European Court of Human Rights finds state failure to deal with decades of large scale pollution breaches right to life

The European Court of Human Rights (the ECtHR) judgment in Cannavacciuolo and Others v Italy (application no. 51767/14 and others) marks the first time that the ECtHR has found a violation of the right to life under Article 2 of the European Convention on Human Rights (ECHR) in relation to large-scale environmental pollution. The decision has significant implications for environmental law and human rights, particularly in the context of state responsibility for serious environmental harm with resultant risk to human life or health.

Key Points

• The ECtHR has, for the first time, found a violation of the right to life under Article 2 of the ECHR due to Italy's failure to address decades of large-scale environmental pollution.
• The decision refers to the previous ECtHR judgment in Verein Klimaseniorinnen Schweiz and Others v Switzerland ("VKS") [see our blog post] and makes clear that recognition of the standing of associations is restricted to the 'specific context' of climate change, which is strictly defined and subject to a number of specific conditions.
• The ECtHR used the pilot judgment procedure for the first time in a case concerning environmental harm, recommending the Italian authorities develop a comprehensive strategy to address the pollution issue in the affected areas and outlining specific steps to be taken by the state.

Background

The case arose from the severe environmental pollution in the Campania region of Italy, specifically in areas known as the 'Terra dei Fuochi' (which translates literally as 'Land of Fires').

For decades, illegal dumping, burying, and burning of hazardous waste has been a widespread issue in the region, often carried out by organised criminal groups. The court received evidence as to the effect that the resulting pollution has had on the environment and public health, including increased cancer mortality rates and soil and water contamination, leading to numerous complaints and legal actions by both residents and environmental groups.

The main issue in the case was whether the authorities "failed to take appropriate and sufficient measures to protect the lives of the applicants living in areas of the Campania Region affected by a large-scale pollution phenomenon" which stemmed from the illegal dumping, burying and/or uncontrolled abandonment of hazardous, special and urban waste, often associated with the waste being incinerated.

The applicants in the case were 41 local residents (the individual applicants) and five organisations (the applicant associations). They argued that the Italian authorities were aware of the risks resulting from the disposal of waste in unauthorised sites and the illegal burying and burning of hazardous waste, pointing to several previous inquiries and reports into the subject. They contended that the authorities had failed to take adequate protective measures to prevent and address the environmental pollution, and ultimately protect their lives and health, violating their right to life under Article 2 of the ECHR and their right to respect for private and family life under Article 8 of the ECHR. As part of their complaint, they also pointed to the state's failure to provide them with information concerning the dangers to their health arising from the pollution.

European Court of Human Rights judgment

The ECtHR found that Italy had violated the applicants' right to life under Article 2 of the ECHR, and, using the pilot judgment procedure, made recommendations that the Italian authorities implement appropriate environmental measures in the affected region. In light of the finding on Article 2 and the overlap between the arguments, the court did not consider it necessary to examine the Article 8 complaint separately.

Right to life under Article 2

The court noted this was a particularly complex and widespread form of pollution rather than from a single identifiable source, that it occurred primarily on private land, and that the activities took place beyond the bounds of legal regulation (as distinct from dangerous activities carried out against the backdrop of a regulatory framework). The case was therefore distinguishable from many of the pollution cases that come before the court.

The ECtHR reiterated that Article 2 imposes a positive obligation on states to "take all appropriate steps to safeguard the lives of those within their jurisdiction" and that for Article 2 to apply, there has to be a "real and imminent" risk to life. The court explained that for a risk to be 'real' this would require the existence of a "serious, genuine and sufficiently ascertainable threat to life", and that 'imminence' entails physical and temporal proximity of such a risk.

In the circumstances of this case, the court considered that the risk to residents in the affected regions was sufficient to meet these requirements and Article 2 was therefore applicable. Notably, it did "not consider it necessary or appropriate to require that the applicants demonstrate a proven link between the exposure to an identifiable type of pollution or even harmful substance and the onset of a specific life-threatening illness or death as a result of it". Indeed, in line with a precautionary approach, given that the general risk had been known for a long time, the fact that there was no scientific certainty about the precise effects the pollution may have had on the health of a particular applicant could not negate the existence of a protective duty, where one of the most important aspects of that duty is the need to investigate, identify and assess the nature and level of the risk.

The question for the ECtHR to determine was whether the Italian state had acted in a way that satisfied its obligations to protect the lives and health of affected residents. As part of this it acknowledged that the choice of operational measures used to protect citizens fell within the state's margin of appreciation in the context of its priorities and resources. In reviewing the measures taken by the Italian authorities, the court found that they had not satisfied their obligations in several regards, including risk management, investigation of health impacts, combating the illegal dumping, burying and burning of waste, waste cycle management, monitoring by law enforcement, criminal investigations, judicial proceedings and the provision of information. The court also emphasised the authorities' delay in combating the issue and the lack of a structured and coordinated response. Overall, the court found that the Italian state failed to demonstrate that it did all that could have been required of it to protect the applicants' lives.

Standing and victim status

The court also addressed the issue of standing and victim status, referencing the VKS decision. In that case, the ECtHR had recognised that "the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (…) speak in favour of recognising the standing of associations before the Court in climate-change cases."

Importantly, the court's decision in this case demonstrates that it is not willing to apply the more lenient requirements of standing for associations beyond the strictly defined 'specific context' of climate change. The court explained the need to consider the nature of the right at stake. Here the complaints under Articles 2 and 8 stemmed from a danger to health on account of exposure to pollution, which can only affect natural persons, and therefore the court considered that associations had not been “directly affected” by the alleged violations. Even in relation to the aspects of the complaint concerning lack of information being provided by the state, this concerned information about health risks to the members of the association. Again therefore it would be the individual members who would be directly affected by the omissions. Accordingly, the court excluded the applicant associations on the basis that they relied exclusively on the individual rights of their members, without showing they had been substantially affected in any way, and therefore could not be granted victim status.

The court also limited victim status to the individuals living within certain administrative areas that had been designated as polluted by the relevant authorities, despite the applicants' arguments that the effects of pollution can cross beyond municipality boundaries. This reinforces the court's desire to resist a broadening of the scope of victim status, at least outside the context of climate change.

Pilot judgment procedure

A notable aspect of the decision in this case is the court's use of the pilot judgment procedure, which reports suggest is the first time this procedure has been used in an environmental pollution case. The pilot judgment procedure is aimed at identifying the structural problems underlying breaches of the ECHR and indicating measures to be applied by states to address those problems.

The court considered that the use of the procedure was warranted in light of the Italian authorities' inaction over a decades-long period, which it characterised as a "systemic failure" to respond adequately to the pollution problem in the Terra dei Fuochi region. In addition, the court noted the fact that there are 72 applications concerning similar issues, of which 36 involve approximately 4,700 citizens, currently pending before the court. Under the pilot judgment procedure the ECtHR detailed the measures that might be taken to remedy the issues. Its recommendations include that the Italian state, in collaboration with the Campania region and local authorities, develop a comprehensive strategy to address the pollution problem, establish an independent monitoring mechanism, and create a public information platform to keep residents informed about the pollution and its effects, along with the measures envisaged to address it and their implementation status.

Comment

This is a significant decision in which the ECtHR has recognised for the first time a violation of the right to life in a large-scale environmental pollution case. However the particular facts of the case, the severity and longevity of the problems and the lack of progress made by the state in dealing with them, were central to this finding. The threshold for finding a breach of Article 2 in relation to the effects of pollution remains a high one.

The judgment also provides clarification on the issues of standing and victim status, confirming that these are strictly defined.

The use of the pilot judgment procedure in an environmental case like this is also an interesting development. It indicates an increasing willingness by the ECtHR to address environmental issues and play a greater role in encouraging states to take practical and effective measures in that context, in line with the VKS judgment.

The case is of interest to commercial organisations operating in sectors where there is a risk of environmental complaints being made – it is clear that the developing case law of the ECtHR on this topic is a key area to watch going forwards.