CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 juillet 2024

.s800EAC49 { font-size:12pt } .s370A8D58 { margin-top:0pt; margin-bottom:12pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s3BCCA86F { width:107.96%; border-collapse:collapse } .s1B5E5BBA { width:7.2%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s583AD517 { width:29.62%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s88ABD027 { width:24.42%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s272290D8 { width:17.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s5253A39E { width:21.58%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sD604ECD3 { width:7.2%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sA8EA41F5 { width:29.62%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s91B8069D { width:24.42%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sB72187F6 { width:17.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s17D09FBB { width:21.58%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }   Published on 26 August 2024 THIRD SECTION Application no. 56336/22 Theofanis CHRYSANTHOU and Others against Cyprus lodged on 2 December 2022 communicated on 11 July 2024 SUBJECT MATTER OF THE CASE The application concerns the exposure of the applicants or their deceased relatives to dichloromethane (‘DCM’), a substance classified at the material time as “probably carcinogenic to humans.” DCM was used and emitted by a shoe factory operating until 2009 – without the necessary building permit as of 1976 – in the residential area where the applicants lived or worked and which allegedly led to the creation of a cluster of cancers in the area. The applicants also alleged that the factory caused them nuisance due to the emission of foul odours and excessive noise. All applicants filed civil actions with the Nicosia District Court seeking damages for a violation of their right to life and their right to respect for their private and family life. The actions concerning sixteen of them were joined and on 29 December 2017 the first instance court found that the cluster of cancers in the area was epidemiologically connected to the uncontrolled emission of dichloromethane from the shoe factory and that the factory caused “private nuisance” to the applicants. Damages were granted to those applicants on these bases. On 21 December 2022 the Supreme Court reversed that finding on appeal considering that a causal link (“medical aetiology”) between each individual cancer case and the emission of DCM had not been established. With regards to nuisance, the Supreme Court upheld the first instance finding but did not grant any damages to the applicants as it considered that private nuisance was not a civil tort actionable per se under domestic law. In the light of the judgment of the Supreme Court, the remaining six applicants withdrew their still pending civil actions. Relying on Articles 2 and 8 of the Convention, the applicants complain that the State failed to protect them from dangerous exposure to dichloromethane. They further allege that the Supreme Court did not carry out an adequate assessment of their complaints under the same Articles as it applied standards which were not in conformity with the principles embodied in the Convention. QUESTIONS TO THE PARTIES 1.     Have all the applicants exhausted domestic remedies in respect of their complaints under Articles 2 and 8 of the Convention in relation to the specific circumstances of the case (compare with Chakkas and Others v.   Cyprus (dec.), no. 43331/09, § 24, 20 October 2015, and see Pavlov and Others v. Russia , no. 31612/09, § 56, 11 October 2022)?   2.     Did all applicants have locus standi to lodge the application before the Court? Can indirect victim status be claimed by all applicants and therefore is the application compatible ratione personae with the provisions of the Convention with respect to all the applicants, as required by Article 34   (see Micallef v. Malta [GC], no. 17056/06, §§ 44-51, ECHR 2009 ; Nassau Verzekering Maatschappij N.V. v. the Netherlands (dec.), no. 57602/09, § 20, 4 October 2011, and Fairfield and Others v. the United Kingdom (dec.), no.   24790/04, ECHR 2005-VI)?   Reference is made to the Supreme Court’s observations with regards to the third and fourth applicants, Kyriaki Constantinidou and Grigoris Grigoriou respectively, initiating domestic proceedings on behalf of their children and allegedly not substantiating the place of residence of the deceased father of the third applicant, Kypros Constantinides.   The applicants are requested to provide the Court with documentation specifying the place of residence of the father of the third applicant, Kypros Constantinides, at the material time and prior to his death.   3.     Is Article 2 of the Convention applicable in the present case   (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004-XII; Brincat and Others v. Malta , nos. 60908/11 and 4 others, § 101, 24 July 2014, and Budayeva and Others v. Russia , nos. 15339/02 and 4 others, § 130, ECHR 2008 (extracts))?   4.     Have the Government discharged their positive obligations under Articles 2 and/ or 8 of the Convention, with regards to taking all reasonable and appropriate preventive measures to protect the right to life or the right to private and family life of the applicants (see Öneryıldız v. Turkey , cited above, §   90, and Budayeva and Others v. Russia , cited above, § 133)?   (a) Specifically, did the operation of the shoe factory in a residential area have a negative impact on the health of the people living or working in its proximity and did the use of dichloromethane have a negative impact on the health of workers inside the factory?   (b) Was the factory operating in accordance with the legal framework in place at the material time, particularly with regards to obtaining all necessary building and operational permits?   (c) Can it be said that the Government knew or ought to have known about the dangers of dichloromethane at the material time?   The Government are requested to submit all relevant information concerning the legislative and administrative framework regarding prevention from exposure to dichloromethane and to comment on whether at the material time it was being effectively implemented.   The Government are requested to submit documentation and observations regarding any information disseminated or warning given to the applicants in relation to any risk they were facing, according to whether they were residents, workers in the area or workers in the factory (see Öneryıldız v. Turkey , cited above, §§ 90 and 108; Brincat and Others v.   Malta , cited above, §§ 101 and 113-114;   Kolyadenko and Others v.   Russia , nos. 17423/05 and 5 others, §§ 159, 177, 181-182 and 185, 28   February 2012, and Budayeva and Others v. Russia , cited above, §§   132 and 152-155).   5.     Did the Government discharge their procedural obligations, if any, under Article 2 of the Convention (see   Öneryıldız v.   Turkey , cited above, §   91, and   Budayeva and Others v. Russia , cited above, § 138) or under Article 8 of the Convention (see Taşkın and Others v. Turkey , no.   46117/99, § 119, ECHR 2004-X, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 128, ECHR 2003-VIII)?   6.     With regards to the alleged nuisance suffered by the applicants, can it be said that this constituted a sufficiently severe detriment giving rise to a positive obligation of the State under Article 8 of the Convention   (see Fadeyeva v. Russia , no. 55723/00, §§ 69 and 88, ECHR 2005-IV, and Guerra and Others v. Italy , 19 February 1998, § 57, Reports of Judgments and Decisions 1998-I)?   If so, have the Government taken all reasonable and adequate measures to protect the applicants’ right to respect for their private and family lives, within the margin of appreciation afforded to them under Article 8 of the Convention? Have the Government struck a fair balance between the competing interests of the applicants and the community as a whole (see Hatton and Others v. the United Kingdom , cited above, § 98; Pavlov and Others v. Russia , cited above, §§ 61-63 and López Ostra v. Spain , 9   December 1994, § 51, Series A no. 303-C)?       APPENDIX Application no. 56336/22 No. Applicant’s Name Year of birth Nationality Place of residence 1. Theofanis CHRYSANTHOU 1958 Cypriot Limassol 2. Konstantina BARKA 1966 Greek Nicosia 3. Kyriaki CONSTANTINIDOU 1964 Cypriot Nicosia 4. Gregoris GREGORIOU 1966 Cypriot Nicosia 5. Ionas KKAILI 1945 Cypriot Nicosia 6. Elena KLEOVOULOU 1975 Cypriot Nicosia 7. Georgios KLEOVOULOU 1952 Cypriot Nicosia 8. Nicos KLEOVOULOU 1972 Cypriot Nicosia 9. Georgios LAMBROU 1961 Cypriot Nicosia 10. Evridiki METAXA 1946 Cypriot Nicosia 11. Dimos METAXAS 1972 Cypriot Nicosia 12. Kyriakos MICHAIL 1954 Cypriot Nicosia 13. Andriani MINA 1961 Cypriot Nicosia 14. Christos MINA 1959 Cypriot Nicosia 15. Chrysoulla NICOLAOU 1958 Cypriot Nicosia 16. Chrysanthos PAFITIS 1962 Cypriot Nicosia 17. Georgia PHILIPPOU 1956 Cypriot Nicosia 18. Xenis SPYROU 1971 Cypriot Nicosia 19. Aleka THEODOTOU 1959 Cypriot Nicosia 20. Eleni TZIALLI 1959 Cypriot Nicosia 21. Korina TZIALLI 1985 Cypriot Nicosia 22. Carlos TZIALLIS 1988 Cypriot Nicosia