CASE OF TONYUK v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1941 and lives in the small village of Yamna, which forms part of Yaremche, a resort town located in the Carpathian Mountains in the Ivano-Frankivsk Region of Ukraine. 6. On 16 July 1996 the Executive Committee of Yaremche Town Council (“the Executive Committee”) allotted a plot of land next to the applicant’s house to St John’s Church to build a new cemetery (“the new cemetery”). 7. As is evident from the photographs submitted by the applicant, as of the date when they were taken (which is not specified) her land was adjacent to the cemetery. The house where she and her family lived was located some ten metres from the cemetery boundary. The applicant’s yard was separated from the cemetery by a wire mesh fence. The nearest row of graves was about a metre from the fence (some eleven metres from the house) and was clearly visible from the applicant’s yard. The part of the cemetery captured on the pictures contained over fifty graves, some freshly decorated with wreaths. 8. According to the applicant’s statements, at the time, when she lodged the present application, her family was routinely disturbed in its daily life by the sight of funeral processions and the sound of people mourning by the graves. In hot weather unpleasant smells sometimes emanated from the cemetery. In addition, the well from which the applicant’s family drew water for drinking and other household needs was situated some twenty-five metres from the cemetery and they were worried it could become contaminated with the by-products of human decomposition. 9. The applicant contacted various authorities on numerous occasions, complaining that the distance between her house and the new cemetery was less than the 300 metres required by law as a sanitary “health protection” zone. 10. On 14 September 2000 Yaremche’s Sanitary Officer banned burials in the new cemetery as its location was in breach of applicable sanitary standards. 11. On 30 August 2001 the Executive Committee took a further decision proscribing burials in the new cemetery. 12. On an unspecified date in 2001 the applicant received authorisation from the municipality to bury her son in the old cemetery in Yamna (“the old cemetery”) in exchange for a promise not to contest the location of the new cemetery. 13. On 25 June 2002 the Executive Committee overturned its previous decision of 30 August 2001 (see paragraph 13 above) in response to complaints from St John’s congregation members and village residents that no other suitable burial ground was available. 14. On an unspecified date in 2002 the applicant instituted court proceedings seeking the revocation of the Executive Committee’s decision of 25 June 2002 and the prohibition of burials. She noted, in particular, that the distance between her house and the cemetery was less than twenty-five metres. That was in breach of applicable sanitary rules, which were justified by the fact that toxins from decomposing corpses could seep into the ground water and contaminate an area around the cemetery as large as 300 metres. Locating the cemetery so close to the applicant’s home had put her life and health at risk. The applicant also claimed non-pecuniary damages for her sufferings. 15. On 16 January 2003 the Yaremche Court found the decision of 25 June 2002 unlawful as the applicant’s house had been located within the sanitary health protection zone, which had been illegal. It ordered the Executive Committee to proscribe the burials. The judgment was not appealed against and became final. 16. On 3 March 2003 the Yaremche Bailiffs’ Service initiated enforcement proceedings, however, no steps preventing the burials were taken. 17. On 23 June 2003 the acting chief sanitary officer of the IvanoFrankivsk Region sent a letter to the mayor of Yaremche, demanding that he take urgent measures to bring the new cemetery in Yamna into conformity with the applicable law. He noted, in particular, that the 300metre sanitary health protection zone had been established to prevent water and soil pollution and the spread of infectious diseases. Allowing burials ten metres from the applicant’s house was not in conformity with sanitary rules. 18. On 24 July 2003 the Yaremche Court found that the Bailiffs’ Service had failed to act to enforce the judgment of 16 January 2003, but dismissed the applicant’s claim for non-pecuniary damages arising from the bailiffs’ inaction. 19. On 26 August 2003 the enforcement proceedings concerning the judgment of 16 January 2003 were terminated on the grounds that enforcement was impossible because the Executive Committee members refused to vote to proscribe the burials. 20. In the meantime, on 14 August 2003 the applicant instituted further proceedings against the Yaremche Council, seeking to compel it to stop burials and to pay her non-pecuniary damages for her suffering. 21. On 18 March 2004 the Yaremche Court found for the applicant in part. It noted that the Yaremche Council had failed to take all the necessary steps to prevent unlawful burials on the disputed land and ordered it to take the requisite measures. At the same time, the applicant’s claim for damages was rejected. The decision became final and enforcement proceedings were instituted. 22. At many of its meetings the Executive Committee discussed draft decisions banning burials, however, they were never approved by a vote as no suitable alternative location for the cemetery could be found. 23. On several occasions the Bailiffs’ Service imposed fines on the Yaremche Council for failure to comply with the judgments. 24. On 28 February 2005 the enforcement proceedings were terminated because of the impossibility of enforcement as members of the Council refused to vote against the burials. 25. On 26 July 2005 the Yaremche Council informed the applicant that it had been unable to relocate the cemetery in view of the unavailability of other suitable land. It was further noted that they were continuing to look for alternatives and, in particular, were negotiating to acquire a plot from the Yamna forestry authority. 26. On 9 August 2005 the applicant requested that the mayor of Yaremche consider resettling her family and proposed that the Town Council acquire another house for her. She suggested a specific house that was for sale at the material time, which, according to her, was comparable to her present house. 27. On 15 September 2005 the Executive Committee informed the applicant that the municipal authorities were ready to consider the applicant’s resettlement as an option. However, the town had no funds in its budget to buy the proposed house at that time. 28. On 9 August 2006 the Ivano-Frankivsk Regional Bailiffs’ Service refused to re-institute the enforcement proceedings in view of the impossibility of enforcement. 29. According to the Government, the municipality has not authorised any burials in the new cemetery since 2011 owing to the applicant’s continued protests and the old cemetery has been used instead.