CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2014

.s800EAC49 { font-size:12pt } .sA4F3BFA5 { margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:115% } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7671DC20 { margin-top:0pt; margin-bottom:0pt; line-height:115%; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sD53A5F9E { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; line-height:115% } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s6088A1B { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:14pt } .s1BDAF49D { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sB5688C0F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sA56DF1A1 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sABA461B4 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; line-height:115%; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sEB26BAC0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .s90DCB223 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .s75A32C27 { border-collapse:collapse } .sF4046D70 { height:45.35pt } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s6ED1B729 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s35872AE7 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-after:avoid; line-height:115% } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B56455 { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s6F53EC26 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sF5C64699 { width:201.29pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sE3D66594 { border:0.75pt solid #000000; border-collapse:collapse } .s41E9DBF5 { border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s2637CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s24AC208E { border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sF004B676 { border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .sB30C44B0 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s1258D7CE { margin-left:14.17pt; line-height:115%; padding-left:3.68pt; font-family:Arial; font-size:11pt; font-weight:bold } .sC3AB69A { border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s25D4CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:11pt } .s2342A031 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sC3EBD812 { margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:115%; font-size:11pt } .s546C9D04 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sDE11388E { margin-top:0pt; margin-bottom:0pt; line-height:115% }       FIFTH SECTION           CASE OF BRINCAT AND OTHERS v. MALTA   (Applications nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11)           JUDGMENT         STRASBOURG   24 July 2014   FINAL   24/10/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Brincat and Others v. Malta, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ann Power-Forde,   Vincent A. De Gaetano,   André Potocki,   Helena Jäderblom, judges , and Stephen Phillips, Deputy Section Registrar , Having deliberated in private on 8 July 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications (see Annex for details) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-one Maltese nationals (“the applicants”) on 23 September 2011. 2.     The applicants were represented by Dr J. Galea, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3.     The applicants alleged that the State had failed to protect them from the risks related to exposure to asbestos. 4.     On 9 July 2012 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants’ names, dates of birth and places of residence may be found in the Annex. A.     Background to the case 6.     From the 1950s/60s to early 2000, the applicants in applications nos.   60908/11, 62110/11, 62129/11 and 62312/11 were full-time employees at the Malta Drydocks Corporation (the MDC), a state-owned enterprise (1968-2003). The applicants in application no. 62338/11 are the wife and children of Mr Attard, who also worked at Malta Drydocks during the same period (having started in 1959) but left in 1974 to take up managerial duties with the Malta Trade Fair Corporation, where he was no longer exposed to asbestos. 7.     According to the applicants, the applicants in applications nos.   60908/11, 62110/11, 62129/11 and 62312/11 and Mr Attard had been constantly and intensively exposed to asbestos during their employment. Asbestos in its various forms was one of the substances kept in stock in Malta Drydocks’ storerooms and ships incorporating asbestos as part of their structure regularly entered the docks (or ship repair yard) and were repaired there by workers. Repairs included breaking apart the asbestos casing that was used for insulation purposes, thereby releasing the particles into the surrounding air. Once a machine was repaired, it had to be reinsulated using asbestos retrieved from the store-rooms. Such repairs were carried out both on the ships themselves and in the MDC’s workshops. 8.     The applicants contended that asbestos particles would settle on the workers’ clothing and be carried around in this way, with the result that it could also affect the lives of their family members, creating further anguish and affecting their private and family life. 9.     In the 1960s, Malta became a member of the International Labour Organisation (“ILO”) (see “Relevant domestic law and international standards” below) and of the World Health Organisation (“WHO”), both organisations having been raising awareness regarding the dangers of asbestos since the 1950s. At the time, however, the employees of MDC had been neither informed about nor protected from the dangers of asbestos in any way. The Government disagreed with the applicants’ assertion that international organisations had raised awareness of the dangers of asbestos in the 1960s, noting that the ILO Asbestos Convention had been concluded in 1986 and that the WHO had issued its guidelines much later than the 1960s. 10.     The first publicly available – though not publicly disseminated – information concerning the fatal consequences of asbestos at MDC appears to be the judicial acts and judgment relating to a lawsuit brought in the names of Mary Pellicano proprio et nomine vs Francis Spiteri nomine , concerning the deceased Paul Pellicano (erroneously referred to by the parties as Joseph Pellicano) who died from asbestosis in 1979. In that case, in a judgment of 30 August 1989, the then Commercial Court established MDC’s responsibility for the death of Paul Pellicano and awarded (in a separate decision of 27 June 1990) damages under Maltese law consisting of lucrum cessans and damnum emergens (see also “Relevant domestic law” below). 11.     No action was taken following that judgment save that employees were assured that adequate ventilation and the wearing of fabric masks would protect them from asbestos. 12.     Mr Attard died in 2006, aged sixty-one, as a result of a malignant cancer linked to exposure to asbestos (mesothelioma).   Following the death of a number of their colleagues, the applicants in applications nos.   60908/11, 62110/11, 62129/11 and 62312/11 underwent medical tests, which were performed again in 2012 in the context of proceedings before the Court. With the exception of the case of Mr Dyer, most of the X-rays revealed bilateral pleural plaques (extensive in some cases) compatible with asbestos exposure. The X-rays of some of the applicants also revealed pleural thickening, reticulo-nodular interstitial parenchymal texture in the lungs, and in some cases also pulmonary fibrosis, all of which are consistent with asbestosis. The results suggested that there was a strong probability of the presence of asbestos fibres in their stomach lining, as well as in other digestive organs. Moreover, apart from the physical difficulties such as exercise intolerance that were mainly related to respiratory problems, the presence of asbestos in their bodies made them prone to malignant mesothelioma, as was the case with Mr Attard, abovementioned. From the medical data it was also apparent that the applicants had no pleural effusions and that their lungs were clear, with no filtrates or nodules, and their hearts, hila and upper mediastina were also normal. Most of the applicants are non ‑ smokers. 13.     In particular, Mr John Mary Abela has been confined to bed for years as a result of his acute respiratory problems and can only breathe via oxygen cylinders that further reduce his mobility. Mr Dyer’s medical results did not show evidence of asbestos-related disease. B.     Constitutional redress proceedings 1.     The applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 14.     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 them from unnecessary risks to their health, which also constituted inhuman treatment and an interference with their private and family life. They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights, to liquidate that amount, and to order that this pecuniary redress be paid individually to the applicants (“ Tikwantifika kumpens xieraq bħala rimedju għal ksur tad-drittijiet fuq indikati jew mil-liema minnhom, tillikwida dan l-ammont, u tordna li dan ir-rimedju pekunjarju jithallas individwalment lir-rikorenti ”). 15.     In reply to the Government’s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under Maltese law the ordinary civil remedies available did not apply to non-pecuniary damage (known in the domestic system as “moral damage”), but solely to pecuniary damage; they claimed that these types of damage were independent of each other. 16.     In four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction – namely, the Civil Court (First Hall) in its constitutional jurisdiction – declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non-exhaustion of ordinary domestic remedies. That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability. It considered that according to the Court’s 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 non-pecuniary damage in such cases. 17.     By four judgments of 11 April 2011 the Constitutional Court upheld the first-instance decisions. It considered that the Government, as an employer, could be sued under civil law for their failings. It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings. It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis . The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if, after a final judgment, they still felt that the breaches of their rights had not been adequately redressed. It held that given that neither the Convention nor national law provided for compensation for non-pecuniary damage in such cases, the ordinary remedy would have been effective. In any event, according to the court, in their constitutional application, the applicants made no specific mention of non-pecuniary or moral damage, having claimed compensation for pecuniary damage only. 2.     The applicants in application no. 62388/11 18.     On 19 April 2010 these applicants, who are the heirs of the deceased Mr Attard, also instituted proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention. 19.     In reply to the Government’s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings, the applicants submitted that under Maltese law the ordinary civil remedies available did not provide for non-pecuniary damage but only for pecuniary damage; they claimed that these types of damage were independent of each other. 20.     By a judgment of 30 September 2010 the Civil Court (First Hall) in its constitutional jurisdiction declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii , thereby in effect dismissing the claims of the applicants on the grounds of non-exhaustion of ordinary remedies. In its analysis of the principles governing the exercise of the above-mentioned powers under the Constitution and the European Convention Act, the court noted, inter alia , that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy. It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence, so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights, then the court should lean towards exercising its powers. Nevertheless, it considered that what the applicants were ultimately requesting was a sum of money by way of damages. Given that ordinary remedies under the Civil Code could have resulted in an award of monetary compensation, the applicants should have pursued those remedies before instituting constitutional redress proceedings. 21.     In a judgment of 11 April 2011 the Constitutional Court upheld the first-instance decision for substantially the same reason indicated in paragraph 17 above. II.     RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS A.     Domestic law and practice relating to civil and constitutional remedies 1.     Civil remedies 22.     The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, in respect of actions for damages, read: 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.     Constitutional remedies 23.     Article 46 of the Constitution of Malta, in so far as relevant, reads: “ (1) ... any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled: Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.   (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.” 24.     Similarly, Article 4 of the European Convention Act, Chapter 319 of the laws of Malta, provides: “(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled: Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law. (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.” 25.     Maltese case-law relating to the examination of a case by the constitutional jurisdictions was summarised in the case of Dr Mario Vella vs   Joseph Bannister nomine , Constitutional Court judgment of 7 March 1994. These guiding principles were reiterated in several other judgments including Mourad Mabrouk vs the Minister for Justice and Home Affairs and the Principal Immigration Officer , judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 4 February 2009. The relevant guiding principles read as follows: “a. As a general principle, when it is clear that there are available ordinary remedies enabling an applicant to obtain redress for the damage complained of, such ordinary remedies must be undertaken and constitutional proceedings should be instituted only after such ordinary remedies are exhausted or if they were not available. b. Unless there are grave and serious reasons related to unlawfulness, justice or manifest error, the Constitutional Court will not disturb the exercise of discretion made by the first-instance court, as conferred on it by Article 46 (2) of the Constitution. c. Each case has its own particular circumstances. d. The fact that an applicant has failed to pursue an available remedy does not mean that the court [of constitutional jurisdiction] must decline to exercise its jurisdiction if that possible remedy could redress the applicant’s complaint only in part. e. Where an applicant has failed to exhaust an ordinary remedy, if the interference of another person has contributed to this non exhaustion, then it would not be desirable for the court [with constitutional jurisdiction] to refrain from hearing the case. f. When the first-instance court exercises its discretion and refuses to take cognisance of a case without having examined the relevant subject matter in respect of which that discretion had to be exercised, the court of second instance should put aside that discretion.” 26.     In the judgment of the Constitutional Court in the names Philip Spiteri vs Sammy Meilaq nomine of 8 March 1995 it was further held that: “When the object of the action is complex - and concerns issues which have a remedy under some other law, and other issues that can only be redressed by the Constitutional Court – the latter action should prevail.” The same was reiterated in the more recent judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 5 June 2014 - still subject to appeal - in the name of Judge Carmelo Sive Lino Farrugia Sacco vs The Honourable Prime Minister, the Attorney General and the Commission for the Administration of Justice . In that same judgment the court also held that: “From an accurate examination of the proviso [to Article 46 (2) of the Constitution], it does not result that the legislator intended to establish as an absolute principle of Maltese constitutional law that before an individual seeks redress before the constitutional jurisdictions, he or she must always, peremptorily, exhaust all the available ordinary remedies, including those which are not reasonably expected to be effective and accessible.” B.     Domestic law and case-law relating to asbestos 1.     Legislation 27.     The Dock Safety Regulations (Subsidiary Legislation 424.03), were enacted in 1953 and amended in 1965, 1966, 1977, 1991, 1999 and 2009. The regulations make no mention of asbestos or occupational hazards caused by carcinogenic substances and agents. 28.     The Work Places (Health, Safety and Welfare) Regulations (Subsidiary Legislation 424.09) entered into force on 9 February 1987. 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 possible, or when so directed by the Sanitary Authority, to substitute a harmful substance, process or technique at a place of work by a less harmful substance, process or technique.” (2) Without prejudice to the generality of subregulation (1), the following rules shall apply: (a) sandstone grinding wheels shall be substituted by carbonrundum grinding wheels; (b) benzene, unless authorised by the Superintendent, shall be substituted by a less toxic solvent; (c) paints, varnishes, mastics, glues, adhesives and inks shall not contain benzene; (d) white lead and sulphate of lead and products containing these pigments or other lead compounds shall not be used in the internal paintings of buildings or of articles in buildings, if the dry film of the resulting paint will contain more than 2500 parts per one million parts of metallic lead; (e) white or yellow phosphorus shall not be used in the manufacture of matches; (f) sand in sand-blasting shall be substituted by steel-shot or grit; (g) polychlorinated biphenyls shall not be used or added to any oil, fluid or material.” Regulation 18   “(1) It shall be the duty of the employer to make arrangements when so considered 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 manufactured, handled or used, is tested periodically. (2) Such tests are to be carried out at sufficiently frequent intervals to ensure that toxic or irritating dusts, fumes, gases, fibres, mists or vapours are not present 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, asphyxiating or otherwise dangerous to health, shall not be carried out until the atmosphere is suitably tested and found free from any danger to health. (4) The employer shall likewise ensure periodical testing of the working environment where a potential hazard exists 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 storage under safe conditions of substances dangerous to health. (2) Without prejudice to the generality of this regulation such provisions should include the use of receptacles adequate to the storage of the dangerous substance, the safe storage of receptacles, their proper labelling with a danger symbol, their proper handling and where necessary an indication of the nature of the risk, the name of the substance or an indication to identify it and, as far as practicable, the essential instructions giving details of the first aid that should be administered if the substance should cause bodily harm or injury. (3) Where any risk from gases exists, cylinders containing such gases should be stored in well ventilated places as far as possible from the place of work.” Regulation 20 “It shall be the duty of the employer to inform forthwith the Superintendent of the occurrence in any of his employees of any occupational disease or incidence as are required to be notified by a medical practitioner under the Health Care Professions Act.” 29.   The same regulations provided for notification of accidents connected to the place of work, and in so far as relevant the relevant provisions read as follows: Regulation 22 “(1) For the purposes of these regulations any accident arising out of or in connection with work which results either - (a) in the death of or a major injury to any person; ... shall be a notifiable accident and as such shall be reported to the Director [of Labour]. (2) (a) Where the notifiable accident results in the death or a major injury to a person, the employer shall - (i) notify forthwith the Director or his representative by the quickest practicable means; and (ii) within seven days from the date of the accident send written notice of the accident to the Director; and (b) where the notifiable accident falls under subregulation (1)(b), the employer shall inform the Director in writing or by other suitable means, within seven days from the date of the accident. Regulations 23 “There shall be kept in every work place or in such place outside the work place as may be approved by the Director and Superintendent a register, called the general register, and there shall be entered in or attached to that register: (a) the prescribed particulars as to every case of industrial accident and industrial disease occurring at the work place of which notice is required to be sent to the Director and the Superintendent;” Regulation 24 “The general register and every other register or record kept in pursuance of these regulations shall be preserved and shall be kept available for inspection by any officer for two years after the date of the last entry in the register or record.” 30.     These regulations also provided for their enforcement and for penalties in the event that they were not complied with. 31.     Further emphasis was placed on the duties of employers in the Factories (Health Safety and Welfare) Regulations 1986 which entered into force in 1987 and eventually became part of the General Provisions for Health and Safety at Work Places Regulations, which were amended in 1996, 2002 and 2003. Article 49 of the 1986 text, in its most relevant part read as follows: “ (1) Saving any other provisions of these regulations every employer shall take all practicable steps to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Every employer shall take all practicable steps to ascertain the hazards, if any, connected with a trade process or substance.” 32.     In 1994, a prohibition on the importation of asbestos fibres came into effect by means of subsidiary legislation (S.L. 37.11) to the Customs Ordinance. 33.     On 28 June 2002 the Prevention and Reduction of Environmental Pollution by Asbestos Regulations (S.L 504.30, subsidiary legislation to the Environment and Developing Planning Act) came into force, containing in substance the provisions of the Council Directive 87/217/EEC of 19   March 1987 on the prevention and reduction of environmental pollution by asbestos. 34.     Finally, Legal Notices 122 and 123 of 2003 enacted, respectively, 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 which, like the regulations mentioned in paragraph 31 above, constitute subsidiary legislation under the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta. 2.     Case-law 35.     In the case Mary Pellicano proprio et nomine vs Francis Spiteri nomine , Commercial Court judgments of 30 August 1989 and 27 June 1990 (see paragraph 10 above), the court established the responsibility of Malta Drydocks for the death of Paul Pellicano and awarded damages consisting of lucrum cessans and damnum emergens as provided by Maltese law. It found that the applicant had worked at the dock yard for decades until his death as a result of asbestosis. The applicant had been employed at the time when blue asbestos was still used at the ship repair yard and where the only precautionary measure taken was the use of masks, which in any case were considered of inadequate quality by the court-appointed experts. The court shared the conclusions of the experts who took the view that certain precautions had been implemented but they did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time. More specifically, the use of dangerous asbestos had remained the norm, the ventilation system was old and inadequate, the masks were inefficient, and other shortcomings had been apparent. 36.     In Godfrey Buhagiar vs Malta Shipbuilding Company Limited (another state-owned enterprise which in 2003 merged with the MDC to become Malta Shipyards Ltd.), judgment of the First Hall (Civil Court) of 11 October 2001, it was held that the fact that an employee had consented to work in a dangerous environment did not imply acceptance of responsibility for any harm which he might suffer. Therefore, if an employee continues to work despite the fact that the employer has failed to provide a safe working environment, the employer cannot plead the employee’s consent as a defence. C.     International standards 37.     Malta became a member of the International Labour Organisation (“ILO”) on 4 January 1965 and of the World Health Organisation (“WHO”) on 1 February 1965. 38.     According to the WHO website, all forms of asbestos are carcinogenic to humans and may cause mesothelioma and cancers 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. 39.     In 1974 the General Conference of the International Labour Organisation adopted the Occupational Cancer Recommendation (1974 - R147), concerning the prevention and control of occupational hazards caused by carcinogenic substances and agents, and in 1986 it adopted the Asbestos Recommendation, R172, concerning safety in the use of asbestos. 40.     The ensuing conventions, namely the ILO Convention concerning Safety in the Use of Asbestos (C 162 - the 1986 Asbestos Convention) and the ILO 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. 41.     Most 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 when it joined the EU in 2004 (see also paragraph 33 above). D.     Other relevant legislation 42.     The relevant provisions of the Department of Health (Constitution) Ordinance) Chapter 94 of the Laws of Malta, as at the time of the present case (and prior to its repeal in 2013) read as follows: “4. The Head of the Department of Health shall be the Chief Government Medical Officer who shall also be ex officio Superintendent of Public Health. 16. The Chief Government Medical Officer shall be the chief adviser to the Government on any matter relating to the public health or relating to or in connection with the health services. 17. (1) It shall be the duty of the Principal Medical Officers to assist the Chief Government Medical Officer and the Minister in planning, direction, development and administration of the health services (2) The Principal Medical Officers shall moreover – (a) deal with international health matters and relative commitments; (b) propose and formulate any such legislative measures as may be necessary in relation to health services.” THE LAW I.     JOINDER OF THE APPLICATIONS 43.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II.     THE GOVERNMENT’S OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES A.     The parties’ submissions 1.     The Government 44.     The Government submitted that the applicants had not exhausted domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8 of the Convention, concerning the Government’s failure to protect the applicants rights’ under those provisions. They had failed to institute an ordinary civil action, opting instead to attempt constitutional redress proceedings at the conclusion of which their claims had been dismissed for non-exhaustion of ordinary remedies. The Government noted that in their application the applicants had themselves cited the Pellicano case – which had been successful at the ordinary level – and the compensation award granted in that case by the Commercial Court. 45.     The Government further relied on Aytekin v. Turkey (23 September 1998, § 84, Reports of Judgments and Decisions 1998 ‑ VII) in which, having taken into account the combination of the criminal, civil and administrative law remedies available, and in particular the prospects offered by the criminal proceedings for obtaining redress in respect of the death of the applicant’s husband, the Court had not exempted the applicant in that case from the requirement to exhaust such remedies. The Government also made reference to the case of John Sammut and Visa Investments Limited v. Malta ((dec.), no. 27023/03, 28 June 2005), in which the Court had held that an action in tort could have resulted in an award of civil damages and that the aggregate of remedies could have redressed the applicants’ second grievance. 46.     Referring to Articles 1030-1033 of the Civil Code concerning an action in tort, the Government submitted that, like any other person, they could, through their representatives, be held liable for damages. Indeed the State had on numerous occasions been held liable for the payment of damages by the domestic courts (various examples were submitted to the Court). The Government referred in particular to the case of Carmena Fenech et vs Chairmen of the Malta Drydocks noe et (Court of Appeal, 3   December 2010), which concerned asbestos exposure and where the Government had been ordered to pay approximately EUR 103,000 in damages. 47.     The Government conceded that – like any employer – they were obliged to provide a safe working environment and noted that they had been sued at various times for allegedly failing to provide such an environment. They cited Francis Busuttil vs Sammy Meilaq nomine (First Hall, Civil Court, 9 December 2002) and Gatt vs Chairman Malta Drydocks (sic.) (First Hall, Civil Court, 9 December 2002), in which the courts had found Malta Drydocks liable for damages because it had failed to provide a safe working environment and had been negligent in the maintenance of tools, thereby causing an accident that had resulted in the claimants’ permanent disability. Similarly, in a comparable case, the State-owned airline, Air Malta, had been held liable for damages. Indeed, domestic courts had found the Government liable for damages when the governmental act complained of constituted a breach of duty which was classified either as a negligent act or as a failure to carry out duties properly. Moreover, in Godfrey Buhagiar vs Malta Shipbuilding Company Limited (11 October 2011) the domestic courts had held that the fact that an employee consented to work in a dangerous environment did not mean that the employee accepted responsibility for any harm which he might suffer, with the result that the employer could therefore not raise the plea that the employee accepted such working conditions. 48.     As to the applicants’ claim that compensation for non-pecuniary damage could not be awarded in an ordinary action, referring to Zavoloka v.   Latvia (cited above) the Government noted that in that case the Court had found that there was no absolute obligation to award such damages in circumstances such as those in that case. Moreover, while it was true that the law did not provide for compensation for non-pecuniary damage, known as “moral damage” in the domestic context (except for a few specific circumstances), and that such damages were not awarded in actions for tort, the way compensation was calculated allowed for the inclusion of non ‑ pecuniary damage, although this was not mentioned. One such example was awarding loss of future earnings, based on a loss of opportunities, which in the Government’s view was a veiled type of “moral damage”, that is to say, non-pecuniary damage as understood in the Convention case-law. Moreover, the Government considered that civil law did not prohibit such damage and cited two examples ( Dr J Pace noe vs The Prime Minister , Civil Court (First Hall), 1 June 2012, and Mario Gerada vs The Prime Minister , Civil Court (First Hall), 14 November 2012) in which the applicants had been awarded compensation for “moral damage” in cases involving breach of contract and unfair dismissal respectively. 2.     The applicants 49.     The applicants contended that an ordinary civil action against the Government as employer for material damage would not have been capable of addressing the multiple issues arising from the breaches of Articles 2, 3 and 8. Accepting that the Government could, like private individuals, be found liable in a tort action, the applicants submitted that an ordinary action of that nature could not have established the State’s responsibility in line with Convention standards reflected in the Constitution. It followed that their complaints could therefore only be raised before the courts with constitutional jurisdiction as established by Article 46 of the Constitution (see “Relevant domestic law” above). 50.     Moreover, they noted that according to domestic case-law, in instances where the merits of a case were complex and had aspects which fell under both ordinary and constitutional law, the constitutional action was to prevail ( Anthony Mifsud vs Superintendent Carmelo Bonello et , Constitutional Court, 18 September 2009). 51.     The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government’s failure to fulfil their positive obligations under the Convention, namely to safeguard a person’s life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation. It followed that they were also entitled to compensation for non-pecuniary damage. 52.     An ordinary civil action in tort could only provide for compensation for pecuniary damage, namely damnum emergens and lucrum cessans , the expressly limited heads of damage provided for by Maltese law. In fact, compensation for non-pecuniary damage was not provided for in law, as shown by decades of case-law where judges had repeatedly held that no compensation for non-pecuniary damage could be awarded. Moreover, proposals had recently been made in Parliament to make provision for compensation for non-pecuniary damage in certain cases – proposals which would be pointless if the Government’s contention that such damage were not precluded were true. Moreover, an occasional lapse by a good-hearted judge extending the scope of pecuniary damage could hardly be considered the right way of dealing with human rights violations. In the applicants’ view the only available remedy was constitutional redress proceedings, which they had unsuccessfully instituted. 53.     Furthermore, the ineffectiveness of such an ordinary remedy was evident in so far as the law (Article 1032 of the Civil Code) provided that no one was to be found liable in the absence of any express legal provision. Indeed, ordinary law did not provide for actions dealing with activities that breached Article 8 of the Convention – a provision which the applicants had also relied on and which, moreover, did not correspond to any constitutionally protected right in Malta. 54.     The applicants argued that the Constitutional Court had dismissed their claims on the grounds of failure to use a remedy that was ineffective. It had, moreover, found that only if the applicants still felt that the breaches of their rights had not been redressed by that remedy could they opt for constitutional redress proceedings. The applicants contended that, although part of their claim could have been addressed by the ordinary courts, the courts with constitutional jurisdiction were not precluded from addressing the case to its full extent. They submitted that in Carmena Fenech vs   Chairman of the Malta Drydocks , (cited above) one of the cases relied on by the Government, the claimant (who was the widow of a dry-docks employee who had succumbed to malignant mesothelioma) had been awarded out-of-pocket damages and compensation for loss of future earnings in respect of her husband. Thus, if she had wished to claim any compensation for non-pecun