EUROPEAN COURT OF HUMAN RIGHTS
FORMER FIRST SECTION
CASE OF FADEYEVA v. RUSSIA
(Application No. 55723/00)
JUDGMENT <*>
(Strasbourg, 9.VI.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Fadeyeva v. Russia,
The European Court of Human Rights (Former First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs F. Tulkens,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 1 July 2004 and on 19 May
2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 55723/00) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by a Russian national, Ms Nadezhda
Mikhaylovna Fadeyeva ("the applicant"), on 11 December 1999.
2. The applicant, who was granted legal aid in the proceedings
before the Court, was initially represented by Mr Yuriy Vanzha,
and subsequently by Mr Kirill Koroteyev and Ms Dina Vedernikova,
lawyers with the Russian NGO "Memorial" and Mr Bill Bowring and Mr
Phillip Leach, solicitors in England and Wales. The Russian
Government ("the Government") were represented by Mr Pavel Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that the operation of
a steel-plant in close proximity to her home endangered her health
and well-being. She relied on Article 8 of the Convention.
4. The application was allocated to the Second Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 з 1). The case was assigned to the newly
composed First Section (Rule 52 з 1).
6. By a decision of 16 October 2003 the Court declared the
application partly admissible and decided to obtain additional
information and observations from the parties and hold a hearing
on the merits of the case.
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). A hearing took place in public in the
Human Rights Building, Strasbourg, on 1 July 2004 (Rule 59 з 3).
There appeared before the Court:
(a) for the Government
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights,
Mr Y. Berestnev, Counsel,
Ms T. Gournyak,
Mr M. Stavrovskiy,
Mr M. Vinogradov, Advisers;
(b) for the applicant
Mr K. Koroteyev,
Ms D. Vedernikova,
Mr B. Bowring,
Mr P. Leach Counsel.
8. The Court heard addresses by Mr Laptev, Mr Bowring, Mr Leach
and Mr Koroteyev.
9. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). The present case remained with the former
composition of the First Section.
THE FACTS
I. The circumstances of the case
A. Background
10. The applicant was born in 1949 and lives in the town of
Cherepovets, an important steel-producing centre situated about
300 km north-east of Moscow. In 1982 her family moved to a flat
situated at 1 Zhukov Street, about 450 metres from the territory
of the "Severstal" steel-plant ("the plant"). This flat was
provided by the plant to the applicant's husband, Mr Nikolay
Fadeyev, under a tenancy agreement.
11. The Severstal steel plant was built in Soviet times and
owned by the Ministry of Black Metallurgy of the Russian Soviet
Federative Socialist Republic (RSFSR). The plant was and remains
the largest iron smelter in Russia and the main employer of
approximately 60,000 people. In order to delimit the areas in
which pollution caused by steel production could be excessive, the
authorities established a buffer zone around the Severstal
premises - "the sanitary security zone". This zone was first
delimited in 1965. It covered a 5,000 metre-wide area around the
territory of the plant. Although this zone was, in theory,
supposed to separate the plant from the town's residential areas,
in practice thousands of people (including the applicant's family)
lived there. The apartment buildings in the zone belonged to the
plant and were designated mainly for its workers, who occupied the
flats as life-long tenants (see "Relevant Domestic Law and
Practice" below). A Decree of the Council of Ministers of the
RSFSR, dated 10 September 1974, obliged the Ministry of Black
Metallurgy to resettle the inhabitants of the sanitary security
zone who lived in districts Nos. 213 and 214 by 1977. However,
this has not been done.
12. In 1990 the Government of the RSFSR adopted a programme "On
Improving the Environmental Situation in Cherepovets". The
programme stated that "the concentration of toxic substances in
the town's air exceeds the acceptable norms many times" and that
the morbidity rate of Cherepovets residents was higher than
average. It was noted that many people still lived within the
steel-plant's sanitary security zone. Under the programme, the
steel-plant was required to reduce its toxic emissions to safe
levels by 1998. The programme listed certain specific
technological measures to attain this goal. The steel-plant was
also ordered to finance the construction of 20,000 square metres
of residential property every year for the resettlement of people
living within its sanitary security zone.
13. By municipal decree No. 30 of 18 November 1992 the
boundaries of the sanitary security zone around the plant were
redefined. The width of the zone was reduced to 1,000 metres.
14. In 1993 the steel-plant was privatized and acquired by
Severstal PLC. In the course of privatisation the apartment
buildings owned by the steel-plant and situated within the zone
were transferred to the municipality.
15. On 3 October 1996 the Government of the Russian Federation
adopted Decree No. 1161 "On the Special Federal Programme
"Improvement of the Environmental Situation and Public Health in
Cherepovets" for 1997 - 2010" (in 2002 this programme was replaced
by the Special Federal Programme "Russia's Ecology and Natural
Resources"). Implementation of the 1996 programme was funded by
the World Bank. The second paragraph of this programme stated as
follows:
"The concentration of certain polluting substances in the
town's residential areas is 20 - 50 times higher than the maximum
permissible limits (MPLs) <*>... The biggest "contributor" to
atmospheric pollution is Severstal PLC, which is responsible for
96 per cent of all emissions. The highest level of air pollution
is registered in the residential districts immediately adjacent to
Severstal's industrial territory. The principal cause of the
emission of toxic substances into the atmosphere is the operation
of archaic and ecologically dangerous technologies and equipment
in metallurgic and other industries, as well as the low efficiency
of gas-cleaning systems. The situation is aggravated by an almost
complete overlap of industrial and residential areas of the city,
in the absence of their separation by sanitary security zones."
--------------------------------
<*> MPLs are the safe levels of various polluting substances,
as established by Russian legislation ("предельно допустимые
концентрации", ПДК).
The Decree further stated that "the environmental situation in
the city has resulted in a continuing deterioration in public
health". In particular, it stated that over the period 1991 - 1995
the number of children with respiratory diseases increased from
345 to 945 cases per thousand, those with blood and haematogenic
diseases from 3.4 to 11 cases per thousand, and those with skin
diseases from 33.3 to 101.1 cases per thousand. The Decree also
noted that the high level of atmospheric pollution accounted for
the increase in respiratory and blood diseases among the city's
adult population and the increased number of deaths from cancer.
16. Most of the measures proposed in the programme concerned
the functioning of the Severstal steel-plant. The Decree also
enumerated a number of measures concerning the city as a whole:
these included the resettlement of 18,900 people from Severstal's
sanitary security zone. It transpires from the programme that the
State was supposed to be the main funding source for such
resettlement. However, it seems that in subsequent years Severstal
PLC continued to pay for the resettlement of the zone's
inhabitants, at least as regards districts Nos. 213 and 214. Thus,
according to Decree No. 1260 by the Mayor of Cherepovets, dated 4
April 2004, in 2004 the residents of the apartment buildings
situated on Gagarin Street were resettled to another district of
the city. According to a letter of 3 June 2004 from the Mayor of
Cherepovets, Severstal funded approximately one third of the cost
of resettlement.
17. On 9 August 2000 the Chief Sanitary Inspector for
Cherepovets established that the width of the sanitary security
zone should be 1,000 metres from the main sources of industrial
pollution. However, no specific boundaries were identified for the
zone. In 2002 the municipality challenged its own decree No. 30 of
1992, which had established the zone's boundaries (see з 13). On
13 June 2002 the Cherepovets Town Court declared decree No. 30
invalid on the ground that it was ultra vires. The Town Court
ruled that at the relevant time the municipality had not had
jurisdiction to define the width of the zone. The boundaries of
the sanitary security zone around the Severstal facilities
currently remain undefined.
18. In 2001 implementation of the 1996 Government Programme was
discontinued and the measures proposed in it were included in the
corresponding section of the sub-programme "Regulation of
Environmental Quality" in the Special Federal Programme "Russia's
Ecology and Natural Resources (2002 - 2010)".
19. According to a letter from the Mayor of Cherepovets dated 3
June 2004, in 1999 the plant was responsible for more than 95 per
cent of industrial emissions into the town's air. According to the
State Report on the Environment for 1999, the Severstal plant in
Cherepovets was the largest contributor to air pollution of all
metallurgical plants in Russia.
B. The applicant's attempt to be resettled outside the zone
1. First set of court proceedings
20. In 1995 the applicant, with her family and various other
residents of the apartment block where she lived, brought a court
action seeking resettlement outside the zone. The applicant
claimed that the concentration of toxic elements and the noise
levels in the sanitary security zone exceeded the maximum
permissible limits established by Russian legislation. The
applicant alleged that the environmental situation in the zone was
unfavourable for humans, and that living there was potentially
dangerous to health and life. In support of her claims she relied
mainly on the city planning regulations of 1989 (see "Relevant
Domestic Law and Practice" below). According to the applicant,
these regulations imposed an obligation on the plant's owners to
implement various ecological measures in the zone, including the
resettlement of residents to an ecologically safe area. The
applicant claimed that Severstal had failed to fulfil this
obligation.
21. On 17 April 1996 the Cherepovets Town Court examined the
applicant's action. The court recognized that the building at 1
Zhukov Street, where the plaintiff lived, was located within
Severstal's sanitary security zone. The court noted that, prior to
1993, the applicant's flat had been owned by the Ministry of Black
Metallurgy, which had also owned the plant. Following
privatisation of the plant in 1993 it had become a privately-owned
entity and the applicant's flat had become the property of the
local authorities. Referring to the Ministerial Decree of 1974,
the court found that the authorities ought to have resettled all
of the zone's residents but that they had failed to do so. In view
of those findings, the court accepted the applicant's claim in
principle, stating that she had the right in domestic law to be
resettled. However, no specific order to resettle the applicant
was given by the court in the operative part of its judgment.
Instead, the court stated that the local authorities must place
her on a "priority waiting list" to obtain new local authority
housing (see "Relevant Domestic Law and Practice" below). The
court also stated that the applicant's resettlement was
conditional on the availability of funds.
22. The applicant appealed, claiming that the obligation to
resettle was on the plant rather than on the municipality. She
also maintained that the court had distorted the object of her
claim: whereas she had been seeking immediate resettlement, the
court had ordered that she be placed on a waiting list. In the
applicant's view, this decision was unfeasible because its
enforcement depended on too many conditions (the existence of a
resettlement order, the number of people on the waiting list, the
availability of funds for resettlement etc).
23. On 7 August 1996 the Vologda Regional Court upheld in
principle the decision of 17 April 1996, and confirmed that the
applicant's house was located within the Severstal steel-plant's
sanitary security zone. The appeal court further found that the
applicant's resettlement in an ecologically safe area was to be
carried out by the municipality. Finally, the appeal court
excluded from the operative part of the judgment the reference to
the availability of funds as a pre-condition for the applicant's
resettlement.
24. The first-instance court issued an execution warrant and
transmitted it to a bailiff. However, the decision remained
unexecuted for a certain period of time. In a letter of 11
December 1996 the Deputy Mayor of Cherepovets explained that
enforcement of the judgment was blocked, since there were no
regulations establishing the procedure for the resettlement of
residents outside the zone.
25. On 10 February 1997 the bailiff discontinued the
enforcement proceedings on the ground that there was no "priority
waiting list" for new housing for residents of the sanitary
security zone.
2. Second set of court proceedings
26. In 1999 the applicant brought a fresh action against the
municipality, seeking immediate execution of the judgment of 17
April 1996. The applicant claimed, inter alia, that systematic
toxic emissions and noise from Severstal PLC's facilities violated
her basic right to respect for her private life and home, as
guaranteed by the Russian Constitution and the European Convention
of Human Rights. She asked to be provided with a flat in an
ecologically safe area or with the means to purchase a new flat.
27. On 27 August 1999 the municipality placed the applicant on
the general waiting list for new housing. She was number 6820 on
that list (see "Relevant Domestic Law and Practice" below).
28. On 31 August 1999 the Cherepovets Town Court dismissed the
applicant's action. The court noted that there was no priority
waiting list for the resettlement of residents of sanitary
security zones, and no council housing had been allocated for that
purpose. The court concluded that the applicant had been duly
placed on the general waiting list. The court held that the
judgment of 17 April 1996 had been executed and that there was no
need to take any further measures. That judgment was upheld by the
Vologda Regional Court on 17 November 1999.
C. Pollution levels at the applicant's place of residence
29. The State authorities conduct regular inspections of air
quality in the city. Pollution is monitored by four stationary
posts of the State Agency for Hydrometeorology, including one
(post No. 1) situated at 4 Zhukov Street, 300 metres from the
applicant's house. The emission levels of thirteen hazardous
substances are monitored by the authorities (nitrogen dioxide,
ammonia, carbonic oxide, dust, hydrogen sulphide, carbon
disulphide, phenol, formaldehyde; sulphur dioxide, nitric oxide,
manganese, benzopyrene, lead). Four stationary posts of the State
Agency for Hydrometeorology monitor emissions of only the first
eight of the above substances; additionally, post No. 1 monitors
emissions of sulphur dioxide, nitric oxide, lead, benzopyrene,
manganese; post No. 2 monitors emission of benzopyrene, manganese
and sulphur dioxide. In addition, the State Agency for Sanitary
Control conducts regular air tests at distances of one, two, five,
seven, and nineteen kilometres from the steel-plant. Finally,
Severstal PLC has its own monitoring system, which evaluates
emissions from every separate industrial facility at the plant.
30. It appears that the primary data on air pollution, whether
collected by the State monitoring posts or Severstal, are not
publicly available. Both parties produced a number of official
documents containing generalised information on industrial
pollution in the town. These documents, insofar as relevant, are
summarised in the following paragraphs and in the Appendix to the
present judgment.
1. Information referred to by the applicant
31. The applicant claimed that the concentration of certain
toxic substances in the air near her home constantly exceeded and
continues to exceed the safe levels established by Russian
legislation. Thus, in the period 1990 - 1999 the average annual
concentration of dust in the air in the Severstal plant's sanitary
security zone was 1.6 to 1.9 times higher than the MPLs, the
concentration of carbon disulphide was 1.4 to 4 times higher and
the concentration of formaldehyde was 2 to 4.7 times higher (data
reported by the Cherepovets Centre for Sanitary Control). The
Cherepovets State Agency for Hydrometeorology reported that the
level of atmospheric pollution within the zone during the period
1997 - 2001 was rated as "high" or "very high". The State Agency
for Hydrometeorology confirmed that an excessive concentration of
other hazardous substances, such as hydrogen sulphide and ammonia,
was also registered during this period.
32. As regards the year 2002, the applicant submitted a report
prepared by the Northern Regional Office of the State Agency for
Hydrometeorology and Environmental Monitoring. This report stated,
inter alia, that in 2002 the annual average concentration of dust
near the applicant's house was 1.9 times higher than the MPL, and
that the short-term peak concentration of dust was twice as high
as the MPL. In July an over-concentration of carbon oxide was
registered near the applicant's house: the short-term peak
concentration of this element was seven times higher than the MPL.
The agency also reported that the average annual concentration of
formaldehyde in the town was three times higher than the MPL. The
average annual concentration of carbon disulphide near the
applicant's house was 2.9 times higher than the MPL. The short-
term peak concentration of phenols was 4 times higher than the
MPL, and that of hydrogen sulphide was 4.5 times higher.
33. The applicant also submitted information published on the
website of the Northern Department of the State Agency for
Hydrometeorology. This source reported that in April 2004 the
concentration of formaldehyde in Cherepovets exceeded the norms.
In March 2004 the monthly average concentration of formaldehyde
was 5 times higher than the MPL.
34. The applicant further produced a study paper entitled "On
the Economic Effectiveness of Public Health Measures at Severstal
PLC", drawn up by the Centre for the Preparation and
Implementation of International Projects on Technical Assistance,
a public body established in 1993 under the supervision of the
then State Committee for Environmental Protection. The study was
commissioned by the Cherepovets municipality in order to obtain an
analysis of the cost-effectiveness of various measures suggested
in the 1996 Federal Programme. The expert team had access to data
on 58 polluting elements contained in industrial emissions from
the Severstal plant. The experts singled out the thirteen most
toxic elements and, using a special dispersion dissemination
model, established how these elements affected the morbidity rate
in the city. The experts then calculated how the implementation of
one or another measure from the Federal Programme would reduce the
concentration of these pollutants, and, consequently, how the
morbidity rate would decrease.
35. In April 2004 the applicant informed the Court that further
information on atmospheric pollution could be requested from the
respondent Government. In particular, the applicant sought to
obtain: (a) baseline emissions data for the Severstal plant,
including data on the physical parameters of the stacks and the
volume of chemicals emitted annually by each process at the
Severstal facility; (b) dispersion modelling data for estimating
the ambient air concentration of 13 toxic pollutants at each of
the x and y coordinate locations on the Cherepovets city grid,
based on the above emissions data. The applicant indicated that
this information might be obtained from the Centre for the
Preparation and Implementation of International Projects on
Technical Assistance (see з 34). The applicant also wished to
obtain data on the ambient air quality in Cherepovets, obtained in
1998 - 1999 as part of the Project on Environmental Management in
the Russian Federation, implemented with financial support from
the World Bank. In May 2004 the Court invited the respondent
Government to submit the information sought by the applicant.
2. Information referred to by the respondent Government
36. In June 2004 the Government presented a report entitled "On
the Environmental Situation in Cherepovets and its Correlation
with the Activity of [Severstal PLC] for the period until 2004",
prepared by the Cherepovets municipality.
37. According to the report, the environmental situation in
Cherepovets has improved in recent years: thus, gross emissions of
pollutants in the town were reduced from 370.5 thousand tons in
1999 to 346.7 thousand tons in 2003 (by 6.4 per cent). Overall
emissions from the Severstal PLC facilities were reduced during
this period from 355.3 to 333.2 thousand tons (i.e. by 5.7 per
cent), and the proportion of unsatisfactory testing of atmospheric
air at stationary posts fell from 32.7 per cent to 26 per cent in
2003.
38. The report further stated that, according to data received
from four stationary posts of the State Agency for
Hydrometeorology, a substantial decrease in the concentration of
certain hazardous substances was recorded in 1999 - 2003:
3 3
(i) dust - from 0.2 mg/m (1.28 of MPL) to 0.11 mg/m (0.66 of
MPL);
3
(ii) hydrogen sulphide - from 0.016 mg/m (3.2 of MPL) to
3
0.006 mg/m (1.2 of MPL);
3 3
(iii) phenols - from 0.018 mg/m (0.6 of MPL) to 0.014 mg/m
(0.47 of MPL).
39. According to the report, pollution in the vicinity of the
applicant's house was not necessarily higher than in other
districts of the town. Thus, the concentration of nitrogen dioxide
3 3
at post No. 1 was 0,025 mg/m in 2003, whereas it was 0,034 mg/m
3 3
at post No. 2, 0.025 mg/m at post No. 3 and 0.029 mg/m at post
No. 4. The average daily concentration of ammonia registered at
3 3
post No. 1 was 0.016 mg/m , at post No. 2 - 0.017 mg/m , at post
3
No. 3 - 0.005 mg/m , at post No. 4 - 0.0082 mg. The phenol
3
level registered at post No. 1 was 0.014 mg/m , at post
3 3
No. 2 - 0.015 mg/m , at post No. 4 - 0.0012 mg/m . Finally, the
3
concentration of formaldehyde at post No. 1 was 0.019 mg/m ,
3 3
whereas it was 0.012 mg/m at post No. 2, 0.018 mg/m at post
3
No. 3 and 0.02 mg/m at post No. 4.
40. The report stated that the average annual concentrations of
nitric oxide, lead, manganese, nitrogen dioxide, ammonia, hydrogen
sulphide, phenol, carbon oxide, and carbon disulphide did not
exceed the MPL. Excessive annual concentrations were recorded only
with respect to dust, formaldehyde and benzopyrene. Over the
period 1999 - 2003 a certain improvement in the quality of
atmospheric air was registered under the steel-plant's "pollution
plume" in the residential area of the town. Thus, the proportion
of unsatisfactory tests was 13.2 per cent in 1999, whereas in 2003
it had fallen to 12.7 per cent. The report emphasised that the
proportion of unsatisfactory air tests was decreasing: from 18.4
per cent to 14.2 per cent, as measured at a distance of 1000 m
from the plant; and from 14.05 per cent to 12.8 per cent at a
distance of 3000 m. The trend was also positive in respect of
certain specific ingredients: within 1000 m the proportion of
unsatisfactory tests for nitrogen dioxide decreased from 50 per
cent in 1999 to 47 per cent in 2003; for hydrogen sulphide - from
75 per cent in 1999 to 20 per cent in 2003, and for to phenol -
from 52 per cent in 1999 to 38 per cent in 2003.
41. The report produced by the Government contained generalised
data on average pollution levels for 1999 - 2003, collected from
four stationary posts of the State Agency for Hydrometeorology.
The Government also produced data collected from monitoring post
No. 1, reflecting a reduction in the average annual and maximum
pollution levels compared to the situation which existed ten to
twenty years ago. The most essential data contained in these
reports is summarised in the Appendix to the present judgment.
42. The Government also produced extracts from a report by the
Chief Sanitary Inspector for the Vologda Region, which was
prepared in June 2004 for the purpose of defining new boundaries
for the sanitary security zone. According to the report, Severstal
was still responsible in 2004 for 94 - 97 per cent of overall air
pollution in the city. The report stated that the emissions from
Severstal contained 80 different pollutant substances. Despite a
significant reduction in pollution in recent years, the maximum
concentrations of "five priority pollutants" (dust containing more
than 20 per cent of silicon dioxide, ferroalloy dust, nitrogen
dioxide, naphthalene and hydrogen sulphide) still exceed safety
standards at distances of one to five kilometres from the plant.
The report further indicated that "more than 150,000 people live
in a zone where the acceptable level of risk is exceeded". The
report proposed a number of measures which should reduce the
concentration of naphthalene and ferroalloys to safe levels by
2010, and stated that the concentration of all toxic substances
originating from the Severstal facilities in the bottom layer of
the atmosphere should be below the maximum permissible limits by
2015.
43. Finally, the Government submitted that, should the Court
need the documents sought by the applicant and referred to by her
representatives as a source of primary information on air
pollution, "the authorities of the Russian Federation propose that
this document be requested from Mr Koroteyev [one of the
applicant's representatives]".
D. Effects of pollution on the applicant
44. Since 1982 Ms Fadeyeva has been supervised by the clinic at
Cherepovets Hospital No. 2. According to the Government, the
applicant's medical history in this clinic does not link the
deterioration in her health to unfavourable environmental
conditions in her place of residence.
45. In 2001 a medical team from the clinic carried out regular
medical check-ups on the staff at the applicant's place of work.
As a result of these examinations, the doctors detected
indications of an occupational illness in five workers, including
the applicant. In 2002 the diagnosis was confirmed: a medical
report drawn up by the Hospital of the North-West Scientific
Centre for Hygiene and Public Health in St Petersburg on 30 May
2002 stated that she suffered from various illnesses of the
nervous system, namely occupational progressive/motor-sensory
neuropathy of the upper extremities with paralysis of both middle
nerves at the level of the wrist channel (primary diagnosis),
osteochondrosis of the spinal vertebrae, deforming arthrosis of
the knee joints, moderate myelin sheath degeneration, chronic
gastroduodenitis, hypermetropia 1st grade (eyes) and presbyopia
(associated diagnoses). Whilst the causes of these illnesses were
not expressly indicated in the report, the doctors stated that
they would be exacerbated by "working in conditions of vibration,
toxic pollution and an unfavourable climate".
46. In 2004 the applicant submitted a report entitled "Human
Health Risk Assessment of Pollutant Levels in the Vicinity of the
Severstal Facility in Cherepovets". This report, commissioned on
behalf of the applicant, was prepared by Dr Mark Chernaik, PhD
<*>. Dr Chernaik concluded that he would expect the population
residing within the zone to suffer from above-average incidences
of odour annoyance, respiratory infections, irritation of the
nose, coughs and headaches, thyroid abnormalities, cancer of the
nose and respiratory tract, chronic irritation of the eyes, nose
and throat, and adverse impacts on neurobehavioral, neurological,
cardiovascular and reproductive functions. The report concluded as
follows:
--------------------------------
<*> Dr Chernaik possesses a Doctor of Fhilosophy (Ph.D.) degree
in biochemistry from Johns Hopkins University School of Public
Health, Baltimore, Maryland, U.S. His doctoral studies and
research focused on environmental toxicology. Since 1992 Dr
Chernaik has served as Staff Scientist for U.S. Office of the
Environmental Law Alliance Worldwide. In this capacity, he
provides requested scientific information to lawyers in more than
60 countries. He has frequently advised lawyers on human health
effects of exposure to air pollutants, including hydrogen
sulphide, hydrogen cyanide, naphthalene, formaldehyde, carbon
disulphide and particulate matter.
"The toxic pollutants found in excessive levels within the
Sanitary Security Zone in Cherepovets are all gaseous pollutants
specifically produced by iron and steel manufacturing plants (in
particular, by process units involved in metallurgical coke
production), but not usually by other industrial facilities.
It is therefore reasonable to conclude that inadequately
controlled emissions from the Severstal facility are a primary
cause of the excess incidences of the above-mentioned adverse
health conditions of persons residing within the Sanitary Security
Zone in Cherepovets."
47. The applicant also submitted an information note from the
Environmental Department of the Cherepovets municipality, which
contained recommendations to Cherepovets residents on how to act
in circumstances of "unfavourable weather conditions", namely when
the wind carries emissions from the Severstal plant toward the
city. The note recommends that people do not leave their homes and
that they restrict physical activity. It also contains dietary
suggestions. The primary reason for these restrictive
recommendations is emissions from the Severstal plant. The
applicant also referred to a letter dated 20 September 2001 from
the Cherepovets Centre for Sanitary Control, stating that when
such "unfavourable weather conditions" occur, admissions of
children to local health clinics increase by 1.3.
II. Relevant domestic law and practice
A. Environmental standards
48. Article 42 of the Constitution of the Russian Federation
reads as follows:
"Everyone has the right to a favourable environment, to
reliable information about its state, and to compensation for
damage caused to his health or property by ecological offences"
49. Pursuant to the Federal Law of 30 March 1999 on Sanitary
Safety (О санитарно-эпидемологическом благополучии населения), the
Federal Sanitary Service establishes State standards for
protecting public health from environmental nuisances. In
particular, these standards are applied in assessing air quality
in cities: atmospheric pollution is assessed in comparison to the
maximum permissible limits (MPLs), a unit which defines the
concentration of various toxic substances in the air. It follows
from Regulation 2.1 of the Sanitary Regulations of 17 May 2001 and
section 1 of the Atmospheric Protection Act (1999) that if the
MPLs are not exceeded the air is safe for the health and well-
being of the population living in the relevant area. Pursuant to
Regulation 2.2 of the Sanitary Regulations, the air quality in the
residential zones of cities should not exceed 1.0 MPL for all
categories of toxic elements, and should not exceed 0.8 MPL in
recreational zones.
50. Pursuant to the Atmospheric Protection Act of 4 May 1999
(Об охране атмосферного воздуха), the federal environmental agency
establishes environmental standards for various types of polluting
sources (cars, farms, industrial enterprises etc). These general
standards are applied to specific enterprises by the regional
environmental agencies. In principle, an industrial enterprise's
operations should not result in pollution which exceeds the MPLs
(section 16 of the Act). However, for the sake of a region's
economic development, a regional environmental agency may issue a
temporary permit authorising an enterprise to exceed these norms
(sections 1 and 12 of the Act). The permit should contain a
schedule for the phased reduction of toxic emissions to safe
levels.
B. Sanitary Security Zones
1. Legislation
51. Every polluting enterprise must create a "sanitary security
zone" around its territory - a buffer area separating sources of
pollution from the residential areas of a city (Regulations 3.5
and 3.6 of the 1996 Sanitary Regulations, enacted by Decree No. 41
of the State Sanitary Service of 31 October 1996; similar
provisions were contained in the sanitary regulations of 2000,
2001 and 2003, which replaced the 1996 regulations). The levels of
pollution in this buffer area may exceed the MPLs.
52. The minimum width of the zone is defined by the sanitary
regulations for different categories of enterprises. Pursuant to
the 1996 regulations, the sanitary security zone around a steel-
plant of the size of Severstal ought to be 2,000 metres. Pursuant
to the sanitary regulations of 1 October 2000, the width of the
sanitary security zone for a metallurgical enterprise of this size
ought to be at least 1,000 metres. In certain cases the State
Sanitary Service may enlarge the zone (for example, where the
concentration of toxic substances in the air beyond the zone
exceeds the MPLs). Subsequent sanitary regulations (enacted on 17
May 2001 and 10 April 2003) confirmed these requirements.
53. Regulation 3.6 of the 1989 city planning regulations
provides that an enterprise must take all necessary measures in
order to develop (обустроить) its sanitary security zone in
accordance with the law, with a view to limiting pollution.
54. Regulation 3.8 of the 1989 city planning regulations
provides that no housing should be situated within the sanitary
security zone. This provision was later incorporated into the Town
Planning Code (Градостроительный Кодекс) of 1998 (Article 43) and
the sanitary regulations of 17 May 2001 and 10 April 2003.
According to Regulation 3.3.3 of the 2001 sanitary regulations, a
project to develop the zone may include, as a high-priority
objective, resettlement of the zone's residents. However, there is
no direct requirement to resettle the residents of the sanitary
security zone around an enterprise which is already in operation.
55. Article 10 з 5 of the Town Planning Code of 1998 provides
as follows:
"In cases where State or public interests require that economic
or other activities be conducted on environmentally unfavourable
territories, the temporary residence of the population on these
territories is permitted, subject to the application of a special
town planning regime..."
2. Practice
56. It follows from a judgment of the North-Caucasus Circuit
Federal Commercial Court (decision of 3 June 2003, No. Ф08-
1540/2003) that the authorities may discontinue the operation of
an enterprise which has failed to create a sanitary security zone
around its premises in accordance with the law <*>.
--------------------------------
<*> This decision concerned the closure by the authorities of a
filling station which had no sanitary security zone around its
territory.
57. The applicant produced an extract from the decision of the
Supreme Court of the Russian Federation in the case Ivaschenko v.
the Krasnoyarsk Railways (published in "Overview of the case-law
of the Supreme Court", Бюллетень Верховного Суда РФ, N 9, of 15
July 1998, з 22). In that case the plaintiff had claimed immediate
resettlement from a decrepit house. The lower court had rejected
the plaintiff's action, indicating that she could claim
resettlement following the order of priority (i.e. should be put
on the waiting list). The Supreme Court quashed this judgment,
stating as follows:
"the [plaintiff's] house is not only dilapidated [...], but is
also situated within 30 metres of a railway, within the latter's
sanitary security zone, which is contrary to the sanitary
regulations (this zone is 100 metres wide, and no residential
premises should be located within it)"
The Supreme Court remitted the case to the first-instance
court, ordering it to define specific housing which should be
provided to the individual concerned as a replacement for her
previous dwelling.
58. In another case, concerning the resettlement of Ms
Ledyayeva, another resident of the sanitary security zone around
the Severstal facilities, the Presidium of the Vologda Regional
Court, in its decision of 11 February 2002, stated, inter alia:
"The lower court did not assess whether the measures taken in
order to resettle the residents of the sanitary security zone are
adequate in comparison to the degree of threat that the plaintiff
encounters. As a result, the court did not establish whether
providing [Ms Ledyayeva] with new housing under the provisions of
the housing legislation by placing her on the waiting list can be
regarded as giving her a real chance to live in an environment
that is favourable for her life and health".
The court also expressed doubts as to whether the State should
be held responsible for the resettlement of the zone's residents.
C. Background to the Russian housing provisions
59. During the Soviet period, the majority of housing in Russia
belonged to various public bodies or State-owned enterprises. The
population lived in those flats as life-long tenants. In the 1990s
extensive privatisation programmes were carried out. In certain
cases, property that had not been privatised was transferred to
local authority possession.
60. To date, a certain part of the Russian population continues
to live as tenants in local council homes on account of the
related advantages. In particular, council house tenants are not
required to pay property taxes, they pay a rent that is
substantially lower than the market rate and they have full rights
to use and control the property. Certain persons are entitled to
claim new housing from the local authorities, provided that they
satisfy the conditions established by law.
61. From a historical standpoint, the right to claim new
housing was one of the basic socio-economic rights enshrined in
Soviet legislation. Pursuant to the Housing Code of the RSFSR of
24 June 1983, which was still valid in Russia at the time of the
relevant events, every tenant whose living conditions did not
correspond to the required standards was eligible to be placed on
a local authority waiting list in order to obtain new council
housing. The waiting list establishes the priority order in which
housing is attributed once it is available.
62. However, being on a waiting list does not entitle the
person concerned to claim any specific conditions or timetable
from the State for obtaining new housing. Certain categories of
persons, such as judges, policemen or handicapped persons are
entitled to be placed on a special "priority waiting list".
However, it appears that the Russian legislation guarantees no
right to be placed on the priority waiting list solely on the
ground of serious ecological threats.
63. Since Soviet times, hundreds of thousands of Russians have
been placed on waiting lists, which become longer each year on
account of a lack of resources to build new council housing. At
present, the fact of being on a waiting list represents an
acceptance by the State of its intention to provide new housing
when resources become available. The applicant submits, for
example, that the person who is first on the waiting list in her
municipality has been waiting for new council housing since 1968.
She herself became number 6820 on that list in 1999.
THE LAW
I. Alleged violation of Article 8 of the Convention
64. The applicant alleged that there had been a violation of
Article 8 of the Convention on account of the State's failure to
protect her private life and home from severe environmental
nuisance arising from the industrial activities of the Severstal
steel-plant.
65. Article 8 of the Convention, relied on by the applicant,
reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home, and his correspondence.
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. Applicability of Article 8 in the present case
1. Nature and extent of the alleged interference with
the applicant's rights
66. Both parties agreed that the applicant's place of residence
was affected by industrial pollution. Neither was it disputed that
the main cause of pollution was the Severstal steel-plant,
operating near the applicant's home.
67. The Court observes, however, that the degree of disturbance
caused by Severstal and the effects of pollution on the applicant
are disputed by the parties. Whereas the applicant insists that
the pollution seriously affected her private life and health, the
respondent Government assert that the harm suffered by the
applicant as a result of her home's location within the sanitary
security zone was not such as to raise an issue under Article 8 of
the Convention. In view of the Government's contention the Court
has first to establish whether the situation complained of by the
applicant falls to be examined under Article 8 of the Convention.
(a) General principles
68. Article 8 has been invoked in various cases involving
environmental concern, yet it is not violated every time that
environmental deterioration occurs: no right to nature
preservation is as such included among the rights and freedoms
guaranteed by the Convention (see Kyrtatos v. Greece, No.
41666/98, ECHR 2003-VI, з 52). Thus, in order to raise an issue
under Article 8 the interference must directly affect the
applicant's home, family or private life.
69. The Court further points out that the adverse effects of
environmental pollution must attain a certain minimum level if
they are to fall within the scope of Article 8 (see {Lopez} Ostra
v. Spain, judgment of 9 December 1994, Series A No. 303-C, p. 54,
з 51; see also, mutatis mutandis, Hatton and Others v. the United
Kingdom [GC], No. 36022/97, ECHR 2003-VIII, з 118). The assessment
of that minimum is relative and depends on all the circumstances
of the case, such as the intensity and duration of the nuisance,
its physical or mental effects. The general environmental context
should be also taken into account. There would be no arguable
claim under Article 8 if the detriment complained of was
negligible in comparison to the environmental hazards inherent to
life in every modern city.
70. Thus, in order to fall under Article 8, complaints relating
to environmental nuisances have to show, first, that there was an
actual interference with the applicant's private sphere, and,
second, that a level of severity was attained.
(b) The applicant's arguments
71. The applicant claimed that the extent of environmental
pollution at her place of residence was and remains seriously
detrimental to her health and well-being and to that of her
family.
72. She referred to a number of documents which, in her view,
indicated the adverse effects of the Severstal steel-plant's
industrial activities on the population of Cherepovets. In
particular, she referred to the expert opinion by Dr Chernaik (see
з 46), the report of the St Petersburg Centre for Hygiene and
Public Health (see з 45), the information note from the
Environmental Department of the Cherepovets municipality and the
letter from the Cherepovets Centre for Sanitary Control (see з
47).
73. The applicant pointed out that in 2004 the Court had
requested that the Government submit certain primary information
about air pollution in Cherepovets. The applicant insisted that
the Government had access to this data but failed to submit it to
the Court. The report prepared by the Government contained only
long-term averages of pollutant levels, which were insufficient to
understand how pollutants were influencing human health in
Cherepovets. In the applicant's view, the long-term averages,
although themselves far above safe levels, masked episodes of
extremely elevated pollution during peak periods. The applicant
proposed that the Court draw adverse inferences from the
Government's failure to produce the documents required.
(c) The Government's arguments
74. The Government generally accepted that the concentration of
polluting substances in the air near the applicant's house
exceeded the environmental norms. At the same time, there was no
evidence that the applicant's private life or health had somehow
been disrupted by the operation of the steel plant in the vicinity
of her home. They argued that "the fact of Ms Fadeyeva's [the
applicant] living in the territory of the [Severstal PLC] sanitary
security zone indicated not the damage caused, but only the
possibility of such damage being caused".
75. The Government indicated that the domestic courts had never
examined the influence of industrial pollution on the applicant's
health nor assessed the damage caused by it. The Government
claimed that the applicant had not raised these issues in the
domestic court proceedings.
76. The Government further indicated that the applicant had
failed to use the means prescribed by the Russian legislation for
assessing environmental hazards. In particular, the applicant
could have commissioned a "sanitary epidemiologic report" on the
environmental situation, as provided by the Decree of the Ministry
of Public Health of 15 August 2001. Moreover, the Government
insisted that, "when assessing the level of risk to the health of
inhabitants, one should follow the officially registered data on
emissions into the atmosphere, which is analysed and summarised on
the basis of applicable methods in accordance with the legislation
of the Russian Federation".
77. As regards the disease diagnosed by the North-West Centre
for Hygiene and Public Health (see з 45), the Government argued
that it was occupational (профессиональное заболевание). According
to the Government, the applicant was working in a hazardous
industry; her duties consisted of covering tubing and other
industrial equipment with thermo-insulating materials. Such work
required considerable physical strength and was often carried out
outdoors or in unheated premises. Therefore, this disease was not
attributable to the applicant's place of residence, but instead to
her unfavourable working conditions. In the Government's view, the
applicant's concomitant diagnoses were widespread and were not
uncommon among persons of her age, regardless of their place of
residence.
78. The Government did not disagree with the initial positions
contained in Dr Chernaik's report but contested its findings (see
з 46). The Government claimed that "Chernaik's conclusions
concerning the increased susceptibility of inhabitants of the OAO
Cherepovets sanitary security zone to certain diseases are
abstract in nature, have no substantiation and thus cannot be
taken into account".
(d) The Court's assessment
79. The Court recalls at the outset that, in assessing
evidence, the general principle has been to apply the standard of
proof "beyond reasonable doubt". Such proof may follow from the co-
existence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. It should be also
noted that it has been the Court's practice to allow flexibility
in this respect, taking into consideration the nature of the
substantive right at stake and any evidentiary difficulties
involved. In certain instances solely the respondent Government
have access to information capable of corroborating or refuting
the applicant's allegations; consequently, a rigorous application
of the principle affirmanti, non neganti, incumbit probatio is
impossible (see {Aktas} v. Turkey, No. 24351/94, з 272, ECHR 2003-
V (extracts)).
80. Turning to the particular circumstances of the case, the
Court observes that, in the applicant's submission, her health has
deteriorated as a result of her living near the steel-plant. The
only medical document produced by the applicant in support of this
claim is a report drawn up by a clinic in St Petersburg (see з
45). The Court finds that this report did not establish any causal
link between environmental pollution and the applicant's diseases.
The applicant presented no other medical evidence which would
clearly connect her state of health to high pollution levels at
her place of residence.
81. The applicant also submitted a number of official documents
confirming that, since 1995 (the date of her first recourse to the
courts), environmental pollution at her place of residence has
constantly exceeded safe levels (see з 31 et seq.). In the
applicant's submissions, these documents proved that any person
exposed to such pollution levels inevitably suffered serious
damage to his or her health and well-being.
82. With regard to this allegation, the Court bears in mind,
firstly, that the Convention entered into force with respect to
Russia on 5 May 1998. Therefore, only the period after this date
can be taken into consideration in assessing the nature and extent
of the alleged interference with the applicant's private sphere.
83. According to the materials submitted to the Court, since
1998 the pollution levels with respect to a number of rated
parameters have exceeded the domestic norms. Thus, the data
produced by the Government confirm that in 1999 - 2003 the
concentration of dust, carbon disulphide and formaldehyde in the
air near the applicant's house constantly exceeded the MPLs (see
the Appendix to this judgment). In 1999 the concentration of dust
was 1.76 times higher than the MPL, and in 2003 it was 1.13 times
higher. In 1999 the concentration of carbon disulphide was 3.74
times higher than the MPL; in 2003 the concentration of this
substance had fallen but still was 1.12 times higher that the MPL.
The concentration of formaldehyde was 4.53 times higher than the
MPL. In 2003 it was 6.3 times higher than the MPL. Moreover, an
over-concentration of various other substances, such as manganese,
benzopyrene and sulphur dioxide, was recorded during this period
(see з 38 et seq.).
84. The Court observes further that the figures produced by the
Government reflect only annual averages and do not disclose daily
or maximum pollution levels. According to the Government's own
submissions, the maximum concentrations of pollutants registered
near the applicant's house were often ten times higher than the
average annual MPLs (which were already above safe levels). The
Court also notes that the Government have not explained why they
failed to produce the documents and reports sought by the Court
(see з 43), although these documents were certainly available to
the national authorities. Therefore, the Court concludes that the
environmental situation in certain periods could have been even
worse than it appears from the available data.
85. The Court notes further that on many occasions the State
recognised that the environmental situation in Cherepovets caused
an increase in the morbidity rate for the city's residents (see зз
12, 15, 34, 47). The reports and official documents produced by
the applicant, and, in particular, the report by Dr Mark Chernaik
(see з 46), described the adverse effects of pollution on all
residents of Cherepovets, especially those who live near the
plant. Thus, according to the data provided by both parties,
during the entire period under consideration the concentration of
formaldehyde in the air near the applicant's house was three to
six times higher than the safe levels. Dr Chernaik described the
adverse effects of formaldehyde as follows:
"Considering this ongoing exposure to formaldehyde within the
Cherepovets sanitary security zone, I would expect the population
residing within the zone to suffer from above-average incidences
of cancer of the nasal passages, headaches, and chronic irritation
of the eyes, nose, and throat compared to populations residing in
areas not polluted by excessive levels of formaldehyde".
As regards carbon disulphide, the concentration of which
exceeded the MPL by 1.1 to 3.75 times during this entire period
(except for 2002), Dr Chernaik stated:
"Considering his ongoing exposure to CS within the
2
Cherepovets sanitary security zone, I would expect the population
residing within the zone to suffer from above-average incidences
of adverse neurobehavioral, neurological, cardiovascular, and
reproductive functions compared to populations residing in areas
not polluted by excessive levels of CS ".
2
86. Finally, the Court pays special attention to the fact that
the domestic courts in the present case recognised the applicant's
right to be resettled. Indeed, the effects of pollution on the
applicant's private life were not at the heart of the domestic
proceedings. However as follows from the Vologda Regional Court
opinion in the Ledyayeva case (з 58), it was not contested that
the pollution caused by the Severstal facilities called for
resettlement in a safer area. Moreover, the domestic legislation
itself defined the zone in which the applicant's house was
situated as unfit for habitation (see з 51). Therefore, it can be
said that the existence of interference with the applicant's
private sphere was taken for granted at the domestic level.
87. In summary, the Court observes that over a significant
period of time the concentration of various toxic elements in the
air near the applicant's house seriously exceeded the MPLs. The
Russian legislation defines MPLs as safe concentrations of toxic
elements (see з 49). Consequently, where the MPLs are exceeded,
the pollution becomes potentially harmful to the health and well-
being of those exposed to it. This is a presumption, which may not
be true in a particular case. The same may be noted about the
reports produced by the applicant: it is conceivable that, despite
the excessive pollution and its proven negative effects on the
population as a whole, the applicant did not suffer any special
and extraordinary damage.
88. In the instant case, however, the very strong combination
of indirect evidence and presumptions makes it possible to
conclude that the applicant's health deteriorated as a result of
her prolonged exposure to the industrial emissions from the
Severstal steel-plant. Even assuming that the pollution did not
cause any quantifiable harm to her health, it inevitably made the
applicant more vulnerable to various diseases. Moreover, there can
be no doubt that it adversely affected the quality of life at her
home. Therefore, the Court accepts that the actual detriment to
the applicant's health and well-being reached a level sufficient
to bring it within the scope of Article 8 of the Convention.
2. Attribution of the alleged interference to the State
89. The Court notes that, at the material time, the Severstal
steel-plant was not owned, controlled, or operated by the State.
Consequently, the Court considers that the Russian Federation
cannot be said to have directly interfered with the applicant's
private life or home. At the same time, the Court points out that
the State's responsibility in environmental cases may arise from a
failure to regulate private industry (see the Hatton and Others
case cited above). Accordingly, the applicant's complaints fall to
be analysed in terms of a positive duty on the State to take
reasonable and appropriate measures to secure the applicant's
rights under Article 8 з 1 of the Convention (see Powell and
Rayner v. the United Kingdom, judgment of 21 February 1990, Series
A No. 172, з 41, and Guerra v. Italy, judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, з 58). In these
circumstances the Court's first task is to assess whether the
State could reasonably be expected to act so as to prevent or put
an end to the alleged infringement of the applicant's rights.
90. The Court observes in this respect that the Severstal steel-
plant was built by and initially belonged to the State. The plant
malfunctioned from the start, releasing gas fumes, odour and
contamination and causing health problems and nuisance to many
people in Cherepovets (see the Appendix, also зз 11 and 12).
Following the plant's privatisation in 1993, the State continued
to exercise control over the plant's industrial activities through
the imposition of operating conditions on the plant's owner and
supervision of their implementation. The plant was subjected to
numerous inspections by the State environmental agency and
administrative penalties were imposed on the plant's owner and
management (see below з 114). The environmental situation
complained of was not the result of a sudden and unexpected turn
of events, but, on the contrary, was long-lasting and well-known
(see зз 11, 12, and 15). As in {Lopez} Ostra ({Lopez} Ostra v.
Spain, cited above, з 52 - 53), in the present case the municipal
authorities were aware of the continuing environmental problems
and applied certain sanctions in order to improve the situation.
91. The Court observes further that the Severstal steel-plant
was and remains responsible for almost 95 per cent of overall air
pollution in the city (see з 42). In contrast to many other
cities, where pollution can be attributed to a large number of
minor sources, the main cause of it in Cherepovets was easily
definable. The environmental nuisances complained of were very
specific and fully attributable to the industrial activities of
one particular enterprise. This is particularly true with respect
to the situation of those living in close proximity to the
Severstal steel-plant.
92. The Court concludes that the authorities in the present
case were certainly in a position to evaluate the pollution
hazards and to take adequate measures to prevent or reduce them.
The combination of these factors shows a sufficient nexus between
the pollutant emissions and the State to raise an issue of the
State's positive obligation under Article 8.
93. It remains to be determined whether the State, in securing
the applicant's rights, has struck a fair balance between the
competing interests of the applicant and the community as a whole,
as required by paragraph two of the Article in question.
B. Justification under Article 8 з 2
1. General principles
94. The Court reiterates that whatever analytical approach is
adopted - the breach of a positive duty or direct interference by
the State - the applicable principles regarding justification
under Article 8 з 2 as to the balance between the rights of an
individual and the interests of the community as a whole, are
broadly similar (see Keegan v. Ireland, judgment of 26 May 1994,
Series A No. 290, p. 19, з 49).
95. Direct interference by the State with the exercise of
Article 8 rights will not be compatible with paragraph 2 unless it
is "in accordance with the law". The breach of domestic law in
these cases would necessarily lead to a finding of a violation of
the Convention.
96. However, where the State is required to take positive
measures, the choice of means is in principle a matter that falls
within the Contracting States' margin of appreciation. There are
different avenues to ensure "respect for private life", and even
if the State has failed to apply one particular measure provided
by domestic law, it may still fulfil its positive duty by other
means. Therefore, in those cases the criterion "in accordance with
the law" of the justification test cannot be applied in the same
way as in cases of direct interference by the State.
97. The Court notes, at the same time, that in all previous
cases in which environmental questions gave rise to violations of
the Convention, the violation was predicated on a failure by the
national authorities to comply with some aspect of the domestic
legal regime. Thus, in {Lopez} Ostra the waste-treatment plant at
issue was illegal in that it operated without the necessary
licence, and it was eventually closed down ({Lopez} Ostra
judgment, cited above, зз 16 - 22). In Guerra too, the violation
was founded on an irregular position at the domestic level, as the
applicants had been unable to obtain information that the State
was under a statutory obligation to provide (Guerra and Others v.
Italy, cited above, p. 219, з 25 - 27). In S. v. France (No.
13728/88, Commission decision of 17 May 1990, Decisions and
Reports (DR) 65, p. 263), the internal legality was also taken
into consideration.
98. Thus, in cases where an applicant complains about the
State's failure to protect his or her Convention rights, domestic
legality should be approached not as a separate and conclusive
test, but rather as one of many aspects which should be taken into
account in assessing whether the State has struck a "fair balance"
in accordance with Article 8 з 2.
2. "Legitimate aim"
99. Where the State is required to take positive measures in
order to strike a fair balance between the interests of the
applicant and the community as a whole, the aims mentioned in the
second paragraph of Article 8 may be of a certain relevance,
although this provision refers only to "interferences" with the
right protected by the first paragraph - in other words, it is
concerned with the negative obligations flowing therefrom (see the
Rees v. the United Kingdom judgment of 17 October 1986, Series A
No. 106, p. 15, з 37).
100. The Court observes that the essential justification
offered by the Government for the refusal to resettle the
applicant was the protection of the interests of other residents
of Cherepovets who were entitled to free housing under the
domestic legislation. In the Government's submissions, since the
municipality had only limited resources to build new housing for
social purposes, the applicant's immediate resettlement would
inevitably breach the rights of others on the waiting lists.
101. Further, the respondent Government referred, at least in
substance, to the economic well-being of the country (see below, з
111). Like the respondent Government, the Court considers that the
continuing operation of the steel-plant in question contributed to
the economic system of the Vologda region and, to that extent,
served a legitimate aim within the meaning of з 2 of Article 8 of
the Convention. It remains to be determined whether, in pursuing
this aim, the authorities have struck a fair balance between the
interests of the applicant and those of the community as a whole.
3. "Necessary in a democratic society"
(a) General principles
102. The Court recalls that in deciding what is necessary for
achieving one of the aims mentioned in Article 8 з 2 of the
Convention, a margin of appreciation must be left to the national
authorities, who are in principle better placed than an
international court to evaluate local needs and conditions. While
it is for the national authorities to make the initial assessment
of necessity, the final evaluation as to whether the justification
given by the State is relevant and sufficient remains subject to
review by the Court (see, among other authorities, Lustig-Prean
and Beckett v. the United Kingdom, Nos. 31417/96 and 32377/96, 27
September 1999, зз 80 - 81).
103. In recent decades environmental pollution has become a
matter of growing public concern. As a consequence, States have
adopted various measures in order to reduce the adverse effects of
industrial activities. When assessing these measures from the
standpoint of Article 1 of Protocol No. 1 to the Convention, the
Court has, as a rule, accepted that the States have a wide margin
of appreciation in the sphere of environmental protection. Thus,
in 1991 in Fredin v. Sweden (judgment of 18 February 1991, Series
A No. 192, з 48) the Court recognised that "in today's society the
protection of the environment is an increasingly important
consideration", and held that the interference with a private
property right (revoking the applicant's licence to extract gravel
from his property on the grounds of nature conservation) was not
inappropriate or disproportionate in the context of Article 1 of
Protocol No. 1 to the Convention. Later that year, in Pine Valley
Development Ltd and Others v. Ireland (judgment of 29 November
1991, Series A No. 222), the Court confirmed its approach.
104. In another group of cases where the State's failure to act
was at issue, the Court has also preferred to refrain from
revising domestic environmental policies. In a recent Grand
Chamber judgment the Court held that "it would not be appropriate
for the Court to adopt a special approach in this respect by
reference to a special status of environmental human rights"
(Hatton [GC], cited above, з 122). In an earlier case the Court
held that "it is certainly not for... the Court to substitute for
the national authorities any other assessment of what might be
best policy in this difficult technical and social sphere. This is
an area where the Contracting Parties are to be recognised as
enjoying a wide margin of appreciation" (Powell and Rayner v. the
United Kingdom, cited above, p. 89, з 44).
105. It remains open to the Court to conclude that there has
been a manifest error of appreciation by the national authorities
in striking a fair balance between the competing interests of
different private actors in this sphere. However, the complexity
of the issues involved with regard to environmental protection
renders the Court's role primarily a subsidiary one. The Court
must first examine whether the decision-making process was fair
and such as to afford due respect to the interests safeguarded to
the individual by Article 8 (see Buckley v. the United Kingdom,
judgment of 25 September 1996, Reports of Judgments and Decisions
1996-IV, pp. 1292 - 93, зз 76 - 77), and only in exceptional
circumstances may it go beyond this line and revise the material
conclusions of the domestic authorities (see {Taskin} and Others
v. Turkey, No. 46117/99, з 117, 10 November 2004).
(b) The applicant's arguments
106. The applicant first submitted that the Russian legislation
required her resettlement outside Severstal's sanitary security
zone. In her view, the 1974 Decree (see з 11) imposed an
obligation on the State to resettle her outside the sanitary
security zone. Further, resettlement of the residents of the
sanitary security zone was required by the 1996 Federal Programme
(see з 15). The legislation, as interpreted by the Supreme Court
in the case of Ivashchenko (see з 57), provides for the
applicant's immediate resettlement, not for her placement on the
waiting list. The single criterion for resettlement has always
been the fact of residence within the sanitary security zone.
However, the authorities failed to comply with the legal
obligation to re-house the applicant and this obligation has not
been enforced by the courts.
107. In their submissions, the respondent Government referred
to Article 10 з 5 of the Town Planning Code to justify the
applicant's continued residence within the sanitary security zone
(see з 55). However, in the applicant's view, this provision only
applies to temporary housing, and not to dense residential areas
and houses, in one of which the applicant lives. Consequently,
Article 10 з 5 of the Town Planning Code, referred to by the
Government, is inapplicable to the applicant's situation.
108. The applicant further alleged that the authorities had
failed to take adequate measures to secure her rights under
Article 8 of the Convention. First, the Government have not sought
to justify the interference with her Article 8 rights with any
valid reason. Second, they failed to implement effective measures
in order to prevent or minimise environmental pollution. In spite
of compelling evidence of unacceptable levels of pollution from
the Severstal plant, in breach of the domestic limits, the
Government have merely asserted that "no question arose of
limitation, suspension, or discontinuation of its activity in
connection with environmental pollution".
(c) The Government's arguments
109. The Government contended that the applicant's complaint
was ill-founded and that no violation of Article 8 of the
Convention had occurred in this case. The Government's arguments
may be summarised as follows.
110. In their initial observations to the Court the Government
accepted the fact that the applicant's house is located within
Severstal's sanitary security zone but argued that the domestic
courts' decisions rejecting the applicant's claim for immediate
resettlement had been lawful. The applicable Russian legislation
provides only for placing the applicant on the general waiting
list for future resettlement, which is the duty of the municipal
authorities. The Government further argued that providing the
applicant with a flat, irrespective of her position on the waiting
list, would breach the rights of other people entitled to free
housing under the domestic legislation.
111. In their post-admissibility observations and at the oral
hearing the Government contended that the domestic court's
decisions were erroneous because the applicant's house was not
situated within the sanitary security zone. The Government also
indicated that, under domestic law, "Ms N.M. Fadeyeva's temporary
residence in the territory of the sanitary security zone is
permissible" insofar as "the State or public interests require the
performance of economic or other activity on such territories".
The Government referred in particular to Article 10 of the Town
Planning Code (see з 55). The Government write that "under Article
10 з 5 of the Code of Town Planning of the Russian Federation,
temporary residence of people is permitted on environmentally
unfavourable territories in cases where state or public interests
require the performance of economic or other activity on such
territories".
112. The Government also alleged that the applicant moved to
the flat at 1 Zhukov Street of her own will and that nothing
prevented her from leaving it. Moreover, the applicant could
always privatise the flat and then sell it in order to purchase
housing in another district of the city.
113. The Government asserted that the state authorities
conducted regular monitoring of air quality in the city and had,
moreover, undertaken a number of scientific studies in order to
assess the impact of pollution on the inhabitants of Cherepovets.
114. The Government further submitted that the state
authorities had imposed various administrative sanctions on
Severstal PLC in order to ensure that its activities complied with
the domestic norms. In particular, in 1995 - 2000 the State
Committee for the Protection of the Environment carried out 89
checks of Severstal PLC, bringing to light more than 300
violations. During this period the managers of the steel-plant
were charged with administrative offences in the sphere of
environmental protection on 45 occasions. In 2001 - 2003 the
Ministry of Natural Resources of the Russian Federation carried
out four complex checks of the plant, in the course of which 44
violations of the environmental legislation were brought to light.
To date, the majority of the violations indicated by the statutory
authorities have been eliminated.
115. Finally, the Government argued that in recent years the
implementation of a number of federal and municipal programmes has
resulted in a reduction of pollution in Cherepovets. The
Government stressed that the environmental monitoring carried out
by State agencies has revealed an improvement in the overall
environmental situation throughout the city, and that the
pollution levels near the applicant's house do not differ
significantly from the average levels across the city. The
Government also enumerated various technological modifications
undertaken by the steel-plant in order to reduce emissions and
asserted that several new improvements are due to be made in the
near future.
(d) The Court's assessment
(i) The alleged failure to resettle the applicant
116. The Court notes at the outset that the environmental
consequences of the Severstal steel-plant's operations do not
comply with the environmental and health standards established in
the relevant Russian legislation. In order to maintain the
operation of an important enterprise of this type, the Russian
legislation, as a compromise solution, has provided for the
creation of a buffer zone around the enterprise's premises in
which pollution may officially exceed safe levels. Therefore, the
existence of such a zone is a condition sine qua non for the
operation of a dangerous enterprise - otherwise it must be closed
or significantly restructured.
117. The main purpose of the sanitary security zone is to
separate residential areas from the sources of pollution and thus
to minimise the negative effects thereof on the neighbouring
population. The Government have shown that, in the course of the
past twenty years, overall emissions from the Severstal steel-
plant have been significantly reduced, and this trend can only be
welcomed (see з 37 et seq.). However, within the entire period
under consideration (since 1998), pollution levels with respect to
a number of dangerous substances have continued to exceed the safe
levels. Consequently, the operation of the Severstal plant in
conformity with the domestic environmental standards would be
possible only if this zone, separating the enterprise from the
residential areas of the town, continued to exist and served its
purpose.
118. The parties argue as to the actual size of the zone. In
their later post-admissibility observations and oral submissions
to the Court the Government denied that the applicant lived within
its boundaries. However, in their initial observations the
Government directly stated that the applicant's house was located
within the zone. The fact that the Severstal steel-plant's
sanitary security zone includes residential areas of the town was
confirmed in the Government Programme of 1996 (see з 15). As
regards the applicant's house in particular, the fact that it was
located within the steel-plant's sanitary security zone was not
disputed in the domestic proceedings and has been confirmed by the
domestic authorities on many occasions. The status of the zone was
challenged only after the application had been communicated to the
respondent Government. Therefore, the Court assumes that during
the period under consideration the applicant lived within
Severstal's sanitary security zone.
119. The Government further submitted that the pollution levels
attributable to the metallurgic industry are the same if not
higher in other districts of Cherepovets than those registered
near the applicant's home (see з 39). However, this proves only
that the Severstal steel-plant has failed to comply with domestic
environmental norms and suggests that a wider sanitary security
zone should perhaps have been required. In any event, this
argument does not affect the Court's conclusion that the applicant
lived in a special zone where the industrial pollution exceeded
safe levels and where any housing was in principle prohibited by
the domestic legislation.
120. It is material that the applicant moved to this location
in 1982 knowing that the environmental situation in the area was
very unfavourable. However, given the shortage of housing at that
time and the fact that almost all residential buildings in
industrial towns belonged to the State, it is very probable that
the applicant had no choice other than to accept the flat offered
to her family (see з 59 et seq.). Moreover, due to the relative
scarcity of environmental information at this time the applicant
may have underestimated the seriousness of the pollution problem
in her neighbourhood. It is also important that the applicant
obtained the flat lawfully from the State, which could not have
been unaware that the flat was situated within the steel-plant's
sanitary security zone and that the ecological situation was very
poor. Therefore, it cannot be claimed that the applicant herself
created the situation complained of or was somehow responsible for
it.
121. It is also relevant that it became possible in the 1990s
to rent or buy residential property without restrictions, and the
applicant has not been prevented from moving away from the
dangerous area. In this respect the Court observes that the
applicant was renting the flat at 1 Zhukov Street from the local
council as a life-long tenant. The conditions of her rent were
much more favourable than those she would find on the free market.
Relocation to another home would imply considerable outlay which,
in her situation, would be almost unfeasible, her only income
being a State pension plus payments related to her professional
disease. The same may be noted about the possibility of buying
another flat, invoked by the respondent Government. Although it is
theoretically possible for the applicant to change her personal
situation, this would appear to be very difficult. Accordingly,
this point does not deprive the applicant of the status required
to claim to be a victim of a violation of the Convention within
the meaning of Article 34, although it may, to a certain extent,
affect the scope of the Government's positive obligations in the
present case.
122. The Court reiterates that the Russian legislation directly
prohibits building of any residential property within a sanitary
security zone. However, the law does not clearly indicate what
should be done with those persons who already live within such a
zone. The applicant insisted that the Russian legislation required
immediate resettlement of the residents of such zones and that
resettlement should be carried out at the expense of the polluting
enterprise. However, the national courts interpreted the law
differently. The Cherepovets Town Court's decisions of 1996 and
1999 established that the polluting enterprise is not responsible
for resettlement; the legislation provides only for placing the
residents of the zone on the general waiting list. The same court
rejected the applicant's claim for reimbursement of the cost of
resettlement. In the absence of any direct requirement of
immediate resettlement, the Court does not find this reading of
the law absolutely unreasonable. Against the above background the
Court is ready to accept that the only solution proposed by the
national law in this situation was to place the applicant on a
waiting list. Thus, the Russian legislation as applied by the
domestic courts and national authorities makes no difference
between those persons who are entitled to new housing, free of
charge, on a welfare basis (war veterans, large families etc.) and
those whose everyday life is seriously disrupted by toxic fumes
from a neighbouring enterprise.
123. The Court further notes that, since 1999, when the
applicant was placed on the waiting list, her situation has not
changed. Moreover, as the applicant rightly pointed out, there is
no hope that this measure will result in her resettlement from the
zone in the foreseeable future. The resettlement of certain
families from the zone by Severstal PLC is a matter of the plant's
good faith, and cannot be relied upon. Therefore, the measure
applied by the domestic courts makes no difference to the
applicant: it does not give her any realistic hope of being
removed from the source of pollution.
(ii) The alleged failure to regulate private industry
124. Recourse to the measures sought by the applicant before
the domestic courts (urgent resettlement or reimbursement of the
resettlement costs) is not necessarily the only remedy to the
situation complained of. The Court points out that "the choice of
the means calculated to secure compliance with Article 8... in the
sphere of the relations of individuals between themselves is in
principle a matter that falls within the Contracting States'
margin of appreciation. In this connection, there are different
ways of ensuring "respect for private life", and the nature of the
State's obligation will depend on the particular aspect of private
life that is at issue" (X. and U. v. the Netherlands, judgment of
26 March 1985, ECHR Series A No. 91, з 24). In the present case
the State had at its disposal a number of other tools capable of
preventing or minimising pollution, and the Court may examine
whether, in adopting measures of a general character, the State
had complied with its positive duties under the Convention.
125. In this respect the Court notes that, according to the
Government's submissions, the environmental pollution caused by
the steel-plant has been significantly reduced over the past
twenty years. Since the 1970s, air quality in the town has changed
for the better. Thus, when the applicant's family moved into the
flat at issue in 1982, the overall atmospheric pollution in
Cherepovets was more than twice as high as in 2003. Since 1980
toxic emissions from the Severstal steel-plant into the town's air
have been reduced from 787.7 to 333.2 thousands tons. Following
the enactment of the 1996 Federal Programme (see з 15), the annual
overall emissions of air polluting substances attributable to the
Severstal facilities have been reduced by 5.7 per cent. The report
submitted by the Government indicated that by 2003 the average
concentration of certain toxic elements in the air of the town had
been significantly reduced (see з 37 et seq.); the proportion of
"unsatisfactory tests" of the air around the Severstal plant had
fallen in the past five years.
126. At the same time, the Court observes that the
implementation of the 1990 and 1996 Federal Programmes did not
achieve the expected results: in 2003 the concentration of a
number of toxic substances in the air near the plant still
exceeded safe levels. Whereas, according to the 1990 Programme,
the steel-plant was obliged to reduce its toxic emissions to a
safe level by 1998, in 2004 the Chief Sanitary Inspector admitted
that this had not been done and that the new deadline for bringing
the plant's emissions below dangerous levels is henceforth 2015.
127. Undoubtedly, significant progress has been made in
reducing emissions over the past ten to twenty years. However, if
only the period within the Court's competence ratione temporis is
taken into account, the overall improvement of the environmental
situation would appear to be very slow. Moreover, as the
Government's report shows, the dynamics with respect to a number
of toxic substances are not constant and in certain years
pollution levels increased rather than decreased (see the
Appendix).
128. It might be argued that, given the complexity and scale of
the environmental problem around the Severstal steel-plant, this
problem cannot be resolved in a short period of time. Indeed, it
is not the Court's task to determine what exactly should have been
done in the present situation to reduce pollution in a more
efficient way. However, it is certainly in the Court's
jurisdiction to assess whether the Government approached the
problem with due diligence and gave consideration to all the
competing interests. In this respect the Court reiterates that the
onus is on the State to justify, using detailed and rigorous data,
a situation in which certain individuals bear a heavy burden on
behalf of the rest of the community. Looking at the present case
from this perspective, the Court notes the following points.
129. The Government referred to a number of studies carried out
in order to assess the environmental situation around the
Cherepovets steel-plant. However, the Government have failed to
produce these documents or to explain how they influenced policy
in respect to the plant, particularly the conditions attached to
the plant's operating permit. The Court also notes that the
Government did not provide a copy of the plant's operating permit
and did not specify how the interests of the population residing
around the steel-plant were taken into account when the conditions
attached to the permit were established.
130. The Government submitted that during the period under
consideration Severstal PLC was subjected to various checks and
administrative penalties for different breaches of environmental
law. However, the Government did not specify which sanctions had
been applied and the type of breaches concerned. Consequently, it
is impossible to assess to what extent these sanctions could
really induce Severstal to take the necessary measures for
environmental protection.
131. The Court considers that it is not possible to make a
sensible analysis of the Government's policy {vis-a-vis} Severstal
because the Government have failed to show clearly what this
policy consisted of. In these circumstances the Court has to draw
an adverse inference. In view of the materials before it, the
Court cannot conclude that, in regulating the steel-plant's
industrial activities, the authorities gave due weight to the
interests of the community living in close proximity to its
premises.
132. In sum, the Court finds the following. The State
authorised the operation of a polluting enterprise in the middle
of a densely populated town. Since the toxic emissions from this
enterprise exceeded the safe limits established by the domestic
legislation and might endanger the health of those living nearby,
the State established that a certain territory around the plant
should be free of any dwelling. However, these legislative
measures were not implemented in practice.
133. It would be going too far to state that the State or the
polluting enterprise were under an obligation to provide the
applicant with free housing, and, in any event, it is not the
Court's role to dictate precise measures which should be adopted
by the States in order to comply with their positive duties under
Article 8 of the Convention. In the present case, however,
although the situation around the plant called for a special
treatment of those living within the zone, the State did not offer
the applicant any effective solution to help her move from the
dangerous area. Furthermore, although the polluting enterprise at
issue operated in breach of domestic environmental standards,
there is no information that the State designed or applied
effective measures which would take into account the interests of
the local population, affected by the pollution, and which would
be capable of reducing the industrial pollution to acceptable
levels.
134. The Court concludes that, despite the wide margin of
appreciation left to the respondent State, it has failed to strike
a fair balance between the interests of the community and the
applicant's effective enjoyment of her right to respect for her
home and her private life. There has accordingly been a violation
of Article 8.
II. Application of Article 41 of the Convention
135. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
1. Non-pecuniary damage
136. The applicant claimed 10,000 euros (EUR) in compensation
for the non-pecuniary damage she had suffered. This figure, in the
applicant's view, was justified by the excessive environmental
pollution within the sanitary security zone, which had adversely
affected the applicant's health and enjoyment of her home and
private life. Such conditions had also caused distress and
frustration on account of the fact that she and her family had had
to live in the zone for more than 20 years.
137. The Government considered that these claims were
exaggerated and that the finding of a violation would be adequate
just satisfaction. Alternatively, the Government submitted that
"only a symbolic amount would be equitable with regard to non-
pecuniary damage".
138. The Court is prepared to accept that the applicant's
prolonged exposure to industrial pollution caused her much
inconvenience, mental distress and even a degree of physical
suffering - this is clear on the grounds on which the Court found
a violation of Article 8. At the same time the Court recalls that
the Convention entered into force in respect of Russia on 5 May
1998; therefore, the Court has no competence ratione temporis to
make an award for the period prior to this date. In sum, taking
into account various relevant factors, such as age, the
applicant's state of health and the duration of the situation
complained of, and making an assessment on an equitable basis in
accordance with Article 41, the Court awards the applicant EUR
6,000 under this head, plus any tax that may be chargeable on this
amount.
2. Pecuniary damage
139. Under the head of pecuniary damage the applicant claimed
that the Government should be required to offer her new housing,
comparable to her current flat, outside the Cherepovets sanitary
security zone. The applicant submitted that, in the light of the
principles established in similar cases, and the State's failure
in this case to comply with Russian domestic law requiring her re-
housing, the State should be ordered to provide her with housing
outside the sanitary security zone. Alternatively, the applicant
claimed an award of damages of EUR 30,000, which was the value of
a flat comparable to the applicant's but located outside the
Cherepovets sanitary security zone.
140. The Government argued that this claim should be rejected.
141. With regard to this claim the Court notes, first of all,
that the violation complained of by the applicant is of a
continuing nature. Within the period under consideration the
applicant lived in her flat as a tenant and has never been
deprived of this title. Although during this time her private life
was adversely affected by industrial emissions, nothing indicates
that she has incurred any expenses in this respect. Therefore, in
respect of the period prior to the adoption of the present
judgment the applicant failed to substantiate any material loss.
142. As regards future measures to be adopted by the Government
in order to comply with the Court's finding of a violation of
Article 8 of the Convention in the present case, the resettlement
of the applicant in an ecologically safe area would be only one of
many possible solutions. In any event, according to Article 41 of
the Convention, by finding a violation of Article 8 in the present
case, the Court has established the Government's obligation to
take appropriate measures to remedy the applicant's individual
situation.
B. Costs and expenses
143. Finally, under the head of costs and expenses the
applicant claimed the following:
(i) EUR 2,000 in respect of her representation by Mr Yury
Vanzha before domestic authorities and before the Court at the
initial stage of the proceedings, for 40 hours, at the rate of EUR
50 per hour;
(ii) EUR 3,000 in respect of her representation before the
Court by Mr Kirill Koroteyev, for 60 hours, at the rate of EUR 50
per hour;
(iii) GBP 2,940 in respect of costs and expenses incurred by
the applicant's representatives in London (Mr Phillip Leach and
Mr. Bill Bowring);
(iv) GBP 600 for advice from Ms Miriam Carrion Benitez.
144. In her additional submissions on this topic, the applicant
claimed the following amounts related to the participation of her
representatives at the hearing of 1 July 2004:
(i) GBP 1,200 (GBP 800 as fees for Mr Philip Leach, at the rate
of GBP 100 per hour, plus GBP 400 for his travel time, at the rate
of GBP 50 per hour);
(ii) GBP 1,400 (GBP 1,000 as fees for Mr Bill Bowring, at the
rate of GBP 100 per hour, plus GBP 400 for his travel time, at the
rate of GBP 50 per hour);
(iii) EUR 1,000 (EUR 500 as fees for Mr Kirill Koroteyev, at
the rate EUR 50 per hour, plus EUR 500 for his travel time, at the
rate of EUR 25 per hour);
(iv) EUR 700 (EUR 200 as fees for Ms Dina Vedernikova, at the
rate of EUR 50 per hour, plus EUR 500 for her travel time, at the
rate of EUR 25 per hour).
145. In reply the Government argued that the applicant's claims
in this part were unsubstantiated. They submitted that "no
contracts with [the applicant's representatives] or payment
receipts have been presented by the applicant to confirm that the
costs are real". They also challenged certain details of the
lawyers' bills, in particular, the time allegedly spent by Mr
Koroteyev in a telephone interview with the applicant, and the
necessity of Ms Vedernikova's appearance before the European
Court.
146. The Court has to establish, first, whether the costs and
expenses indicated by the applicant were actually incurred and,
second, whether they were necessary (see McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A No. 324, з
220).
147. As to the first question the Court notes that the
applicant did not present any written agreement between her and
her lawyers. However, this does not mean that such an agreement
does not exist. Russian legislation provides that a contract on
consulting services may be concluded in an oral form (Article 153
read in conjunction with Article 779 of the Civil Code of the
Russian Federation), and nothing indicates that this was not the
case in respect of the applicant and her representatives. In any
event, the Government did not present any argument to the
contrary. Therefore, the lawyer's fees are recoverable under
domestic law, and, from the standpoint of the Convention, real.
The fact that the applicant was not required to cover these fees
in advance does not affect this conclusion.
148. Further, it has to be established whether the applicant's
lawyers' expenses were necessary. As regards the costs claimed by
Mr Yuri Vanzha, a reduction should be applied on account of the
fact that some of the applicant's complaints were declared
inadmissible. Making an assessment on a reasonable basis, the
Court awards EUR 1,500 for the costs incurred under this head.
149. With regard to the costs and expenses incurred by the
applicant after her application was declared admissible, referred
to in з 143, items (ii) to (iv), the Court notes that a large
amount of legal and technical work was required from both parties
in preparation of this case. Consequently, the Court regards these
as necessarily incurred and awards the whole sum required under
this head, i.e. EUR 3,000 in respect of Mr Koroteyev's fees and
expenses and GBP 3,540 in respect of fees and expenses for the
applicant's British lawyers and advisers.
150. Finally, as regards the costs related to the hearing of 1
July 2004, the Court notes that the presence of all four of the
applicant's representatives was not absolutely necessary. Making a
reasonable assessment, the Court awards EUR 2,000 and GBP 2,000
under this head respectively for the Russian and British lawyers'
fees and expenses.
151. Any tax that may be chargeable should be added to the
above amounts.
C. Default interest
152. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the
Convention;
2. Holds:
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final in
accordance with Article 44 з 2 of the Convention, EUR 6,000 (six
thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable on that amount;
(b) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, the following
amounts:
(i) EUR 6,500 (six thousand five hundred euros) in respect of
costs and expenses incurred by her Russian lawyers, to be
converted into Russian roubles at the rate applicable at the date
of settlement less EUR 1,732 (one thousand seven hundred thirty
two euros), already paid to Mr Koroteyev in legal aid;
(ii) GBP 5,540 (five thousand five hundred and forty pounds) in
respect of costs and expenses incurred by her British lawyers and
advisers;
(iii) any tax that may be chargeable on the above amounts;
(c) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points.
3. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 9 June 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 з 2 of the Convention and Rule 74
з 2 of the Rules of Court, the concurring opinion of Mr A. Kovler
is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
I share the Chamber's unanimous opinion that the Russian
authorities failed in the present case to fulfil their positive
obligation to protect the applicant's rights under Article 8 of
the Convention. At the same time, I would like to explain my
approach to the specific interest protected in the present case.
In the leading case Lopez Ostra v. Spain, referred to in the
judgment, the Court found that the State had not succeeded in
striking a fair balance between the interest of the town's
economic well-being and the applicant's effective enjoyment of her
right to respect for her home and her private and family life. In
the Hatton case, also cited, the Court adopted the same line of
reasoning (although the Grand Chamber did not ultimately find a
violation of Article 8). In a recent case concerning noise
pollution (Moreno {Gomez} v. Spain, No. 4143/02, 16 November
2004), the problem was again regarded as having an effect both on
the applicant's private life and on her home.
On the other hand, in the Guerra and Others v. Italy case
(judgment of 19 February 1998, 14967/89, Reports 1998-I), where
access to information on industrial hazards was at issue, the
Court found a violation only of the applicants' right to private
and family life, without mentioning their "homes". I would be
inclined to agree with the latter approach and to consider that
"environmental rights" (in so far as they are protected by Article
8) relate more to the sphere of "private life" than to the "home".
In my view, the notion of "home" was included in the text of this
provision with the clear intention of defining a specific area of
protection that differs from "private and family life". In support
of this interpretation, I would quote from a dissenting opinion by
Judge Greve in the Hatton judgment, in which she stated that
"environmental rights are nonetheless of a different character
from the core right not to have one's home raided without a
warrant". Therefore, without casting doubt on the Court's finding
of a violation of Article 8, I would prefer to describe the
violation as an unjustified interference with the applicant's
private life.
Consequently, the State's omission in the present case lies not
only in the authorities' failure to resettle the applicant to a
safer area. The State has a margin of appreciation in devising
measures to strike the proper balance between respect for Article
8 rights and the interests of the community as a whole. In the
present case, therefore, the resettlement of those living near the
plant may be regarded as only one of many possible solutions, and,
in my view, not the best one: had the authorities been stricter
and more consistent in applying domestic environmental
regulations, the problem would have been resolved without any need
to resettle the population and with a positive impact on the
environmental situation in general.
APPENDIX - EXTRACTS FROM THE GOVERNMENT'S REPORT ON THE
ENVIRONMENTAL SITUATION IN CHEREPOVETS <*>
--------------------------------
<*> The data provided above reflects only the rezalts received
from stationary monitoring post no. 1 of the State Agency on
Hidrometeorology, the nearest to the applicant's house.
A. Dynamics of air pollution in 1999 - 2003 (compared to MPLs)
------------------T-------------T------T------T------T------T------¬
¦ Toxic Element ¦Average daily¦ 1999 ¦ 2000 ¦ 2001 ¦ 2002 ¦ 2003 ¦
¦ ¦ 3 ¦ ¦ ¦ ¦ ¦ ¦
¦ ¦ MPL, mg/m ¦ ¦ ¦ ¦ ¦ ¦
+-----------------+-------------+------+------+------+------+------+
¦Nitrogen dioxide ¦0.04 ¦0.027 ¦0.022 ¦0.018 ¦0.016 ¦0.025 ¦
+-----------------+-------------+------+------+------+------+------+
¦Nitric oxide ¦0.06 ¦0.021 ¦0.015 ¦0.011 ¦0.01 ¦0.024 ¦
+-----------------+-------------+------+------+------+------+------+
¦Ammonia ¦0.04 ¦0.0125¦0.011 ¦0.011 ¦0.005 ¦0.016 ¦
+-----------------+-------------+------+------+------+------+------+
¦Manganese ¦0.001 ¦0.0006¦0.002 ¦0.0007¦0.0004¦0.0008¦
+-----------------+-------------+------+------+------+------+------+
¦Carbonic oxide ¦3.0 ¦1.884 ¦1.3 ¦1.5 ¦1.28 ¦1.76 ¦
+-----------------+-------------+------+------+------+------+------+
¦Dust ¦0.15 ¦0.264 ¦0.25 ¦0.24 ¦0.2 ¦0.17 ¦
+-----------------+-------------+------+------+------+------+------+
¦Hydrogen sulphide¦0.008 ¦0.0002¦0.0007¦0.0004¦0.0006¦0.0006¦
+-----------------+-------------+------+------+------+------+------+
¦Carbon disulphide¦0.005 ¦0.0187¦0.015 ¦0.011 ¦0.004 ¦0.0056¦
+-----------------+-------------+------+------+------+------+------+
¦Phenols ¦0.003 ¦0.002 ¦0.0014¦0.0012¦0.0009¦0.0014¦
+-----------------+-------------+------+------+------+------+------+
¦Formaldehyde ¦0.003 ¦0.0136¦0.02 ¦0.013 ¦0.0099¦0.019 ¦
+-----------------+-------------+------+------+------+------+------+
¦Sulphur dioxide ¦0.05 ¦0.0049¦0.0056¦0.0021¦0.0024¦0.0037¦
L-----------------+-------------+------+------+------+------+-------
B. Average and maximal concentrations of toxic elements
over the past 20 - 30 years
------------------T-----------T-----------T------------T-----------T------------¬
¦ Substance ¦ 1974 ¦ 1983 ¦ 1989 ¦ 1996 ¦ 2003 ¦
¦ monitored ¦ ¦ ¦ ¦ ¦ ¦
+-----------------+-----T-----+-----T-----+-----T------+-----T-----+-----T------+
¦ ¦Aver.¦Max. ¦Aver.¦Max. ¦Aver.¦ Max. ¦Aver.¦Max. ¦Aver.¦ Max. ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Dust ¦ - ¦ - ¦0.3 ¦4.0 ¦0.3 ¦ 2.1 ¦0.1 ¦1.2 ¦0.2 ¦ 0.8 ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Sulphurous ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦
¦anhydride ¦0.08 ¦ 0.86¦0.04 ¦0.79 ¦0.03 ¦ 1.170¦0.004¦0.160¦0.004¦ 0.114¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Carbon oxide ¦7 ¦20 ¦1 ¦7 ¦1 ¦16 ¦1 ¦7 ¦1 ¦18 ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Nitrogen dioxide ¦0.07 ¦ 0.65¦0.04 ¦0.31 ¦0.04 ¦ 0.23 ¦0.02 ¦0.16 ¦0.03 ¦ 0.45 ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Nitrogen oxide ¦ - ¦ - ¦0.07 ¦0.058¦0.05 ¦ 0.43 ¦0.02 ¦0.30 ¦0.03 ¦ 1.02 ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Hydrogen sulphide¦ - ¦ - ¦0.006¦0.058¦0.002¦ 0.029¦0.002¦0.023¦0.001¦ 0.013¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Carbon disulphide¦ - ¦ - ¦ - ¦ - ¦ - ¦ - ¦0.011¦0.076¦0.006¦ 0.046¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Phenol ¦ - ¦ - ¦ - ¦ - ¦0.003¦ 0.018¦0.003¦0.04 ¦0.001¦ 0.021¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Ammonia ¦ - ¦ - ¦0.27 ¦5.82 ¦0.08 ¦ 1.37 ¦0.02 ¦0.23 ¦0.02 ¦ 0.21 ¦
+-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+------+
¦Formaldehyde ¦ - ¦ - ¦ - ¦ - ¦ - ¦ - ¦0.014¦0.129¦0.019¦ 0.073¦
L-----------------+-----+-----+-----+-----+-----+------+-----+-----+-----+-------
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