6 February 2019
Analysis from Malgorzata Kwiedacz-Palosz, ClientEarth
Cordella and Others v. Italy (ECtHR: nos. 54414/13 and 54264/15)
Although the provisions of the European Convention on Human Rights (ECHR) are not specifically designed to provide general protection of the environment as such, individuals do occasionally seek justice in environmental matters by submitting their applications to the European Court of Human Rights in Strasbourg (ECtHR). And they often succeed.
As the most recent example, on 24 January 2019 the ECtHR delivered its judgement on the case of Cordella and Others v. Italy, lodged by 180 applicants from the municipality of Taranto (Italy) and its neighbouring areas. The applicants complained about the effects of toxic emissions from the Ilva steel plant in Taranto on the environment and their health, and about the ineffectiveness of domestic remedies.
In its judgment, the Court unanimously found a violation of the applicants’ right to private life (Article 8 ECHR) and their right to an effective remedy (Article 13 ECHR).
The ECHR does not permit an actio popularis (article 34 ECHR), so the Court first assessed whether the applicants had victim status. In this regard, the Court considered that the environmental risk caused by the steel plant was particularly high in certain towns and consequently found that 19 applicants, who had not lived in one of these towns, did not have victim status. Furthermore, on the basis of the reports confirming the link between the steel production and the health situation of the region’s population, the Court concluded that the applicants’ health had deteriorated as a result of their prolonged exposure to the industrial emissions from the Ilva steelworks.
The Court further referred to its well-established case-law (López Ostra v. Spain, case no. 16798/90 and Dubetska and Others v. Ukraine, case no. 30499/03) and found that lack of reaction to air pollution by a steel plant and the persistence of a situation of environmental pollution endangering the health and well-being of the applicants had violated their right to private life.
Most importantly with regard to access to justice, the Court considered that the applicants did not have access to an effective remedy, as required by Article 13 of the Convention. Contrary to the Government’s submissions, the ECtHR held the applicants were not able to effectively complain to the national authorities concerning the measures to secure decontamination of the relevant areas. The Court found that none of the criminal, civil and administrative legal avenues presented by the Italian government were directed at ensuring the above-mentioned decontamination of the relevant areas. What is more, the Court noted that only the Minister of Environment could require the reparation of environmental damage, whereas the individuals could only encourage him to bring an action before the judicial authorities.
Lastly, the Court decided to specify the actions the Italian Government should carry out in order to execute the judgement, such as the essential and urgent clean up of the factory and the region affected by the environmental pollution and the rapid implementation of the environmental plan.
It is not the first case before the Court in Strasbourg where the issue of access to justice arose. The ECtHR has mainly considered the right to access to justice in environmental matters in relation to the right to a fair trial (Article 6 ECHR), for example, Zander v. Sweden (case no. 14282/88) where it took into account whether the applicants had standing in applicable national laws.
Furthermore, the ECtHR had also previously considered the issue of access to justice in environmental matters with reference to the right to respect private and family life (Article 8 ECHR). The ECtHR expressly held that the right guaranteed under Article 8 includes a right for the individuals concerned to appeal environmental decisions, act or omission to the courts where they consider that their interests or comments have not been given sufficient weight in the decision-making process (Taskin and Others v. Turkey, case no. 46117/99 and Giacomelli v. Italy, case no. 59909/00). Moreover, in Taskin, the Court also specifically referred to the Aarhus Convention.
Unfortunately, in Cordella the Court did not refer to the standards required by the Aarhus Convention in the judgment. This is probably because the applicants did not rely on the provisions of the Convention but as already expressed in a dictum from the Guerra judgment: “… since [the Court] is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission.” A direct reference to the Aarhus Convention would have been an added-value of this judgment.
Nevertheless, in a way, the Court went further in Cordella, by declaring that the applicants’ right to an effective remedy had been violated. This is important as it clearly stated that Italian law did not provide the applicants with measures to secure decontamination of the relevant areas. However, it is not the first case where the Court found a violation of Article 13, as already in case Hatton and Others v. the United Kingdom (case no. 36022/97) it noted that the applicants, who complained of excessive night-time noise from airplanes landing and taking off from Heathrow Airport, had not had a remedy at national level to enforce their Convention rights.
The Court thereby upheld the applicants’ right to access to justice and demonstrated once again that it could play an important role in ensuring the observance of the standards required by the Aarhus Convention.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.