Last Updated on October 11, 2022 by LawEuro
Information Note on the Court’s case-law 267
October 2022
Pavlov and Others v. Russia – 31612/09
Judgment 11.10.2022 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for private life
Failure to take adequate protective measures to reduce effects of long-standing excessive industrial air pollution so as to prevent applicants’ exposure to related health risks: violation
Facts – The twenty-two applicants live in Lipetsk, an industrial city. The applicants unsuccessfully brought proceedings against fourteen federal and regional agencies for failure to protect, inter alia, their right to respect for their private life under Article 8. In particular, they claimed that the concentration of harmful substances in the air and drinking water, emanating from large industrial undertakings operating around Lipetsk, had consistently exceeded the maximum permitted levels and that the authorities had failed to take meaningful measures in order to improve the environmental situation.
Law –
Article 8:
(a) Admissibility –
(i) Exhaustion of domestic remedies – Although only seven of the applicants had appealed against the first instance judgment, the remaining applicants had been in a very similar situation and had been affected in the same way by those proceedings. They had thus been absolved from the obligation to exhaust domestic remedies.
Conclusion: preliminary objection dismissed
(ii) Applicability – Even though the applicants’ complaint concerned their continuing exposure to industrial pollution dating back many years, only the period after the Convention came into force with respect to Russia, that is to say, after 5 May 1998, could be taken into consideration.
The fact that the applicants’ homes were located several kilometres from the sites of the large industrial undertakings was not by itself sufficient to exclude their complaint from application of Article 8 but one of the relevant factors to be taken into account, among other circumstances The District Court had established that the applicants had been residents of Lipetsk and had expressly acknowledged, without having regard to the distance between their homes and the polluting undertakings, on the basis of evidence before it, that the emissions from the industrial undertakings had been spreading and reaching the parts of the city where the applicants lived and contributing to serious degradation of air quality in all parts of it, exceeding the relevant norms. Those findings were consistent with the environmental reports drawn up by the regional State bodies. Air pollution had been the main health risk factor for the residents of Lipetsk. Further, by examining the merits of their complaint, the District Court had recognised that the applicants had had standing under the domestic law to bring proceedings and seek remedies in connection with harm allegedly sustained by them as a result of environmental pollution and they could therefore be considered to have been directly affected by industrial emissions in Lipetsk.
While, in the absence of medical evidence, it could not be said that the industrial air pollution had necessarily caused damage to the applicants’ health, the Court considered it established, on the basis of the ample evidence before it, that living in the area marked by pollution in clear excess of applicable safety standards had exposed the applicants to an elevated risk to health. This case could therefore be distinguished from other cases in which the applicants had lived at a considerable distance from a source of pollution and had not submitted any reliable and relevant data in support of their arguments, leading thus to a finding of inapplicability of Article 8.
The applicants had been forced to live in an environment where the levels of air pollution had been recognised by the domestic authorities as being consistently and abnormally high and consumed drinking water which was found to have been contaminated with toxic substances. The levels of pollution experienced by them for more than twenty years in the course of their everyday lives had not been negligible, went beyond the environmental hazards inherent in life in every modern city and had affected, adversely and to a sufficient extent, their private lives during the period under consideration.
Conclusion: preliminary objection dismissed
(b) Merits –It transpired from the official reports that industrial air pollution had been the main contributing factor to the overall environmental deterioration in Lipetsk. The authorities had been aware of the continuing environmental problems and had issued operating permits to the industrial undertakings in the city, regulated their activities, conducted environmental assessments, carried out inspections and had applied certain sanctions to improve them. The environmental situation complained of had been long-standing and well-known. The authorities had thus been in a position to evaluate the pollution hazards and take adequate measures to prevent or reduce them. The combination of those factors showed a sufficient link between the pollutant emissions and the State to raise an issue of the State’s positive obligation under Article 8. Accordingly, the Court examined the case from the standpoint of the State’s duty to take reasonable and appropriate measures to secure the applicants’ rights under Article 8 § 1.
In so far as the applicants’ complaint concerned the authorities’ failure to regulate the operations of the industrial undertakings with the establishment of sanitary protection zones around the main plants and factories, the Court noted that the creation of such zones within which pollution might officially exceed safe levels was required under Russian law. Their main purpose was to separate residential areas from sources of pollution and in the absence of an established sanitary protection zone, the industrial undertaking had to be closed down or significantly restructured. The Court was mindful of the fact that the creation of such zones was a long process that, like any complex multi-sectoral project, required financial, logistical, technical resources and dutiful cooperation and efforts of the parties involved in it, including the State authorities. In the present case, however, the delays by the undertakings to develop project documentation and have it approved, would not have occurred without some inertia on the part of the authorities and their lenience in enforcing the regulations pertaining to the creation of sanitary protection zones. Further, none of the undertakings, except from one plant, had been ordered to suspend their operations or close for a violation of the relevant environmental regulations or failure to create a sanitary protection zone, as required by domestic law.
The uninterrupted operation of the industrial undertakings had been important for the regional and national economy and had aimed at achieving a fair balance between the competing interests of the applicants and the community, having regard to the consequences of a severe economic crisis the respondent State had had to cope with during the relevant time. Furthermore, unlike in cases of direct interference by the State, domestic legality was only one of the factors to be taken into account in assessing whether the State has fulfilled its positive duty; the State could choose other means they see as appropriate to ensure “respect for private life”.
The District Court had limited itself to merely establishing the measures that been taken by the authorities and had not addressed the central issue of whether those measures had been in fact effective and capable of remedying the adverse consequences of industrial pollution for the applicants, in the light of the State environmental reports. Indeed, it appeared that the applicants’ interest in living in a safe environment had not been duly taken into consideration and fairly balanced against the general economic interest of the region. The Court thus had to make its own assessment taking account of the information available to the domestic at the material time and all subsequent developments.
In assessing the entirety of the material submitted by the parties against the background of data on high levels of air pollution in 1999-2013, the Court found that the measures taken between 5 May 1998 and the end of 2013, had not had a significant effect on the reduction of industrial emissions or concentrations of harmful substances in the atmospheric air of Lipetsk, or other types of pollution. They had also been insufficient in so far as they aimed at ensuring the private industry compliance with the relevant environmental standards. The authorities had not thus diligently addressed the unfavourable environmental situation in Lipetsk, failing in their positive obligation to protect the applicants’ right to respect for private life during that period.
The measures and policies that had been implemented by the respondent State after 2013 had been more targeted (especially from 2018) and had led to tangible progress in recent years in reducing the levels of industrial emissions and improving the air quality and environmental conditions in Lipetsk. That being so, the environmental pollution still had to be addressed and the industrial air pollution in Lipetsk had not been sufficiently curbed, so as to prevent that the residents of the city be exposed to related health risks. The domestic authorities therefore had failed to strike a fair balance in carrying out their positive obligations to secure the applicants’ right to respect for their private life.
Conclusion: violation (six votes to one).
Article 41: EUR 2,500 to each applicant in respect of non-pecuniary damage.
(See also Fadeyeva v. Russia, 55723/00, 9 June 2005, Legal Summary; Kotov and Others v. Russia, 6142/18 et al, 11 October 2022)
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