Case Law by the European Court on Human Rights

Arrondelle v. UK 26 DR 5 (1982)

This case was about the interference with an individual’s right to private life and home as well as the peaceful enjoyment of his property through aircraft noise from increased flights and extension of flight paths at Heathrow Airport. Article 8 and Article 1 of Protocol No. 1 provided the basis for a ‘friendly settlement’ between the parties in a complaint, alleging nuisance due to the development of an airport and construction of a motorway adjacent to the applicant’s home.

Zimmerman and Steiner v. Switzerland, 8737/79 [1983] ECHR 9 (13 July 1983)

The Court found Article 6 applicable to a complaint about the length of proceedings for compensation for injury caused by noise and air pollution from a nearby airport. The Court held that there had been a violation of Article 6-1.

Oerlemans v. Netherlands, 12565/86 [1991] ECHR 52 (27 November 1991)

This case concerns the question whether the applicant could challenge the lawfulness before a court of an order designating his land as a protected natural site.
Article 6-1 was held applicable because there existed a serious dispute concerning the restrictions on the applicant's use of his property. In the light of the Court's case law, the property right in question was "civil" in nature in the meaning of Article 6-1. The Court ruled, however, that there was no breach of Article 6-1.

Zander v. Sweden, [1993] IIHRL 103 (25 November 1993)

Article 6 provided the basis for a complaint that the applicants had been denied a remedy for threatened environmental harm.[2] The applicants’ claim was directly concerned with their ability to use the water in their well for drinking purposes. Such ability was one facet of their right of property. The entitlement in issue was thus a ‘civil right’ and thus Article 6-1 was applicable. At the material time it was not possible for the applicants to have the relevant decision reviewed by a court. Accordingly, the Court held that there had been a violation of Article 6-1 in their case.

Lopez Ostra v Spain 16798/90 [1994] ECHR 46 (9 December 1994) and
Guerra v. Italy 14967/89 [1998] ECHR 7 (19 February 1998)

Landmark cases include Lopez Ostra v Spain and Guerra v. Italy. In both cases ECHR found the violation of the Article 8 (privacy and family life).
The Court, in Lopez Ostra v. Spain, for the first time held that a failure by the state to control industrial pollution was a violation of Article 8 where there was a sufficiently serious interference with the applicants’ enjoyment on their home and private life.
However, the ECHR noted that regard has to be given to the fair balance between competing interests of individual and community as a whole (balancing the 1st and the 2nd paragraph of the Article 8).
[4]. It is important to note that in some cases[5] the economic interest of a state (which is regarded as the interest of the community as whole) can override the interest of an individual.

However, as the cases Lopez Ostra v Spain and Guerra v. Italy confirm, where a polluting activity is actually violating an existing national law, the State’s overriding economic interest in its continued illegal operation is difficult to assert. Moreover, both cases also point to the positive duty of a state to take measures, which would secure the enjoyment of the individual rights to private life and property (note that the essence of both cases is in a failure of governments to enforce already existing law or a failure to act).

Balmer-Schafroth v. Switzerland, 22110/93 [1997] ECHR 46 (26 August 1997)

The applicants claimed that the failure of Switzerland to provide for administrative review of a decision extending the operation of nuclear facility violated Article 6 (everyone is entitled to a fair hearing by [a] tribunal). Conclusion: the Court held that Article 6-1 of the Convention is not applicable in the instant case.[6]

LCB v. UK (1999) 27 EHRR 212

The applicant’s father, while in the RAF, was exposed to radiation at nuclear testing near Christmas Island in 1957 and 1958.[7] The Court concluded there had been no breach of Articles 2 or 3 concerning the state’s failure to advise the applicant’s parents and monitor her health.

Concerns exposure to nuclear tests; based on Article 2, the Court found no violation because the state had done all it could to avoid risk to life.[8]

Bladet Tromso and Stensaas v. Norway, 21980/93 [1999] ECHR 29 (20 May 1999)

This case refers to the newspaper’s freedom under Article 10 to publish environmental information, regarding the consequences of seal hunting, of local, national and international interest. The Court held that there had been a violation of the Article 10 (freedom of expression).[9] The Court determined that public awareness and the possibility of an informed public debate resulting from the news story took priority over the protection of the reputation of the crew members who had skinned the seals, finding a violation of the Article 10. The Court’s decision embraces an important aspect of human rights and the environment: the right to public information to keep the public aware of when its government engages in environmentally harmful activities, such as skinning seals alive.

Such awareness should trigger public demand for better enforcement of existing environmental laws, such as Norwegian seal hunting regulations in the instant case. Thus, a robust right to freedom of expression can lead to greater public information, which, in turn, can foster enhanced protection of biodiversity.

Hatton and Others v. the United Kingdom, 36022/97 [2003] ECHR 338 (8 July 2003)

The case concerned noise nuisance in the vicinity of London’s Heathrow Airport and in particular the adequacy of the studies carried out by the authorities prior to implementing a system of noise quotas. The Court (Grand Chamber) considered that a fair balance had been struck between the competing interests involved.[11]

Kyrtatos v. Greece, 41666/98 [2003] ECHR 242 (22 May 2003)

Environmental considerations were also raised in Kyrtatos v. Greece (the refusal of domestic authorities to comply with or their delay in implementing binding decisions of courts), in which one aspect of the applicants’ complaint under Article 8 related to the effect of tourist development on an important wildlife refuge adjacent to property owned by one of the applicants. The Court held that there had been a violation of Article 6 of the Convention due to the non-compliance with the judgements pronounced, and as regards the length of the two sets of proceedings; in relation to Article 8 the Court held that there had been no violation.[12]

Taşkin and Others v. Turkey, 46117/99 [2004] ECHR 621 (10 November 2004)

In Taşkin and Others v. Turkey, the authorities had failed to comply with a court decision annulling a permit to operate a gold mine using a particular technique, on the grounds of the adverse effect on the environment, subsequently granting a new permit. The Court held that national authorities had violated the applicants’ right to respect for private and family life and to a fair trial under Articles 6 and 8 of the European Convention, both by the authorisation of a permit to operate a gold mine using the cyanide leaching process and the related decision-making processes.

Moreno Gomez v Spain, 4143/02 [2004] ECHR 633 (16 November 2004)

In this case there had been serious night noise disturbance from pubs and clubs, exceeding 100 dbA, which made sleeping difficult. An expert report concluded that noise levels were unacceptable. The council had banned any further activities that would have noise impacts on the area but a month later licensed a new disco in the building that the applicant lived in. The licence was eventually declared to be invalid and the applicant lodged a claim against the council, which the national courts rejected. The court concluded that there had been a violation of Article 8 (respect for private life and the home) because the authorities had tolerated and hence contributed to, the repeated breach of the local rules dealing with noise. The authorities had repeatedly failed to respect regulations relating to the control of noise, granting permits for discotheques and bars despite being aware that the area was zoned as “noise saturated”. In view of the volume of the noise, at night and beyond permitted levels, and the fact that it had continued over a number of years, the Court found that there had been a breach of the rights protected by Article 8.

Oneryildiz v. Turkey, 48939/99 [2004] ECHR 657 (30 November 2004)

In this case the European Court of Human Rights decided its first environmental case involving loss of life. The applicant lived in a slum area of Istanbul built around a rubbish tip under the authority and responsibility of the main City Council. An expert report from 1991 noted that no measures had been taken to prevent a possible explosion of methane gas from the tip. In 1993 there was such an explosion. The refuse erupting from the pile of waste buried 11 houses, including the applicant’s. The applicant lost nine members of his family. The applicant complained under Article 2 of the ECHR (the right to life) that the accident had occurred as a result of negligence on the part of the relevant authorities.

He also relied on Article 1 of Protocol 1 (the protection of property), as regards the loss of his house and other property.[13] The Court concluded there had been a violation of right to protection of life enshrined in Article 2 in its procedural aspect; violation of the right to peaceful enjoyment of possessions as protected by Article 1 of the Protocol No. 1; and violation of the right to a domestic remedy, as set forth in Article 13 of the Convention, in respect of both complaints (complaint under the substantive head of Article 2, and complaint under Article 1 of Protocol No. 1); The Court deemed it not necessary to examine Article 6 and Article 8.

Fadeyeva v Russia, 55723/00 [2005] ECHR 376 (9 June 2005)

The applicants were exposed to pollution from a massive steel works close to their home. Although the authorities had established a sanitary ‘buffer zone’ around the works, the applicants, like many thousands of others, had been housed in a flat inside the zone. The applicants obtained a court order requiring that they be re-housed outside the zone, but this was never executed, and a subsequent attempt to enforce this order was rejected by the courts. The Court held that there had been a violation of Article 8 (right to private, family life, and no interference by a public authority).[14]

Okyay and others v. Turkey, 36220/97 [2005] ECHR 476 (12 July 2005)

This case concerned a failure by the national authorities of Turkey to implement an order of their domestic court, closing down three thermal-power plants (Yatağan, Gökova (Kemerköy) and Yeniköy thermal-power plants in the Muğla province), which were polluting the environment in southwest Turkey. The applicants thus complained under Article 6 of the Convention that their right to a fair hearing had been breached on account of the administrative authorities’ failure to enforce the administrative courts’ decisions and orders to halt the operations of the thermal-power plants. The Court held that there had been a violation of Article 6-1 of the Convention. The Court considers that the national authorities failed to comply in practice and within a reasonable time with the judgements rendered by the Aydın Administrative Court on 30 December 1996 and subsequently upheld by the Supreme Administrative Court on 3 and 6 June 1998, thus depriving Article 6-1 of any useful effect.

Öçkan and others v. Turkey, 46771/99 [2006] (28-03-2006)

The case concerns the granting of permits to operate a goldmine. The applicants, and other inhabitants of Bergama, asked for the permit to be set aside, citing the dangers of the cyanidation process used by the operating company, the health risks and the risks of pollution of the underlying aquifers and destruction of the local ecosystem. The Court concluded a violation of Articles 6-1 (right to a fair trial) and 8 (right to respect for private and family life); it was not necessary to examine separately the complaints under Articles 2 (right to life) and 13 (right to an effective remedy).

Giacomelli v. Italy, 59909/00 [2006] (2 November 2006)

After having given an extensive outline on the case law of the court (thus redefining when environmental pollution creates a violation of Article 8), the Court concludes that there had been a violation of Article 8 in this case, which related to the Lombardy government allowing for a waste treatment plant. The licence included the “detoxification” of hazardous waste, a process involving the treatment of special industrial waste using chemicals.

To the Court's opinion “... the fact remains that for several years her right to respect for her home was seriously impaired by the dangerous activities carried out at the plant built thirty metres away from her house. Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant's effective enjoyment of her right to respect for her home and her private and family life. The Court therefore dismisses the Government's preliminary objection and finds that there has been a violation of Article 8 of the Convention.

Budayeva and Others vs. Russia, Application, 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 [2008] (20 March 2008)
The Court
was asked to confirm that the Russian government had failed to fulfil its obligations under Article 2 of the European Convention on Human Rights (ECHR), namely to protect the right to life.

The case concerned events between 18 to 25 July 2000, when a mudslide led to a catastrophe in the Russian town Tyrnauz: it threatened the applicants’ lives and caused eight deaths, among them the husband’s of one of the applicants. The Court found that the Russian government breached Article 2 ECHR, both in its substance and in its procedural aspects.

First, the authorities omitted to implement land-planning and emergency relief policies despite the fact that the area of Tyrnauz was particularly vulnerable for mudslides, thus exposing the residents to “mortal risk”. Second, the Court determined that the lack of any state investigation or examination of the accident also constituted a violation of Article 2 ECHR. The decision was so obvious that the Russian national judge did not opt for his right not to act up on it.

Tatar v. Romania, Application no. 67021/01. (27.01.2009)
The European Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, on account of the Romanian authorities’ failure to protect the right of the applicants, who lived in the vicinity of a gold mine, to enjoy a healthy and protected environment.

Leon and Agnieszak Kania v. Poland, Application no 12605/03 (21.07.2009)
The applicants, two Polish nationals, filed a complaint[15] before the European Court of Human Rights (ECtHR) against the Republic of Poland complaining about the excessive length of administrative proceedings related to the functioning of a craftsmen’s cooperative established next to the their home in 1978. The applicants further alleged that due to the cooperative’s continuous activities they have been subjected to serious noise and pollution for a number of years, which resulted serious and long-term health problems. On 21 July 2009, the European Court held that there has been a violation of the applicants’ right to a fair hearing, since the length of the administrative proceedings was excessive and failed to meet the “reasonable time” requirement. With regard to the applicants’ right to respect for private and family life, the Court reiterated that even if there is no explicit right in the Convention to a clean and quiet environment, Article 8 of the Convention may apply in environmental cases, regardless of whether the pollution is directly caused by the State or the State's responsibility arises from failure to regulate private-sector activities properly. Nevertheless, the Court concluded that it has not been established that the noise levels considered in the present case are so serious as to reach the high threshold established in cases dealing with environmental issues. Therefore, the Court held that Article 8 of the Convention had not been violated.

[1] Following the Court's judgement in the Benthem Case, it was the view of many authorities on Netherlands law that the civil courts would be able to examine the lawfulness of any administrative decision coming within the scope of Article 6 against which an appeal lay to the Crown. The Supreme Court upheld this view in a decision of 12 December 1986 and confirmed the principle in several judgements. Accordingly under well-established principles of Netherlands law, which existed at the time of the Royal Decree in the present case, the applicant could have submitted his dispute to the civil courts for examination. There was thus no breach of Article 6-1.

[2] The applicability of Article 6 was based on the Court's finding that “the applicants could arguably maintain that they were entitled under Swedish law to protection against the water in their well-being polluted as a result of VAFAB's [the polluting company] activities on the dump.”

[3] What is important is that the interference did not have to threaten the health of the applicants (“/S/evere environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.”, Lopez Ostra v Spain).

[4] In the Lopez Ostra v Spain case, The Court noted that “…regard must be had to the fair balance that has to be struck between individual and community interests, and in any case the State enjoys a certain margin of appreciation.”.

[5] For instance see Powell and Rayner v. UK, where no violation of Article 8 was found.

[6] The claim was thus rejected by the majority, because the connection between government’s decision and the applicants’ right was too remote and tenuous ([the applicants] did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures, which the Federal Council could have ordered to be taken in the instant case, therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote.”)

However, this judgement was criticised by the Dissenting opinion of Mr Pettiti, joined by Mr Gölcüklü, Mr Walsh, Mr Russo, Mr Valticos, Mr Lopes Rocha and Mr Jambrek – Dissenting opinion of the (“The majority appear to have ignored the whole trend of international institutions and public international law towards protecting persons and heritage, as evident in European Union and Council of Europe instruments on the environment, the Rio agreements, UNESCO instruments, the development of the precautionary principle and the principle of conservation of the common heritage. … Where the protection of persons in the context of the environment and installations posing a threat to human safety is concerned, all States must adhere to those principles.”)

[7] . The applicant was born in 1966 and was diagnosed as having leukaemia in 1970. She alleged that the failure to warn her of her father’s exposure to radiation had prevented pre- and post-natal monitoring, which would have led to earlier diagnosis of her illness The European Court held that it had no jurisdiction to consider the complaint under Article 2 because the state’s failure to monitor her father’s exposure to radiation occurred prior to the UK’s allowing individual petitions on 14 January 1966 and the point had not been raised before the European Commission.

[8] The Court held that the State could only have been required to take steps to provide information if it had appeared likely at the time that there was a real risk to the health of future children.

[9] The Court ruled: “the Court cannot find that the crew members’ undoubted interest in protecting their reputation was sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local and national as well as international interest. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic society”. Notwithstanding the national authorities’ margin of appreciation, the Court considers that there was no reasonable relationship of proportionality between the restrictions placed the applicants’ right to freedom of expression and the legitimate aim pursued.”

In May 1999, the Grand Chamber of the European Court of Human Rights found that Norwegian Ministry of Fisheries had violated the right to freedom of expression under Article 10 of the European Convention on Human Rights when it tried to withhold from the Norwegian public a story about government employees skinning seals alive. An employee of the Norwegian Ministry of Fisheries had inspected a Norwegian government vessel, discovered that crew members had skinned seals alive in violation of Norwegian seal hunting regulations and reported the matter to the Ministry of Fisheries office. When the Ministry of Fisheries office decided not to inform the Norwegian public of the incident, the employee provided the story to the Norwegian press. Shortly thereafter, the crew members sued the Norwegian press for defamation and won. The Norwegian press brought the matter to the European Court.

[10] See EarthJustice, Issue Paper, Human rights and the environment, 2001.

[11] The ECHR concluded that there had been breaches of both Article 8 and Article 13 of the ECHR. The Court furthered its growing jurisprudence on the application of the right to privacy to environmental harms. The Chamber found on October 2, 2001 that noise from overnight air traffic at Heathrow Airport violated the right to privacy and inviolability of the home and family of nearby residents under Article 8 of the European Convention on Human Rights. The Chamber also found a violation of the right of access to an effective legal remedy under Article 13 of the European Convention on grounds that the scope of review provided by the UK courts was insufficient to allow petitioners to claim that the increase in night flights under the 1993 scheme represented an unjustifiable interference with their privacy. Finding that the United Kingdom had violated both Article 8 and 13, the Commission ordered that the United Kingdom pay the plaintiffs damages and

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