CEDH · CASELAW;CLIN;ENG — 13 juillet 2017

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Georgia - 38342/05 Judgment 13.7.2017 [Section V] Article 8 Positive obligations Article 8-1 Respect for home Respect for private life Lack of regulation of thermal power plant operating in close vicinity to residential flats: violation Facts – Under section 4(2)(b) of the Environmental Permits Act of 15   December 1996 energy generating industrial activities, including thermal power plants, required an environmental permit issued by the Ministry of Environment based on an environmental impact assessment study and an ecological expert report. However, the Act applied only to industrial activities commenced after its entry into force. For companies that had commenced their industrial activities before then, the deadline for submitting the environmental impact assessment studies was set at 1   January 2009. At the material time the applicants lived in a block of flats in the city centre in close proximity (approximately 4   metres) to a thermal power plant that provided the adjacent residential areas with electricity and heat. The plant had been in operation since 1939 but partially ceased generating power in 2001 owing to financial problems. According to the applicants, while operational the plant’s dangerous activities were not subject to the relevant regulations and as a result emitted various toxic substances into the atmosphere that negatively affected their well-being. Law – Article   8: Even assuming that the air pollution did not cause any quantifiable harm to the applicants’ health, it may have made them more vulnerable to various illnesses. Moreover, there could be no doubt that it had adversely affected their quality of life at home. There had thus been an interference with the applicants’ rights that reached a sufficient level of severity to bring it within the scope of Article   8 of the Convention. The crux of the matter in the instant case was the virtual absence (until 2009) of a regulatory framework applicable to the plant’s dangerous activities and the failure to address the resultant air pollution that negatively affected the applicants’ rights under Article   8. In the context of dangerous activities in particular, States have an obligation to set in place regulations geared to the specific features of the activity in question, especially with regard to the level of risk potentially involved. Such regulations must govern the licensing, setting-up, operation, security and supervision of the activity and must make it compulsory for all concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. The virtual absence of any legislative and administrative framework applicable to the potentially dangerous activities of the plant in the present case had enabled it to operate in the immediate vicinity of the applicants’ homes without the necessary safeguards to avoid or at least minimise the air pollution and its negative impact upon the applicants’ health and well-being, which had been confirmed by the expert examinations commissioned by the domestic courts. The situation had been exacerbated by the fact that, despite ordering the plant to install the relevant filtering and purification equipment to minimise the impact of toxic emissions on the residents of the building, no effective steps were taken by the competent authorities to follow up on that instruction. In these circumstances, the respondent State had not succeeded in striking a fair balance between the interests of the community in having an operational thermal power plant and the applicants’ effective enjoyment of their right to respect for their home and private life. Conclusion : violation (unanimously). Article   41: EUR 4,500 in respect of non-pecuniary damage. (See also Fadeyeva v.   Russia , 55723/00, 9   June 2005, Information Note   76 ; Di Sarno and Others v.   Italy , 30765/08, 10   January 2012, Information Note   148 ; and the Factsheet on the Environment and the ECHR )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes