3401\/09<\/a><\/p>\nJudgment 6.9.2018 [Section V]<\/p>\n
Article 1 of Protocol No. 1<\/strong>
\nArticle 1 para. 1 of Protocol No. 1<\/strong>
\nPeaceful enjoyment of possessions<\/strong><\/p>\nUnlawful exposure of property to daily mine detonations in close proximity: violation<\/p>\n
Facts \u2013 The applicant owned parts of a plot of land and the buildings standing on it, including his home, in an area where the government decided to create an opencast coalmine close to applicant\u2019s village. An expropriation procedure was commenced in 1990 involving numerous properties, including the applicant\u2019s, to remove owners from the area to facilitate operation of the mine. After waiting for more than two years to receive his replacement property, the applicant requested that the appropriation be quashed, as he was entitled to do, and continued living in the home. Over the years, the mining operation expanded and at some point detonations were occurring within 160-180 meters of the applicant\u2019s home, despite the legal requirement to maintain a 500-meter \u201csanitation zone\u201d between non-industrial buildings, such as residential dwellings, and the mining operation.<\/p>\n
The applicant abandoned his property in 1997 when his family concluded that continuing to reside there was no longer safe due to cracks in the walls, collapse of the out-buildings, and daily shaking of the home. He unsuccessfully filed several domestic actions for damages. The domestic courts found that these daily detonations in close proximity to the applicant\u2019s property were in breach of domestic legislation. However, they were unable to establish a causal link between the detonations and the damage to his home since, due to the passage of time and the destruction of some documents, it had proved impossible to determine the distance between the house and the area where the detonations had been carried out in 1997, when he had abandoned his property.<\/p>\n
Law \u2013 Article 1 of Protocol No. 1: The Government had not shown that the authorities had intended to honour their legal obligations under the expropriation procedure. The applicant could therefore not be blamed for the expropriation procedure\u2019s failure. The mine had been managed by a company that was entirely State-owned. The company had not been engaged in ordinary commercial business, but instead in a heavily regulated field subject to environmental and health-and-safety requirements. It was significant that the decision to create the mine had been taken by the State, which had also expropriated numerous privately owned properties in the area to allow for its functioning. The company was thus the means of conducting a State activity. The authorities, through the failed expropriation of the applicant\u2019s property and the work of the mine under what was effectively State control, had been responsible for the applicant\u2019s property remaining in the area of environmental hazard, namely the daily detonations in close proximity to the applicant\u2019s home. That situation, which had led the applicant to abandon his property, amounted to State interference with the peaceful enjoyment of his \u201cpossessions\u201d. The detonations within the sanitation zone had been in manifest breach of domestic law. The interference with the peaceful enjoyment of the applicant\u2019s possessions had thus not been lawful for the purposes of the analysis under Article 1 of Protocol No. 1.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
The Court also found unanimously no violation of Article 6 \u00a7 1, as the decisions of the national courts, in particular their conclusion contested by the applicant as to the existence of a causal link between the detonation works at the mine and the damage to his property, had not reached the threshold of arbitrariness and manifest unreasonableness or amounted to a \u201cdenial of justice\u201d.<\/p>\n
Article 41: EUR 8,000 in respect of pecuniary and non-pecuniary damage.<\/p>\n