Environmental risks and access to information
II. Relevant domestic law 28. As regards the obligation to inform the public on matters of environmental and public safety, Article 5 of DPR 175/88 provides that any undertaking carrying on dangerous activities must submit a report to the Ministry for the Environment and the Ministry of Health giving details of, among other things, its activities, emergency procedures in the event of a major accident, the persons responsible for carrying these procedures out, and the measures taken by the undertaking to reduce the risks to the environment and public health. Article 21 of DPR 175/88 provides that anyone in charge of an undertaking who fails to submit the report required by Article 5 may be sentenced to up to one year’s imprisonment. 29. At the material time Article 11 § 3 of DPR 175/88 provided that mayors were under a duty to inform the public of (a) the nature of the production process; (b) the nature and quantities of the substances involved; (c) the potential risks to employees and workers in the factory, members of the public and the environment; (d) the conclusions on the safety reports submitted by the factory pursuant to Article 5 and on any additional measures referred to in Article 19; and (e) the safety measures and procedures to be followed in the event of an accident. Article 11 § 2 provided that, in order to protect industrial secrets, any person responsible for examining reports or information from the undertakings concerned was forbidden to disclose any information that he had thereby obtained. 30. Article 11 § 1 provided that data and information on industrial activities obtained pursuant to DPR 175/88 could be used only for the purposes for which they had been requested. That provision was partly amended by Legislative Decree no. 461 of 8 November 1995. Paragraph 2 of that decree provides for an exception to the ban on disclosure of industrial secrets in the case of certain information, namely that contained in an information sheet which the undertaking must complete and send to the Ministry for the Environment and the regional or inter-regional technical committee. Mayors’ duties with regard to informing the public are unchanged and now appear in paragraph 4. 31. Article 17 of DPR 175/88 also lays certain obligations on the prefect in the matter of providing information. In particular, paragraph 1 of that provision (now paragraph 1 bis ) requires the prefect to draw up an emergency plan based on the information supplied by the factory and the Coordinating Committee for Industrial Safety Measures. That plan must be sent to the Ministry of the Interior and the Civil Defence Department. Paragraph 2 goes on to provide that, after drawing up the emergency plan, the prefect must adequately inform the population concerned of the hazards of the activities, the safety measures taken to prevent a major accident, the emergency procedures planned for the area outside the factory should a major accident occur and the procedures to be followed in the event of an accident. The amendments made to this Article in the aforementioned legislative decree include a new paragraph 1, to the effect that the Civil Defence Department must establish reference criteria for emergency planning and the adoption of measures for the supply of information to the public by the prefect, and repeal of paragraph 3, which provided that the information referred to in paragraph 2 had to be sent to the Ministry for the Environment, the Ministry of Health and the regional authorities concerned. 32. Section 14(3) of Law no. 349 of 8 July 1986, by which the Ministry for the Environment in Italy was created and the first legal provisions on environmental damage introduced, provides that everyone has a right of access to the information on the state of the environment which is, in accordance with the law, available at the offices of the administrative authorities and may obtain a copy on defrayment of the authorities’ costs. 33. In a judgment (no. 476) of 21 November 1991 the Council of Administrative Law for Sicily ( Consiglio di Giustizia amministrativa per la Regione siciliana – which in Sicily replaces the Supreme Administrative Court) held that the concept of “information on the state of the environment” included any information about human beings’ physical surroundings and concerning matters of some interest to the community. On the basis of those criteria, the Council of Administrative Law held that a district council was not justified in refusing to allow a private individual to obtain a copy of analyses of the fitness of water in the district in question for use as drinking water. PROCEEDINGS BEFORE THE COMMISSION 35. The applicants applied to the Commission on 18 October 1988. Relying on Article 2 of the Convention, they submitted that the lack of practical measures, in particular to reduce pollution levels and major-accident hazards arising out of the factory’s operation, infringed their right to respect for their lives and physical integrity. They also complained that the relevant authorities’ failure to inform the public about the hazards and about the procedures to be followed in the event of a major accident, as required in particular by Article 11 § 3 and Article 17 § 2 of Presidential Decree no. 175/88, infringed their right to freedom of information as guaranteed by Article 10. 36. On 6 July 1995 the Commission declared the application (no. 14967/89) admissible as to the complaint under Article 10 and inadmissible as to the remainder. In its report of 29 June 1996 (Article 31), it expressed the opinion by twenty-one votes to eight that there had been a breach of that Article. The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 37. The Government concluded their memorial by inviting the Court, as their primary submission, to dismiss the application for failure to exhaust domestic remedies and, in the alternative, to hold that there had been no violation of Article 10 of the Convention. 38. At the hearing the applicants’ counsel asked the Court to hold that there had been a violation of Articles 10, 8 and 2 of the Convention and to award her clients just satisfaction. as to the law I. scope of the case 39. Before the Commission the applicants made two complaints. Firstly, the authorities had not taken appropriate action to reduce the risk of pollution by the Enichem agricoltura chemical factory at Manfredonia (“the factory”) and to avoid the risk of major accidents; that situation, they asserted, infringed their right to life and physical integrity as guaranteed by Article 2 of the Convention. Secondly, the Italian State had failed to take steps to provide information about the risks and how to proceed in the event of a major accident, as they were required to do by Articles 11 § 3 and 17 § 2 of Presidential Decree no. 175/88 (“ DPR 175/88”); as a result the applicants considered that there had been a breach of their right to freedom of information laid down in Article 10 of the Convention. 40. On 6 July 1995 the Commission, by a majority vote, upheld the Government’s preliminary objection that domestic remedies had not been exhausted in respect of the first issue and declared the remainder of the application admissible, “without prejudging the merits”. In its report of 25 June 1996 it considered the case under Article 10 of the Convention and decided that that provision was applicable and had been breached since, at least during the period between the issue of DPR 175/88 in May 1988 and the cessation of fertiliser production in 1994, the relevant authorities were under an obligation to take the necessary steps so that the applicants, who were living in a high-risk area, could “receive adequate information on issues concerning the protection of their environment”. Eight members of the Commission expressed their disagreement in three dissenting opinions, two of which pointed to the possibility of a different approach to the case, on the basis that Article 8 of the Convention was applicable to the complaint declared admissible. 41. In their memorial to the Court and at the hearing the applicants relied also on Articles 8 and 2 of the Convention, contending that the failure to provide them with the relevant information had infringed their right to respect for their private and family life and their right to life. 42. Before the Court the Delegate of the Commission merely reiterated the conclusion set out in the report (that there had been a violation of Article 10), whereas the Government argued that the complaints under Articles 8 and 2 fell outside the compass of the case as delimited by the decision on admissibility. It is therefore necessary to determine as a preliminary issue the extent of the Court’s jurisdiction ratione materiae. 43. The Court observes, firstly, that its jurisdiction “extend[s] to all cases concerning the interpretation and application of [the] Convention which are referred to it in accordance with Article 48” (see Article 45 of the Convention as amended in respect of States which have ratified Protocol No. 9) and that “In the event of dispute as to whether the Court has jurisdiction, the matter [is] settled by the decision of the Court” (Article 49). 44. Secondly, it reiterates that since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 13, § 29). The Court has full jurisdiction only within the scope of the “case”, which is determined by the decision on the admissibility of the application. Within the compass thus delimited, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56). 45. In the instant case the grounds based on Articles 8 and 2 were not expressly set out in the application or the applicants’ initial memorials lodged in the proceedings before the Commission. Clearly, however, those grounds were closely connected with the one pleaded, namely that giving information to the applicants, all of whom lived barely a kilometre from the factory, could have had a bearing on their private and family life and their physical integrity. 46. Having regard to the foregoing and to the Commission’s decision on admissibility, the Court holds that it has jurisdiction to consider the case under Articles 8 and 2 of the Convention as well as under Article 10. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 47. The applicants alleged that they were the victims of a violation of Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The alleged breach resulted from the authorities’ failure to take steps to ensure that the public were informed of the risks and of what was to be done in the event of an accident connected with the factory’s operation. A. The Government’s preliminary objection 48. As they had done before the Commission, the Government raised a preliminary objection of failure to exhaust domestic remedies, to which there were two limbs. In the first limb the Government argued that it was possible to make an urgent application under Article 700 of the Code of Civil Procedure. If the applicants had feared imminent danger in connection with the operation of the factory, they could and should have sought a court order affording them instant protection of their rights. The Government acknowledged their failure to provide examples of similar cases in which Article 700 had been applied, but said that, regardless of whether that provision could be used against a public body, it could certainly be used against a factory which, as in the present case, had not produced a safety report as required by Article 5 of DPR 175/88 (see paragraph 28 above). The second limb concerned the fact that the applicants had not complained to a criminal court about the lack of relevant information from, in particular, the factory, whereas such omissions constituted an offence under Article 21 of DPR 175/88. 49. The Court considers that neither remedy would have enabled the applicants to achieve their aim. Even though the Government were unable to prove that an urgent application would have been effective as environmental cases had still not given rise to any authoritative judicial decision in the relevant area, Article 700 of the Code of Civil Procedure would have been a practicable remedy if the applicants’ complaint had concerned a failure to take measures designed to reduce or eliminate pollution; indeed, that was the Commission’s conclusion when it ruled on the admissibility of the application (see paragraph 40 above). In reality, the complaint in the instant case was that information about the risks and about what to do in the event of an accident had not been provided, whereas an urgent application would probably have resulted in the factory’s operation being suspended. As to instituting criminal proceedings, the safety report was submitted by the factory on 6 July 1989 (see paragraph 22 above) and if the applicants had lodged a criminal complaint they would at most have secured the conviction of the factory’s managers, but certainly not the communication of any information. The objection must therefore be dismissed. B. Merits of the complaint 50. It remains to be determined whether Article 10 of the Convention is applicable and, if so, whether it has been infringed. 51. In the Government’s submission, that provision merely guaranteed freedom to receive information without hindrance by States; it did not impose any positive obligation. That was shown by the fact that Resolution 1087 (1996) of the Council of Europe’s Parliamentary Assembly and Directive 90/313/EEC of the Council of the European Communities on freedom of access to information on the environment spoke merely of access, not a right, to information. If a positive obligation to provide information existed, it would be “extremely difficult to implement” because of the need to determine how and when the information was to be disclosed, which authorities were responsible for disclosing it and who was to receive it. 52. Like the applicants, the Commission was of the opinion that the provision of information to the public was now one of the essential means of protecting the well-being and health of the local population in situations in which the environment was at risk. Consequently, the words “This right shall include freedom ... to receive … information...” in paragraph 1 of Article 10 had to be construed as conferring an actual right to receive information, in particular from the relevant authorities, on members of local populations who had been or might be affected by an industrial or other activity representing a threat to the environment. Article 10 imposed on States not just a duty to make available information to the public on environmental matters, a requirement with which Italian law already appeared to comply, by virtue of section 14(3) of Law no. 349 in particular, but also a positive obligation to collect, process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public. The protection afforded by Article 10 therefore had a preventive function with respect to potential violations of the Convention in the event of serious damage to the environment and Article 10 came into play even before any direct infringement of other fundamental rights, such as the right to life or to respect for private and family life, occurred. 53. The Court does not subscribe to that view. In cases concerning restrictions on freedom of the press it has on a number of occasions recognised that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest (see, among other authorities, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 59 (b), and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 63). The facts of the present case are, however, clearly distinguishable from those of the aforementioned cases since the applicants complained of a failure in the system set up pursuant to DPR 175/88, which had transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population. Although the prefect of Foggia prepared the emergency plan on the basis of the report submitted by the factory and the plan was sent to the Civil Defence Department on 3 August 1993, the applicants have yet to receive the relevant information (see paragraphs 26 and 27 above). The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, “basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him” (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 29, § 74). That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion. 54. In conclusion, Article 10 is not applicable in the instant case. 55. In the light of what was said in paragraph 45 above, the case falls to be considered under Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56. The applicants, relying on the same facts, maintained before the Court that they had been the victims of a violation of Article 8 of the Convention, which provides: “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.” 57. The Court’s task is to determine whether Article 8 is applicable and, if so, whether it has been infringed. The Court notes, firstly, that all the applicants live at Manfredonia, approximately a kilometre away from the factory, which, owing to its production of fertilisers and caprolactam, was classified as being high-risk in 1988, pursuant to the criteria laid down in DPR 175/88. In the course of its production cycle the factory released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. Moreover, in 1976, following the explosion of the scrubbing tower for the ammonia synthesis gases, several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, escaped and 150 people had to be hospitalised on account of acute arsenic poisoning. In addition, in its report of 8 December 1988, a committee of technical experts appointed by the Manfredonia District Council said in particular that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia (see paragraphs 14–16 above). 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. 58. The Court considers that Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, § 32). In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 (see the Lόpez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55). 59. On 14 September 1993, pursuant to Article 19 of DPR 175/88, the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the safety report submitted by the factory in July 1989. Those conclusions prescribed improvements to be made to the installations, both in relation to current fertiliser production and in the event of resumed caprolactam production, and provided the prefect with instructions as to the emergency plan – that he had drawn up in 1992 – and the measures required for informing the local population under Article 17 of DPR 175/88. In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available (see paragraph 27 above). 60. 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, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory. The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention. There has consequently been a violation of that provision. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61. Referring to the fact that workers from the factory had died of cancer, the applicants also argued that the failure to provide the information in issue had infringed their right to life as guaranteed by Article 2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 62. Having regard to its conclusion that there has been a violation of Article 8, the Court finds it unnecessary to consider the case under Article 2 also. V. application of article 50 of the convention 63. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicants sought compensation for “biological” damage; they claimed 20,000,000,000 Italian lire (ITL). 65. In the Government’s submission, the applicants had not shown that they had sustained any damage and had not even described it in detail. If the Court were to hold that there had been non-pecuniary damage, a finding of a violation would constitute sufficient just satisfaction for it. 66. The Delegate of the Commission invited the Court to award the applicants compensation that was adequate and proportionate to the considerable damage they had suffered. He suggested a sum of ITL 100,000,000 for each applicant. 67. The Court considers that the applicants did not show that they had sustained any pecuniary damage as a result of the lack of information of which they complained. As to the rest, it holds that the applicants undoubtedly suffered non-pecuniary damage and awards them ITL 10,000,000 each. B. Costs and expenses 68. The applicants were granted legal aid for the proceedings before the Court in the amount of 16,304 French francs; however, at the end of the hearing their counsel lodged an application with the registry for an additional sum in respect of her fees. 69. Neither the Government nor the Delegate of the Commission expressed a view on the matter. 70. Having regard to the amount already granted in legal aid and the lateness of the application (see Rules 39 § 1 and 52 § 1 of Rules of Court B), the Court dismisses the claim. C. Other claims 71. Lastly, the applicants sought an order from the Court requiring the respondent State to decontaminate the entire industrial estate concerned, to carry out an epidemiological study of the area and the local population and to undertake an inquiry to identify the possible serious effects on residents most exposed to substances believed to be carcinogenic. 72. The Government submitted that those claims were inadmissible. 73. The Delegate of the Commission expressed the view that a thorough and efficient inquiry by the national authorities together with the publication and communication to the applicants of a full, accurate report on all the relevant aspects of the factory’s operation over the period in question, including the harm actually caused to the environment and people’s health, in addition to the payment of just satisfaction, would meet the obligation laid down in Article 53 of the Convention. 74. The Court notes that the Convention does not empower it to accede to such a request. It reiterates that it is for the State to choose the means to be used in its domestic legal system in order to comply with the provisions of the Convention or to redress the situation that has given rise to the violation of the Convention (see, mutatis mutandis, the following judgments: Zanghì v. Italy of 19 February 1991, Series A no. 194-C, p. 48, § 26, Demicoli v. Malta of 27 August 1991, Series A no. 210, p. 19, § 45, and Yağcı and Sargın v. Turkey of 8 June 1995, Series A no. 319-A, p. 24, § 81). D. Default interest 75. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 5% per annum.
The Court held that there had been a violation of Article 8 of the Convention, finding that the Italian State had not fulfilled its obligation to secure the applicants’ right to respect for their private and family life. It reiterated in particular 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. In the instant case the applicants had waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live in a town particularly exposed to danger in the event of an accident at the factory. Having regard to its conclusion that there had been a violation of Article 8, the Court further found it unnecessary to consider the case under Article 2 (right to life) of the Convention also.