In Tonyuk v Ukraine  ECHR 492 the applicant, Yustyna Tonyuk, a Ukrainian national born in 1941 and living in Yaremche, in the Ivano-Frankivsk Region, complained about the existence and use of a cemetery that had been created adjacent to her home. Ms Tonyuk had obtained two judgments from the national courts banning the use of the cemetery for future burials on the ground that its proximity to her home was in breach of the applicable sanitary standards. Her house was some ten metres from the cemetery boundary, her yard was separated from the cemetery by a wire mesh fence and the nearest row of graves was about a metre from the fence (some eleven metres from her house) and clearly visible from her yard .
Relying on Articles 6 §1 (fair hearing), 8 (private and family life) and 13 (effective remedy), Ms Tonyuk complained that burials in the cemetery had continued despite the judgments in her favour and claimed that the court orders had never been properly enforced. She also complained that using the land for burials violated her rights under Article 8: in particular, because of the risk that her well water would be poisoned and because living in the immediate proximity of a functioning cemetery caused her serious psychological discomfort .
The facts of the case
In 1996, the Executive Committee of Yaremche Town Council had allotted a plot of land next to Ms Tonyuk’s house to St John’s Church to build a new cemetery . In 2000, Yaremche’s Sanitary Officer banned burials in the new cemetery because its location was in breach of applicable sanitary standards ; however, after complaints from the congregation of St John’s that no other cemetery was available, in 2002 the Executive Committee allowed the cemetery to reopen . Subsequently, the Yaremche Court held that the decision of 2002 had been unlawful because Ms Tonyuk’s house was located within the sanitary health protection zone; and it ordered the Town Council’s Executive Committee to forbid further burials. That judgment was not appealed and became final : nevertheless, the Executive Committee refused to comply and burials continued until 2011 [19-29].
The Court reiterated at the outset that the execution of a final judgment given by a court was an integral part of the “trial” for the purposes of Article 6 and that a prolonged failure by the domestic authorities to enforce a judgment given against them was, as a general rule, a breach of that Article – though the Court recognised that enforcing a judgment incorporating a ruling of a non-pecuniary nature might sometimes take more time than enforcing the payment of a monetary award .
Though the Government had argued that the problem had been resolved in 2011 because no burials had been authorised in the new cemetery since then, by 2011 the non-enforcement had already lasted for some eight years – a significant length of time; moreover, the Government’s submissions were unsupported by documentary evidence and inconclusive . Enforcement in the present case had necessitated putting in place a complex policy solution – which, admittedly, might take time – but the Court had not been shown evidence that the municipality had “taken all the steps that could be reasonably expected of it to address the problem in a comprehensive and consistent manner with a view to finding an optimal and prompt solution” .
The Court held that there had been a violation of Article 6 on account of the non-enforcement of the judgments in the applicant’s favour of January 2003 and March 2004. The Court also concluded – Vehabović J dissenting – that it was not necessary separately to examine the complaint under Article 8.
Cite this article as: Frank Cranmer and David Pocklington, “Living next to a cemetery: Tonyuk” in Law & Religion UK, 2 June 2017, http://wp.me/p2e0q6-9zF.