Information Note on the Court’s case-law No. 115
January 2009
Tătar v. Romania - 67021/01
Judgment 27.1.2009 [Section III]
Article 8
Article 8-1
Respect for family life
Respect for private life
Breach by State of its obligations to assess risks and consequences of hazardous industrial process and to keep the public informed: violation
Facts: At the material time the applicants lived in the town of Baia Mare, in a residential area near an extraction facility and Săsar Pond that formed part of the mining concession of the Aurul company. The company used a process in which gold and silver was extracted from low-grade ore by spraying it with sodium cyanide. An environmental impact assessment was carried out in 1993 in order to obtain an environmental compliance certificate. Baia Mare was described as an industrial town that had already suffered pollution as a result of intensive industrial activity, particularly in the mining industry. In their analysis of the effects of sodium cyanide on health, the specialists from the institute that carried out the assessment said that there was no risk of poisoning provided the relevant norms were complied with and there were no accidents, but expressed uncertainty about the impact of the process on the environment. The specialists’ findings were based on the aforementioned economic and social advantages and on the fact that the activity could not influence “to any significant extent the current characteristics of the region”. In 1998 the Ministry of Labour and the Ministry of Health authorised Aurul to use sodium cyanide and other chemical substances in the extraction process. In 1999 the municipality of Baia Mare authorised the company to carry on its activity subject to obtaining an environmental compliance certificate. The certificate was issued in December 1999 and Aurul then officially started up its activity. Copies of two reports of November and December 1999 on the public debate on the question of compliance were produced to the Court. At the first debate, questions were asked about the health and environmental dangers of the process, but the organisers do not appear to have given any answers. The second report indicated that the representatives of the environmental protection authority had assured participants that there was no evidence that any particles remained in suspension in the atmosphere. No environmental impact assessment was presented during the debates.
On 30 January 2000 a large quantity of polluted water containing sodium cyanide and other substances was leaked into various rivers and travelled 800 kilometres in 14 days crossing several borders. Various reports were drawn up including one by the Task Force Baia Mare in December 2000 at the request of the European Union Environment Commissioner. The accident had a significant impact on the environment and the socio-economic situation.
In 2000, following the accident, the first applicant lodged a series of complaints with various administrative authorities concerning the risks to which he and his family were being exposed by Aurul’s use of sodium cyanide in the extraction process. He received a number of replies including one from the Ministry of the Environment informing him that the company’s activities did not constitute a health hazard and that the technology was also used in other countries. The first applicant also lodged criminal complaints. In 2001 the county court prosecutor ruled that there was no case to answer in respect of the accident of 30 January 2000 as no offence had been committed under the Romanian Criminal Code. In 2002 the Supreme Court of Justice declined jurisdiction to hear the case and dismissed the complaints. In two orders of 2002 the public prosecutor at the Supreme Court of Justice transferred the first applicant’s complaints to the public prosecutor at the court of appeal for investigation. The first applicant lodged a fresh complaint in 2005 concerning the danger the extraction process constituted to the health and safety of the population, but no order was made. Meanwhile, in 2002 the county court prosecutor started an investigation into the accident of his own motion. The public prosecutor at the Supreme Court of Justice overturned the order of 2001 discontinuing the proceedings and ordered the public prosecutor at the court of appeal to re-examine the case. In 2002 the public prosecutor at the court of appeal found that Aurul’s managing director had no case to answer as the accident had been caused by force majeure owing to adverse weather conditions. In 2003 the chief public prosecutor at the Supreme Court of Justice overturned that order and invited the public prosecutor to resume the proceedings.
A second environmental impact assessment was carried out in 2001 at Aurul’s request by the Cluj Environmental and Health Centre, the Bucharest Institute for Public Health, the Bucharest Institute of Research and Development for Industrial Ecology and the Cluj-Napoca Medicine and Environmental Office.
Meanwhile, in December 2001, the National Agency for Mineral Resources drew up a rider to the initial licence changing the name of the licence holder to S.C. Transgold S.A. Three compliance certificates were issued to that company by the Ministry of the Environment.
In 1996 the second applicant developed the first symptoms of asthma. The applicants said that his condition deteriorated in 2001 on account of the pollution caused by Aurul.
Law: The findings of the official reports and aforementioned environmental assessments indicated that the pollution caused by the plant’s activity may have resulted in a deterioration in the local population’s quality of life and, in particular, affected the applicants’ welfare and deprived them of the enjoyment of their home, so affecting their private and family life.
The existence of a substantial, serious risk to the applicants’ health and welfare imposed on the State an obligation to adopt reasonable and adequate measures to protect their right to respect for their private life and home and, more generally, their right to the enjoyment of a healthy and safe environment. The authorities had been under that obligation both before the commencement of the plant’s operations and after the accident of January 2000.
Under Romanian law, the right to a healthy environment was protected by the Constitution. Further, States were advised by the precautionary principle not to delay in adopting effective and proportionate measures to avert the risk of serious irreversible damage to the environment in the absence of scientific or technical certainty. There was, however, nothing in the case file to indicate that the Romanian authorities had debated the risks which the industrial activity entailed for the environment and for the health of the local population. Further, the risk to the environment and to the welfare of the local population had, in the applicants’ case, been foreseeable. In addition to the domestic legislative machinery that had been set up by the law on the protection of the environment, specific international regulations existed which the Romanian authorities could have applied. They had, however, failed to carry out a satisfactory prior assessment of the possible risks entailed by the activity or to take adequate measures to protect the applicants’ right to respect for their private life and home and, more generally, to the enjoyment of a healthy and safe environment.
As regards the State’s positive obligations under Article 8 of the Convention, the public’s right to information was of primary importance. In that connection, there had been a failure to comply with the domestic regulations on public debates as the participants in the debates, which had taken place in November and December 1999, were not given access to the findings of the study that had served as the basis for the issue of the compliance certificates to the company or to any other official information on the subject.
As to the events after the accident in January 2000 the material before the Court indicated that the authorities had not put a stop to the industrial activity concerned and that the same processes had remained in use. The domestic authorities’ positive obligation to ensure effective respect for private and family life had also continued, and indeed increased, after the accident. As a result of the health and environmental effects of the environmental accident as noted in the international assessments and reports, the applicants along with other the inhabitants of Baia Mare must have been in a state of anxiety and uncertainty. This had been compounded by the inertia of the national authorities, who were under a duty to provide proper detailed information on the past, present and future effects of the accident on their health and the environment, and on the preventive measures and support that would be available to populations at risk of like incidents in the future. The situation had been made worse by the fear induced by the continuation of the activity and risk of a possible recurrence of the accident in the future.
The first applicant had set a number of administrative and criminal procedures in motion without success in an attempt to establish the potential risks to which he and his family had been exposed by the accident of January 2000 and to bring those responsible to account. The material before the Court indicated that, in that same context, the domestic authorities had failed to comply with their duty to provide the requisite information to the local population and, in particular, the applicants. The applicants had been unable to establish what measures if any had been taken to avoid similar accidents or what action they should take in the event of further accident. Consequently, the respondent State had not discharged its obligation to safeguard the applicants’ right to respect for their private and family life within the meaning of Article 8 of the Convention.
Conclusion: violation (unanimously).
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This summary by the Registry does not bind the Court.
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