On 30
January 2025, the Court delivered a long-awaited judgment in the case of Cannavacciuolo and Others v. Italy
(earlier known as Di Caprio and Others v. Italy).
This case
concerns decade-long, large-scale pollution caused by illegal dumping, burying and
uncontrolled abandonment of waste, often conducted by criminal organised
groups, in parts of the Campania region, called ‘Terra dei Fuochi’ – the
land of fires. The area is home to about 2,9 million people.
In contrast
with the Court’s earlier cases on the waste problems of the region (Di Sarno and Others v. Italy
and Locascia and Others v. Italy),
this case is not about the failure of the Italian authorities to ensure waste
collection, treatment, and disposal, but to react to the ongoing pollution
phenomenon caused by large-scale illicit waste disposal.
Cannavacciuolo and Others
has been referred to as ground-breaking.
It is a lengthy judgment. This blog post argues that three aspects of it are worthy
of particular attention: (I) The restricted locus standi of associations
and excluded victim status of individuals not living in areas outside certain
administrative areas. (II) The Court applies and finds a violation, for the first time, of the right to life under Article 2 with respect to large-scale environmental pollution. The
Court established an ‘imminent risk’ to life without the need for the
applicants to prove that they individually had been subject to the pollution
and developed health issues caused by it. (III) The Court, for the first time,
used the pilot judgment procedure in an environmental case.
I. Restricted Locus Standi of Associations and Victim
Status of Individuals
The first central matter in Cannavacciuolo and Others
is that it establishes that the Court’s lenient
requirements of standing for associations in the context of climate change are
applicable only in this strictly defined area (para. 220). It thus confirmed Yusufeli İlçesini Güzelleştirme
Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.) (para. 41), and
Verein KlimaSeniorinnen Schweiz and
Others v. Switzerland’s reference
to the more lenient criteria applying only in the ‘specific context’ of climate
change (para. 499).
This confirms the Court’s long-standing case law on
the restricted standing of associations. For reasons of docket control, the
Court may not be easily convinced to lax its admissibility criteria. Over the
years, the Court has struggled to keep up with the influx of applications.
Yet, as noted by judge Krenc in his concurring opinion,
it is difficult to see how the substantive arguments that justified the
broadening of the requirements of locus standi for associations in a
climate change context could not apply to the situation of complex
environmental harm in terms of wide-scale pollution with diffuse effects (para.
6 of the opinion). In KlimaSeniorinnen,
the Court referred to the global and complex nature of climate change, that
intergenerational burden-sharing may come into question, and that litigation
may require significant resources, the outcome affecting many (paras. 489 and
497). The Court also referred to the urgency, severity, and grave risk of
irreversibility of climate change (para. 499). These justifications often also
apply in the context of severe and diffuse environmental pollution. In short, Cannavacciuolo and Others
indicates that the Court’s sui generis
singling out of climate change cases in terms of more
relaxed criteria for standing can be artificial.
What is more, many of the justifications used in KlimaSeniorinnen
for broadening the standing of associations did not particularly concern
climate change but environmental matters generally. In KlimaSeniorinnen,
the Court relied on the Aarhus Convention,
which concerns environmental matters,
CJEU case law on the implementation of the Aarhus Convention, and a comparative
overview of the role and position of legal standing of non-governmental
organisations in environmental matters in Council of Europe Member States
(para. 491). These legal materials concern the standing of associations in
environmental matters, not only climate change.
It is also
notable that the Court only allowed victim status to those individual
applicants who resided in administrative areas designated as polluted by the
authorities (para. 248). This was so despite the complexity and geographically
far-reaching impacts that environmental pollution may have, and the substantive
findings that the authorities had not sufficiently investigated those impacts
(paras 405, 410-411). It demonstrates how much of the Court’s argumentation in
environmental matters can rely on the establishment of facts
on the domestic level. Restricting access to court based on administrative
areas alone also seems hard to reconcile with the nature of large-scale
environmental pollution, the Aarhus Convention,
and the IACtHR’s opinion
on transboundary harm.
II. Application of the Right to Life in a Case Concerning Large-Scale Environmental Pollution
The second
main aspect of the case is that the Court, for the first time, applied positive
obligations under the right to life in a case on large-scale environmental pollution. This
calls for particular attention to the justifications for applying Article 2. The
Court applied the requirement of a ‘real and imminent’ risk to life for the
positive obligations to be triggered, the term ‘real’ corresponding to ‘the
existence of a serious, genuine and sufficiently ascertainable threat to life’,
and ‘imminence’ entailing an element of material and temporal proximity (para.
377, see also KlimaSeniorinnen,
para. 513).
The Court
considered that there was ‘ample evidence in the case file suggesting
that the national authorities knew about the existence’ of the activities of
illegal dumping and burying of hazardous waste at least from the early 1990s,
and the illegal combustion at least since 2004 (para. 387). The authorities had
also been aware of rising cancer and mortality rates, and the information had
raised ‘credible prima facie concerns about serious, potentially life‑threatening
health implications for the affected citizens’ (para. 388, compare and contrast
Di
Sarno and Others, para. 108). The Court accepted ‘the existence of a “sufficiently serious,
genuine and ascertainable” risk to life to engage Article 2 of the Convention
and trigger a duty to act on the authorities’ part’. The risk was ‘imminent’,
given ‘the applicants’ residence, over a considerable period of time, in
municipalities identified by the State authorities as being affected by the
pollution phenomenon at issue, which had been ongoing, omnipresent and
unavoidable for decades’ (para. 390). The Court in this way, for the first time,
applied and accepted the existence of a ‘real and imminent’ risk to life which
originated from pollution and did not have to manifest itself in
life-threatening conditions of the applicants. The actual imminence of death for
each individual may thus have been rather remote. (See, similarly, KlimaSeniorinnen under Article 8 with respect to climate
change, para. 437, and for criticism and case law indicating a more demanding
standard of imminence, judge Eicke’s dissenting opinion, para. 60).
Individuals affected by environmental pollution face
many challenges when seeking redress before courts. One is the establishment of
causal links between pollution and health impacts. Importantly, in Cannavacciuolo and
Others, the Court did ‘not consider it necessary or appropriate
to require that the applicants demonstrate a proven link between the exposure
to an identifiable type of pollution or even harmful substance and the onset of
a specific life-threatening illness or death as a result of it’ (para. 390). The Court further held that ‘given
that the general risk had been known for a long
time […] the fact that there was no scientific certainty about the precise
effects the pollution may have had on the health of a particular applicant
cannot negate the existence of a protective duty’ (para. 391). The
Court thus explicitly dealt with and rejected a need to show exposure to
pollution or causal links between the pollution and individual health problems
of the applicants. In this respect, the Court emphasised the need for Convention rights to
be effective.
This is an important statement. It contrasts with other cases involving the
applicability of Article 2 in relation to environmental pollution. In Brincat and Others v. Malta,
the Court had held that although all but one of the
applicants had health complications related to the exposure to asbestos, they
had not been diagnosed with malignant mesothelioma. Further, it could ‘neither be said that their conditions
constitute an inevitable precursor to the diagnosis of that disease, nor that
their current conditions are of a life-threatening nature’. On these grounds, Article
2 did not apply ratione persone to many of the applicants (para. 84).
Similarly, in L.C.B. v. the United Kingdom,
the Court was not satisfied that there was a causal link between the exposure
of a father to radiation and a child subsequently developed leukemia (para.
39). In Budayeva and Others v. Russia,
the Court similarly referred to a causal link between the serious
administrative flaws and the death of the applicants’ relative (para. 158).
The positive obligations under Articles 2 and 8 are
often overlapping in environmental cases. The question of causation is often an
issue before the Court in environmental cases also under Article 8. Generally
speaking, the Court holds that when applicants submit that pollution negatively
affects their health, they must present evidence of their illness and the
causal link between it and the impugned pollution (for instance, Fägerskiöld v.
Sweden (dec.)).
In some more
recent environmental cases involving Article 8, the Court has made a less demanding
assessment of causation, but has still often accorded it importance. The Court
has held that although it could not ‘be said, owing to the lack of medical
evidence, that the pollution from the waste management crisis necessarily
caused damage to the applicants’ health’, the available evidence made it clear
that the extensive exposure to waste made the applicants more vulnerable to
various illnesses (Locascia and Others,
para. 130; see also Kotov and Others v. Russia,
para. 107). In Tătar v. Romania, the Court also held that the applicants had
not proven a causal link between the exposure to sodium cyanide and asthma.
Yet, the existence of a serious and substantial health risk raised a positive
obligation for the state to adopt reasonable and adequate measures capable of
protecting the right to respect for private life and home and more generally,
to enjoy a healthy and protected environment (para 107, see also Fadeyeva v. Russia, para. 92).
In Cannavacciuolo and
Others, the Court explicitly
refused to adopt the logic of proving a link between the pollution and
deteriorated health conditions of the applicants. It accepted the existence of
a ‘real and imminent’ risk to life that triggered the applicability of Article
2. For the first time in the Court’s jurisprudential practice, such a risk
originated from exposure to pollution that did not have to be proven for each
individual, or to manifest itself in life-threatening conditions of the
applicants.
As to the ensuing substantive assessment, the following points are
notable. The Court generally offers discretion with respect to positive
obligations
in this types of matters. The starting point is that ‘the choice of means is in principle a matter that
falls within the Contracting State’s margin of appreciation’ (para. 381, 396). Yet, the Court held that the authorities
were obliged to:
· comprehensively
assess the pollution phenomenon by identifying the affected areas and the
nature and extent of the contamination;
· take
action in order to manage any revealed risk;
· investigate
the impacts of the pollution on the health of individuals living in affected
areas;
·
take
action to combat the illegal dumping, burying and incineration of waste; and
· provide individuals living in the affected
areas with timely information enabling them to assess the risks to their health
and lives (para. 395).
The Court reviewed and found insufficient the measures
taken by the authorities as to the management of risks (paras 412-423),
investigation of health impacts (paras 424-430), to combat the illegal dumping,
burying and incineration of waste (para. 431), monitoring by law-enforcement
bodies (paras. 432-434), criminal investigations and judicial proceedings
(paras 435-447), waste cycle management (para. 448-453), and the provision of
information (paras 454-458).
The Court
emphasised that the delay by the authorities was unacceptable (paras. 460-462).
Overall, it had not been established that the state had done all that could have been required of it to protect
the applicants’ lives (para. 465). The Court found a failure of the
State to fulfil its positive obligations due to the lack of a systematic,
coordinated, and comprehensive response to the problem (paras. 396-468).
III.
The Use of a Pilot Judgment Procedure
The third
central element is that the Court applied the pilot judgment procedure in the
context of environmental harm. It gave detailed indications of measures to be
implemented by the Italian authorities within two years, including i) a
comprehensive, and coordinated strategy to deal with the problem, comprising
clear timeframes for its implementation and the required resources (paras.
494-498); ii) an independent monitoring mechanism (para. 499); and iii) a
public platform with all relevant information on the problem (para. 500).
This breaks
new ground and can emphasise the gravity
of the subject matter. After its introduction,
the Court has used the pilot judgment procedure relatively sparingly. Pilot
judgments have mainly concerned excessive length of proceedings, prolonged
enforcement of court decisions and lack of enforcement in national judicial
systems, restitution or compensation schemes for lost property in a transition
context, and inhuman and/or degrading detention. The Court has also applied the
pilot judgment procedure to voting rights, and concerning the protection of the
rule of law (the Registry’s factsheet).
The use of a pilot judgment procedure in an environmental pollution case is
unprecedented.
The pilot
judgment procedure allowed the Court to indicate in a somewhat more detailed
way the required general measures needed to remedy the pollution problem. Questions
of remedies have been considered a big challenge
of the Court especially in environmental matters such as climate change. The
extent and generality of remedial obligations can have particular importance in
this context (Auz).
Yet, the Court is often limiting itself to declaratory
findings with a possible
ordering of just satisfaction. The Court’s traditional approach to remedies and the
implementation of its judgments is, indeed, that ‘its judgments are essentially declaratory in nature and that,
in general, it is primarily for the State concerned to choose, subject to
supervision by the Committee of Ministers, the means to be used in its domestic
legal order in order to discharge its obligation under Article 46 of the
Convention, provided that such means are compatible with the conclusions set
out in the Court’s judgment’ (Marckx v. Belgium, para. 58; for instance Varga and Others v.
Hungary, para. 101).
Over the last decades, the Court’s practice has been
undergoing changes towards a less declaratory approach (Keller and Marti, Colandrea, Leach, Sicilianos). The Court has generally
indicated the need for remedial action, such as cleaning up of the territory,
in environmental cases (Cordella and Others v. Italy,
para. 182).
Yet, it has
until Cavannacciuolo and Others
refused to apply the pilot judgment procedure in environmental cases. In Cordella and Others v. Italy,
it referred to the technical complexity of the measures necessary for the
decontamination of the area concerned, which falls within the competence of the
domestic authorities (para. 180). In KlimaSeniorinnen
the Court similarly held that due to the ‘complexity and the nature of the issues involved, the Court is unable to
be detailed or prescriptive as regards any measures to be implemented in order
to effectively comply with the present judgment’ (para. 657).
The Court established a number of measures to be taken
by the respondent government. In this way, Cannavacciuolo and Others
shows that the pilot procedure’s extension ‘beyond the
sole interests of the individual applicant’ can involve concerns rather
directly related to the environment despite human rights law’s emphasis on the
harm to individuals caused by environmental problems (Redgewell;
see for instance Kyratos v. Greece,
para. 52). The Court for instance explicitly
referred to the importance of ‘decontamination of areas affected by the
environmental pollution at issue’, and rendering contaminated areas safe (para.
498).
From a
comparative perspective, the established general measures were not particularly
intrusive. The Human Rights Committee (Portillo Cáceres v. Paraguay,
and Benito Oliveira et al. v. Paraguay)
and the Inter-American Court of Human Rights (La Oroya Community v. Peru,
Kaliña and Lokono Peoples v.
Suriname, see also Perez-Leon-Acevedo)
have required significantly more intrusive remedies. There are many possible explanations
for the existing variations in remedial intrusiveness between human rights
bodies. The Court’s use of a pilot judgment for such developments may provide
some support for the explanation that the remedial aspect of the Court’s case
law is developing where ‘legal stock’
for indicating general measures to implement the case law may be somewhat more
abundant: it took place under Article 46 rather than under Article 41.
Further, the general measures indicated may be ‘compensating’
for the lack of broad individual access to the Court while emphasising
subsidiarity and the management of its own docket. In Cannavacciuolo and Others,
the measures indicated include, among other things, ‘measures aimed at identifying the areas
affected by illegal waste disposal practices and assessing the nature and
extent of their contamination’ (para 495), and ‘measures concerning the assessment of affected sites beyond
those located within agricultural land are carried out in a comprehensive and
coordinated manner’ (para. 496). The absence of such assessments was precisely
what led to some of the individual applicants losing victim status ratione
personae (para. 248-249).
Finally, the
use of a pilot judgment procedure in Cannavacciuolo and Others
may provide new insights into what an underlying systemic or structural problem triggering
the application of Article 46 may be. The Court held that the violation
originated in a widespread, large-scale pollution phenomenon carried out over
decades in a way often described as ‘systematic’ and that there had been a
systemic failure to correspond adequately, in terms of timeliness and measures
taken, to this pollution (para. 490).
It is notable that the
systemic problem identified was related to insufficiency and belatedness in the
domestic authorities’ response to the problem, but not to an ineffective
implementation of earlier judgments. One
of the aims of the pilot judgment procedure is to facilitate the effective
implementation of the Court’s judgments (Suljagić v. Bosnia
and Herzegovina, para. 61; Olaru and Others v.
Moldova, para. 50). Many pilot
judgments reflect an existing difficulty or unwillingness to adjust
domestic practices in response to the Court’s adjudication (Greens and M.T. v. the United
Kingdom; Burdov v. Russia (No. 2),
para. 134; W.D. v. Belgium,
paras 161-162; Torreggiani and Others v. Italy,
para. 88; Neshkov and Others v. Bulgaria,
para. 268). Although an inactivity in the response to the Court’s judgments has
not always been underlying the application of a pilot judgment procedure (for
instance, Kurić and Others v. Slovenia,
paras. 410-411), the Court in most pilot judgments refers to the fact
that it already has found violations of the Convention in numerous similar
applications, or even a second set of violations with respect to the same
applicants (Broniowski v. Poland,
para. 189; Burdov v. Russia (No. 2), para. 133; Rumpf v. Germany, para.
53; Wałęsa v. Poland,
para 319-320). In Cannavacciuolo and Others,
the prior involvement of the Convention control
machinery was not part of identifying the systemic problem.
Conclusion
Cannavacciuolo and Others
is a rich judgment still to be
analysed in more detail. Yet, this post has argued that three
aspects of are worthy of particular attention. First, the Court was not willing
to apply more lenient requirements of standing for associations, indicating a
certain artificiality in KlimaSeniorinnen’s
justifications for singling out climate change matters
in this respect. It also restricted the victim status of individuals not living
outside certain administrative areas, even though the authorities were at fault
for not thoroughly assessing the territorial impacts of the pollution.
Second, for
the first time, the Court applied positive obligations under the right to life
in a case on large-scale environmental pollution. The Court found an imminent risk to life
without the need for the applicants to prove that they individually had been
subject to the pollution and developed health issues caused by it. While it may
potentially allow for a rather far-fetched ‘imminence’ of the actual threat to the
life of the applicants, it provides an important answer to the practical challenges in seeking redress before
courts in environmental matters.
Third, the
pilot judgment procedure was, for the first time, applied in an environmental
case. This allowed the Court to indicate in a somewhat more detailed way the
required general measures needed to remedy the pollution problem. It may be a
small step towards further attention to the environment in a system which
primarily emphasises the harm caused to individuals.
In this
way, the case significantly contributes to the Court’s judicial practice in
environmental matters.
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