CASE OF FADEYEVA v. RUSSIACONCURRING OPINION OF JUDGE KOVLER
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Document date: June 9, 2005
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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 obli gation 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 th e present case.
In the leading case of L ó pez Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C) , referred to in the judgment, the Court found that the State had not succeed ed in striking a fair balance bet ween 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 its Grand Chamber judgment in Hatton and Others v. the United Kingdom ([GC], no. 36022/97, ECHR 2003-VIII) , 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 Gómez v. Spain , no. 4143/02, ECHR 2004-X ), th e problem was again regarded as having an effect both on the applicant ' s private life and on her home.
On the other hand, in Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), where access to information on industrial hazards was in 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 dissentin g opinion by Judge Greve annexed to the Chamber judgment in Hatton and Others v. the United Kingdom (no. 36022/97, 2 October 2001) , in which she stated that “environmental rights are ... 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
E xtracts from the Government ' s r eport o n the e nvironmental situation in Cherepovets [4]
A. Dynamics of air pollution in the years 199 9 to 2003 (compar ed to MPLs)
Toxic e lement
Average daily MPL , mg/m³
1999
2000
2001
2002
2003
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
Carbon 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
B . A verage and maximal concentrations of toxic elements over the past 20 to 30 years
Substance monitored
1974
1983
1989
1996
2003
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
1.17
0.004
0.16
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
[1] . MPLs are the safe levels of various polluting substances, as established by Russian legislation ( предельно допустимые концентрации – ПДК ) .
[2] . Dr Chernaik has a Ph.D . in bioc hem i stry from the Johns Hopkins University School of Public Health, Baltimore , Maryland , U nited States . His doctoral studies and research focused on environmental toxicology. Since 1992 Dr Chernaik ha s served as a staff s cientist for the U nited S tates Office of the Environmental Law Alliance Worldwide. In this capacity, he provide s requested scientific information to lawyers i n more than sixty countries. He ha s frequently advised lawyers on the human health effects of exposure t o air pollutants, incl u ding hydrogen sul ph ide, hydrogen cyanide, naphthalene, formaldehyde, carbon dis ulphide and particulate matter.
[3] . This decision concerned the closure by the authorities of a petrol station which had no sanitary security zone around its premises .
[4] 1 . The d ata pro vided here reflect only the results received from stationary monitoring post no. 1 of the State Agency for Hydrometeorology, the nearest to the applicant’s ho me .