Lexploria

Information Note on the Court’s case-law 230

June 2019

Tolić and Others v. Croatia (dec.) - 13482/15

Decision 4.6.2019 [Section I]

Article 8

Positive obligations

Article 8-1

Respect for home

Respect for private life

Alleged failures of public authorities in respect of applicants’ homes water-supply contamination caused by their private developers : inadmissible

Facts – The applicants had bought newly de veloped flats. In the middle of 2006, two water analyses were initially conducted before some of the applicants began to move into the flats. Mineral oils were not tested in the first, State test, but were part of the second test ordered by one of the cons tructors (all private companies) a month later. One of the four flats tested showed that contamination from mineral oils was slightly above the acceptable maximum level.

Throughout the last quarter of 2006 new samples taken showed levels of mineral oils ri sing to dozens and then hundreds of times the permitted maximum.

Between June and December 2006 the applicants moved into the flats. In February 2007 a permit for use of the building was issued on the basis of the two initial tests.

Over time, the running water gave off a strong odour and left greasy traces. The applicants complained before the municipal water-supply authorities. New analyses were carried out in 2007 and 2008, showing abnormal and increasing levels of mineral oils. Th e authorities provided assistance and advised residents to use the water solely for flushing their toilets. Several months later, the water was officially declared unsafe for consumption. Investigations showed that the cause lay within the construction of the building itself.

The applicants acted in three ways:

(i) they requested, albeit unsuccessfully, for the permit of use to be revoked, but they never brought the matter before the administrative courts;

(ii) they sought to have various individuals an d companies held criminally liable; prosecutions were dropped in some cases but others were indicted and the related proceedings are still ongoing;

(iii) they brought claims for damages before the civil courts. Courts at first and second instance ruled in favour of the applicants: the three defendant companies were found liable. The proceedings are currently pending before the Supreme Court.

The applicants allege that they were exposed to serious environmental danger for several years, and complain that th e State failed to adequately and effectively respond to the matter.

Law – Article 8: The allegations of environmental harm in the instant case did not, as such, relate to the State’s involvement in industrial pollution. The water contamination had not been caused by the State but by private companies. The Court’s task in such a situation was, therefore, to assess whether the State had taken all reasonable measures to secure the protection of the applicants’ rights under Article 8.

(a) Upstream administrative permissions – The applicants acquired the flats and moved in before the permit for use had been issued. At that time, no odour had yet been detectable.

Two water analyses had been conducted: the so-called A-analysis and a subsequen t one at the request of the constructor’s sub-contracted company.

While the applicants had submitted that the first analysis was incomplete because it did not include testing for the presence of mineral oils, the Court noted that, at the time, A-analyses b y default did not include such a feature; it was only later that an instruction was issued stating that tests should also check for mineral oils. Moreover, out of four flats only one was concerned by the slightly increased quantity of mineral oils found in the second analysis.

It was on the basis of those analyses and the consent of the sanitary inspector, inter alia , that the permit for use had been issued. It was also on the same basis that the State Attorney decided that there were no grounds for prosec uting the public official that signed the permit.

Although the applicants had filed a request for the permit to be revoked, they had failed to pursue it in accordance with the conditions set out in the relevant legislation.

(b) Authorities’ response – On ce the applicants had started complaining about the water, the State had undertaken a series of measures, including the following:

– at the end of 2006 it had decided to cover the expenses related to finding out the cause of the water contamination and t he water bills;

– it had established a crisis committee composed of experts, in order to identify the cause of the water contamination;

– it had had hundreds of water samples analysed by various institutes;

– it had provided the applicants with drinki ng-water tanks; and

– it had had the water pipes hyper-chlorinated on several occasions, in an attempt to remove the contamination.

Even though it was not until June 2008 that the water was first declared unfit for human consumption and that it posed a health risk, it was as early as August 2007 that the respondent State had informed the applicants that the water was not safe to use, and that it should be used only for flushing toilets.

(c) Criminal liability mechanisms – The acts alleged by the applic ants did not consist of physical violence. Therefore, as disagreeable as the water contamination must have been for the applicants, there was no obligation under Article 8 of the Convention for the domestic authorities to effectively apply criminal-law mec hanisms; civil remedies sufficed.

Nevertheless, the State Attorney had compiled a criminal case file in respect of the water contamination in issue even before the applicants had lodged their criminal complaint, and had undertaken a number of actions rela ted thereto. He had also conducted an investigation in this regard, including in respect of persons against whom the applicants had not lodged a criminal complaint, and issued an indictment against a number of persons.

(d) Civil liability mechanisms – A n umber of forensic expert reports had been ordered, and a number of witnesses and expert witnesses heard; the volume of the domestic file amounted to several thousand pages. The exact cause of the contamination had been established. While civil proceedings were still pending, and the amount of compensation had not yet been determined, the applicants themselves had stressed that their complaints did not concern the civil proceedings.

In sum, the respondent State had taken all reasonable measures to secure the protection of the applicants’ rights.

Conclusion : inadmissible (manifestly ill-founded).

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