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Tag: RighttoFamilyLife

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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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Paposhvili v. Belgium, [2016] ECHR 1113 (13 December 2016)

Date of judgement: 13 December 2016

Court: European Court of Human Rights

Citation(s):  Paposhvili v. Belgium – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113 (13 December 2016)

Short summary 

The Grand Chamber of the European Court of Human Rights (ECtHR) memorably reshaped its Art. 3 case law on the expulsion of seriously ill migrants in leaving behind the restrictive application of the high Art. 3 threshold set in N v. the United Kingdom Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008, and pushed for a more rigorous assessment of the risk of ill-treatment. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Categorisations

Private v State, International Law, Refugee Law, Civil Rights Law, Migration and Health, Right to Family, Issues in Litigation, Evidence Admissibility

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 2 and 3 of the European Convention on Human Rights (ECHR). 

Key facts

The applicant, a Georgian national facing removal from Belgium due to criminal activity, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. The applicant claimed that, if removed to Georgia, he would be unable to access adequate medical treatment and was therefore at risk of ill-treatment in violation of his rights under Art. 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment), and accelerated death in breach of his right to life under Art. 2 ECHR. The applicant also argued that his removal to Georgia in conjunction with a ten-year ban on re-entering Belgium would result in separation with his family, who had leave to remain in Belgium. 

Previous instances 

The Fifth Section Chamber judgment of April 2014 held that the applicant’s removal would not encroach upon his Art. 3 or Art. 8 (right to private and family life) rights under the ECHR. The case was later referred to the Grand Chamber, and the applicant died pending these proceedings. The applicant’s family continued proceedings before the Grand Chamber of the ECtHR. 

The ECtHR found that there would have been a violation of Art. 3 and 8 ECHR if the Applicant had been removed to Georgia without the Belgian authorities having assessed the risk that he faced from removal in light of the information concerning the state of his health and the existence (or lack thereof) of appropriate treatment in Georgia.

Summary of holding

The ECtHR held that the severity of ill-treatment under Art. 3 must attain a minimum level and that the suffering flowing from a natural occurring illness may be (or risks being) exacerbated by treatment, whether flowing from conditions of detention, expulsion, or other measures for which the authorities could be held responsible. 

The ECtHR highlighted that since its decision in N v. the United Kingdom, an extremely high threshold (exceptional circumstances) had been set when applying Art. 3 to seriously ill persons. Indeed, only those close to death appear to be covered by the provision. In this case, the ECtHR determined that Art. 3 is triggered where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. 183). The ECtHR recognised here that the application of Art. 3 only to persons close to death had deprived those whose condition was less critical, but who were still seriously ill, from “the benefit of that provision” (para. 181).

In ensuring that Art. 3 is respected, the ECtHR went on to highlight that appropriate procedures need to be put in place to allow the individual to adduce evidence of the potential risk upon return to the country of origin, and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. Thus, the applicant is not obliged to present clear proof that they would be exposed to proscribed treatment. 

The authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. So, states must assess the impact of removal upon the individual by comparing their health prior to removal and how it would evolve after transfer. 

Factors to be considered in this assessment include whether the care is generally available in the receiving State, whether it is sufficient and appropriate in practice for the applicant’s treatment, and whether the individual will actually have access to this care and these facilities in the receiving State. This includes considerations relating to costs, existence of social networks and distances to access the relevant treatment.

Potential takeaways for future climate migration litigation

  • Threshold for breach of Art.3 ECHR. The ECtHR established in N v. United Kingdom that removing a non-national suffering from a serious illness to “a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case” (para. 42). The case set a very high threshold to finding breaches of Art. 3 where the issue was attributable to the State’s lack of resources to deal with a naturally occurring phenomenon. 
    • By contrast, in the case at hand, the ECtHR left behind the restrictive application and pushed for a more rigorous assessment of the risk of ill-treatment. 
  • Practice access to treatment. The judgement does not simply discuss whether adequate treatment is generally available in the receiving State but, crucially, whether the treatment would be accessible to the person concerned, addressing practical as opposed to theoretical access to sufficient care.
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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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Taskin and Ors. v. Turkey (2006) 42 EHRR 50

Date of judgement: 3 March 2005

Court: European Court of Human Rights

Citation(s): Application no. 46117/99, (2006) 42 EHRR 50

Short summary

The European Court of Human Rights held that environmental pollution could affect Art. 8 of the European Convention on Human Rights (right to private and family life). The Turkish Government had violated Art. 8, even if such pollution did not have serious health-related consequences.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision

Given the jurisdiction of the Court of Human Rights, the Taskin judgement is significant and bears considerable weight.

Key facts

The applicants were residents of Bergama. In 1992, the respondent had granted permits to operate a gold mine in Ovacik, a district within Bergama. The applicants contended that as a result of the granting of these permits, they had suffered and continued to suffer the effects of environmental damage – namely the inability to move freely and noise pollution – from the use of machinery and explosives. 

Previous instances

Subsequently, the applicants sought judicial review in the Administrative Court of the Ministry of Environment’s of the decision to issue the permits on the grounds of the risks posed to human health and safety. The application was dismissed by the Court in 1996, but the provincial governor of the area agreed to suspend mining operations for one month in the subsequent year in the interests of the public. 

In 1997 the Supreme Administrative Court overturned the Administrative Court’s decision, finding that the mining activities did not serve the public interests towards health and safety measures. This was later upheld by the Administrative Court. However, irrespective of these decisions and subsequent orders, the mine reopened in an experimental capacity in 2001. 

Ten Turkish nationals lodged an application (no. 46117/99) against the Republic of Turkey to the European Commission of Human Rights in 1998 under Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants contended that the actions of the respondent violated Art. 2 (right to life) and Art. 8 (right to private and family life) of the Convention. Under Art. 8, the applicants alleged that the use of cyanidation operating processes violated their right to private and family life as its uses posed a significant risk (para. 104). The applicants further stated that their judicial rights had not been upheld in accordance with Art. 6 (right to a fair trial) and Art. 13 (right to an effective remedy) of the Convention. Accordingly, they sought compensation for infringement of these rights, and for failure to enforce a judgement. 

The respondents contended that the arguments submitted in respect of Art. 8 were based on hypothetical risks that may or may not materialise. Accordingly, this could not be categorised as a serious and imminent risk (para. 107) as there needed to be a direct effect (para. 108) upon the lives of the applicants. Furthermore, the respondents submitted that Art. 8 was inapplicable as it had previously been determined that the risks of mining did not present any danger for the health of the local population (para. 9), as the government had conducted an Environmental Impact Assessment. The respondent further submitted that Art. 6 of the Convention did not apply for the same reasons (para. 128). 

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