Information Note on the Court’s case-law 238
March 2020
Hudorovič and Others v. Slovenia - 24816/14 and 25140/14
Judgment 10.3.2020 [Section II]
Article 8
Positive obligations
Article 8-1
Respect for private life
Allegedly insufficient measures to ensure access to safe drinking water and sanitation for Roma communities: no violation
Facts – The applicants belong to Roma communities residing in illegal and unserviced settlements. They complain that they were not provided with access to basic public utilities, notably, to safe drinking water and sanitation.
Law – Article 8
(a) Applicability – Access to safe drinking water was not, as such, a right protected by Article 8. However, the Court had to be mindful of the fact that without water the human person could not survive. A persistent and long-standing lack of access to safe drinking water could therefore, by its very nature, have adverse consequences for health and human dignity effectively eroding the core of private life and the enjoyment of a home within the meaning of Article 8. Therefore, when those stringent conditions were fulfilled, the Court was unable to exclude that a convincing allegation might trigger the State’s positive obligations under that provision. Existence of any such positive obligation and its eventual content were necessarily determined by the specific circumstances of the persons affected, but also by the legal framework as well as by the economic and social situation of the State in question. In the present case, the Court decided to join the issue of applicability to the merits.
(b) Merits – The key consideration in the Court’s assessment concerned the scope of the State’s positive obligation to provide access to utilities, especially to a socially disadvantaged group. In that connection, a considerable part of the Roma population in Slovenia, who lived in illegally built settlements that were often removed from the densely populated areas with a public water-distribution system, faced greater obstacles than the majority in accessing basic utilities. Accordingly, those factors and the possible need for concrete measures tailored to the applicants’ specific situation formed part of the Court’s assessment of the circumstances of the present case.
That said, the level of realisation of access to water and sanitation would largely depend on a complex and country-specific assessment of various needs and priorities for which funds should be provided. In the Court’s view, the States had to be accorded wide discretion in their assessment of those priorities and the legislative choices they made. That discretion had to apply also to the concrete steps aimed at ensuring everyone had adequate access to water.
In Slovenia spatial development and planning and public utility infrastructure were subject to a comprehensive regulatory framework. The Court considered it reasonable that the State, or its local authorities, assumed the responsibility for the provision of that service, while it was left to the owners to install individual house connections at their own expense. Likewise, given the inherently progressive nature of the development of a public water supply system, which was dependent on the financial resources of an individual State, it appeared reasonable that alternative solutions such as installation of individual water tanks or systems for harvesting rainwater were proposed in those areas that were not yet covered by a public water supply system.
The Court took note of all the affirmative action measures already taken by the domestic authorities with a view to improving the living conditions of the Roma community. In particular, they had adopted and financially supported a comprehensive strategy, and specific programmes and projects focused on the legalisation of the illegally constructed Roma settlements and on the provision of basic public utilities to their inhabitants. Furthermore, the municipal authorities had, in good faith, undertaken some concrete actions to provide the applicants with the opportunity to access safe drinking water. In one settlement, one or several water tanks co-financed by the municipality had been installed into which supplies of drinking water had been placed. In another settlement, the municipality had installed and financed a group water-distribution connection from which individual connections could be installed for supplying water to individual households.
As regards the applicants’ personal situations, irrespective of whether public housing was available, the Court could only conclude that they had remained in their respective settlements by choice. Secondly, they were not living in a state of extreme poverty. Through their system of social benefits, the authorities had ensured that they were guaranteed a certain basic level of subsistence which was, or could have been, used, inter alia, for improving their living conditions. The applicants had not asserted that their own investment in the solution provided by the municipality constituted a disproportionate financial burden. Nor had they requested any financial or other assistance for the purpose of acquiring a more regular water supply. In the Court’s opinion, the applicants were themselves responsible for taking steps to ensure their individual connection to a public water point.
The applicants had failed to explicitly address the issue of what measures should have been adopted by the State to constitute compliance with its obligation to provide access to basic public utilities, or how such measures would impact their personal situation. Nor had they provided any information which would allow the Court to assess whether the municipal authorities had de-prioritised their interests in the regulation of their settlements and access to safe drinking water in favour of other, less urgent measures and projects aimed at improving the infrastructure of the majority population. Notably, a non-negligible proportion of the Slovenian population living in remote areas did not have access to the public water supply system and had to rely on alternative means of private water supply, such as water tanks.
While not being an ideal or permanent solution, the positive steps taken by the authorities demonstrated that they had acknowledged the disadvantages suffered by the applicants as members of a vulnerable community and shown a degree of active engagement with their specific needs. As regards the State’s own legal and financial obligations in that regard, the Court took the view that, while it fell upon the State to address the inequalities in the provision of access to safe drinking water which disadvantaged Roma settlements, this could not be interpreted as including an obligation to bear the entire burden of providing running water to the applicants’ homes. In that respect, the applicants had not been prevented from making use of their social benefits to employ alternative solutions such as installing private water tanks or systems for collecting rainwater.
Lastly, the measures taken by the municipalities had not included any steps to ensure sanitation for the applicants; however, a considerable part of the population in Slovenia did not as yet benefit from a public sewerage system. Considering the limited access to sanitation in the two relevant municipalities, it would be difficult, in the absence of proof to the contrary, to conclude that the applicants’ respective situations had been accorded less importance than those of the majority population. Furthermore, taking account of the inherently progressive nature of the development of public infrastructure and the State’s wide discretion in the prioritisation of resources for urban planning, only particularly convincing reasons such as a serious risk to health could justify imposing a burden on the State to take any steps with regard to the applicants’ respective situations. However, while the applicants had complained of frequent diseases, they had neither made any concrete submissions to that effect nor presented evidence in support of their claims. In that connection, they had not argued that they had, in any way, financially or otherwise, been prevented from installing their own septic tanks or employing other solutions alternative to the public sewerage system.
Reiterating, firstly, that the applicants had received social benefits which could have been used towards improving their living conditions, secondly, that the States were accorded a wide margin of appreciation in housing matters, and thirdly, that the applicants had not convincingly demonstrated that the State’s alleged failure to provide them with access to safe drinking water had resulted in adverse consequences for health and human dignity effectively eroding their core rights under Article 8, the Court found that the measures adopted by the State in order to ensure the applicants access to safe drinking water and sanitation had taken account of the applicants’ vulnerable position and satisfied the requirements of Article 8. Even assuming that Article 8 was applicable in the instant case, there had been no violation of that provision.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 14 of the Convention in conjunction with Article 8 and no violation of Article 3, taken alone and in conjunction with Article 14, assuming those provisions were applicable.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy