ECHR: Pollution from Vladivostok cemetery breached property owner’s rights

In today’s Chamber judgment in the case of Solyanik v. Russia (application no. 47987/15) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for home, private and family life) of the European Convention on Human Rights. The case concerned the applicant’s complaint about pollution from a cemetery located very close to his house and adjacent plot of land.

The Court noted in particular that the cemetery had gradually expanded towards the applicant’s property and that there were forensic reports finding that the soil and water on his land was dangerously contaminated. It therefore found that Article 8 was applicable in the case even though there was no evidence of actual damage to the applicant’s health.

It concluded that the cemetery was operating in blatant breach of domestic law, despite reprimands by the consumer-protection authorities and a court order to create a 500-metre health-protection zone around it.

Principal facts

The applicant, Vladimir Vladislavovich Solyanik, is a Russian national who was born in 1967 and lives in Vladivostok (Russia).

Mr Solyanik is the owner of a house – with an adjacent plot of land – which is located near the Lesnoye cemetery in Vladivostok.

The cemetery has been gradually expanding in the direction of the applicant’s house since 1991.

This led to local residents complaining to the local authorities, which ordered the closure of the cemetery in 1995. The authorities found that the cemetery’s maximum capacity had been reached and that any further burials would be in breach of health regulations.

In 2010 the applicant and his neighbours complained to the consumer protection authorities that burials had resumed. These authorities subsequently issued the city’s burial service with at least three reprimands.

Mr Solyanik brought the matter before the courts in 2013. The courts found that burials at the cemetery were being carried out in breach of health regulations and subsequently ordered the city council to create a health-protection zone around the cemetery by 31 December 2014. This order has not yet been enforced.

The applicant has submitted three expert reports dating from 2009, 2012 and 2013 confirming that the soil on his land and water in his well were contaminated to a “dangerous degree”. In particular, the report of 2012 found that the soil on the applicant’s land had excessive levels of chemicals, pathogenic bacteria and parasites, while the 2013 report indicated that his house was only 70 metres away from the cemetery, in breach of the relevant health regulations.

Complaints, procedure and composition of the Court

Relying on Article 8 (right to respect for private, family life and home), Mr Solyanik complained that the ongoing use of the cemetery near his home had led to contamination of the soil and a well, his only source of drinking water, on his plot of land. He also alleged emotional distress because of burials being carried out so near his house, submitting most recently that the cemetery was just 34 metres away.

The application was lodged with the European Court of Human Rights on 22 September 2015.

Judgment was given by a Chamber of seven judges, composed as follows:

Georges Ravarani (Luxembourg), President,

María Elósegui (Spain),
Darian Pavli (Albania),
Anja Seibert-Fohr (Germany),
Peeter Roosma (Estonia),
Andreas Zünd (Switzerland),
Mikhail Lobov (Russia),

and also Milan Blaško, Section Registrar.

Decision of the Court

Although there was no direct evidence of any actual damage to the applicant’s health, the Court noted that the cemetery had gradually moved closer to his property, in breach of the relevant domestic regulations, and that the forensic reports had found that the applicant’s land was contaminated. Indeed, the reports dating from 2012 and 2013 had been accepted by the domestic courts as evidence of the applicant having been subjected to nuisance.

The Court therefore considered that there had been an interference with the applicant’s right to respect for his home and private and family life and that that interference had attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention.

As to the question of whether the interference had been in accordance with law, the Court noted that the city’s burial service had disregarded the reprimands it had been issued with for failing to create a health-protection zone.

Furthermore, the court decision ordering the burial service and the city council to create a health-protection zone has still not been enforced. The Government has given no explanation for such delay. Nor have they provided any information as to whether alternative measures have been considered, such as relocating the applicant or carrying out decontamination work on his land.

The Court concluded that the cemetery was being used in blatant breach of domestic health regulations, depriving the applicant of effective protection of his rights under Article 8.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant € 7,500 in respect of non-pecuniary damage, € 6,000 for legal representation and € 1,300 in respect of expert’s fees and postal expenses.

Press release ECHR 155 (2022) 10.05.2022

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