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Summary Author: Yusuf Lahham

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Cordella et al. v. Italy

Date: 24 January 2019 

Court: European Court of Human Rights, Strasbourg  

Citation: [2019] ECtHR 029 (Application Nos: 54414/13 and 54264/15)

Short summary  

This case held that the European Convention on Human Rights, Articles 8 (Right to respect for private and family life) and 13 (Right to an effective remedy), imposes an obligation on the Italian state to de-pollute areas contaminated by a steel factory.  

Summary by: Yusuf Lahham

Link to original judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Republic of Italy, the judgment holds the weight of directly applicable constitutional law in Italy. Decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, over 100 Italian citizens, brought a complaint to the ECtHR on the 29th of July 2013, relying on Articles 2, 8, and 13 of the Convention. The complaint stemmed from the harmful emissions a steel factory was producing, affecting inhabitants of the city of Taranto and its neighbouring municipalities.  

Ilva, a company owned by Riva group, operates the largest steelworks complex in Europe, which is located in Taranto, Italy. The harmful impacts of the complex on the local environment have been noted since 1990, when the Italian Council of Ministers listed certain municipalities around Taranto at “high environmental risk.” Between 1997 and 2017, multiple scientific reports were produced from different departments and investigative authorities, detailing the extent of the impact of the emissions on the local people and environment. Most notably, a 2017 ARPA report confirmed the causal link between industrial emissions and health damage in the areas marked “at risk.”  

In 2003, 2004, and 2006, Ilva agreed to organise measures to reduce the environmental impact of the factory, designating a third party to identify the main source of harmful particle emission and introduce authorised limits for emission levels. Decree no. 155, issued under the Air Quality Directive of 2008/50CE, set the deadline for the limiting of polluting production to December 2012. In 2011, the Ministry of Environment issued an AIA (integrated environmental authorization), allowing the company to continue to produce steel, subject to its adoption of BAT (“best available techniques”) to reduce the impact of polluting emissions on the environment. In 2012, a second AIA was granted, modifying the first and fixing new conditions. From 2012-2016, “salva-Ilva” decree-laws were adopted concerning the activity of Ilva in relation to the “imminent” purchase of the company. This effectively postponed the deadline to execute measures to safeguard the environment until 2023.  

Previous instances 

There were several criminal proceedings brought against the managers of the Ilva company for causing an ecological disaster: the poisoning of food substances, failure to prevent accidents at a place of work, degradation of public goods, and the emission of polluting substances into the atmosphere. Some of these cases resulted in convictions in 2002, 2005, and 2007. Furthermore, the Court of Cassation sentenced the managers of the factory in Taranto for atmospheric pollution and the emission of hazardous particles. It was also noted that the production of the particles at the factory continued, despite the agreements made in 2003 and 2004.  

On 31st of March 2011, the CJEU asserted that Italy had failed to fulfil its obligation under Directive 2008/1/EC of the European Parliament on the prevention and reduction of pollution. It was held that Italy had not adopted necessary measures to ensure industrial plants were being operated in accordance with the regulations provided for in the directive. In 2014, the European Commission called upon the Italian authorities to remedy the pollution issue at the Taranto factory site, noting that the emissions from the steel production process had not decreased and were resulting in serious environmental and health consequences for the local population.  

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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Kolyadenko and Others v. Russia

Date: 28 February 2012 

Court: European Court of Human Rights, Strasbourg  

Citation: [2012] ECtHR 338 (Application No. 17423/05)

Short summary  

Six Russian applicants brought a case before the European Court of Human Rights because their government failed to protect their property and possessions from a dangerous flood. The Court held that Russia violated these applicants’ rights under the European Convention on Human Rights by failing to take preventative measures and warn them of the risk of flooding.  

Summary by: Yusuf Lahham 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Russian Federation, a then Contracting State to the ECHR, the judgment had the weight of directly applicable constitutional law in Russia. ECtHR decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, six Russian nationals, brought complaints to the ECtHR between the 21st of April and the 2nd of September 2005, relying on Articles 2, 8, and 13 of the ECHR and Article 1 of Protocol 1. The applicants live near the city of Vladivostok, in an area near the Pionerskaya river and water reservoir, which was heavily affected by a flash flood in August 2001. The applicants alleged that Russian authorities were responsible for the flood and that there had been inadequate judicial response afterwards.    

Vladivostok is located on the southeast coast of Russia, giving it a monsoon-influenced continental climate with humid summers. The month of August is often the rainiest and is marked by typhoons, and it is widely known that the floodplain of the Pionerskaya river is subject to periodic flooding during heavy rains. Between the 7th of June 1999 and the 27th of July 2001, various different authorities in charge of the reservoir and of the region highlighted the fact that the river channel was blocked and needed to be emptied to ensure that no dangerous flooding would occur. However, despite the various different warnings and orders to act, it is unclear whether any significant measures were actually taken.     

On the 7th of August 2001, a heavy rainstorm affected the area. It is estimated that the rain that fell was the equivalent of a full month’s rainfall. By 12 PM, the reservoir was releasing water at a rate of 167 cubic metres per second. Due to the sudden release of water from the reservoir, a nearby area was immediately flooded, engulfing the applicants’ homes. There was no local emergency warning in place and the water rose quickly to a level of 1.50 metres. All 6 applicants suffered damages to their properties and their possessions.      

Previous instances  

A criminal investigation was opened on the 9th of August 2001, and the director of the State-owned company which regulated the reservoir (the Water Company) had criminal proceedings brought against him. However, in January 2003, the criminal proceedings were discontinued. It was contended that the evacuation of water from the reservoir was appropriate given how much rain had fallen on that day, and that such an evacuation was necessary to mitigate the risk of the dam breaking and claiming many lives. An expert report, concluded in January 2003, found that the main reason for the flood was to the blocked channel of the Pionerskaya river, which was littered with waste and overgrown trees and bushes. Consequently, the investigative authorities ordered criminal proceedings to be brought against officials in Vladivostok. Proceedings were brought against officials on the grounds that they had given permission for housing construction in a water protected zone by the river. However, in July 2004, these proceedings were also discontinued for lack of evidence. The civil proceedings the applicants brought were also dismissed in 2004, leaving them with minimal compensation for their losses.  

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Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic, Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Date of judgement: 31 July 1995

Court: United Nations Human Rights Committee

Citation(s): Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Short summary 

This decision of the United Nations Human Rights Committee Violation of Article 26 ICCPR; OHCHR decision on Czech law requiring citizenship as a necessary condition for restitution of confiscated property.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

This case concerns the Czech Republic, a signatory of the Optional Protocol of the International Covenant on Civil and Political Rights, thus the ruling is legally binding in the sphere of International Law.

Key facts

The applicants, Alina Simunek (a Polish citizen) and Jaroslav Simunek (a Czech citizen), were forced to leave former Czechoslovakia in 1987 due to the actions of the security forces of the Communist regime. 

In 1990, following the fall of the Communist government, both applicants returned to the country in order to reacquire their property through the regulations that had been put in place for returning Czech citizens. However, the applicants were informed that between 1989 and 1990, their property had been auctioned and sold by the District National Committee (DNC) of Jablonece. Whilst some items had been destroyed, the real estate was transferred to Mr Simunek’s employer, the Sklarny factory in Jablonece. 

Previous instances 

An arbitration hearing was arranged between the applicants and representatives of the factory after a complaint was lodged against the DNC. However, the latter’s representatives argued that the transfer of real estate had not been conducted illegally. The applicants then requested an investigation by the district public prosecutor on the grounds that the transfer of property had taken place without court proceedings or a court order. An investigation was launched, and a report was produced in November 1990. It asserted that there had been no violation of the relevant regulations and that the applicants’ claims should be dismissed. 

In February 1991, the regulations were amended by Act 87/1991, which set out the conditions for returning Czech citizens to be entitled to restitution. Section 3(1) of the Act stated that those with State-seized property were only entitled to restitution if they were both citizens of the Czech and Slovak Federal Republic, and permanent residents in its territory. Other sections of the Act set out that where a property is illegally possessed and the claimant requests restitution, the burden of proof would be with the applicant to show that there was a valid claim to the property, and to prove how the property was turned over to the State. 

The Act stipulated that a request for restitution had to be submitted within 6 months of the entry into force of the Act, and failure to do so meant that the claim could be submitted to a tribunal within one year of the date of entry into force of the Act.

The applicants had not submitted a claim for restitution to the local courts as required by the Act, because due to Alina Simunek’s Polish citizenship, they did not fulfil the citizenship and residency requirements set out in Section 3(1).

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