FIRST SECTION
\nDECISION<\/p>\n
Application no. 43391\/16
\nZorica TURKOVI\u0106 and Others
\nagainst Croatia<\/p>\n
The European Court of Human Rights (First Section), sitting on 10 July 2018 as a Committee composed of:<\/p>\n
Kristina Pardalos, President,
\nKsenija Turkovi\u0107,
\nPauliine Koskelo, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 22 July 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0A list of the applicants is set out in the appendix. They were all represented by L. Horvat, a lawyer practising in Zagreb.<\/p>\n 2.\u00a0\u00a0The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background to the case<\/em><\/p>\n 4.\u00a0\u00a0The applicants live in the same household in the vicinity of a waste disposal site, Jaku\u0161evac-Prudinec (hereinafter, \u201cthe disposal site\u201d). At present, this is the main waste disposal site for the City of Zagreb.<\/p>\n 5.\u00a0\u00a0The disposal site was first created in the 1960s, when those living in nearby areas started unlawfully disposing of their waste there. Studies conducted in the 1980s showed that there was a threat of groundwater pollution, and thereafter the local authorities commenced a campaign to put the disposal site in order. Until 2002 a waste incineration plant operated on the spot, allegedly without a sufficient legal basis.<\/p>\n 6.\u00a0\u00a0In the period between 1997 and 2003 a number of permits for the construction of a waste disposal system in the Jaku\u0161evac-Prudinec area were issued. In 2003 the City of Zagreb conducted comprehensive remediation of the environmental situation in the area at that time. This eventually resulted in the disposal site being reduced from a site unlawfully occupying 80\u00a0hectares to a regulated waste management system occupying 54 hectares.<\/p>\n 7.\u00a0\u00a0At present, the disposal site consists of several waste disposal units. These units are waste disposal plots equipped with the relevant filters, protective layers and membranes put in place to prevent all types of pollution spreading from the site. The entrance and exit zones to the site are equipped with weighbridges used to record the weight of vehicles bringing waste to the site. All vehicles bringing waste are subject to an inspection, including via a device that automatically measures radioactivity at the entrance, in order to prevent the unauthorised disposal of waste. There are two automatic wheel-washing devices for vehicles at the exit to the site, used to prevent the spread of pollution and mud outside the disposal site. The disposal site is also equipped with a system designed to collect and manage landfill gas.<\/p>\n 8.\u00a0\u00a0Further important investments in the site, related in particular to the management of the landfill gas and waste water, and the reduction of odours and noise, are currently being implemented.<\/p>\n 2.\u00a0\u00a0Operation of the disposal site<\/em><\/p>\n 9.\u00a0\u00a0The first provisional operating permit for waste collection for the site was issued in December 2005, with a period of validity lasting until December 2009. The decision issuing the permit indicated that further measures related to managing waste disposal at the site should be put in place.<\/p>\n 10.\u00a0\u00a0In February 2010 an operating permit was issued with a period of validity lasting until the end of that year.<\/p>\n 11.\u00a0\u00a0In October 2010 the public company managing the site requested that the operating permit be extended. In July 2011 the request was rejected by the City of Zagreb on the grounds that the existence of the disposal site was not properly regulated in the relevant spatial planning documents, and that further measures for managing the waste disposal needed to be taken. However, the disposal of household waste at the site was not prohibited. That decision was upheld in April 2012 by the relevant ministry responsible for environmental protection, and eventually by the Administrative Court on 12 February 2013.<\/p>\n 12.\u00a0\u00a0In view of the above decisions, in October 2013 the ministry responsible for environmental protection prohibited the disposal site from operating, except with regard to the disposal of household waste.<\/p>\n 13.\u00a0\u00a0The spatial planning documents have since been amended so as to allow the disposal site to operate. This spatial planning arrangement is valid until the end of 2018.<\/p>\n 14.\u00a0\u00a0On 20 February 2014 a new operating permit was issued for waste collection at the site, with a period of validity lasting until 20 February 2015.<\/p>\n 15.\u00a0\u00a0On 9 March 2015 an operating permit valid until 31 December 2018 was issued for the site.<\/p>\n 16.\u00a0\u00a0In the meantime, in 2014, before the operating permit had been issued, a public debate and consultation with the local community had been organised concerning the operation of the site. Following an administrative dispute instituted by a local environmental organisation concerning an environmental permit for the site, the environmental permit was finally regulated in September 2016. The applicants did not take part in any of those proceedings.<\/p>\n 3.\u00a0\u00a0Studies related to the disposal site and inspection measures<\/em><\/p>\n 17.\u00a0\u00a0The operation of the site was subject to constant monitoring and inspection. Two parameters monitored in particular occasionally exceeded the permitted levels: hydrogen sulphide, which creates odours; and PM10 particles, which are usually present in urban areas as a result of coal and firewood consumption for heating. According to the available measurements for 2016, in some places in the wider area of Zagreb the level of PM10 particles exceeded the permitted limits on more occasions than in the area where the disposal site was located. Moreover, the measurements for 2017 showed that in some areas of Zagreb the level of PM10 particles was on some occasions significantly higher than in the area of the disposal site.<\/p>\n 18.\u00a0\u00a0The monitoring of the environmental parameters at the site is conducted by two independent private companies, company E. and company I., which have contracts with the City of Zagreb. In 2015 company E. found that the concentration of hydrogen sulphide in the air was above the permitted level on several occasions. The other measured parameters were satisfactory. In the same year, company I. found that the level of PM10 particles in the air exceeded the acceptable level on sixteen occasions. Other measurements were satisfactory. However, the air quality was classified as being second grade.<\/p>\n 19.\u00a0\u00a0An environmental study conducted in 2010 found that there was a potential environmental threat from the disposal site. A further environmental study carried out in 2016 found, amongst other things, that even the maximum levels of hydrogen sulphide measured at the site were not damaging to the health of the local population, but did create odour\u2011related nuisance. The study also found that the level of PM10 particles in the air was within the average parameters for other urban environments in the continental part of the country, and did not have a dominant effect on the quality of life in the area.<\/p>\n 20.\u00a0\u00a0The noise measurements at the site by companies E. and B. did not show that the noise exceeded the permitted levels for urban areas.<\/p>\n 21.\u00a0\u00a0In 2012 and 2013 the relevant agencies reacted several times to individual complaints from people living in the area surrounding the disposal site. In some instances, it was noted that a smell was emanating from certain parts of the site, so further measures were ordered in the context of inspections, such as covering up collected stacks of waste. These measures were implemented, as noted in follow-up inspections.<\/p>\n 22.\u00a0\u00a0On the basis of a joint inspection agreement signed by various inspection agencies working in the field, joint inspections of the site were conducted in 2013 and 2016.<\/p>\n 23.\u00a0\u00a0The 2013 joint inspection found that, at that time, the disposal site did not have a valid operating permit (see paragraphs 10-11 above). The inspection also found that there was a smell and dust surrounding the site. The levels of hydrogen sulphide in the air and PM10 particles were increased, so the air quality was found to be second grade. However, it was noted that farms with livestock located in the area and traffic contributed to this. The sanitary inspection found failures in the use of chemicals in the waste disposal process, and this was sanctioned as a minor offence. The water inspection found occasional increases in the level of nitrates and nitrites in the water, but did not consider that this affected the quality of the water. It was also suggested that the issue could be resolved by putting in place an additional system of protection, which has since been implemented.<\/p>\n 24.\u00a0\u00a0The 2016 inspection found that the relevant measures for managing the site had been put in place and that further steps had been taken to reduce the harmful emissions from the site. It also found that in 2015 the air quality had been second grade due to hydrogen sulphide in the air and PM10 particles.<\/p>\n 25.\u00a0\u00a0In May 2017 a further joint inspection was carried out by the Ministry of the Environment and the Ministry of the Interior. According to the information provided by the Government, the inspection found no irregularities in the operation of the disposal site.<\/p>\n 26.\u00a0\u00a0Another inspection, carried out in October 2017, concerned the assessment of the composting process at the site, which was found to be in accordance with the relevant regulations.<\/p>\n 27.\u00a0\u00a0The disposal site is subject to further continuous supervision.<\/p>\n 4.\u00a0\u00a0Measures taken to alleviate the adverse effects of the disposal site on the local community<\/em><\/p>\n 28.\u00a0\u00a0On 13 December 2001 the City of Zagreb issued a decision on pecuniary compensation for the owners of property located in the vicinity of the disposal site, in respect of the reduction in the market value of their property. The amount of pecuniary compensation is based on different criteria set out in the decision. The period of validity of that decision is constantly extended. The last decision was issued in April and November 2017.<\/p>\n 29.\u00a0\u00a0On 5 June 2014 the City of Zagreb issued a decision on pecuniary compensation for those living in the vicinity of the disposal site, in respect of the reduction in their quality of life. That compensation is to be paid in instalments until the closure of the site. The last decision to that effect was issued in March 2018.<\/p>\n 30.\u00a0\u00a0The City of Zagreb is also investing in infrastructure in the area in question, and has allowed the people living there to have various concessions, such as the right to have farm animals. They also do not have to pay for waste collection services.<\/p>\n 5.\u00a0\u00a0Particular circumstances of the applicants\u2019 case<\/em><\/p>\n 31.\u00a0\u00a0The applicants live in a house owned by the first applicant. The parties disagree on the exact distance between the house and the waste disposal site. According to the Government, the house is located some 628.10 metres from the place where the waste is currently disposed of, and 731.97 metres from the highest point of the disposal site. According to the applicants, the house is located some 370 metres from the disposal site.<\/p>\n 32.\u00a0\u00a0In October 2002 the first applicant, as the owner of the house, signed a contract with the City of Zagreb regarding the pecuniary compensation to be paid to her for the reduction in the market value of her property, in accordance with the City of Zagreb\u2019s decision (see paragraph 28 above). On the basis of this contract, she received 278,995.14\u00a0Croatian kunas (HRK approximately 37,200 euros (EUR) at the relevant time) in instalments.<\/p>\n 33.\u00a0\u00a0The first applicant signed a further contract with the City of Zagreb regarding the pecuniary compensation to be paid to her for the reduction in the market value of her property, on the basis of which she received HRK\u00a017,790.12 (approximately EUR\u00a02,730 at the relevant time) in total.<\/p>\n 34.\u00a0\u00a0She also signed another contract in June 2014 regarding the pecuniary compensation to be paid to her for the reduction in the market value of her property, on the basis of which she was to receive HRK\u00a0207,802.24 (approximately EUR 27,000 at the time when the contract was signed) in compensation in instalments, together with statutory default interest. This contract was to be executed within a period of five years, and so far the first applicant has received HRK 134,043.57 (approximately EUR\u00a018,180).<\/p>\n 35.\u00a0\u00a0Moreover, on the basis of a further annex to the contract regarding the pecuniary compensation to be paid to her for the reduction in the market value of her property, the first applicant received the sum of HRK 48,779.76 (approximately EUR 6,600).<\/p>\n 36.\u00a0\u00a0All the applicants have the right to compensation in respect of the reduction in their quality of life, in accordance with the City of Zagreb\u2019s decision of June 2014 (see paragraph 29 above). So far, each of them has received HRK 17,136.45 (approximately EUR 2,300) and an additional amount of HRK 5,384 (approximately EUR 730).<\/p>\n 37.\u00a0\u00a0Moreover, according to a calculation provided by the Government, the fact that the applicants have not been required to pay for waste collection services since 2003 means that they have saved a sum equivalent to HRK 38,481.27 (approximately EUR 5,100).<\/p>\n 6.\u00a0\u00a0Complaints made by the applicants<\/em><\/p>\n 38.\u00a0\u00a0In November 2012 the fifth applicant informed the police that there was a fire at the disposal site. The police did not find any fire, and the fifth applicant explained that he had in fact called them because of the odour coming from the site, and that he had hoped that the environmental inspection agency would come with the police.<\/p>\n 39.\u00a0\u00a0In October 2014 the fifth applicant again called the police, complaining about the odour coming from the site, but was advised to contact the relevant environmental agencies.<\/p>\n 40.\u00a0\u00a0On 29 May 2014 the fifth applicant lodged a criminal complaint with the Zagreb Municipal State Attorney\u2019s Office (Op\u0107insko dr\u017eavno odvjetni\u0161tvo u Zagrebu) against unidentified responsible officials of the City of Zagreb. He alleged that, owing to waste being dumped illegally on various occasions, the disposal site had spread to the area near his house, and posed a threat to the lives and well-being of all individuals living in the vicinity. In support of his claims, he submitted the 2010 environmental study concerning the disposal site (see paragraph 19 above).<\/p>\n 41.\u00a0\u00a0Following a comprehensive investigation into the fifth applicant\u2019s complaints, on 5 July 2017 the Zagreb Municipal State Attorney\u2019s Office rejected the criminal complaint. It found, on the basis of the numerous inspections conducted at the site and interviews with all those concerned, that the relevant officials of the City of Zagreb always took the necessary measures to control the operation and management of the disposal site. The Zagreb Municipal State Attorney\u2019s Office also pointed out that the relevant agencies that continuously supervised the site had not found that there were emissions or other irregularities capable of causing long-lasting and severe damage to the environment or endangering people\u2019s lives or health. It therefore found that the elements of criminal responsibility in respect of the City of Zagreb\u2019s officials had not been established.<\/p>\n 42.\u00a0\u00a0In 2016 the applicants also informed various ministries of their case and the environmental hazards related to the operation of the disposal site. They received replies concerning the inspections carried out and measures taken by the relevant ministries in relation to the matter.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Relevant domestic law<\/em><\/p>\n 43.\u00a0\u00a0Environmental protection in the context of waste disposal is regulated in particular by the following legal instruments:<\/p>\n –\u00a0\u00a0Articles 35 and 70 of the Constitution (Ustav Republike Hrvatske, Official Gazette, no. 56\/1990, with further amendments);<\/p>\n –\u00a0\u00a0The Act on Ratification of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Official Gazette-International Contracts 1\/2007);<\/p>\n –\u00a0\u00a0The Waste [Management] Act (Zakon o otpadu, Official Gazette no.\u00a0151\/2003, with further amendments and versions);<\/p>\n –\u00a0\u00a0The Sustainable Waste Management Act (Zakon o odr\u017eivom gospodarenju otpadom, Official Gazette no. 94\/2013, with further amendments);<\/p>\n –\u00a0\u00a0The Environmental Protection Act (Zakon o za\u0161titi okoli\u0161a, Official Gazette no. 80\/2013, with further amendments);<\/p>\n –\u00a0\u00a0The Construction Act (Zakon o gradnji, Official Gazette no. 52\/1999, with further amendments);<\/p>\n –\u00a0\u00a0The Spatial Planning Act (Zakon o prostornom ure\u0111enju, Official Gazette no. 30\/1994, with further amendments and versions);<\/p>\n –\u00a0\u00a0The Air Protection Act (Zakon o za\u0161titi zraka, Official Gazette no.\u00a0130\/2011, with further amendments);<\/p>\n –\u00a0\u00a0Waste Management Plans of the Republic of Croatia for the periods 2007-2015 and 2017-2022 (Plan gospodarenja otpadom Republike Hrvatske, Official Gazette nos. 85\/2007 and 3\/2017);<\/p>\n –\u00a0\u00a0The ordinance on waste handling requirements (Pravilnik o uvjetima za postupanje s otpadom, Official Gazette no. 123\/1997, with further amendments);<\/p>\n –\u00a0\u00a0The ordinance on waste management (Pravilnik o gospodarenju otpadom, Official Gazette no. 3\/2007, with further amendments);<\/p>\n –\u00a0\u00a0The ordinance on waste disposal methods and conditions, disposal site categories and conditions (Pravilnik o na\u010dinima i uvjetima odlaganja otpada, kategorijama i uvjetima rada za odlagali\u0161ta, Official Gazette no.\u00a0114\/2015);<\/p>\n –\u00a0\u00a0The ordinance on the maximum noise levels permitted in areas where people live and work (Pravilnik o najvi\u0161im dopu\u0161tenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 145\/2004);<\/p>\n –\u00a0\u00a0The regulation on the recommended and borderline limit values of air quality (Uredba o preporu\u010denim i grani\u010dnim vrijednostima kakvo\u0107e zraka, Official Gazette no. 101\/1996);<\/p>\n –\u00a0\u00a0The regulation on the limit values of air pollutants from fixed sources (Uredba o grani\u010dnim vrijednostima one\u010di\u0161\u0107uju\u0107ih tvari u zraku iz nepokretnih izvora, Official Gazette no. 117\/2012, with further amendments);<\/p>\n –\u00a0\u00a0The regulation on the procedure for determining consolidated conditions for environmental protection (Uredba o postupku utvr\u0111ivanja objedinjenih uvjeta za za\u0161titu okoli\u0161a, Official Gazette no. 114\/2008);<\/p>\n –\u00a0\u00a0The regulation on information and public participation in matters of environmental protection (Uredba o informiranju i sudjelovanju javnosti i zainteresirane javnosti u pitanjima za\u0161tite okoli\u0161a, Official Gazette no. 64\/2008).<\/p>\n 44.\u00a0\u00a0In addition to the above, the Property Act (Zakon o vlasni\u0161tvu i drugim stvarnim pravima, Official Gazette nos. 91\/1996, with further amendments) provides as follows:<\/p>\n Emissions<\/p>\n Section 110<\/p>\n \u201c(1)\u00a0\u00a0No one may exploit or use a property in a manner causing smoke, unpleasant odours, soot, sewage outflow, subsidence, noise or other nuisance to reach the property of another, either accidentally or in the nature of that use, if, given the purpose of the property, [such emissions] are excessive in place and time, cause more substantial damage or are prohibited under the relevant law (excessive indirect emissions).<\/p>\n (2)\u00a0\u00a0The owners of properties exposed to excessive indirect emissions are authorised to request the owner of the property from which such emissions emanate to eliminate the cause of the emissions and to compensate them for the resulting damage, as well as to refrain from any activities causing the excessive emissions until all measures required to eliminate the possibility of excessive emissions have been taken.<\/p>\n (3)\u00a0\u00a0Without prejudice to the provision of subsection 2 of this section, where excessive emissions are the product of activities authorised by the competent authority, the owners of the property exposed [to those emissions] do not have the right to request the cessation of the activity as long as the relevant permission [for the emissions] exists; however, they are authorised to claim compensation for damage caused by the emissions, as well as to take appropriate measures to prevent excessive emissions in the future or to minimise them.<\/p>\n (4)\u00a0\u00a0Unless there is a special legal basis, the owner of a property should not in any way have to endure smoke, unpleasant odours, soot, sewage outflow, subsidence, or noise (direct emissions) in relation to his real property, and he is authorised to request the cessation of the emissions and compensation for any damage sustained.<\/p>\n (5)\u00a0\u00a0An owner whose property is in foreseeable danger of being exposed to direct or indirect emissions from another property which he should not otherwise have to endure is authorised to require the necessary interim measures.\u201d<\/p>\n Protection from nuisance<\/p>\n Section 167<\/p>\n \u201c(1)\u00a0\u00a0If a third party unlawfully disturbs the owner [of a property], without depriving him of his possessions, the owner may request that the court issue an injunction.<\/p>\n (2)\u00a0\u00a0In order to exercise his right referred to in subsection 1 of this section in courts or in proceedings before another competent authority, the owner has to prove his ownership and that the third party has caused nuisance; and if the third party claims to have the right to carry out the impugned activity, he or she bears the burden of proof.<\/p>\n (3)\u00a0\u00a0If damage is sustained as a result of the nuisance referred to in subsection 1 of this section, the owner is entitled to claim compensation in accordance with the general rules governing compensation for damage … \u201d<\/p>\n 45.\u00a0\u00a0The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette no. 35\/2005, with further amendments), reads as follows:<\/p>\n Request for elimination of risk of damage<\/p>\n Section 1047<\/p>\n \u201c(1)\u00a0\u00a0Any person may request the elimination of a major source of danger for him or her or for another person, as well as the cessation of activities causing disturbance or a risk of damage, if such disturbance or damage cannot be prevented by applying the appropriate measures.<\/p>\n (2)\u00a0\u00a0The court shall order, at the request of an interested party, the taking of appropriate action to prevent the occurrence of damage or disturbance, or to eliminate a source of danger, at the expense of the possessor of such a source of danger, if the latter fails to do so himself or herself.<\/p>\n (3)\u00a0\u00a0If damage occurs while performing an activity in the general interest, for which a permit of the competent authority has been obtained, one may seek compensation for such damage that exceeds the usual limits.<\/p>\n (4)\u00a0\u00a0However, in the case [referred to in subsection 3], [the claimant] can request the taking of the necessary measures to prevent damage or alleviate its impact.\u201d<\/p>\n 46.\u00a0\u00a0Section 1047 of the above-cited 2005 Civil Obligations Act corresponds to section 156 of the 1991 Civil Obligations Act (Official Gazette no. 53\/1991, with further amendments).<\/p>\n 47.\u00a0\u00a0The rights under the cited provisions of the Property Act and the Civil Obligations Act are enforced through civil proceedings in accordance with the Civil Procedure Act (Zakon o parni\u010dnom postupku, Official Gazette no. 53\/1991, with further amendments).<\/p>\n 48.\u00a0\u00a0Article 196 of the Criminal Code (Kazneni zakon, Official Gazette no. 125\/2011, with further amendments) provides as follows:<\/p>\n \u201c(1)\u00a0\u00a0Whoever, contrary to the relevant law, in one or more apparently linked deliveries performs an unauthorised traffic of waste in a quantity which is more than negligible, shall be punished by imprisonment of up to two years.<\/p>\n (2)\u00a0\u00a0Whoever, contrary to the relevant law, discards, disposes of, collects, stores, processes, imports, exports or transports waste, or acts as an intermediary in these actions or manages them in any way or acts in a manner which may permanently or to a significant extent threaten the quality of air, soil, underground life, water or sea, or to a significant extent or in a wider area threaten animals, plant life or fungi or endanger life and health of people, shall be punished by imprisonment from six months to five years.<\/p>\n (3)\u00a0\u00a0Whoever commits the criminal offence referred to in paragraph 1 of this Article by negligence, shall be punished by imprisonment of up to one year.<\/p>\n (4)\u00a0\u00a0Whoever commits the criminal offence referred to in paragraph 2 of this Article by negligence, shall be punished by imprisonment of up to two years.\u201d<\/p>\n 2.\u00a0\u00a0Relevant practice<\/em><\/p>\n 49.\u00a0\u00a0In judgment G\u017e-912\/07-2 of 11 December 2007, the Koprivnica County Court, acting as a court of appeal, ruled in favour of claimants who had lodged a civil claim under section 156 of the Civil Obligations Act (see paragraph 45 above) against a public company managing public roads, in respect of nuisance and damage caused by the fact that a road had been built very close to the claimants\u2019 house. That court upheld an order that the necessary measures should be taken to prevent further nuisance and damage and to compensate for the damage already caused.<\/p>\n 50.\u00a0\u00a0In its judgment Rev-1198\/2012-3 of 17 June 2015, the Supreme Court clarified the meaning of the term \u201cdamage that exceeds the usual limits\u201d under section 1047(3) of the Civil Obligations Act (see paragraph 45 above). It stressed that when an activity was performed in the general interest, compensation for damage might only be claimed if the damage caused related to a disturbance surpassing the permitted limits of nuisance for the activity in question. Such damage must then be compensated for fully.<\/p>\n 51.\u00a0\u00a0In judgment Rev-1129\/2008-2 of 6 July 2010, the Supreme Court clarified the scope of the protection provided under section 110 of the Property Act (see paragraph 44 above). It stressed that it concerned nuisance originating from another property which surpassed the acceptable limits of nuisance originating from an activity for which the property was used, taking into account the place and time of the activity. It also explained that the claimant must prove that he or she had suffered damage.<\/p>\n 52.\u00a0\u00a0For more domestic case-law, see Cokari\u0107 and Others v. Croatia (dec), no. 33212\/02, 19 January 2006.<\/p>\n COMPLAINTS<\/strong><\/p>\n 53.\u00a0\u00a0The applicants complained, under Articles 8 and 13 of the Convention, of a failure of the State to protect them from the threat of ecological disaster posed by a nearby waste disposal site.<\/p>\n THE LAW<\/strong><\/p>\n 54.\u00a0\u00a0Complaining of a failure of the State to protect them from an ecological disaster, the applicants relied on Articles 8 and 13 of the Convention, which provide as follows:<\/p>\n Article 8<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n Article 13<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 55.\u00a0\u00a0The Government argued that the applicants\u2019 complaint was essentially an actio popularis related to their dissatisfaction with the work of the disposal site, and that they did not really have victim status under the Convention. The Government also contended that the applicants had failed to exhaust the domestic remedies. In this connection, the Government stressed that the only remedy used by the applicants had been a criminal complaint, which was not, in the Government\u2019s view, an adequate remedy for their grievances related to the operation of the site. At the same time, they had failed to use a number of effective and available domestic remedies. In particular, they had failed to participate in the public consultation process concerning the operation of the site, and they had failed to take their complaints to the environmental inspectorate and pursue those complaints through administrative proceedings. What is more, they had failed to use the remedies available in the civil courts by seeking protection and, if appropriate, compensation for damage as provided for in section 110 of the Property Act and section 1047 of the Civil Obligations Act. The Government pointed out that the latter remedy, known in the domestic legal order as an \u201cenvironmental action\u201d, had been found to be effective in the case of Cokari\u0107 and Others (cited above). The Government also stressed that the applicants had failed to use a constitutional complaint before the Constitutional Court.<\/p>\n 56.\u00a0\u00a0The Government further argued that, in relation to their complaints regarding the nuisance allegedly emanating from the site, the applicants had failed to comply with the six-month time-limit for bringing their complaints before the Court. Moreover, in the Government\u2019s view, the level of such nuisance and its effects on the applicants had not reached the minimum threshold of severity to bring Article 8 into play. In any event, the Government considered that the applicants\u2019 complaints were unsubstantiated and manifestly ill-founded.<\/p>\n 2.\u00a0\u00a0The applicants<\/em><\/p>\n 57.\u00a0\u00a0The applicants submitted that it was more than obvious from the facts of the case that they had been directly affected by the nuisance emanating from the disposal site. Thus, they had victim status under the Convention and their complaints could not be considered an actio popularis. The applicants further argued that by lodging a criminal complaint they had properly exhausted the available and effective domestic remedies for their complaints. In their view, the use of that remedy and the sanctioning of those responsible could have resulted in their situation being resolved. Moreover, had the criminal proceedings been instituted, they could have lodged a civil claim in those proceedings. Thus, after using that adequate and effective remedy, they had not been required to use the other remedies suggested by the Government. The applicants also considered that various complaints by their neighbours to the inspection agencies had not had any effect, and thus they had not used those remedies, as they considered them ineffective. In the applicants\u2019 view, a complaint before the Constitutional Court was also not an effective remedy, as it could only be lodged against an individual act and not a harmful situation, which was the issue in their case.<\/p>\n 58.\u00a0\u00a0The applicants further contended that they had duly complied with the six-month time-limit for bringing their complaints to the Court after lodging the criminal complaint with the relevant State Attorney\u2019s Office. In the applicants\u2019 view, the threshold of severity of the nuisance and the adverse effects of the operation of the site on their well-being had reached the requisite level of severity under Article 8. Moreover, they argued that the impugned situation was in breach of Articles 8 and 13 of the Convention.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 59.\u00a0\u00a0The Court finds that it is not necessary to address all the Government\u2019s objections, as the applicants\u2019 complaints are inadmissible for the following reasons.<\/p>\n 60.\u00a0\u00a0The Court refers to the general principles on the exhaustion of domestic remedies set out in the cases of Vu\u010dkovi\u0107 and Others v. Serbia ((preliminary objection) [GC], nos. 17153\/11 and 29 others, \u00a7\u00a7 69-77, 25\u00a0March 2014), and Gherghina v. Romania ([GC] (dec.), no. 42219\/07, \u00a7\u00a7\u00a083-88, 9 July 2015).<\/p>\n 61.\u00a0\u00a0The Court would also stress that in some instances it has held that an applicant cannot be dispensed from the obligation to use a remedy found by the Court to be the most appropriate avenue to address a particular Convention grievance, irrespective of the particular domestic arrangement of the available remedies to address the substance of his or her complaint. Accordingly, in various contexts, including in environmental protection, when, from the perspective of the Court\u2019s case-law, applicants have failed to use the appropriate remedy and have instead used another remedy, the Court has declared their complaints inadmissible for non-exhaustion of domestic remedies (see, in the context of environmental protection, Cokari\u0107 and Others, cited above, and Pawlak v. Poland (dec.), no.\u00a029179\/06, 19\u00a0March 2013).<\/p>\n 62.\u00a0\u00a0In the case at issue, the only remedy which the applicants used was a criminal complaint before the State Attorney\u2019s Office against the officials of the City of Zagreb, a complaint alleging mismanagement and environmental hazards with regard to the operation of the site (see paragraph 40 above). That criminal complaint was rejected on the grounds that the relevant officials of the City of Zagreb always took the necessary measures to control the operation and management of the disposal site, and that the relevant agencies that continuously supervised the site had not found that there were emissions or other irregularities capable of causing long-lasting and severe damage to the environment or endangering people\u2019s lives or health. It was therefore considered that the elements of criminal responsibility in respect of the City of Zagreb officials had not been established (see paragraph 41 above).<\/p>\n 63.\u00a0\u00a0Taking into account that the Court would need cogent elements to lead it to depart from the findings of fact reached by the domestic authorities (see, for instance, B\u0103rbulescu v. Romania [GC], no.\u00a061496\/08, \u00a7\u00a0129, ECHR 2017 (extracts)), the Court has no reason to call into question the findings of the Zagreb Municipal State Attorney\u2019s Office, which were based on the examination of various reports of inspections conducted at the site and interviews with all those concerned.<\/p>\n 64.\u00a0\u00a0In any event, the Court does not consider that the solution to the difficulties complained of by the applicants in relation to the nuisance emanating from the disposal site lies in criminal prosecution and coercion. In its view, as already noted in other comparable cases concerning environmental nuisance (see, for instance, Cokari\u0107 and Others, and Pawlak, both cited above), the relevant remedy should instead be sought in relation to the available civil avenues capable of preventing and eliminating the excessive nuisance and compensating for the possible damage caused.<\/p>\n 65.\u00a0\u00a0It has already been observed in the Cokari\u0107 and Others case that such a remedy is provided for under the Civil Obligations Act (see paragraphs 45-46 above). It should also be noted that the domestic law provides for the possibility of such protection under the Property Act (see paragraph 44 above). Noting the domestic case-law concerning those two civil avenues (see paragraphs 49-52 above), the Court considers that they could have provided effective relief for the applicants\u2019 complaints. The applicants should therefore have filed a civil action with the competent domestic courts, yet they failed to do so.<\/p>\n 66.\u00a0\u00a0The Court therefore finds that the applicants have failed to exhaust the available and effective domestic remedies. Thus, their complaint under Article 8 of the Convention must be rejected as inadmissible under Article\u00a035 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n 67.\u00a0\u00a0With regard to the applicants\u2019 complaint of the lack of an effective remedy under Article 13, having regard to the reasoning and conclusions set out above, the Court finds that this complaint is manifestly ill-founded (see, for instance, Djaparidze v. Moldova (dec.), no. 32530\/07, \u00a7 37, 31 January 2012). It must therefore be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 6 September 2018.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Kristina Pardalos ________________<\/p>\n Appendix<\/p>\n 1.\u00a0\u00a0Zorica TURKOVI\u0106 is a Croatian national who was born in 1943, and lives in Zagreb;<\/p>\n 2.\u00a0\u00a0Ivana TURKOVI\u0106 is a Croatian national who was born in 1998, and lives in Zagreb;<\/p>\n 3.\u00a0\u00a0Kristian TURKOVI\u0106 is a Croatian national who was born in 2010, and lives in Zagreb;<\/p>\n 4.\u00a0\u00a0Damir TURKOVI\u0106 is a Croatian national who was born in 1966, and lives in Zagreb;<\/p>\n 5.\u00a0\u00a0Daniel TURKOVI\u0106 is a Croatian national who was born in 1976, and lives in Zagreb;<\/p>\n 6.\u00a0\u00a0Luka TURKOVI\u0106 is a Croatian national who was born in 2000, and lives in Zagreb;<\/p>\n 7.\u00a0\u00a0Marinela TURKOVI\u0106 is a Croatian national who was born in 1977, and lives in Zagreb;<\/p>\n 8.\u00a0\u00a0Melita TURKOVI\u0106 is a Croatian national who was born in 1970, and lives in Zagreb.<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n