CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 septembre 2004

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Rozakis , President ,   Mr   P. Lorenzen ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mr   V. Zagrebelsky, judges ,   and Mr S. Nielsen , Section Registrar , Having regard to the above applications lodged on 27 August, 1   and   14   September, and 7 October 1999 respectively, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicants, Lyudmila Konstantinovna Ledyayeva, Elena Grigoryevna Dobrokhotova, Zhanna Vladmirovna Zolotareva and Ekaterina Efimovna Romashina, are Russian nationals who live in Cherepovets in the Vologda Region. The first applicant was born in 1948, the second in 1928, the third and the fourth applicants were born in 1932. The applicants are represented before the Court by Mr   Kirill   Koroteyev, Ms Dina Vedernikova (“Memorial”), lawyers practising in Moscow, and Mr Bill Bowring and Mr Phillip Leach, sollicitors in England and Wales. The respondent Government are represented by Mr Pavel Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. Facts common to all applicants The city of Cherepovets, situated 300 km north-east of Moscow, is a major steel-producing centre. In order to delimit areas where pollution caused by steel production may be excessive, the authorities have established so-called “sanitary security zones” (see the “Relevant Domestic Law” part below). All the applicants live in council houses situated within a sanitary security zone (“the zone”) around a steel-plant which belongs to a privately-owned company “Severstal” (“the company”). This zone was first delimited in 1965. By a municipal resolution of 18 November 1992 (“Resolution no.   30”), the zone was delimited anew. The State authorities conduct inspections of the zone and assess the level of pollution there. In 2000 the authorities confirmed that the concentration of certain hazardous substances in the atmosphere within the zone substantially exceeded the “maximum permitted limit” (“the MPL”) established by the Russian legislation. According to a letter of the Cherepovets Centre for Sanitary Control of 7 July 2000, between 1990 and 1999 the average concentration of dust in the air within this zone exceeded the MPL by 1.6 to 1.9 times, the concentration of carbon bisulphide - 1.4 to 4 times, the concentration of formaldehyde - 2 to 4.7 times. The State Weather Forecast Agency of Cherepovets reported that the level of atmospheric pollution between 1997 and 2001 within the zone was rated as “high” or “very high”. Notably, a high concentration of hazardous substances, such as hydrogen sulphide, ammonia and carbolic acid was registered. According to a resolution of the Chief Health Inspector ( главный санитарный врач ) of 7 August 2000, the atmospheric pollution in the zone adversely affects public health, and increases the risk of cancer, as well as respiratory and cardiac diseases. 2. Proceedings in the domestic courts regarding the second, third, and fourth applicants In 1996 the second, third and fourth applicants brought a court action against the company, seeking their resettlement outside the zone. They relied mainly on the “City Planning Regulations”, a Government Decree adopted in 1989. The applicants claimed that the Regulations imposed on the owners of the plant an obligation to take various ecological measures in the zone, which obligation it had failed to observe. On 25 April 1996 the Cherepovets Town Court rendered a judgment regarding the third applicant. On 10 July 1996 this judgment was upheld by the Vologda Regional Court on appeal. The judgment in respect of the second applicant was issued by the town court on 23 May 1996, and upheld on appeal on 31 July 1996. The judgment with respect to the fourth applicant was delivered on 30 October 1996 and upheld on 25   December 1996. In each case the courts came to the same conclusion using a similar line of reasoning, which can be summarised as follows. The courts noted that, before 1993, the applicants' flats had been owned by the Ministry of Steel Production, which had also owned the steel plant. Following the privatisation of the plant in 1993, it became a privately-owned entity, while the applicants' flats had become the property of the local authorities. The courts concluded that the company was therefore under no obligation to resettle the applicants. The courts further recognised that the applicants lived in the sanitary security zone, where the concentration of dangerous substances and the level of noise exceeded the maximum permitted limits. The courts in principle accepted the applicant's claim, stating that they had the right in domestic law to be resettled by the local authorities. However, no specific order to resettle the applicants was made by the courts in the operative parts of the judgments. Instead, the courts stated that the municipality must put the applicants on a waiting list to obtain new housing (see the 'Relevant domestic law and practice' part below). Enforcement proceedings were opened in this respect. In the absence of any special procedure for the resettlement of residents of the sanitary security zone, the applicants were put on the general waiting list for those entitled to better housing on social grounds. The second applicant was put on the list on 23 May 1999 with the number 6859, and the third and fourth applicants on 23 April 1999 with the numbers 6827 and 7032 respectively. In 1999 the applicants brought new court proceedings, alleging that the judgments of 1996 had not been duly enforced. The applicants claimed flats in an ecologically-safe area, or the means to buy new flats themselves. The Cherepovets Town Court dismissed their claims. The court established that no special waiting list for zone residents existed, and that on different dates the applicants had been put on the general waiting list. Therefore, the judgments of 1996 had been duly executed, and there was no need to undertake any further measures. These decisions were upheld by the Vologda Regional Court with respect to the second, third and fourth applicants on 4 August, 22 September and 7 July 1999 respectively. 3. Court proceedings regarding the first applicant In 1996 the municipality started repair works in the apartment block where the first applicant lived. In 1999 the municipality proposed to the applicant that she move temporarily to another flat in the same building during the work in her flat. The applicant refused to do so, claiming that she had to be resettled outside the sanitary security zone once and for all. On 7   July 1999, upon the municipal authorities' request, the applicant was temporarily evicted from her flat and moved to another apartment in the same building. This decision was upheld on appeal on 28 July 1999. On 30 March 1999 the first applicant requested the municiplaity 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. This 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. Shortly thereafter the applicant brought proceedings against the company claiming, resettlement outside the zone or the payment of a sum sufficient to purchase new housing in an ecologically safe area. On 8 December 1999 the Cherepovets Town Court rendered a judgment similar to those taken in respect of the other applicants. The court discharged the company from any obligation to resettle the applicant, and ordered the municipality to put the applicant on the general waiting list. This judgment was upheld by the Vologda Regional Court on 1 March 2000. It appears that the applicant was placed on the list. 4. Relevant events after the communication of the applications to the Government It appears that in 2000 the dimensions of the zone were revised. By resolution of 7 August 2000, the Chief Health Inspector of the Vologda Region ordered the company to delimit the zone anew. The third applicant brought court proceedings seeking to establish where exactly the borderline of the zone was. On 16   July 2001 the Cherepovets Town Court ordered the company to provide the relevant information to the applicant. On   3   September 2001 the company informed the applicant that the zone covered a five-kilometer area around the “main sources of pollution”, without indicating, however, what these “main sources” were and where exactly the borderline of the zone was. On 16 May 2001 the same applicant requested the authorities to provide her with the results of the automatic monitoring of the atmosphere of Cherepovets, carried out by a State meteorological agency. On 29 June 2001 this was refused on the ground that the “primary data” requested by the applicant would not be disclosed without prior processing by the State authorities. The applicant brought court proceedings, seeking to obtain this information. On 21 November 2001 the Cherepovets Town Court rejected her action, stating that the data requested was for internal use only, and would not be disclosed in its original form. This decision was upheld on 26 December 2001 by the Vologda Regional Court. On 11   February 2002 the Presidium of the Vologda Regional Court quashed, by way of supervisory review, the judgment of 8   December 1999 with respect to the first applicant. The Presidium established that the applicant lived in the sanitary security zone of the plant, where the concentration of the by-products of steel production regularly exceeded the health limits. The Presidium further criticized the judgment of 8   December 1999, stating that the lower courts had failed to assess whether the measures taken had been adequate to meet the degree of threat which the applicants encountered. The Presidium further analysed the legislation and concluded that it was for the polluting enterprise to take all necessary measures and “develop” the sanitary security zone around its premises. The Presidium remitted the case to the Cherepovets Town Court for a fresh examination. In 2002 the municipality challenged before the town court Resolution   no.   30 of 1992 fixing the boundary of the zone. The first applicant's request to participate in the proceedings was refused. On 13   June 2002 the Cherepovets Town Court declared Resolution no.   30 invalid, ultra vires . In 2002 the first applicant expanded her initial action pending before the Cherepovets Town Court. The applicant alleged that the pollution caused by the company infringed her personal rights, in particular, the right to respect for her private life. She claimed pecuniary compensation in this respect. On 12 July 2002 the Cherepovets Town Court rejected the applicant's claims. The court indicated that Resolution no. 30 (fixing the borderlines of the zone) had been quashed on 13   June 2002 (see above). Since the new borderlines of the zone had not yet been fixed, there was no evidence that the applicant lived within the danger zone or that her rights were in any way violated. This decision was upheld by the Vologda Regional Court on 14   August 2002. B.     Relevant domestic law 1. Background to the Russian housing provisions During Soviet times, most housing was owned by public bodies. Following the dissolution of the USSR in 1991, extensive privatisation programmes were carried out in Russia. The ownership of certain real property that had not been privatised was transferred to the local authorities. To date, a major part of the Russian population continues to live in local council homes because of the advantages they enjoy. In particular, tenants of council homes do not need to pay certain taxes; they pay a rent that is considerably lower than the market rate, and they have full rights to use and control the property. In addition, certain persons have the right to claim new housing from the local authorities, provided that they satisfy the conditions established by law.   From the historical standpoint, the right to claim new housing was among the cornerstones of various socio-economic rights enshrined in Soviet legislation. Pursuant to the Soviet Housing Code of 1983, which is still valid in Russia, every tenant whose living conditions do not correspond to the required standards is eligible to be put on a waiting list of the local authorities in order to obtain new council housing. The waiting list establishes the priority order in which housing is attributed when it is available. Being on the waiting list does not entitle the person concerned to claim from the State any specific conditions or delays in obtaining new housing. Certain categories of persons, including certain categories of civil servants or handicapped persons, are entitled to be put on a special “priority waiting list”. However, it appears that Russian legislation does not guarantee a right to be put on the priority list solely on the ground of serious ecological threats.    Since Soviet times, a great part of the population of Russia has been put on waiting lists, and the lists becoming longer each year because of the lack of resources to build new council homes. At present, the fact of being on the waiting list is generally considered to represent nothing more than a mere acceptance by the State of its intention to provide new housing, depending on the availability of resources. The applicant submits, for example, that as regards the waiting list in her municipality, where she was attributed no. 6820 in 1999, the person who is the first on the list has been waiting for new council housing since 1968.    2. The status of the “sanitary security zone” As a general principle, industrial emissions should not exceed the established environmental and health standards. If an enterprise cannot meet these requirements, the relevant domestic provisions require that the enterprise create around its territory a “sanitary security zone”. The zone denotes an area where the level of pollution may be above the accepted norms. Pursuant to Article 3-8 of the Government Decree of 1989 on city planning, no housing should be situated within the zone. Pursuant to Article 3-6 of the Decree, the polluting enterprise must take all necessary measures in order to “develop” ( обустроить ) its sanitary security zone in accordance with the law, with a view to limiting pollution. The meaning of the word “develop” is not clarified in the text of the Decree or other domestic legislation. In a letter of 27 October 2000 the State Committee on Construction has interpreted these provisions in such a way that the obligation to resettle people outside the zone lies with the enterprise, not on the State. These regulatory provisions were later incorporated into the City Planning Code of 1998 (Article   43). COMPLAINTS 1. Under Articles 2, 3 and 8 of the Convention, the applicants complain that the operation of the Severstal steel-plant in close proximity to their houses endangers their lives and health. They also complain under these provisions that they have been unable to be resettled outside the “sanitary security zone” of the plant, regardless of the domestic legal provisions prohibiting any dwellings in that area. 2. Under Article 6 of the Convention, the applicants complain that the court proceedings concerning their claims for resettlement were unfair. They also allege a breach of this provision in view of the authorities' failure to resettle them. 3. The first applicant complains under Article 8 of the Convention about her temporary eviction to another flat following the Cherepovets Town Court decision of 7 July 1999. 4. The first applicant also complains about the authorities' refusal to confirm the fact that her house was located within the sanitary security zone of the plant. She invokes Article 10 in this respect. THE LAW 1. U nder Articles 2 and 3 of the Convention the applicants complain that the operation of the steel-plant in close proximity to their homes endangers their lives and health, and that the authorities' failure to resettle them in a safer place is in breach of these provisions. The relevant parts of Articles 2 and 3 of the Convention read as follows: “Everyone's right to life shall be protected by law. ...” “No one shall be subjected to ... inhuman or degrading treatment ...” First, the Court recalls that in the similar case of Fadeyeva v. Russia (dec., no.   55723/00, 16 October 2003), the Court rejected the applicant's complaints under Articles 2 and 3 of the Convention as being manifestly ill-founded. The Court makes the same finding in the present applications, because, like the Fadeyeva case, the applicants did not face any “real and immediate risk” either to their physical integrity or their lives (see also Osman v. the United Kingdom , judgment of 28   October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3160, §   116). The alleged prejudice suffered by the applicants cannot be said to raise any issues under Article 2 of the Convention and is more appropriately dealt with in the context of Article 8. While it can be accepted that the applicants' present housing conditions are difficult, there is no indication that they, as such, amount to treatment incompatible with Article 3 (see, mutatis mutandis , López Ostra v. Spain, judgment of 9   December 1994, Series   A no.   303 ‑ C, p. 54, §   60). It is true that the applicants' complaints also relate to the question of the State's positive obligations under Article 3 of the Convention. However, this question only arises where there is at least a “credible assertion of ill-treatment” upon which the authorities must act (see the Valašinas v. Lithuania, no.   44558/98, 24 July 2001, ECHR 2001 ‑ VIII, § 122). On the facts of the present cases, the Court detects no such assertion by the applicants in the course of the impugned domestic proceedings on their claims for resettlement. Indeed, it observes that the applicants' assertions throughout the above proceedings, and the responses of the Russian courts, solely concerned the question of the lawfulness of their housing status (see 'The Facts' part above). The Court considers that the impugned proceedings do not give rise to the State's positive obligation under Article 3 of the Convention. However, the Court will examine the merits of the applicant's complaints about the outcome of these proceedings under Article 8 of the Convention (see, mutatis mutandis , the López Ostra judgment, cited above; also see, Hatton and Others v. the United Kingdom [GC], no. 36022/97, 8 July 2003; see below also). In these circumstances, the Court concludes that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. Under Article 6 of the Convention, the applicants next complain that they were denied a fair hearing. Article 6 § 1 of the Convention, insofar as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Court notes, firstly, that the second, third and fourth applicants failed to comply with the six months time-limit under Article 35 § 1 of the Convention in regard to their complaints about the first set of proceedings concerning their resettlement claim. Final decisions in those proceedings had been taken by the Vologda Regional Court in 1996, whereas the applications were introduced only in 1999. To the extent that the applicants complain under Article 6 of the Convention that, despite the court judgments in their favour, they have not been resettled, the Court observes that the “right to a court” under this provision includes the right to have a judgment duly executed (see, for example, Burdov v. Russia , no. 59498/00, §§   37 and 40-41, 7 May 2002, ECHR 2002-III). However, the Court notes that the applicants' resettlement was not ordered by the courts. They only ordered the local authorities to put the applicants on the waiting list for new housing when it became available; no conditions or time-limits were set for resettlement. Although their presence on the waiting list has not yet enabled them to be resettled, it is not for the Court, from the point of view of Article 6 of the Convention, to assess the relevance of the outcome of the proceedings to their initial claims. The fact remains that the court judgments in the applicants' cases were executed. Finally, to the extent that the applicants complain about the proceedings which ended in 1999-2000, the Court observes that their complaint is essentially not one of fairness but of result. However, this latter element is beyond the Court's competence, and it can only note that the applicants were afforded ample opportunity to state their case and contest the evidence. Moreover, the courts' decisions do not appear arbitrary. This part of the application is therefore also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 3. The applicants complain that the failure of the authorities to resettle them breaches the State's obligation to protect their right to respect for their private lives and homes. In this respect, they relied on Article 8 of the Convention which, insofar as relevant, reads as follows: “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.” In their observations, the Government concede the State's obligation to resettle the applicants outside the sanitary security zone in order to protect their private and family lives under Article 8 of the Convention. However, the Government also submit that the outcome of the court proceedings brought by the applicants, whereby the applicants were not resettled but put on a housing waiting list, is lawful. The Government state that the listing was justified for the protection of the rights of other individuals awaiting resettlement. The Government mention that a federal programme for the improvement of the environment in Cherepovets is being implemented in co-operation with the municipal authorities. The applicants contest the Government's submissions. They maintain that the impugned court decisions were contrary to domestic law, and that the outcome of the domestic proceedings on their claims for resettlement was inadequate. The applicants submit that they still live in a dangerous zone, despite the courts' and the executive authorities' acknowledgement that they should be resettled. In view of the parties' observations, the Court considers that the issues raised in this part of the applications concern complex questions of fact and law which require an examination of the merits (see also Fadeyeva v. Russia, no.   55723/00, 16 October 2003). The applicants' complaints in this respect cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. 4. The first applicant complains about the domestic courts' decision to move her to another flat while repair works were carried out by the municipality. She alleges that, instead of moving her to another flat in the same building, the authorities should have resettled her outside of the danger zone once and for all. She invokes Article 8 of the Convention (cited above). However, the Court considers that this complaint essentially repeats the preceding resettlement claim above, which is to be declared admissible. It does not raise a separate issue requiring the Court's further examination. 5. The first applicant also complains that the authorities refused to confirm the fact that her house was located within the sanitary security zone and invokes the right to freedom of expression guaranteed by Article 10 of the Convention. However, the Court finds that no element of this right, such as freedom of information or ideas, is engaged in the applicant's claim for a legal declaration on the zoning issue. It concludes, therefore, that the first applicant's complaint is outside its competence ratione materiae . This part of the application must accordingly be rejected as being incompatible with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 thereof. For these reasons, the Court unanimously Decides to join the applications; Declares admissible, without prejudging the merits, the applicants' complaints under Article 8 of the Convention concerning the alleged failure of the State to protect their rights to respect for private life and home in view of the nuisance caused by the steel-plant; Declares the remainder of the applications inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President