Monitoring of administrative proceedings in the claim of Dudich Iosif Vasilievich (hearing on 10.09.2020)

On October 9, 2020, a hearing was held in the Lvov District Administrative Court, in which the administrative claim of Dudich Iosif Vasilyevich against the Executive Committee of the Lvov City Council with the participation of a third party who does not declare independent claims on the subject of the dispute on the side of the defendant, Lvov communal enterprise “Zeleny Gorod”, was considered, in which the plaintiff requested:

– to declare illegal and cancel the decision of the Executive Committee of the Lvov City Council dated 07.12.2018 No. 1343 “On the approval of urban planning conditions and restrictions for the design of a construction object for construction of the Lvov communal enterprise” Zeleny Gorod “of a mechanical and biological complex for reloading and processing of solid household waste on the Plastovaya street, 13”.

The plaintiff and his representative, representatives of the defendant and a representative of a third party appeared at the hearing.

The court session began with the fact that the plaintiff’s representative filed an application for the removal of the presiding judge. The petition is motivated by the fact that since 2011 judge A.M. Sasevich has been on the list of persons who wish to receive housing (apartment) in ownership. According to paragraph 2 part “A” of Art. 30 of the Law of Ukraine “On Local Self-Government” to the jurisdiction of the executive bodies of village, city councils include the registration of citizens who, in accordance with the legislation, need to improve their living conditions; distribution and provision in accordance with the legislation of housing belonging to communal property. Accordingly, judge A.M. Sasevich is in the process of waiting to receive housing from a party to the case. On this basis, the plaintiff’s representative came to the conclusion that the presiding judge is directly interested in the outcome of the case. The defendant’s representatives objected to the satisfaction of the judge’s challenge, since the plaintiff had missed the deadline for filing such an application. Also, the representative of the defendant noted that this is already the 6th application for disqualification of judges filed by the plaintiff in this proceeding.

According to the established practice of the ECtHR, the existence of impartiality should be determined for the purposes of paragraph 1 of Art. 6 of the Convention using subjective and objective criteria. A subjective criterion is used to assess the personal conviction and behavior of a particular judge, that is, whether the judge showed bias or impartiality in this case. According to the objective criterion, it is determined, among other aspects, whether the court, as such, and its composition ensured that there was no doubt about its impartiality. In each individual case, it should be determined whether the relationship under consideration is of a nature and degree that indicates that the court is not impartial.

The personal impartiality of the court is presumed until evidence to the contrary is presented (“Mironenko and Martynenko v. Ukraine”, paras. 66, 67).

The court dismissed the plaintiff’s application for challenge, stating that it is based on groundless assumptions about the possible dependence of a judge on the Lvov City Council, the executive committee of the Lvov City Council and its officials.

In his opening remarks, the representative of the plaintiff stated that the placement of a mechanical and biological complex for the transshipment and processing of solid household waste in the city of Lvov in the immediate vicinity of residential buildings violates construction standards, the requirements of legislation in the field of urban planning and in the field of environmental safety, creates an unconditional threat to life and health for residents of this district and Lvov in general, in which there are no conditions for the construction of such a complex.

The defendant draws attention to the fact that the State Sanitary Rules for Planning and Development of Settlements provide for the establishment of a standard for incineration and waste processing plants of a sanitary protection zone 500 m from residential buildings, which in this case is more than twice exceeded (the nearest residential building is located at a distance of 1050 m). In addition, GOS B.2.2.-12: 2019 allows the placement of objects for sorting and recycling of household waste in industrial and communal-warehouse areas of the city, and other requirements of building codes are subject to unconditional consideration during design, survey and construction work.

Lvov communal enterprise “Zeleny Gorod” notes that the applicant complied with all the requirements regarding the procedure for obtaining town-planning conditions and restrictions, the absence of grounds for refusing to provide and approve them, as determined by law. The third party also emphasizes that in reality there are no confirmed violations of the rights, freedoms or interests of the person who filed a lawsuit, and he is not a party to legal relations related to the issuance and approval of urban planning conditions and restrictions. According to the third party, Iosif Vasilyevich did not provide a proper and reasonable justification for the connection between the decision made and the possible violation of his rights and did not confirm this in the proceeding with proper and admissible evidence.

After examining the evidence and arguing, the court retired to the deliberation room to pass a decision.

In its decision, the court indicated that the issues of environmental safety as a universal category and the right to a safe environment violated by the plaintiff are, of course, important and extremely serious, which requires a balanced and reasonable approach to its solution on the part of all participants in the case. At the same time, “speculation” on this topic without proper motivation and confirmation of claims, without their coordination with the requirements of the current legislation (which manifested itself during this trial) is doubtful, given the public interest. The Court notes that the principle of proportionality should also be taken into account in resolving such disputes, since the common interest of the city’s community also lies in efficient and modern waste management, thus meeting the necessary needs of the city and not only eliminating certain individual inconveniences. Moreover, it is obligatory for the plaintiff to prove the actual violation of his rights and interests as a prerequisite for applying for judicial protection. Bringing them the corresponding shortcomings and inconsistencies of the contested actions or decisions with the current legislation, as well as determining effective ways to restore their rights or protect their interests, would make it possible to balance these circumstances and make not only a legal, but also a fair decision on the merits of the dispute. However, the plaintiff did not respect such basic principles.

The ECtHR has repeatedly pointed out in its decisions that neither Article 8 nor any other provisions of the Convention guarantee the right to protect the natural ecological environment as such. Also, no question will arise if the harm is insignificant compared to the environmental hazard inherent in life in every modern city. However, there may be a well-founded complaint under Article 8 where the environmental hazard reaches such a serious level that it significantly hinders the applicant’s ability to use his home, private or family life. The assessment of such a minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the harmful effect and its physical or psychological impact on human health or quality of life (“Dubetskaya and Others v. Ukraine”, para. 105, “Grimkovskaya v. Ukraine”, para. 58), which undoubtedly should be taken into account by the court in this case when making a decision.

Lvov Regional Administrative Court rejected Iosif Dudich’s claim.