Summary of holding
As there were 161 applicants, the Court considered that it was appropriate to address their claims collectively. The applicants complained that the State had not adopted the necessary legal measures to protect their health and the environment, and failed to provide information about pollution and the correlating risks to their health. Although these complaints relied on both Articles 2 and 8, the Court decided to examine the allegations only under Article 8 of the Convention.
The test to indicate whether an infringement of the environment has violated Article 8 is the existence of an adverse effect on the family life of a person, and not the general degradation of environmental policy. In the instant case, the Court excluded 19 applicants who lived outside the area in which the pollution posed a risk, but accepted the known dangers of the pollution to all others. Although it could not be proven that the pollution inevitably made those exposed to it more vulnerable to disease, the ARPA report of 2017 found a direct causal link between the pollution and high rates of disease compared to other regions. On this basis, the Court found that most applicants had suffered direct harm.
The Court agreed that the applicants failed to exhaust domestic remedies, while also noting that the complaint was of a persistent situation of decades-long environmental pollution. With regard to a supposed lack of material damage, the Court reiterated that claims are still admissible if they reach a minimum threshold for a violation of a right, considering: the nature of the right infringed, the seriousness of the impact of the violation, and the possible consequences which might arise from the violation. Therefore, the strength of scientific evidence underlying the complaints led the Court to dismiss the Government’s argument re: absence of material damage.
With respect to Article 8, the Court reiterated that damage to the environment can affect one’s well-being and deprive one’s enjoyment of their home. The Court held that, should an environmental risk reach such a level of seriousness that an applicant may no longer enjoy his home or private life, then a justified complaint under Article 8 may arise. The positive obligation upon States to put in place regulations when dangerous activity and risk is involved was also emphasised. In applying this to the instant case, the Court found that there had indeed been a violation of Article 8 for the following reasons. First, the numerous scientific reports established a causal link between Ilva’s industrial emissions and the sanitary records of those residing in “high environmental risk” municipalities. Second, the salve-Ilva decree laws and other administrative and legal acts had effectively kept a dangerous situation from coming to an end, in particular, the extension of the deadline for the execution of necessary measures to reduce emission levels. The Court held that both these contributed to the generation of Italy’s responsibilities, noting that the authorities accepted the findings of the scientific reports and still did not put measures in place to safeguard the environment and health of the local population.
With respect to Article 13 on the right to an effective remedy, the Court found that Italy had failed to provide the applicants with the necessary means in national courts to challenge the dangerous status quo of the Ilva plant’s production in Taranto.
Potential takeaways for future climate migration litigation
- Unlike Taskin v Turkey (46117/99), the Aarhus Convention was not explicitly mentioned in the judgment. However, in holding that there had been a violation of Article 13, it is clear that Italian law failed to provide the applicants with the necessary measures to secure the decontamination of the relevant areas. This might be particularly problematic when the contamination of an area is so high, that residents are forced to migrate.
- The judgment shows that although environmental procedural rights are recognised under the ECHR, notwithstanding the Aarhus Convention, they are not guaranteed to the public but only to those directly affected by the harm. This is explicitly clear in the exclusion of the 19 applicants living outside the “high environmental risk” areas.
- The use of scientific evidence to find the causal link between the polluting and the illnesses suffered by the applicants is particularly notable. Although often excluded, this type of evidence was relied on heavily in the Court’s considerations, opening the door for further decisions in similar cases involving scientific evidence to assess the causal link in question.
- Following past case law, this case reiterates both the negative obligation upon States when ensuring that an individual’s right to private and family life is not interfered with, and the positive obligation to put in place measures regulating dangerous activity to ensure that same right is protected (Article 8 ECHR).