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Tag: RightToProperty

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Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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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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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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Xákmok Kásek Indigenous Community v. Paraguay

Date: 24 August 2010

Court: Inter-American Court of Human Rights 

Citation: IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, 24 August 2010, Series C, No. 214 (IACtHR 2010) 

Short summary  

The Xákmok Kásek Indigenous Community lodged a petition against the State of Paraguay before the Inter-American Court of Human Rights, alleging failure to enforce their right to property, especially because of the creation of a private protected nature reserve on their ancestral lands without consultation. The Inter-American Court on Human Rights found that the lack of access to nature implied not only the breach of those people’s human rights, but also constituted discrimination.

Summary by: Lorenza Contin 

Link to Original Judgement

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Weight of decision

The jurisprudence of the Inter-American Court on Human Rights at the nexus between Indigenous people, environment and right to life was already consolidated at the time, and its rulings are presumptively enforceable on the states which appear before it, including Paraguay.

Key facts

Historically, the economy of Indigenous communities in Paraguay was based on hunting, gathering, and fishing, and thus they used to roam a very extensive area of the Chaco region to follow the seasonal patterns of nature. During the process of colonisation of the Chaco, their ancestral lands were gradually privatised, and they were forced into a process of sedentarisation, settling often around new ranches. The Xákmok Kásek Community is formed by members of different peoples, who traditionally inhabited and roamed the area then occupied by the Salazar Ranch in the mid-twentieth century. However, they gradually faced critical restrictions to their customary activities due to the privatisation of those lands.

On 31 January 2008, Paraguay declared a big portion of the Salazar Ranch a private wildlife reserve for five years. Around 4,175 hectares of the reserve are included in the 10,700 hectares claimed by the Community since 1990. Nevertheless, the Community was not informed nor consulted. Paraguayan Law No. 352/94, regulating protected rural areas, establishes that private nature reserves cannot be expropriated while the declaration is in force. It also enshrines a prohibition to hunt, fish, and gather, enforced through armed park guards able to make arrests. Therefore, because of the creation of the reserve, the Xákmok Kásek Community had to leave and move to a small and remote land, “25 de Febrero.”

Because of this process of displacement, the religion and culture of the Community – male and female initiation rites, burial methods, shamanism, and more – have “been almost entirely lost” (¶ 178). Since their departure from the Ranch, the State has supplied scarce quantities of water during some time periods or no water at all during others, and in 25 de Febrero there is no water source. In addition, food was not delivered regularly and, when it was, the quantity was scarce, and it was critically deficient in nutrients. Access to health-care services was extremely difficult – the nearest clinic, operating “deficiently, (¶ 203) being 75 km from 25 de Febrero. “For years the children did not receive general medical care or vaccinations,” (¶ 205) resulting in a high mortality rate among children, and they had to receive their education in the open air.

Previous instances

On 28 December 1990, the Community’s leaders filed an administrative action before the Paraguayan Rural Welfare Institute to reclaim their traditional lands under the provisions of Law No. 904/81, also known as the “Indigenous Communities Statute.”

As the competent administrative bodies did not respond to the administrative action, the Community’s representatives went to the Congress of the Republic on 23 June 1999 to demand the expropriation of their ancestral lands. On 16 November 2000, the Paraguayan Senate rejected their request.

Thus, on 15 May 2001, the Community lodged the petition at stake against the State of Paraguay before the Inter-American Commission on Human Rights. On 2 July 2009, the Commission, alleging that Paraguay had not ensured the traditional property rights of the Community and that this had compromised the Community’s integrity and living conditions, asked the Court to declare the State responsible for the violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 8(1) (Right to Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Right to Judicial Protection) of the American Convention on Human Rights. The Commission asked the Court to order the State to take certain steps as reparation.

On 31 July 2008, the Community filed an action of unconstitutionality before the Supreme Court of Justice against the abovementioned nature reserve declaration, enacted by the State in January 2008. The Prosecutor requested the suspension of the time limit for responding to the action, which remained suspended until the Inter-American Court on Human Rights’ judgment.

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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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Moiwana Community v. Suriname

Date: 15 June 2005

Court: Inter-American Court of Human Rights  

Citation: IACtHR, Moiwana Village v. Suriname, Judgment, 15 June 2005, Series C, No.145 (2005) 

Short summary  

The Inter-American Court of Human Rights (IACtHR)held that the State of Suriname violated the Moiwana’s right to property by its failure to conduct an effective investigation into the events which caused the internal displacement of the Moiwana community. The Court stressed the profound ties of the Moiwana community to their traditional lands which were integral to their identity and existence.  

Summary by: Wong Ho Yin

Link to original judgement

Click here to open the case in PDF format

Weight of decision  

The IACtHR applies the American Convention on Human Rights and States that have recognised the jurisdiction of the IACtHR are bound by its judgments.  As this case originated in an application against Suriname, a then State who recognised the jurisdiction of the IACtHR, the judgment is binding and Suriname must implement its recommendations.  

Key facts 

The N’djuka maroon village of Moiwana faced attacks and massacre by members of the armed forces of Suriname in 1986. Inhabitants of Moiwana were forcibly displaced within Suriname and they were unable to maintain their means of livelihood and subsistence. There was not sufficient investigation of the massacre, not to mention prosecution or punishment of the perpetrators.  

Previous instances  

In 1997, the human rights organization Moiwana ‘86 filed a petition before the Inter-American Commission on Human Rights with respect of Articles 25 (right to judicial protection), 8 (right to a fair trial) and 1(1) (obligation to respect rights) of the American Convention against the State of Suriname. The Inter-American Commission found the petition admissible and made recommendations to Suriname to take actions to address the massacre. After unsuccessful attempts to facilitate compliance with its recommendations, the Inter-American Commission referred the case to the Inter-American Court. 

Summary of holding 

The Court decided that Suriname’s failure to investigate the events has directly prevented the Moiwana community from resuming their lives in the traditional lands which were their ancestral territory.  

The Court held that even when the Moiwana community did not own formal legal title to the territory (as the land belonged to the State), they obtained “official recognition of their communal ownership” of the land by mere occupation of the land pursuant to customary practices. The Court took into account the “unique and enduring ties that bind indigenous communities to their ancestral territory”.(para. 131). The Court opined that: 

“The relationship of an indigenous community with its land must be recognized and understood as the fundamental basis of its culture, spiritual life, integrity, and economic survival. For such peoples, their communal nexus with the ancestral territory is not merely a matter of possession and production, but rather consists in material and spiritual elements that must be fully integrated and enjoyed by the community, so that it may preserve its cultural legacy and pass it on to future generations.” (emphasis added) (see para. 131) 

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Ontunez Tursios v. Ashcroft

Date: 13 August 2002

Court: United States Court of Appeals, Fifth Circuit

Citation: 303 F.3d 341 (5th Cir. 2002)

Short summary 

A Honduran man, fleeing targeted violence stemming from a land dispute and exacerbated by hurricane damage, was denied refugee status in the United States for failing to establish a nexus between his persecution and the grounds for asylum.

Summary by: David Cremins

Link to Original Judgement

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Weight of decision 

This decision is a binding part of the asylum case law developed in the Fifth Circuit (Louisiana, Mississippi, and Texas) and may be persuasive in other jurisdictions in the United States. 

Key facts

The applicant for asylum, Mr. Ontunez-Tursios, moved to the town of La Ceiba in 1994 and joined other campesinos in cultivating a piece of coastal land known as Las Delicias. In 1996, a group of businessmen, wishing to sell Las Delicias to Korean investors, challenged the campesinos possession of the land, unleashing a campaign of violence and intimidation against them, during which at least two campesinos were assassinated. Mr. Ontunez-Tursios found out he was on a hit list and, after being directly threatened several times, fled to the United States, where he applied for asylum in October 1999.

During this violent dispute over land possession, in October 1998 Hurricane Mitch devastated Honduras, including Las Delicias. The storm ruined Mr. Ontunez-Tursios’ land as well as key documentary evidence against the businessmen pursuing him and the other campesinos.

Previous instances

The immigration judge who first heard Mr. Ontunez-Tursios’ case denied him refugee status because his claim did not arise on account of the enumerated grounds for persecution. The Board of Immigration Appeals (BIA) agreed that he failed to show a nexus between his persecution and either his race, religion, nationality, membership in a particular social group, or political opinion, leading to this appeal before the Fifth Circuit.

Summary of holding

In a 2-1 panel decision, the Fifth Circuit affirmed the rulings below, finding that the BIA correctly dismissed Mr. Ontunez-Tursios’ contention that his leadership in the land conflict did not constitute a political opinion or membership in the particular social group of “land rights leaders”. Stripping away the context of land struggle and the impacts of Hurricane Mitch, the court held that his “evidence showed no motive of the persecutors other than a private, economic one.” The court further found that Mr. Ontunez-Tursios did not qualify for withholding of removal because he was at no risk of torture in his home country, and that the Honduran government had not implicitly or explicitly acquiesced to his persecution or torture.

Potential takeaways for future climate migration litigation

  • Increasingly, claims for asylum and other humanitarian protections will have to be considered in the context of climate change. The devastation wrought by Hurricane Mitch in Honduras provides an early example of how an already difficult situation – a violent battle over valuable land between the upper and lower classes in a society – is made worse following disasters. Advocates for climate migrants should note how fights over land and other forms of social violence intermix with a changing climate, including through slow-onset shifts in conditions.
  • As in other cases in jurisdictions around the world, the harm from the climate disaster itself – destruction of land and evidentiary documents – had no bearing on Mr. Ontunez-Tursios’ unsuccessful claim for asylum, even as it exacerbated his vulnerability in his home country.
  • Under United States law, the nexus prong – that persecution must be “on account of” one of the five grounds first laid out in the 1951 Refugee Convention – is often narrowly construed, such that even clear instances of persecutory violence, whether or not connected to climate change, do not qualify even sympathetic applicants such as Mr. Ontunez-Tursios for refugee status.
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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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