CASE OF JUGHELI AND OTHERS v. GEORGIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
7. The applicants, all Georgian nationals, were born in 1946, 1947 and 1957 respectively. At the material time they lived in different flats in a residential block (“the building”) constructed in 1952 and situated at 4 Uznadze Street in Tbilisi. 8. The building is located in the city centre, in close proximity (approximately 4 metres) to the “Tboelectrocentrali” thermal power plant (“the plant”). The plant was constructed in 1911 and reconstructed at a later date. It started operations in 1939. For several decades it burned coal to generate power, before replacing it with natural gas. The plant provided the adjacent residential areas with electricity and heat. 9. Several accidents have been reported throughout the plant’s history. An accident on 10 April 1996 rendered it inoperative for more than thirty days. An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since 1986. 10. On 2 November 1999 Presidential Decree No. 613 was issued, stating that the plant was to be privatised and sold directly to a private company. The privatisation agreement between the Government and the company was concluded on 6 April 2000. 11. On 2 February 2001 the plant partially ceased generating power owing to financial problems. However, it continued to use some of the generators. 12. According to the applicants, while operational the plant’s dangerous activities were not subject to the relevant regulations, as a result of which, in addition to some other alleged nuisances, it emitted various toxic substances into the atmosphere negatively affecting their well-being. 13. On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities, alleging that nuisances were emanating from the plant such as air, noise and electromagnetic pollution and water leakage. By official letters dated 22 March 2000, 19 October 2000 and 16 January 2001 the Tbilisi City Hall (“the City Hall”) acknowledged that the residents of the building had been affected by the nuisances they had complained of. It advised the central Government that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation. 14. In the letter dated 22 March 2000 the City Hall asked the plant to implement certain environmental protection measures, including the installation of chimney filters to reduce the air pollution emanating from the plant. The request was left unaddressed. 15. On 1 October 2001, in an official response to a query by the applicants, the City Hall confirmed that the plant’s activities fell within the “first category” within the meaning of the Environmental Permits Act (see paragraphs 43-44 below) and that the Ministry of the Environment and Natural Resources (“the Ministry of the Environment”) was responsible for issuing the relevant permit. 16. On an unspecified date in the summer of 2000 the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant. A friendly settlement was reached between the parties on 12 December 2000, according to which the claimants would renounce their claims in exchange for a commitment by the plant’s management to provide them with hot water, electricity and heat free of charge. Owing to technical difficulties and a lack of cooperation between the relevant authorities, the friendly settlement was left unenforced. 17. On 25 October 2001 the applicants and three other residents of the building (“the claimants”) brought a fresh action against the plant and other respondents including the Tbilisi electricity distribution company, AES TELASI JSC (“AES”), the City Hall and the Ministry of the Environment. They claimed compensation for pecuniary and non-pecuniary damage for the harm caused to their health and well-being by the air, noise and electromagnetic pollution and water leakage emanating from the plant. They relied on privately commissioned independent expert opinions in support of their complaints. 18. On 7 March and 23 September 2002 the Tbilisi Regional Court granted a request by the claimants and ordered the Ministry of Justice, the Ministry of Labour, Health and Social Affairs and the Ministry of the Environment to arrange a number of expert examinations. The latter were intended to measure the environmental pollution caused by the plant, clarify how the associated harmful effects had affected the claimants’ health and might have endangered human life, and identify appropriate remedies. 19. An expert examination dated 28 October 2002 and carried out by the Expertise and Special Research Centre at the Ministry of Justice concluded as follows: “As the “Tboelectrocentrali” plant does not have a [buffer] zone and is immediately adjacent to a residential building, the plant’s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases.” 20. On 17 January 2003 the Institute of Environmental Protection (“the IEP”) at the Ministry of Environment issued an expert opinion on the air pollution and noise levels in the residential area concerned. It noted that while the plant’s equipment responsible for the emission of toxic substances stood idle, it was impossible to determine the real pollution situation with which the residents had had to cope for years and noted that “the results were considerably minimised compared to the possible real picture.” 21. The expert opinion disclosed that the plant’s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning. That document also incorrectly indicated the height of the chimneys as 30.8 metres instead of the actual 27 metres, which could lead to the pollution data being misleadingly decreased. 22. With regard to the air pollution and the possible impact upon the residents of the building, the expert opinion concluded as follows: “Considering the fact that the plant does not have a [buffer] zone and is immediately adjacent to a residential building ..., taking into account the direction of the wind, a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area.” 23. The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin, it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits. It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits twenty-four hours a day. The IEP proposed that the competent municipal authorities either ban those industrial activities or ensure the plant’s relocation outside the town, where at least a buffer zone could be established. 24. On 4 March 2003 the Institute of Scientific Research in Health and Hygiene at the Ministry of Labour, Health and Social Affairs responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SO2, CO, NO2, smoke and black dust. These were mucocutaneous disorders, conjunctivitis, bronchitis, bronchopulmonary and other pulmonary diseases, allergies, different types of cardiovascular disease and anoxemia (low oxygen levels in the blood), which could lead to other serious disorders. 25. On 17 January 2003 the IEP issued an expert opinion concerning the noise levels in the building. Without specifying the noise levels in the individual flats of the applicants, the opinion concluded in generic terms that “the residential building ... situated at 4 Uznadze Street [was] affected by noise in excess of the permissible limits.” 26. On 6 February 2004 the IEP expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants. It concluded that the permissible levels of noise were exceeded only with respect to two claimants and not in the applicants’ apartments. 27. An expert opinion issued by the IEP on 7 November 2002 stated that the intensity of the electromagnetic waves did not exceed the permissible levels. 28. The expert opinion produced by the Ministry of Labour, Health and Social Affairs on 17 January 2003 disclosed that, in some instances, the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels. It concluded however that it was impossible to establish the exact source of the electromagnetic pollution. 29. On 13 May 2003 the court ordered the Forensic Medical Examination Centre at the Ministry of Labour, Health and Social Affairs to examine the health of four of the claimants. The third applicant and another claimant were not included, without any reasons being given for their exclusion. Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant. 30. The Forensic Medical Examination Centre carried out the courtcommissioned examination between 7 August and 17 September 2003. A panel of experts concluded that the four claimants “[had] been affected by a combined impact of protracted exposure to harmful factors such as SO2, NO, CO2 as well as black dust, noise and electromagnetic pollution negatively impacting their health.” The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome. The panel considered it “possible that the asthenic syndrome and neurasthenia ... [had been] caused by the prolonged and combined effect of being exposed to harmful factors.” It added that “the worsening of the health conditions of the persons examined [had not been] excluded.” 31. On 12 March 2004 the Tbilisi Regional Court dismissed the claims of the applicants and another claimant, but partially allowed the claims of two other claimants (“the successful claimants”) with respect to the noise pollution emitted by the plant’s generators. Relying on the expert examination of the IEP concerning the noise levels, the court found that only the two successful claimants’ flats were affected by noise in excess of the permissible limits. It awarded them 5,000 Georgian laris (GEL – equivalent to 1,981 euros (EUR)) each, holding the plant, the City Hall, and the Ministry of the Environment jointly liable: “... Both the City Hall and the Ministry failed to fulfil the obligations imposed on them by law. That is to say, despite the claimants’ numerous requests and complaints, [the authorities concerned] failed to take specific measures to ensure an environment safe enough for the claimants’ health.” 32. Furthermore, acknowledging that the plant was responsible for the infiltration of water into the foundations of the building, the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls. 33. As regards the air pollution complained of, the court found that the material before it did not prove a causal link between the emissions and the claimants’ health problems described in the Forensic Medical Examination Centre’s expert report. It further suggested that the third applicant and another claimant had refused to undergo the medical examination. 34. While the court accepted the experts’ conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances, it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution. 35. On 4 May 2004 the claimants appealed to the Supreme Court. Relying on the Court’s judgment in the case of López Ostra v. Spain (9 December 1994, Series A no. 303C) and the findings of the courtcommissioned expert examinations at the domestic level, they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution, the absence of purification equipment over the plant’s chimneys and its impact upon their health and well-being, and the defectiveness of the plant’s technical compliance document. They further disagreed with the lower court’s findings with respect to the alleged noise pollution emanating from the plant. 36. On 21 April 2005 the Supreme Court delivered a final judgment in the case. It upheld the appeals of the two already successful claimants and ordered the plant’s operators, the City Hall and the Ministry of the Environment to pay them, jointly, GEL 7,000 (EUR 2,938) each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant’s activities on 2 February 2001 and affected them individually (see paragraphs 11 and 26 above). In addition, it ordered the plant to pay GEL 50 (EUR 21) monthly to one claimant and GEL 100 (EUR 42) to the other. It further upheld the lower court’s finding concerning the plant’s responsibility for the infiltration of water into the foundations of the building. 37. The Supreme Court rejected the complaint concerning the electromagnetic pollution as unsubstantiated. 38. As regards the submissions concerning the air pollution, the Supreme Court dismissed them as unsubstantiated. It reasoned that the claimants’ reference to violations of environmental standards, regardless of their validity, could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant’s permit be revoked, that filters be installed over the chimneys, that other environmental protection measures be implemented, or that the hazardous activities be banned or relocated. 39. The court further noted that the Court’s findings in the case of López Ostra v. Spain could not serve as grounds for requesting damages. It highlighted the fact that the plant in the instant case had been operational since 1939 while the flats had been built at a later date in 1952. It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by Dangerous Substances Act (see paragraph 47 below). It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise, smells, steam and gases caused by the ordinary industrial activities of the neighbouring plant, whose essential purpose had been to supply the nearby buildings with heating and hot water. The court interpreted the applicants’ unenforced friendly settlement in an earlier set of proceedings (see paragraph 16 above) as their acceptance of the ecological discomfort. 40. The Supreme Court further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air. Consequently, the appellants were no longer being affected by the pollution. Moreover, they had failed, in the court’s opinion, to show what specific pecuniary damage, if any, had been sustained as a result of the air pollution in the previous years. It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems.