Case Studies Archive

Communities of the Sipakepense and Mam Mayan People v. Guatemala

(Admissibility Decision), Report No. 20/14

The petition, which was received on Dec. 11, 2007, alleges that the State of Guatemala authorized the Marlin Mine I project without free, prior and informed consultation with the affected indigenous communities, which has allegedly caused grave consequences, including the contamination of the Tzala River and its tributaries, the only sources of water for consumption and subsistence activities.  They allege that a large number of inhabitants, mainly children, have suffered from health problems as a result of the water pollution.  The Commission finds the petition admissible in relation to the claims arising under articles 5 (right to humane treatment), 8 (right to a fair trial), 9 (freedom from ex post facto laws), 13 (freedom of thought and expression), 19 (rights of the child), 21 (right to property), 23 (right to participate in government), 24 (equal protection), and 25 (judicial protection) of the American Convention, and inadmissible in relation to the claims arising under articles 11 (right to privacy) and 26 (progressive development of economic, social and cultural rights).

Schiopu and Verzescu v. Romania

The applicants owned land in the town of Ramnicu-Valcea that was expropriated by the communist regime.  When it was returned to the applicants in the 1990s, the land had ten leaking oil tanks.  The applicants asked a Romanian court to order the removal of the tanks at the expense of the town, but their request was denied.  They then argued to the European Court of Human Rights that the oil tanks prevented them from using their property and diminished its value in violation of Article 8 of the European Convention and Article 1 of the Protocol No. 1 to the Convention.

The Court stated that while “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely without, however, seriously endangering their health,” to show that pollution has adversely affected one of the rights safeguarded by Article 8, it is necessary to provide “evidence of a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment.”  The Court emphasized that “Neither Article 8 nor any of the other Articles of the Convention is specifically designed to provide for general protection of the environment as such.”  In this case, the Court held that the applicants had not shown that the damage to their land directly impinged on their own rights under Article 8, since they were not using the land in question.

Under Article 1 of Protocol No. 1, which provides that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions,” the Court reiterated that any interference with this right “must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.  In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought. . . . [T]he Court must, therefore, ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden.”  For several reasons, including that the oil tanks occupy a relatively small part of the property, the Court held that the refusal of the Romanian court to order the removal of the tanks did not impose a disproportionate and excessive burden on the applicants.

Bor v. Hungary

A Hungarian national who owns a house across the street from the Zalaergerszeg Railway Station complained that trains there, operated by the Hungarian Railway Company, created so much noise as to make his house virtually uninhabitable between 1988 and 2010, when measures aimed at reducing the noise were finally implemented.  The European Court stated that it had “already held that noise significantly above statutory levels, to which the State has not responded with appropriate measures, may as such amount to a violation of Article 8 of the Convention,” which protects the right to respect for one’s private and family life, and one’s home and correspondence.  It held that while the State enjoys a margin of appreciation in deciding on the steps to be taken to comply with Article 8, “the existence of a sanction system is not enough if it is not applied in a timely and effective manner.”  It therefore held that the State had failed to meet its positive obligation to guarantee the applicant’s right to respect for his home, in violation of Article 8.  It also held that the excessive length of the proceedings violated the requirement that proceedings take place in a “reasonable time” under Article 6(1).

Aymara Indigenous Community v. Chile

(Admissibility decision), Report No. 29/13

The petitioners filed a complaint on Nov. 21, 2006, alleging that the State of Chile had deprived the Community of its rights in a spring called the Socavon de Chusmiza, by granting the water rights to a corporation.  The Commission decided that the claims based on articles 8 (right to a fair trial), 21 (right to property), 22 (freedom of movement), 24 (right to equal protection), and 25 (right to judicial protection) of the American Convention were admissible.

Maho Indigenous Community v. Suriname

(Admissibility Decision), Report No. 9/13

This petition, which was originally filed on Dec. 16, 2009, alleged that the State has granted concessions and permits to third parties to allow them to exploit the territory and natural resources that the Maho Community has traditionally occupied and used.  On Oct. 27, 2010, the Commission granted a precautionary measure asking the State to ensure that the Maho Community is able to survive on the territory reserved for it by the State and to prevent any intrusion by persons outside the community, until the Commission decides the merits.  In the admissibility decision, the Commission decided that the Community’s claims based on articles 3 (right to recognition), 5(1) (right to physical, mental, moral integrity), 13 (freedom of thought and expression), 21 (right to property), and 25 (right to judicial protection) of the American Convention were admissible, and that the claim based on article 4(1) (right to life) was not admissible.

 

Kolyadenko and Others v. Russia

The European Court of Human Rights held that the City of Vladivostock Administration and the Promorskiy Regional Administration of Russia violated Articles 2 and 8 of the European Convention on Human Rights by failing to maintain the channel of the Pionerskaya River and failing to enact appropriate legislative and remedial measures to prevent and mitigate the risk of flooding, which subsequently resulted in substantial property damage and danger to lives of Vladivostock residents. Articles 2 and 8 recognize the rights to life and to respect for the home, respectively. The Court found Article 2 to have been violated both substantively and procedurally, due to the State’s lack of adequate judicial response to the allegations of infringement on the right to human life. The Court held the Russian State accountable for damages sustained by residents as a result of the violations.

Hardy and Maile v. The United Kingdom

The European Court of Human Rights held that the Government of the United Kingdom fulfilled its obligations under Article 8 of the European Convention on Human Rights in enacting and abiding by a coherent regulatory and legislative framework governing the construction and operation of two liquefied natural gas (“LNG”) terminals at Milford Haven Harbour. While the Court recognized that the applicants’ objection to the adequacy of the marine risk assessment prepared for purposes of hazardous consent and planning grants did pertain to a matter sufficiently linked to the right to respect for their homes, as residents of Milford Haven,  the Court stated that a decision does not require that comprehensive and measurable data be available in all aspects of the matter. The Court found that extensive reports and studies were carried out in respect of the proposed terminals, information and opportunities for public involvement in the planning were provided, and applicants were given the opportunity to seek judicial review of planning grants and hazardous consents, thereby fulfilling the State’s obligations regarding Article 8.

Di Sarno and Others v. Italy

The European Court of Human Rights held that Italian authorities violated Articles 8 and 13 of the European Convention on Human Rights due to their failure to ensure proper waste collection treatment and disposal for the residents of the municipality of Somma Vesuviana, in Campania. Articles 8 and 13 recognize the right to respect for private lives and homes, and the right to procure effective domestic legal remedies in the event of a violation, respectively. The Court held that, prior to May of 2008, there existed a “waste crisis” in Campania, in which the environment was polluted by the accumulation of rubbish on the streets due to the State’s failure to enact appropriate regulatory measures regarding waste management, and therefore held the State accountable for damages sustained by area residents.

 

Zammit Maempel v. Malta

The European Court of Human Rights held that the Republic of Malta was entitled to strike a balance between affected individuals and the community as a whole with regards to enacting legislation and regulations concerning the vicinities in which fireworks were allowed to be set off and therefore did not violate Article 8 of the European Convention on Human Rights, which recognizes the right of European peoples to respect for their private lives and homes. While the Court recognized that the applicants have a substantial interest in living free of noise pollution, it determined that the State did not err in weighing that interest against the economic and cultural traditions of the Maltese as a whole, in shaping the regulatory policies regarding fireworks. The Court held that, absent a fundamental procedural flaw in governmental decision-making, there was no violation of Article 8.

Orlikowscy v. Poland

The European Court of Human Rights held that applicant’s complaint regarding butchery noise pollution did not establish the existence of an environmental hazard or pollution that exceeded regulatory safety levels and therefore could not find that the Republic of Poland had failed to take reasonable measures under Article 8 of the European Convention on Human Rights, which recognizes the right to respect of private life and home. The Court determined that a complaint much reach a minimum level of severity to implicate Article 8, which was not the case here. However, the Court held that length of the domestic proceedings, spanning a 12 year period, violated Article 6(1) of the European Convention, which recognizes the right to a hearing tribunal within a reasonable period of time in matters of civil rights and obligations, and it awarded the applicant non-pecuniary damages.