THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 67021/01
by Vasile Gheorghe TATAR and Paul TATAR
against Romania
The European Court of Human Rights (Third Section), sitting on 5 July 2007 as a Chamber composed of:
MrsE. Fura-Sandström, President,
MrC. Bîrsan,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 17 July 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Vasile Gheorghe Tatar and his son Mr Paul Tatar, are Romanian nationals who were born in 1947 and 1979 respectively and live in Baia Mare. They were represented before the Court by Ms A. Szabo, a lawyer practising in Odorheiul Secuiesc. The Romanian Government (“the Government”) were represented by their Agent, Ms B. Ramaşcanu, and subsequently by Ms R. Paşoi, co-Agent, of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The company operating the Baia Mare gold mine
3. S.C. Aurul S.A. Baia Mare was a company which had its registered office in north-western Romania and was managed by an Australian company, Esmeralda Exploration Limited, and a Romanian public limited company, REMIN, established in 1992. S.C. Aurul S.A. set up a gold-mining plant on an 80-hectare site near the city of Baia Mare.
4. In 1998 S.C. Aurul S.A. obtained an operating licence for the gold mine. On 1 June 1999 the licence was approved by a Government decision.
5. On 18 December 2001 the National Agency for Mineral Resources (Agenţia natională pentru resurse minerale) drew up an addendum to the initial licence, amending the licence-holder’s name, which was now S.C. Transgold S.A.
6. In accordance with paragraph 16 of the operating licence, the licence-holder was required to protect the environment through a series of measures such as using technology that did not pollute the water, treating waste water, and using a metal-extraction procedure that did not generate nuisance or hydrogen cyanide.
7. Three environmental permits (autorizatia de mediu) were issued by the Ministry of the Environment. The first, issued on 8 August 2002, concerned the Aurul tailings pond. It also authorised the deposit of chemical substances (depozitul de sterile) and the operations in the pond and the adjacent buildings. The second, issued on the same day, concerned the plant for extraction of precious metals (uzina de extragere a metalelor preţioase), designed for the extraction and preparation of non-ferrous ores (excluding radioactive ores). A third permit, issued on 12 August 2002, concerned the transport of ores between the plant and the Aurul tailings pond.
2. Environmental accident of 30 January 2000 involving a cyanide spill, as described in a United Nations assessment mission report (UNEP/OCHA – United Nations Environment Programme/Office for the Co-ordination of Humanitarian Affairs)
The following is a summary of the environmental accident of 30 January 2000, on the basis of the UNEP/OCHA report.
“Accident: On 30 January 2000 a breach measuring 2.5 m in depth and 25 m in length formed, releasing about 100,000 cubic metres of tailings water containing free cyanide and cyanide complexes. The total concentration of cyanide in this industrial water was approximately 400 mg/l, including about 120 mg/l of free cyanide. The quantity of cyanide released was estimated at between 50 and 100 tonnes; in addition to this, heavy metals such as copper were released. The rivers affected in turn were the Sasar, Lăpuş, Someş, Tisza and Danube.
The breach in the retention dam was probably caused by two factors. At mines, tailings dams, known as ‘beaches’, are under continuous construction; the safety of the dam is mainly due to the sound balance between dam height and the level of decant water in the pond. The low temperatures in January 2000 (0o to -10o) made cycloning operations difficult (freezing of the underflow). Consequently, Aurul S.A. decided to discharge the tailings fluid directly into the pond without increasing the height of the dam, instead of halting the production unit. ...”
3. Impact on the second applicant’s health and the environment
(a) The applicants’ submissions
8. According to the first applicant, during the extraction process the company operating the plant used sodium cyanide, a substance which was no longer used by similar companies in Europe on account of the risk it entailed for human health. He asserted that since June 1999 S.C. Aurul S.A. Baia Mare, which had become S.C. Transgold S.A. Baia Mare, had caused excessive and dangerous pollution in the city of Baia Mare. He argued that the storage and use of sodium cyanide during the extraction process constituted a genuine risk to human health. In his submission, this process had led to an annual rise in the number of cancer sufferers (from 1‑2 hospital admissions per day in 1999 to 25-30 in 2000). Those affected were the inhabitants of the area surrounding the site of the gold mine.
9. In a letter of 10 December 2001 the first applicant informed the Court that the second applicant, his son Paul Tatar, had contracted bronchial asthma as a result of the pollution generated by the company. He submitted copies of medical certificates confirming the disease.
(b) The Government’s submissions
10. According to a letter submitted by the Government from the Bucharest Public Health Institute (Institutul de sănătate publică Bucureşti), attached to the Ministry of Health, sodium cyanide was used at a different site from where the gold was mined. Accordingly, there could be no causal link between the second applicant’s condition and the use of sodium cyanide during the technological process. The conclusions of the Institute’s chief medical officer read as follows:
“– there is no proof of any harmful effects resulting from the exposure of the population to sodium cyanide, or of an increase in cancer rates;
– the fact that the applicants live near the gold-mining site has no connection with exposure to sodium cyanide ...;
– from a medical perspective, the applicants’ allegations are unfounded;
– if the applicants’ allegations were accepted as relevant, it would be necessary to revise the entire approach to the question of exposure of the population to sodium cyanide in relation to mining and other industries.”
11. On 6 August 2004 the Ministry of the Environment informed the Government that the use of sodium cyanide in the extraction of gold or silver was not prohibited by European Union legislation and that member States such as Spain and Italy used the substance. It also pointed out that environmental-impact assessments other than the 1993 one had been conducted, enabling operating licences to be issued in 2000 and 2001.
12. On 17 August 2004 the Maramureş County Public Health Department (Directia sănătate publică Maramureş) informed the Government that Transgold S.A. was authorised to use toxic substances (permit no. 13522/533/2001). C.P., the County Public Health Department’s chief medical officer, referred to an environmental-impact assessment conducted in 2001, which ruled out any causal link between the company’s operations and the diseases found among the inhabitants of the city of Baia Mare. He added that cancer-incidence trends in the region did not exceed the national level.
4. Environmental-impact assessments
13. An environmental-impact assessment carried out in 1993 by the Ministry of the Environment’s Research Institute outlines the process of using sodium cyanide. Among other things, the report describes how the technology was intended to operate:
“... Sodium hydroxide and sodium cyanide will be prepared in special containers by manually measuring out the necessary quantities and mixing the substances with industrial water. ... The sodium cyanide will be delivered in 50-litre metal barrels which will then be placed in a special location designed for storage of reactive substances. The barrels will be transported by forklift truck to the upper part of the special containers. ... The barrels will be opened in a special facility; after being emptied, they will be washed. ... The sodium cyanide will be transferred to the CIL depots via a closed-circuit network ...”
14. The same report stated that there were uncertainties about the environmental impact of the use of this technology:
“1. The proposed method has not been used in Romania to date ... Accordingly, it is difficult to assess with any certainty the extent of the nuisance generated; it is suspected that such nuisance might consist of aerosols, dust, noise and vibrations. It is also necessary to assess the degree of dispersion of aerosols and to establish whether this will extend beyond the boundaries of the processing site; this factor is important because aerosols containing sodium cyanide may cause respiratory diseases if they spread to inhabited areas.
2. It is impossible to determine the concentration of sodium cyanide in the solution which will be decanted into the new Bozinţa pond. On the basis of experiences elsewhere, the Australian company has estimated the average value at 200 mg CN/l.
3. The possibility that the sodium cyanide content will be reduced by 50% (to 100 mg CN/1) during the transfer of the solution to the pond through contact with environmental factors such as rays inside and outside the visible spectrum, oxygen etc., is uncertain, in view of the climatic conditions in Romania. According to the specialist literature consulted and the experience of those currently working at the Bozinţa pond, the level of sodium cyanide is not significantly reduced by natural processes.
4. It is impossible to assess the impact of water with a sodium cyanide level of 100 mg CN/1 on migratory birds (tern and wild duck). Mass mortality could ensue ...
5. As regards the proposed solution for insulation of the pond floor, namely piercing the lining at certain points (as outlined in detail in the feasibility study) and soldering it to pipelines, this method has never been encountered by the Institute’s specialists at national level and it is consequently difficult to express an opinion ...”
15. The conclusions reached by the Institute’s specialists were based on the numerous economic and social benefits and the fact that, since the Baia Mare region was already characterised by industries such as mining and the machining of non-ferrous ores and by the presence of a major road network, a high population density and agriculture, the activity in question would not affect “the region’s current characteristics to any significant extent”.
16. The Government referred, without producing it, to another environmental-impact assessment conducted in 2001, which allegedly proved that there was no causal link between the sodium cyanide detected in the soil and respiratory diseases such as bronchitis, asthma and pneumonia. With regard to the level of air pollution, no deterioration in air quality as a result of the presence of sodium cyanide had been observed. No significant increase had been recorded in the incidence of cancer in the region. According to data from the Ministry of the Environment, there had been 269.9 cases per 100,000 inhabitants in 2003 and 218.69 cases per 100,000 inhabitants in 2000. The figures for asthma sufferers had been 142.2 in 2000 and only 92.47 in 2003.
5. Administrative steps
17. The first applicant lodged a number of complaints with various authorities (the Ministry of the Environment, Baia Mare City Council, the European Commission delegation in Romania, the Romanian Prime Minister, the President of Romania and the Maramureş County Governor), seeking to have the company’s operating licence withdrawn and action taken against its management.
18. In his complaints the first applicant also sought to have the company’s operations halted, alleging that they entailed a genuine risk to human life, and an investigation conducted into whether the company had a valid operating licence.
19. On 1 April 2002 representatives of the Ministry of the Environment informed him in reply that the company had a lawful operating licence.
20. On 29 April 2002, further to a complaint by the first applicant concerning the alleged lack of an operating licence, Baia Mare City Council wrote to the company asking it to take the necessary steps to obtain one.
21. In a letter of 5 March 2002 the Maramureş County Council had informed the first applicant that the new company, S.C. Transgold S.A., had not yet obtained an operating licence.
22. On 26 September 2003 the Environment Commission (Garda de mediu) informed the applicant that the technology used by the company had developed significantly and that, in terms of environmental protection, its operations were entirely safe.
23. In a letter of 27 November 2003 the Ministry of the Environment informed the first applicant that the operations of the Transgold S.A. Baia Mare company did not entail any public-health risks and that the technology it used was also to be found in other countries.
6. Criminal-law remedies
(a) The applicants’ version of events
24. The first applicant lodged a number of criminal complaints against the members of the plant’s management board with the public prosecutor’s office at the Maramureş Court of First Instance, the public prosecutor’s office at the Maramureş County Court, the Procurator-General’s Office, the Supreme Court of Justice and the Ministry of Justice.
25. He referred to the risk that using the technology in question entailed for the health of the inhabitants of Baia Mare, to environmental hazards and to the deterioration of his son’s health.
26. On 5 December 2000 the public prosecutor’s office at the Supreme Court of Justice informed the first applicant that his complaint had been referred to the public prosecutor’s office at the Maramureş County Court for investigation.
27. In a letter of 20 December 2000 the public prosecutor’s office at the County Court, having requested information from the Ministry of the Environment, sent the first applicant a copy of the reply it had received. According to information submitted on 18 December 2000 by the Ministry of the Environment, there was no risk of pollution from the technology used by the company.
28. On 9 February 2001 the Ministry of Justice informed the first applicant that his complaint had been referred to the public prosecutor’s office at the Supreme Court of Justice for investigation.
29. In an order of 20 November 2001 the public prosecutor’s office at the Maramureş County Court discontinued the proceedings in relation to the accident of 30 January 2000, on the ground that the facts complained of by the first applicant did not constitute criminal offences.
30. On 22 February, 11 March and 28 March 2002 the Supreme Court of Justice dismissed the first applicant’s complaint on the ground that it had no jurisdiction in the matter.
31. In two orders of 6 and 8 March 2002 the public prosecutor’s office at the Supreme Court of Justice referred the first applicant’s complaint to the public prosecutor’s office at the Cluj Court of Appeal for investigation.
(b) The Government’s version of events
32. On 1 December 2000 the first applicant lodged a criminal complaint against employees of the S.C. Aurul S.A. Baia Mare company, alleging tax evasion and breaches of accounting legislation.
33. On 20 November 2001 D.A., a public prosecutor at the Maramureş County Court, discontinued the proceedings on the basis of Article 11 § 1 (a) of the Code of Criminal Procedure. Relying on Article 10 (a) of the Code of Criminal Procedure, he ruled that the facts as submitted by the first applicant did not constitute criminal offences. The Government have submitted a copy of that order.
34. The first applicant lodged a further criminal complaint with the public prosecutor’s office at the Cluj Court of Appeal concerning the accident of 30 January 2000, this time against the management of S.C. Aurul S.A.
35. In an order of 29 March 2001 the public prosecutor A.C. dismissed the first applicant’s complaint, giving the following reasons:
“... Following an examination of Mr Vasile Tatar’s allegations, it has been ascertained that a criminal investigation is already being conducted by the public prosecutor’s office at the Maramureş County Court with a view to verifying the conditions in which the breach of the retention dam belonging to the S.C. Aurul Baia Mare company occurred.
In connection with the ongoing proceedings concerning the offence of accidental pollution under section 84, subsection 1 (c), of the Environmental Protection Act (Law no. 137/1995), an expert assessment will be carried out to establish the causes of the breach of the dam.
In view of the fact that a criminal investigation is pending, the applicant’s complaint is dismissed.”
36. The investigation into the accidental pollution began on 1 February 2000, when the Maramureş police decided to examine the matter of their own motion. In an order of 3 December 2001 D.B., the chief public prosecutor at the Maramureş County Court, discontinued the proceedings. After finding that the company that had designed the dam had been negligent in failing to take account of the unfavourable climatic conditions or to include an emergency water-evacuation system, the chief public prosecutor held that such negligence had not been a decisive factor in the accident, since the exceptional weather conditions at the time made it a case of force majeure.
37. In an order of 25 July 2002 the public prosecutor’s office at the Supreme Court of Justice quashed the order of 3 December 2001 discontinuing the proceedings and ordered the public prosecutor’s office at the Cluj Court of Appeal to re-examine the initial criminal complaint.
38. On 12 December 2002 M.N., a public prosecutor at the Cluj Court of Appeal, discontinued the proceedings in respect of M.N.N. (the company’s director). He considered that the accident had been due to force majeure since the adverse weather conditions (sudden increase in temperature followed by heavy rain) had been the decisive factor.
39. It appears from the evidence in the file that on 29 January 2003 the chief public prosecutor at the Supreme Court of Justice quashed the order of 12 December 2002 and ordered the public prosecutor’s office at the Cluj Court of Appeal to resume the proceedings.
40. After the case had been referred back, C.M., a public prosecutor at the Cluj Court of Appeal, having made further inquiries, discontinued the proceedings on 22 May 2003 on the same grounds as before.
7. Public information about the public-health and environmental risks posed by cyanide and about the cyanide spill of 30 January 2000 in Romania
(a) International Chemical Safety Card (ICSC no. 1118/1999)
According to the International Chemical Safety Card on sodium cyanide, published by the UNEP/ILO/WHO:
“The substance decomposes on burning producing toxic fumes (nitrogen oxides). The substance is a strong base, it reacts violently with acid and is corrosive to metals (aluminium and zinc). Reacts violently with strong oxidants such as nitrates and chlorates causing fire and explosion hazard. The substance decomposes in the presence of air, moisture or carbon dioxide producing highly toxic and flammable gas (hydrogen cyanide). Contact with acids and acid salts causes immediate formation of highly toxic and flammable hydrogen cyanide gas. The substance can be absorbed into the body by inhalation, through the skin and eyes, and by ingestion. This substance may be hazardous to the environment; special attention should be given to fish. It is strongly advised not to let the chemical enter into the environment because it persists in the environment.”
(b) United Nations (UNEP/OCHA) Assessment Mission report
The following is an unofficial summary of the findings of the United Nations (UNEP/OCHA) Assessment Mission report on the cyanide spill at Baia Mare (Romania) on 30 January 2000.
“The disaster at the Aurul gold mine in Romania has provoked a good deal of comment in the newspapers. In order to remain objective, a number of explanations about the incident should be provided out of concern for the environment.
Summary of the report (not exhaustive):
...
The recovery of metals concerns gold and silver. The plant was designed to produce 1.6 tonnes of gold and 9 tonnes of silver per year from an annual total of 2.5 million tonnes of mining residue. The project was intended to have a life span of 10 to 12 years. The tailings fluid (after extraction of gold and silver) is discharged into a new pond, built using cycloning technology.
The surface area of the pond is 93 hectares. To make it leakproof, it was lined with a plastic membrane and fitted with a drainage system. The drains were intended to collect any seepage, and the membrane to prevent any interaction with the groundwater.
...
2. Poor climatic conditions: from December 1999 to January 2000, there was 26 mm of rainfall, then 120 mm of snow and subsequently a further 40 mm of rain on the snow cover. The melting of the snow and the additional rainfall resulted in an uncontrollable rise in the water level of the pond, which overflowed.
Initially, the pond had been designed to have a sufficient storage capacity to cope with an occurrence of extreme rainfall of up to 118 mm – a lower level of precipitation than was recorded in December 1999 to January 2000. No plans were in place for the eventuality of such a rise in the pond’s water level. The Romanian Government had classified the plant at ‘regular risk’ level since it was designed to operate in a closed circuit as regards the cyanide-containing water, with no discharges into the environment.
However, an examination of known local levels of precipitation and evaporation reveals that the imbalance between precipitation and evaporation exceeds 300 mm on average per year. Distribution of evaporation over the year is extremely uneven with zero values in the cold season. Furthermore, the cyanide concentration of the pond water is deliberately kept high in order to recover free cyanide for production.
The cyanide spill was stopped on 2 February 2000. Between 31 January and 2 February the spillage decreased to a rate of 50 l/s and was treated with sodium hypochlorite (bleach), a reagent which neutralises cyanide.
Aurul S.A. used an appropriate method to respond to the emergency. The early-warning system established under the Danube River Protection Convention made it possible to alert neighbouring countries in the normal way.
Analyses: Surface water – the cyanide content of the pollution decreased from 19.4 mg/l at the Aurul site to 7.8 mg/l at Satu Mare, 10 km downstream. However, at Csenger, on the Hungarian side of the border, the concentration of cyanide reached 32.6 mg/l. The only possible explanation for the discrepancy between the measurement results provided by Romania and by Hungary is the following.
The sampling location and the presence of ice on the river increased the intervals between the taking of samples. As a result, the Romanian sampling may have missed the peak cyanide concentration. In the Aurul pond, concentrations of free cyanide were very high, between 66 mg/l and 81 mg/l. High concentrations were also detected for copper (412.3 mg/l), iron (31.3 mg/l), manganese (18 mg/l) and zinc (14.5 mg/l). In the river Lăpuş, downstream from the confluence with the river Sasar, the cyanide concentration was 0.88 mg/l (26 and 27 February 2000); the river Someş, downstream from the confluence with the river Lăpuş, recorded a free cyanide concentration of 0.035 mg/l). These results indicate that cyanide pollution was indeed transmitted between the various rivers, but that the cyanide was biologically degraded and diluted by the river flows. According to the Romanian standard, the permissible concentration of total cyanide in surface water is 0.01 mg/l. A decrease in heavy-metal concentration (copper, lead, zinc) was also observed along the course of the rivers.
For the three heavy metals copper, lead and zinc, there was a dramatic increase in the contamination of sediments downstream from the Aurul dam; this clearly indicates that pollution from the Aurul pond was deposited in the sediment of the river Lăpuş. However, high concentrations of these elements were also found in sediments of rivers not affected by the Aurul disaster, indicating that other sources of industrial pollution and diffuse emissions, probably from agriculture and domestic sewage, have been discharged into the Lăpuş-Tisza-Danube river system over a long period of time.
The Hungarian authorities estimated that the total quantity of fish killed was in excess of 1,000 tonnes, whereas the Romanian authorities reported very low figures.
Drinking water ...
The wells near Bozanţa Mare village in Romania were not authorised even before the spillage. A cyanide concentration of 0.785 g/l was measured there, together with high concentrations of nitrates, ammonia and orthophosphate, indicating the impact of human activity on the groundwater.
In Hungary, the water-supply systems and wells were not affected by the pollution (no hydraulic connection between the river Tisza and the groundwater). In Yugoslavia too, the risks to human health from the Aurul spillage appear minimal but the long-term pollution by heavy metals may have a chronic impact on health. The Aurul spillage occurred in a region that was already contaminated by heavy metals following a long history of mining and metal processing.”
B. Relevant domestic law and practice
41. The relevant provisions of the Environmental Protection Act (Law no. 137) of 29 December 1995, published in the Official Gazette (Monitorul Oficial), first part, no. 70, of 17 February 2000, were worded as follows at the material time:
Section 5
“The State shall recognise the right of all persons to a healthy environment, and to this end it shall guarantee:
(a) access to information concerning the quality of the environment;
(b) the right to form and join organisations for environmental protection;
...
(d) the right to apply, directly or through associations, to the administrative or judicial authorities for preventive purposes or in the event of direct or indirect damage;
(e) the right to compensation for damage sustained.”
Section 6
“Environmental protection shall be a duty incumbent on the central authorities and on all natural persons and other legal entities.”
Section 7
“Responsibility for environmental protection shall be vested in the central authority for environmental protection and its territorial agencies.”
Section 81
“Strict liability shall apply in the event of damage ... Where there is more than one perpetrator, liability shall be collective ...”
Section 86
“Offences shall be detected and prosecutions brought by the competent authority of its own motion.”
42. Government Ordinance no. 195/2005 on environmental protection was approved by virtue of Law no. 265/2006, published in the Official Gazette (first part, no. 586) of 6 July 2006, which repealed the Environmental Protection Act (Law no. 137 of 29 December 1995). The new law reaffirms the fundamental principles of environmental protection, redefines certain specific terms and the rules governing certain substances, strengthens water and soil protection and increases the liability of the central and local authorities and of individuals and legal entities.
43. The International Convention of 25 June 1998 (Aarhus, Denmark) on Access to Information, Public Participation and Access to Justice in Environmental Matters was ratified by Romania by virtue of Law no. 86/2000 and published in the Official Gazette (first part, no. 224) on 22 May 2000. The relevant provisions read as follows:
Article 3
“1. Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.
2. Each Party shall endeavour to ensure that officials and authorities assist and provide guidance to the public in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters.
...
7. Each Party shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.
...
9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.”
Article 4
“1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:
(a) without an interest having to be stated;
(b) in the form requested unless:
(i) it is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or
(ii) the information is already publicly available in another form.
2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
...”
Article 9
“1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
...”
C. European law
44. Resolution no. 1430/2005 of the Parliamentary Assembly of the Council of Europe on industrial hazards reads, in so far as relevant:
“1. Some industrial plants, by the nature of their activities and the substances they use, constitute hazards which are all the greater when they are located close to residential areas, for these and their residents are particularly at risk in the event of an accident.
2. The Parliamentary Assembly believes that appropriate legislation on the siting of industrial plants is a vital precondition for an effective major accident prevention and limitation policy. In 1976, the chemical release after the accident at Seveso (Italy) prompted the European Communities to adopt their first directive in this field. Gradually, the scope of this directive was extended. It should be remembered here that subsequent industrial accidents occurred at Baia Mare, Romania (2000), Enschede, Netherlands (2000) and Toulouse, France (2001). Even more recently, the July 2004 disaster at Ghislenghien, Belgium, gave another indication of the need for legislation which is both appropriate and strictly applied.
...
8. The Assembly therefore urges member states:
i. to sign and/or ratify, if they have not already done so, the ILO’s Prevention of Major Industrial Accidents Convention (No. 174);
ii. to sign and/or ratify, if they have not already done so, the Unece Convention on the Transboundary Effects of Industrial Accidents;
iii. to draft or rapidly update national legislation on the prevention and limitation of major accidents in certain industrial activities, in accordance with the aforementioned international conventions, and drawing on European Union Directive 96/82/EC;
iv. to improve the dissemination of information about good practices in the prevention and limitation of major accidents already pursued by certain member states;
v. to develop a major accident risk limitation policy in respect of activities not covered by the aforementioned international and European regulations, particularly in the context of industrial activities involving the presence of dangerous substances in quantities below the thresholds set by regulations or where dangerous substances are transported through pipelines;
vi. to define clearly the responsibilities of the various authorities concerned by spatial planning policy, especially in respect of industrial hazard prevention and management;
vii. to develop appropriate regulations, especially in respect of:
a. the granting of permission to build new homes near existing industrial establishments;
b. the granting of planning permission for new hazardous establishments or for significant extensions to such establishments, especially when there are homes nearby;
c. the monitoring of industrial activities in hazardous establishments, where the organisation of regular and thorough inspections is concerned;
d. the prohibition of operations if serious deficiencies are found;
viii. to step up efforts rapidly to catch up the considerable delay noted in the preparation and testing of emergency plans for the establishments concerned;
ix. to encourage their local and regional authorities to conclude transfrontier co-operation agreements on the prevention of industrial hazards and on collaboration in the event of an accident, drawing on the model agreements set out in the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106).
9. The Assembly also invites:
i. the member states of the EUR-OPA Major Hazards Open Partial Agreement of the Council of Europe to take further their work and co-operation in respect of the study, prevention and management of major industrial hazards;
ii. the European Conference of Ministers responsible for Regional Planning (Cemat) to study in depth the siting of hazardous industrial establishments in relation to residential areas and to make proposals with a view to a harmonisation of the relevant European spatial planning policies.
10. The Assembly also invites the European Commission and the member states of the European Union:
i. to work for the rapid setting up of the technical databank referred to in Article 19 of Directive 96/82/EC;
ii. to make all the knowledge accumulated at Community level available to the other Council of Europe member states.”
45. The Communication of the Commission of the European Communities on “Safe operation of mining activities: a follow-up to recent mining accidents” (COM/2000/0664 final), on the basis of which the European Parliament adopted a resolution on 5 July 2001 (OJ C 65 E, 14 March 2002, p. 382), reads, in so far as relevant:
“... The Danube pollution caused by a cyanide spill following a damburst of a tailings pond in Baia Mare/Romania and an accident that occurred in 1998 in Aznalcóllar/Spain where a damburst poisoned the environment of the Coto Doñana National Park have increased public awareness of the environmental and safety hazards of mining activities.
The Baia Mare accident showed that in the region surrounding the operation in question, the level of public knowledge and understanding of risks inherent in mining and related industrial processes was very low. It also showed that there was insufficient communication between the various levels of authorities and between the authorities, the Non-Governmental Organisations (NGOs) and the public concerning emergency preparedness, emergency response and damage prevention options and possibilities.
The accidents have also raised the question of the effectiveness of Community policies intended to prevent such disasters and have highlighted the need for a review of environmental policy in this area.
The Commission has already laid down its policy towards promoting sustainable development in the EU non-energy extractive industry, including metal mining, in its Communication of 3 May 2000. The objective of this Communication, which should be seen in this context, is to give an account of the accidents and to inform the Council and the European Parliament in more detail about some of the actions announced in the previous Communication, focusing on accident prevention in relation to metal mining activities. The objective is also to provide an opportunity for the principal stakeholders concerned, notably industry, NGOs, Member States and other interested parties, to give their views on these actions. The Communication was established in close consultation with the Baia Mare Task Force (see section 3.1.). For factual elements concerning the Baia Mare accident, the paper relies to a large extent on the UNEP/OCHA report ...
...
5. Current situation with regard to existing Community environmental legislation
There are a number of existing Community legal instruments which address the environmental aspects of mining activities.
5.1. Council Directive 85/337/EEC as amended by Council Directive 97/11/EC on the assessment of the effects of certain public and private projects on the environment and the UNECE Espoo Convention on Transboundary Environmental Impact Assessment
Council Directive 85/337/EEC as amended by Council Directive 97/11/EC, the so-called EIA Directive, requires an environmental impact assessment of a large number of economic activities, including mining activities and dams in case such activities are likely to have significant impacts on the environment.
The EIA Directive puts emphasis on the preventive approach since it requires an assessment of the likely environmental effects of activities before authorisation is given. Such assessment shall be reflected in an environmental report that has to be taken into account by the competent authority granting authorisation. Envisaged mitigation measures form part of such assessment. An important factor in the impact assessment procedure is the involvement and participation of the public within the given regulations. The resulting comments have to be carefully considered by the competent authority. Such a participatory approach ensures transparency, early involvement and information of the public and helps identifying and mitigating risks for the environment.
The EIA Directive also implements the UNECE Espoo Convention on transboundary impact assessment. This Convention was signed in 1991 and entered into force in 1997. Currently, there are 30 Parties to the Convention, including the European Community. Mining activities and dams are also listed in this Convention. In case of the likelihood of a significant transboundary environmental impact of a planned project, the affected Parties have to be notified and all relevant information on the project including the environmental report has to be submitted so that the public liable to be affected gets the opportunity to comment. The results of such transboundary consultation have to be taken into account by the competent authority of the Party that is responsible for granting authorisation to the project.
5.2. Council Directive 76/464/EEC on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community
Pollution caused by discharge of dangerous substances to the aquatic environment is covered by this Directive. However, it does not address accidental pollution. 18 substances including cadmium and mercury were regulated in five ‘Daughter’ Directives by setting Community-wide emission limit values and quality standards for the aquatic environment. For relevant pollutants, which have to be identified out of a wide range of other substances including cyanides and heavy metals, the Member States must establish national emission reduction programmes. The programmes must include legally binding water quality objectives and deadlines for implementation of certain emission reduction targets. In relation to mining activities there is a considerable pollution potential from certain dangerous substances which may cause a deleterious effect on the aquatic environment. The identification of such a pollution leads to a requirement of authorisation of discharges containing the relevant pollutants. Hence, an effective pollution control of point sources from mining would be possible under the Directive.
5.3. Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (Seveso II Directive) and UNECE Convention on the Transboundary Effects of Industrial Accidents
The Directive aims at the prevention of major accidents which involve dangerous substances and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection throughout the Community in a consistent and effective manner.
The core novelty of Seveso II consists in the introduction of an obligation for industrial operators to put into effect Safety Management Systems including a detailed risk assessment using possible accident scenarios. Such a risk assessment plays a key role in preventing major accidents.
The classical field of application of Seveso II are chemical plants and storage facilities where dangerous substances are present in quantities above certain threshold levels.
Article 4 e) of the Directive excludes the activities of the extractive industries concerned with exploration for, and the exploitation of, minerals in mines and quarries or by means of boreholes from its scope. Moreover, Article 4 f) excludes waste landfill sites.
These exclusions go back to the original Seveso Directive of 1982 that excluded extraction or other mining operations as well as installations for the disposal of toxic and dangerous waste which are covered by Community Acts in so far as the purpose of those Acts is the prevention of major accidents.
When the Proposal for Seveso II was presented to Council and European Parliament, the Explanatory Memorandum justified maintaining the above exclusions by saying that ‘although these areas present a major accident potential, they do not fall easily within the framework of the proposal given special needs or special hazards’.
The Seveso II Directive leaves some margin for interpretation of its coverage that could be used to exclude processing activities and/or tailing ponds or dams from its scope
The Directive also implements the UNECE Convention on the Transboundary Effects of Industrial Accidents. This Convention was signed in 1992 and entered into force in April 2000. Currently, there are 17 Parties to the Convention, including the European Community. The Convention aims at protecting human beings and the environment against industrial accidents capable of causing transboundary effects and at promoting active international co-operation between the Contracting Parties before, during and after such accidents. However, the Convention does not apply to dam failures, with the exception of the effects of industrial accidents caused by such failures.
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5.5. Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (IPPC Directive)
All installations covered by Annex I of the IPPC Directive are required to obtain an operating permit from the competent authorities in the Member States. For ‘everyday pollution’, permits must contain emission limit values or equivalent parameters. These shall be based on the use of Best Available Techniques (BAT). In addition, permits must include provisions that deal with other conditions than normal operating conditions, relating to start-up, leaks malfunctions, momentary stoppages and definitive cessation of operations, where there is a risk that the environment may be affected.
The IPPC Directive covers the overall environmental impact of the production process, i.e. air, water and soil pollution, generation of process residues, use of energy, etc. The focus shall be on prevention rather than ‘end-of-pipe’ abatement. In the Directive, a distinction is made between, on the one hand, new or substantially changed installations and, on the other hand, existing installations. For the former category, all provisions of the Directive apply since October 1999. For the latter, Member States have until October 2007 to ensure compliance.
Core extraction activities are not covered by the IPPC Directive, but activities of the kind undertaken at the Baia Mare site are already inside the scope of the IPPC Directive. Indeed, paragraph 2.5 (b) of Annex I covers ‘installations for the production of non-ferrous crude metals from ore, concentrates or secondary raw materials by metallurgical, chemical or electrolytic processes’.
However, the IPPC Directive may not cover all sites in the European Union where tailings dams are used. They could either not be production sites (if they are in isolation from the actual site of production), not be producing crude metals (if they produce for instance concentrates), or not be regarded as landfills falling under category 5.4 of Annex I. of the Directive (‘landfills receiving more than 10 tonnes per day or with a total capacity exceeding 25,000 tonnes, excluding landfills of inert waste’). However, most of the dams probably meet these thresholds.
The concept of ‘landfills’ is not defined in the IPPC Directive, but the Landfill Directive (99/31/EC) provides for a definition. According to Article 2 (g) of that Directive, a landfill means a waste disposal site for the deposit of the waste onto or into land. Storage of waste prior to recovery or treatment for a period less than three years as a general rule and storage of waste prior to disposal for a period of less than one year are excluded from the definition of a landfill. It should be noted that the Baia Mare and Aznalcóllar tailing ponds were not destined for temporary storage. On the basis of the above definition, it is likely that a vast majority of tailings dams are indeed covered through the present wording of Annex I.
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COMPLAINT
46. Relying on Article 2 of the Convention, the applicants complained that the technological process used at the S.C. Transgold S.A. Baia Mare plant (formerly S.C. Aurul S.A. Baia Mare) entailed a risk to their lives. They further complained that the authorities had remained passive in the face of the situation thus created, despite the numerous complaints lodged by the first applicant.
THE LAW
47. Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and in the light of its case-law (see López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, pp. 54‑55, § 51; Guerra and Others, cited above, p. 227, § 57; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004-X; and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII), the Court considers that the applicants’ complaints fall to be examined under 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.”
A. The Government’s objections of failure to exhaust domestic remedies
48. The Government objected that domestic remedies had not been exhausted. They submitted that the applicants had had three effective remedies available – criminal, civil and administrative – in respect of the alleged violations.
1. Objection of failure to use the criminal-law remedy
49. The Government pointed out that the applicants had not appealed to a superior public prosecutor’s office, in accordance with the requirements of Article 278 of the Code of Criminal Procedure as worded at the material time, against the order of 20 November 2001 by the public prosecutor’s office at the Maramureş County Court discontinuing the proceedings.
50. The first applicant submitted that he had lodged several criminal complaints with the public prosecutors’ offices at the Maramureş County Court and Court of Appeal and the Supreme Court of Justice against managers of the Aurul and Transgold companies on account of the danger which the use of sodium cyanide during the extraction process entailed for the health and lives of the local inhabitants and in particular the second applicant’s health. As to the order of 20 November 2001 discontinuing the proceedings, the first applicant asserted that it concerned only one of the criminal complaints he had lodged and that, in any event, the complaint related solely to the accident of 30 January 2000, which did not form the subject of his complaints in the present application.
51. With regard firstly to the criminal-law remedy, the Court observes that the first applicant lodged criminal complaints in relation to two matters: the accident of 30 December 2000 and the risk that using sodium cyanide in the extraction process entailed for his and the second applicant’s lives and the ecosystem, and for the second applicant’s medical condition.
52. As regards the complaints concerning the accident of 30 December 2000, the Court observes, as the Government did, that the first applicant omitted to challenge the order of 21 November 2001 discontinuing the proceedings.
53. As regards the use by the Aurul and Transgold companies of sodium cyanide in the gold-mining process, the Court notes that, although the first applicant submitted several complaints on the matter, no orders or judicial decisions were given by the appropriate authorities.
54. Furthermore, the Court observes that, as appears from the evidence before it, another criminal complaint lodged by the first applicant was not dealt with, namely the one submitted on 23 November 2001 to the chief public prosecutor at the Supreme Court of Justice. In that complaint the applicant asked the authorities to open a criminal inquiry with a view to prosecuting those responsible for the pollution caused by the use of sodium cyanide. He also referred to the deteriorating health of his son, who was suffering from bronchial asthma allegedly caused by the use of sodium cyanide in the mining operations.
55. The Court would refer to the letters of 6 and 8 March 2002 from the public prosecutor’s office at the Supreme Court of Justice informing the first applicant that his complaints had been sent to the public prosecutor’s office at the Cluj Court of Appeal for investigation. It appears from the evidence before the Court that no order has ever been made in the present case in relation to these criminal complaints.
56. Lastly, the Court notes that in accordance with the provisions of the Environmental Protection Act in force at the material time, it was for the authorities to institute proceedings of their own motion in the event of a criminal offence (section 86 of Law no. 137/1995).
Accordingly, this objection must be dismissed.
2. Objection of failure to use civil and administrative remedies
57. In the Government’s submission, section 81 of Law no. 137/1995, concerning liability for damage, constituted a special law in relation to the provisions of ordinary law (Articles 998 and 999 of the Civil Code). The Government mentioned three types of damage that could be redressed under this special law: damage to property, individuals and the environment.
58. A third means of redress, the Government submitted, resulted from the administrative procedure concerning access to environmental information, as laid down in section 5 of Law no. 137/1995. That possibility was reinforced by the Access to General Information Act (Law no. 544/2001) and Government decision no. 115 on free access to environmental information. With regard to administrative remedies, the Government also mentioned the possibility open to the applicants under Law no. 137/1995 of seeking the revocation of the administrative permit issued by the Ministry of the Environment.
59. With regard to administrative procedures for obtaining information about the technology used by prospecting companies and the impact of such technology on human health, the first applicant contended that he had made several requests to the appropriate administrative authorities under the Access to General Information Act (Law no. 544/2001). He asserted that the authorities concerned had not dealt with his requests.
60. The Court reiterates that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Navarra v. France, judgment of 23 November 1993, Series A no. 273-B, p. 27, § 24). Moreover, an applicant who has used a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, mutatis mutandis, A. v. France, judgment of 23 November 1993, Series A no. 277‑B, p. 48, § 32, and De Moor v. Belgium, judgment of 23 June 1994, Series A no. 292-A, pp. 16‑17, § 50).
61. As regards the administrative remedy, the Court notes that the first applicant submitted several administrative complaints, asking the authorities to halt the plant’s operation and to check whether the companies in question had a valid operating licence. As to the possibility for the applicants to apply for the revocation of the environmental permit issued by the Ministry of the Environment, the Court notes that it appears from the factual circumstances of the case that at the time of the first applicant’s initial application to the authorities, the Transgold company was not in possession of such a permit. Not until 8 August 2002 did the Ministry of the Environment issue three permits to that end (see paragraph 7 above).
62. The Court notes that, despite the repeated complaints by the first applicant, the authorities informed him that the operations in issue did not entail any danger, that the company had a valid operating licence and that its operations were entirely safe in terms of environmental protection (see paragraphs 19 and 22-23 above). The Court observes that these replies by the authorities were not accompanied by any supporting documents (such as an environmental-impact assessment or an expert report).
63. The Government did not, moreover, submit any examples of domestic case-law concerning the use of this remedy in similar situations.
64. In any event, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged, and that it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66, and Giacobbe and Others v. Italy, no. 16041/02, § 63, 15 December 2005). In the instant case the Government have not shown that the applicants could have obtained redress in the competent courts in accordance with the criteria established in the Court’s case-law.
Accordingly, these objections by the Government cannot be allowed.
B. Merits
65. The Government accepted that Article 8 of the Convention could be applicable in cases of severe environmental pollution where the well-being of individuals and their right to family life were affected. In certain cases, the rights guaranteed by Article 8 of the Convention could be infringed where the State was directly or indirectly responsible for the pollution.
66. The Government submitted that in the instant case, as in Hatton and Others (cited above), the economic interest of the activity in question should be taken into account by the Court. They referred to the environmental-impact assessment conducted in 1993, which mentioned the use of a very large area of land (70 hectares) near the city of Baia Mare where there were already two retention dams in place.
67. The Government asserted that unlike in the Guerra and Others and Hatton and Others cases, no breach of domestic law had been found in the instant case. The Government also cited the case of Asselbourg and Others v. Luxembourg ((dec.), no. 29121/95, ECHR 1999‑VI), in which the Court had found that it had not been proved that the conditions of operation imposed by the Luxembourg authorities and in particular the norms dealing with the discharge of air-polluting wastes had been so inadequate as to constitute a serious infringement of the principle of precaution. The Government submitted that the present case was similar to the cases cited above in that the national authorities had imposed extensive obligations on the companies in question with the aim of preventing pollution.
68. Lastly, the Government argued that the allegations about the second applicant’s state of health and its link with any possible pollution were ill-founded.
69. The first applicant contested the Government’s arguments and asserted that the mining company’s operations constituted a genuine risk to his and the second applicant’s lives. He referred to his son’s bronchial asthma, a disease which he submitted was widespread among the inhabitants of Baia Mare.
70. The first applicant referred to “mass poisoning” and “genocide” and asserted that the Romanian authorities had remained passive in the face of this problem because the Romanian State was one of the shareholders of Transgold S.A.
71. In the first applicant’s submission, all the steps he had taken, under both criminal and administrative law, had been bound to fail, in view of the authorities’ desire to conceal the factual reality and to allow the company to continue operating, in spite of the risk to the health and lives of the inhabitants of the city of Baia Mare.
72. The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Dismisses the Government’s preliminary objections;
Declares the application admissible, without prejudging the merits of the case.
Santiago QuesadaElisabet Fura-Sandström
RegistrarPresident
Full & Egal Universal Law Academy