CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 11 October 2018   FIRST SECTION Application no. 67480/16 Josef KUKLA and Jitka KUKLOVÁ against the Czech Republic lodged on 15 November 2016 STATEMENT OF FACTS The applicants, Mr Josef Kukla and Ms Jitka Kuklová, are Czech nationals who were born in 1964 and 1938 respectively and live in Nelahozeves. They are represented before the Court by Mr L. Šikola, a lawyer practising in Prague. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants, a mother and her son, are joint owners of real estate comprising a family house and a garden, located in Nelahozeves. The house was constructed in 1926. In 1949, a high-pressure gas pipeline was installed 2.5 metres from the house, in accordance with the then regulations. It was put in operation in 1950. The second applicant and her husband, who has since died, purchased the property in 1972. At the time of their purchase, they were unaware of the pipeline, as there was no publicly accessible record of its existence. An accurate measurement of the pipeline route was not carried out until 1987. Inspection reports of 1999 and 2000 concluded that the pipeline was not capable of operating safely. A subsequent technical report of 1 March 2009 stated that the pipeline was not sited within a safe distance from the applicants’ house. The situation was in violation of Act no. 222/1994 on conditions for business activities and the implementation of public authority in the energy sectors and on State inspection of energy facilities, and it should have been remedied by reconstruction of the pipeline. On 13 May 2009 the applicants lodged an application with the Mělník District Court ( okresní soud ) seeking removal of the pipeline. Because the defendant, RWE GasNet s.r.o., was inactive in the proceedings, on 11   March 2010 the District Court adopted a default judgment ( rozsudek pro uznání ) and ordered the removal of the pipeline within three months. Following an appeal by the defendant, the Prague Regional Court ( krajský soud ) quashed the impugned judgment and remitted the case to the District Court. In a judgment of 29 May 2012 the District Court found that the pipeline’s location was in violation of safety rules, which provided for a 20-metre safety zone. Relying on the prevention principle under Article 415 of the Civil Code, it ordered the defendant to remove the pipeline within twenty-four months. The court stated: “... it has been decided that the relevant pipeline should be removed under Article   415 of the Civil Code ... The time-frame to fulfil this duty has been considered. None of the evidence has shown that there is an immediate danger. The pipeline in question serves to deliver gas for part of the region. Its removal without preparation for a shift capable of [continued] operation is not justified. Therefore, it has been decided that the defendant is under an obligation to remove the pipeline within 24 months ...” The court relied especially on the opinions of three experts, namely V.B., J.B., and M.Š. Two of the experts, V.B. and J.B., agreed that the distance of the pipeline from the house was in violation of current safety rules. V.B. stated that the material used for the construction of the pipeline was of high quality and it allowed operation under pressure higher than 25 bars. In order to be safe, increased and adequate attention was required, but technically there would be no problem shifting the pipeline and it could be done in nine months. On the other hand, J.B. found that the pipeline was sixty years old, and had been designed for 20-bar pressure, but had been operating under 25-bar pressure without proper testing. In addition, safety measures had not been implemented properly. The third expert, M.Š., stated that safe and reliable operation of the pipeline had not been ensured. In his opinion, a possible blast would probably destroy the house and it could be caused either by ignition of the gas immediately after leakage or by slow leakage and a concentration of gas in the air. Both parties appealed before the Prague Regional Court, which dismissed the case on 18 October 2012. The appellate court concluded that even though the public law had clearly been violated, it did not constitute per se a claim under Article 417 § 2 of the Civil Code. The appellate court held: “The appellate court agrees ... that the prevention duty under Article 415 of the Civil Code has been violated. However, the sole fact of its violation does not constitute a   claim ... A serious danger to the claimant or his property must be concrete. It is not possible to refer to a risk of damage that is anticipated but has not yet been sustained ( hrozící škoda ) in a general way. The claimants ... argue that there is a potential risk of damage anticipated but not yet sustained. A serious danger to the claimants or to their property has not been proved in a concrete fashion. ...” Furthermore, the appellate court also noted that even if a concrete serious danger had been proved, the reasonable measure to take would have been, for example, to carry out frequent checks of and repairs to the pipeline. On 22 January 2013 the applicants lodged an appeal on points of law ( dovolání ), which was dismissed as manifestly ill-founded by the Supreme Court ( Nejvyšší soud ) on 25 February 2015. On 22 May 2015 the applicants lodged a constitutional appeal ( ústavní stížnost ), alleging that the Supreme Court and the Regional Court had violated their rights to property and to health and the principles of fairness. They argued that the safety zone had been defined by law in 1960 and the question of safety had been constantly evolving. The pipeline was dangerous, it was sixty years old and it had no documentation. Their property rights had been disproportionally affected as they could not construct anything on their property and the property itself was unsellable. Furthermore, the courts had interpreted the domestic law erroneously. On 18 May 2016 the Constitutional Court ( Ústavní soud ) dismissed their appeal as manifestly ill-founded. The court considered, inter alia , that the question whether a violation of public-law regulations constituted a serious danger within the meaning of Article 417 § 2 of the Civil Code should be individually scrutinised and that in this particular case, the courts had properly assessed all the relevant facts. B.     Relevant domestic law Pursuant to section 68(1) of the Energy Act (no. 458/2000, in force at the material time) a protection zone was meant to ensure the safe and reliable operation of gas facilities. Under section 68(2) a protection zone for high-pressure pipelines was defined as a compact zone 4 metres either side of the pipeline. Section 69(1) provided that safety zones were designed to prevent or diminish the consequences of possible accidents at gas facilities and to protect people’s life, health, safety and property. Section 69(4) provided that the extent of safety zones was defined in the appendix to the Energy Act. For a high-pressure pipeline (DN 300) the safety zone was defined as a distance of 20 metres from the pipeline. Under Article 415 of the Civil Code (Act no. 40/1964, in force at the material time), everyone had an obligation to act in such a manner that no damage to health, property or the environment would occur. Article 417 § 2 provided that in the event of serious danger, the endangered person had a right to apply for a court order obliging the relevant authorities to take appropriate and proportional measures to avert the damage threatened or anticipated but not yet sustained ( damnum infectum ). COMPLAINTS The applicants complain of the authorities’ failure to protect their private and family life and their property from environmental nuisance arising from the close proximity to their family house of a high-pressure gas pipeline, in violation of domestic safety regulations. They also complain that the courts did not adjudicate their case fairly and that the judicial remedy was not effective. They rely on Article 8 of the Convention and Article 1 of Protocol   No. 1 to the Convention. QUESTIONS TO THE PARTIES 1.     Did the alleged nuisance attain the minimum level of severity required for it to amount to an interference with the applicants’ right to respect for their private and family lives under Article 8 of the Convention (see, among other authorities, Hardy and Maile v. the United Kingdom , no. 31965/07, §§   187-88, 14 February 2012)?   2.     If so, have the authorities complied with their obligation to take reasonable measures to secure the applicants’ rights under Article 8 of the Convention (see, for example, Brincat and Others v. Malta , nos. 60908/11 and 4 others, § 101, 24 July 2014, and Koceniak v. Poland (dec.) no.   1733/06, §§ 66-68, 17 June 2014)?   3.     Were the authorities required to take positive measures of protection within the meaning of Article 1 of Protocol No. 1 of the Convention (see Kolyadenko and Others v. Russia , nos. 17423/05 and 5 others, § 213, 28   February 2012)?   4.     If so, have the authorities complied with their obligation to take positive action in order to protect private property in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, which lays down the right to the peaceful enjoyment of possessions (see, for example, Budayeva and Others v. Russia , nos.   15339/02 and 4 others, § 172, ECHR 2008 (extracts))?