State's responsibility for an internationally wrongful act

1. Introduction and relevant procedural and factual history

The case concerns the  application to the European Court of Human Rights regarding pollution from a cemetery located very close to the applicant’s his house and the adjacent plot. The cemetery has been gradually expanding in the direction of the applicant's house since 1991. This led the local residents to complain to the local authorities, who ordered the cemetery to be closed in 1995. The authorities have determined that the cemetery's maximum capacity has been reached and that any further burials would be in violation of health regulations.

In 2010, the applicant and his neighbors complained to the consumer protection authorities that the burials had resumed. Authorities subsequently issued at least three warnings to the city's funeral home.

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

2. Application to the ECtHR

In particular, the applicant alleged that the continued use of the cemetery near his home had led to the contamination of the soil on his plot and the pollution of his only source of drinking water, thereby preventing him from making normal use of his home and its amenities and adversely affecting the his and his family's physical and mental health, in violation of Article 8 of the Convention.

The court noted in particular that the cemetery had gradually expanded onto the applicant's property and that there were forensic reports revealing that the soil and water on his land had been dangerously contaminated. Hence, the court found that Article 8 is applicable in the case even though there is no evidence of actual damage to the applicant's health. At the same time, the Court concluded that the cemetery operates in clear violation of domestic law, despite warnings from consumer protection authorities and a court order to create a 500-meter health protection zone around it.

3. Summary of the ECtHR Decision

According to all of the foregoing, the Court considers that there was an interference with the applicant's right to respect for his home and private and family life and that this interference reached a sufficient degree of seriousness to trigger the application of Article 8 of the Convention. As to the question of whether the interference was lawful, the Court noted that the city's funeral service did not comply with the reprimands issued to it for not creating a health protection zone.

Furthermore, it was noted that the court decision ordering the funeral service and the city council to create a health protection zone has not yet been implemented. The government did not provide an explanation for this delay. Nor did they provide information on whether alternative measures were considered, such as relocating the applicant or carrying out decontamination of his land. The court concluded that the cemetery had been used in clear violation of domestic health regulations, depriving the applicant of effective protection of his rights under Article 8.

In particular, the ECtHR noted that "Although the task of demarcating the proposed sanitary protection zone and proving its size around the cemetery was to be completed by the end of 2014, by July 5, 2017 no progress had been made in that regard, and the proposal had entered the early stages until the end of 2019.... "in the present case, for no apparent or certain reason, the authorities made no effort to enforce the above judgment, and it took almost five years after the delivery of that judgment just to begin the process of development of the said project. In the meantime, burials continued to be carried out, contrary to domestic health regulations, and the applicant had to live on his contaminated plot. The Court also notes that the Government did not provide information on whether it might have been feasible to take other measures while the enforcement procedure was in progress, such as temporarily relocating the applicant or carrying out decontamination works on his property by way of neutralizing the effects of the absence of a sanitary protection zone. The Court reiterates that it is aware of the difficulties and delays commonly encountered by authorities in finding and allocating the relevant technical and logistical resources and securing the necessary funding for public works projects such as the one in the instant case...." However, he considered that the use of the Lesnoje cemetery in apparent violation of the relevant domestic health regulations - together with the unexplained delay in enforcement proceedings, which continued the illegality of the authorities' actions - deprived the applicant of effective protection of his rights from Article 8."

"It follows that the contested interference was not "in accordance with the law"; This finding alone is sufficient for the Court to find a violation of Article 8 of the Convention, without examining whether it also pursued a "legitimate aim" or was "necessary in a democratic society" (see Fadejeva, cited above, § 95, and M.M. v. the Netherlands, No. 39339/98, §§ 45-46, 8 April 2003).

4. Discussion

This case placed in the context of our legal order is interesting for several reasons, primarily because it contains several aspects:

• First, it can be seen as a pure administrative case, where the city cemeteries are under the jurisdiction of the administrative authorities, who issue permits and revoke them, and accordingly perform supervision in the field of administrative rules and regulations. The domestic courts in Russia did provide certain legal protection in a way that ordered the creation of an appropriate protective zone. Accordingly, the case shows the possibility of the courts to influence the executive power in full jurisdiction, but it also shows the absence of an effective way of carrying out these orders. All this rests within the realms of the domestic law.

• Second, this is also a subject in the field of civil law, because it affects institutions of civil law, such as disturbance of the right to property, compensation for damage, etc. Also, like the first aspect, it is primarily a question of the domestic law and the possibility or impossibility to promptly address the problems from this aspect and to provide effective legal protection, that is to remove the source of harassment or danger.
• Third, this case, according to the interpretation of the ECtHR, encroaches on personal rights, such as the right to privacy and family life, and this is placed in the context of Convention law. This is an interesting aspect that deserves a deeper analysis.
• Fourt, such cases, where an entity performing public activities appears as a source of danger to life, body or property, are always viewed through a stricter criterion towards the source of the danger, disturbance or pollution, especially if they come from the area of public law .
• Fifth, although this is an application by one person in protection of his Convention rights, it actually represents an actio popularis in some way, because through the individually highlighted human rights claim, a broader legal and public interest is actually protected.
• Sixth, in the current state of development of the law, ecology and the protection of the human environment and nature are rights raised to the highest level, and more and more legal protection is given to individuals, as opposed to traditional ways of protection such as criminal or administrative liability.

5. Impact

The very aspects listed above reflect in some way the contours of the impact that this Judgment has. It is already quite clear that the state's responsibility for an internationally wrongful act is not only based on its direct action, but also due to its omission. The time when the legal systems of the states are isolated islands in the sea, which cannot be subject to the assessment of the international legal order, has long passed. With the mere ratification of the Convention, all the provisions and more importantly legal principles (with due respect to the principle of Margin of tolerance), become part of domestic legal orders.
Furthermore, the ECtHR's interpretation that there is a violation of the right to private and family life in this specific case represents a really (justified) broad interpretation of this provision of the Convention.
What is particularly interesting is that in the domestic legal order of Russia, the courts there ordered the city administration and the municipal funeral service to prepare plans by December 31, 2014, which would illustrate and support the proposed demarcation of a sanitary protection zone around the cemetery, which was actually not done by the authorities or the authorities. This effectively means that the Court, deciding in full jurisdiction, can order legislative or administrative intervention. But although on the one hand the domestic courts ordered that appropriate plans be prepared, on the other hand they refused to prohibit the execution of funerals. What constituted a violation of the Appellant's rights was actually the impossibility to effectively implement the order for the preparation of appropriate plans, but also the state's interference in the private and family life of the Appellant, through the effective failure to fulfill their obligations. The latter is particularly important because it (justifiably) extends the obligation of states to the international legal order, principles and rights and to failure to act, not just active action as a wrongful act.