Living next to a cemetery: Tonyuk

In Tonyuk v Ukraine [2017] 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 [7].

The complaint

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 [8].

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 [6]. In 2000, Yaremche’s Sanitary Officer banned burials in the new cemetery because its location was in breach of applicable sanitary standards [10]; 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 [13]. 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 [15]: nevertheless, the Executive Committee refused to comply and burials continued until 2011 [19-29].

The judgment

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 [38].

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 [40]. 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” [40].

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.

8 thoughts on “Living next to a cemetery: Tonyuk

  1. We have a churchyard extension in our front garden, just a few yards away from the house and separated by a wooden fence; there are occasional re-openings. As we tell friends, the neighbours are very quiet.

    • I know: presumably lots of clergy live next to the churchyard.

      I guess that the more serious reason for her complaint was that she was afraid that pollution from the graves would poison her well, which might have been her only water-supply. But apart from that – which would rarely if ever be a problem in the UK – living next to a graveyard wouldn’t bother me. In fact, I always find Quaker burial-grounds rather soothing places.

    • However, that is not always the case, as in St Mary’s, Whitby. In keeping with its literary past, following a landslip in 2013, the material surrounding some of the older burials was washed away, leaving some bones exposed and others washed down into the gardens of the homes and Fortune’s kipper smoke house.

    • Thanks Tom. At Wantage we were subject to a complaint regarding our carillon which plays three verses of Orlando Gibbons’ Angels’ Song at 3, 6, 9 and 12 o’clock throughout the day and night. After an investigation by the Environmental Health Officer, who measured the level of sound, and petitions both for and against, it was decided that it was not a nuisance.

      The Legal Advisory Committee to General Synod has produced a paper on the liability in nuisance for church bells.

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