FIFTH SECTION

DECISION

Application no. 67480/16 Josef KUKLA and Jitka KUKLOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 11 May 2023 as a Committee composed of:

Carlo Ranzoni , President , Mattias Guyomar, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 67480/16) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 November 2016 by two Czech nationals, Mr Josef Kukla and Ms Jitka Kuklová, who were born in 1964 and 1938 respectively and live in Nelahozeves (“the applicants”) who were represented by Mr L. Šikola, a lawyer practising in Prague;

the decision to give notice of the complaints raised under Article 8 and Article 1 of Protocol No. 1 to the Czech Government (“the Government”), represented by their former Agent, Mr V.A. Schorm, of the Ministry of Justice, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns the alleged failure of the State to protect the applicants from environmental nuisance due to the close location of a high pressure pipeline to their family house in violation of the domestic safety rules. The applicants relied on Article 8 of the Convention and on Article 1 of Protocol No. 1.

2. Since 1972 the applicants’ family has owned real estate including a house built in 1926 and a garden, located in Nelahozeves. Years later, they learned that a high pressure gas pipeline, operational since 1950, had been installed 2.5 m from the house. No accurate measurement of the pipeline route was carried out until 1987. Inspection reports of 1999 and 2000 concluded that the pipeline was not capable of operating safely.

3. On 30 May and 14 June 2007, the gas company advised the first applicant that the pipeline had been constructed in line with the legislation then in force and with the previous owner’s consent. The latter had also received compensation for the established right of use. The letter also referred to a number of extraordinary safety measures put in place as part of the pipeline operation, including gas leak tests performed at intervals shorter than required by the technical rules. Finally, it indicated that a suitable alternative route was being sought.

4. In 2009 the applicants sought the removal of the pipeline, referring to the domestic rules on a required safety zone of 20 m and a protective zone of 4 m. On 29 May 2012 the Mělník District Court found that the required 20 m safety zone was not respected. It further noted that no immediate danger had been demonstrated but decided to apply the preventive principle and ordered the gas company to remove the pipeline within twenty-four months. The applicants’ subsequent appeals were rejected and on 22 May 2015 they lodged a constitutional appeal.

5. On 18 May 2016 the Constitutional Court rejected their claims on the grounds that in the absence of any substantiated and direct risk demonstrated by the applicants, non-compliance with the safety rules did not in itself suffice to conclude the existence of a real danger requiring the relocation of the pipeline, which constituted part of the regional infrastructure supplying gas to a large number of households. It further noted that the lower courts had properly assessed all the relevant facts, referring to their analysis of the specific measures taken by the defendant company to mitigate the absence of the mandatory safety zone, such as additional gas leak tests, checks and inspection of the pipeline in order to detect any risk or problem capable of putting at risk its functioning.

6. On 15 October 2015 the section of the high pressure pipeline on the applicants’ land was decommissioned. The pipes were purged of gas and encased in bentonite. This measure apparently fell under a comprehensive solution planned by the company since 2007 and aimed at a pipeline shift.

7. Referring to Article 8 of the Convention and to Article 1 of Protocol No. 1, the applicants complain of the authorities’ failure to protect their private and family life and their property from environmental nuisance arising from the close proximity to their family house of a high pressure gas pipeline, in violation of domestic safety regulations.

THE COURT’S ASSESSMENT

8. The Court considers that there is no need for it to examine the Government’s preliminary objections since the applicants’ complaints are in any event inadmissible for the following reasons.

9. The Court reiterates that the mere fact of non-compliance with the domestic regulations, namely the breach of the rules on security and safety zones on account of the presence on the applicants’ land of the gas pipeline erected prior to their introduction, is not sufficient for asserting that their rights under Article 8 have been interfered with. The Court must rather examine, on the basis of all the material in the file, whether the alleged nuisance was serious enough to affect adversely, to a sufficient extent, the applicants’ enjoyment of the amenities of their home and the quality of their private and family life (see, for example, Furlepa v. Poland (dec.), no. 62101/00 , 18 March 2008; and Dzemyuk v. Ukraine , no. 42488/02, § 77, 4 September 2014, with further references).

10. The Court accepts that the applicants might have been affected by the presence on their land, and in close proximity to their house, of a high pressure gas pipeline. However, the Court must establish whether the nuisance caused went beyond the minimum level of severity set by its case ‑ law.

11. In the present case, the Court notes that after the inspection reports in 1999 and 2000, the gas company adopted a number of extraordinary measures to ensure the safe operation of the pipeline. The subsequent domestic proceedings initiated by the applicants did not result in any finding that there was any substantiated risk to their life or health. It reiterates in this respect that the mere fear of negative consequences in the long term cannot trigger the application of Article 8 (see Ivan Atanasov v. Bulgaria , no. 12853/03, § 76, 2 December 2010).

12. Furthermore, the Court observes that the section of the pipeline present on the applicants’ land was no longer active, due to modifications implemented by the gas company, since 15 October 2015 when the pipes were decommissioned and encased in bentonite. It does not lose sight of the fact that the applicants dispute the effectiveness of this measure consisting of sealing the pipeline and the reliability of the documents submitted by the Government. However, it does not appear from the case file that these developments had ever been complained of to the relevant State authorities or courts, which are in principle better placed and equipped to ascertain the proper way for the State authorities to comply with their obligations under the domestic legislation (see, mutatis mutandis , Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 100-101, ECHR 2003 ‑ VIII).

13. The Court thus observes that the applicants failed to submit, either during the domestic proceedings or the proceedings before the Court, a valid claim supported by any documents or expert opinion that they had sustained or were still exposed to any danger or harmful effect resulting from the presence of the decommissioned pipeline on their land.

14. The Court is therefore of the view that the minimum threshold of severity required for it to be able to find that there has been a violation of Article 8 of the Convention has not been attained. Consequently, it cannot conclude that the respondent State failed to take reasonable measures to protect any of the applicants’ rights guaranteed by that provision (see Calancea and Others v. the Republic of Moldova (dec.), no. 23225/05, § 32, 6 February 2018).

15. It follows that the complaint under Article 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

16. The applicants further complained, relying on the same facts, that they had to bear the burden of the pipeline’s existence in the immediate vicinity of their house, that the authorities had failed to take necessary steps to ensure effective protection of their property and that their property had lost value.

17. In so far as the applicants’ complaint under Article 1 of Protocol No. 1 is based on the same facts, that is on the authorities’ alleged failure to adopt protective measures, it should also be rejected for their failure to substantiate the existence of an interference sufficiently serious so as to trigger the authorities’ positive obligations.

18. The Court further observes that the applicants have not proved that the value of their property has suffered as a result of the presence of the pipeline. The latter do not allege that they attempted to sell their property, or that a financial transaction became impossible or resulted in a particular disadvantage for them. The Court, for its part, considers that it cannot speculate on this matter, all the more so since it would appear that the applicants did not specifically plead before the domestic courts that the impugned development adversely affected the value of their property (see Zapletal v. the Czech Republic (dec.), no. 12720/06, 30 November 2010 and Marchiş and Others v. Romania (dec.), no. 38197/03, § 45, 28 June 2011). In this context, the Court cannot but agree with the Government that even if the applicants had not been informed about the presence of the pipeline when they acquired their property, they advance no reasons to justify their failure or inability to claim compensation from the seller after 1987, when they should have become aware of the established right to use affecting their land. The applicants did not explain their failure to lodge such a claim nor did they argue that such avenue was not available to them in the particular circumstances of the case (see Sulejmani v. the former Yugoslav Republic of Macedonia , no. 74681/11, § 41, 28 April 2016).

19. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2023.

Martina Keller Carlo Ranzoni Deputy Registrar President