Case Note: The European Court of Human Rights, Environmental damage & the applicability of article 8 of the European Convention on Human Rights & Fundamental Freedoms

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INTRODUCTION

The case under review is one of many in which the European Court of Human Rights (the 'ECtHR' or the 'Court') has examined environmental issues. Judicial activity of the Court in this area has been long established and has resulted in numerous publications.

Therefore only a very brief introduction will be given. It may be said that a steadily growing jurisprudence of the ECtHR in the area of environmental protection has given certain grounds for drawing some general conclusions. The inconclusive, even piecemeal approach adopted in its first cases has become more consistent and coherent. There is already a considerable body of important cases in which the Court developed its jurisprudential approach to environmental protection and further clarified the role of Article 8 of the European Convention on Human Rights and Fundamental Freedoms (the ECHR) as the most common legal ground for lodging a complaint in cases with an environmental element. Among such cases may be mentioned first of all Hatton,2 Fadeyeva,3 Budayeva4 and Oneryildtz-5 In these cases, the Court further developed the fundamental principle of a 'balancing of interests' between an individual and the community which is at the core of the adjudication of cases based on Article 8, relied on by the Court for the first time in Powell v Rayner.

In the 2003 Hatton case, the Grand Chamber oi the Court stated in no uncertain terms that there is no explicit right under the Convention to a clean and quiet environment and that only when the individual is directly and seriously affected by noise or other pollution may an issue arise under Article 8 of the Convention. The Chamber also reiterated the essentially subsidiary role of the Court in such cases. It was stressed several times by the Court that national authorities enjoy direct democratic legitimacy and are better placed than an international tribunal to assess local needs and conditions. In matters of general policy, which may involve different opinions within a democratic society, the role of domestic policy-makers should be accorded special weight. The Court applied the 'balancing of interests' test and reiterated that in cases such as Hatton, states enjoy a greater margin of appreciation in the determination of steps to ensure compliance with the Convention and the implementation of the positive duty deriving from Article 8(2). In Fadeyeva, the Court observed that there is no right to nature preservation in the catalogue of rights guaranteed by the ECHR. Thus, to raise an issue under Article 8, specific conditions must be fulfilled: (i) the interference must directly affect the applicant's house, family or private life; and (ii) the adverse effects of environmental pollution must attain a certain minimum level to fall within the scope of Article 8. The Court further clarified that the assessment of that minimum level is not general but relative, and depends on all the circumstances of the case (such as the intensity and duration of nuisance, its physical and mental effects). The general environmental context should also be taken into account (e.g. there would not be a claim under Article 8 if the harm complained of was negligible compared to the environmental hazards of life in a modern city).

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