CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 36053/97                       by John STOCKTON and Others                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:                MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 March 1996 by the applicants as set out in the Annex against the United Kingdom and registered on 13 May 1997 under file No. 36053/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are British citizens who were all residents in Cornwall in July 1988, when a pollution incident occurred.   A list of the applicants is set out in the Annex to this decision.   They are represented before the Commission by Ms. N. Mole, of the AIRE Centre in London.   The facts of the application, as submitted by the applicants' representative, may be summarised as follows.        On 6 July 1988 20 tonnes of liquid aluminium sulphate solution was delivered to the wrong inlet at the Lowermoor Water Treatment Works, owned and operated by South West Water Authority ("the Water Authority").   The aluminium sulphate entered the water distribution network and formed an acid metallic solution which dissolved further contaminants from the distribution system into the water supply.   The applicants, each of whom consumed the contaminated water, suffered various injuries: to the mouth, stomach, and skin and other related disorders.   In some cases these primary effects lasted for a number of weeks.        No public warning was issued to prevent the consumption of the water.   On 7 July 1988 the Water Authority informed local residents that the water was safe to use and drink.        The applicants, together with other affected individuals, made a claim in tort against the Water Authority in the High Court.   The matter was settled after five years.   Judgment was entered for the plaintiffs on 10 May 1994 and under the settlement the majority of the applicants received awards varying between £1,000 and £10,000, in respect of the short term ill-health they had suffered.   The amounts received by each applicant are set out in the Annex to the present decision.   Damages for long term illnesses were not recoverable in this action due to a lack of scientific and medical evidence supporting the link between the illnesses and the ingestion of contaminated water.        The applicants claim that the long term effects of the pollution have become apparent since the settlement of the first action.   They rely on medical research into the long term effects of the contamination which suggests that aluminium stays in the body for a considerable period (some 7 months) and tests have shown contaminated individuals to have an impairment of information processing and memory.          The Water Authority commissioned Dr. J. Lawrence, director of an ICI laboratory and non executive director of the Water Authority to investigate the circumstances surrounding the incident.   Dr. Lawrence identified a number of management and systems failures.   His report was published a month after the incident. The then Parliamentary Under- Secretary of State for Health established the Lowermoor Incident Health Advisory Group, to enquire into the incident and advise the local district health authorities.   The group sought the advice of experts in the relevant fields, including medical experts on the health effects of aluminium contamination.   The group produced two reports.   The first, in July 1989, which found short term ill-health effects amongst the local population, criticised the failure of the Water Authority to inform local residents immediately of the danger and noted, in the event of expert evidence indicating long term harm, clinical surveillance should be implemented.   A second report by the group was published in 1991. It concluded:        "We do not expect lasting physical harm from the toxicity of the      contaminated water itself.   ... although we have no reason to      predict any late consequences, we cannot exclude them      categorically."        The South West Water Authority was convicted in January 1991 of causing nuisance, and fined £10,000.   It was also ordered to pay £25,000 in costs.        The applicants continued to campaign for a public enquiry into the pollution incident and consequential effects.   On 2 October 1995 the Under Secretary of State for the Environment stated that no public enquiry would be held.   On 29 August 1996 the applicants were informed by the Department of Health that no additional inquiry would be held. Counsel advised that any attempt to challenge the refusal of ministers to conduct such an inquiry would be doomed to failure.   COMPLAINTS        The applicants allege that the pollution of the water supply and the failure of the Water Authority immediately to warn the local community of the danger of consuming this contaminated water, constituted a violation of Article 8 of the Convention.   They also complain under Article 8 that the State had an obligation to provide necessary medical treatment for those affected by the contamination and detailed information to alleviate associated anxiety.   The applicants further complain under Article 6 para. 1 and Article 13 of the Convention that no public enquiry was held into the incident and that they were unable to seek compensation in the courts for their long term ailments.   THE LAW   1.    The applicants complain under Article 8 (Art. 8) of the Convention concerning the pollution of the water supply and the subsequent reaction of the State to this incident.        Article 8 (Art. 8) of the Convention provides:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission first notes that the civil proceedings which the applicants brought against the Water Authority ended in May 1994, when the applicants accepted damages for the injuries suffered.   The criminal proceedings against the Water Authority ended in January 1991, when the Water Authority was convicted of public nuisance and fined £10,000 and ordered to pay £25,000 costs.   To the extent that the applicants are complaining about matters concerning those two sets of proceedings - including the fact that the incident occurred -, the Commission recalls that it may only deal with a matter within six months from a final decision, and that the present application was introduced on 28 March 1996.   Assuming the respective decisions to be the final decisions in each case, the Commission is therefore prevented from considering either the civil or the criminal proceedings by virtue of the six months time limit contained in Article 26 (Art. 26) of the Convention.        However, the applicants also complain about matters which are allegedly continuing.   In particular, they complain that no public inquiry has ever been held into the events.        In the context of complaints under Article 8 (Art. 8) of the Convention relating to the effects of pollution, the European Court of Human Rights has held that regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community of the whole (Eur. Court HR, Lopez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 54, para. 51).   The State must take the measures necessary for protecting an applicant's right to respect for his home and private and family life under Article 8 (Art. 8) (ibid, p. 55, para. 55).   The Commission considers that procedural safeguards, including the lack or existence of a public inquiry into the cause and effects of the pollution, are relevant factors in the assessment of whether the requirements of Article 8 (Art. 8) have been met.        In the civil case brought by the applicants, judgment was entered for the applicants.   The liability of the Water Authority for the harm flowing from the incident was therefore established, even though, as the applicants point out, the damages were not agreed.   Further, the Water Authority was convicted in the ordinary criminal courts, and fined £10,000.   In addition to these two sets of judicial proceedings, two inquiries were held into the incident.        The Commission considers that, to the extent that it is not prevented by the six months rule from determining the issue, any procedural requirements of Article 8 (Art. 8) to establish the facts concerning the incident were met by the various procedures which were held.        It follows that the complaint under Article 8 (Art. 8) of the Convention must be dismissed as inadmissible within the meaning of Article 27 (Art. 27) of the Convention.   2.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that their right of access to court was violated.        Article 6 (Art. 6) provides so far as relevant as follows:        "1.    In the determination of his civil rights and obligations or      ..., everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law. ..."        The Commission again recalls that it may only deal with a matter within 6 months of a final decision.   The applicants were able to and did bring actions before the High Court claiming tortious damages for personal injury.   These actions were settled in May 1994, whereas the application was introduced only on 28 March 1996.   The complaints under Article 6 (Art. 6) of the Convention must therefore be rejected for failure to comply with the six months rule set out in Article 26 (Art. 26) of the Convention.   The Commission does not accept that any issue remains alive after the settlement of the civil proceedings: in domestic terms, no right, civil or otherwise, remains to be determined, and it cannot be said that the applicants' demand for a public inquiry amounts to a civil right.        It follows that this part of the application must be rejected as inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicants complain under Article 13 (Art. 13) of the Convention in respect of their lack of a remedy for long term ailments, or a remedy in the form of a public inquiry.        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).   In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention.   For similar reasons, they cannot be regarded as "arguable".        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber