Regional Decisions: European Court

Dzemyuk v. Ukraine

The applicant complained that the construction of a cemetery near his home in Tatariv, in Yaremeche, violated his right to respect for his home and private life, in violation of Article 8 of the European Convention.  Specifically, he argued that the cemetery had led to the contamination of his water supply.  The European Court stated that in the absence of actual damage to the applicant’s health, the Court must establish whether the potential environmental risks established a close link with his private life and home sufficient to affect his quality of life.  It noted that the cemetery was sited in clear and blatant violation of applicable environmental health and sanitary regulations, which prohibited placing it in close proximity to residential buildings and water sources.  Therefore, the cemetery reached the minimum level of interference with the right to respect for home and private life to trigger application of Article 8.  In deciding whether the State had met the requirements of Article 8, the Court found that because the cemetery was built and used in breach of the applicable domestic regulations, “the interference with the applicant’s right to respect for his home and private and family life was not ‘in accordance with the law’ within the meaning of Article 8 of the Convention.”

Brincat and Others v. Malta

The applicants were employees at Malta Drydocks Corporation (MDC), a state-owned enterprise, where they alleged that they had been constantly and intensively exposed to asbestos.  They brought their complaints under Articles 2 and 8 of the European Convention.  Additional applicants were the wife and children of Mr Attard, a former employee of MDC, who had died as a result of mesothelioma, a malignant cancer linked to exposure to asbestos.

With respect to Article 2, the Court reiterated that it “does not solely concern deaths resulting from the use of unjustified force by agents of the State but also . . . lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.  This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous.”  The Court stated that these obligations may apply in cases dealing with exposure to asbestos at a workplace run by a public corporation owned and controlled by the Government.  The Court noted that it has applied the Article both when an individual has died and “where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application,” including cases involving persons suffering from serious illnesses.   The Court considered that Article 2 applied to the complaint brought by the survivors of Mr Attard, but not to the complaint of the other applicants, who had neither been diagnosed with malignant mesothelioma nor any other condition related to asbestos of a life-threatening nature.  The Court noted, however, that “in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8,” which it stated did apply to the present case.

Drawing on earlier decisions, including Kolyadenko and Others v. Russia, the Court reviewed the basic principles:

“The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels.  As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres” (citations omitted).  The Court stated that in determining whether a State has complied with its positive obligation, the Court must consider the particular circumstances of the case, including “the domestic legality of the authorities’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved.”

The Court also stated that Article 8 requires national authorities “to take the same practical measures as those expected of them in the context of their positive obligation under Article 2.”

After reviewing scientific and legal attention to the effects of asbestos on health beginning in the 1930s, the Court concluded that the Maltese Government knew or should have known of the dangers at least as of the early 1970s.  It considered that waiting 15 years, until the mid-1980s, to adopt specific legislation to address the problem “can hardly be seen as an adequate response in terms of fulfilling a State’s positive obligations.”  Moreover, it stated that from the mid-1980s to the early 2000s, when the applicants left the MDC, “the legislation was deficient in so far as it neither adequately regulated the operation of the asbestos-related activities nor provided any practical measures to ensure the effective protection of the employees whose lives might have been endangered.”  In addition, the legislation appears to have been unenforced.  Nor were other practical measures taken, or access to information provided to the applicants.  The Court concluded that the Government had failed to satisfy its positive obligations under Article 2 (with respect to the survivors of Mr. Attard) and Article 8 (with respect to the other applicants), and awarded damages.

The Court rejected the applicants’ claim under Article 3, which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Udovicic v. Croatia

The applicant complained that noise from a bar below her home interfered with her rights protected by Article 8 of the European Convention.  The Court recalled that “Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, this may involve those authorities adopting measures designed to secure respect for private life even in the sphere of relations between individuals.  Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar.”  Although the evidence was mixed, the Court concluded that the disturbances from the bar reached the minimum level of severity that required the authorities to implement measures to protect the applicant.

The Court noted that there are two aspects to its assessment of a governmental decision under Article 8:  the Court may assess the substantive merits of the government’s decision, and it may review the decision-making process itself.  On the second point, the Court concluded that by allowing the situation to persist for more than ten years without finally settling the issue, the State had “failed to approach the matter with due diligence and to give proper consideration to all competing interests, and thus to discharge its positive obligation to ensure that applicant’s right to respect for her home and her private life.”  It awarded the applicant damages.

Koceniak v. Poland

The applicant complained that the authorities had failed to prevent his neighbor from using her property as a slaughterhouse and meat-processing facility, which interfered with his rights under Article 8.  The Court noted that “under Article 8 the alleged nuisance must have attained the minimum level of severity required for it to amount to an interference with applicants’ right to respect for their private lives and their homes.  The assessment of that minimum is relative and depends on all the circumstances: the intensity and duration of the nuisance, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards symptomatic of life in every modern city.”  The Court also stated that it may review the decision-making process to ensure that it balances the interests of the community against the individual’s right to respect for his or her home and private life.  “[A]lthough Article 8 contains no explicit procedural requirements, that process must be fair and must afford due respect to the interests of the individual safeguarded by Article 8.  In particular, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight.”

In this case, the Court held that the applicant did not substantiate his complaint.  He did not, for example, provide any medical or environmental expert opinions or other evidence of the damage allegedly caused to him, or show that the pollution exceeded safe levels set by the applicable regulations.  As a result, the Court found the application inadmissable.

Eckenbrecht and Ruhmer v. Germany

The applicants live near the Leipzig/Halle airport, and complain that the expansion of the airport would substantially affect their private and family life.  On the substantive merits, the Court reiterated that “in cases raising environmental issues the State must be allowed a wide margin of appreciation.”  The national authorities are “in principle better placed than an international court to assess the requirements relating to the operation of an airport in a particular local context and to determine the most appropriate environmental policies and individual measures.”  It noted the desire to turn the airport into an international hub for air freight, with positive economic effects for the region, and stated that under Article 8(2), “restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others.”

The Court recalled the “settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. . . . A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake.”  In this case, the Court observed that the planning materials and expert reports were made public, the residents affected by the planning had the right to participate actively, and there was access to judicial review.   The Court concluded that because the German courts took into account all relevant factors and balanced them in a reasonable manner, “the impugned decisions cannot be held to have overstepped the margin of appreciation as regards Article 8.”

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).

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.