Information Note on the Court’s case-law No. 177
August-September 2014
Dzemyuk v. Ukraine - 42488/02
Judgment 4.9.2014 [Section V]
Article 8
Article 8-1
Respect for family life
Respect for home
Respect for private life
Unlawful construction and use of a cemetery near the applicant’s home and water supply: violation
Facts – The applicant lived in a village with no centralised water supply and used water from wells fed by groundwater for his household needs. In 2000 the local authority decided to construct a cemetery on a neighbouring plot of land, some 40 metres from his house. The applicant instituted proceedings seeking annulment of that decision and closure of the cemetery. Ultimately, in 2003 the court hearing the application upheld his claim after finding that the cemetery had been built too close to a residential area and a water source, in breach of environmental health laws and regulations. The court ordered closure of the cemetery, but its order was not enforced. Meanwhile, a bacteriological analysis of water from the applicant’s well in 2008 showed that the index of E. coli bacteria far exceeded the level permitted by law.
Law – Article 8
(a) Applicability – The Court reiterated that in order to raise an issue under Article 8 the alleged interference must directly affect the applicant’s home, family or private life and attain a certain minimum level. The high level of bacteria found in the water from the applicant’s well, coupled with a blatant violation of national environmental health and safety regulations confirmed the existence of environmental risks, namely serious water pollution, that affected the applicant’s “quality of life” and attained a sufficient degree of seriousness to trigger the application of Article 8.
(b) Compliance – The unlawfulness of the cemetery’s location had been signalled on numerous occasions by the environmental-health authorities and acknowledged by decisions of the domestic courts. Moreover, the competent local authorities had failed to abide by a final and binding domestic court order to close the cemetery. Accordingly, 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”.
Conclusion: violation (unanimously).
Article 41: EUR 6,000 in respect of non-pecuniary damage.
(See also Dubetska and Others v. Ukraine, 30499/03, 10 February 2011; Fadeyeva v. Russia, 55723/00, 9 June 2005, Information Note 76; and Hardy and Maile v. the United Kingdom, 31965/07, 14 February 2012)
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This summary by the Registry does not bind the Court.
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