Fadeyeva v. Russia

App. No. 55723/00, Eur. Ct. H.R. 376 (2005).
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The applicant was a Russian national who lived in Cherepovets, a major steel-producing centre. The Severstal steel plant was built in Soviet times and owned originally by the Ministry of Black Metallurgy of the Russian Soviet Federative Socialist Republic (RSFSR). In her application against the Russian Federation under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, she alleged violation of Article 8 (respect for his private and family life) of the Convention on account of the State’s failure to take adequate measures to protect her private life and home from severe environmental nuisance arising from the industrial activities of the Severstal steel-plant. She alleged that the operation of a steel-plant in close proximity to her home endangered her health and well-being and that of her family. She contended first, that the Government did not seek to justify the interference with her Article 8 rights with any valid reason; and secondly, that they failed to implement effective measures in order to prevent or minimize environmental pollution. In spite of compelling evidence of unacceptable levels of pollution from the Severstal plant, in breach of the domestic limits, the Government merely asserted that “no question arose of limitation, suspension, or discontinuation of its activity in connection with environmental pollution”.

The applicant was unsuccessful in her efforts to obtain an effective remedy in the domestic courts. The applicant claimed that the concentration of toxic elements and the noise levels in the sanitary security zone exceeded the maximum permissible limits established by Russian legislation. She alleged that the environmental situation in the zone was unfavorable for humans, and that living there was potentially dangerous to health and life. She claimed that regulations imposed an obligation on the plant owners to implement various ecological measures in the zone including the resettlement of residents to an ecologically safe area and that Severstal had failed to fulfill this obligation.

The Cherepovets Town Court examined the applicant’s action and accepted the claim in principle. The court recognized that the building where the plaintiff lived was located within Severstal’s sanitary security zone and stated that she had the right in domestic law to be resettled but made no specific order to resettle the applicant in the operative part of its judgment. Instead, the court stated that the local authorities must place her on a “priority waiting list” to obtain new local authority housing under Russian domestic law. The court also stated that the applicant’s resettlement was conditional on the availability of funds. On appeal by the applicant to the Vologda Regional Court, the appellate court excluded from the operative part of the judgment the reference to the availability of funds as a pre-condition for the applicant’s resettlement but found that the applicant’s resettlement in an ecologically safe area was to be carried out by the municipality. Later, 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. The applicant brought a fresh action brought in 1999 against the municipality and asked to be provided with a flat in an ecologically safe area or with the means to purchase a new flat. In the course of the proceedings she was placed on the general waiting list where she was number 6820. The domestic courts held there was no need to take any further measures.

The Court found the State to be in breach of Article 8 of the Convention for authorising the establishment, in the middle of a densely populated town, of a steel plant responsible for toxic emissions which exceeded the safe limits established by the domestic legislation. The Court also held that the State failed to implement legislative measures intended to ensure a certain territory around the plant should be free of any dwelling in order to protect the health of those exposed to industrial pollution. It held further that the State did not offer the applicant any effective solution to help her move from the dangerous area. The Court concluded that despite the wide margin of appreciation left to the State, Russia failed to strike a fair balance between the interests of the community and the applicant's effective enjoyment of her right to respect her home and her private life. The Court held that the applicant's prolonged exposure to industrial pollution caused her much incovenience, mental distress and even a degree of physicial suffering and awarded 6,000 as compensation for non-pecuniary damage.

The Court held that by finding the State to be in violation of Article 8 of the Convention it had established the Government's obligation to take measures to remedy the applicant's individual situation and that the resettlement of the applicant in an ecological safe area would be one of many possible solutions.

"89. The Court notes that, at the material time, the Severstal steel-plant was not owned, controlled, or operated by the State. Consequently, the Court considers that the Russian Federation cannot be said to have directly interfered with the applicant's private life or home. At the same time, the Court points out that the State's responsibility in environmental cases may arise from a failure to regulate private industry (see the Hatton and Others case cited above). Accordingly, the applicant's complaints fall to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant's rights under Article 8 § 1 of the Convention (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41, and Guerra v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 58)."

"98. Thus, in cases where an applicant complains about the State's failure to protect his or her Convention rights, domestic legality should be approached not as a separate and conclusive test, but rather as one of many aspects which should be taken into account in assessing whether the State has struck a "fair balance" in accordance with Article 8 § 2."

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