Soil and water contamination
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine, 26 June 1996 66. The relevant provisions of the Constitution read as follows: Article 16 “To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.” Article 50 “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...” B. Law of Ukraine “On Ensuring the Environmental Health of the Public” of 24 February 1994 67. The relevant extracts from the Law provide as follows: Article 15. Requirements as to urban planning and construction, development, manufacture and use of new technologies and means of production “Enterprises, institutions, organisations and citizens shall comply with the requirements of environmental health legislation during ... construction and in urban planning development ... Building and urban development ... should first and foremost aim at creating the most prosperous conditions for life and maintaining and improving the health of citizens.” Article 18. Requirements concerning the domestic drinking water supply and water consumption areas “The Government and local self-government authorities shall provide the residents of cities and other residential areas with drinking water, whose quantity and quality must comply with the requirements of environmental health legislation and [with] national standards ... ... Special health protection zones shall be established for domestic water supply systems and their sources.” C. Law of Ukraine “On Burials and Burial Service” of 10 July 2003 68. According to the relevant provisions of that law the State standards relating to planning and construction of burial vicinities shall include the State construction and environmental standards (Article 5 of the Law). Under Article 8 of the Law the local self-government bodies shall be responsible for allocation of land, construction, operation and administration of the cemeteries. Burial, pursuant to Article 12 of the Law, may be effectuated on the basis of a request lodged with the head of the village council or a relevant burial service. According to Article 23 of the Law, the executive bodies of village, town and city councils shall be responsible for planning and organisation of the territories of the burial vicinities, according to the general construction plans of the relevant residential areas and taking into account town planning, environmental and sanitary and hygiene requirements. D. Law of Ukraine “On Drinking Water and the Drinking Water Supply” of 10 January 2002 69. The Drinking Water and Water Supply Act of 10 January 2002 (see relevant extracts from the Act below) establishes framework regulations for sanitary and hygiene standards of drinking water and water supply. In particular, Sections 27 – 30 of that Act establish obligatory standards for drinking water and its supply, obligatory for compliance by the State authorities. These standards, according to Section 28 of the Act shall be established by the Cabinet of Ministers and shall be monitored by the Chief Sanitary Doctor of Ukraine, administering the State Sanitary and Epidemic Service of Ukraine. The relevant extracts from the Law provide as follows: Article 13. Powers of local self-government bodies concerning drinking water and the drinking water supply “Local self-government bodies shall be authorised: to approve urban development projects and other documents relating to town planning, taking into account the requirements of [this Act]; ... ” Article 22. Rights and duties of consumers of drinking water “Consumers of drinking water shall be entitled: to be provided with drinking water of a quality that complies with national standards ... ” Article 36. Limitations on economic and other activities within health protection zones “ ... It is prohibited to place, construct, operate or reconstruct enterprises, installations and other objects for which full compliance with the requirements of the health protection zones [applicable to] projects, building and reconstruction and other projects cannot be guaranteed. ... Within the second belt of the health protection zone: it is prohibited to place a cemetery ... or other object that [may] create a threat of microbial contamination of water ... ” E. The National Environmental Health Regulations establishing “Environmental Health Requirements Concerning the Construction and Maintenance of Cemeteries in Residential Areas of Ukraine” of 1 July 1999 70. The relevant extracts from the Law provide as follows: 1. General Provisions “ ... 1.2. The National Environmental Health Regulations are statutory and binding on public officials and citizens. ... ” 3. Environmental Health Rules as to the Construction of Cemeteries “3.2. The location of a cemetery and its size shall be envisaged by the general construction plan of a residential area; the allocation of a plot of land for a cemetery, new cemetery construction plans, and the expansion and reconstruction of operating cemeteries are subject to approval by the local offices of the State Environmental Health Inspectorate. ... 3.5. ... [A] health protection zone between a cemetery for traditional burials or a crematorium and residential or public buildings, recreational areas and allotments shall not be less than 300 metres wide. ... [The following] cannot be located within a health protection zone: - residential houses with a household plot, dormitories, hotels, guest houses.” F. The Relevant Domestic Standards Relating to Drinking Water, Construction of Cemeteries and Water Protection Zones 71. According to the Resolution of the Cabinet of Ministers No. 2024 of 18 December 1998 “On the Legal Regime of Sanitary Protection Zones for Water Objects”, it is prohibited to place cemeteries and other objects which create a danger of microbic water pollution within the second belt of water protection zone. 72. According to the Appendix No. 1 to the State Sanitary Norms and Rules on Hygiene of Drinking Water for Human Consumption, approved by the Ministry of Health ( ДСанПіН 2.2.4.-171-10 ) on 12 May 2010, drinking water should not contain any traces of E. coli to be considered safe for human consumption. These regulations replaced the State Sanitary Rules and Norms “ On Placement and maintenance of wells and underground captation of water sources used for decentralised household drinking water supply”, as approved by the Order No. 384 of the Ministry of Health of Ukraine on 23 December 1996. The 1996 State Sanitary Rules and Norms established that the index of E. coli bacteria per 1 cubic dm ( вміст бактерій групи кишкової палички в 1 куб. дм або “ Індекс ВГКП ” ) should not exceed 10. According to that standard a coliphage content, i.e. a bacteriophage that infects E. coli, should equal to “zero”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicant complained of a violation of Article 8 of the Convention. In particular, he submitted that the construction of a cemetery near his house had led to the contamination of his supply of drinking water and water used for private gardening purposes, preventing him from making normal use of his home and its amenities, including the soil of his own plot of land, and negatively affecting his and his family ’ s physical and mental health. The text of Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home .... 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.” A. Admissibility 74. The Government raised no objection as to the admissibility of this complaint. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Applicability of Article 8 1. The parties ’ submissions 75. The Government submitted that there was no evidence of any adverse effects on the applicant ’ s health which had resulted from the construction and use of the cemetery in issue. Nevertheless, they agreed that the applicant could have sustained some suffering as a result of the construction of the cemetery in the land plot adjacent to his house. 76. The applicant maintained his complaints, stating that the continued use of the cemetery had rendered his home virtually uninhabitable and his land unsuitable for use. He submitted that he could not use his plot of land for gardening nor the well on his land for drinking water for fear of being poisoned. The applicant further submitted that he and his family had been disturbed by the burial ceremonies carried out near their house. 2. The Court ’ s assessment 77. As the Court has noted in a number of its judgments, Article 8 has been relied on in various cases in which environmental concerns are raised (see, among many other authorities, Fadeyeva v. Russia, no. 55723/00, § 68, ECHR 2005 ‑ IV ). However, in order to raise an issue under Article 8 the interference about which the applicant complains must directly affect his home, family or private life and must attain a certain minimum level if the complaints are to fall within the scope of Article 8 (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; and Fadeyeva, cited above, § 69-70). Therefore, the first point for decision is whether the environmental pollution of which the applicant complains can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home and the quality of his private and family life (see Ivan Atanasov v. Bulgaria, no. 12853/03, § 66, 2 December 2010 ). In this respect, the Court recalls that water pollution was one of the factors which was found to affect the applicants ’ health and hence their ability to enjoy their home, private and family life in the case of Dubetska and Others v. Ukraine (no. 30499/03, §§ 110 and 113, 10 February 2011). 78. The assessment of the minimum level is relative and depends on all the circumstances of the case, such as, the intensity and duration of the nuisance and its physical or mental effects. The general context of the environment should also be taken into account. The Court recently recalled that there could be no arguable claim under Article 8 if the detriment complained of was negligible when compared to the environmental hazards inherent in life in every modern city (see Hardy and Maile v. the United Kingdom, no. 31965/07, § 188, 14 February 2012 ). 79. As regards health impairment, it is hard to distinguish the effect of environmental hazards from the effects of other relevant factors, such as, age, profession or personal lifestyle. Also, as regards the general context of the environment, there is no doubt that severe water and soil pollution may negatively affect public health in general and worsen the quality of an individual ’ s life, but it may be impossible to quantify its actual effects in each individual case, “ quality of life” itself being a subjective characteristic which does not lend itself to a precise definition (see, mutatis mutandis, Ledyayeva and Others v. Russia, nos. 53157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006). 80. Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case. As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution and environmental studies commissioned by the authorities. Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant ’ s particular situation, such as an undertaking to revoke a polluter ’ s operating licence or to resettle a resident away from a polluted area. However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the evidence in its entirety. Further sources of evidence for consideration in addition to the applicant ’ s personal accounts of events, will include, for instance, his medical certificates as well as relevant reports, statements or studies made by private entities (see Dubetska and Others v. Ukraine, § 107, cited above, with further references ). 81. The Court recalls that Article 8 has been found to apply where the dangerous effects of an activity to which the individuals concerned were likely to be exposed established a sufficiently close link with private and family life for the purposes of Article 8 of the Convention (see Hardy and Maile v. the United Kingdom, § 189, cited above ). In that case, the Court recognised that the potential risks to the environment caused by the construction and operation of two liquefied natural gas (“LNG”) terminals established a sufficiently close link with the applicant ’ s private live and home for the purposes of Article 8 and thereby triggered the application of that provision ( see Hardy and Maile v. the United Kingdom, § 192, cited above). 82. As to the present case, the Court accepts that the applicant and his family may have been affected by the water pollution at issue. However, the Court must establish, in the absence of direct evidence of actual damage to the applicant ’ s health, whether the potential risks to the environment caused by the cemetery ’ s location established a close link with the applicant ’ s private life and home sufficient to affect his “quality of life” and to trigger the application of the requirements of Article 8 of the Convention (see paragraphs 78 – 8 1 above). 83. The Court notes that the domestic environmental health and sanitary regulations clearly prohibited placing the cemetery in close proximity to residential buildings and water sources (see paragraphs 6 7 to 72 above). It appears that the nearest boundary of the cemetery is situated 38 metres away from the applicant ’ s house (see paragraph 3 3 above). This cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is just over one tenth of the minimum distance permissible by those rules. Furthermore, the cemetery is a continuous source of possible health hazards and the potential damage caused by such is not easily reversible or preventable. Such environmental dangers have been acknowledged by the authorities on numerous occasions, including, by prohibiting the use of the illegal cemetery for burials and by the offer to resettle the applicant (see paragraphs 20 – 25 and 49 above). It further notes that the domestic authorities established that the construction of a cemetery at the said location placed the applicant at risk of contamination of the soil and of the drinking and irrigation water sources because of emanations from decomposing bodies like ptomaine (see paragraph 10 above). The Court has particular regard to the fact that there was no centralised water supply in the Tatariv village and villagers used their own wells (see paragraph 9 above). It also appears that the high level of E. coli found in the drinking water of the applicant ’ s well was far in excess of permitted levels and may have emanated from the cemetery (see paragraphs 1 2, 1 8 and 3 0 above), although the technical reports came to no definitive or unanimous conclusion as to the true source of E. coli contamination (see paragraph 31 above). In any event, the high level of E. coli, regardless of its origin, coupled with clear and blatant violation of environmental health safety regulations confirmed the existence of environmental risks, in particular, of serious water pollution, to which the applicant was exposed. 84. Under such circumstances, the Court concludes that the construction and use of the cemetery so close to the applicant ’ s house with the consequent impact on the environment and the applicant ’ s “quality of life ” reached the minimum level required by Article 8 and constituted an interference with the applicant ’ s right to respect for his home and private and family life. It also considers that the interference, being potentially harmful, attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention. C. Compliance with Article 8 1. Submissions by the parties 85. The Government maintained that the cemetery had been built in the interests of the villagers of Tatariv, as there had been absolutely no other place in the mountainous region near the village that could be used for a cemetery. They further stated that while it was true that the cemetery had been built in breach of environmental health laws and regulations as it had lacked the health protection zone required by law, the authorities had done all they could to prohibit burials and to provide the applicant with an opportunity to be re- housed, even though such an obligation to resettle had not existed in law. According to them, he had continuously rejected such proposals. In this respect they supplied letters of 10, 15 and 16 December 2009 from Tarariv Council and the Ivano-Frankivsk Regional State Administration, in which the municipal authorities stated that the applicant was not interested in resettlement (see paragraph 3 4 above). The Government accepted that the fact that the cemetery was placed on the VL plot engaged State ’ s positive obligations under Article 8 of the Convention. 86. The applicant maintained his complaints and submitted that the decision to construct the cemetery in the vicinity of his house had been taken in breach of domestic regulations and that the Ukrainian authorities ’ measures to remedy the situation had been insufficient and inadequate. In particular, he stated that the authorities had done nothing to close the illegal cemetery, had failed to discontinue burials or to redress the situation by providing him with an alternative. The applicant submitted that he did not have anywhere to move to and he did not have enough money to build a new house. He mentioned that, despite his requests, no detailed and specific resettlement proposal had ever been made by the authorities. 2. The Court ’ s assessment 87. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities ’ adopting measures designed to secure respect for private life and home (see, with further references, Moreno Gómez v. Spain, no. 4143/02, § 55, ECHR 2004 ‑ X ). 88. 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. The Court notes that the allegations of environmental harm in the instant case do not, as such, relate to the State ’ s involvement in industrial pollution ( see, in the context of serious industrial pollution, Dubetska and Others v. Ukraine, § 73, cited above ). However, they concern allegations of health hazards arising from the local authority ’ s decision to locate a cemetery just 38 meters from the applicant ’ s home in breach of domestic regulations plus the State ’ s failure to act in securing compliance with the domestic environmental standards. The allegations also concern the State ’ s failure to regulate the activities of the municipality in line with such standards. The Court ’ s task in such a situation is to assess whether the State took all reasonable measures to secure the protection of the applicant ’ s rights under Article 8 of the Convention. In making such an assessment factors, including compliance with the domestic environmental regulations and judicial decisions, must be analysed in the context of a given case (see, mutatis mutandis, Dubetska and Others v. Ukraine, cited above, § 141 ). In particular, where domestic environmental regulations exist, a breach of Article 8 may be established where there is a failure to comply with such regulations (see Moreno Gómez v. Spain, cited above, §§ 56 and 61). 89. Moreover, the principles applicable to an assessment of the State ’ s responsibility under Article 8 of the Convention in environmental cases are broadly similar, regardless of whether the case is to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under Article 8 § 1 of the Convention or in terms of an “interference by a public authority” to be justified in accordance with Article 8 § 2. Furthermore, the procedural safeguards available to the applicant under Article 8 may be rendered inoperative and the State may be found liable under the Convention where a judicial decision, prescribing certain conduct to the authorities on environmental issues, is ignored by the authorities or remains unenforced for an important period of time (see, mutatis mutandis, Taşkın and Others v. Turkey, no. 46117/99, §§ 124-25, ECHR 2004 ‑ X). 90. Given that the applicant complains about direct Government responsibility for the placement of the cemetery in close proximity to his home and the pollution flowing therefrom, the Court will consider the case as one of direct interference with the applicant ’ s rights under Article 8 (see paragraph 84 above). 91. As to the assessment of compliance with the requirement of lawfulness under Article 8 of the Convention, combined with the requirements of compliance with the domestic regulations, the Court notes the following: ( i ) Tatariv Council ’ s decision to situate the cemetery on the VL plot was taken in breach of the National Environmental Health Regulations and in particular the 300 metres “health protection zone” requirement (see paragraph 71 and 72 above ). There was no lawfully approved construction plan, in contravention of the Laws of Ukraine “On Burials and Burial Service” (see paragraph 6 8 above) and “On Drinking Water and the Drinking Water Supply ”. In particular, the latter Act in its Sections 27 – 30 established obligatory sanitary and hygiene standards of drinking water and water supply, envisaging no E. coli content in drinking water (see paragraph 72 above); (ii) The unlawfulness of the placement of the cemetery and the non-compliance with health and water protection zones were signalled on numerous occasions by the environmental health authorities and were acknowledged in the decisions of the domestic courts on at least six occasions (see paragraphs 1 2 - 1 4, 1 8, 3 5, 3 7, 4 2, 4 6 and 49 - 5 1 above ); ( iii) The domestic authorities, responsible for the administration and maintenance of the cemetery under the law, failed to respect and to give full effect to the final and binding judgment of 26 December 2003 given by the Verkhovyna Court, confirmed by the appeal court and the Supreme Court, by which Tatariv Council was obliged to close the cemetery (see paragraph 49 above). This judgment remains unenforced to this day (see paragraph 6 1 above) and members of Tatariv Council, on several occasions, have refused to adopt a decision in compliance with that judgment; (iv). The domestic authorities continued to disrespect the domestic environmental regulations as well as the final and binding judicial decisions confirming that they acted illegally and the decision of 26 December 2003 confirming that the cemetery should have been closed. 92. The Court notes that the Government have not disputed that the cemetery was built and used in breach of the domestic regulations (see paragraph 8 5 above). It further appreciates the difficulties and possible costs in tackling environmental concerns associated with water pollution in mountainous regions. At the same time, it notes that the siting and use of the cemetery were illegal in a number of ways: environmental regulations were breached; the conclusions of the environmental authorities were disregarded; final and binding judicial decisions were never enforced and the health and environment dangers inherent in water pollution were not acted upon (see paragraph 91 above ). The Court finds that the interference with the applicant ’ s right to respect for his home and private and family life was not “ in accordance with the law” within the meaning of Article 8 of the Convention. There has consequently been a violation of that provision in the present case. The Court considers, in view of its findings of illegality of the authorities ’ actions, that it is unnecessary to rule on the remaining aspects of the alleged breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 93. The applicant complained that the failure of the domestic authorities and private individuals to comply with the final judgment prohibiting the use of the VL plot situated near his house for burial purposes had amounted to a breach of Article 6 § 1 of the Convention. 94. The Government contested that argument. 95. The Court finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. Having regard to the finding relating to Article 8 (see paragraph 9 2 above), the Court considers that it is not necessary to examine the issue separately under Article 6 § 1 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 84, Series A no. 121, and Mihailova v. Bulgaria, no. 35978/02, § 107, 12 January 2006). III. OTHER COMPLAINTS 96. The applicant complained under Article 6 § 1 that the proceedings concerning his dispute with Tatariv Council had been unfair and excessively lengthy. 97. In the light of the materials in its possession, the Court finds that the applicant ’ s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 98. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. The applicant claimed UAH 1,000,000 (EUR 163,125) in respect of non-pecuniary damage. 101. The Government contested this claim. 102. The Court notes that the applicant must have sustained non-pecuniary damage as the result of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6, 0 00 in respect of non-pecuniary damage. B. Costs and expenses 103. The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 of the Convention, finding that the interference with the applicant’s right to respect for his home and private and family life had not been “in accordance with the law” within the meaning of that provision. It noted in particular that the Ukrainian Government had not disputed that the cemetery had been built and used in breach of the domestic regulations. The conclusions of the environmental authorities had also been disregarded. Final and binding judicial decisions ordering in particular to close the cemetery had never been enforced and the health and environment dangers inherent in water pollution had not been acted upon.