Information Note on the Court’s case-law 267
October 2022
Kotov and Others v. Russia - 6142/18, 51015/18, 51020/18 et al.
Judgment 11.10.2022 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for private life
Protective measures taken to reduce effects of pollution from a landfill so as to prevent related health risks, inadequate from 2015 to 2018 but adequate from 2019 onwards: violation, no violation
Facts – The ten applicants live in the town of Klinwhich is located near to the Aleksinskiy Quarry. Since 1993 the quarry has been used as a landfill site for solid household waste collected in the Klin District. It is operated by a local waste management company Kombinat LLC, pursuant to a lease agreement with the Klin municipal administration. The applicants alleged that the company had been depositing large amounts of solid waste in the landfill site, without the required control and/or protective measures by the authorities to minimise or eliminate the effects of the resulting environmental nuisances.
The applicant in application no. 6142/18 (“the first applicant”) unsuccessfully brought civil proceedings. Furthermore, all the applicants, except for the applicant in application no. 106/19, were found guilty of various administrative offences related to protests they had organised against the landfill site. Some of them were fined.
Law –
Articles 8 taken in conjunction with Article 13:
(a) Admissibility –
(i) Exhaustion of domestic remedies – The applicants had at their disposal an effective domestic remedy: civil proceedings brought by those whose well-being had been allegedly adversely affected by unfavourable environmental conditions were capable of providing an adequate judicial response to their grievances. However, only the first applicant had brought civil proceedings on all four jurisdictional levels. The other applicants had failed to have recourse to that remedy and no special circumstances existed absolving them of their obligation to do so. Seven applicants had not pursued it to the end, having failed to comply with the procedural requirements for filing cassation appeals, despite no apparent obstacles. Two applicants had not pursued civil proceedings at all. These applicants could not be absolved from the obligation to exhaust by virtue of the proceedings brought by the first applicant. The District Court had examined the individual circumstances of the first applicant’s case and its findings did not concern the situation of any other applicants who might have benefited from a different evaluation and outcome. Given the circumstances of the first applicant’s proceedings and the fact that the effectiveness of a remedy within the meaning of Article 13 did not depend on the certainty of a favourable outcome, it could not be said that judicial review of the first applicant’s complaint had been ineffective for the purposes of Article 13.
Conclusion: admissible in respect of the first applicant and inadmissible in respect of all the others.
Application no. 6142/18
(ii) Applicability – Even though Kombinat LLC had been legally required to carry out measurements of its emissions as part of the industrial self-monitoring required by at least two federal laws, it appeared that it had only started doing so in 2018 or 2019, about ten years after it had begun depositing waste at the quarry. The company had also been classified by the authorities as a Category I enterprise, meaning that it belonged to a group of entities that caused the most negative impact on the environment and, as established by measurements, emitted toxic substances in concentrations above the maximum permissible limits into the air and water sources located at or in the proximity of the quarry in the course of its waste processing operations.
The first applicant lived in the town situated very close to the quarry and also cultivated land in the village in the immediate vicinity. He could therefore have been affected by the excessive pollution from the quarry. While, in the absence of medical evidence, it could not be said that pollution from the quarry had necessarily caused damage to the applicant’s health, it was possible to establish, on the basis of the official reports and available evidence, that living in the area with pollution in clear excess of applicable safety standards had made him more vulnerable to various illnesses. Further, his account of having experienced nuisances resulting from the operation of the quarry had been consistent with the domestic authorities’ finding Kombinat LLC liable in numerous administrative proceedings for breaching relevant regulations, with reports of other residents of Klin complaining about the smell or requesting to close the quarry and with the observations made by a court-appointed expert.
Having regard to the evidence in the case file and, in particular, the air monitoring data submitted by the parties and the findings made by the domestic authorities, the Court considered that the environmental nuisances that the first applicant had experienced from at least 2015 in the course of his everyday life had not been negligible compared to the environmental hazards inherent in life in every modern city and that the pollution emanating from the quarry had affected, adversely and to a sufficient extent, his private life during the period under consideration.
Conclusion: Article 8 applicable
(b) Merits – The fact that the domestic authorities had handed over the management of a public service to third parties did not relieve them of the duty of care incumbent on them under Article 8. Indeed, the Government had not disputed that they had owed a positive duty to the first applicant under Article 8 to address the environmental concerns associated with the waste processing operations of Kombinat LLC and to secure his rights under the Convention. Consequently, a sufficient nexus had been established between the pollutant emissions and the State to raise an issue of the State’s responsibility under Article 8. This was even more so as the landfill site had been leased to the waste management company by the Klin municipal administration. Accordingly, the Court examined the first applicant’s complaint from the standpoint of the State’s duty to take reasonable and appropriate measures to secure his rights under Article 8 § 1.
The regular collection and efficient processing of solid household waste was, without a doubt, crucial for the protection of public health, socio-economic interests and the overall normal functioning of people’s lives in residential and non-residential areas. The collection, treatment and disposal of waste were, without a doubt, dangerous activities that required regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives.
In making its assessment the Court made a distinction between two separate periods in the case:
(i) From 2015 until the end of 2018 – It transpired from the case material that, despite the existence of a strong regulatory framework governing waste management operations, Kombinat LLC had been depositing waste at the quarry with virtually no supervision from the authorities between 2009 (when it started its operations) and 2015 (when the first sanctions for environmental pollution had been imposed on it). In particular, a number of legal requirements had not been complied with by Kombinat LLC or enforced by the authorities, in a timely and diligent manner. In the absence of any explanation from the Government, the Court could not but conclude that, for at least some of the time and at least to some extent, Kombinat LLC had probably been carrying out its operations in breach of the relevant regulations since 2009, and that would not have been possible without some omissions on the part of the authorities. That being so, 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 authorities had taken a more proactive approach in controlling the operations of Kombinat LLC and enforcing the relevant regulations between 2015 (the year when the first applicant reportedly started experiencing odour nuisances caused by the operations at the quarry) and 2018. During that period, Kombinat LLC had been found liable for violating the relevant sanitary, epidemiological and environmental regulations in sixteen separate rounds of administrative proceedings and had remedied some of the breaches identified. It was not clear however, whether the company had implemented remedial and decontamination measures, particularly as regards emissions. Thus, the sanctions imposed had not had the intended effect on the company and had not meaningfully contributed to improving the environmental conditions at the quarry and in the Klin District. The failure of Kombinat LLC to comply with the relevant regulations, which, at least in part, had been caused and exacerbated by the authorities’ lenience in enforcing the regulations more strictly, had exposed the first applicant to long-term environmental nuisances. The authorities had therefore failed in their positive obligation to protect the applicant’s right to respect for his private life during this period.
Conclusion: violation (unanimously)
(ii) From 2019 until the present time – More robust and encompassing measures aimed at addressing pollution from the quarry had been implemented by the authorities since 2019. A large-scale plant had started at full capacity at the end of 2020 and was being used to sort, recycle and process solid household waste from the Klin District. That had made it possible to deposit only limited volumes of non-recyclable waste in the landfill. Equipment for collecting and processing landfill gas had been installed at the quarry, technologies for collecting leachates and purifying filters had been implemented and steps had been taken to seal the body of the landfill and its borders to prevent leakage. The governmental decision-making process concerning the construction of the plant had been transparent and attended by sufficient procedural guarantees, including the right of access to information and the right of appeal against allegedly adverse decisions. Due weight had been given to the applicant’s interests when the decision to proceed with project was being adopted. Other measures had also been taken by the authorities aiming at promoting sustainability and protection of the environment and the health of residents.
Accordingly, since 2019 the Government had managed to strike a fair balance between, on the one hand, the general socio‑economic interest in having a sound waste management policy and effective waste treatment practices in place and, on the other hand, the first applicant’s individual interest in living in favourable environmental conditions.
Conclusion: no violation (unanimously)
The Court also held, unanimously, that there had been no violation of Article 13 in respect of the first applicant.
Lastly, the Court found, by six votes to one, a violation of Article 11: in respect of all the applicants, except the one in application no. 106/19 (who had not complained under that provision) in respect of measures taken against them in connection with their protests against the landfill; and in respect of the first applicant (application no. 56764/18) in relation to official refusals to approve notices of public events.
Article 41: for the violation of Articles 8 and 11, EUR 9,800 to the first applicant (applications nos. 6142/18, 52169/18 and 56764/18) for non-pecuniary damage; for the violation of Article 11, EUR 4,000 to each of the remaining applicants for non-pecuniary damage and EUR 140 to each applicant fined in the administrative proceedings in respect of pecuniary damage.
(See also Fadeyeva v. Russia, 55723/00, 9 June 2005, Legal Summary; Pavlov and Others v. Russia, 31612/09, 11 October 2022)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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