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FIFTH
SECTION
CASE OF
IVAN ATANASOV v. BULGARIA
(Application
no. 12853/03)
JUDGMENT
STRASBOURG
2 December
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ivan Atanasov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek,
Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12853/03) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Ivan Atanasov Atanasov
(“the applicant”), on 20 March 2003.
- The
applicant, who had been granted legal aid, was represented by Ms A.
Gavrilova Ancheva, a lawyer practising in Sofia. The Bulgarian
Government (“the Government”) were represented by their
Agents, Ms S. Atanasova and Ms M. Kotseva, of the Ministry
of Justice.
- The
applicant alleged that a reclamation scheme for the tailings pond of
a former copper mine had had an adverse impact on his private and
family life and his home, and had impinged on the peaceful enjoyment
of his possessions. He also alleged that he had not had effective
remedies in that respect, and that a set of judicial review
proceedings relating to those matters had failed to comply with
various requirements of Article 6 § 1 of the Convention.
- On
16 June 2008 Zdravka Kalaydjieva, the judge elected in respect of
Bulgaria, withdrew from sitting in the case. On 1 October 2008 the
Government appointed Mirjana Lazarova Trajkovska, the judge elected
in respect of the “former Yugoslav Republic of Macedonia”,
to sit in her place (Article 27 § 2 of the Convention and Rule
29 § 1 (a) of the Rules of Court, as in force before 1 June
2010).
- By a decision of 10 November 2009 the Court declared
the application admissible.
- The applicant, but not the Government, filed further
written observations (Rule 59 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
- The applicant was born in 1959 and lives in the village
of Elshitsa, in the Panagyurishte municipality, in a house owned by
him and his former wife. His parents also live in that house. His
daughter, from whose mother the applicant is divorced, stays with him
every first and third weekend of the month and one month in the
summer. The applicant’s house is situated about one kilometre
from the tailings pond (хвостохранилище)
and the flotation plant (обогатителна
фабрика) of a
former copper ore mine. The applicant cultivates agricultural
land located about four kilometres from the pond. On 23 December 2008
the applicant’s father donated to him more agricultural land in
Elshitsa; the applicant did not specify its exact location.
- The pond, whose surface area is 98.3 ha, was in
operation until 1991. The mine continued to be worked until 1999.
After decommissioning, measures for the conservation and reclamation
of the pond were taken. In June 1994 a scheme, drawn up in March
1994, was subjected to an environmental impact assessment (“EIA”).
The conclusion was positive. In December 1994 the EIA was submitted
for public discussion by the inhabitants of Elshitsa and modified in
line with their comments. The scheme was approved by the
Interdepartmental Expert Council of the Ministry of Industry in
October 1997 and began to be implemented in January 1999. It
consisted in laying earth and soil and planting vegetation on the
pond. Its implementation was stopped in April 1999.
B. The new reclamation scheme and its approval
- In
May 1999 Mr Marin Blagiev, operating as a sole trader under the
business name “ET Marin Blagiev”, proposed to the
Ministry of Industry a new solution for the reclamation of the
tailings pond. It consisted in the temporary capping of the pond’s
surface and slopes with soil cement, to prevent the spreading of
dust, and in the use of sludge from a waste-water treatment plant in
Plovdiv for biological reclamation.
- On 1 June 1999 the Pazardzhik Regional Inspectorate of
Environment and Water gave a negative opinion on the new scheme. It
expressed doubts as to the sustainability and the stability in acidic
environments of the soil cement intended to be used for capping the
pond. The proposed technology would provide a provisional solution
for containing the dust spread from the pond, but would not lead to
the pond’s full reclamation. Moreover, ET Marin Blagiev had not
specified the chemical composition of the sludge from the Plovdiv
waste-water treatment plant. It appeared to contain heavy metals, as
the plant treated not only domestic, but also industrial waste water.
According to the relevant classifier, sludge resulting from the
treatment of the latter was hazardous waste.
- On 2 June 1999 Panagyurishte’s mayor also
expressed a negative opinion on the new scheme. He noted, among other
things, that the previous scheme had been fully approved and had
begun to be implemented. In addition, the composition of the sludge
from the Plovdiv plant was unclear, as it treated not only domestic,
but also industrial waste water. This meant that the sludge might
contain heavy metals.
- However,
on 3 June 1999 the Ministry of Industry’s Interdepartmental
Expert Council approved ET Marin Blagiev’s proposal and allowed
him to submit a new scheme.
- In
a letter of 24 June 1999 to the Minister of Industry, the regional
governor said that the new reclamation scheme was not technologically
superior to the previous one and should not be approved.
- On
1 July 1999 the Minister of Industry transferred the tailings pond
from the assets of the State-owned company Panagyurski Mini EAD to
those of a specially formed State-owned company, Eco Elshitsa EOOD.
- On
27 August 1999 ET Marin Blagiev presented its scheme to the Ministry
of Industry. At about the same time Panagyurski Mini EAD, which had
been implementing the initial reclamation scheme (see paragraph 8
above), presented the Ministry of Industry with an update to the
initial scheme.
- The
Ministry appointed a specialist board of experts to assess the two
schemes. The board comprised experts from the Ministry of Industry,
of Environment and Water, and from the Ministry of Finance, as well
as from Panagyurski Mini EAD and ET Marin Blagiev. It held a meeting
on 7 September 1999 to discuss the relative merits of the two
schemes. It noted that both lacked checks on the stability of the
pond. However, according to an expert’s report, neither of them
would impair the pond’s stability. Both lacked climatological
and hydrological descriptions of the area and data on the expected
consolidation of the sludge after the reclamation had ended. The
problems relating to the neutralisation of the acid water were
partially addressed in ET Marin Blagiev’s scheme and not
addressed in Panagyurski Mini EAD’s scheme. According to an
expert’s report, it was possible to use stabilised waste-water
sludge from the Plovdiv treatment plant. The area around the pond did
not have enough humus for the biological reclamation envisaged by
Panagyurski Mini EAD’s scheme; it would thus be necessary to
enrich the existing soil artificially. ET Marin Blagiev’s
scheme envisaged finishing the reclamation in eighteen months and
resolving the dust-spread problem even before that. Panagyurski Mini
EAD’s scheme also had an eighteen month timeline, but it
was unrealistic. ET Marin Blagiev’s scheme provided for the
restoration of the productive qualities of 19.2 ha of polluted soil
outside the tailings pond and its use for the production of
specialised grass. According to accounts submitted by the two firms,
ET Marin Blagiev’s scheme would cost 5,139,356 Bulgarian levs
(BGN) and Panagyurski Mini EAD’s scheme BGN 5,878,945. On that
basis, the board recommended that the Ministry of Industry’s
Interdepartmental Expert Council approve ET Marin Blagiev’s
scheme. Two experts representing Panagyurski Mini EAD disagreed,
saying that this scheme did not meet various regulatory requirements.
In particular, waste water sludge was not appropriate for
reclamation; humus was much better suited for that task. It was also
unclear whether the use of sludge would yield stable and safe
results. According to the relevant classifier, the sludge from the
Plovdiv plant was hazardous waste, because it came not only from
domestic but also from industrial waste water. The documents relating
to the scheme did not specify the exact toxic-substance content of
the sludge. Lastly, the scheme’s scope and potential effects on
the environment warranted an EIA. The updated initial scheme suffered
from none of these drawbacks, but, on the contrary, would provide a
sustainable solution.
- The
Ministry of Industry’s Interdepartmental Expert Council,
comprising representatives from several ministries, considered the
two schemes on 9 September 1999. It examined the findings of the
specialist board of experts, as well as the opinions of the
Pazardzhik Regional Inspectorate of Environment and Water, of
Panagyurishte’s mayor, and of the regional governor. It also
heard Mr Blagiev’s explanations. Following a discussion, which
touched upon, among other matters, the alleged heavy metal
content in the sludge from the Plovdiv plant, the Council unanimously
resolved to approve ET Marin Blagiev’s scheme. The resolution
was later approved by the Minister for Industry.
- In
a newspaper interview published on 21 September 1999 the Minister for
the Environment said that the new reclamation scheme was
controversial and that she intended to challenge it. In her view, a
fresh method of reclamation was to be sought, if need be with the
help of university scientists.
- The
new scheme began to be implemented in October 1999. Eco Elshitsa EOOD
was the investor and ET Marin Blagiev the contractor.
C. The granting of the waste carriage and treatment
licence
- On
13 January 2000 the Pazardzhik Regional Inspectorate of Environment
and Water found that the company carrying sludge from the Plovdiv
plant to the pond was doing so without the licence required under
section 12(1) the 1997 Limitation of the Adverse Impact of Waste on
the Environment Act (see paragraph 52 below), which corresponded to
an administrative offence. On 29 March 2000 it fined the company.
- Consequently,
ET Marin Blagiev applied for such a licence, which was granted by the
Minister for the Environment and Water on 22 February 2000. In her
decision the Minister allowed ET Marin Blagiev to process up to four
hundred tonnes of domestic waste water sludge a day. In
particular, it could carry stabilised sludge from the Plovdiv
treatment plant to the pond, store it in pits or other open air
containers and use it for fertilising soils or improving the
environment. The sludge was to be carried in lorries, with between
six and eleven runs from the Plovdiv plant to the pond per day. It
was to be laid on the pond in keeping with the technology approved by
the Interdepartmental District Council and with certain other
precautionary measures. The laying of sludge had to be finished
before 30 December 2001. In the meantime, ET Marin Blagiev had to
present quarterly chemical analyses of the sludge to the Ministry of
Environment and the Pazardzhik Regional Inspectorate of Environment
and Water.
D. The applicant’s attempt to obtain judicial
review of the licence
- After finding out about the above licence, on 21
December 2000 the applicant applied to the Supreme Administrative
Court (Върховен
административен
съд) for judicial review of the
Minister’s decision to grant it. He started by contending that
he had a sufficient legal interest to contest the decision, because
it impacted on his right under Article 55 of the Constitution (see
paragraph 47 in limine below) to live in a “healthy and
favourable environment corresponding to the established standards and
norms”. He pointed out that he lived in Elshitsa, close to the
place where the licence allowed sludge to be laid, and that the
sludge could have adverse effects on the environment and human
health. He also referred to Article 120 § 2 of the
Constitution (see paragraph 47 in fine below). He further
argued that the decision was null and void, as its implementation was
impossible. The decision allowed ET Marin Blagiev to carry and
process domestic waste-water sludge. However, this could not be done,
because the waste water treated in the Plovdiv plant came from both
domestic and industrial sources. It was unfeasible to separate the
domestic from the industrial sludge and for this reason it was
impossible to carry and process solely domestic sludge. The applicant
further argued that the Minister’s decision unlawfully
classified the sludge as industrial waste, as under the relevant
rules it was hazardous waste; this was also evident from various
analyses. Furthermore, the Minister had taken the decision in breach
of the rules of procedure, as no EIA had been drawn up.
- In his application the applicant also requested the
court to stay, as an interim measure, the enforcement of the impugned
decision, as failure to do so could frustrate the purpose of the
proceedings and cause irreparable harm to the environment, thus
infringing the right of Elshitsa’s inhabitants to a safe and
healthy environment. As the court did not rule on that request, on 21
February 2001 the applicant renewed it. He argued that the continuing
implementation of the decision could lead to irreparable harm for the
environment, as the spreading of sludge was still going on at a
regular pace.
- On 21 March 2001 (опр.
№ 1826 от 21 март 2001 г.
по адм. д. № 732/2001,
ВАС, ІІ отд.)
a three member panel of the Supreme Administrative Court
declared the application inadmissible. It found that the applicant
had not been party to the administrative proceedings and therefore
had no standing to seek review of the Minister’s decision. His
interests could not be adversely affected by the decision, but solely
by the potential unlawful actions of those whom the decision
authorised to carry and process waste.
- On an appeal by the applicant, on 14 June 2001 a
five member panel of the Supreme Administrative Court quashed
the three member panel’s ruling and remitted the case for
an examination on the merits (опр.
№ 4333 от 14 юни
2001 г. по адм. д.
№ 3777/2001, ВАС, петчленен
състав). It held that in
view of the aim of the environmental protection legislation –
to prevent or at least reduce the adverse effects of waste on the
environment and human health – all individuals living in an
area at risk of pollution due to waste treatment operations
could be considered as interested parties. The applicant, as well as
all persons living near the tailings pond, had an interest in
preventing activities, such as those allowed by the impugned
ministerial decision, which could pollute their environment and thus
possibly impair their health.
- On 28 August 2001 the applicant reminded the court
once more of his request for a stay of execution of the decision. On
18 September 2001 the three-member panel turned down the request,
saying that the materials in the file did not point to any danger for
the applicant’s interests.
- A hearing listed for 16 October 2001 did not take
place, as ET Marin Blagiev had not been properly summoned. It took
place on 15 January 2002. The court heard the parties’
arguments. A public prosecutor participating in the proceedings ex
officio submitted that the application should be allowed.
- In a decision of 23 January 2002 (опр.
№ 605 от 23 януари
2002 г. по адм. дело
№ 4993/2001, ВАС, ІІ отд.)
the three-member panel discontinued the proceedings, holding
that the case had become devoid of object as the licence granted to
ET Marin Blagiev had expired on 30 December 2001.
- The applicant appealed, arguing, among other things,
that he had a continuing legal interest in seeking judicial review of
the decision, because it had allowed waste disposal near his home,
which could lead to problems for his health. The annulment of the
decision was in addition a prerequisite for successfully prosecuting
a claim in respect of the harm occasioned by the unlawful waste
disposal. The decision’s effects had not ended on 30 December
2001, as the negative results of the activities which it had made
possible could persist for years to come.
- On 24 September 2002 a five member panel of the
Supreme Administrative Court upheld the discontinuance (опр.
№ 8432 от 24 септември
2002 г. по адм. д. №
7232/2002, ВАС, петчленен
състав). It noted that the
subsistence of a legal interest in seeking the annulment of an
administrative decision was mandatory throughout the proceedings. The
three member panel had had regard to a fresh development –
the expiry of the licence – which had come to pass while the
proceedings were pending. The allegation that the applicant had
suffered damage at the time when the licence had still been in force
was not sufficient to establish the existence of a continuing legal
interest, as reparation for such damage could be sought in civil
proceedings.
E. Efforts to have the reclamation scheme halted
- The
new reclamation scheme drew widespread disapproval from Elshitsa’s
inhabitants. On 10 and 19 April 2000 Mr A.P., member of the
Panagyurishte Municipal Council, sent letters to the Ministry of
Health and to the National Centre for Hygiene, Medical Ecology and
Nutrition (a subdivision of the Ministry of Health). He asked them to
give their expert opinion on the question whether the implementation
of the scheme could put at risk the health of the people living near
the pond.
- The Centre replied on 25 April 2000. It said that
there was a risk of heavy-metal contamination impacting on the
population’s health within a ten kilometre perimeter
around the pond. The reclamation scheme lacked a suitable system for
monitoring the underground water, where the migration of such metals
could be expected, as the polymer cover was not stable in the long
term. According to an expert in the Centre’s toxicology
laboratory, the heavy-metal content of the sludge spread on the pond
was above the regulatory maximum, as shown by the chemical analysis
of samples. The high levels of copper, zinc, cadmium, nickel, cobalt
and chrome led to a pollution risk and a risk to the population’s
health. So did the presence in the sludge of lead and manganese.
Those metals could have a negative impact on the nerve, respiratory
and cardiovascular systems, the kidneys, the liver and the production
of blood. Some of them were allergens, mutagens and carcinogens. The
scheme’s implementation would thus lead to a risk of dust from
the sludge spreading in the atmosphere. There was also a risk that
those metals would migrate through the surface and underground water,
because of the acid pH of the water in the pond. The methodology for
reclaiming old polluted areas classified the area situated ten to
twenty kilometres from the source of the pollution as being at risk.
- Having
received the Centre’s opinion, on 17 May 2000 Mr A.P. asked the
Chief Sanitary Inspector to stop the operation of the site. He did
not receive a reply. Mr A.P. also alerted the mayor of Panagyurishte.
- On 29 May 2000 Panagyurishte’s mayor appointed a
commission to take samples from the place where the sludge was being
spread and to submit it to a laboratory for an analysis of its
heavy-metal content. Such samples were taken and sent to the National
Centre for Hygiene, Medical Ecology and Nutrition. In a letter of 6
June 2000, accompanied by the expert opinion of a researcher in its
toxicology laboratory, the Centre said that the lead, cadmium,
copper, zinc, chrome and nickel content of the sample was well above
the maximum permitted levels. Copper and zinc had a negative effect
on agricultural crops and livestock. Lead, cadmium, chrome and nickel
were systematically toxic for mammals and humans: they could harm the
peripheral and central nervous systems, the production of blood, the
liver and the kidneys. Those metals also had mutagenic and
carcinogenic effects. In addition, chrome, cadmium and nickel were
strong allergens. The underlying soil cement cover would provide some
protection for the underground water in the region, but it was
unclear how it would prevent the migration of heavy metals to the
surface water.
- On
12 June 2000 Panagyurishte’s mayor and the regional governor
wrote to the Deputy Prime Minister. They urged him to halt the
scheme’s implementation and noted that its continuation could
lead to civil unrest in Elshitsa. Apparently no reply was received.
- On
13 December 2001 the Ministry of Environment and Water granted Eco
Elshitsa EOOD a permit to discharge waste water, setting certain
limits on the content of heavy metals and other toxic substances in
it, and requiring the company to report to the competent authorities
on a monthly basis.
- On
25 September 2002 the works on the pond were accepted by the
authorities.
- On
11 August 2004 Elshitsa’s mayor asked the environmental
inspection authorities in Pazardzhik to provide him with information
about Eco Elshitsa EOOD’s monthly self monitoring reports.
On 8 September 2004 those authorities replied that they did not have
such reports on file and that they were pressuring the company to
comply with its reporting obligations.
F. The attempts to carry out an EIA and other
assessments of the scheme
- On 9 January 2001, as a result of pressure from
inhabitants of Elshitsa, the Minister for the Environment and Water
ordered Eco Elshitsa EOOD to commission an EIA. In an additional
decision of 1 March 2001 she specified that the EIA was to be ready
by 31 March 2001.
- As
a result of a hunger strike by three members of a public committee
opposed to the scheme and of a visit by the Minister for the
Environment and Water to Elshitsa, on 10 November 2001 the Pazardzhik
Regional Inspectorate of Environment and Water, noting that no EIA
had been drawn up, ordered that the implementation of the scheme be
stopped pending completion of the assessment. However, by that time
about 97 ha of the 98.3 ha of the pond had been covered with sludge.
It seems that the total amount deposited was forty eight
thousand cubic metres.
- The
EIA was ready in March or April 2002. It was submitted for a public
discussion, at which three experts from the University of Sofia’s
faculty of geology and geography expressed their misgivings about the
scheme.
- On 4 July 2002 the Minister for the Environment and
Water decided not to accept the EIA and sent it back for revision.
She noted some serious omissions in its estimation of the health risk
to the population arising from the reclamation scheme, the lack of
information about the hazardous substances involved in the scheme,
and the fact that the team which had drawn it up did not include an
expert on the health and hygiene related aspects of the
environment. The Minister instructed the experts to revise the EIA
and, in particular, to make a comparative study of the existing
analyses and make an additional chemical analysis of the sludge laid
on the pond. It was to be specifically checked for heavy metals and
mercury content. The taking of samples for that analysis had to be
done in the presence of the persons concerned. The experts were also
to indicate the tailings’ permeability, before and after the
pond’s capping with soil cement, as well as the permeability of
the underlying rocks and the stability and the permeability of the
soil cement after eighteen months of use. The revised EIA was to
analyse all aspects of the scheme with reference to their effect on
the health of the inhabitants of the villages surrounding the pond,
and to propose concrete measures to tackle the problem. The analysis
had to focus specifically on the penetration of heavy metals in the
food chain.
- In October 2003 Eco Elshitsa EOOD and the company
which it had hired to draw up the EIA submitted additional documents
to the Ministry. In a letter of 17 October 2003 the Minister said
that those documents did not contain the information requested in her
decision of 4 July 2002. It was thus impossible to draw any reliable
conclusions as to the effect of the reclamation scheme on the people
and the environment. However, under the regulations in force, it was
not necessary to pursue the matter further and finalise the EIA. As
the works on the site had already been completed, it was sufficient
for Eco Elshitsa EOOD to produce a self-monitoring report on the
scheme’s impact.
- Following pressure from Elshitsa’s inhabitants
and the local authorities, on 6 April 2004 the Minister of Health
ordered the National Hygiene and Ecology Centre to carry out an
assessment of the environment and the impact of the reclamation
scheme on the local population’s health. In a letter of 14 June
2004 the Centre informed the Ministry that its experts were ready to
complete the task, but that it could come up with only twenty per
cent of the necessary funding, amounting to BGN 8,000. In 2007, 2008
and February 2009 the applicant asked the municipality of
Panagyurishte to cover the remaining eighty per cent of the amount,
but the municipality made no provision for such an outlay in its
budget. At the time of the latest information from the applicant on
that point (29 January 2010) the money had not been found and the
assessment had not been completed.
- The first self monitoring report by Eco Elshitsa
EOOD was drawn up in November 2007 and covered the period between
November 2006 and November 2007. It gave an account of, among other
things, the heavy metal content of water coming out of the pond
and of grass near it. These measurements were based on two water
samples and five grass samples. One of the water samples did not show
a heavy metal content above the regulatory maximum levels,
whereas the other did, leading the report to conclude that the pond’s
drainage water was heavily polluted. According to the report, the
polluting content of the grass samples was below the regulatory
maximum level, but the applicant submitted that its authors had used
the wrong comparators, using the regulatory maximum levels for soil,
not grass, which were considerably lower. The report said that the
pond should continue to be monitored, but at a decreasing pace, with
sample taking once a year for grass and twice a year for water.
Further reporting was envisaged in 2010.
G. Other information
- In its report on the state of the environment in 1997
the Ministry of Environment and Water noted, on page 98, that the
Plovdiv waste water treatment plant had generated 45,601 tonnes of
dangerous waste. In its annual report for 2004 the Environmental
Protection Agency (Изпълнителна
агенция по
околната среда)
noted, on page 4, that out of approximately 50,175 tonnes of sludge
monitored by its Plovdiv branch, approximately 41.5 tonnes could be
classified as dangerous. In its reports for 2006 and 2007 the Agency
noted, on pages 9 and 9 respectively, that the chromium content of
the sludge coming from the Plovdiv waste water treatment plant
was above the regulatory maximum. That sludge was therefore not
appropriate for the reclamation and regeneration of agricultural
land.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- The relevant provisions of the 1991 Constitution read
as follows:
Article 15
“The Republic of Bulgaria shall ensure the
preservation and the reproduction of the environment, the
conservation of the variety of living nature, and the reasonable
utilisation of the country’s natural and other resources.”
Article 55
“Citizens shall have the right to a healthy and
favourable environment corresponding to the established standards and
norms. They must preserve the environment.”
Article 120
“1. The courts shall review the
lawfulness of the administration’s acts and decisions.
2. Natural and legal persons shall have the
right to seek judicial review of any administrative act or decision
which affects them, save as expressly specified by statute.”
B. The Environmental Protection Acts and related
regulations
- Under section 19(1) of the 1991 Environmental
Protection Act (Закон
за опазване
на околната
среда), repealed and
replaced by the 2002 Environmental Protection Act, all activities of
private individuals and entities and State bodies could be subjected
to an EIA. Section 20(1)(1) of the 1991 Act, superseded by section
92(1) of the 2002 Act, provided that an EIA was mandatory for all the
schemes listed in a schedule to the Act. Those schemes included the
dumping of industrial and domestic waste and of waste-water sludge
(point 27.4 of the Schedule, as in force between 1997 and 2001). An
EIA could be carried out in other cases as well, pursuant to a
proposal made by those concerned to the competent authorities
(section 20(3) of the 1991 Act, superseded by section 93 of the
2002 Act, which lays down more detailed rules in that domain).
- The EIA was to be commissioned by the investor and
carried out by independent experts having no connection with the
scheme’s planning and no vested interest in its completion
(section 21(1) of the 1991 Act). The expenses were to be borne by the
investor (section 23(2) of the 1991 Act). The final report was to be
submitted to the competent authority, which had to organise a public
discussion on it (sections 23(1) and 23a(1) of the 1991 Act). The
public had to be notified of the discussion at least one month in
advance, through the mass media or other appropriate channels
(section 23a(2) of the 1991 Act). The authority was to decide on
the scheme’s feasibility not later than three months (after an
amendment in 2001, one month) after the discussion (section 23b(1) of
the 1991 Act). The decision was to be notified to the investor and
made public through the mass media or other appropriate channels
(section 23b(2) of the 1991 Act). Those concerned could seek judicial
review (section 23b(3) of the 1991 Act). Under section 23c of the
1991 Act, the authorities had to ban or halt schemes whose EIAs were
negative or which had not been subjected to an EIA if one was
mandatory.
- Under section 29 of the 1991 Act, whose text has been
reproduced in section 170 of the 2002 Act, everyone was bound to
make good the damage which they had, through their own fault, caused
to another by polluting or spoiling the environment. The amount of
compensation could not be less than the money needed to repair the
damage. Under section 30(1) of the 1991 Act, the text of which has
been reproduced in section 171 of the 2002 Act, those who had
suffered damage as described in section 29 could bring proceedings to
enjoin the polluter to put an end to the breach and eliminate the
pollution’s effects. Section 30(2) provided that such
proceedings could be brought by any individual, the municipal
authorities and non profit associations. There is no reported
case law under those provisions.
- The 1992 Regulations on hygienic requirements for the
protection of health in the urban environment (Наредба
№ 7 от 25
май 1992 г. за хигиенните
изисквания
за здравна
защита на селищната
среда), issued by the
Minister of Health on 25 May 1992 and amended several times after
that, lay down minimum permitted distances between urban areas and
sources of pollution. Schedule No. 1 to the Regulations provides, in
point 184, that tailings ponds used for depositing hazardous
industrial waste for up to ten years must be situated farther than
two kilometres from urban areas. Point 184a lays down the same
requirement in respect of tailings ponds used for depositing
non hazardous industrial waste for more than ten years. Point
335 provides that non-hazardous waste periodically covered with soil
must be stored more than three kilometres from urban areas. Point
335a lays down the same requirement in respect of hazardous waste
which is intended to remain in the storage area for more than ten
years. The Ministry of Health may authorise a reduction of those
distances on the basis of an opinion by the local hygiene and
epidemiology inspectorate and of an EIA (regulation 4(1)). If no EIA
is required in respect of the installation in issue, before
authorising a reduction the Ministry must obtain a comprehensive
ecological expert’s report containing a health impact
assessment, drawn up by an independent expert (regulation 4(2)).
C. Waste Management Legislation
- Under section 12(1) of the 1997 Limitation of the
Adverse Impact of Waste on the Environment Act (Закон
за ограничаване
на вредното
въздействие
на отпадъците
върху околната
среда), superseded by
section 12(1)(1) of the 2003 Waste Management Act (Закон
за управление
на отпадъците),
a licence was required for all activities relating to the collection,
storage or decontamination of waste. The decision to grant such
licence was subject to judicial review (section 50 of the 1997 Act,
superseded by section 49 of the 2003 Act).
- Section 37(2) of the 1997 Act provided that facilities
and installations for the storage and decontamination of waste could
be built only following a positive EIA.
D. The State Responsibility for Damage Act
- Section 1(1) of the Act originally called the 1988
State Responsibility for Damage Caused to Citizens Act, renamed on 12
July 2006 the State and Municipalities Responsibility for Damage Act,
provides that the State is liable for the damage suffered by private
persons as a result of unlawful decisions, actions or omissions by
civil servants, committed in the course of or in connection with the
performance of their duties. Section 1(2) provides that
compensation for damage flowing from unlawful administrative
decisions may be claimed after the decisions concerned have been
annulled in prior proceedings. The court examining the claim for
compensation cannot enquire into the validity of a voidable decision;
it may merely examine whether a decision is null and void. Section
8(2) provides that if another statute provides for a special avenue
of redress, the Act does not apply.
III. RELEVANT INTERNATIONAL MATERIALS
- The text of a number of international instruments and
documents concerning the environment, including that of the 1998
United Nations Convention on Access to Information, Public
Participation in Decision Making and Access to Justice in
Environmental Matters (the Aarhus Convention, which Bulgaria signed
on 25 June 1998 and ratified on 17 December 2003) may be found
in the Court’s judgment in the case of Tătar v. Romania
(no. 67021/01, ECHR 2009 ... (extracts)).
- On 4 November 1999 a standing committee acting on
behalf of the Council of Europe’s Parliamentary Assembly
adopted Recommendation 1431 (1999), entitled “Future action to
be taken by the Council of Europe in the field of environment
protection”. Point 8 of the recommendation said that “[i]n
the light of changing living conditions and growing recognition of
the importance of environmental issues, ... the Convention could
include the right to a healthy and viable environment as a basic
human right”. It urged the Committee of Ministers to, among
other things, “instruct the appropriate bodies within the
Council of Europe to examine the feasibility of ... drafting an
amendment or an additional protocol to the [Convention] concerning
the right of individuals to a healthy and viable environment”.
- On 27 June 2003 the Parliamentary Assembly adopted
Recommendation 1614 (2003), entitled “Environment and human
rights”. Point 3 of the recommendation stated that “in
view of developments in international law on both the environment and
human rights as well as in European case law, especially that of
the [Court], the time has now come to consider legal ways in which
the human rights protection system can contribute to the protection
of the environment”. Point 8 referred to “the case law
of the [Court] concerning States’ positive obligations in the
area of protection against environmental nuisances which are harmful
or dangerous to health” and said that it “wishe[d] to
encourage this process by adding provisions concerning the
recognition of individual procedural rights, intended to enhance
environmental protection, to the rights set out in the [Convention]”.
It therefore recommended to the governments of the Member States to
“ensure appropriate protection of the life, health, family and
private life, physical integrity and private property of persons in
accordance with Articles 2, 3 and 8 of the [Convention] and by
Article 1 of its Additional Protocol, by also taking particular
account of the need for environmental protection”. It also
called upon the Committee of Ministers to “draw up an
additional protocol to the [Convention] concerning the recognition of
individual procedural rights intended to enhance environmental
protection, as set out in the Aarhus Convention” and to “draw
up, as an interim measure in preparation for the drafting of an
additional protocol, a recommendation to member states setting out
the ways in which the [Convention] provides individual protection
against environmental degradation, proposing the adoption at national
level of an individual right to participation in environmental
decision making, and indicating a preference, in cases concerning the
environment, for a broad interpretation of the right to an effective
remedy guaranteed under Article 13”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that by allowing the second reclamation scheme
to proceed, the authorities had failed to comply with a number of
legal requirements and to strike a fair balance between the various
interests at stake, consequently putting his and his family’s
health at risk and preventing him from enjoying his home. He relied
on Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect
for his private and family life [and] his home ...
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 parties’ submissions
- The
Government submitted that the environment in Elshitsa had not
deteriorated after the decommissioning of the mine. The applicant’s
worries in that respect were misplaced and had not materialised. This
could be seen from the self monitoring report drawn up by Eco
Elshitsa EOOD. There was thus no indication that the applicant’s
private life or home had been affected in any way.
- The
Government further argued that the reclamation scheme had been
implemented in line with the applicable regulations. It had been
approved in strict compliance with the regulatory requirements. There
was no indication that the decision of the Minister for the
Environment and Water to grant ET Marin Blagiev a licence to carry
waste-water sludge had been unlawful. In particular, the law did not
require a prior EIA for reclamation projects, as they were intended
to reduce the effects of earlier contaminating activities and improve
the environment. The health concerns of Elshitsa’s inhabitants
had been fully taken into account by the authorities.
- The applicant disputed the Government’s
assertion that the reclamation scheme had not increased pollution in
the area where he lived. Firstly, Eco Elshitsa EOOD’s report
was actually indicative of pollution, as it had found that the
heavy-metal content of the water flowing out of the pond was higher
than the regulatory maximum. The report was in parts misleading
because it used erroneous comparators, and covered only the time
between November 2006 and November 2007. No information was available
in respect of the preceding period and it was not envisaged to
provide such information in the future. Moreover, the report did not
contain any estimate of the scheme’s effects on the health of
the local population. In any event, it could not be seen as a
reliable source of information as it had been drawn up by the very
company which should have been monitored. The applicant secondly
relied on the official reports mentioned in paragraph 46 above, which
stated that the sludge from the Plovdiv plant contained heavy metals
and constituted hazardous waste. Furthermore, an expert opinion
obtained by the mayor of Elshitsa in 2004 had shown that the scheme
had increased the pond’s toxicity instead of providing a
sustainable solution to the problem through its reclamation.
- The applicant further pointed out that, as no studies
had been carried out to assess the scheme’s effects on the
health of the local population, it was extremely hard to prove actual
harm to his health. However, such harm was very likely, especially in
the long term, in view of the air, plant and water pollution coming
from the sludge and the consequent introduction of harmful substances
in the food chain. In his view, the existence of such risk, which
weighed heavily on his private and family life and the enjoyment of
the amenities of his home, was sufficient to trigger the application
of Article 8.
- In the applicant’s submission, the scheme’s
approval and implementation had not been lawful. First, it did not
comply with the applicable technical regulations. Second, since the
laying of sludge in fact amounted to a waste disposal operation,
it had been necessary to carry out an EIA under the law, both as it
stood at the time of the implementation of the scheme and as amended
after the 2002 changes. The discontinuance of the EIA procedure had
therefore been unwarranted. Moreover, even if an EIA was not
mandatory, it should have been carried out to dispel or confirm the
local population’s well founded fears. However, the
authorities had chosen to ignore their continued protests, had not
completed the EIA and had not made funding available for an
assessment of the scheme’s effect on the population’s
health.
- In the applicant’s view, the authorities had not
struck a proper balance between his rights and the interests of the
community. They had opted for a controversial and polluting
reclamation scheme over a benign one only because of the former’s
presumed lower cost, which had eventually turned out to be higher.
When reaching their decision, they had not taken into account the
opinion of the local authorities and had not notified those likely to
be affected. Later they had ignored the applicant’s requests to
stay the scheme’s implementation, and had not imposed on the
contractor any obligations to minimise the impact of its activities
on the environment.
- In his further observations (see paragraph 6 above)
the applicant submitted that under the applicable legislation and
regulations, which he described in detail, reclamation schemes such
as the one proposed and implemented by ET Marin Blagiev required a
prior EIA. However, no such assessment had been carried out before
the scheme’s implementation and the one commissioned after that
had remained unfinished. In the applicant’s view, in approving
that scheme and in granting ET Marin Blagiev a waste disposal
licence, the authorities had acted in breach of domestic law. As a
result of that, and of the authorities’ passive attitude, there
was no reliable information on the scheme’s effects on the
environment and the health of those living near the pond. Although
the scheme’s effects were not as tangible as noise or smell,
they were nonetheless extremely harmful to the environment and to
human health, as evidenced by the expert opinions of the National
Centre for Hygiene, Medical Ecology and Nutrition. The toxic
substances contained in the sludge, which exceeded many times the
maximum regulatory levels and which migrated through the underground
water, the atmosphere and the nutrition chain, had a direct effect on
the applicant’s home and his private and family life and
attained the minimum level of severity required to bring Article 8
into play. It was also significant that the impugned situation had
lasted more than ten years. It could not therefore be regarded as
trivial or negligible. It was sufficiently serious to prompt the
authorities to assess the pollution and find ways to tackle it.
However, they had not taken effective steps in that regard, and had
not followed appropriate procedures allowing the applicant’s
views to be heard.
B. The Court’s assessment
- In
today’s society the protection of the environment is an
increasingly important consideration (see Fredin v. Sweden (no.
1), 18 February 1991, § 48, Series A no. 192, recently
cited in Hamer v. Belgium, no. 21861/03, § 79, ECHR
2007 XIII (extracts); Turgut and Others v. Turkey, no.
1411/03, § 90, 8 July 2008; and Rimer and Others v. Turkey,
no. 18257/04, § 38, 10 March 2009). However, Article 8 is not
engaged every time environmental deterioration occurs: no right to
nature preservation is included as such among the rights and freedoms
guaranteed by the Convention or its Protocols (see Kyrtatos v.
Greece, no. 41666/98, § 52, ECHR 2003 VI; Hatton
and Others v. the United Kingdom [GC], no. 36022/97,
§ 96 in limine, ECHR 2003 VIII; and Fadeyeva v.
Russia, no. 55723/00, § 68, ECHR 2005 IV). Indeed,
that has been noted twice by the Council of Europe’s
Parliamentary Assembly, which urged the Committee of Ministers to
consider the possibility of supplementing the Convention in that
respect (see paragraphs 56 and 57 above). The State’s
obligations under Article 8 come into play in that context only if
there is a direct and immediate link between the impugned situation
and the applicant’s home or private or family life (see,
mutatis mutandis, Botta v. Italy, 24 February
1998, § 34 in limine, Reports of Judgments and
Decisions 1998 I). Therefore, the first point for decision
is whether the environmental pollution of which the applicant
complains can be regarded as affecting adversely, to a sufficient
extent, the enjoyment of the amenities of his home and the quality of
his private and family life.
- The Court has considered the question whether
pollution can trigger the application of Article 8 in a number of
cases. The issue first came up in a case concerning a plant for the
treatment of liquid and solid waste situated twelve metres from the
applicant’s home. Based on medical reports and expert opinions
showing that hydrogen sulphide emissions from the plant exceeded the
permitted limit and could endanger the health of those living nearby,
and that there could be a causal link between those emissions and
health problems suffered by the applicant’s daughter, and the
acceptance of the domestic courts that, without being a grave health
risk, the nuisances in issue impaired the quality of life of those
living in the plant’s vicinity, the Court was satisfied that
Article 8 was engaged (see López Ostra v. Spain,
9 December 1994, §§ 7, 49 and 50, Series A no. 303 C).
In that case the Court famously said that “severe environmental
pollution may affect individuals’ well being and prevent
them from enjoying their homes in such a way as to affect their
private and family life adversely, without, however, seriously
endangering their health” (ibid., § 51 in limine).
- In a case concerning a factory producing fertilisers
and caprolactam and situated about one kilometre from the town where
the applicants lived, in finding that Article 8 was applicable the
Court took into consideration that the factory had been classified as
high risk under domestic law, that in the course of its
production cycle it released large quantities of inflammable gas and
other toxic substances, that an incident had occurred in which
several tonnes of toxic gases had escaped, leading to the acute
arsenic poisoning of one hundred and fifty persons, and that local
experts had said that owing to the factory’s geographical
position, emissions from it into the atmosphere were often channelled
towards the town where the applicants lived (see Guerra and Others
v. Italy, 19 February 1998, §§ 12 and 57, Reports
1998 I).
- By
contrast, in a case concerning the destruction of a swamp adjacent to
the applicants’ property, the Court found that the applicants
had not put forward convincing arguments showing that the alleged
damage to the birds and other protected species living in the swamp
was of such a nature as to directly affect their rights under Article
8. The Court noted that the crucial element which must be present in
determining whether, in a given case, environmental pollution has
adversely affected one of the rights safeguarded by that provision
was the existence of a harmful effect on a person’s private or
family sphere and not simply the general deterioration of the
environment (see Kyrtatos, cited above, §§ 52
and 53).
- In
a case concerning a mine where gold was extracted by sodium cyanide
leaching, and which was located at distances ranging from three to
nine hundred metres from the homes of most of the applicants, the
Court held that Article 8 was applicable. To reach that conclusion,
it had regard to the findings of the domestic courts, based on an
environmental impact assessment, that the operation of the mine had
caused widespread environmental degradation and had affected the
applicants (see Taşkın and Others v. Turkey, no.
46117/99, §§ 12 and 111 14, ECHR 2004 X). It
reiterated those findings in a follow up case concerning the
same mine (see Öçkan and Others v. Turkey, no.
46771/99, § 40, 28 March 2006).
- In
a case concerning the largest iron smelter in Russia, the Court
formulated with precision the applicable test. It held that to raise
an issue under Article 8, environmental pollution must directly
affect the applicant’s home, family or private life and that
its adverse effects must attain a certain minimum level. It went on
to say that the assessment of that minimum was relative and depended
on all the circumstances of the case, such as the intensity and
duration of the nuisance, and its physical or mental effects. The
general context of the environment should also be taken into account,
there being no arguable claim under Article 8 if the detriment
complained of was negligible in comparison to the environmental
hazards inherent to life in a modern city (see Fadeyeva, cited
above, §§ 68 70, with further references). In finding
Article 8 applicable, the Court took into consideration that the
concentration of polluting substances in the air near the applicant’s
home had continuously exceeded the applicable norms, that the State
had recognised that the environmental situation had caused an
increase in the morbidity rate for the local residents, that the
domestic courts had recognised the applicant’s right to be
resettled away from the “sanitary security zone” in which
she lived, and that there was a “very strong combination of
indirect evidence and presumptions” which made it possible to
conclude that the applicant’s prolonged exposure to emissions
from the plant had caused her health to deteriorate or had at least
made her more vulnerable to various illnesses and had adversely
affected her quality of life at home (ibid., §§ 80 88).
The Court made similar findings in a later case concerning the same
iron smelter (see Ledyayeva and Others v. Russia,
nos. 53157/99, 53247/99, 53695/00 and 56850/00, §§
96 100, 26 October 2006).
- In
a case concerning a plant for the storage and treatment of special
waste and the detoxification of hazardous waste, involving treatment
of industrial waste using chemicals, whose operation had been found
to be incompatible with environmental regulations by the domestic
authorities, and which was located thirty metres away from the
applicant’s home, the Court considered it evident that Article
8 was applicable, and did not consider the point in detail (see
Giacomelli v. Italy, no. 59909/00, §§ 76 98,
ECHR 2006 XII).
- More
recently, in a case concerning a gold mining plant and its pond,
situated a hundred metres away from the applicants’ home, the
Court took into account the findings of domestic experts, the fact
that a large-scale accident had occurred, resulting in severe
pollution, and environmental impact assessments produced by the
Government during the course of the proceedings. On that basis, and
notwithstanding the lack of domestic decisions or official documents
showing clearly the risks that the plant’s operations posed,
the Court concluded that Article 8 was applicable (see Tătar,
cited above, §§ 89 97).
- The
Court and the former Commission have also had to deal with a number
of cases concerning noise nuisances. A summary of those may be found
in paragraphs 92 and 93 of the Court’s judgment in the recent
case of Mileva and Others v. Bulgaria (nos. 43449/02 and
21475/04, 25 November 2010).
- The
above mentioned cases make it plain that the question whether
pollution can be regarded as affecting adversely an applicant’s
Article 8 rights depends on the particular circumstances and on the
available evidence. In that connection, the Court would add that, in
assessing evidence, it has generally applied the standard of proof
“beyond reasonable doubt”. However, such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact, and it has
been the Court’s practice to allow flexibility in that respect,
taking into consideration the nature of the substantive right at
stake and any evidentiary difficulties involved (see Fadeyeva,
cited above, § 79). The salient question is whether the
applicant has been able to show to the Court’s satisfaction
that there has been an actual interference with his private sphere,
and, secondly, that a minimum level of severity has been attained
(see Fadeyeva, cited above, § 70). The mere allegation
that the reclamation scheme did not comply with domestic rules –
such as the 1992 Regulations on hygienic requirements for the
protection of health in the urban environment (see paragraph 51
above) – is not sufficient to ground the assertion that the
applicant’s rights under Article 8 have been interfered with
(see, mutatis mutandis, Furlepa v. Poland (dec.),
no. 62101/00, 18 March 2008, and Galev and Others v. Bulgaria
(dec.), no. 18324/04, 29 September 2009).
- In the instant case, the Court, while not in doubt
that the laying of sludge from the Plovdiv waste water treatment
plant on the tailings pond created an unpleasant situation in the
surroundings, is not persuaded that the resulting pollution affected
the applicant’s private sphere to the extent necessary to
trigger the application of Article 8, for several reasons. First,
unlike the situation in the majority of the above mentioned
cases, the applicant’s home and land are situated at a
considerable distance from the pollution’s source: his house is
about one kilometre from the tailings pond and the land which he
cultivates is about four kilometres away (see paragraph 7 above).
Secondly – and this point is closely related to the first –
the pollution emanating from the pond is not the result of active
production processes which can lead to the sudden release of large
amounts of toxic gases or substances (contrast López Ostra;
Guerra and Others; and Fadeyeva, cited above). This
also means that there is less risk of a sudden deterioration of the
situation (contrast Tătar, cited above). Thirdly, there
is no indication that there have been incidents entailing negative
consequences for the health of those living in Elshitsa (contrast
Guerra and Others and Tătar, both cited above).
Admittedly, various domestic authorities found that the sludge laid
on the pond, coming as it does partly from industrial waste water,
contains substances – chiefly heavy metals – which are
not suited for reclamation purposes and are capable of adversely
affecting human health when spreading in the environment (see
paragraphs 10, 11, 32, 34, 45 and 46 above). However, there are no
materials in the case file to show that the pollution in and around
the pond has caused an increase in the morbidity rate of Elshitsa’s
residents (contrast Fadeyeva, cited above) or has had a
sufficiently adverse impact on the applicant’s enjoyment of the
amenities of his home and the quality of his private and family life.
Indeed, the applicant conceded that he could not show any actual harm
to his health or even a short term health risk, but merely
feared negative consequences in the long term (see paragraph 62 above
and contrast López Ostra and Fadeyeva, both
cited above). Nor did the applicant provide particulars showing that
the degree of disturbance in and around his home had been such as to
considerably affect the quality of his private or family life
(contrast, mutatis mutandis, Hatton and Others, cited
above, § 118).
- It is true that in declaring the applicant’s
application for judicial review admissible the Bulgarian Supreme
Administrative Court found that the applicant, as well as all persons
living near the pond, had a sufficient interest in bringing
proceedings in relation to that situation (see paragraph 25 above).
However, unlike the Turkish court in Taşkın and Others
(cited above, §§ 12 and 111 14), it did not base that
ruling on findings about the extent to which the applicant had been
personally affected by the impugned reclamation scheme. It rather had
regard to the general aim of the domestic environmental protection
legislation, which are quite different from the aims of Article 8 of
the Convention. It should be pointed out in this connection that the
conditions governing individual applications under the Convention are
not necessarily the same as the national criteria relating to locus
standi in domestic proceedings. National rules on that point may
serve different purposes and, while those purposes may sometimes be
analogous, they need not always be. Indeed, the underlying object of
the Convention mechanism is to provide a safeguard to those
personally affected by violations of fundamental human rights (see,
mutatis mutandis, Velikova v. Bulgaria (dec.), no.
41488/98, ECHR 1999 V (extracts)). As already noted, neither
Article 8 nor any of other provision of the Convention or its
Protocols were specifically designed to provide protection of the
environment; other international instruments and domestic legislation
are better suited to address such issues (see Kyrtatos,
cited above, § 52 in fine).
- Naturally, given the lack of conclusive official
information on the subject, owing to the authorities’ failure
to complete the EIA which they decided to carry out in 2001 and to
the lack of reliable data from other sources (see paragraphs 39 45
above), it is understandable that the applicant had and continues to
have misgivings about the risk to his and his family’s health
and well being on account of the pollution resulting from the
toxic substances contained in the waste water sludge laid on the
pond. However, he has not apparently suffered any actual harm to
date. In the absence of proof of any direct impact of the impugned
pollution on the applicant or his family, the Court is not persuaded
that Article 8 is applicable on that ground either (contrast McGinley
and Egan v. the United Kingdom, 9 June 1998, §§ 96
and 97, Reports 1998 III, which concerned direct exposure
to radiation from a nuclear explosion, and Roche v. the United
Kingdom [GC], no. 32555/96, §§ 155 and 156, ECHR
2005 X, which concerned direct exposure to mustard and nerve
gas).
- There has therefore been no violation of Article 8 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that he could not fully enjoy his property, as
his agricultural activities had become risky as a result of the
pollution around the tailings pond. He also complained that the value
of his property had declined owing to the widely publicised
environmental problems surrounding the pond’s reclamation. He
relied on Article 1 of Protocol No. 1, which provides as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
- The
Government argued that the applicant’s rights under this
provision had not been infringed in any way.
- In
the applicant’s submission, the laying of polluting sludge near
his property had prevented him from using it normally, had reduced
its value and had put his business at risk. Those activities, which
fully disregarded his economic interests, had failed to strike a fair
balance under Article 1 of Protocol No. 1 for the same reasons as
those set out in respect of Article 8 of the Convention.
B. The Court’s assessment
- Article 1 of Protocol No. 1 does not guarantee the
right to enjoy one’s possessions in a pleasant environment (see
Galev and Others v. Bulgaria (dec.), no. 18324/04, 29
September 2009, with further references). That said, a severe
nuisance may seriously affect the value of real property and thus
amount to a partial expropriation (see Rayner v. the United
Kingdom, no. 9310/81, Commission decision of 16 July 1986,
Decisions and Reports (DR) 47, p. 5, at p. 14, and Taşkın
and Others (dec.), cited above). However, the applicant has not
produced evidence to show that the reclamation scheme had any effect
on his property or affected adversely its value (see, mutatis
mutandis, Ashworth and Others v. the United Kingdom
(dec.), no. 39561/98, 20 January 2004; Fägerskiöld
v. Sweden (dec.), no. 37664/04, 26 February 2008; and Galev
and Others, cited above). Nor has he produced evidence to show
the extent of the losses allegedly suffered by his agricultural
business as a result of the reclamation scheme (see, mutatis
mutandis, Taura and Others v. France, no. 28204/95,
Commission decision of 4 December 1995, DR 83 B, p. 112, at p.
133).
- There has therefore been no violation of Article 1 of
Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the Supreme Administrative Court had
refused to consider the merits of his application for judicial
review, and had failed to address a number of decisive arguments
raised by him and to rule properly and in good time on the request to
stay the implementation of the impugned decision. He relied on
Article 6 § 1 of the Convention, which provides, in so far as
relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by [a] ... tribunal ...”
A. The parties’ submissions
- The
Government made no submissions on this complaint.
- The
applicant submitted that Article 6 was applicable, as the proceedings
concerned his constitutionally guaranteed rights to a healthy
environment and respect for his personal sphere. Those rights
undoubtedly had a civil character, and the outcome of the proceedings
was decisive for their exercise and also for the right to seek
compensation for the damage caused by an unlawful administrative
decision. Moreover, the decision of which he had sought review had
not been a discretionary one.
- The
applicant further submitted that he had not been able to obtain a
ruling on the substance of his claim. That had been the result of the
slow pace of the proceedings and of the court’s failure to stay
the reclamation scheme’s implementation and to address the
argument that despite the expiry of the licence its effects had not
ceased to exist.
B. The Court’s assessment
- The
applicability of one of the substantive clauses of the Convention
constitutes, by its very nature, an issue going to the merits of the
case, to be examined independently of the respondent State’s
attitude. The Court must therefore examine whether the proceedings in
issue in the present case concerned a dispute over the applicant’s
“civil rights and obligations” (see, among other
authorities, H. v. France, 24 October 1989, § 47, Series
A no. 162 A).
- For
Article 6 § 1 in its “civil” limb to be applicable,
there must be a dispute (“contestation” in the
French text) over a “civil right” which can be said, at
least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of
its exercise; and, finally, the result of the proceedings must be
directly decisive for the right in question, mere tenuous connections
or remote consequences not being sufficient to bring Article 6 §
1 into play. The character of the legislation which governs how the
matter is to be determined or that of the authority invested with
jurisdiction in the matter are of little consequence (see, as a
recent authority, Micallef v. Malta [GC], no. 17056/06, §
74, ECHR 2009 ...).
- The
Court does not doubt that Bulgarian law gave the applicant a right to
a “healthy and favourable environment” (see paragraph 47
above). It is also willing to accept that the right in question can
be regarded as “civil” for the purposes of Article 6 §
1, and that the proceedings before the Supreme Administrative Court
concerned a serious and genuine dispute between the applicant and the
authorities as to whether the licence granted to ET Marin Blagiev was
valid. However, the question remains whether those proceedings were
directly decisive for the right in question.
- In
the Court’s view, on this point the position in the present
case closely resembles that in Balmer Schafroth and Others.
In that case, the Court found that Article 6 § 1 did not apply
to proceedings in which the applicants had challenged the extension
of a nuclear power station’s licence, because they had not
“establish[ed] a direct link between the operating conditions
of the power station which were contested by them and their right to
protection of their physical integrity, as they [had] failed to show
that the operation of [the] power station exposed them personally to
a danger that was not only serious but also specific and, above all,
imminent” (see Balmer Schafroth and Others v.
Switzerland, 26 August 1997, § 40, Reports 1997 IV).
Later, in Athanassoglou and Others v. Switzerland ([GC], no.
27644/95, §§ 46 55, ECHR 2000 IV), the Court
fully confirmed that position. Much like the applicants in those two
cases, in his application to the Supreme Administrative Court the
applicant in the instant case did not point to concrete health
hazards, but complained about the reclamation scheme’s
hypothetical consequences for the environment and human health (see
paragraphs 22 and 23 above). It must therefore be concluded that the
connection between the proceedings – whose sole object was the
lawfulness of the decision to grant a licence allowing ET Marin
Blagiev to carry and lay sludge – and the right invoked by the
applicant was too tenuous.
- It
is true that in an earlier case, Zander, where the applicants
had sought to challenge a licence allowing a company to lay waste in
a dump adjacent to their property, the Court found Article 6 § 1
applicable, saying that the outcome of the proceedings was decisive
for the applicants’ entitlement to protection against pollution
(see Zander v. Sweden, 25 November 1993, §§ 24
and 25, Series A no. 279 B). However, that conclusion was
clearly influenced by the fact that the dump was indisputably
polluting the water in the applicants’ well, which was their
only source of drinking water. The adverse effects on their health
were thus, unlike the situation in the present case, immediate and
certain. Similarly, in Taşkın and Others the Court
found that the applicants’ right to protection of their
physical integrity was directly at stake in the proceedings before
the Turkish Supreme Administrative Court, because the scale of the
risk had been established by that court (see Taşkın and
Others, cited above, § 133, as well as Öçkan
and Others, cited above, § 52). In Okyay and Others,
the Court made similar findings, and regarded the fact that the
domestic courts had ruled in the applicants’ favour on the
merits as decisive (see Okyay and Others v. Turkey, no.
36220/97, §§ 65 68, ECHR 2005 VII). The position
in the present case, in which the Supreme Administrative Court
discontinued the proceedings and did not make any findings about the
reclamation scheme’s effect on the applicant’s health or
well being (see paragraphs 28 and 30 above), is different.
- Lastly,
the Court cannot subscribe to the applicant’s argument that
Article 6 § 1 applied to the proceedings before the Supreme
Administrative Court because, if that court had decided to annul the
licence, the applicant would have been able to apply, in separate
proceedings, for compensation under section 1 of the State
Responsibility for Damage Act (see paragraph 54 above). There is no
question that if the applicant had brought such compensation
proceedings Article 6 § 1 would have applied to them (see, among
other authorities, Editions Périscope v. France, 26
March 1992, §§ 37 and 40, Series A no. 234 B).
However, that does not mean that it is applicable, on that ground
alone, to earlier proceedings whose outcome is capable of supplying
the cause of action for such compensation proceedings. Proceedings do
not become “civil” merely because they have economic
implications, and the application for judicial review lodged by the
applicant pursued the sole aim of having the licence annulled (see,
mutatis mutandis, SARL du Parc d’activités de
Blotzheim and SCI Haselaecker v. France (dec.), no.
48897/99, ECHR 2003 III).
- In
sum, the Court finds that the outcome of the proceedings before the
Supreme Administrative Court was decisive for the question whether
the licence granted to ET Marin Blagiev was valid, but not for the
“determination” of any “civil right” which
Bulgarian law conferred on the applicant as a private individual.
- It
follows that Article 6 § 1 is not applicable in the present case
and has therefore not been violated.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he had not had an effective remedy for his
complaints under Article 8 of the Convention and Article 1 of
Protocol No. 1. He relied on Article 13 of the Convention, which
provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
- The
Government argued that there was no indication that attempts had been
made to challenge the decision of the Interdepartmental Expert
Council of the Ministry of Industry to approve the scheme proposed by
ET Marin Blagiev. They also argued that the actions under sections 29
and 30 of the 1991 Environmental Protection Act, superseded by
sections 170 and 171 of the 2002 Environmental Protection Act, were
effective remedies against anyone – private persons or public
authorities – who caused pollution or degradation of the
environment.
- The
applicant submitted that the above mentioned Council’s
decision had not been made public. It had therefore not been possible
to challenge it. Moreover, the instruments on the basis of which that
body functioned did not make clear provision for its decisions to be
open to legal challenges by those concerned. He had tried another
remedy, which had been just as likely to provide him with adequate
redress: an application for judicial review of the waste treatment
licence. As regards claims under the Environmental Protection Acts,
there were no examples of one having been used successfully to date.
In addition, such actions presupposed existing harm, whereas he
should not have been made to wait for the emergence of such harm.
Finally, an action under the SRDA would have been admissible only if
the administrative decision alleged to have caused damage had been
overturned in prior proceedings, which was not the case.
B. The Court’s assessment
- Article 13 guarantees the availability of a remedy at
national level to enforce – and hence to allege
non compliance with – the substance of the Convention
rights in whatever form they may happen to be secured in domestic
law. However, that Article cannot reasonably be interpreted as
requiring such remedy in respect of any supposed grievance under the
Convention that a person may have, no matter how unmeritorious; the
grievance must be an arguable one in terms of the Convention (see
Boyle and Rice v. the United Kingdom, 27 April 1988, §
52, Series A no. 131). The Court has abstained from giving an
abstract definition of the notion of arguability, preferring in each
case to determine, in the light of the particular facts and the
nature of the legal issues raised, whether a claim forming the basis
of a complaint under Article 13 was arguable. It has said that the
admissibility decision in the case is not binding in that respect,
but may provide useful pointers (ibid., §§ 54 and 55, as
well as Plattform “Ärzte für das Leben” v.
Austria, 21 June 1988, § 27, Series A no. 139).
- As
a rule, the fact that a complaint has been declared admissible is a
strong indication that it can be regarded as arguable for the
purposes of Article 13, even if the Court ultimately finds no breach
of the substantive provision in issue (see, for example, Hatton
and Others, cited above, § 137). However, as pointed out
above, the determination whether a claim is arguable does not depend
so much on the case’s procedural posture as on the particular
facts and the nature of the legal issues raised. Unlike Hatton and
Others, in the present case the Court, having regard to the
particular circumstances and the available evidence, was not
persuaded that the impugned reclamation scheme had had a sufficiently
direct impact on the applicant’s private sphere to even trigger
the application of Article 8 (see paragraphs 76 79 above).
Likewise, the Court found no breach of Article 1 of Protocol No. 1 on
the basis that there was no evidence that the reclamation scheme had
had any effect on the applicant’s possessions (see paragraphs 83
and 84 above). The position here is therefore akin to that in cases
such as Halford v. the United Kingdom (25 June 1997, §§
69 and 70, Reports 1997 III) and Russian Conservative
Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and
55638/00, § 90, ECHR 2007 I), in which the Court, having
regard to the particular circumstances, departed from its usual
approach and found that complaints which had been declared admissible
were nonetheless not arguable in terms of Article 13.
- No
arguable claim that Article 8 of the Convention and Article 1 of
Protocol No. 1 were violated has thus been made out; Article 13
therefore does not apply.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 8 of the Convention;
- Holds that there has been no violation of
Article 1 of Protocol No. 1;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
- Holds that there has been no violation of
Article 13 of the Convention.
Done in English, and notified in writing on 2 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Section Registrar President
