Sentencia del TEDH de 10 de mayo de 2022, demanda 47987/15
Autora: María Pascual Núñez. Doctoranda en Derecho en el Centro Internacional de Estudios de Derecho Ambiental y en la Universidad a Distancia de Madrid.
Palabras clave: Derechos fundamentales. Derecho al respeto a la vida privada y familiar. Contaminación de suelos. Contaminación de aguas.
Resumen:
En el supuesto de autos, un particular solicita que se reconozca la vulneración de su derecho a la vida privada y familiar reconocido en el artículo 8 de la Convención Europea de Derechos Humanos, por la contaminación producida en el cementerio sito al lado de su casa, que ha afectado a su finca y al agua que consume. Como consecuencia, tanto el actor como su cónyuge sufren insomnio, dolores de cabeza y angustia emocional, al presenciar los entierros tan próximos a su casa. A ello se añade que, si bien en un principio las vistas al cementerio estaban protegidas por árboles, estos fueron talados y ahora las ceremonias son visibles desde el domicilio de esta parte. Asimismo, el cementerio se expandió a lo largo de los años en dirección a la vivienda del afectado, contraviniendo la normativa rusa en materia de salubridad. Indica que sus nietos no le visitan por miedo ya que, esencialmente, vive en un cementerio.
Centrándonos en el fondo ambiental, tal y como confirman los informes técnicos facilitados por esta parte, su propiedad se ha visto afectada por la contaminación dimanante de dicha actividad, como reconoce la legislación nacional, hasta el punto de resultar peligrosa. Por ello, el Tribunal reconoce la vulneración del derecho del artículo 8 de la Convención Europea de Derechos Humanos y su derecho a una indemnización de 7.500€.
Destacamos los siguientes extractos:
“(…) 50. In the present case the applicant alleged that the State was directly responsible for the ongoing unlawful use of the Lesnoye cemetery close to his home and for the resulting environmental nuisance to which he was exposed. Having regard to its conclusion concerning the applicability of Article 8 of the Convention (see paragraph 45 above) and given the fact that it is not disputed that the acts or omissions of a municipal undertaking are attributed to the State (see Yershova v. Russia, no. 1387/04, §§ 54-62, 8 April 2010), the Court considers that the use of the cemetery by the municipal burial service has directly interfered with the applicant’s rights under Article 8 of the Convention (see Dzemyuk, cited above, § 90). It must therefore be determined whether that interference has been justified in accordance with paragraph 2 of Article 8, that is to say whether it has been in accordance with law, has pursued a legitimate aim and whether it has been necessary in a democratic society.
51. As regards compliance with domestic law the Court notes the following. In 1995 the Lesnoye cemetery was closed, under Decree no. 1206 of the head of the city administration, as having reached its full burial capacity (see paragraph 7 above). In 1996 a federal law was enacted that limited the area occupied by cemeteries to a maximum size of 40 hectares – a standard that was also laid down in the 2007 Health Regulations (see paragraphs 20 and 29 above). It nonetheless appears from the case-file material (and is not disputed by the Government) that burials at the Lesnoye cemetery resumed in 2009, in breach of Decree no. 1206 (which banned any further burials at the cemetery and which was still in force at that time (see paragraphs 7, 9 and 10 above). Furthermore, no explanation was provided by the Government as to how the expansion of the cemetery (which began, illegally, in 2009 and continued after Decree no. 1206 was quashed in July 2010) conformed to the 40-hectare maximum for cemeteries provided by the 1996 Federal Law on Burials and by the 2007 Health Regulations (see paragraphs 20, 21, 29, 30 and 36 above). According to the above-mentioned expert’s report, the Lesnoye cemetery sloped downwards towards the well on the applicant’s property and was named as a possible source of contamination of his property, in contravention of the relevant regulations (see paragraphs 14, 22, 23 and 31 above).
52. Furthermore, under the relevant domestic law, cemeteries are considered to be “polluting undertakings” and as such, they should be surrounded by a sanitary protection zone (see paragraphs 24 and 29 above). In 2013-2015 the Regional CPA issued at least three reprimands to the municipal burial service for its failure to create a 500-metre sanitary protection zone around the cemetery, pursuant to the 2007 Health Regulations (see paragraph 12 above); however, it appears that those reprimands were disregarded. It may well have been that the municipal burial service and the city administration considered themselves exempt from the 2007 Health Regulations owing to ambiguous language contained in those regulations and resulting difficulties in interpreting them (see paragraph 35 above). The Court notes, however, that in 2014 the Primorsk Regional Court ordered the municipal burial service and the city administration to prepare a proposal that would determine and substantiate the size of the sanitary protection zone around the Lesnoye cemetery, in order to ensure the compliance of their activities with the 2007 Health Regulations, thus making those Regulations directly applicable to the activities of the municipal administration and its burial service at the Lesnoye cemetery (see paragraph 16 above). The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018), and the Court has no particular reason to question the findings of the Primorsk Regional Court in the present case in respect of the applicability of the 2007 Health Regulations.
53. Even though the task of demarcating the proposed sanitary protection zone and substantiating its size around the cemetery should have been completed by the end of 2014, by 5 July 2017 no progress had been made in that regard (see paragraph 18 above), and the proposal process had only entered its very early stages by the end of 2019 (see paragraph 49 above); no reasonable explanation was provided to the Court for that delay in the enforcement proceedings. By contrast, according to a survey conducted by the Russian Ministry for Economic Development, it takes companies an average of three years to comply with all the steps set out by the 2007 Health Regulations as necessary for the determination of the final size of a sanitary protection zone around a polluting undertaking (see paragraphs 25, 26 and 34 above). In the present case, however, for no apparent or cogent reason, the authorities made no efforts to enforce the above-mentioned judgment, and it took them almost five years following the delivery of that judgment merely to start the process of developing said project. In the meantime, burials continued to be conducted, in contravention of the domestic health regulations, and the applicant had to live on his polluted plot of land. The Court also notes that no information was provided by the Government as to whether it might have been feasible to take other measures while the enforcement proceedings were pending, such as temporarily relocating the applicant or carrying out decontamination work on his property by way of offsetting the effects of the absence of a sanitary protection zone. The Court reiterates that it is mindful of the difficulties and delays that are typically encountered by the authorities in finding and allocating relevant technical and logistical resources and securing the necessary funding for public works projects such as the one in the present case (see Yevgeniy Dmitriyev v. Russia, no. 17840/06, § 55, 1 December 2020). However, it considers that the use of the Lesnoye cemetery in blatant breach of the relevant domestic health regulations – together with the unexplained delay in the enforcement proceedings, which prolonged the illegality of the authorities’ actions – deprived the applicant of the effective protection of his rights under Article 8.
54. It therefore follows that the interference at issue was not “in accordance with the law”; this finding alone is sufficient for the Court to hold that there has been 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 Fadeyeva, cited above, § 95, and M.M. v. the Netherlands, no. 39339/98, §§ 45-46, 8 April 2003)”.
Comentario de la autora:
Cuando se alude a actividades potencialmente contaminantes, no es habitual pensar en cementerios. Sin embargo, está sometida a la regulación sanitaria y su incumplimiento puede acarrear consecuencias para la salud física y mental de las personas que viven cerca de sus instalaciones, vulnerando su derecho del artículo 8 Convención Europea de Derechos Humanos, a la vida privada y familiar.
Enlace web: Sentencia del TEDH de 10 de mayo de 2022, demanda 47897/15
