FOURTH SECTION

Application no.60908/11 Joseph BRINCAT and Others against Malta and 4 other applications (see list appended)

STATEMENT OF FACTS

The applicants are Maltese nationals (see Annex for details) . They are represented before the Court by Dr J. Galea , a lawyer practising in Valletta .

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants , may be summarised as follows.

1. Background of the case

From the 1950s/60s to early 2000 the applicants in application nos. 60908/11, 62110/11, 62129/11 and 62312/11 were full time employees at the Malta Drydocks (hereinafter, “the Corporation”), owned by the Government of Malta (1968-2003). Th e applicants in application no. 62338/11 are the wife and children of Mr. A. who also worked at the Malta Drydocks in the same period.

Mr. A died in 2009 as a result of a malignant cancer linked to exposure to asbestos ( mesothelioma ). The remaining applicants suffer from respiratory problems and health complications including plaques in their lungs. They have presented medical evidence substantiating their claims that their health complications, or in Mr A. ’ s case, his death, are likely to be a result of asbestos exposure.

The applicants in application nos. 6 0908/11, 62110/11, 62129/11 and 62338/11 and Mr A. had been, during their employment, constantly, heavily exposed to asbestos. Asbestos in its various forms was one of the substances stocked in the stores of the Malta Drydocks and ships incorporating asbestos as part of their structure were regularly entering the docks (or ship repair yard) and being repaired there by workers. Repairs included breaking apart the asbestos casing which served as an insulator, thereby releasing the particles into the surrounding air. Once a machine was repaired it had to be reinsulated by using asbestos from the stores. Such repairs were carried out both on the ships themselves and in the Corporation ’ s workshops. The applicants contended that asbestos particles would settle on the workers ’ clothing and be carried around, in a way in which it could also affect the lives of their family members, so creating further anguish and affecting their private and family life.

The applicants submitted that the causal link between asbestos and respiratory disease was documented as early as 1938 and that the causal link between mesothelioma and asbestos exposure was conclusively established in the early 1960s.

In the sixties Malta had become a member of the International Labour Organisation and the World Health Organisation, both having raised awareness on the danger of asbestos since the 1950s. Thus, information on the dangers of asbestos was certainly available and the authorities should have known of the dangers for the health of the employees. Nevertheless, the employees of the Corporation were neither informed nor protected from the dangers of asbestos in any way.

According to the applicants, the first publicly available, though not publicly disseminated, information on the fatal consequences of asbestos at the Malta Drydocks , would appear to be the judicial acts and judgment of a lawsuit in the names of Joseph Pellicano who died in 1979 from mesothelioma . In that case the then Comme rcial Court in a judgment of 30 August 1989 had established the Corporation ’ s responsibility for the death of Joseph Pellicano and awarded damages consisting of lucrum cessans and damnum emergens according to Maltese law.

There was no follow up to this judgment and employees were told that adequate ventilation and the wearing of cloth masks would protect them from asbestos. The applicants claimed that these masks were insufficient protection.

Following the death of a number of their colleagues, the applicants in application nos. 60908/11, 62110/11, 62129/11 and 62338/11 and Mr A. ran medical tests. X-rays revealed a considerable presence of asbestos in their lungs which formed plural plaques. This suggested that there was a strong probability that there were asbestos fibres present in their stomach lining as well as other digestive organs. Moreover, apart from the current physical difficulties, the presence of asbestos in their bodies made them prone to malignant mesothelioma , as occurred in the case of Mr A.

2. Constitutional redress proceedings

(a) The applicants in application nos. 60908/11, 62110/11, 62129/11 and 62312/11

On 7 May 2009 these applicants instituted separate constitutional redress proceedings complaining of a violation of Articles 2, 3 and 8 of the Convention, in that the State had failed to protect their health and the risk for their lives, which also constituted inhuman treatment and an interference with their private and family life. They requested the court to quantify a fair compensation for the breach of the said rights, liquidate such amount and order that a pecuniary remedy be paid to each applicant.

In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies the said applicants maintained that under Maltese law the ordinary civil remedies available did not provide for moral damages, but solely for pecuniary damages, which they claimed were independent from each other.

By four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction rejected the applications on the grounds of non-exhaustion of ordinary remedies. It held that the applicants should have lodged a civil action for damages arising out of tort or contractual liability. It considered that according to ECHR case-law, namely Zavoloka v. Latvia ( no. 58447/00 , § 40 , 7 July 2009 ), there was no general or absolute obligation on States to pay compensation for moral damages in such cases.

By a judgment of 11 April 2011 the Constitutional Court confirmed the first-instance decision. It considered that the Government, as an employer, could be sued civilly for their failings. The mere fact that such failings were of a constitutional nature did not entail that they could not be pursued through ordinary civil proceedings. The court considered that only after the applicants had pursued civil proceedings and in the event that, after a final judgment, they still felt that the breaches of their rights had not been redressed, could they institute constitutional redress proceedings. Ultimately, given that the Convention and national law did not provide for moral damage in such cases, the ordinary remedy would have been effective. In any event, in their constitutional application, the applicants had made no specific mention of non-pecuniary or moral damage, having claimed only compensation and pecuniary damage.

(b) The applicants in application no. 62388/11

On 19 April 2010 these applicants, heirs of the deceased Mr A., also instituted proceedings complaining of a violation of Articles 2, 3 and 8 of the Convention.

In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies the applicants maintained that under Maltese law the ordinary civil remedies available did not provide for moral damages, but solely for pecuniary damages, which they claimed were independent from each other.

By a judgment of 30 September 2010 the First Hall of the Civil Court in its constitutional jurisdiction dismissed the claims on the grounds of non-exhaustion of ordinary remedies. It considered that what the applicants ’ were ultimately requesting was an amount of money in damages. Given that ordinary remedies under the Civil Code could have led to an award of monetary compensation, the applicants should have sought those remedies before instituting constitutional redress proceedings.

By a judgment of 11 April 2011 the Constitutional Court confirmed the first-instance decision. It considered that the ordinary civil remedies available could have led to an award of damages to the applicants as happened in other similar cases. The simple fact that the complaints were constitutional in nature did not entail that ordinary civil proceedings would not be effective. They considered that only if the applicants pursued civil proceedings and that after a final judgment the applicants still felt that the breaches of their rights were not redressed, could they institute constitutional proceedings.

B. Relevant domestic law and international standards

1. Domestic law related to civil remedies

The relevant provisions in respect of ordinary remedies arising from the Civil Code, Chapter 16 of the Laws of Malta, read as follows:

Article 1031

“Every person, however, shall be liable for the damage which occurs through his fault.”

Article 1032

“(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.

(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.”

Article 1033

“Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom .”

Article 1045

“(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.

(2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.”

Article 1046

“Where in consequence of the act giving rise to damages death ensues, the court may, in addition to any actual loss and expenses incurred, award to the heirs of the deceased person damages, as in the case of permanent total incapacity, in accordance with the provisions of the last preceding article.”

2. Domestic law related to asbestos exposure

The Dock Safety Regulations, Subsidiary Legislation 424.03 were enacted in 1953 and amended in 1965, 1966, 1977, 1991, 1999 and 2009. The regulations made no mention of asbestos or o ccupational hazards caused by carcinogenic substances and a gents .

The Work Places (Health, Safety and Welfare) Regulations, Subsidiary Legislation 424.09 entered into force on 9 February 1987. Its part III concerns the prevention and control of occupational diseases and reads as follows:

Regulation 16

“ (1) No person may import or sell any chemical or material which is toxic, and no employer may use or suffer to be used any such chemical or material in any work place under his charge, without in either case the approval of the Superintendent [of Public Health] .

(2) In granting such approval as referred to in sub regulation (1), the Superintendent may impose any conditions as he may deem fit in the interest of public health. ”

Regulation 17

“ (1) It shall be the duty of the employer in so far as is reasonably practicable or possi ble, or when so directed by the Sanitary Authority, to substitute a harmf ul substance, process or technique at a place of work by a les s harmful substance, process or technique. ”

( S ub regulation 2, w ithout prejudice to t he generality of sub regulation (1), provides rules regarding specific materials such as sandstone, benzene, white lead and sulphate of lead , white or yellow phos phorus and polychlorinated biphe nyls, but no mention is made of asbestos.)

Regulation 18

“ (1) It shall be t he duty of the employer to make arrangements when so consi dered necessary by the Sanitary Authority and to the satisfaction of the said Authority, so that the atmosphere of work-rooms in which potentially dangerous or obnoxious substances are manufactu red, handled or used, is tested periodically.

(2) Such tests are to be carri ed out at sufficiently frequent intervals to ensure that toxic or irritating dusts, fumes, gases, fibres, mists or vapours are not pres ent in quantities which, in the opinion of the Sanitary Authority, are liable to injure health, and to ensure that an atmosphere which is fit for respiration is maintained.

(3) Work in, or entry into any place where there is reason to suspect that the atmosphere is toxic, poisonous, asphyxiati ng or otherwise dangerous to health, sha ll not be carried out until the atmosphere is suitably tested an d found free from any danger to health.

(4) The employer shall likewise e nsure periodical testing of the working environment where a potential hazard ex ists for heat, noise and other physical agents.

(5) All tests referred to in this regulation shall be conducted by trained personnel and, where possible, supervised by qualified personnel who possess experience in occupational health or hygiene.”

Regulation 19

“ (1) It shall be the duty of the employer to ensure that provisions are made for the s torage under safe conditions of substances dangerous to health.

(2) Without prejudice to the gen erality of this regulation such provisions should include the use of receptacles adequate to the storage of the dangerous substance, t he safe storage of receptacles, their proper labelling with a dange r symbol, their proper handling and where necessary an indication of the nature of the risk, the name of the substance or an indicatio n to identify it and, as far as practicable, the essential instructions giving details of the first aid that should be administered if th e substance should cause bodily harm or injury.

(3) Where any risk from gases ex ists, cylinders containing such gases should be stored in well venti lated places as far as possible from the place of work.”

Regulation 20

“ It shall be the duty of the e mployer to inform forthwith the Superintendent of the occurrence in any of his em ployees of any occupational disease or incidence as a re required to be notified by a medical practitioner under t he Health Care Professions Act.”

A further emphasis on employers ’ duties was made in the General Provisions for Health and Safety at Work Places Regulations, Legal Notice 26 of 2003.

Furthermore, The Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations and The Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations, were enacted b y means of Legal Notice s 12 2 and 12 3 respectively, of 2003, which like the above, consist of subsidiary legislation under the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta.

2. International standards

Malta became a member of the International Labour Organisation (“ ILO”) on 4 January 1965 and the World Health Organisation (“WHO”) on the 1 February 1965.

According to the World Health Organisation website, all forms of asbestos are carcinogenic to humans, and may cause mesothelioma and cancer of the lung, larynx and ovary. Asbestos exposure is also responsible for other diseases, such as asbestosis (fibrosis of the lungs), pleural plaques, thickening and effusions. According to the most recent WHO estimates, more than 107 000 people die each year from asbestos-related lung cancer, mesothelioma and asbestosis resulting from exposure at work.

In 1974 the General Conference of the International Labour Organisation adopted the Occupational Cancer Recommendation, 1974 - R147, concerning prevention and control of o ccupational hazards caused by carcinogenic substances and a gents, and in 1986 it adopted the Asbestos Recommendation , R172 , concerning safety in the use of asbestos.

The ILO Conv ention concerning Safety in the Use of Asbestos ( C 162 - the 1986 Asbestos C onvention) and the Convention concerning Prevention and Control of Occupational Hazards caused by Carcinogenic Substances and Agents ( C 139 - Occupational Cancer Convention, 1974 ) have not been ratified by Malta . European Union (“EU”) Directives on the matter, such as the EU Directive on the protection of workers from the risks related to exposure to asbestos at work (83/477/EEC, amended in March 2003) became applicable to Malta only on its joining the union in 2004.

COMPLAINTS

The applicants complain under Articles 2, 3, and 8 in respect of their (or their deceased ascendant in the case of application no. 62338/11) exposure to asbestos and the Government ’ s failings in this respect. They further complain under Article 13 of the Convention in conjunction with the above mentioned Articles. They consider that the only effective remedy for their complaints under Articles 2, 3, and 8 were constitutional redress proceedings since an ordinary action in civil law could not address the issues arising out of those provisions, such as the failure of the State to fulfil its positive obligations to protect the life of the applicants and inform them of any relevant dangers, or to investigate properly any death or grievous bodily harm for which the State was responsible and identify the persons responsible and have proceedings instituted against them. Neither could civil proceedings redress the breach of their Article 8 rights which only arose from the Constitution and the Convention and not from civil law. Moreover, civil proceedings were limited to awarding material damages and did not include moral damages as required by the Convention. They allege that, as a result of the Constitutional Court findings, they had been denied an effective remedy.

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

60908/11

23/09/2011

Joseph BRINCAT

15/03/1942

Luqa

Emmanuel MARTIN

04/02/1978

Roma

Carmelo CAMILLERI

22/11/1936

St Julians

Carmelo FARRUGIA

22/01/1948

Mosta

Joseph SPITERI

19/01/1941

Hamrun

62110/11

23/09/2011

Carmel CACHIA

28/12/1935

Isla

Anthony CASSAR

06/01/1936

Luqa

Carmelo CASSAR

19/07/1934

Luqa

Nazzareno ZAMMIT

21/08/1931

Tarxien

62129/11

23/09/2011

Joseph ATTARD

15/06/1948

Tarxien

Louis CASTAGNA

07/04/1949

Santa Lucija

John GALEA

10/09/1940

Rabat

Joseph Mary GALEA

30/04/1948

Naxxar

Joseph SARGENT

10/04/1950

Birkiruara

62312/11

23/09/2011

John Mary ABELA

30/07/1941

Zejtun

Francis John DYER

01/10/1949

Malta

William John HENDY

24/07/1943

Malta

Joseph MANARA

29/11/1938

Birzebbuga

62338/11

23/09/2011

Marthese ATTARD

25/06/1950

Iklin

Claudine ATTARD

10/05/1976

Balzan

Anthony ATTARD

18/09/1981

Iklin

QUESTIONS

1. Have the applicants exhausted domestic remedies in respect of their complaints under Articles 2 and 3 and 8 of the Convention in relation to the specific circumstances of the case? In particular can any ordinary civil remedy available be considered an effective remedy for the purposes of these provisions (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom , no. 27229/95, § 130, ECHR 2001-III; and Kontrová v. Slovakia , no. 7510/04, § 65, 31 May 2007 )?

2. At the relevant time, w er e the authorities aware of the risk associated with asbestos exposure ? If so, could they take any preventive operational measures to mitigate the risk to the life of the applicants ’ husband or father in relation to application no. 62338/11 and to that of all the other applicants ? Has there been a negligent failure on behalf of the authorities to take such measures? The Government are requested to submit all the relevant information concerning the legislative and administrative framework regarding prevention from asbestos exposure and to comment on whether at the material time it was being effectively implemented.

3. Were the measures contained in international treaties or recommendations implemented ?

4 . Was any information disseminated or any warning given to the employees in the present cases in relation to the risk they were facing ( for general principles on informing the public see Guerra and Others v. Italy , 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I ) ? If so, the Government are requested to submit information concerning the content coverage and extent of such information and warnings.

5. Bearing in mind the State ’ s wide margin of appreciation in the choice of means to comply with their positive obligation s and other principles governing the State ’ s liability for breach of positive obligations developed by the Court ’ s case-law ( see Öneryıldız v. Turkey , [GC], no. 48939/99, 30 November 2004 and Budayeva and Others v. Russia , nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 , ECHR 2008 (extracts) ) :

(a) Have the authorities discharged their positive obligation under Article 2 of the Convention to protect the right to life of the applicants ’ husband or father in relation to application no. 62338/11 and that of all the other applicants , and to take all measures within their control to prevent the threat to the ir lives?

(b) Have the authorities discharged their positive obligation to protect the applicants ’ husband or father in relation to application no. 62338/11 and that of all the other applicants ’ right to freedom from inhuman and degrading treatment?

(c ) In respect of application nos. 60908/11, 62110/11, 62129/11 and 62312/11 have the authorities discharged their positive obligation to protect the applicants ’ right to respect for their private and family life guaranteed by Article 8 of the Convention (see LÏŒpez Ostra v. Spain , 9 December 1994, Series A no. 303-C, § 55; Guerra and Others v. Italy , 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I and more recently Di Sarno and Others v. Italy , no. 30765/08 , 10 January 2012 ) ?

6. With regard to the procedural obligations under Article 2 of the Convention ( see Öneryıldız v. Turkey , [GC], no. 48939/99, 30 November 2004 and Budayeva and Others v. Russia , nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 , ECHR 2008 (extracts) ), was the re any investigation in the present case by the domestic authorities , and if so, was it in accordance with the standards of Article 2 of the Convention? Moreover, have any proceedings (criminal, administrative or other) been pursued with a view to establishing liability for the loss of life and threat to life in the circumstances of the case at issue?

7. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints under Articles 2 and 3 of the Convention as required by Article 13 of the Convention?

RequestS

The applicants in application nos. 6 0908/11, 62110/11, 62129/11 and 62312/11 are requested to submit within 6 weeks an updated report on their medical condition, substantiated by the relevant, recent, medical certificates. A copy will then be sent to the Government.