EHRM, 10-03-2020, nr. 24816/14, nr. 25140/14

Spatial development and spatial planning at the local level falls within the competence of municipalities, which, in accordance with the Local Self-Government Act, are independent in managing local matters in the public interest. In terms of spatial planning, that involves first and foremost land-use allocation in order to ensure rational and efficient use of land. To that end, municipalities adopt municipal spatial plans and detailed municipal spatial plans based on the Spatial Planning Act.

Under this legal framework, an area must be identified as construction land before any construction project can be submitted for a building permit. The power to determine the types of public utility infrastructure to be built in individual areas is conferred upon municipalities. The latter are also responsible for constructing the public utility infrastructure, which is financed from municipal budgets, the State budget and the community infrastructure levy. This levy is a contribution to the costs of construction of the public utility infrastructure paid by individual investors. By paying the community infrastructure levy, the person liable for payment, usually the owner of the construction land, is guaranteed connection to the already built infrastructure.

The Construction Act provides that any construction of a new structure, a re-built edifice, a replacement building, and so forth, cannot commence until a final building permit has been obtained. Before a building permit can be issued, the relevant administrative body verifies, inter alia, whether the relevant structure will be provided with the minimum level of public utility services; those include drinking-water supply, electricity supply, wastewater discharge and access to public roads. The investor must also show that a request for an assessment of the community infrastructure levy has, or will, be lodged.

The Construction Act explicitly prohibits the installation of public utility connections to illegally built structures.

As regards legalisation of illegally built buildings and structures, they are considered as new constructions requiring a building permit. Therefore, all of the above-mentioned conditions must be met in order to legalise a building, including the provision of the minimum level of public utility services.

There is a comprehensive regulatory framework governing the use of water in Slovenia. Water as a public good and public services related to its use, to water facilities and equipment are regulated by the Water Act. Different types of checks on water with the aim of ensuring its safety and therefore its suitability for domestic use are provided for in the Regulation of Sanitary Suitability of Foodstuffs (Products and Materials Coming into Contact with Foodstuffs) Act. Furthermore, the Rules on drinking water define the requirements to be satisfied with regard to drinking water in order to protect human health from adverse effects, and the Decree on the Methodology for Determining Prices of Municipal Utility Services for Environmental Protection provides the methodology for determining prices of obligatory public municipal utility services, such as the drinking-water supply.

Individual tasks to be performed within the scope of the municipal utility service of water supply are determined in the Decree on Drinking-Water Supply. In principle, the municipal service of water supply is provided throughout the area of a municipality to buildings occupied by people and structures where drinking water is used for watering animals. By way of exception, private supply of drinking water may be ensured in respect of settlements and individual buildings or structures where the municipality does not provide the public utility service. Pursuant to the Decree, settlement areas with fifty or more permanent residents and a population density of more than five residents per hectare are to be equipped with a public water-distribution system. Subject to certain derogations, also settlement areas with less than fifty residents should be equipped with such a system.

The planning and construction of the connection to the public water-distribution system should be ensured by the owner of the building or other structure that is to be connected. The Decree prohibits the provider of the public utility service from connecting to the public water-distribution system any buildings or structures that do not comply with the applicable rules on the discharge and treatment of urban wastewater. Both the Ribnica and Škocjan municipalities have adopted ordinances on drinking-water supply that are, in all essential provisions, aligned with the Decree and other relevant regulations.

As regards sanitation, the tasks performed within the scope of obligatory municipal utility service are determined in the Decree on the Discharge and Treatment of Urban Wastewater and Run-off Rainwater. The public utility service consists of discharging the wastewater into the public sewerage system, treating the discharged water, collecting urban wastewater and sludge from cesspits and from small urban wastewater plants, treatment of such wastewater and sludge in an urban or combined wastewater plant, and so forth.

Municipalities have a duty to provide the public utility service of sanitation throughout their respective areas; however, certain derogations regarding the scope of the service are allowed. Specifically, owners of buildings outside the designated settlement areas and where there is no public sewerage system must ensure that urban wastewater is discharged and treated in small urban wastewater treatment plants. Specific obligations related to the scope and methods of the public utility service provision are regulated by the municipal acts. Both the Ribnica and Škocjan municipalities have adopted ordinances on the discharge and treatment of urban wastewater that provide in detail the scope of the respective public municipal utility services and the locations where the urban wastewater is treated. For an owner of a property to be connected to the public sewerage system, he or she must be in possession of a final building permit and/or proof of the right to build.

Members of the Roma community in Slovenia are entitled to individual and community rights in the same way as all other citizens of the Republic of Slovenia. Their status is defined as a ‘special ethnic community’ entitled to collective, special rights. In 2007, the Roma Community in the Republic of Slovenia Act was adopted. It acknowledges the special status of the Roma community in Slovenia and its successful integration into Slovene society. The Act further defines the special rights of the Roma community which are accorded to its members in addition to the rights and obligations appertaining to all Slovenian citizens. Pursuant to section 3, the State is to provide for the implementation of the special rights of the Roma community in the areas of education, culture, employment, spatial planning and environmental protection, health and social security, as well as notification and participation in public affairs pertaining to the Roma community. Moreover, the Act determines the competences of national and local authorities for the implementation of those rights and provides for cooperation of the representatives of the Roma community in implementing their rights and obligations as provided by law.

Section 5 of the Act provides that the national and local authorities must include Roma settlement issues and improvement of living conditions of the Roma community members in their spatial plans. Pursuant to this section, the system of spatial planning in respect of Roma settlements is to be realised through appropriate local planning solutions. However, the initiative for planning of those settlements may under certain conditions be transferred to or taken over by the Government. The Government themselves may enact spatial planning regulations concerning Roma settlements in cases where a lack of legal regulation or municipal infrastructure could result in a serious threat to health, a long-standing disturbance of the public order or a permanent threat to the environment. In such cases, the tasks taken on by the State are carried out with State funds.

The interests of the Roma community in relation to the national authorities are represented by the Roma Community Council of the Republic of Slovenia, an umbrella organisation of the Roma community (section 9 of the Act). The Council consists of representatives of the Roma Association of Slovenia and the representatives of the Roma community in municipal councils. Pursuant to the Roma Community Act, the Government have a duty to adopt, in cooperation with the Roma Community Council and the municipalities, a programme of measures providing for obligations and tasks to be carried out at the national and local levels (section 6 of the Act). At the national level, the monitoring and protection of the special rights of the Roma community are primarily ensured by the Office of the Government of the Republic of Slovenia for National Minorities (Urad Vlade Republike Slovenije za narodnosti).

In March 2010 the Slovenian Government adopted a National Programme of Measures for Roma for the Period 2010-15 in which it defined priority areas — housing, education, employment and health care — which required specific short-term and long-term measures to improve the situation. The Government stated that the Roma settlements had not been subject to permanent regulation or controlled development. The absence of comprehensive measures and the lack of investment funds had resulted, inter alia, in poor public utilities. The Government pointed out that under the Spatial Planning Act, the municipalities were required to prepare municipal spatial plans, and encouraged them to include Roma settlements in those strategic plans, so as to provide for the redevelopment of such settlements which were mostly unlawfully occupied and the result of haphazard construction.

In the Fourth report on the situation of the Roma community in Slovenia (2015), in which the Government presented the implementation of the Roma Community Act and the National Programme of Measures for Roma, they noted that some municipalities had not yet adopted municipal spatial plans, which had prevented the Roma settlement in those areas from benefiting from legalisation and spatial development. Neither had some municipalities opened calls for submission of applications for public rental housing which would have allowed the members of the Roma community to apply for it, should they so wish. The Government submitted that the State did not have any means of coercing the municipalities into action. They did note, however, that housing issues were closely related to the enjoyment of human rights such as access to safe drinking water and sanitation. The State had a duty to provide for the enjoyment of those rights at all levels, as provided in a number of international documents, and the municipalities should act in accordance with those instruments.

This Convention recognises the right of the child to clean drinking water in the context of the right to health as follows:

Article 24

The Resolution recognises the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights, and calls upon States and international organisations to provide financial resources, capacity building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.

The Human Rights Council expressed its concern that approximately 884 million people lacked access to improved water sources and more than 2.6 billion people did not have access to improved sanitation. Affirming the need to focus on local and national perspectives in considering the issue, the Human Rights Council reaffirmed the primary responsibility of States to ensure full realisation of all human rights. It held that they should take steps, nationally and through international assistance and cooperation, especially economic and technical, to the maximum of their available resources, to achieve progressively the full realisation of the right to safe drinking water and sanitation by all appropriate means, including particularly the adoption of legislative measures in the implementation of their human rights obligations.

The Resolution thus calls upon States to, inter alia, continuously monitor and regularly analyse the status of the realisation of the right to safe drinking water and sanitation; assess existing policies, programmes and activities in the sectors of water and sanitation, giving due consideration to waste-water management, including treatment and reuse, and to monitor resources allocated to increase adequate access, as well as to identify actors and their capacity; assess whether the existing legislative and policy framework is in line with the right to safe drinking water and sanitation, and to repeal, amend or adapt it in order to meet human rights standards and principles; ensure free, effective, meaningful and non-discriminatory participation of all people and communities concerned, particularly people living in disadvantaged, marginalised and vulnerable situations.

In its twenty-ninth session from 11 to 29 November 2002, the CESCR adopted General Comment no. 15 (2002) on the right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) which, in so far as relevant, provides:

The then special rapporteur, Catarina de Albuquerque, noted in her Report that at the time of her visit, nearly 100% of the population in Slovenia had access to safe water and 86% of the population were connected to the public water supply system. A comprehensive system of water-quality testing was implemented at the national and municipal levels and tap water in Slovenia met European Union and WHO standards. Slovenia had established strict water-protection zones to prevent the contamination of water sources by agriculture, industry and other activities. Regular tests were conducted by 300 monitoring stations throughout the country to assess water quality. Overall, the special rapporteur concluded that Slovenia had a good framework and system in place for ensuring the provision of safe water to the general population.

Concerning sanitation, over half of the population were connected to a wastewater treatment facility, and the Government was making significant efforts to increase this number further. Where people were not connected to sewerage, they generally had cesspools.

As regards the situation of the Roma and their access to safe water, the special rapporteur noted at the outset that while official statistics reported over 3,000 Roma people were living in Slovenia, some estimates were as high as 10,000, not taking into account those Roma people who were not settled. According to the findings of an analysis on the theme ‘Territorial issues of Roma settlements in Slovenia’ prepared by an expert group tasked to deal with the spatial problems of Roma settlements, about twenty-one of ninety-five settlements in Prekmurje and Dolenjska had no access to water, either from public water works or from a local water source. Many of them also had no access to sanitation.

In order to be connected to the water and sanitation networks in Slovenia, one had to apply to the municipality and present evidence of ownership and a building permit, among other documentation. Although Roma communities had been present in Slovenia for centuries, their settlements had frequently been established in an irregular manner. According to the Report, the authorities had used the ‘illegality’ of the settlements as a principal justification for not connecting these communities to water and sanitation services.

The special rapporteur noted with appreciation that some municipalities had found positive solutions to addressing the sometimes difficult and complex problems associated with the Roma community in Slovenia. For example, some municipalities had waived the requirements outlined above in order to facilitate access to water and sanitation.

With regard to water, the special rapporteur pointed out that while household connections were the ideal solution, in the meantime efforts should be made to find interim solutions. Such solutions could include extending the network to a public water point that would be available to all people living in the settlement, or delivering safe water in tankers. Additionally, urgent measures were necessary to improve the current status of sanitation in many Roma settlements. As with water, interim measures were critical. The special rapporteur pointed out that there were an increasing number of sanitation technologies to choose from that did not require connection to the network.

Paragraph 5 of the European Charter on Water Resources recognises the right to water in the following terms:

The Parliamentary Assembly, stressing that access to water should be recognised as a fundamental human right because it is essential to life on earth and is a resource that must be shared by humankind, and acknowledging that primarily drinking-water resources will become increasingly rare, at a time when needs are increasing, recommended member and non-member States to, inter alia, (a) take the measures needed to ensure that everyone has access to water and sanitation; (b) decentralise water management systems to make them the responsibility of local and regional authorities, and give the latter the necessary legal powers and financial resources; and (c) take steps to make water sanitation techniques more generally available.

The Parliamentary Assembly pointed out that access to safe drinking water and sanitation was recognised as a human right by the United Nations, and noted that fresh water is a limited, fragile resource, but one which is vital for humankind. Regretting that one in six of the world's inhabitants still did not have access to water and that almost one person in two had to live without a waste-water drainage system, the Parliamentary Assembly recommended that member and non-member States, inter alia, recognise that access to water is a fundamental human right, in line with the United Nations General Assembly Resolution 64/292 of 28 July 2010 and United Nations Human Rights Council Resolution 15/9 of 30 September 2010.

In its Report on Slovenia (fourth monitoring cycle) adopted on 17 June 2014, the ECRI noted with concern the lack of access to a safe water supply in or near some settlements. Referring to a study according to which 17% of Roma obtained water from springs or neighbours, 2% from cisterns and 2% had no access to running water at all, the ECRI emphasised that the lack of access to safe drinking water had a direct negative impact on the health of the Roma communities concerned, as well as indirect repercussions on their everyday life in other areas, such as education and employment.

Observing that provision of water was the competence of municipalities, the ECRI established that most of them had waived the obligatory requirement of prior legalisation and had provided access to piped water for informal settlements. However, the Roma settlement of Goriča vas in Ribnica, home to approximately seventy people, around twenty-two of them children of school age, had no water supply, no electricity and no sewerage system.

The ECRI urged the national authorities to take immediate action to ensure that all Roma obtained practical access to a safe water supply in or in the immediate vicinity of their settlements.

In its Conclusions on the Implementation of the Recommendations in Respect of Slovenia Subject to Interim Follow-up adopted on 23 June 2017, the ECRI noted that the Slovenian authorities had opened a public tender for projects relating to utility infrastructure, including water collector wells and pipelines connecting Roma settlements to the distribution system. The amount of EUR 2 million in total was budgeted for the years 2016 and 2017.

The authorities also informed the ECRI that in September 2016 they had provided exceptional funding of EUR 30,000 to ensure access to safe drinking water for the Goriča vas settlement in Ribnica, as well as for two premises in Dobruška vas in Škocjan. However, according to NGOs, only one settlement received water cisterns; as they were not insulated, the water froze in winter. No water was supplied to other informal settlements.

Despite some efforts made by the Slovenian authorities, the ECRI found that the lack of practical access to a safe water supply continued to be a problem for many Roma. It concluded that its recommendation on the provision of safe water supply had not been implemented.

The then Commissioner for Human Rights, Nils Muižnieks, noted in his Report that while the authorities had installed water cisterns in Dobruška vas at the end of 2016 as a short-term solution to ensure access to drinking water, the inhabitants complained that the cisterns were not filled regularly and the water did not stay in them. Most people therefore obtained their water from a stream polluted with sewage and waste from a meat-processing plant nearby. Drinking from or bathing in contaminated streams caused illnesses, such as diarrhoea and skin rashes, to which the children were particularly prone. The lack of water prevented the inhabitants from maintaining basic hygiene. As a result, children were mocked and avoided in school, and adults found it difficult to obtain or keep employment.

In discussions with the Commissioner, various interlocutors agreed that there was a lack of political will on the part of certain local municipalities in the Dolenjska region to resolve the legal status of Roma settlements and to improve the inhabitants' living conditions. They further noted that the State was not putting adequate pressure on the municipalities regarding the matter.

The Commissioner for Human Rights made a general recommendation to the national authorities with regard to poverty reduction and social inclusion. He encouraged the Government to define more clearly the targets of their social policies, so as to enable an assessment of the results, and not simply the level of their implementation. Social policies should be grounded on the relevant national and international human rights framework ensuring that all persons are protected in an equal and non-discriminatory manner.

The Government asserted that no person by the name of Aleks Hudorovič, born on 24 December 2007, could be found in the official records. They suggested that the second applicant's real name was Aleks Kastelic, who had been born on 24 December 2007 and was the son of the first applicant and Ms Marija Kastelic. The second applicant had had that name since birth; therefore the Government argued that his application had been lodged under a false identity and should be considered anonymous and an abuse of the right of application. In support of the latter grounds for inadmissibility, the Government further submitted that the second applicant lived with his mother, in accordance with a custody agreement between his parents. In this connection, the Government claimed that the second applicant's place of residence was connected to the public water-distribution system and had a septic tank. Arguing that he thus had access to drinking water and sanitation facilities, the Government also maintained that he could not claim to be the ‘victim’ of a violation of the Convention within the meaning of Article 34.

Furthermore, the Government challenged the validity of the power of attorney signed by the first applicant on behalf of the second applicant. According to the Government the first applicant had no standing to act on behalf of the second applicant, since his mother had custody of the child. Noting that the present case does not involve a conflict between the parents over the second applicant's interests, the Government argued that the first applicant's position as a father could not be regarded as a sufficient basis to bring an application on behalf of the second applicant.

The applicants disputed the Government's allegations of an abuse of the right of application, submitting that they had merely given the incorrect name by mistake and that they had had no intention to mislead the Court. In their view, the identity of the second applicant was not in dispute; therefore, his application could not be considered anonymous. The representatives of the applicants pointed out that the applicants' lack of education and illiteracy, coupled with the language barriers, made communication with them very challenging.

As regards the second applicant's residence, the applicants submitted that despite the formal custody agreement granting custody to his mother, he spent much of his time with his father.

Lastly, enclosed with their observations on the applications in question, the applicants submitted a new power of attorney on behalf of the second applicant signed by his mother, Ms Marija Kastelic.

The Court observes that although the respective positions of the Government and the applicants differ, they both relate to the application of Article 34 of the Convention, taken alone or in conjunction with Article 35 § 2 (a). These provisions, in so far as relevant, are worded as follows:

Article 34

Article 35

The Court has held that an application is to be regarded as anonymous if the case file does not contain any information enabling the Court to identify the applicant (see ‘Blondje’ v. the Netherlands (dec.), no. 7245/09, ECHR 2009). In the present case, the Court notes that the applicants correctly stated most of the facts pertaining to the second applicant's identity, notably his first name, date of birth and family relationship with Mr Branko Hudorovič, the first applicant in case no. 24816/14. However, they made an error by attributing to the second applicant an incorrect surname. He was improperly designated by the surname of his father, whereas in fact he bears the surname of his mother.

Nevertheless, as is evident also from the Government's objection in which they identified the correct name of the second applicant, the incorrect naming did not prevent his identification. The Court considers that despite this error on the part of the applicants, the facts and circumstances set out in the application sufficed to dispel any doubts as to the second applicant's identity. His identity as Aleks Kastelic was subsequently explicitly confirmed by the applicants' representatives, who submitted that the incorrect name had appeared on the application owing to the difficulties in communicating with the applicants.

In the Court's opinion the case therefore contained sufficient information enabling it to identify the second applicant (contrast ‘Blondje’, cited above). Furthermore, none of the elements in the case file, nor the attitude of the applicants, imply that an attempt was made to mislead the Court and pass the second applicant off under a false identity. Therefore, the Court finds that the application cannot be regarded as anonymous or an abuse due to an incorrect indication of the second applicant's surname in the initial application.

Secondly, the Government disputed the second applicant's victim status and claimed that he had abused the right of individual application on account of the fact that he had been resident with his mother and had had access to drinking water and sanitation facilities at her place of residence. The Government further challenged the validity of the power of attorney signed by the first applicant on behalf of the second applicant, arguing that it should have been given by the second applicant's mother, who had been granted custody of him and was therefore his legal representative.

As regards the first limb of this objection, the Court observes that the Government's argument focused on the second applicant's place of residence; however, it was not disputed that the first applicant had contact with the second applicant, as confirmed also by the report on the family situation prepared by the Ribnica Social Work Centre (see paragraph 6 above). Neither did the Government dispute that the second applicant spent a considerable amount of time at the first applicant's residence. Therefore, the Court can accept the applicants' submission that the second applicant, while maintaining his primary residence with his mother, at the material time also spent time at the first applicant's residence. In the Court's opinion, while the possibly limited amount of time spent there can affect the assessment of certain aspects of the second applicant's complaints, it cannot be decisive for the decision on his victim status, nor can it constitute an abuse of the right of application. The Court considers that, to the extent that the second applicant actually lives at the first applicant's residence, he endures the same living conditions as the first applicant and is therefore entitled to complain about them to the Court.

As to the second limb of the Government's objection, namely the alleged invalidity of the power of attorney, the Court observes that the case before it does not raise a question of family law, but, rather, hinges on the second applicant's living conditions. It therefore takes the view that any person who is entitled under domestic law to represent the second applicant in that type of proceedings can also act on his behalf before the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII, with further references). The Government submitted evidence that the second applicant's mother had been granted custody of him and argued that she was therefore his only legal representative. The applicants did not dispute this, but submitted another power of authority on the second applicant's behalf, signed by his mother. The Court is therefore satisfied that the applicants have rectified any error regarding the question of which of the parents was entitled to represent the second applicant in the proceedings before the Court. It accordingly finds that the second applicant is entitled to claim to be a victim of the alleged violations of the Convention.

Furthermore, the Court notes that the shortcomings in the application such as examined above may, in principle, also have implications within the meaning of Rules 45 and 47 of the Rules of the Court, which set out the formal requirements regarding, inter alia, a duly completed power of attorney or authority form (Rules 45 § 3 and 47 § 1 (c)) and the indication of the applicant's name on the application form (Rule 47 § 1 (a)). Failure to comply with the requirements regarding the application form may have direct consequences for the determination of the date of introduction of the application for the purposes of Article 35 § 1 of the Convention (see, with regard to the authority form, Kaur v. the Netherlands (dec.), no. 35864/11, § 13, 15 May 2012, and Kokhreidze v. Georgia and Ramishvili v. Georgia (dec.), nos. 17092/07 and 22032/07, § 17, 25 September 2012). Specifically, the latter date is in principle decisive for the purpose of assessing whether an application has been lodged within a period of six months of the date on which the final decision was taken in the domestic proceedings.

In the present case, however, the Court does not find the date of the introduction of the application to be decisive for the assessment in question. Thus, the situation complained of concerns inadequate living conditions coupled with an alleged continued failure of the authorities to act to improve them. In this connection, the Court observes, without prejudging the merits of the present case, that in the case of Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, §§ 107–109, ECHR 2005 VII (extracts)), comparable complaints of poor living conditions, albeit in combination with a number of other factors pertaining to the applicants' rights to respect for their private and family life and their homes, were found by the Court to amount to a violation of Article 8 of the Convention of a continuing nature. The Court considers that in this case also the alleged prolonged failure of the authorities to ensure access to water and sanitation, which according to the applicants persists to date, amounts to a continuing situation. The Court further reiterates that in cases where there is a continuing situation against which no effective domestic remedy is available, the six-month period runs from the cessation of that situation (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §§ 96–97, 21 July 2015, with further references). Given that no objection of non-exhaustion of domestic remedies was raised by the Government, in the context of the present case this means that irrespective of the deemed date of introduction of the application the latter cannot be rejected as out of time.

The Government's objections with regard to the second applicant in case no. 24816/14 must therefore be rejected.

The Government pointed out that Ljubo Novak and Dunja Kočevar, the first and the second applicants in case no. 25140/14, had signed a power of attorney for all twelve of their children, although Pamela Novak, who had been born on 31 October 1994, had already reached the age of majority by the date the application had been lodged. Arguing that the third applicant should have signed the power of attorney by herself, the Government challenged its validity and, in substance, the third applicant's victim status.

Enclosed with the applicants' observations on the applications in question, the third applicant submitted a new power of attorney bearing her own signature. In addition, the applicants' representatives, reiterating the same argument as the one set forth above in respect of Aleks Kastelic (see paragraph 80 above), argued that the applicants' lack of education and poor command of the Slovene language made communication with them very difficult.

The Court notes that the applicants' complaints concern, first and foremost, an alleged failure by the State to provide them with adequate access to drinking water and sanitation, with consideration to their specific needs as members of the Roma community and their different lifestyle. In the Court's opinion, the present case raises mainly issues under Articles 8 and 14 of the Convention. These complaints will therefore be examined first.

In view of the above conclusions, it is not necessary for the Court to examine the Government's objections of abuse of the right of application and lack of victim status in respect of all applicants.