EHRM, 02-11-2006, nr. 59909/00

In a decision of 13 December 1996 the Lombardy Regional Council ordered Ecoservizi to initiate an EIA procedure in respect of the detoxification activities at the plant.

On 11 May 1998 the company submitted its application to the Ministry of the Environment in accordance with section 6 of Law no. 349/1986.

Brescia District Council and the applicant took part in the procedure, together with the local authorities of Borgosatollo and Castenedolo, two villages situated within several hundred metres of the plant.

On 24 May 2000 the Ministry of the Environment issued an EIA decree.

The Ministry noted that the plant was built on agricultural land, near the river Garza and a sand quarry, the exploitation of which had gradually eroded the soil. Because of the permeability of the ground in particular, there was a significant risk that the toxic chemical residue generated by the detoxification operations at the plant might contaminate the ground water, a source of drinking water for the inhabitants of the neighbouring villages.

The Ministry considered that the operation of the plant was incompatible with environmental regulations. However, Ecoservizi was allowed to continue its activities until the expiry on 29 April 2004 of the most recent operating licence granted by the Regional Council, provided that it complied with certain requirements.

Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the decision and sought a stay of its execution.

In an order of 31 August 2000 the Regional Administrative Court suspended the implementation of the decision and ordered the Ministry to carry out a fresh environmental-impact assessment. The Ministry appealed. On 8 May 2001 the Consiglio di Stato declared the appeal inadmissible.

In the meantime, on 30 April 2001 the Ministry had issued a further EIA decree confirming that the operation of the plant was incompatible with environmental regulations.

Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the new decree issued by the Ministry.

On 11 July 2001 the court allowed the application by Ecoservizi and ordered the Ministry to carry out a fresh environmental-impact assessment.

In an order of 11 December 2001 the Consiglio di Stato dismissed an appeal by the Ministry of the Environment against the above-mentioned order of the Lazio Regional Administrative Court.

In a decision of 4 November 2002 the Lombardy Regional Council notified Ecoservizi of the conditions for operating the plant, as laid down in the decrees issued by the Ministry of the Environment.

In the meantime, on 4 October 2002, in the course of the fresh EIA procedure ordered by the Regional Administrative Court, Ecoservizi had submitted a plan for altering the facility.

The plan envisaged, among other things, making the ground surface impermeable, building soundproofing devices, raising the site' perimeter wall so as to avoid any risk of flooding, and improving the system for monitoring hazardous emissions.

On 17 October 2003 the local health authority (azienda sanitaria locale— ASL) submitted its opinion to the Lombardy Regional Council on the compatibility of Ecoservizi' activities with environmental regulations. It stated that, according to the results of technical analyses carried out between 2000 and 2003, which had noted, among other things, the presence of abnormal concentrations of carbon and other organic substances in the atmosphere, the continuation of the plant' operation could cause health problems for those living nearby. The ASL added that it had not been shown that the precautions envisaged by Ecoservizi were sufficient to protect public health.

On 7 November 2003 the Lombardy Regional Council approved the continuation of the plant' operation, provided that the company implemented a number of requirements.

In particular, the company was to:

The Regional Council further directed:

The Regional Council decided that the plant' implementation of the above requirements should be verified when the time came to renew its operating licence, due to expire on 30 April 2004.

On 28 April 2004 the EIA procedure ordered by the Regional Administrative Court was completed and the Ministry of the Environment issued a new EIA decree.

The Ministry noted, firstly, that Ecoservizi processed 27% of the waste generated in northern Italy and 23% nationwide. It subsequently stated that the requirements laid down by the Regional Council should significantly improve the conditions for operating and monitoring the plant and expressed an opinion in favour of Ecoservizi' continued operation of the plant, provided that it complied with those requirements.

The applicant applied to the Lazio Regional Administrative Court for judicial review of the EIA decree, at the same time seeking a stay of its execution.

In an order of 24 July 2004 the Regional Administrative Court refused the request for a stay of execution, on the ground that the applicant had not notified the Ministry of the Environment of her application.

Following numerous complaints by the applicant and other inhabitants of the area surrounding the plant, the Brescia ASL' Public and Environmental Health Office and the ARPA produced a number of reports on Ecoservizi' activities.

In particular, on 21 September 1993 experts from the ASL conducted analyses of the emissions produced at the plant and found that the statutory limits had been exceeded for certain substances, such as nickel, lead, nitrogen and sulphates. The report drawn up by the ASL indicates that the judicial authorities were informed of the findings of the analyses.

On 8 March 1995 experts from the ASL inspected the plant. They noted that a deposit of white dust had formed inside and outside the facility following an accident while a silo was being filled with slaked lime.

During the same inspection the experts observed that a number of containers intended for toxic waste were present on the site without having been neutralised after use. In a note dated 27 April 1995 the ASL instructed the company to move the containers in order to avoid any risk of contaminating the ground, particularly as the surface had not been made impermeable. It appears from the report that the ASL lodged a complaint with the appropriate judicial authorities.

In a report issued on 31 July 1997 the NAS (special branch of the carabinieri dealing with health issues) informed Brescia Provincial Council that a complaint had been lodged against Ecoservizi' legal representative for failure to comply with the conditions laid down in the licences for operating the plant.

On several occasions between 1999 and 2003 Brescia District Council asked the Lombardy Regional Council to intervene with a view to moving the facility to a safer site better suited to the plant' growing production needs.

On 28 December 2002 Brescia District Council temporarily rehoused the Giacomelli family free of charge pending the outcome of the judicial dispute with Ecoservizi in order to alleviate the disturbance caused to the applicant by the plant.

On 15 May 2002 the ARPA issued a technical report on Ecoservizi further to a request by the applicant and her neighbours for an emergency inspection of the site. The experts found a high level of ammonia in the atmosphere, indicating a fault in the detoxification process. They concluded that the company had omitted to activate the necessary devices for ensuring that the waste to be detoxified was compatible with the facility' specifications. There were also structural deficiencies at the site that could potentially lead to operational faults generating emissions of fumes and gases.

Article 8 of the Convention protects the individual' right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person' home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person' right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom[GC], no. 36022/97, § 96, ECHR 2003-VIII).

Thus in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40) the Court declared Article 8 applicable because ‘[i]n each case, albeit to greatly differing degrees, the quality of the applicant' private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport’. In López Ostra (cited above, pp. 54–55, § 51), which concerned the pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that ‘severe 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’. In Guerra and Others (cited above, p. 227, § 57), the Court observed: ‘The direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable.’ Lastly, in Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant' yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant' right to respect for his home and that Article 8 of the Convention was applicable.

Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54–55, § 51, both cited above).

The Court considers that in a case such as the present one, which involves government decisions affecting environmental issues, there are two aspects to the examination which it may carry out. Firstly, it may assess the substantive merits of the government' decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Taşkın and Others v. Turkey, no. 46117/99, § 115, ECHR 2004-X).

In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, § 100; Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74–77; and Taşkın and Others, cited above, § 116).

It is for the national authorities to make the initial assessment of the ‘necessity’ for an interference. They are in principle better placed than an international court to assess the requirements relating to the treatment of industrial waste in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community.

To justify the award of the operating licence for the plant to Ecoservizi and the subsequent decisions to renew it, the Government referred to the economic interests of the region and the country as a whole and the need to protect the citizens' health.

However, the Court must ensure that the interests of the community are balanced against the individual' right to respect for his or her home and private life. It reiterates that it has consistently held that although Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and must afford due respect to the interests safeguarded to the individual by Article 8 (see, mutatis mutandis, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87).

It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available (see Hatton and Others, cited above, § 104). However, this does not mean that the authorities can take decisions only if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided.

A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals' rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128). The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question (see, mutatis mutandis, Guerra and Others, cited above, p. 223, § 60, and McGinley and Egan v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, p. 1362, § 97). Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 128, and Taşkın and Others, cited above, §§ 118-19).

In determining the scope of the margin of appreciation allowed to the respondent State, the Court must therefore examine whether due weight was given to the applicant' interests and whether sufficient procedural safeguards were available to her.

The Lombardy Regional Council first granted Ecoservizi an operating licence for the plant in question in 1982. The facility was initially designed for the storage and treatment of hazardous and non-hazardous waste. In 1989 the company was authorised to treat harmful and toxic waste by means of ‘detoxification’, a process involving the use of chemicals potentially entailing significant risks to the environment and human health. Subsequently, in 1991, authorisation was given for an increase in the quantity of waste being treated at the plant, and the facility was consequently adapted to meet the new production requirements until it reached its current size.

The Court notes at the outset that neither the decision to grant Ecoservizi an operating licence for the plant nor the decision to authorise it to treat industrial waste by means of detoxification was preceded by an appropriate investigation or study conducted in accordance with the statutory provisions applicable in such matters.

The Court observes that section 6 of Law no. 349/1986 provides that the Ministry of the Environment must carry out a prior environmental-impact assessment (EIA) for any facility whose operation might have an adverse effect on the environment; among such facilities are those designed for the treatment of toxic and harmful waste using chemicals (see paragraphs 60 and 61 above).

However, it should be noted that Ecoservizi was not asked to undertake such a study until 1996, seven years after commencing its activities involving the detoxification of industrial waste.

The Court further notes that during the EIA procedure, which was not concluded until a final opinion was given on 28 April 2004, the Ministry of the Environment found on two occasions, in decrees of 24 May 2000 and 30 April 2001 (see paragraphs 38 and 41 above), that the plant' operation was incompatible with environmental regulations on account of its unsuitable geographical location and that there was a specific risk to the health of the local residents.

As to whether the applicant had the opportunity to apply to the judicial authorities and to submit comments, the Court observes that between 1994 and 2004 she lodged five applications with the Regional Administrative Court for judicial review of decisions by the Regional Council authorising the company' activities; three sets of judicial proceedings ensued, the last of which is still pending. In accordance with domestic law, she also had the opportunity to request the suspension of the plant' activities by applying for a stay of execution of the decisions in issue.

The first set of proceedings instituted by the applicant ended in 1998 when the administrative courts dismissed her complaints, finding among other things that she had failed to challenge the decisions in which the Regional Council had authorised an increase in Ecoservizi' volume of activity (see paragraph 20 above).

However, in the second set of contentious proceedings the Lombardy Regional Administrative Court and the Consiglio di Stato, in decisions of 29 April 2003 and 25 May 2004 respectively, held that the plant' operation had no legal basis and should therefore be suspended with immediate effect (see paragraphs 27 and 29 above).

In accordance with the legislation in force, the plant' operation should have been suspended so that the company could bring it into line with environmental-protection regulations and hence obtain a positive assessment from the Ministry of the Environment.

However, the administrative authorities did not at any time order the closure of the facility.

The Court considers that the State authorities failed to comply with domestic legislation on environmental matters and subsequently refused, in the context of the second set of administrative proceedings, to enforce judicial decisions in which the activities in issue had been found to be unlawful, thereby rendering inoperative the procedural safeguards previously available to the applicant and breaching the principle of the rule of law (see, mutatis mutandis, Immobiliare Saffi v. Italy[GC], no. 22774/93, § 63, ECHR 1999-V).

It considers that the procedural machinery provided for in domestic law for the protection of individual rights, in particular the obligation to conduct an environmental-impact assessment prior to any project with potentially harmful environmental consequences and the possibility for any citizens concerned to participate in the licensing procedure and to submit their own observations to the judicial authorities and, where appropriate, obtain an order for the suspension of a dangerous activity, were deprived of useful effect in the instant case for a very long period.

Nor can the Court accept the Government' argument that the decree of 28 April 2004, in which the Ministry of the Environment authorised the continuation of the plant' operation, and the decision of 23 July 2004, in which the Lombardy Regional Administrative Court refused the most recent request by the applicant for a stay of execution, serve as proof of the lack of danger entailed by the activities carried out at the site and of the efforts made by the domestic authorities to strike a fair balance between her interests and those of the community.

In the Court' opinion, even supposing that, following the EIA decree of 28 April 2004, the measures and requirements indicated in the decree have been implemented by the relevant authorities and the necessary steps have been taken to protect the applicant' rights, 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' effective enjoyment of her right to respect for her home and her private and family life.

The Court therefore dismisses the Government' preliminary objection and finds that there has been a violation of Article 8 of the Convention.

The applicant claimed the sum of 1,500,000 euros (EUR) for pecuniary damage and sought a similar award for non-pecuniary damage.

She added that she was prepared to forgo part of the sums claimed if Ecoservizi' operations were immediately stopped or if the facility was moved to another site.

The Government submitted that the sums claimed were excessive and that the finding of a violation would constitute sufficient just satisfaction.

As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Öcalan v. Turkey[GC], no. 46221/99, § 210, ECHR 2005-IV).

As regards pecuniary damage, the Court observes that the applicant failed to substantiate her claim and did not indicate any causal link between the violation found and the pecuniary damage she had allegedly sustained.

The Court considers, however, that the violation of the Convention has indisputably caused the applicant substantial non-pecuniary damage. She felt distress and anxiety as she saw the situation persisting for years. In addition, she had to institute several sets of judicial proceedings in respect of the unlawful decisions authorising the plant' operation. Such damage does not lend itself to precise quantification. Making its assessment on an equitable basis, the Court awards the applicant the sum of EUR 12,000.

The applicant sought the reimbursement of the costs and expenses incurred before the domestic authorities and the Court. In her bills of costs she quantified her domestic costs at EUR 19,365 and the costs incurred before the Court at EUR 3,598.

The Government left the matter to the Court' discretion.

According to the Court' settled case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, among many other authorities, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Sardinas Albo v. Italy, no. 56271/00, § 110, 17 February 2005).

The Court considers that part of the applicant' costs in the domestic courts were incurred in order to remedy the violation it has found and should be reimbursed (contrast Serre v. France, no. 29718/96, § 29, 29 September 1999). It is therefore appropriate to award her EUR 5,000 under that head. The Court also considers it reasonable to award her the sum claimed in respect of the proceedings before it. Accordingly, making its assessment on an equitable basis, it decides to award the applicant the sum of EUR 8,598.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.