Waste collection, management, treatment and disposal
THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 94. Relying on Articles 2 and 8 of the Convention, the applicants submitted that in failing to take the requisite measures to guarantee the proper functioning of the public waste disposal service and in applying an inadequate legislative and administrative policy the State had caused serious damage to the environment in their region and endangered their lives and their health and that of the local population in general. They further maintained that the public authorities had neglected to inform the people concerned of the risks of living in a polluted area. 95. The Government disagreed. 96. Since it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), the Court considers, regard being had to its case-law in the matter (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; Guerra and Others, cited above, § 57; Moreno. Gómez v. Spain, no. 4143/02, 16 November 2004; and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII), that the applicants’ complaints should be examined from the standpoint of the right to respect for one’s private life and one’s home enshrined in Article 8 of the Convention, the relevant provisions of which read as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. The merits 1. The parties’ submissions a) The Government 98. The Government acknowledged that “the almost disastrous management of the collection, treatment and disposal of the waste produced in certain parts of the province of Naples” had led to the accumulation of refuse in the streets of certain towns and cities and to the appearance of illegal dumping sites. However, they submitted that the acute phase of the crisis had lasted only about five months, from the end of 2007 to May 2008, and that in any event Somma Vesuviana had not been affected. 99. They further submitted that the difficulties encountered in Campania were attributable to force majeure factors such as the presence of organised crime in the region, failure by the waste disposal contractors to fulfil their obligations under the concession contracts, the lack of companies capable of guaranteeing continuity of service and the opposition of the population to the creation of landfills and RDF production sites. They also explained that the fires in the streets had been lit by local people to burn the waste, and therefore the State could not be held responsible. 100. In any event, in the Government’s submission the Italian authorities had fulfilled their duty of care and taken adequate measures in response to the “crisis”. On the one hand they had brought criminal proceedings against those responsible for the poor management of the situation. And on the other they had allegedly taken appropriate legislative measures, including Legislative Decree no. 90/08, which they claim had put in place an effective system which had resulted in the collection of the waste, the elimination of illegal landfills and the recommissioning of the waste treatment and disposal plants (see paragraph 68 above). 101. The Government further submitted that they had also carried out several studies on the causes and effects of the “waste crisis” in Campania and given the population information enabling them to assess their degree of exposure to the risks associated with waste collection, treatment and disposal. The causes of the waste crisis in Campania had been analysed by three parliamentary commissions, whose conclusions had been published in reports. The Ministry of Health and the civil emergency planning department had allegedly commissioned various studies to determine the impact of the crisis on the environment and human health ... According to the Government these studies had revealed that the “waste crisis” had had no significant impact on the environment – except for a momentary peak in water pollution levels not directly linked to the presence of waste – and no negative effects on human health. The results had been made public at public seminars and conferences. Lastly, the Government submitted, a documentation centre on health and the environmental pollution caused by the waste, managed by the National Disease Prevention and Control Centre and the Campania Region, was being set up. b) The applicants 102. The applicants submitted that the failings of the authorities in the management of the crisis had caused damage to the environment and put their lives in danger. 103. They argued that the respondent State had also failed in its obligation to provide information enabling the people concerned to assess their degree of exposure to the risks associated with waste collection and disposal because they had not made public the findings of the study commissioned by the civil emergency planning department ... Furthermore, the Italian Health Institute study, presented at the prefecture in Naples in January 2009 ..., had allegedly revealed a link between tumour levels and the presence of landfills in the area comprising the municipalities of Acerra, Nola and Marigliano (bordering on Somma Vesuviana). 2. The Court’s assessment a) General principles 104. The Court reiterates 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 (see López Ostra, cited above, § 51, and Guerra and Others, cited above, § 60). 105. It further points out that Article 8 does not merely compel the State to abstain from arbitrary interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. In any event, whether the question is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s 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 (see López Ostra, cited above, § 51, and Guerra and Others, cited above, § 58). 106. In the context of dangerous activities in particular, States have an obligation to set in place regulations geared to the special features of the activity in question, particularly with regard to the level of risk potentially involved. They must govern the licensing, setting-up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see, mutatis mutandis, Oneryildiz v. Turkey, [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII). 107. As to the procedural obligations under Article 8, the Court reiterates that it attaches particular importance to public access to information that enables them to assess the risks to which they are exposed (see Guerra and Others, cited above, § 60; Taşkin and Others v. Turkey no. 46117/99, § 119, ECHR 2004-X; Giacomelli v. Italy, no. 59909/00, § 83, ECHR 2006 ‑ XII; and Tătar v. Romania, no. 67021/01, § 113, ECHR 2009 ‑ ... (extracts)). It further reiterates that Article 5 § 1 (c) of the Aarhus Convention, which Italy has ratified, requires each Party to ensure that “in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected”. ... b) Application of the above principles to the instant case 108. The Court has already noted ... that the municipality of Somma Vesuviana, where the applicants live or work, was affected by the “waste crisis”. It notes that a state of emergency was declared in Campania from 11 February 1994 to 31 December 2009 and that the applicants were forced to live in an environment polluted by refuse left in the streets at least from the end of 2007 until May 2008. The Court considers that this situation may have led to a deterioration of the applicants’ quality of life and, in particular, adversely affected their right to respect for their homes and their family life. Article 8 therefore applies in the present case. The Court further notes that the applicants have not alleged that they were affected by any pathologies linked to exposure to waste, and that the scientific studies submitted by the parties reach opposite conclusions as to the existence of a causal link between exposure to the waste and an increased risk of developing pathologies such as cancer or congenital malformations. In these conditions, although the Court of Justice of the European Union, when examining the waste disposal situation in Campania, considered that the accumulation of large quantities of refuse along public roads and in temporary storage areas exposed the health of the local inhabitants to certain danger (see judgment C-297/08, cited in paragraphs 55 and 56 above), the Court cannot conclude that the applicants’ lives or health were threatened. That said, however, Article 8 may be relied on even in the absence of any evidence of a serious danger to people’s health (see López Ostra, cited above, § 51). 109. The Court considers that the present case does not concern direct interference with the applicants’ right to respect for their homes and their private life brought about by the action of the public authorities, but rather the alleged failure of the authorities to take adequate steps to ensure the proper functioning of the waste collection, treatment and disposal service in the municipality of Somma Vesuviana. It accordingly considers it appropriate to examine the case from the standpoint of the State’s positive obligations under Article 8 of the Convention (see Guerra and Others, cited above, § 58). 110. The collection, treatment and disposal of waste are without a doubt dangerous activities (see, mutatis mutandis, Oneryildiz, cited above, § 71). That being so, the State was under a positive obligation to take reasonable and adequate steps to protect the right of the people concerned to respect for their homes and their private life and, more generally, to live in a safe and healthy environment (see Tătar, cited above, § 107). Regard must also be had to the margin of appreciation the States enjoy in the choice of the concrete means they use to fulfil their positive obligations under Article 8 of the Convention (see Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005 ‑ IV). In the present case, from 2000 to 2008 the waste treatment and disposal service was entrusted to private companies, while the waste collection service in the municipality of Somma Vesuviana was provided by several publicly owned companies. The fact that the Italian authorities handed over the management of a public service to third parties does not relieve them of the duty of care incumbent on them under Article 8 of the Convention (see López Ostra, cited above, §§ 44-58). 111. The Court notes that from May 2008 the Italian State took various measures and initiatives to overcome the difficulties in Campania, and that the state of emergency declared there on 11 February 1994 was lifted on 31 December 2009. The respondent Government acknowledged the existence of a crisis situation, it is true, but it classified that situation as force majeure. In this connection the Court will simply reiterate the terms of Article 23 of the Articles of the United Nations International Law Commission on State responsibility for internationally wrongful acts, according to which “ force majeure is “an irresistible force or ... an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform [an international] obligation”. ... Regard also being had to the conclusions of the Court of Justice of the European Union in case no. C-297/08, cited above, the Court considers that the circumstances relied on by the Italian State cannot be considered as force majeure. 112. In the Court’s opinion, even assuming, as the Government have affirmed, that the acute phase of the crisis lasted only five months – from the end of 2007 to May 2008 – and in spite of the margin of appreciation left to the respondent State, there is no denying that the protracted inability of the Italian authorities to ensure the proper functioning of the waste collection, treatment and disposal service adversely affected the applicants’ right to respect for their homes and their private life, in violation of Article 8 of the Convention in its substantive aspect. 113. However, as to the procedural aspect of Article 8 and the complaint concerning the alleged failure to provide information that would have enabled the applicants to assess the risk they ran, the Court points out that the studies commissioned by the civil emergency planning department were made public in 2005 and 2008. It accordingly considers that the Italian authorities discharged their duty to inform the people concerned, including the applicants, of the potential risks to which they exposed themselves by continuing to live in Campania. There has therefore been no violation of Article 8 of the Convention in this regard. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 119. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 120. The applicants each claimed 15,000 euros (EUR) for the non ‑ pecuniary damage allegedly sustained. 121. The Government objected, arguing that the claim only concerned Mr Errico di Lorenzo, the lawyer acting before the Court on his own behalf. 122. The Court notes that Mr di Lorenzo claimed compensation for non ‑ pecuniary damage not only for himself but for “each applicant”, so it considers that the claim for compensation covers all the applicants. In the circumstances of the present case, however, the Court considers that the violations of the Convention it has found constitute sufficient just satisfaction for any non-pecuniary damage. ...
The Court observed that the collection, treatment and disposal of waste were hazardous activities; as such, the State had been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right of those concerned to a healthy and protected environment. In this case, the Court held that there had been a violation of Article 8 of the Convention in its substantive aspect: even if one took the view that the acute phase of the crisis had lasted only five months – from the end of 2007 until May 2008 – and in spite of the margin of appreciation left to the Italian State, the fact remained that the Italian authorities had for a lengthy period been unable to ensure the proper functioning of the waste collection, treatment and disposal service, resulting in an infringement of the applicants’ right to respect for their private lives and their homes. The Court further held that there had been no violation of Article 8 in its procedural aspect: the studies commissioned by the civil emergency planning department had been published by the Italian authorities in 2005 and 2008, in compliance with their obligation to inform the people concerned, including the applicants, of the potential risks to which they exposed themselves by continuing to live in Campania. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention in so far as the complaint related to the absence of effective remedies in the Italian legal system by which to obtain redress for the damage sustained was concerned.