CASE OF LEDYAYEVA, DOBROKHOTOVA, ZOLOTAREVA and ROMASHINA v. RUSSIA
(Applications nos. 53157/99, 53247/99, 53695/00 and 56850/00)
26 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ledyayeva and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 5 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
B. The applicants' housing conditions
17. At the relevant time the applicants lived in the council houses situated within the sanitary security zone, as delimited by municipal decree no. 30 of 1992. They acquired those flats from the local authorities or the plant itself and lived there under the “social tenancy agreement” (see the “Relevant domestic law” part below). Their respective housing conditions may be summarised as follows.
21. The third applicant lives in a flat at 12, Babushkina street as a tenant. She moved to that flat in 1985.
C. Pollution levels at the applicants' place of residence and their effects on the applicant's health and well-being
1. Summary of the findings in the Fadeyeva judgment
2. Information specific to the present cases
(a) Evidence produced by the Government1
(b) Evidence produced by the applicants
35. According to the letter of the Head of the Environment Protection Department of the Vologda Region, in 2003 atmospheric pollution in the town was rated as “high”. Namely, over-concentrations of formaldehyde, benzopyrene, dust and carbon disulphide were registered.
C. Domestic proceedings
1. Proceedings concerning the first applicant
40. On 30 March 1999 the first applicant requested the municipality to confirm that her house was located within the sanitary security zone. On 27 May 1999 the municipality replied that the boundary of the zone had not been officially delimited. On 9 July 1999, upon the applicant's request, the Cherepovets Town Court ordered the municipality to provide her with the information sought. That decision was upheld on 29 September 1999 by the Vologda Regional Court. The Regional Court found that, pursuant to Resolution no. 30 of 1992, the applicant's house was indeed located within the zone.
43. On 11 February 2002 the Presidium of the Vologda Regional Court quashed, by way of supervisory review, the judgment of 8 December 1999. The Presidium established that the applicant lived in the sanitary security zone of the plant, where the concentration of by-products of steel production regularly exceeded the health limits. The Presidium further criticized the judgment of 8 December 1999 in the following words:
“The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone were adequate in comparison to the degree of the threat that the plaintiff encounters. As a result, the court did not establish whether providing [Ms Ledyayeva] with new housing under the provisions of the housing legislation by placing her on the waiting list could be regarded as giving her a real chance to live in an environment that is favourable for her life and health”.
The Presidium further analysed the legislation and concluded that it was for the polluting enterprise to take all necessary measures and to “develop” the sanitary security zone around its premises. The Presidium remitted the case to the Cherepovets Town Court for a fresh examination.
44. In 2002 the municipality challenged before the town court Resolution no. 30 of 1992 fixing the boundary of the zone. The applicant requested that she participate in the proceedings as a third party but this motion was refused. On 13 June 2002 the Cherepovets Town Court declared Resolution no. 30 invalid as ultra vires, in the presence of the only interested party – the municipality.
2. Proceedings concerning the second, third and fourth applicants
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Everyone has the right to a favourable environment, to reliable information about its state, and to compensation for damage caused to his health or property by ecological offences”
B. Sanitary Security Zones
“Industrial zones are intended for placement of industrial objects, public utilities, warehouses... as well as for sanitary security zones thereof.
Development of sanitary security zones should be conducted at the expense of the owners of the industrial objects.
Placement of houses, kindergartens, schools, hospitals, [...]within the sanitary security zones of industrial objects [...] is prohibited”.
“In cases where State or public interests require that economic or other activities be conducted on environmentally unfavourable territories, the temporary residence of the population on these territories is permitted, subject to the application of a special town planning regime ...”
“the [plaintiff's] house is not only dilapidated [...], but is also situated within 30 metres of a railway, within the latter's sanitary security zone, which is contrary to the sanitary regulations (this zone is 100 metres wide, and no residential premises should be located within it)”
The Supreme Court remitted the case to the first-instance court, ordering it to define specific housing which should be provided to the individual concerned as a replacement for her previous dwelling.
C. Background to the Russian housing provisions
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, [and] 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 ... public safety or the economic well-being of the country, ... for the protection of health ..., or for the protection of the rights and freedoms of others.”
A. The Government's submissions
B. The applicants' submissions
83. The applicants submitted that the histories of how and why their families had moved to the houses located within the zone had no relevance for the purpose of the present proceedings.
C. The Court's assessment
1. Nature and extent of the alleged interference with the applicants' rights under Article 8 of the Convention
89. At the outset, the Court recalls that in assessing evidence it uses the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States' responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, 6 July 2005, with further references).
(a) Summary of the Court's findings in the Fadeyeva judgment
(b) The Court's conclusions in the present cases
100. In sum, after having examined all the evidence in the case-file, the Court does not see any reason to depart from its findings in the Fadeyeva judgment. The Court will refrain from making any conclusive findings as to whether or not the industrial pollution was the cause of the applicants' specific diseases. Nevertheless, the Court concludes that the actual detriment to the applicants' health and well-being reached a level sufficient to bring it within the scope of Article 8 of the Convention.
2. Justification under Article 8 § 2
(a) Summary of the Court's findings in the Fadeyeva judgment
(b) The Court's conclusions in the present four cases
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
114. As regards non-pecuniary damages, the Court is prepared to accept that the applicants' prolonged exposure to industrial pollution caused them much inconvenience, mental distress and even a degree of physical suffering. At the same time the Court recalls that the Convention entered into force in respect of Russia on 5 May 1998; therefore, the Court has no competence ratione temporis to make an award for the period prior to this date. In sum, taking into account various relevant factors, such as age, the applicant's state of health and the duration of the situation complained of, and making an assessment on an equitable basis in accordance with Article 41, the Court awards the applicants under the head of non-pecuniary damages the following amounts:
(i) EUR 7,000 to the first applicant,
(ii) EUR 8,000 to the second applicant,
(iii) EUR 8,000 to the third applicant,
(iv) EUR 1,500 to the fourth applicant,
plus any tax that may be chargeable on these amounts.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts in respect of non-pecuniary damage:
(i) EUR 7,000 (seven thousand euros) to the first applicant,
(ii) EUR 8,000 (eight thousand euros) to the second applicant,
(iii) EUR 8,000 (eight thousand euros) to the third applicant,
(iv) EUR 1,500 (one thousand five hundred euros) to the fourth applicant,
to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;
(b) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of costs and expenses incurred by Mr Vanzha, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on the above amounts;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 26 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr A. Kovler is annexed to this judgment.
CONCURRING OPINION OF JUDGE KOVLER
As in the case Fadeyeva v. Russia (55723/00, judgment of 9 June 2005), without casting doubt on the Court's finding of a violation of Article 8, I would prefer to describe the violation as unjustified interference with the applicant's private life without mentioning “right to home” as it was done in the Guerra and Others v. Italy case (judgment of 19 February 1998, 14967/89, Reports 1998-I).
1 Information summarised below is taken form the Government’s submissions on the merits in the Fadeyeva case, as well as from the relevant documents, attached to the Government’s submissions in the present four cases.
1. This decision concerned the closure by the authorities of a filling station which had no sanitary security zone around its territory.