PARTLY DISSENTING OPINION OF JUDGE VEHABOVI Ć

I am in agreement with the judgment of the Court except as to the finding that there has been no violation of Article 8 of the Convention.

The applicant complained that the (illegal) use of the land next to her house for burials had breached her rights guaranteed by Article 8 of the Convention, in particular on account of an elevated risk that her well water would be poisoned and because living in the immediate proximity of a functioning cemetery caused her serious psychological discomfort.

I consider that living in the immediate vicinity of the cemetery had greatly affected her ability to enjoy the amenities of her home and to lead a satisfactory private and family life. There was a real risk of contamination of the water, which caused her and her family anxiety on a daily basis. In hot weather unpleasant odours emanated from decomposing corpses. It was also emotionally difficult to live so close to the cemetery. Seeing frequent funeral processions and hearing people crying near the graves of their loved ones had had a profound impact on her mental state and that of the other members of her household, and had negatively affected their ability to relax in their yard or go about their daily business. Some of these elements are clearly subjective ones, but there are also a number of objective elements involved in this case. As the applicant ’ s yard was the only one adjacent to the cemetery, she and the other members of her family were the only ones who had suffered the adverse consequences to such a degree. There were no houses on the other three sides of the cemetery, only a river, a stream and a railway line.

In a number of cases, the Court has reiterated that Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence (see, among other authorities, Zammit Maempel v. Malta , no. 24202/10, § 36, 22 November 2011). The Court has stated on numerous occasions that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia , the physical and psychological integrity of a person (see, among other authorities, Pretty v. the United Kingdom , no. 2346 /02, § 61, ECHR 2002 ‑ III, and Otgon v. the Republic of Moldova , no. 22743/07, § 15, 25 October 2016). It also secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his or her personality (see, in particular, Smirnova v. Russia , nos. 46133/99 and 48183/99, § 95, ECHR 2003-IX (extracts)).

The concept of “home” as interpreted by the Court is the place, the physically defined area, where private and family life develops. Breaches of the right to respect for one ’ s home include those that are diffuse, such as noise, emissions, smells or other similar forms of interference. A serious interference may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see, in particular, Moreno Gómez v. Spain , no. 4143/02, § 53, ECHR 2004-X, and Zammit Maempel , cited above, § 36).

In a number of cases the Court has found Article 8 of the Convention applicable to complaints about environmental pollution and sensory nuisances affecting individuals ’ physical and psychological well-being and preventing them from enjoying their homes in such a way as to affect their private and family life adversely (see, among many others, López Ostra v. Spain , 9 December 1994, § 51, Series A no. 303 C; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII; and Fadeyeva v. Russia , no. 55723/00, §§ 68-70, ECHR 2005-IV).

An arguable claim under Article 8 may arise where an environmental hazard or nuisance attains a level of severity resulting in significant impairment of the applicant ’ s ability to enjoy his home, or his private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual ’ s health or quality of life (see, among other authorities, Dubetska and Others v. Ukraine , no. 30499/03, § 105, 10 February 2011, and Dzemyuk v. Ukraine , § 78).

The relevant test is whether it can be discerned, on the basis of the case file material as a whole, that the pollution or sensory nuisance complained of can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of the applicant ’ s home and the quality of his or her private and family life (see, among other authorities, Ivan Atanasov v. Bulgaria , no. 12853/03, §§ 66 and 75, 2 December 2010, and Dzemyuk , cited above, § 77).

It is apparent from the applicant ’ s submissions that there are two main aspects to her complaint. Firstly, she maintained that having a functioning cemetery on land next to hers could result in the by-products of decomposing corpses contaminating the surrounding area, notably the water in her well. Secondly, she referred to emotional disturbance, connected, in particular, to being exposed against her will to the sight of burials, the sound of mourning, and unpleasant smells that allegedly emanated from the cemetery in hot weather.

At the outset the Court found in Dzemyuk that locating a cemetery some thirty-eight meters from the applicant ’ s house in that case triggered the applicability of Article 8. Two main factors were applied in the Dzemyuk case: (a) the cemetery had been built in violation of the applicable domestic sanitary regulations and (b), according to the findings of an expert, the applicant ’ s well water had in fact contained high levels of E.coli bacteria, which were a health risk. While their origin was not established, it was not possible to rule out that the increased level of bacteria could be connected to the cemetery.

The applicant in the present case, as in Dzemyuk , resides in a mountainous settlement (Yamna) belonging to the Yaremche municipality, and she has no access to tap water.

It is clear from the applicant ’ s submissions and photographs that her house is located on land which is directly adjacent to the cemetery, lying some ten meters from its nearest boundary. Her well is located some twenty-five meters from the boundary and the first row of graves is about one meter from the wire mesh fence separating the cemetery from the applicant ’ s yard. Locating a burial ground in such a way (which is even closer to the applicant ’ s abode than that in Dzemyuk ) cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is less than one tenth of the 300-metre distance permissible under those rules. As can be seen from the letter of the sanitary doctor and also from various documents presented by the parties in the Dzemyuk case (§§ 10 and 12-14) those sanitary regulations were based on the opinion of domestic experts that the 300-metre “health protection zone” was necessary to prevent water and soil pollution.

In the present case the infiltration of poisonous substances into the soil or water could have happened suddenly and was not easily foreseeable or preventable. The applicant ’ s concern therefore about a potential health hazard connected to the cemetery can be said to have been objectively justified (compare also Hardy and Maile v. the United Kingdom , no. 31965/07, § 190, 14 February 2012), especially where, as can be seen from the available material, no system for monitoring the quality of the water or for taking the necessary measurements was ever put in place.

As regards the second aspect of the applicant ’ s complaint, namely the fact of being disturbed by exposure to the sight of funeral processions, the sound of mourning and unpleasant smells, there is no information concerning the frequency and duration of the funeral ceremonies, their loudness, or the number of people in attendance, but we all know how long a funeral ceremony takes and what kind of sounds it produces. Likewise, there is no information concerning the exact number of graves or people visiting them on a regular or occasional basis. There is also no empirical evidence that any smells emanated from the cemetery.

At the same time, it appears that the applicant ’ s complaint is linked not only, or not so much, to the measurable noise level or degree of disturbance but to its particular nature. Notably, she alludes, in the first place, to being inadvertently affected by emotions of great sadness when confronted with the sensory reminders of death and the loss of loved ones, and to feeling uncomfortable when going about her daily life around the house or in the yard in full view of grieving and mourning people.

In that connection, the notions of death, the loss of loved ones, and the relationship between the living and the dead are connected to very intimate aspects of a person ’ s personality. Emotional perceptions of those notions may differ considerably depending on one ’ s individual sensitivities, experience, religious, spiritual and ethical convictions, or cultural background. Likewise, traditions relating to honouring the dead, conducting funerals, and organising and maintaining burial sites may vary significantly from country to country and from one local community to another.

In numerous cases involving sensitive ethical, moral, cultural or spiritual issues, the Court has stated that the member States should enjoy a wide margin of appreciation in setting relevant policies (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I, and Wingrove v. the United Kingdom , 25 November 1996, § 58, Reports 1996 ‑ V). Similarly, in cases relating to town planning and environmental decision-making, the Court has consistently held that the margin of appreciation should be wide, given that national authorities are in principle better placed than an international court to evaluate local needs (see Buckley v. the United Kingdom , 25 September 1996, § 75, Reports 1996-IV, and Hatton and Others , cited above, § 97).

However, in the present case, I see no reason to doubt the sincerity of the applicant ’ s submissions concerning the adverse effect of a functioning cemetery on her psychological well-being and quality of life (compare Hatton and Others , cited above, § 118), notably in view of her persistent and significant investment over the years in the cause of having the cemetery closed. However, in the absence of more detailed objective data concerning the actual level of nuisance, what is notable is that the applicant ’ s subjective desire to be shielded from the psychological disturbance caused by the cemetery was in line with the requirements of nationally approved and longstanding planning regulations. In that light, the applicant may be said to have had a certain objective expectation that her subjective sensitivities would be protected. While it follows from the text of the applicable regulations that the 300-metre “health protection zone” was required for sanitary reasons, as indicated in the expert opinions referred to in Dzemyuk , the reduction of psychological pressure on the residents of nearby houses could also be a factor to take into consideration. Moreover, the fact that the rule on a 300-metre health protection zone had been in force for some time, since 1977 at least, could also have influenced popular culture concerning the acceptable distance between houses and cemeteries.

Examining the matter in the light of the p rinciples developed in its case ‑ law (see, for example, Dzemyuk , cited above, §§ 87-89) I consider that the finding of a breach of Article 8 in Dzemyuk (§§ 90-92) is equally pertinent to the case at issue.

Finally, I consider that finding a violation of Article 6 in this case is a step forward in the right direction, but a step that will remedy only the future situation of the applicant, while her previous situation will remain unresolved unless the Court finds a violation of Article 8 of the Convention. Article 8 is the logical, unwanted consequence of non-enforcement of a final domestic judgment – a consequence which should be remedied by the Court by way of finding a violation of that Article in accordance with its well ‑ established case-law in this area.