CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 février 2011

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color:#000000 }       FIFTH SECTION             CASE OF DUBETSKA AND OTHERS v. UKRAINE   (Application no. 30499/03)       JUDGMENT   This version was rectified on 2 May and 18 October 2011 under Rule 81 of the Rules of Court         STRASBOURG   10 February 2011   FINAL   10/05/2011   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dubetska and Others v. Ukraine , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Peer Lorenzen, President,   Karel Jungwiert,   Mark Villiger,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva,   Ganna Yudkivska,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 30499/03) against Ukraine lodged with the Court on 4 September 2003 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Ukrainian nationals: Ms Ganna Pavlivna Dubetska, born in 1927; Ms Olga Grygorivna Dubetska, born in 1958; Mr   Yaroslav Vasylyovych Dubetskyy, born in 1957; Mr Igor Volodymyrovych Nayda, born in 1958; Ms Myroslava Vasylivna Nayda [1] , born in 1960; Mr Arkadiy Vasylyovych Gavrylyuk, born in 1932; Ms   Ganna Petrivna Gavrylyuk, born in 1939; Ms Alla Arkadiyivna Vakiv, born in 1957; Ms Mariya Yaroslavivna Vakiv, born in 1982; Mr Yaroslav Yosypovych Vakiv, born in 1955; and Mr   Yuriy Yaroslavovych Vakiv, born in 1979. 2.     The applicants were represented by Ms Y. Ostapyk, a lawyer practising in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3.     The applicants alleged that the State authorities had failed to protect their home, private and family life from excessive pollution generated by two State-owned industrial facilities. 4.     On 15 October 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 §   1). 5.     On an unspecified date after the case was communicated the applicant Mr Arkadiy Gavrylyuk died. On 18 September 2009 the applicants' representative requested that his claims be excluded from consideration. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants are Ukrainian nationals residing in the hamlet of Vilshyna in the Lviv region. A.     Preliminary information 7.     The first to fifth applicants are members of an extended family residing in a house owned by the first applicant (the Dubetska-Nayda family house). This house was built by the family in 1933. 8.     The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant (the Gavrylyuk-Vakiv family house). This house was built by him in 1959. It is unclear whether a permit for construction of this house was obtained in 1959. Subsequently the house was officially registered, to which a property certificate of 1988 is witness. 9.     The applicants' houses are located in Vilshyna hamlet, administratively a part of Silets village, Sokalskyy district, Lviv Region. The village is located in the Chervonograd coal-mining basin. 10.     In 1955 the State began building, and in 1960 put into operation, the Velykomostivska No. 8 coal mine, whose spoil heap is located 100 metres from the Dubetska-Vakiv family house. In 2001 this mine was renamed the Vizeyska mine of the Lvivvugillya State Holding Company (“the mine”; Шахта «Візейська» ДХК «Львіввугілля» ). In July 2005 a decision was taken to close the mine as unprofitable. The closure project is currently under way. 11.     In 1979 the State opened the Chervonogradska coal processing factory (“the factory”; Центрально-збагачувальна фабрика «Червоноградська» ) in the vicinity of the hamlet, initially managed by the Ukrzakhidvugillya State Company. In 2001 the factory was leased out to the Lvivsystemenergo Closed Joint Stock Company ( ЗАТ «Львівсистеменерго» ). Subsequently the Lvivsystemenergo CJSC was succeeded by the Lviv Coal Company Open Joint Stock Company. In 2007 a decision was taken to allow the factory to be privatised. It is not clear whether the factory has already been privatised. 12.     In the course of its operation the factory has piled up a 60-metre spoil heap 430 metres from the Dubetska-Nayda family house and 420   metres from the Gavrylyuk-Vakiv family house. This spoil heap was not subject to privatisation and remained State property. B.     The environmental situation in Vilshyna hamlet 1.     General data concerning pollution emitted by the factory and the mine 13.     According to a number of studies by governmental and non ‑ governmental entities, the operation of the factory and the mine has had adverse environmental effects. 14.     In particular, in 1989 the Sokalskyy District Council Executive Committee (“the Sokalskyy Executive Committee”; Виконавчий комітет Сокальської районної ради ) noted that the mine's and the factory's spoil heaps caused continuous infiltration of ground water, resulting in flooding of certain areas. 15.     According to an assessment commissioned by the State Committee for Geology and Mineral Resource Utilisation, jointly with the Zakhidukrgeologiya State geological company ( Державний комітет України по геології та використанню надр; Державне геологічне підприємство «Західукргеологія») in 1998, the factory was a major contributor to pollution of the ground water, in particular on account of infiltration of water from its spoil heap. The authors of the assessment contended, in particular, that: “All the coal-mining industry operational in the region for over forty years has been negatively affecting the environment: spoil heaps from the mines and the coal-processing factory have been created, from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools... of the coal-processing factory are sources of pollution of surface and underground waters ... Rocks from the spoil heaps contain a variety of toxic heavy metals, leaching of which results in pollution of soils, surface and underground waters ... Very serious polluters ... are cesspools of mining waters and factory tailing ponds ..., which in the event of the slightest disturbance of the hydro-insulation cause pollution of surface and ground waters ... The general area of soil subsidence is about 70 square kilometres [2] ... the deepest subsidence (up to 3.5 metres) corresponds to areas with the most mining activity... During construction of the water inlets ... deep wells were drilled which reached those [mineralised] waters. All this inevitably affected the health of people living in the area, first of all the children ... Extremely high pollution levels ... were found in the hamlet of Vilshyna, not far from the coal-processing factory and mine no. 8 spoil heaps, in the wells of Mr T. and Mr   Dubetskyy. We can testify that even the appearance of this water does not give grounds to consider it fit for any use. People from this community should be supplied with drinking-quality water or resettled ...” 16.     In 2001 similar conclusions were proposed in a white paper published by Lviv State University. 17.     On 20 April 2000 the Chervonograd Sanitary Epidemiological Service (“the Sanitary Service”; Червоноградська міська санітарно ‑ епідеміологічна служба ) recorded a 5.2-fold excess of dust concentration and a 1.2-fold excess of soot concentration in ambient air samples taken 500 metres from the factory's chimney. 18.     On 1   August   2000 the Sanitary Service sampled water in the Vilshyna hamlet wells and found it did not meet safety standards. In particular, the concentration of nitrates exceeded the safety limits by three- to five-fold, the concentration of iron by five- to ten-fold and that of manganese by nine- to eleven-fold. 19.     On 16 August 2002 the Ministry of Ecology and Natural Resources ( Міністерство екології та природних ресурсів ) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire Chervonograd region. They caused soil subsidence and flooding. Heavy metals from mining waste penetrated the soil and ground waters. The level of pollution of the soil by heavy metals was up to ten times the permissible concentration, in particular in Silets village, especially on account of the operation of the factory and the mine. 20.     On 28   May   2003 factory officials and the Chervonograd Coal Industry Inspectorate ( Червоноградська гірничо-технічна інспекція з нагляду у вугільній промисловості ) recorded infiltration of water from the foot of the factory's spoil heap on the side facing Vilshyna hamlet. They noted that water flowing from the heap had accumulated into one hectare of brownish salty lake. 21.     In 2004 the Zakhidukrgeologiya company published a study entitled “Hydrogeological Conclusion concerning the Condition of Underground Waters in the Area of Mezhyriccha Village and Vilshyna Hamlet”, according to which in the geological composition of the area there were water-bearing layers of sand. The study also indicated that even before the beginning of the mining works the upper water-bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys. However, exploitation of the mines added pollution to underground waters, especially their upper layers. 22.     On 14 June 2004 the Lviv Chief Medical Officer for Health ( Головний державний санітарний лікар Львівської області ) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations 350 metres from the factory, and imposed administrative sanctions on the person in charge of the factory's boiler. 23.     In September 2005 Dr Mark Chernaik of the Environmental Law Alliance Worldwide reported that the concentration of soot in ambient air samples taken in Vilshyna hamlet was 1.5 times higher than the maximum permissible concentration under domestic standards. The well water was contaminated with mercury and cadmium, exceeding domestic safety standards twenty-five-fold and fourfold respectively. According to the report, the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases. 2.     The applicants' accounts of damage sustained by them on account of the mine and factory operation 24.     The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine's director on 1 January 1999. According to the applicants, the mine promised to pay for the repair of their houses but never did so. 25.     Secondly, the applicants alleged that they were continuing to suffer from a lack of drinkable water. They contended that until 2009 the hamlet had no access to a mains water supply. Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections. The applicants presented three photographs reportedly of the water available to them near their home. One photo entitled “water in a well in Vilshyna hamlet” pictured a bucket full of yellow-orange water near a well. The second photo entitled “a stream near the house” pictured a small stream of a bright orange colour. The third photo entitled “destruction of plant life by water from the coal-processing factory waste heap” depicted a brownish lake with many stumps and several dead bushes in the middle of it. 26.     The applicants further contended that from 2003 the Lvivsystemenergo CJSC had been bringing, at its own expense, drinkable water into the hamlet by truck and tractor. However, this water was not provided in sufficient quantity. In evidence of this statement, the applicants presented a photograph picturing five large buckets of water and entitled “weekly water supply”. 27.     The applicants further alleged that the water supply was not always regular. In support of this argument they produced letters from the Sokalskyy District Administration dated 9 July 2002 and 7 March 2006, acknowledging recent irregularities in supply of drinking water. 28.     Thirdly, some of the applicants were alleged to have developed chronic health conditions associated with the factory operation, especially with air pollution. They presented medical certificates which stated that Olga Dubetska and Alla Vakiv were suffering from chronic bronchitis and emphysema and that Ganna Gavrylyuk had been diagnosed with carcinoma. 29.     Fourthly, the applicants contended that their frustration with environmental factors affected communication between family members. In particular, lack of clean water for washing reportedly caused difficulties in relations between spouses. Younger family members sought to break away from the older ones in search of better conditions for their growing children. 30.     The applicants, however, did not relocate. They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without State support. In evidence, the applicants presented a letter from a private real estate agency, S., dated September 2009, stating the following: “since in Vilshyna hamlet ... there has been no demand for residential housing for the past ten years because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house.” C.     Administrative decisions addressing the harmful effects of the factory and mine operation 1.     Decisions aimed at improving the environmental situation in the region 31.     In November 1995 the Sanitary Service ordered the factory to develop a plan for management of the buffer zone. 32.     On 5 June 1996 the Sanitary Service found that the factory had failed to comply with its order and ordered suspension of its operation. In spite of this measure, the factory reportedly continued to operate, with no further sanctions being imposed on its management. 33.     On 7 April 2000 and 12 June 2002 the State Commission for Technogenic and Ecological Safety and Emergencies (“The Ecological Safety Commission”; Державна комісія з питань техногенно ‑ екологічної безпеки та надзвичайних ситуацій ) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory. 34.     On 14 April 2003 the Lviv Regional Administration ( Львівська обласна державна адміністрація ) noted that the overall environmental situation had not improved since the Ecological Safety Commission's decision of 7 April 2000, as no funds had been allocated by the State Budget for implementation of the relevant measures. 35.     On 27 January 2004 the Sanitary Service found that the mine had failed to comply with its instruction of 4 December 2003 as to the development of a plan for management of the buffer zone, and ordered suspension of its operation. However, the mine reportedly continued to operate. 36.     On 13 July 2005 the Marzeyev State Institute for Hygiene and Medical Ecology ( Інститут гігієни та медичної екології ім.   О.   М.   Марзеєва АМН України ) developed a management plan for the factory buffer zone. The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide, carbon oxide, sulphuric anhydride and dust. They noted, however, that according to their studies ambient air samples taken more than 300 metres from the factory did not contain excessive pollution. The plan provided for implementation of a number of measures aimed at improvement of the hydro-insulation of the spoil heap, as well as reduction of its height to 50 metres. The authors concluded that in view of such measures it was possible to establish a general buffer zone at 300 metres for the entire factory site. 37.     Later in the year the Ministry of Health ( Міністерство охорони здоров'я ) approved the Marzeyev Institute's plan, on an assumption that the height of the spoil heap would be reduced by August 2008. 38.     On 29 April 2009 the Sanitary Service fined the factory director for failing to implement the measures in the factory buffer zone management plan. 2.     Decisions concerning the applicants' resettlement 39.     On 20 December 1994 the Sokalskyy Executive Committee noted that eighteen houses, including those of the applicants, were located within the factory spoil heap 500-metre buffer zone, in violation of applicable sanitary norms. It further allowed the Ukrzakhidvugillya company to resettle the inhabitants and to have these houses demolished. The Committee further obliged the company director to provide the applicants with housing by December 1996. This decision was not enforced. 40.     In 1995 the Sokalskyy Executive Committee amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use. 41.     On 7 April 2000 the Ecological Safety Commission noted that eighteen families lived within the limits of the factory buffer zone and commissioned the Ministry of Fuel and Energy and local executive authorities to ensure their resettlement in 2000-2001. The names of the families appear not to have been listed. 42.     In December 2000 and 2001 the applicants enquired of the Ministry of Fuel and Energy when they would be resettled and received no answer. 43.     In 2001 the Lviv Regional Administration included resettlement of eighteen families (names not listed) from the factory sanitary security zone in their annual activity plan, indicating the State budget as the funding source and referring to the Ecological Safety Commission's decision of 7   April   2000. 44.     On 12 June 2002 the Ecological Safety Commission noted that its decision of 7 April 2000 remained unenforced and ordered the Sokalskyy District Administration, the Silets Village Council and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by the end of 2003. 45.     In June 2002 the applicants, along with other village residents, complained to the President of Ukraine about the non-enforcement of the decisions concerning their resettlement. The President's Administration redirected their complaint to the Lviv Regional Administration and the Ministry of Ecology and Natural Resources for consideration. 46.     On 16 August 2002 the Ministry of Ecology and Natural Resources informed the Vilshyna inhabitants in response to their complaint that it had proposed that the Cabinet of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of the Ecological Safety Commission of 7 April 2000. 47.     On 14 April 2003 the Lviv Regional Administration informed the applicants that it had repeatedly requested the Prime Minister and the Ministry of Fuel and Energy to provide funding for the enforcement of the decision of 7 April 2000. D.     Civil actions concerning the applicants' resettlement 1.     Proceeding brought by the Dubetska-Nayda family 48.     On 23 July 2002 the Dubetska-Nayda family instituted civil proceedings in the Chervonograd Court ( Місцевий суд м. Червонограда ) seeking to oblige the factory to resettle them from its buffer zone. Subsequently the Lvivvugillya State Company was summoned as a co ‑ defendant. 49.     The first hearing was scheduled for 28 October 2003. Subsequent hearings were scheduled for 12   November and 18 December 2003, 26 and 30   April, 18 May, 18 and 30 June, 19 July and 22 December 2004, and 25   November, 6, 20 and 26 December 2005. On some four occasions hearings were adjourned on account of a defendant's absence or following a defendant's request for an adjournment. 50.     On 26 December 2005 the Chervonograd Court found that the plaintiffs resided in the mine's buffer zone and ordered the Lvivvugillya State Company holding it to resettle them. It further dismissed the applicants' claims against the factory, finding that their house was outside its 300-metre buffer zone. 51.     This judgment was not appealed against and became final. 52.     On 3 May 2006 the Chervonograd Bailiffs' Service initiated enforcement proceedings. 53.     On 19 June 2006 the Bailiffs fined the mine's director for failing to ensure the enforcement of the judgment. The latter appealed against this decision. 54.     On 26 June 2006 the director informed the Bailiffs that the mine could not comply with the judgment. It neither had available residential housing at its disposal nor was it engaged in constructing housing, as it had received no appropriate allocations from the State budget. 55.     The judgment remains unenforced to the present date. 2.     Proceedings brought by the Gavrylyuk -Vakiv family 56.     On 23 July 2002 the Gavrylyuk-Vakiv family, similarly to the Dubetska-Nayda family, instituted civil proceedings at Chervonograd Court seeking to be resettled outside the factory buffer zone. 57.     Subsequently the factory was replaced by the Lvivsystemenergo CJSC as a defendant in the proceedings. 58.     The first hearing was scheduled for 29 September 2003. Subsequent hearings were scheduled for 6, 17 and 30 October 2003, and 15 and 30   April, 18 May, 18 and 21 June 2004. 59.     On 21 June 2004 Chervonograd Court dismissed the applicants' claims. The court found, in particular that, although the plan for management of the factory buffer zone was still under way, there were sufficient studies to justify the 300-metre zone. As the plaintiffs' house was located outside it, the defendant could not be obliged to resettle them. Moreover, the defendant had no funds to provide the applicants with new housing. The court found the decision of 1994 concerning the applicants' resettlement irrelevant and did not comment on subsequent decisions concerning the matter. 60.     On 20 July 2004 the applicants appealed. They maintained, in particular, that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards. In their case, the actual level of pollution outside the zone exceeded such standards, as evidenced by a number of studies, referring to the factory operation as the major source of pollution. Furthermore, the decision of the Sokalskyy Executive Committee of 1994 could not have been irrelevant, as it remained formally in force. 61.     On 28 March 2005 the Lviv Regional Court of Appeal ( Апеляційний суд Львівської області ) upheld the previous judgment and agreed with the trial court's reasoning. In response to the applicants' arguments concerning the actual pollution level at their place of residence, the court noted that the hamlet was supplied with imported water and that in any event, while the applicable law included penalties against polluters, it did not impose a general obligation on them to resettle individuals. 62.     On 23 April 2005 the applicants appealed on points of law, relying on essentially the same arguments as in their previous appeal. 63.     On 17 September 2007 the Khmelnytskyy Regional Court of Appeal ( Апеляційний суд Хмельницької області ) dismissed the applicants' request for leave to appeal on points of law. II.     RELEVANT DOMESTIC LAW A.     Constitution of Ukraine 64.     Relevant provisions of the Constitution read as follows: Article 16 “To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.” Article 50 “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...” B.     Law of Ukraine “On Local Councils of People's Deputies and Local and Regional Self-Government” of 7 December 1990 (repealed with effect from 21 May 1997) 65.     According to Article 57 of the Law, private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self-government (which included executive committees of district councils). 66.     Subsequent legislation concerning local self-government did not envisage the existence of such a body as an executive committee of a district council. C.     Law of Ukraine “On Waste” of 5 March 1998 67.     Relevant provisions of the Law “On Waste” read as follows: Section 9. Property rights to waste “The State is the owner of waste produced on State property ... On behalf of the State the management of waste owned by the State shall be carried out by the Cabinet of Ministers.” D.     Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises” of 23 June 2005 68.     The above Law introduced a new mechanism for payment and amortisation of companies' debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company's presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company. E.     Order of the Ministry of Health No.   173 of 19   June   1996 “On Approval of the State Sanitary Rules concerning Planning and Construction of Populated Communities” 69.     Relevant provisions of the Order of the Ministry of Health read as follows: “5.4.     Industrial, agricultural and other objects, which are sources of environmental pollution with chemical, physical and biological factors, in the event that it is impossible to create wasteless technologies, should be separated from residential areas by sanitary security zones. ... On the exterior boundary of a sanitary security zone which faces a residential area, concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards (maximum permissible concentrations, maximum permissible levels) ... 5.5.     ... In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances, it is necessary to take a decision concerning a change of production technology, which would provide for decrease in emission of harmful substances into the atmosphere, its re-profiling or closure. Supplement No. 4, Sanitary classification of enterprises, production facilities and buildings and their required sanitary security zones : ..... A sanitary security zone of 500 metres [shall surround the following facilities]: .... 5.     Spoil heaps of mines which are being exploited, inactive spoil heaps exceeding 30 metres in height which are susceptible to combustion; inactive spoil heaps exceeding 50 metres in height which are not susceptible to combustion. A sanitary security zone of 300 metres [shall surround the following facilities]: ... 5.     ... coal-processing factories using wet treatment technology 6.     ... inactive spoil heaps of mines, less than 50 metres in height and not susceptible to combustion.” THE LAW I.     SCOPE OF THE CASE 70.     On 18 September 2009 the applicants' representative informed the Court that applicant Mr Arkadiy Gavrylyuk had died. She further requested that his claims be excluded from consideration. 71.     The Court considers that, in the absence of any heir expressing the wish to take over and continue the application on behalf of Mr   Arkadiy   Gavrylyuk, there are no special circumstances in the case affecting respect for human rights as defined in the Convention and requiring further examination of the application under Article 37 § 1 in fine of the Convention (see, for example, Pukhigova v. Russia , no. 15440/05, §§   106 ‑ 107, 2 July 2009 and Goranda v. Romania (dec.), no. 38090/03, 25   May 2010). 72.     In view of the above, it is appropriate to strike the complaints lodged by Mr Arkadiy Gavrylyuk out of the list. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73.     The applicants complained that the State authorities had failed to protect their home, private and family life from excessive pollution generated by two State-owned industrial facilities. They relied on Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 1.     Submissions by the parties (a)     The Government 74.     The Government submitted that the application was inadmissible ratione temporis in so far as it related to the facts predating 11 September 1997, the date of entry of the Convention into force with respect to Ukraine. 75.     They further submitted that the Gavrylyuk-Vakiv family could not claim to be victims of any violations of Article 8 as in 1959 they had unlawfully constructed their house on the land, which was formally allocated to them only a year later. Moreover, in breach of the law in force at the material time, this family had never requested authorisation of the mining authorities to construct their house on the land above the mine. As the Gavrylyuk-Vakiv family had deliberately constructed their house on land under industrial development and in so doing acted in violation of applicable law, they could not claim that the State had any obligations relating to respect for their Article 8 rights while they lived in this house. Their complaints were therefore inadmissible ratione personae . 76.     The Government also submitted as an alternative that the Gavrylyuk ‑ Vakiv family's complaints were manifestly ill-founded, as their family lived outside the statutory buffer zones of both the mine and the factory, and their resettlement claim was rejected by a competent court at the close of adversary proceedings. These applicants had therefore not made out an arguable Convention claim. 77.     Finally, the Government contended that none of the applicants had exhausted available domestic remedies. In particular, they had never claimed compensation from either the mine or the factory for any damage allegedly sustained on account of their industrial activity. (b)     The applicants 78.     The applicants disagreed. They noted that while the situation complained about had started before the entry of the Convention into force with respect to Ukraine, it continued afterwards and up to the present day. In particular, the Sokalskyy Executive Committee's decision to resettle them had not been formally quashed and was in force by the date of the Convention's entry into effect. So the competent authorities were responsible for its non-enforcement, as well as for the non-enforcement of the subsequent decision of the Ecological Safety Commission concerning the applicants' resettlement and the Chervonograd Court's judgment in the Dubetska-Nayda family's favour. Likewise, the State bore responsibility for failure to enforce the buffer zone management plans for the mine and the factory leading to environmental deterioration in the area, where the applicants lived. 79.     The applicants further submitted that the Gavrylyuk-Vakiv family had constructed their house lawfully, on land duly allocated for this purpose, while in 1960 they had been given extra land for gardening. The Government's submission that they had to seek the mining authorities' permission to build a house was not based on law. Also, by the time the Convention entered into force in respect of Ukraine, their house had been properly registered with the authorities, as evidenced by the property certificate provided by them to the Court. 80.     The applicants further contended that the fact that the Chervonograd Court had dismissed the Gavrylyuk-Vakiv family's resettlement claim did not render their application manifestly ill-founded, regard being had to the actual excessive levels of pollution in the vicinity of their home. In rejecting their claim for resettlement the courts had relied on the prospective improvements anticipated following implementation of the buffer zone management plan for the factory. As the plan remained unimplemented, this group of applicants continued to suffer from excessive pollution and their claim was therefore not manifestly ill-founded. 81.     Finally, the applicants alleged that they had properly exhausted domestic remedies, as they aired their complaints through domestic courts and referred to environmental pollution as the reason to claim resettlement. 2.     The Court's assessment 82.     In so far as the Government alleged partial inadmissibility of the application as falling outside the scope of the Court's temporal jurisdiction, the Court considers itself not competent ratione temporis to examine the State actions or omissions in addressing the applicants' situation prior to the date of the entry of the Convention into force with respect to Ukraine (11   September 1997). It is however competent to examine the applicants' complaints, which relate to the period after this date (see, mutatis mutandis, Fadeyeva v. Russia , no. 55723/00, § 82, ECHR 2005 ‑ IV). 83.     As regards the Government's allegation that the complaints lodged by the Gavrylyuk-Vakiv family are incompatible with the Convention ratione personae , the Court notes, firstly, that Article 8 of the Convention applies regardless of whether an applicant's home has been built or occupied lawfully (see, among other authorities, Prokopovich v. Russia , no.   58255/00, § 36, ECHR 2004 ‑ XI (extracts)). Moreover, it notes that irrespective of whether the house at issue was lawfully constructed or regularised after the family had settled in it, by 11 September 1997, when the Convention entered into force with respect to Ukraine, the Gavrylyuk ‑ Vakiv family was occupying it lawfully. This fact is not disputed between the parties. In light of the above the Government's objection should be dismissed. 84.     As regards the Government's allegation that the Gavrylyuk-Vakiv family's claims were manifestly ill-founded as their resettlement claim had been rejected in domestic proceedings, the Court agrees that it is not in a position to substitute its own judgment for that of the national courts and its power to review compliance with domestic law is limited (see, among other authorities, Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003 ‑ X and Paulić v. Croatia , no. 3572/06, § 39, 22 October 2009). It is the Court's function, however, to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention (see Slivenko , cited above, ibid.). Furthermore, the Court notes that the Gavrylyuk-Vakiv family's complaint is not limited to the alleged unfairness of the judgments dismissing their resettlement claim. It concerns a general failure of the State to remedy their suffering from adverse environmental effect of pollution in their area. The Government's objection must therefore be dismissed. 85.     Finally, as regards the non-exhaustion objection, the Court notes that the Government have not presented any examples of domestic court practice whereby an individual's claim for compensation against an industrial pollutant would be allowed in a situation similar to that of the applicants. Furthermore, both applicant families in the present case chose to exhaust domestic remedies with respect to their claim to be resettled from the area, permanently affected by pollution. One family obtained a resettlement order, which however remains unenforced as the debtor mine lacks budgetary allocations for it, and the other's claim was dismissed on the grounds that it lived outside the pollutants' statutory buffer zone. In view of all the above the Court has doubts concerning the applicants' prospects of success in compensation proceedings. 86.     Even assuming, however, that such compensation could be awarded to them for past pollution and paid in good time, the Court notes that the applicants complain about continuing pollution, curtailing which for the future appears to necessitate some structural solutions. It is not obvious how the compensatory measure proposed by the Government would address this matter. In light of the above, the Court dismisses the non-exhaustion objection. 87.     In conclusion, the Court notes that the application raises serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits. The application cannot therefore be declared manifestly ill-founded within the meaning of Article   35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. The Court, therefore, declares the application admissible. B.     Merits 1.     Applicability of Article 8 of the Convention (a)     Submissions by the parties (i)     The applicants 88.     The applicants submitted that they were suffering from serious State interference with their rights guaranteed by Article 8 of the Convention, on account of environmental pollution emanating from the State-owned mine and factory (in particular their spoil heaps), as well as from the State's failure to cope with its positive obligation to regulate hazardous industrial activity. 89.     The applicants further noted that they had set up their present homes lawfully, before they could possibly have known that the area would fall within the legislative industrial buffer zone and would be environmentally unsafe. 90.     The applicants next alleged that the Government's plan approving the 300-metre buffer zone around the factory was controversial, as operation of the spoil heap required a 500-metre buffer zone. The plan at issue had not been approved by the State Medical Officer for Health until it had previewed the measures for decreasing the height of the waste heap to 50   metres and hydro-insulating it, which has not been done so far. They considered, therefore, that they continued to live within the scientifically justifiable buffer zone of the waste heap. 91.     The applicants further contended that not only their houses were located within the zone formally designated by the law as inappropriate for habitation, but there was considerable evidence that the actual air, water and soil pollution levels in the vicinity of their homes were unsafe and were such as could increase the applicants' vulnerability to pollution-associated diseases. In this regard they referred to various Governmental and non-governmental reports and surveys discussed in paragraphs 13-23 above. 92.     The applicants additionally noted that other hazards included flooding of the nearby areas and soil subsidence caused by mining activities. They alleged that regard being had to the existence of numerous underground caverns dug out in the course of mining operations these hazards would exist even if no new mining activities took place. 93.     In the meantime, the applicants were unable to relocate without the State's assistance, as on account of industrial pollution there was no demand for real estate in their hamlet and they were not capable of finding other sources of funding for relocation. 94.     Finally, the applicants noted that