Who does not remember the images of garbage piling up in the streets of Napels, Italy, in 2008? Causing occasional fires and, needless to say, terrible smells and other inconveniences for the people living and working there, the ‘waste crisis’ made us pity the Italian citizens whose government apparently was not capable of arranging for a properly functioning system of waste collection and disposal.
What was not always clear in the TV items and newspaper articles, was that the crisis did not just consist of the few months in which the garbage was literally blocking the streets, but in fact comprised a period of almost 16 years in which a state of emergency was in place in the entire Campania region. During this period, the citizens confronted with the crisis had no judicial means of compelling the government to solve it, or at least to provide them with some kind of compensation. Even though since 2003 criminal investigations had been ongoing against the directors, managers and employees responsible for the malfunctioning of the waste collection and disposal system, citizens were unable to join in these proceedings as civil parties. In 2008, 14 of them at last decided to file a case in Strasbourg, hoping that the European Convention on Human Rights could bring them some kind of relief.
In January 2012, the ECtHR came to a decision in the case of Di Sarno a.O. and found a violation against Italy. It held that Article 13 of the Convention had been violated because of the absence of legal remedies in the Italian legal system that enabled citizens to obtain some form of redress. Also, however, it concluded that Italy had not fulfilled its positive obligation to arrange for a proper functioning of the waste collection, treatment and disposal service. But where exactly does this positive obligation come from?
The Convention does not include a right to a clean or a healthy environment. Nevertheless, the Court has in the meantime dealt with a great variety of environment-related cases, under the heading of an interference with Article 8 of the ECHR (the right to respect for private and family life). Of course, in light of the wording and agreed upon aims of the Convention, the Court’s leeway to furnish environmental protection is limited. It is for that reason that it has created some ‘thresholds’. It holds that ‘Article 8 is not engaged every time environmental deterioration occurs’. Environmental pollution needs to have a direct effect on someone’s private or family life and this effect must attain a minimum level of severity.
In Di Sarno a.O., however, the Court’s approach seemed a bit more flexible. Five of the applicants only worked in the polluted area; they were not asked to prove how exactly the crisis had influenced their private life or home. None of the applicants suffered from health problems that resulted from the malfunctioning of the system of waste collection. And, whereas other environment-related violations in the case law of the Court could often be traced back to non-compliance with national rules or court orders, this was not the case in Di Sarno a.O. The Court held that the crisis must have had an effect on the well-being of the applicants, and for the most part focussed on the general problems that were at stake in Italy. According to the Court, Italy’s failure to organize a properly functioning waste system – corruption or no corruption – formed a violation of Article 8 of the European Convention.
For a further elaboration on this judgment (in Dutch), I refer to my forthcoming case note in the Nederlands Tijdschrift voor de Mensenrechten (NTM/NJCM-Bulletin). It is interesting, however, to ask whether the Court can be criticized here for having a too broad understanding of its task, or rather praised for its efforts to recognize the interests at stake in a long-lasting, severe waste crisis with potentially harmful effects? Perhaps this case is not a ‘traditional’ human rights case since it does not deal with civil or political rights understood in the narrowest sense, and signals a general outlook on the matter rather than one influenced by the situations of the applicants. But doesn’t the current-day importance of environmental protection, and the severity of the issue at stake, allow for this kind of interference by the Strasbourg Court? I would say the judgment is a valuable one, and possibly the start of a more flexible attitude towards environmental issues.