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A.Substantive Obligations on the State

48.The Court has set out various positive obligations78 related to protecting rights under articles 2 and 8 from environmental harm. In the Öneryildiz v. Turkey case, the Court “held that the positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction, for the purposes of Article 2” to situations where potential risks to life are inherent to the activity in question.

49.In the Lopez Ostra v. Spain case, the Court imposed that the State has to take reasonable and appropriate measures to secure the applicant’s rights” in relation to article 8.

50.In the Budayeva and others v. Russia case, the Court confirmed the linkage between the jurisprudence of article 2 (right to life) and article 8 (right to private life and home), as established first in Öneryildiz v. Turkey case79, stating that

“it has been recognized that in the context of dangerous activities the scope of the positive obligations under Article 2 of the Convention largely overlaps with those under Article 8 (…). Consequently, the principles developed in the Court's case-law relating to planning and environmental matters affecting private life and home may also be relied on for the protection of the right to life”.80

51.The measures imposed on the State take varying forms, and are exposed throughout the case law of the court.

52.In the L.C.B. v. United Kingdom81 “in the event that there was information available to the authorities which should have given them cause to fear that the applicant’s father had been exposed to radiation”, the Court admitted that the public authorities “could reasonably have been expected, during the period in question, to provide advice to her parents and to monitor her health”.82

53.The likelihood of the risk to health determines to which extent the State needs to act proprio motu. In this case, the Court considered that the State could have been “[required of its own motion to take these steps in relation to the applicant] if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health”.83

54.In the Öneryildiz v. Turkey case, the Court takes into consideration the level of seriousness of dangerous activities, and explains that the positive obligations:

[…] must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous, such as the operation of waste-collection sites. […] The harmfulness of the phenomena inherent in the activity in question, the contingency of the risk to which the applicant was exposed by reason of any life-endangering circumstances, the status of those involved in bringing about such circumstances, and whether the acts or omissions attributable to them were deliberate are merely factors among others that must be taken into account in the examination of the merits of a particular case, with a view to determining the responsibility the State may bear under Article 2.84

55.In the Budayeva and others v. Russia case, the Court determined that the obligations on States that stem articles 2 and 8 relating to the environment depend on factors like the capacity to anticipate infringements to the right to life, through the establishment of proper legislative and administrative framework.85 In this case, a series of foreseeable mudslides negatively affected the applicants by sustained injuries or death of relatives and of the loss of their homes. Despite continuous awareness of the “foreseeable risk to the lives of its residents”, “serious administrative flaws […] prevented the implementation of [land-planning and emergency relief] policies”, and “there had been no justification for the authorities’ omissions in implementation of [those] policies”. The authorities had a positive obligation to “establish a legislative and administrative framework with which to provide effective deterrence against a threat to the right to life, in violation of Article 2”.86

56.In the Öneryildiz v. Turkey case, the Court analysed the link between industrial activities and the State’s obligations. It found that the State has the duty to adopt preventive measures to effectively regulate any dangerous activity, whether public or not.87 This has been confirmed in the Tatar v. Romania case, where the public authorities failed to adopt sufficient measures to protect the right to private life and home of people living next to a gold mine operating even after a severe industrial accident.88 Consequently, the State was under a positive obligation to adopt reasonable and sufficient measures to protect the rights of the interested parties to respect for their private lives and their home and, more generally, a healthy, protected environment. In this case, the Court emphasized the importance of the precautionary principle, whose purpose was to secure a high level of protection for the health and safety of consumers and the environment in all the activities of the Community.89 In the Fadeyeva v. Russia case, the lack of regulation of the private sector90 entailed equally the responsibility of the State. In this case, the State failed to enact and to enforce effective regulations to the industrial activities (steel plant) close to the applicant’s home, and thus violated article 8.

57.The nature of these obligations includes that the State must adopt legislation in order to limit or stop the infringements to environment that would otherwise endanger the right to a home and the right to life.91 In the Lopez Ostra v. Spain case, the Court considered that the public authorities failed to regulate effectively the activity of the waste-treatment plant and admitted a breach of Article 8 “despite the margin of appreciation left to the respondent State”.92 In the Deés v. Hungary case, the Court found that the State did not regulate sufficiently the car traffic over a substantial lapse of time, which led to the infringement of the right to private life and home of the applicant.93 Finally, the Court underlined in the Moreno Gomez v. Spain case that “regulations to protect guaranteed rights serve little purpose if they are not duly enforced”, and thus public authorities must make sure that adopted measures are implemented so as to guarantee rights protection.94

1.Article 1 of Protocol no. 1 of the Convention

58.The Court protects the right to property under Article 1 of Protocol no. 1 as the right to protection of one's possessions that needs to be “practical and effective”. Member States are also under positive obligations to take measures as to ensure the effective protection of this right. In the environmental context, this obligation has raised issues mainly in respect of dangerous activities and to a lesser extent natural disasters.95 Similar to the other rights, the applicant has to prove the causal link between the State's actions and the effective enjoyment of his possessions.96 The right is not absolute and thus State's authorities enjoy also a margin of appreciation and are entitled to restrict the use of property if matters of general interest require it.97

59.For instance, in Budayeva and others v. Russia case, in the light “the damage in its entirety could not be unequivocally attributed to State negligence, and the alleged negligence was no more than an aggravating factor contributing to the damage caused by natural forces, the Court considered “the positive obligation on the State to protect private property from natural disaster cannot be construed as binding the State to compensate the full market value of destroyed property”.98

60.Any deprivation of one's property should respect the proportionality test: any decision of public authorities must be justified as being based on the “law”, carried out in the “public interest” and a fair balance must be struck between the individual's interest and the public interest.99 Moreover, the Court established strict criteria in assessing the fulfillment of State's obligations: when public authorities plan dangerous activities, which involve risks to health, it should be established an effective and accessible procedure to enable individuals to get proper information.100

61.The ECrtHR can assess whether adequate compensation is paid to individuals concerned. In cases relating to environmental conservation, the Court has held that the community's general interest is prominent and confers on the State a margin of appreciation that is greater than when exclusively civil rights are at stake.101

62.Member States should take positive measures for individual to ensure effective enjoyment of one's possessions. The obligations of the State in this context are not as extensive as the obligations arisen under Article 2 of the ECHR, such as the obligation to protect lives.

1.Limits of the rights’ protection under the Convention

63.An “interference by a public authority” might be justifiable for the State if “the competing interests of the individual and of the community as a whole” have been taken into consideration.102 The Court explains that it must strike a fair balance between the general interest of the community and the individual interest when evaluating particular actions that allegedly harm individuals. “In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention”.103

64.In the Lopez Ostra v. Spain case, the Court considered “that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being - that of having a waste-treatment plant - and the applicant’s effective enjoyment of her right to respect for her home and her private and family life”.104 In the Hatton and others v. United Kingdom case, the Court accepted the “fair balance” struck by the authorities between the economic interests of the operation of Heathrow airport by night and the impact on the right to private life and home of the applicants suffering from the noise.105 In the Bacila v. Rumania case, the Court stated that the economic interest to maintain opened the plant in order to guarantee employment had no prevalence on the individual right to enjoy a healthy and sustainable environment.106

65.The Court sets limits to its ability to adjudicate on national actions.

66.The Court has highlighted the subsidiarity role of the Convention as regard to States action. In the Hatton v. United Kingdom, the Court explains that, “[t]he national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions”.107

67.The Court has also held that it will compare the applicant’s situation to other people in the same situation.108

68.The Court has held that it will grant deference to States in matters of environmental policy.109 In Hatton v. United Kingdom, the Court states that:

Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analyzed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.110

69.Thus, the Court considers that sometimes environment interests will need to be balanced against other societal interests.111

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