ITEMID: 001-96157
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5.
6. On 30 October 2001 the board of Interbrew, a Belgian brewing company, asked its investment bank advisers, Goldman Sachs (“GS”) and Lazard, to carry out work on a potential association between Interbrew and South African Breweries plc (“SAB”), a competitor in the brewing industry, with a view to a possible takeover bid for SAB by Interbrew.
7. On 18 November 2001 GS produced a document in relation to the possible takeover. The document was confidential and contained data which were likely to affect both Interbrew and SAB's share prices. It formed the basis of a presentation which, on 20 November 2001, was submitted to Interbrew's internal mergers and acquisitions department.
8. On an unknown date a person (“X”) whose identity is unknown, even by the applicants, came into possession of a copy of the presentation submitted to Interbrew. On 27 November 2001 X sent copies of a document (“the leaked document”) to various news media organisations, including the FT, The Guardian, The Times and Reuters, from an address in Belgium. On Interbrew's evidence the leaked document was very similar if not identical to the Interbrew presentation, except for the following: (a) the substitution of an offer price for SAB shares of between 500 and 650 pence in place of the price of between 400 and 550 pence, which had apparently been in the original presentation; and (b) the insertion of a timetable for making the offer.
9. On 27 November 2001 Mr Jones, a journalist at the FT, received a copy of the leaked document from X. At 5p.m. that day, he telephoned Mr Van Praag of GS and told him that he had received the leaked document and that he intended to publish it. Mr Van Praag reported the conversation to Mr Powell, the Chief Executive Officer of Interbrew. Mr Powell telephoned Mr Jones and told him, on the record, that Interbrew had carried out research into SAB but that it was not in the advanced stage of preparing an offer. At about 10p.m., the FT published an article on its website stating that Interbrew had been plotting a bid for SAB, that documents seen by the FT indicated that an approach could be made on 3 December 2001 and referring to the conversation between Mr Jones and Mr Powell. The article did not state the proposed offer price but gave accurate codenames used for the advisers in the presentation and quoted from the document on the likely positive market reaction and with reference to potential rival bids. The FT published an article in the same terms in its newspaper the next morning.
10. At about 5.30p.m. on 27 November 2001 The Times received a copy of the leaked document from X. In its second edition, which reached the news stands at about 5a.m. on 28 November 2001, it published an article referring to the “confidential” document which it had seen, a supposed approach to SAB “this weekend”, a plot to bid GBP 4.6 billion for SAB and an offer expected to be pitched at up to 590 pence per share.
11. At 12.51a.m. on 28 November 2001 Reuters reported the FT's story and the rise in the share price of SAB on the Johannesburg Stock Exchange on its wire service. Reuters received a copy of the leaked document from X on the afternoon of 28 November 2001 and, at 2.44p.m., published a further article referring to its receipt of the leaked document.
12. At about 8.30a.m. on 28 November 2001 GS and Lazards contacted the Takeover Panel, which asked Interbrew to make a statement. In response, at about 12.15p.m., Interbrew issued a press release confirming that it had undertaken a preliminary analysis of SAB as part of its routine annual review of the leading brewers of the world; that the analysis was at a very preliminary stage which might or might not lead to an offer at some time in the future; but that no approach had been made.
13. On 28 November 2001 The Guardian received a copy of the leaked document from X. On 29 November 2001 it published an article referring to the “secret document” prepared by GS and Lazards, which it stated had been “couriered” to a “large chunk” of the business press, and mentioning the leaking of previous bids by Interbrew.
14. The Independent did not receive a copy of the leaked document directly from X. However, it did take steps to obtain a copy from another source that it knew but undertook not to reveal it. On 29 November it published two articles about the leaked document, one of which stated that the offer price and timetable appeared bogus.
15. On 29 November 2001 Interbrew, in agreement with the Takeover Panel, published a second statement to the press, alleging that the leaked document contained fabrications. This statement was reported by each of the applicants, who continued to publish articles on the topics of doctored copies and a possible bid.
16. The impact of this press coverage on the market in shares of Interbrew and SAB appears to have been significant. Interbrew's share price at market on 27 November 2001 was EUR 29.40. By midday the next day it was EUR 27.20. It was EUR 28.25 after the press release and at market close. The SAB share price at market close on 27 November 2001 was 442.74 pence and at market close on 28 November 2001 was 478 pence. The volume of SAB's shares traded on 27 November 2001 was less than 2 million. On 28 November 2001 it was more than 44 million.
17. On 30 November 2001 Interbrew instructed Kroll, the security and risk consultants, to assist in identifying X. Kroll did not identify X. On 6 December 2001 Interbrew made a criminal complaint to the Examining Magistrate of the Brussels Court of First Instance, together with a claim for civil damages, against a person or persons unknown.
18. On 10 December 2001 Interbrew launched proceedings against the applicants in the High Court following advice from Kroll that access to the original documents might vitally assist the investigation. Given that the applicants were not aware of the identity of X, Interbrew lodged a claim for:
“1. delivery up of documents:
1.1 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards]; and
1.2 evidencing or containing discussions with any journalistic source in respect of the subject matter of 1.1;
2. disclosure of such documents;
3. an order that the Defendants do disclose the name and address of:
3.1 any journalistic source who had provided them with the documents referred to in 1.1;
3.2 any journalistic source with whom they have had the discussions referred to at 1.2 ...”
19. At the same time Interbrew, without notice to the applicants, applied for, and was granted, a temporary injunction from the High Court in the following terms:
“1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 1 thereof
2. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 2 thereof
3. The Defendants must within 24 hours of service of this Order deliver up the two categories of documents referred to at Schedule 3 ... to the custody of solicitors appointed on their behalf to be held until further Order herein ...
4. The Defendants must within 48 hours of service of this Order serve on the Claimant's Solicitors a list of
4.1 the Documents within their control
4.2 those of the Documents which were formerly in their control but are no longer in their control, explaining what has happened to them
and confirm the facts set out in this paragraph by means of a signed witness statement containing a Statement of Truth also within 48 hours of service of this Order
PROVIDED THAT this Order shall not require the Defendants to provide any information which would disclose the source of information contained in a publication for which the Defendants are responsible.
...
SCHEDULE 3
The Documents
1. Documents including draft documents and copy documents (whether received by the Defendants as copy documents or copies by the Defendants) provided to the Defendants by any third party subsequent to 23 November 2001 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards].
2. Documents evidencing or containing discussions with any journalistic source subsequent to 23 November 2001 relating to an analysis of SAB prepared by [GS] and/or [Lazards], together with the envelopes or packaging in which they were delivered to the Defendants and any additional documents contained therein.”
20. On 11 December 2001, Interbrew sought an order in different terms from the one granted on 10 December 2001. Instead of the original paragraph 4 of the order, Interbrew sought an order requiring the applicants to serve, within 48 hours, a witness statement setting out the names and addresses of every person who had provided them with the Schedule 3(1) documents and every person with whom they had had discussions evidenced or contained in the Schedule 3(2) documents and, if these identities were not known, the circumstances in which they received the documents, to the best of their knowledge. On 12 December 2001, the judge ordered that paragraphs 3 and 4 of the order of 10 December 2001 be discharged in their entirety.
21. An expedited hearing on Interbrew's application for an injunction took place on 14 and 17 December 2001 before the High Court. Interbrew invoked the Norwich Pharmacal principle (see paragraph 29 below) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.
22. On 19 December 2001 the High Court (Interbrew v. Financial Times et al. [2001] EWHC Ch 480) ordered delivery up of the documents under the Norwich Pharmacal principle in the following terms:
“1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3.
2. The Defendants must within 24 hours of service of this Order deliver up the documents and other materials referred to at Schedule 3 ... to the Claimant's solicitor ...”
23. The judge found (at paragraph 34) that:
“What [X] has done is deliberately to admix with that confidential information false information (a lethal concoction) to create a false market in the shares of the Claimant and SAB, a serious criminal offence. There must be a real risk of repetition, if [X] is not identified. Beyond the substantial private interest of the Claimant, there is a substantial public interest in identifying [X] and taking all necessary steps to prevent any repetition. As it seems to me, the circumstances of this case are exceptional: vital public as well as individual interests are at stake in securing the integrity of the share market. There is an overriding need for the disclosure sought in the interests of justice and for the prevention of crime”.
24. The judge continued (at paragraph 37):
“As it seems to me the Claimant has sufficiently explored other avenues before having recourse to this application for relief against the press ... There have been internal investigations conducted at the Advisers' and the Claimant's businesses; the Claimant is conducting inquiries further afield. The Claimant is using investigators of the highest international calibre. The Defendants complain that full details of all the Claimant's inquiries are not given in the Claimant's evidence and that this is necessary in order to establish how thorough they have been, but there is no substance in this complaint. The evidence establishes to my satisfaction that full and proper investigations have been made and are continuing. To require disclosure of more details of these investigations is unnecessary even as such a course may prejudice the ongoing inquiries ... The evidence before me (and most particularly a report by Kroll) establishes that the Claimant needs the information which production of the Documents ought to provide to further and give impetus to these investigations ... I am satisfied that the order is required if progress is to be made whilst the trail is still warm and if an identification is to be made within the time frame necessary to safeguard the interests of the Claimant and the public.”
25. The applicants were granted leave to appeal by the Court of Appeal on 20 December 2001 and were required to file their written arguments with the court by 28 December 2001. By judgment of 8 March 2002 the Court of Appeal dismissed the applicants' appeal (Interbrew v. Financial Times et al. [2002] EWCA Civ 274). In the leading judgment of Sedley LJ, the Court of Appeal held that in order to justify the exercise of Norwich Pharmacal powers to compel production of documents or disclosure of information, Interbrew had to establish that each defendant had facilitated a civil wrong committed by an unknown person against whom they aimed to seek redress. The only civil wrong on which Interbrew could rely was that of a breach of confidence on the part of the source. While such a breach of confidence had been made out, what had not been made out was a “bigger and better cause of action in respect of the 'lethal cocktail' of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort” (at paragraph 28).
26. Sedley LJ went on to consider the approach adopted by the High Court as follows (at paragraphs 40-41):
“Everything proceeded below on the assumption that crimes of forgery and market manipulation were proved. But both, or at least the former, depend upon the falsity of the pages in the document showing bid price and timetable. False they were if one goes on such evidence as was before the court. But by definition their falsity is alleged against an absent and silent accused. We have no way of knowing, any more than – as [counsel for the applicants] stressed – the five defendants do, whether the source, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards.
I have to say that I find this aspect of the Norwich Pharmacal procedure troubling. A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only, save in rare cases, take a neutral stand on the question. The court of first instance needs to be extremely circumspect before accepting evidence, especially when, as here, it is second- or third-hand, that goes to the heart of the case and cannot be controverted ...”
27. However, Sedley LJ concluded:
“49. ... I have come to the conclusion, though not without misgiving, that the order for disclosure was rightly made against all the defendants. Nothing which has been put before us suggests that the court will be significantly better placed at an eventual trial than it is now to decide the key issues; and there is at least some force in Interbrew's complaint that its hands are tied vis-à-vis South African Breweries, and possibly other targets too, unless and until it can prevent a recurrence of this spoiling operation.
50. ... Interbrew's prima facie entitlement to delivery up of the documents is established because – and solely because – it may enable them to ascertain the identity of the proper defendant to a breach of confidence action relating to the relatively anodyne, though not the explosive, parts of the document. From the sweep of Interbrew's original case and the “lethal cocktail” on which Lightman J founded his conclusions, the basis of the application now shrinks to this little measure. But though little, it is far from insignificant for Interbrew ...
51. With it, one turns to s.10 of the 1981 Act. The section begins by barring any order for disclosure in circumstances such as these, since its very object is to discover the source of information which the defendants have published. Interbrew, however, can invoke one of the listed purposes for lifting the bar: that disclosure is necessary in the interests of justice. That it may also go to the prevention of crime cannot be ruled out as irrelevant, but it is peripheral because it is not a purpose for which Interbrew themselves are entitled to disclosure. Then is the public interest in the doing of justice sufficient in the particular circumstances of this case to make disclosure necessary? Reading that question through the lens of the Convention and its jurisprudence, as we are now required to do, the following elements separate themselves out.
52. First, what is the nature and weight of the public interest in the confidentiality of sources? The right of free expression enshrined in art. 10 is undifferentiated, but as the European Court of Human Rights said in Goodwin, 'freedom of expression constitutes one of the essential foundations of a democratic society', and '[p]rotection of journalistic sources is one of the basic conditions for press freedom' (paras. 39, 40). Much judicial authority in this country says the same. The news media, in consequence, enjoy in s.10 of the 1981 Act a high initial level of protection, not in their own but in the public interest.
53. The entitlement to reverse the balance is prescribed by law, as art. 10(2) requires. A required ground for doing so, founded on the no less important public interest in an effective system of justice, is present. Is it then necessary to reverse the balance? The following elements seem to me to matter here:
...
• Any invasion of the protection must meet a pressing social need – not merely an individual one. This meets the need to counterpose one public interest to another. Here the need, in terms of s.10, is to enable Interbrew to restrain by court action any further breach of confidence by the source and possibly to recover damages for losses already sustained. In terms of art. 10(2) it is to protect the rights of Interbrew.
• There must be no less invasive alternative. While I would not adopt the judge's approach of simply refusing to second-guess the view of the aggrieved parties' solicitors, I would infer from the evidence that as much has been done as can at present be done by the use of reputable private detectives to trace the source. I can see that to demand particulars of the admittedly general assertions about this could jeopardise the exercise.
...
54. It seems to me that once the legitimacy of Interbrew's intended resort to law is accepted, the relatively modest leak of which they are entitled to complain does not diminish the prospective seriousness for them of its repetition. For the media, on the other hand, the public interest in their freedom to publish is constant, and with it the public interest in the confidentiality of their sources. While I do not think that the character of the material is irrelevant as a matter of law, I agree with Laws LJ in Ashworth at least to this extent, that it cannot be for the court to decide how interesting or important it thinks the material is. That is for journalists and their editors. But it may follow that the more the press decide to make of a story, the greater will be the affected party's legitimate interest in finding and suppressing its source.
55. What in my judgment matters critically, at least in the present situation, is the source's evident purpose. It was on any view a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both. It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages; for whether they are forged or authentic, integral or added, they were calculated to maximise the mischief. To this factual extent the 'lethal cocktail' is material, despite its legal irrelevance to the earlier stages of the inquiry. The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source.”
28. On 9 July 2002 the House of Lords refused the applicants leave to appeal, following which Interbrew required the applicants to comply with the court order for delivery up of the documents. The applicants have refused to comply. While Interbrew has instituted enforcement proceedings against The Guardian, it has not pursued these proceedings.
29. The exercise of the power to require the delivery up of otherwise confidential information derives from the jurisdiction established by the decision of the House of Lords in Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133 at page 175:
“[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”
30. That power is subject to section 10 of the Contempt of Court Act 1981 (“the 1981 Act”) which provides that:
“No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”
31. Prior to the proceedings in the present case, the Court of Appeal had held in Ashworth Hospital Authority v. MGN Ltd [2001] 1 All ER 991 that the phrase “the interests of justice” in section 10 of the 1981 Act was wide enough to include the exercise of legal rights and the ability to seek protection from legal wrongs, whether or not by court action. This interpretation was later confirmed by the House of Lords in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2003.
32. In Ashworth, the High Court granted an order compelling the Mirror newspaper to reveal a source to Ashworth Hospital. The Mirror subsequently disclosed its source as Robin Ackroyd, an investigative journalist. Ashworth brought new proceedings to seek an order for disclosure against Mr Ackroyd and applied for summary judgment on the grounds that the case was indistinguishable from that of the Mirror in the previous Ashworth case. Mr Ackroyd submitted that the facts were materially different. The High Court granted the order requested but it was overturned on appeal to the Court of Appeal which held in Mersey Care NHS Trust v. Robin Ackroyd [2003] EWCA Civ 663 at paragraph 70 that:
“Protection of journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for source disclosure cannot be compatible with Article 10 of the European Convention unless it is justified by an overriding requirement in the public interest. Although there is a clear public interest in preserving the confidentiality of medical records, that alone cannot, in my view, be automatically regarded as an overriding requirement without examining the facts of a particular case. It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined. I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial. But the nature of the subject matter argues in favour of a trial in most cases ...”
33. The Civil Procedure Rules (“CPR”) govern procedure in civil proceedings in England and Wales. Relevant excerpts of the CPR provide as follows:
“Rule 18.1
(1) The court may at any time order a party to –
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case.
(2) Paragraph (1) is subject to any rule of law to the contrary.
...
Rule 32.2
(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject –
(a) to any provision to the contrary contained in these Rules or elsewhere; or
(b) to any order of the court.
...
Rule 32.6
(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
(2) At hearings other than the trial, a party may, rely on the matters set out in –
(a) his statement of case; or
(b) his application notice, if the statement of case or application notice is verified by a statement of truth.
Rule 32.7
(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence ...”
34. The Press Complaints Commission has adopted a code of conduct which is regularly reviewed and amended as required. The 2003 Code of Conduct reads, insofar as relevant, as follows:
“1. Accuracy
Newspapers and periodicals must take care not to publish inaccurate, misleading or distorted material including pictures.
Whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, it must be corrected promptly and with due prominence.
An apology must be published whenever appropriate.
Newspapers, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.
A newspaper or periodical must report fairly and accurately the outcome of an action for defamation to which it has been a party.
...
15. Confidential sources
Journalists have a moral obligation to protect confidential sources of information.”
35. There have been no significant changes to the above provisions since 2003.
36. On 8 March 2000, the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (2000) 7) on the right of journalists not to disclose their sources of information. The Recommendation provides, at Principle 3, as follows:
“a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
- an overriding requirement of the need for disclosure is proved,
- the circumstances are of a sufficiently vital and serious nature,
- the necessity of the disclosure is identified as responding to a pressing social need, and
- member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.”
VIOLATED_ARTICLES: 10


ITEMID: 001-103273
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DUBETSKA AND OTHERS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 6. The applicants are Ukrainian nationals residing in the hamlet of Vilshyna in the Lviv region.
7. The first to fifth applicants are members of an extended family residing in a house owned by the first applicant (the Dubetska-Nayda family house). This house was built by the family in 1933.
8. The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant (the Gavrylyuk-Vakiv family house). This house was built by him in 1959. It is unclear whether a permit for construction of this house was obtained in 1959. Subsequently the house was officially registered, to which a property certificate of 1988 is witness.
9. The applicants' houses are located in Vilshyna hamlet, administratively a part of Silets village, Sokalskyy district, Lviv Region. The village is located in the Chervonograd coal-mining basin.
10. In 1955 the State began building, and in 1960 put into operation, the Velykomostivska No. 8 coal mine, whose spoil heap is located 100 metres from the Dubetska-Vakiv family house. In 2001 this mine was renamed the Vizeyska mine of the Lvivvugillya State Holding Company (“the mine”; Шахта «Візейська» ДХК «Львіввугілля»). In July 2005 a decision was taken to close the mine as unprofitable. The closure project is currently under way.
11. In 1979 the State opened the Chervonogradska coal processing factory (“the factory”; Центрально-збагачувальна фабрика «Червоноградська») in the vicinity of the hamlet, initially managed by the Ukrzakhidvugillya State Company. In 2001 the factory was leased out to the Lvivsystemenergo Closed Joint Stock Company (ЗАТ «Львівсистеменерго»). Subsequently the Lvivsystemenergo CJSC was succeeded by the Lviv Coal Company Open Joint Stock Company. In 2007 a decision was taken to allow the factory to be privatised. It is not clear whether the factory has already been privatised.
12. In the course of its operation the factory has piled up a 60-metre spoil heap 430 metres from the Dubetska-Nayda family house and 420 metres from the Gavrylyuk-Vakiv family house. This spoil heap was not subject to privatisation and remained State property.
13. According to a number of studies by governmental and nongovernmental entities, the operation of the factory and the mine has had adverse environmental effects.
14. In particular, in 1989 the Sokalskyy District Council Executive Committee (“the Sokalskyy Executive Committee”; Виконавчий комітет Сокальської районної ради) noted that the mine's and the factory's spoil heaps caused continuous infiltration of ground water, resulting in flooding of certain areas.
15. According to an assessment commissioned by the State Committee for Geology and Mineral Resource Utilisation, jointly with the Zakhidukrgeologiya State geological company (Державний комітет України по геології та використанню надр; Державне геологічне підприємство «Західукргеологія») in 1998, the factory was a major contributor to pollution of the ground water, in particular on account of infiltration of water from its spoil heap. The authors of the assessment contended, in particular, that:
“All the coal-mining industry operational in the region for over forty years has been negatively affecting the environment: spoil heaps from the mines and the coal-processing factory have been created, from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools... of the coal-processing factory are sources of pollution of surface and underground waters ...
Rocks from the spoil heaps contain a variety of toxic heavy metals, leaching of which results in pollution of soils, surface and underground waters ...
Very serious polluters ... are cesspools of mining waters and factory tailing ponds ..., which in the event of the slightest disturbance of the hydro-insulation cause pollution of surface and ground waters ...
The general area of soil subsidence is about 70 square kilometres... the deepest subsidence (up to 3.5 metres) corresponds to areas with the most mining activity...
During construction of the water inlets ... deep wells were drilled which reached those [mineralised] waters. All this inevitably affected the health of people living in the area, first of all the children ...
Extremely high pollution levels ... were found in the hamlet of Vilshyna, not far from the coal-processing factory and mine no. 8 spoil heaps, in the wells of Mr T. and Mr Dubetskyy. We can testify that even the appearance of this water does not give grounds to consider it fit for any use. People from this community should be supplied with drinking-quality water or resettled ...”
16. In 2001 similar conclusions were proposed in a white paper published by Lviv State University.
17. On 20 April 2000 the Chervonograd Sanitary Epidemiological Service (“the Sanitary Service”; Червоноградська міська санітарноепідеміологічна служба) recorded a 5.2-fold excess of dust concentration and a 1.2-fold excess of soot concentration in ambient air samples taken 500 metres from the factory's chimney.
18. On 1 August 2000 the Sanitary Service sampled water in the Vilshyna hamlet wells and found it did not meet safety standards. In particular, the concentration of nitrates exceeded the safety limits by three- to five-fold, the concentration of iron by five- to ten-fold and that of manganese by nine- to eleven-fold.
19. On 16 August 2002 the Ministry of Ecology and Natural Resources (Міністерство екології та природних ресурсів) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire Chervonograd region. They caused soil subsidence and flooding. Heavy metals from mining waste penetrated the soil and ground waters. The level of pollution of the soil by heavy metals was up to ten times the permissible concentration, in particular in Silets village, especially on account of the operation of the factory and the mine.
20. On 28 May 2003 factory officials and the Chervonograd Coal Industry Inspectorate (Червоноградська гірничо-технічна інспекція з нагляду у вугільній промисловості) recorded infiltration of water from the foot of the factory's spoil heap on the side facing Vilshyna hamlet. They noted that water flowing from the heap had accumulated into one hectare of brownish salty lake.
21. In 2004 the Zakhidukrgeologiya company published a study entitled “Hydrogeological Conclusion concerning the Condition of Underground Waters in the Area of Mezhyriccha Village and Vilshyna Hamlet”, according to which in the geological composition of the area there were water-bearing layers of sand. The study also indicated that even before the beginning of the mining works the upper water-bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys. However, exploitation of the mines added pollution to underground waters, especially their upper layers.
22. On 14 June 2004 the Lviv Chief Medical Officer for Health (Головний державний санітарний лікар Львівської області) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations 350 metres from the factory, and imposed administrative sanctions on the person in charge of the factory's boiler.
23. In September 2005 Dr Mark Chernaik of the Environmental Law Alliance Worldwide reported that the concentration of soot in ambient air samples taken in Vilshyna hamlet was 1.5 times higher than the maximum permissible concentration under domestic standards. The well water was contaminated with mercury and cadmium, exceeding domestic safety standards twenty-five-fold and fourfold respectively. According to the report, the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases.
24. The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine's director on 1 January 1999. According to the applicants, the mine promised to pay for the repair of their houses but never did so.
25. Secondly, the applicants alleged that they were continuing to suffer from a lack of drinkable water. They contended that until 2009 the hamlet had no access to a mains water supply. Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections. The applicants presented three photographs reportedly of the water available to them near their home. One photo entitled “water in a well in Vilshyna hamlet” pictured a bucket full of yellow-orange water near a well. The second photo entitled “a stream near the house” pictured a small stream of a bright orange colour. The third photo entitled “destruction of plant life by water from the coal-processing factory waste heap” depicted a brownish lake with many stumps and several dead bushes in the middle of it.
26. The applicants further contended that from 2003 the Lvivsystemenergo CJSC had been bringing, at its own expense, drinkable water into the hamlet by truck and tractor. However, this water was not provided in sufficient quantity. In evidence of this statement, the applicants presented a photograph picturing five large buckets of water and entitled “weekly water supply”.
27. The applicants further alleged that the water supply was not always regular. In support of this argument they produced letters from the Sokalskyy District Administration dated 9 July 2002 and 7 March 2006, acknowledging recent irregularities in supply of drinking water.
28. Thirdly, some of the applicants were alleged to have developed chronic health conditions associated with the factory operation, especially with air pollution. They presented medical certificates which stated that Olga Dubetska and Alla Vakiv were suffering from chronic bronchitis and emphysema and that Ganna Gavrylyuk had been diagnosed with carcinoma.
29. Fourthly, the applicants contended that their frustration with environmental factors affected communication between family members. In particular, lack of clean water for washing reportedly caused difficulties in relations between spouses. Younger family members sought to break away from the older ones in search of better conditions for their growing children.
30. The applicants, however, did not relocate. They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without State support. In evidence, the applicants presented a letter from a private real estate agency, S., dated September 2009, stating the following:
“since in Vilshyna hamlet ... there has been no demand for residential housing for the past ten years because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house.”
31. In November 1995 the Sanitary Service ordered the factory to develop a plan for management of the buffer zone.
32. On 5 June 1996 the Sanitary Service found that the factory had failed to comply with its order and ordered suspension of its operation. In spite of this measure, the factory reportedly continued to operate, with no further sanctions being imposed on its management.
33. On 7 April 2000 and 12 June 2002 the State Commission for Technogenic and Ecological Safety and Emergencies (“The Ecological Safety Commission”; Державна комісія з питань техногенноекологічної безпеки та надзвичайних ситуацій) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory.
34. On 14 April 2003 the Lviv Regional Administration (Львівська обласна державна адміністрація) noted that the overall environmental situation had not improved since the Ecological Safety Commission's decision of 7 April 2000, as no funds had been allocated by the State Budget for implementation of the relevant measures.
35. On 27 January 2004 the Sanitary Service found that the mine had failed to comply with its instruction of 4 December 2003 as to the development of a plan for management of the buffer zone, and ordered suspension of its operation. However, the mine reportedly continued to operate.
36. On 13 July 2005 the Marzeyev State Institute for Hygiene and Medical Ecology (Інститут гігієни та медичної екології ім. О. М. Марзеєва АМН України) developed a management plan for the factory buffer zone. The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide, carbon oxide, sulphuric anhydride and dust. They noted, however, that according to their studies ambient air samples taken more than 300 metres from the factory did not contain excessive pollution. The plan provided for implementation of a number of measures aimed at improvement of the hydro-insulation of the spoil heap, as well as reduction of its height to 50 metres. The authors concluded that in view of such measures it was possible to establish a general buffer zone at 300 metres for the entire factory site.
37. Later in the year the Ministry of Health (Міністерство охорони здоров'я) approved the Marzeyev Institute's plan, on an assumption that the height of the spoil heap would be reduced by August 2008.
38. On 29 April 2009 the Sanitary Service fined the factory director for failing to implement the measures in the factory buffer zone management plan.
39. On 20 December 1994 the Sokalskyy Executive Committee noted that eighteen houses, including those of the applicants, were located within the factory spoil heap 500-metre buffer zone, in violation of applicable sanitary norms. It further allowed the Ukrzakhidvugillya company to resettle the inhabitants and to have these houses demolished. The Committee further obliged the company director to provide the applicants with housing by December 1996. This decision was not enforced.
40. In 1995 the Sokalskyy Executive Committee amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use.
41. On 7 April 2000 the Ecological Safety Commission noted that eighteen families lived within the limits of the factory buffer zone and commissioned the Ministry of Fuel and Energy and local executive authorities to ensure their resettlement in 2000-2001. The names of the families appear not to have been listed.
42. In December 2000 and 2001 the applicants enquired of the Ministry of Fuel and Energy when they would be resettled and received no answer.
43. In 2001 the Lviv Regional Administration included resettlement of eighteen families (names not listed) from the factory sanitary security zone in their annual activity plan, indicating the State budget as the funding source and referring to the Ecological Safety Commission's decision of 7 April 2000.
44. On 12 June 2002 the Ecological Safety Commission noted that its decision of 7 April 2000 remained unenforced and ordered the Sokalskyy District Administration, the Silets Village Council and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by the end of 2003.
45. In June 2002 the applicants, along with other village residents, complained to the President of Ukraine about the non-enforcement of the decisions concerning their resettlement. The President's Administration redirected their complaint to the Lviv Regional Administration and the Ministry of Ecology and Natural Resources for consideration.
46. On 16 August 2002 the Ministry of Ecology and Natural Resources informed the Vilshyna inhabitants in response to their complaint that it had proposed that the Cabinet of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of the Ecological Safety Commission of 7 April 2000.
47. On 14 April 2003 the Lviv Regional Administration informed the applicants that it had repeatedly requested the Prime Minister and the Ministry of Fuel and Energy to provide funding for the enforcement of the decision of 7 April 2000.
48. On 23 July 2002 the Dubetska-Nayda family instituted civil proceedings in the Chervonograd Court (Місцевий суд м. Червонограда) seeking to oblige the factory to resettle them from its buffer zone. Subsequently the Lvivvugillya State Company was summoned as a codefendant.
49. The first hearing was scheduled for 28 October 2003. Subsequent hearings were scheduled for 12 November and 18 December 2003, 26 and 30 April, 18 May, 18 and 30 June, 19 July and 22 December 2004, and 25 November, 6, 20 and 26 December 2005. On some four occasions hearings were adjourned on account of a defendant's absence or following a defendant's request for an adjournment.
50. On 26 December 2005 the Chervonograd Court found that the plaintiffs resided in the mine's buffer zone and ordered the Lvivvugillya State Company holding it to resettle them. It further dismissed the applicants' claims against the factory, finding that their house was outside its 300-metre buffer zone.
51. This judgment was not appealed against and became final.
52. On 3 May 2006 the Chervonograd Bailiffs' Service initiated enforcement proceedings.
53. On 19 June 2006 the Bailiffs fined the mine's director for failing to ensure the enforcement of the judgment. The latter appealed against this decision.
54. On 26 June 2006 the director informed the Bailiffs that the mine could not comply with the judgment. It neither had available residential housing at its disposal nor was it engaged in constructing housing, as it had received no appropriate allocations from the State budget.
55. The judgment remains unenforced to the present date.
56. On 23 July 2002 the Gavrylyuk-Vakiv family, similarly to the Dubetska-Nayda family, instituted civil proceedings at Chervonograd Court seeking to be resettled outside the factory buffer zone.
57. Subsequently the factory was replaced by the Lvivsystemenergo CJSC as a defendant in the proceedings.
58. The first hearing was scheduled for 29 September 2003. Subsequent hearings were scheduled for 6, 17 and 30 October 2003, and 15 and 30 April, 18 May, 18 and 21 June 2004.
59. On 21 June 2004 Chervonograd Court dismissed the applicants' claims. The court found, in particular that, although the plan for management of the factory buffer zone was still under way, there were sufficient studies to justify the 300-metre zone. As the plaintiffs' house was located outside it, the defendant could not be obliged to resettle them. Moreover, the defendant had no funds to provide the applicants with new housing. The court found the decision of 1994 concerning the applicants' resettlement irrelevant and did not comment on subsequent decisions concerning the matter.
60. On 20 July 2004 the applicants appealed. They maintained, in particular, that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards. In their case, the actual level of pollution outside the zone exceeded such standards, as evidenced by a number of studies, referring to the factory operation as the major source of pollution. Furthermore, the decision of the Sokalskyy Executive Committee of 1994 could not have been irrelevant, as it remained formally in force.
61. On 28 March 2005 the Lviv Regional Court of Appeal (Апеляційний суд Львівської області) upheld the previous judgment and agreed with the trial court's reasoning. In response to the applicants' arguments concerning the actual pollution level at their place of residence, the court noted that the hamlet was supplied with imported water and that in any event, while the applicable law included penalties against polluters, it did not impose a general obligation on them to resettle individuals.
62. On 23 April 2005 the applicants appealed on points of law, relying on essentially the same arguments as in their previous appeal.
63. On 17 September 2007 the Khmelnytskyy Regional Court of Appeal (Апеляційний суд Хмельницької області) dismissed the applicants' request for leave to appeal on points of law.
64. Relevant provisions of the Constitution read as follows:
“To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.”
“Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...”
65. According to Article 57 of the Law, private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self-government (which included executive committees of district councils).
66. Subsequent legislation concerning local self-government did not envisage the existence of such a body as an executive committee of a district council.
67. Relevant provisions of the Law “On Waste” read as follows:
“The State is the owner of waste produced on State property ... On behalf of the State the management of waste owned by the State shall be carried out by the Cabinet of Ministers.”
68. The above Law introduced a new mechanism for payment and amortisation of companies' debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company's presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company.
69. Relevant provisions of the Order of the Ministry of Health read as follows:
“5.4. Industrial, agricultural and other objects, which are sources of environmental pollution with chemical, physical and biological factors, in the event that it is impossible to create wasteless technologies, should be separated from residential areas by sanitary security zones.
...
On the exterior boundary of a sanitary security zone which faces a residential area, concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards (maximum permissible concentrations, maximum permissible levels) ...
5.5. ...
In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances, it is necessary to take a decision concerning a change of production technology, which would provide for decrease in emission of harmful substances into the atmosphere, its re-profiling or closure.
Supplement No. 4, Sanitary classification of enterprises, production facilities and buildings and their required sanitary security zones:
.....
A sanitary security zone of 500 metres [shall surround the following facilities]:
....
5. Spoil heaps of mines which are being exploited, inactive spoil heaps exceeding 30 metres in height which are susceptible to combustion; inactive spoil heaps exceeding 50 metres in height which are not susceptible to combustion.
A sanitary security zone of 300 metres [shall surround the following facilities]:
...
5. ... coal-processing factories using wet treatment technology
6. ... inactive spoil heaps of mines, less than 50 metres in height and not susceptible to combustion.”
VIOLATED_ARTICLES: 8