Information Note on the Court’s case-law No. 76
June 2005
Fadeyeva v. Russia - 55723/00
Judgment 9.6.2005 [Section I]
Article 8
Article 8-1
Respect for home
Respect for private life
Failure of the authorities to resettle a family living in a severely polluted area and to design or apply effective measures to reduce industrial pollution: violation
Facts: The applicant lives in an important steel-producing centre. In 1982, she moved with her family to a flat situated at about 450 metres from a steel-plant. Although the authorities had delimited a buffer zone around the plant’s premises – “the sanitary security zone” – with the aim of separating the plant from the town’s residential areas, in practice thousands of people (including the applicant’s family) lived there. A Decree of 1974 obliged the authorities to resettle certain inhabitants of the sanitary security zone. In the 1990’s the Government adopted two programmes to improve the environmental situation in the plant. The latter of these programmes stated that the “environmental situation in the city had resulted in a continuing deterioration in public health”. Some of the measures envisaged in the programme included the resettlement of people living in the sanitary security zone. In 1995, the applicant brought a court action seeking resettlement outside the zone, arguing that the concentration of toxic elements and noise levels in the sanitary security zone was dangerous to health and life. In 1996, the Town Court, referring to the Decree of 1974, found that the authorities ought to have resettled all of the zone’s residents but that they had failed to do so. However, no specific order to resettle the applicant was given by the court, it merely stated that the local authorities had to place her on a “priority waiting list” to obtain new local authority housing. The court also stated that the applicant’s resettlement was conditional to the availability of funds. The first-instance court issued an execution warrant, but the bailiff discontinued the enforcement proceedings on the ground that there was no “priority waiting list” for new housing for residents of the sanitary security zone. In 1999, the applicant brought a fresh action against the municipality, seeking immediate execution of the 1996 judgment. The Town Court dismissed the action, finding that the applicant had been duly placed on the general waiting list. Moreover, it held that the judgment of 1996 had been executed and that there was no need to take any further measures. Both parties have submitted to the Court a number of documents containing information on industrial pollution in the town. A report prepared by a Dr Chernaik, commissioned by the applicant, concluded that he would expect the population residing within the zone to suffer from above-average incidences of several diseases.
Law: Article 8 – The degree of disturbance caused by the plant and the effects of pollution on the applicant are disputed by the parties. As the Court has already pointed out, see López Ostra v. Spain, the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of this provision. According to the materials submitted to the Court since 1998 (when the Convention entered into force in Russia, and is therefore the period to be taken into consideration), the pollution levels with respect to a number of rated parameters had exceeded the domestic norms. Given the Government’s failure to produce a number of documents requested by the Court, it could be concluded that at certain periods the situation could have been even worse than it appeared from the available data. The fact that the domestic courts in the present case recognised the applicant’s right to be resettled showed that the existence of an interference with the applicant’s private sphere was taken for granted at the domestic level. It was therefore a presumption that the pollution had become potentially harmful to the health and well-being of those exposed to it. Thus, the very strong combination of indirect evidence and presumptions made it possible to conclude that the applicant’s health had deteriorated as a result of her prolonged exposure to the industrial emissions from the plant, and had adversely affected the quality of life at her home, to a degree sufficient to bring within the scope of Article 8. As to the attribution of the alleged interference to the State, the plant had been privatised in 1993, and there had thus been no direct interference from the Russian Federation. However, under the Court’s case-law, the failure to regulate a private industry in environmental cases may engage a State’s responsibility. Following the plant’s privatisation in 1993, the State continued to exercise control over the plant (operating conditions, supervision, etc.). The municipal authorities were aware of the continuing environmental problems and applied certain sanctions in order to improve the situation. Thus, the Court concluded that the authorities were certainly in a position to evaluate the pollution hazards and to take adequate measures to prevent or reduce them. The combination of these factors was sufficient to raise an issue of the State’s positive obligation under Article 8. As to the legitimate aim of the interference, the Government argued that the applicant’s immediate resettlement would inevitably breach the rights of other residents entitled to free housing. It also referred to the fact that the plant contributed to the economic system of the region, which the Court considered served as a legitimate aim. Although Russian legislation did not indicate clearly what should be done with those persons living in the security zone, in a situation where pollution exceeded safe levels, it appeared that the only solution was to place the applicant on a waiting list. The legislation made no difference between those persons who were entitled to new housing on a welfare basis and those whose everyday life was seriously disrupted by toxic fumes from a neighbouring enterprise. The applicant was placed on the waiting list, but her situation did not change. Therefore, the measure applied by the domestic courts made no difference to the applicant: it did not give her any realistic hope of being removed from the source of pollution. Moreover, the State had authorised the operation of a polluting enterprise in the middle of a densely populated town. Although it had established that a certain territory around the plant should be free of any dwelling, legislative measures in this respect were not implemented in practice, and the State did not offer the applicant any effective solution to help her move from the dangerous area. The polluting enterprise had operated in breach of domestic environmental standards and there was no information that the State had designed or applied effective measures taking into account the interests of the local population affected by the pollution which would have been capable of reducing the industrial pollution to acceptable levels. Despite the wide margin of appreciation of the State in the sphere of environmental practices, a fair balance between the interests of the community and the applicant’s effective enjoyment of her right to respect for her home and private life had not been struck.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant 6,000 euros in respect of non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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