CASE of GUERRA and OTHERS V

CASE OF GUERRA AND OTHERS v. ITALY

(116/1996/735/932)

JUDGMENT

STRASBOURG

19 February 1998

The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

List of Agents

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A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC 's-Gravenhage)

SUMMARY1

Judgment delivered by a Grand Chamber

Italy – failure to provide local population with information about risk factor and how to proceed in event of an accident at nearby chemical factory

I. Article 10 of the convention

A. Government’s preliminary objection (non-exhaustion of domestic remedies)

First limb – urgent application (Article 700 of the Code of Civil Procedure): would have been a practicable remedy if applicants’ complaint had concerned failure to take measures designed to reduce or eliminate pollution; in instant case, however, such an application would probably have resulted in factory’s operation being suspended.

Second limb – lodging a criminal complaint: would at most have secured conviction of factory’s managers, but certainly not communication of any information.

Conclusion: objection dismissed (nineteen votes to one).

B.Merits of complaint

Right of public to receive information had been recognised by Court on a number of occasions in cases concerning restrictions on freedom of press, as a corollary of specific function of journalists, which was to impart information and ideas on matters of public interest – facts of present case were, however, clearly distinguishable from aforementioned cases since applicants complained of a failure in system set up pursuant to relevant legislation – although prefect had prepared emergency plan on basis of report submitted by factory and plan had been sent to Civil Defence Department on 3 August 1993, applicants had yet to receive relevant information.

Freedom to receive information basically prohibited a government from restricting a person from receiving information that others wished or might be willing to impart to him – that freedom could not be construed as imposing on a State, in circumstances such as those of present case, positive obligations to collect and disseminate information of its own motion.

Conclusion: Article 10 not applicable (eighteen votes to two).

II. Article 8 of the Convention

Direct effect of toxic emissions on applicants’ right to respect for their private and family life meant that Article 8 was applicable.

Applicants complained not of an act by State but of its failure to act – object of Article8 was essentially that of protecting individual against arbitrary interference by public authorities – it did not merely compel State to abstain from such interference: in

addition to that primarily negative undertaking, there might be positive obligations inherent in effective respect for private or family life.

In present case all that had to be ascertained was whether national authorities had taken necessary steps to ensure effective protection of applicants’ right to respect for their private and family life.

Ministry for the Environment and Ministry of Health had jointly adopted conclusions on safety report submitted by factory – they had provided prefect with instructions as to emergency plan, which he had drawn up in 1992, and measures required for informing local population – however, District Council concerned had not by 7 December 1995 received any document concerning the conclusions.

Severe environmental pollution might affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely – applicants had waited, right up until production of fertilisers had ceased in 1994, for essential information that would have enabled them to assess risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in event of an accident at factory.

Respondent State had not fulfilled its obligation to secure applicants’ right to respect for their private and family life.

Conclusion: Article 8 applicable and violation (unanimously).

III.Article 2 of the Convention

Conclusion: unnecessary to consider case under Article 2 also (unanimously).

IV.Article 50 of the Convention

A.Damage

Pecuniary damage: not shown.

Non-pecuniary damage: each applicant awarded a specified sum.

B.Costs and expenses

Having regard to its lateness and amount already granted in legal aid, Court dismissed claim.

Conclusion: respondent State to pay each applicant a specified sum (unanimously).

COURT’S CASE-LAW REFERRED TO

9.10.1979, Airey v. Ireland; 26.3.1987, Leander v. Sweden; 21.2.1990, Powell and Raynerv. the United Kingdom; 19.2.1991, Zanghì v. Italy; 27.8.1991, Demicoli v. Malta; 27.8.1991, Philis v. Greece; 26.11.1991, Observer and Guardian v. the United Kingdom; 25.6.1992, Thorgeir Thorgeirson v. Iceland; 9.12.1994, Lόpez Ostra v. Spain; 8.6.1995, Yağcı and Sargιn v. Turkey

In the case of Guerra and Others v. Italy2,

The European Court of Human Rights, sitting, in accordance with Rule53 of Rules of Court B3, as a Grand Chamber composed of the following judges:

MrR. Bernhardt, President,

MrThór Vilhjálmsson,

MrF. Gölcüklü,

MrF. Matscher,

MrB. Walsh,

MrR. Macdonald,

MrC. Russo,

MrA. Spielmann,

MrsE. Palm,

MrA.N. Loizou,

SirJohn Freeland,

MrM.A. Lopes Rocha,

MrG. Mifsud Bonnici,

MrJ. Makarczyk,

MrB. Repik,

MrP. Jambrek,

MrP. Kūris,

MrE. Levits,

MrJ. Casadevall,

MrP. van Dijk,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 28 August 1997 and 27 January 1998,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 16 September 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 14967/89) against the Italian Republic lodged with the Commission under Article 25 by forty Italian nationals on 18October 1988. The names of the applicants are: Ms Anna Maria Guerra, Ms Rosa Anna Lombardi, Ms Grazia Santamaria, Ms Addolorata Caterina Adabbo, Ms Anna Maria Virgata, Ms Antonetta Mancini, Ms Michelina Berardinetti, Ms Maria Di Lella, Ms Maria Rosa Porcu, Ms Anna Maria Lanzetta, Ms Grazia Lagattolla, Ms Apollonia Rinaldi, Ms Renata Maria Pilati, Ms Raffaela Ciuffreda, Ms Raffaella Lauriola, Ms Diana Gismondi, Ms Filomena Totaro, Ms Giulia De Feudis, Ms Sipontina Santoro, MsMaria Lucia Rita Colavelli Tattilo, Ms Irene Principe, Ms Maria De Filippo, Ms Vittoria De Salvia, Ms Anna Totaro, Ms Maria Telera, MsGrazia Telera, Ms Nicoletta Lupoli, Ms Lisa Schettino, Ms Maria Rosaria Di Vico, Ms Gioia Quitadamo, Ms Elisa Anna Castriotta, MsGiuseppina Rinaldi, Ms Giovanna Gelsomino, Ms Antonia Iliana Titta, Ms Concetta Trotta, Ms Rosa Anna Giordano, Ms Anna Maria Trufini, MsAngela Di Tullo, Ms Anna Maria Giordano and Ms Raffaela Rinaldi.

The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Italy recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.

2.On 4 October 1997 the applicants designated the lawyer who would represent them (Rule 31 of Rules of Court B). The lawyer was given leave by the President of the Chamber to use the Italian language (Rule 28 § 3).

3.The Chamber to be constituted included ex officio Mr C. Russo, the elected judge of Italian nationality (Article 43 of the Convention), and MrR. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 17September 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, had drawn by lot the names of the other seven members, namely Mr F. Matscher, Mr A. Spielmann, Sir John Freeland, MrM.A. Lopes Rocha, Mr J. Makarczyk, Mr J. Casadevall and Mr P. van Dijk (Article 43 in fine of the Convention and Rule 21 § 5).

4.As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Italian Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the applicants’ memorial on 14 April 1997 and the Government’s memorial on 16 April.

5.On 29 April 1997 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.

6.In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 May 1997. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government
MrG. Raimondi, magistrato, on secondment to the
Diplomatic Legal Service,
Ministry of Foreign Affairs,co-Agent,
MrG. Sabbeone, magistrato, on secondment to the
Legislative Office, Ministry of Justice,Counsel;

(b) for the Commission
MrI. Cabral Barreto,Delegate;

(c) for the applicants
MsN. Santilli, Lawyer, Counsel.

The Court heard addresses by Mr Cabral Barreto, Ms Santilli, MrSabbeone and Mr Raimondi.

7.On 3 June 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 53 § 1).

8.The Grand Chamber to be constituted included ex officio Mr Ryssdal, the President of the Court, and Mr Bernhardt, the Vice-President, together with the other members and the four substitutes of the original Chamber, the latter being Mr P. Kūris, Mr G. Mifsud Bonnici, Mr Thór Vilhjálmsson and Mr B. Repik (Rule 53 § 2 (a) and (b)). On 3 July 1997 the President, in the presence of the Registrar, drew by lot the names of the seven additional judges needed to complete the Grand Chamber, namely Mr F. Gölcüklü, MrB. Walsh, Mr R. Macdonald, Mrs E. Palm, MrA.N.Loizou, MrP.Jambrek and Mr E. Levits (Rule 53 § 2 (c)).

9.On 29 July 1997 the President gave the Delegate of the Commission leave to make observations on the applicants’ claims for just satisfaction. The registry received the observations on 19 September 1997.

10.After consulting the Agent of the Government, the applicants’ representative and the Delegate of the Commission, the Grand Chamber had decided on 28 August 1997 that it was unnecessary to hold a new hearing following the relinquishment of jurisdiction by the Chamber (Rule 40 taken together with Rule53 § 6).

11.As Mr Ryssdal was unable to take part in the deliberations on 27January 1998, his place as President of the Grand Chamber was taken by Mr Bernhardt (Rule 21 § 6 taken together with Rule 53 § 6).

AS TO THE FACTS

I.The Circumstances of the case

A.The Enichem agricoltura factory

12.The applicants all live in the town of Manfredonia (Foggia). Approximately one kilometre away is the Enichem agricoltura company’s chemical factory, which lies within the municipality of Monte Sant’Angelo.

13.In 1988 the factory, which produced fertilisers and caprolactam (a chemical compound producing, by a process of polycondensation, a polyamide used in the manufacture of synthetic fibres such as nylon), was classified as “high risk” according to the criteria set out in Presidential Decree no. 175 of 18 May 1988 (“DPR 175/88”), which transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population.

14.The applicants said that in the course of its production cycle the factory released large quantities of inflammable gas – a process which could have led to explosive chemical reactions, releasing highly toxic substances – and sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and above all, arsenic trioxide. These assertions have not been disputed by the Government.

15.Accidents due to malfunctioning have already occurred in the past, the most serious one on 26 September 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning.

16.In a report of 8 December 1988 a committee of technical experts appointed by Manfredonia District Council established that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia. It was noted in the report that the factory had refused to allow the committee to carry out an inspection and that the results of a study by the factory itself showed that the emission treatment equipment was inadequate and the environmental-impact assessment incomplete.

17.In 1989 the factory restricted its activity to the production of fertilisers, and it was accordingly still classified as a dangerous factory covered by DPR 175/88. In 1993 the Ministry for the Environment issued an order jointly with the Ministry of Health prescribing measures to be taken by the factory to improve the safety of the ongoing fertiliser production, and of caprolactam production if that was resumed (see paragraph 27 below).

18.In 1994 the factory permanently stopped producing fertiliser. Only a thermoelectric power station and plant for the treatment of feed and waste water continued to operate.

B.The criminal proceedings

1.Before the Foggia Magistrates’ Court

19.On 13 November 1985 420 residents of Manfredonia (including the applicants) applied to the Foggia Magistrates’ Court (pretore) complaining that the air had been polluted by emissions of unknown chemical composition and toxicity from the factory. Criminal proceedings were brought against seven directors of the impugned company for offences relating to pollution caused by emissions from the factory and to non-compliance with a number of environmental protection regulations.

Judgment was given on 16 July 1991. Most of the defendants escaped a prison sentence, either because the charges were covered by an amnesty or were time-barred, or because they had paid an immediate fine (oblazione). Only two directors were sentenced to five months’ imprisonment and a fine of two million lire and ordered to pay damages to the civil parties, for having had waste dumps built without prior permission, contrary to the relevant provisions of DPR 915/82 on waste disposal.