Giacomelli v. Italy

App. No. 59909/00, 45 Eur. H.R. Rep 38 (2006).
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The applicant, an Italian national, claimed the government violated Article 8 (respect for private and family life) of the European Convention on Human Rights when its authorities failed to implement a court order to suspend a waste treatment plant because of its permanent effects on her health and home. The applicant was living in a house thirty meters away from a plant operated by the Ecoservizi company authorized to treat toxic waste through a “detoxification” process involving the use of chemicals. The applicant had made petitions to domestic administrative courts on several occasions to halt the plant’s operation. While her requests for stays of execution had been granted and the environmental-impact assessment concerning the plant had been negative, its activities had never been stopped.

The applicant then filed a claim based on Article 8 alleging the plant’s operations were incompatible with her right to respect for her private life and home and her right to health, contending that measures taken by the company were not sufficient to eliminate the disturbance and risks resulting from the plant’s operation. The applicant also submitted that the environmental-impact assessment procedure, a legally essential prerequisite for the plant’s operation, had not been initiated until several years after Ecoservizi began operating. The company and the authorities had not complied with the decrees in which the plant’s operation had been deemed incompatible with environmental regulations, including instructions issued by the Ministry of the Environment.

The government justified its actions under the second paragraph of Article 8 saying they acted in accordance with the law in pursuing the aims of protecting public health and preserving the region’s economic well-being, claiming that the operations of the plant ensured the development of the region’s industry and protected the community’s health as it processed much of the region’s industrial waste. The government contested the applicant’s alleged violation of her right to health without bringing evidence of any adverse effects on her health.

The court found the government in violation of Article 8 confirming that it may apply in environmental cases whether the pollution is caused directly by the State actor or from the failure to regulate private-sector activities properly.

While Article 8 para. 2 confers a certain margin of appreciation to States in determining the steps taken to ensure compliance, in verifying that a fair balance has been struck between the competing interests of the individual and of the community as a whole, the Court may examine the substantive merits of the government's decision and the decision-making process when assessing government decisions affecting environmental issues.

The court confirmed that Ecoservizi was not required to carry out an environmental-impact assessment as required by domestic law until well into its operations and cited the decrees deeming the plant unsuitable on account of its environmental risks to residents. The Court found the State failed to comply with domestic legislation on environmental matters and refused to enforce judicial decisions which found the activities in issue unlawful, thereby rendering inoperative the procedural safeguards available to the applicant and breaching the principle of the rule of law. It considered that the procedural machinery provided for in domestic law for the protection of individual rights were deprived of useful effect in the instant case for a very long period of time in violation of the applicant’s right to respect for her home and her private and family life. The court did not address the applicant’s claims regarding her right to health.

"78. Article 8 of the Convention protects the individual's right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person's home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII)."

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