of the applicants’ forest land which is located in the buffer zone of the national park, the Court notes that the Government claimed that the applicants should have used the common law remedy, especially since the domestic courts had already found, by virtue of a final decision, that the authorities had failed to adopt a management plan for the national park.
31. However, the Government did not provide specific examples showing that such claims for compensation have been examined on the merits by the domestic courts in similar cases. In such circumstances, the Court finds it difficult to examine the Government’s objection of non‑exhaustion of domestic remedies.
32. In any event, the Court finds that this part of the complaint is inadmissible on other grounds. First of all, the Court notes that the applicants’ property rights have never been challenged by the authorities. Their complaint rather refers to the control of the use of their possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 74, ECHR 1999‑III, and Alatulkkila and Others v. Finland, no. 33538/96, § 66, 28 July 2005).
33. The Court notes that this interference was provided for by law. National legislation forbids the use of the clear-cutting method in national parks, but it does not contain a general ban on the use of forests located in such natural parks. Other activities, such as those of a scientific and educational nature and ecological tourism are allowed in the buffer zones of these parks. Individual owners are also allowed to collect and make use of natural resources such as wood, provided that they do so in a manner which respects the environment (see paragraph 9 above).
34. Moreover, the Court accepts that by prohibiting extensive deforestation of protected areas, national law pursues a legitimate aim, namely the protection of the environment (see Theodoraki and Others v. Greece, no. 9368/06, § 60, 11 December 2008).
35. The Court must therefore examine whether the national authorities struck a fair balance between the demands of the general public interest and the requirements of the protection of the individual’s fundamental rights, and whether they imposed a disproportionate and excessive burden on the applicants (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005‑VI). In this connection, the State has the benefit of a large margin of appreciation with regard to both choosing the means of enforcement and ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the aims of the law in question (see Chassagnou and Others, cited above, § 75).
36. In the instant case, the Court does not find the restriction on the applicant’s property rights to be disproportionate to the aim pursued, given that they have not suffered any serious or damaging consequences nor remained subject to uncertainty with regard to their possessions over a long period of time (contrast, Matos e Silva, Lda., and Others v. Portugal, 16 September 1996, § 92, Reports 1996‑IV). Furthermore, the applicants did not claim that the exploitation of their forest land was their occupation or their main source of income (contrast Alatulkkila and Others, cited above, §§ 56 and 67).
37. With regard to the question of compensation, the Court notes that the law does not provide for compensation for restrictions on the use of forest land situated in buffer zones because in these areas individual owners are allowed to undertake several economic activities (see paragraph 9 above). The Government claimed that the applicants had collected and made use of wood which had become available as a result of natural accidents or forest management works, which the applicants did not dispute. Indeed, they only argued that if allowed to clear-cut a part of the forest situated in the buffer zone, they would have earned more.
38. In addition, the Court notes that the applicants did not argue that the law imposed considerable costs on them for the maintenance of the forest (see, mutatis mutandis, SCEA Ferme de Fresnoy v. France (dec.), no.61093/00, 1 December 2005, and Fürst von Thurn und Taxis v. Germany (dec.), no. 26367/10, § 28, 14 May 2013).
39. For these reasons, the Court finds that this part of the complaint is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. OTHER COMPLAINT
40. Relying on Article 6 of the Convention, the applicants also claimed that the procedure before the domestic courts had been unfair.
41. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that this complaint does 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 is 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.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy