CASE OF KOŽUL AND OTHERS v. BOSNIA AND HERZEGOVINA

FOURTH SECTION

CASE OF KOŽUL AND OTHERS v. BOSNIA AND HERZEGOVINA

(Application no. 38695/13)

JUDGMENT
 

STRASBOURG

22 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of Kožul and Others v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Iulia Antoanella Motoc, President,
Faris Vehabović,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 1 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 38695/13) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Ivan Kožul, Mr Dinko Kožul, Mr Dražen Kožul, Mr Petar Kožul and Ms Ruža Kožul, nationals of Bosnia and Herzegovina (“the applicants”), on 20 April 2013.

2.  The applicants represented themselves. The Government of Bosnia and Herzegovina (“the Government”) were represented by their then Deputy Agent, Ms S. Malešić.

3.  On 10 July 2017 the Government were given notice of the complaints concerning Articles 6, 8 and 13 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1960, 1967, 1962, 1938 and 1939, respectively, and live in the vicinity of Široki Brijeg.

5.  On 4 February 2002 the local authorities ordered a private company, Paškić d.o.o. Široki Brijeg (hereinafter “Paškić”), to demolish its industrial buildings which had been erected illegally next to the applicants’ homes. That decision became enforceable on 18 April 2002.

6.  On 13 October 2005 the Constitutional Court found a violation of the applicants’ right to a fair trial and ordered the local authorities concerned to enforce the decision of 4 February 2002 without further delay. It held that it was not necessary to examine the applicants’ complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

7.  On 27 May 2006 the Constitutional Court found that its decision of 13 October 2005 had not been enforced.

8.  The local authorities have so far issued over thirty calls for tenders in order to find a company able and willing to demolish the buildings in issue, but to no avail. Moreover, they have imposed more than thirty fines on Paškić, in amounts ranging between 50 and 300 convertible marks (BAM)[1], because of its failure to comply with the demolition order.

9.  On two occasions the competent public prosecutor carried out an investigation into the case (the non-enforcement of a decision of the Constitutional Court may constitute a criminal offence), but decided not to prosecute, first on 15 May 2007 and then again on 30 January 2017, because of lack evidence that the officials concerned had acted with criminal intent.

10.  At the date of the latest information available to the Court (18 March 2019), the Constitutional Court’s decision remained unenforced.

THE LAWALLEGED VIOLATION OF ARTICLEs 6 § 1 and 13 OF THE CONVENTION

11.  The applicants complained that the non-enforcement of the Constitutional Court’s decision of 13 October 2005 had violated their rights under Articles 6 § 1 and 13 of the Convention, which, in so far as relevant, read as follows:

Article 6 § 1

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”AdmissibilityThe Government’s objection that the application was lodged out of time

12.  The Government maintained that the lodging of the application on 20 April 2013, more than eight years after the adoption of the Constitutional Court’s decision indicated a very passive approach on the part of the applicants, which had resulted in the expiry of the six-month time-limit for the purposes of Article 35 § 1 of the Convention.

13.  The applicants made no comment.

14.  The Court reiterates that Article 35 § 1 of the Convention provides that the Court may only deal with a complaint which has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where the alleged violation constitutes a continuing situation against which no domestic remedy is available, such as the non-enforcement of decisions of the Constitutional Court, the six-month period starts to run from the end of the continuing situation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 159, ECHR 2009, and Sokolov and Others (dec.), nos. 30859/10 and 6 others, § 29, 14 January 2014). Also, in cases involving the execution of a final court decision, a continuing situation ends, in principle, on the date of the enforcement of the relevant decision or when an “objective impossibility” to enforce such decision is duly acknowledged (ibidem).

15.  Since efforts were still being made with a view to enforcing the Constitutional Court’s decision when the present applicants lodged the application (see paragraph 8 above), the application was not introduced out of time (contrast Sokolov and Others, decision cited above, §§ 30-36).

16.  The Government’s objection is therefore to be dismissed.Other grounds for inadmissibility

17.  The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It accordingly declares it admissible.MeritsThe parties’ submissions

18.  The Government submitted that the Constitutional Court’s decision had not been enforced due to the specificity and complexity of the case and that the local authorities had taken various steps in order to enforce it.

19.  The applicants contested the Government’s arguments.The Court’s assessment

20.  The general principles relating to the non-enforcement or delayed enforcement of final domestic judgments were set out in Hornsby v. Greece (19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). Notably, where administrative authorities refuse or fail to comply with a judicial decision, or even delay doing so, the guarantees under Article 6 enjoyed by a party to the judicial proceedings are rendered devoid of purpose (ibid., § 41). Some delay may be justified in particular circumstances but it may not, in any event, be such as to impair the essence of the right protected under Article 6 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999‑V, and Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III).

21.  The Court must examine whether the measures taken by the domestic authorities with a view to enforcing the decision in the applicants’ favour were adequate and sufficient for the respondent State to comply with its positive obligations under Article 6 § 1 of the Convention.

22.  Having regard to the actions taken, the Court considers that the case was of some complexity, but that this cannot, in itself, justify the time for which the judgment has remained unenforced.

23.  The Court further finds that no delays were attributable to the applicants.

24.  It is true that the local authorities have not been inactive. They have continued to look for a company able and willing to demolish the impugned buildings. They have also fined the debtor on many occasions (see paragraph 8 above). However, the State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without any undue delay (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005).

25.  Having examined all the material submitted to it, the Court considers that in the instant case the time in which the case remained unenforced was excessive.

26.  There has therefore been a breach of Article 6 § 1 of the Convention.

27.  After reaching such a conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see Bobić v. Bosnia and Herzegovina, no. 26529/10, § 32, 3 May 2012).ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28.  The applicants complained that the State had failed to protect their homes from noise and dust arising from the operation of Paškić. They relied on Article 8 of the Convention which, in so far as relevant, provides as follows:

Article 8

“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.”The parties’ submissions

29.  The Government submitted that the applicants had failed to prove that the activity of Paškić was causing them nuisance. None of the applicants’ neighbours had made such allegations. Furthermore, the Government provided the Court with an expert report of July 2010 showing that the air quality and the noise level in the impugned area were within the statutory limits.

30.  The applicants contested the Government’s arguments, submitting that the measurements had been conducted on days when Paškić had not been working.The Court’s assessment

31.  Article 8 protects the individual’s right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII).

32.  Thus in Powell and Rayner v. the United Kingdom (21 February 1990, § 40, Series A no. 172) the Court declared Article 8 applicable because “[i]n each case, albeit to greatly differing degrees, the quality of the applicant’s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In López Ostra (9 December 1994, § 51, Series A no. 303‑C), which concerned pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe 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”.

33.  Article 8 may apply in environmental cases, whether the pollution is directly caused by the State or whether State responsibility arises from failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or in terms of interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation (see Powell and Rayner, § 41, and López Ostra, § 51, both cited above).

34.  However, as demonstrated by the above-mentioned cases, in order to raise an issue under Article 8, the interference must directly affect the applicant’s home, family or private life, and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum 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. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city (see Fadeyeva v. Russia, no. 55723/00, §§ 68-69, ECHR 2005‑IV, and Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008, and the cases cited therein).

35.  Turning to the present case, the Court accepts that the applicants and their families might have been affected by the activities carried out by Paškić. However, the Court must also establish whether it has been shown that this nuisance reached the minimum level of severity set by its case-law.

36.  In this connection, the Court observes that according to the expert report submitted by the Government, the air quality and the noise level in the area in question were within the statutory limits (see paragraph 29 above). The applicants contested the results (see paragraph 30 above), but they have not provided any proof whatsoever that noise and air quality in their houses indeed exceeded the norms set either by domestic law or by applicable international environmental standards, or exceeded the environmental hazards inherent in life in every modern town.

37.  This being the case, it cannot be established that the State failed to take reasonable measures to secure the applicants’ right under Article 8 of the Convention (see, mutatis mutandis, Galev and Others v. Bulgaria (dec.), no. 18324/04, 29 September 2009; compare and contrast the Court’s findings in noise-pollution cases such as Moreno Gómez v. Spain, no. 4143/02, §§ 59-63, ECHR 2004‑X, Branduse v. Romania, no. 6586/03, §§ 68-76, 7 April 2009, and Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§ 89-102, 25 November 2010).

38.  The Court concludes that it has not been established that the pollution levels complained of were so serious as to reach the high threshold established in the Court’s case-law. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.”

40.  The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

41.  It must, however, be noted that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no. 40765/02, § 71, ECHR 2006, and Marčić and Others v. Serbia, no. 17556/05, § 64, 30 October 2007).

42.  Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure, within three months and by appropriate means, the enforcement of the Constitutional Court’s decision of 13 October 2005 (see, mutatis mutandis, Marčić and Others, cited above, § 65).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints under Articles 6 § 1 and 13 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there is no need to examine separately the complaint under Article 13 of the Convention;Holds that the respondent State shall, within three months, secure, by appropriate means, the enforcement of the Constitutional Court’s decision of 13 October 2005.

Done in English, and notified in writing on 22 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Iulia Antoanella Motoc
Deputy RegistrarPresident

[1].  The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 euro = 1.95583 convertible marks).

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