CORTE EUROPEA DEI DIRITTI DELL'UOMO SENTENZA DEL 02/11/2006
(GIACOMELLI C. ITALIA)
DIRITTO AL RISPETTO DELLA VITA PRIVATA E FAMILIARE - IMMISSIONI INQUINANTI DA STABILIMENTO AUTORIZZATO DALLA
REGIONE
Si ringrazia l'Avv. Balletta per la segnalazione
Il ricorrente ha dedotto davanti alla Corte la violazione dell’ art. 8 della Cedu in relazione alle immissioni subite ad opera di uno
stabilimento industriale, situato presso la sua abitazione, autorizzato
dalla Regione al trattamento di rifiuti speciali, facendo ricorso a
prodotti chimici inquinanti per l’ambiente circostante. La Corte ha
accolto il ricorso. Ha stabilito a tal fine che l’art. 8 cit. tutela il
diritto della persona al rispetto della propria vita privata e
familiare, non solo da aggressioni fisiche ma anche da rumori,
emissioni, odori o altre forme di interferenze, allorché queste gli
impediscano di godere le amenità della sua residenza. Nel caso siano
dedotte questioni ambientali, si applica l’art. 8 cit. – ha aggiunto la
Corte – se l’inquinamento sia direttamente causato dallo Stato e sia
questo responsabile per la mancanza di una regolamentazione adeguata
dell’attività del settore privato.

Testo Completo: Sentenza della
Corte Europea dei Diritti dell'Uomo di Strasburgo del 2 novembre 2006

THIRD SECTION

CASE OF GIACOMELLI v. ITALY

(Application n. 59909/00)

JUDGMENT

STRASBOURG 2 November 2006

This judgment will become final
in the circumstances set out in Article 44 § 2 of the Convention. It
may be subject to editorial revision.

In the case of Giacomelli v.
Italy,

The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:

Mr B.M. ZUPANČIČ, President,

Mr C. BÎRSAN,

Mr V. ZAGREBELSKY,

Mr E. MYJER,

Mr DAVID THÓR BJÖRGVINSSON,

Mrs
I. ZIEMELE,

Mrs I. BERRO-LEFÈVRE, judges,

and Mr V. BERGER, Section
Registrar,

Having deliberated in private on 15 March 2005 and on 12
October 2006,

Delivers the following judgment, which was adopted on
the last mentioned date:

PROCEDURE

1. The case originated in an
application (no. 59909/00) against the Italian Republic lodged with the
European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by an Italian national, Ms
Piera Giacomelli (“the applicant”), on 22 July 1998.

2. The applicant
was represented by Mr M. Toma, a lawyer practising in Brescia. The
Italian Government (“the Government”) were represented by their Agent,
Mr I.M. Braguglia, and their deputy co-Agent, Mr F. Crisafulli.

3.
The applicant alleged, in particular, an infringement of her right to
respect for her home and private life, as guaranteed by Article 8 of
the Convention.

4. The application was transmitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).

5. The application was allocated
to the First Section of the Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

6. On 1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed Fourth
Section (Rule 52 § 1).

7. In a decision of 15 March 2005 the Court
(Fourth Section) declared the application admissible and decided to
join to the merits the Government's preliminary objection that the
application was premature.

8. The applicant and the Government each
filed written observations on the merits (Rule 59 § 1).

9. The
application was subsequently allocated to the Third Section of the
Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. The
applicant was born in 1935 and lives in Brescia.

11. She has lived
since 1950 in a house on the outskirts of Brescia, 30 metres away from
a plant for the storage and treatment of “special waste” classified as
either hazardous or non-hazardous. A joint-stock company, Ecoservizi,
began operating the plant in 1982.

A. Ecoservizi's activities and the
subsequent contentious proceedings

1. The licence for the
“detoxification” of industrial waste

12. In a decision (delibera) of
4 April 1989 the Lombardy Regional Council granted Ecoservizi a licence
to operate the plant for a five-year period. The different forms of
waste treatment covered by Ecoservizi's licence included, for the first
time, the “detoxification” (inertizzazione) of hazardous waste, a
process involving the treatment of special industrial waste using
chemicals.

13. On 30 October 1991 the Regional Council authorised
Ecoservizi to increase the annual quantity of waste treated at the
plant to a total volume of 192,000 cubic metres. In particular, the
quantity of toxic waste authorised for detoxification was raised from
30,000 to 75,000 cubic metres.

14. On 5 August 1993 the Regional
Council approved a number of alterations entailing technological
improvements to the facility without any increase in the quantity of
waste being treated.

15. In a decision of 11 April 1994 the Lombardy
Regional Council renewed the operating licence for a five-year period,
on condition that Ecoservizi signed a memorandum of understanding with
the local authorities in order to limit the plant's environmental
impact; that condition was satisfied on 18 November 1994.

16. On 13
December 1994 the Regional Council took note of the signing of the
memorandum of understanding and confirmed 30 April 1999 as the expiry
date for the operating licence.

2. The first set of contentious
proceedings

17. The applicant lodged three applications with the
Lombardy Regional Administrative Court in 1994 and 1995 for judicial
review of the Regional Council's decisions of 5 August 1993 and 11
April and 13 December 1994.

She challenged the renewal of the
operating licence granted to Ecoservizi and, alleging a breach of Law
no. 441/1987, argued that the alterations approved by the Regional
Council entailed an increase in activity such as to necessitate a fresh
licensing procedure, including an assessment of the plant's
environmental impact.

Ecoservizi applied to intervene in the
proceedings.

18. The applicant also sought a stay of execution of the
decision to renew the licence. The court allowed her request in an
order of 18 November 1994, chiefly because the memorandum of
understanding had not yet been signed, and suspended the implementation
of the decision. Ecoservizi appealed.

19. On 7 April 1995 the
Consiglio di Stato set aside the Regional Administrative Court's order,
holding that the signing of the memorandum of understanding (see
paragraph 15 above) had removed the risk of irreparable damage on the
basis of which the stay of execution had been ordered.

20. In a
judgment of 13 April 1996 the Lombardy Regional Administrative Court,
having joined all the applicant's applications, dismissed them. It
noted that all her complaints were based on the alleged need for the
Regional Council to conduct a fresh licensing procedure. It considered,
however, that the size of the facility and its volume of activity had
been determined in the Regional Council's decisions of 1989 and 1991,
which had never been challenged by the applicant. However, the
alterations approved in the impugned decisions of 5 August 1993 and 11
April and 13 December 1994 did not entail an increase in the plant's
volume of activity or a change in the types of waste being treated.
Accordingly, it was not necessary for the Regional Council to conduct a
fresh licensing procedure.

21. The applicant appealed. In a judgment
of 6 November 1998 the Consiglio di Stato upheld the Regional
Administrative Court's conclusions and dismissed the appeal. It also
pointed out that a facility should be deemed to be “new” and thus to
require a fresh operating licence where there was a change in one of
the various stages of waste treatment or in the types of waste being
treated.

3. The second set of contentious proceedings

22. In a
decision of 29 April 1999 the Lombardy Regional Council renewed
Ecoservizi's operating licence for a five-year period. The decision was
subject to revocation in the light of the findings of the environmental-
impact assessment procedure (procedura di valutazione di impatto
ambientale – “EIA procedure”) which Ecoservizi had initiated in the
meantime (see paragraphs 37-52 below).

23. On 12 July 1999 the
applicant applied to the Lombardy Regional Administrative Court for
judicial review of the Regional Council's decision of 29 April 1999.
The company and the Lombardy Regional Council both applied to intervene
in the proceedings.

24. On 20 September 1999 the applicant applied to
the Regional Administrative Court for judicial review of a decision of
12 April 1999 in which the Regional Council had authorised Ecoservizi
to make an alteration to the facility for processing waste oils.

25.
Furthermore, in a decision of 15 October 1999 the Regional Council
noted that Ecoservizi had decided not to act on the authorisation
granted on 12 April 1999, and confirmed the renewal of the operating
licence. The applicant applied for judicial review of that decision.

26. In an order of 18 February 2000 the Regional Administrative Court
allowed an application by the applicant for a stay of execution, on the
ground that the EIA procedure was still pending. Subsequently, on 11
April 2000, the Consiglio di Stato allowed an appeal by Ecoservizi,
which had argued that the latest inspections of the plant demonstrated
its “observance of the limits set by the existing regulations”, and set
aside the stay of execution ordered by the Regional Administrative
Court.

27. In a judgment of 29 April 2003, which was deposited with
the registry on 9 June 2003, the Lombardy Regional Administrative Court
allowed the applicant's applications on the merits and set aside the
three impugned decisions (see paragraphs 23-25 above).

The court
held, firstly, that the site alterations authorised by the Regional
Council on 12 April 1999 in order to allow the processing of waste
oils, should have been classified as substantial. Consequently, in
accordance with Articles 27 and 28 of Decree no. 22/1997 (see
paragraphs 62 and 63 below), the Regional Council should have suspended
Ecoservizi's operations and ordered the necessary checks to be carried
out before renewing the company's operating licence. The court
therefore found that the Lombardy Regional Council's decision of 29
April 1999 had been unlawful.

As to the fact that the company had
subsequently decided not to carry out the alterations in question, the
court held that the Regional Council should in any event have carried
out a thorough examination of the plant's operations and condition, as
there had been a number of complaints from private individuals and
public authorities about Ecoservizi's activities, giving rise to
serious doubts as to their compatibility with environmental standards.

The court referred to the two environmental-impact assessment decrees
(“EIA decrees”) issued by the Ministry of the Environment and, holding
that the Regional Council had failed to carry out its investigative
duties, ordered the suspension of Ecoservizi's operations pending the
final outcome of the EIA procedure.

28. Ecoservizi lodged an appeal
with the Consiglio di Stato. On 1 July 2003 the Consiglio di Stato
stayed the execution of the judgment of 9 June 2003 further to a
request to that effect by the company.

29. In a judgment of 25 May
2004, which was deposited with the registry on 31 August 2004, the
Consiglio di Stato dismissed Ecoservizi's appeal. Upholding the
Regional Administrative Court's judgment, it held that the Regional
Council's decision of 29 April 1999 to renew the operating licence
without having carried out any environmental-impact assessment was
unlawful and should be set aside.

4. The third set of contentious
proceedings

30. In the meantime, in a decision of 23 April 2004 the
Lombardy Regional Council had renewed the operating licence for the
plant for a five-year period. The renewal concerned the treatment of
special waste, both hazardous and non-hazardous. Industrial waste
intended for detoxification remained outside the scope of the licence
pending the conclusion of the EIA procedure being conducted by the
Ministry of the Environment.

31. A consultation meeting between the
local authorities (conferenza di servizi) was held on 31 March 2004
prior to the granting of the licence. At the meeting the Regional
Council and the provincial council and district council concerned
expressed an opinion in favour of renewing the licence, referring at
the same time to the report issued by the Regional Environmental
Protection Agency (ARPA) on 28 February 2004.

In the report the ARPA
experts indicated what steps had to be taken to avoid any risk of an
incident or operational fault at the plant; in addition to these, all
the requirements laid down by the Regional Council in its decision of 7
November 2003 (see paragraph 49 below) had to be met.

32. The
applicant applied to the Lombardy Regional Administrative Court for
judicial review of that decision and sought a stay of its execution.

33. On 30 April 2004 the Regional Council, having taken note of the EIA
decree of 28 April 2004 approving the treatment by Ecoservizi of all
types of waste, incorporated its latest decision to renew the operating
licence into a provisional licence for the detoxification of industrial
waste, valid until 22 June 2004, pending completion of the full
licensing procedure.

34. In a decision of 28 June 2004 the Regional
Council extended the licence until 31 December 2004 to allow Ecoservizi
to submit its plans for adapting the plant to meet the requirements set
out in the EIA decree.

35. In an order of 23 July 2004 the Lombardy
Regional Administrative Court dismissed an application by the applicant
for a stay of execution, holding that the decision of 23 April 2004 had
been given in accordance with the favourable opinion by the local
authorities and had taken into account all factors constituting a
potential risk to the properties in the vicinity of the plant. The
court further noted that the decision in question had laid down a
number of requirements aimed at eliminating the disturbance suffered by
the applicant.

36. The proceedings on the merits are still pending
before the Lombardy Regional Administrative Court.

B. Environmental-
impact assessment procedures conducted by the Ministry of the
Environment

37. In a decision of 13 December 1996 the Lombardy
Regional Council ordered Ecoservizi to initiate an EIA procedure in
respect of the detoxification activities at the plant.

On 11 May 1998
the company submitted its application to the Ministry of the
Environment in accordance with section 6 of Law no. 349/1986.

Brescia
District Council and the applicant took part in the procedure, together
with the local authorities of Borgosatollo and Castenedolo, two
villages situated within several hundred metres of the plant.

38. On
24 May 2000 the Ministry of the Environment issued an EIA decree.

The
Ministry noted that the plant was built on agricultural land, near the
river Garza and a sand quarry, the exploitation of which had gradually
eroded the soil. Because of the permeability of the ground in
particular, there was a significant risk that the toxic chemical
residue generated by the detoxification operations at the plant might
contaminate the ground water, a source of drinking water for the
inhabitants of the neighbouring villages.

The Ministry considered
that the operation of the plant was incompatible with environmental
regulations. However, Ecoservizi was allowed to continue its activities
until the expiry on 29 April 2004 of the most recent operating licence
granted by the Regional Council, provided that it complied with certain
requirements.

39. Ecoservizi applied to the Lazio Regional
Administrative Court for judicial review of the decision and sought a
stay of its execution.

40. In an order of 31 August 2000 the Regional
Administrative Court suspended the implementation of the decision and
ordered the Ministry to carry out a fresh environmental-impact
assessment. The Ministry appealed. On 8 May 2001 the Consiglio di Stato
declared the appeal inadmissible.

41. In the meantime, on 30 April
2001 the Ministry had issued a further EIA decree confirming that the
operation of the plant was incompatible with environmental
regulations.

42. Ecoservizi applied to the Lazio Regional
Administrative Court for judicial review of the new decree issued by
the Ministry.

43. On 11 July 2001 the court allowed the application
by Ecoservizi and ordered the Ministry to carry out a fresh
environmental-impact assessment.

44. In an order of 11 December 2001
the Consiglio di Stato dismissed an appeal by the Ministry of the
Environment against the above-mentioned order of the Lazio Regional
Administrative Court.

45. In a decision of 4 November 2002 the
Lombardy Regional Council notified Ecoservizi of the conditions for
operating the plant, as laid down in the decrees issued by the Ministry
of the Environment.

46. In the meantime, on 4 October 2002, in the
course of the fresh EIA procedure ordered by the Regional
Administrative Court, Ecoservizi had submitted a plan for altering the
facility.

The plan envisaged, among other things, making the ground
surface impermeable, building soundproofing devices, raising the site's
perimeter wall so as to avoid any risk of flooding, and improving the
system for monitoring hazardous emissions.

47. On 17 October 2003 the
local health authority (azienda sanitaria locale – ASL) submitted its
opinion to the Lombardy Regional Council on the compatibility of
Ecoservizi's activities with environmental regulations. It stated that,
according to the results of technical analyses carried out between 2000
and 2003, which had noted, among other things, the presence of abnormal
concentrations of carbon and other organic substances in the
atmosphere, the continuation of the plant's operation could cause
health problems for those living nearby. The ASL added that it had not
been shown that the precautions envisaged by Ecoservizi were sufficient
to protect public health.

48. On 7 November 2003 the Lombardy
Regional Council approved the continuation of the plant's operation,
provided that the company implemented a number of requirements.

49.
In particular, the company was to:

“draw up a memorandum of
understanding with the local authorities for monitoring the waste being
treated, with a view to reducing the likelihood of an operational fault
at the site ...;

ensure the buffering of the detoxification
facilities ...;

close the open-top chambers used in the chemical and
biological process and develop an exhaust ventilation and purification
system ...;

build a mobile, soundproof structure to cover the
macerator ...;

alter the internal sewerage system so as to separate
atmospheric water from water produced by the facility;

set up a
system for monitoring the quality and quantity of water produced by the
plant that flows into the Garza ... and into public sewers;

devise
and implement a plan for making the ground impermeable at the site
...;

monitor the site in order to obtain a precise assessment of the
presence of any pollutants in the subsoil, the hydrogeological
structure of the land and the danger levels for the nearby ground-water
supplies used as drinking water ...;

... raise the facility's
perimeter wall to a minimum height of 123 metres above sea level ...”

The Regional Council further directed:

“the close proximity of
residential dwellings means that the plant's operations must be
permanently monitored as regards the dust released into the atmosphere,
VOCs (volatile organic compounds) and noise disturbance. Accordingly, a
unit should be set up between the site and the dwellings to measure
dust emissions and the noise generated by the facility. As regards VOC
quantities, the monitoring device should be installed near the facility
with the agreement of the relevant authorities;

the company should
also carry out periodic reviews of noise emissions.”

The Regional
Council decided that the plant's implementation of the above
requirements should be verified when the time came to renew its
operating licence, due to expire on 30 April 2004.

50. On 28 April
2004 the EIA procedure ordered by the Regional Administrative Court was
completed and the Ministry of the Environment issued a new EIA decree.

The Ministry noted, firstly, that Ecoservizi processed 27% of the
waste generated in northern Italy and 23% nationwide. It subsequently
stated that the requirements laid down by the Regional Council should
significantly improve the conditions for operating and monitoring the
plant and expressed an opinion in favour of Ecoservizi's continued
operation of the plant, provided that it complied with those
requirements.

51. The applicant applied to the Lazio Regional
Administrative Court for judicial review of the EIA decree, at the same
time seeking a stay of its execution.

52. In an order of 24 July 2004
the Regional Administrative Court refused the request for a stay of
execution, on the ground that the applicant had not notified the
Ministry of the Environment of her application.

C. Complaints about
Ecoservizi's activities, and inspections by the relevant authorities

53. Following numerous complaints by the applicant and other
inhabitants of the area surrounding the plant, the Brescia ASL's Public
and Environmental Health Office and the ARPA produced a number of
reports on Ecoservizi's activities.

54. In particular, on 21
September 1993 experts from the ASL conducted analyses of the emissions
produced at the plant and found that the statutory limits had been
exceeded for certain substances, such as nickel, lead, nitrogen and
sulphates. The report drawn up by the ASL indicates that the judicial
authorities were informed of the findings of the analyses.

55. On 8
March 1995 experts from the ASL inspected the plant. They noted that a
deposit of white dust had formed inside and outside the facility
following an accident while a silo was being filled with slaked lime.

During the same inspection the experts observed that a number of
containers intended for toxic waste were present on the site without
having been neutralised after use. In a note dated 27 April 1995 the
ASL instructed the company to move the containers in order to avoid any
risk of contaminating the ground, particularly as the surface had not
been made impermeable. It appears from the report that the ASL lodged a
complaint with the appropriate judicial authorities.

56. In a report
issued on 31 July 1997 the NAS (special branch of the carabinieri
dealing with health issues) informed Brescia Provincial Council that a
complaint had been lodged against Ecoservizi's legal representative for
failure to comply with the conditions laid down in the licences for
operating the plant.

57. On several occasions between 1999 and 2003
Brescia District Council asked the Lombardy Regional Council to
intervene with a view to moving the facility to a safer site better
suited to the plant's growing production needs.

58. On 28 December
2002 Brescia District Council temporarily rehoused the Giacomelli
family free of charge pending the outcome of the judicial dispute with
Ecoservizi in order to alleviate the disturbance caused to the
applicant by the plant.

59. On 15 May 2002 the ARPA issued a
technical report on Ecoservizi further to a request by the applicant
and her neighbours for an emergency inspection of the site. The experts
found a high level of ammonia in the atmosphere, indicating a fault in
the detoxification process. They concluded that the company had omitted
to activate the necessary devices for ensuring that the waste to be
detoxified was compatible with the facility's specifications. There
were also structural deficiencies at the site that could potentially
lead to operational faults generating emissions of fumes and gases.

II. RELEVANT DOMESTIC LAW

60. Section 6 of the Environment Act (Law
no. 349/1986), which was enacted in accordance with European Directive
85/337/EEC, provides that any project which is likely to have
significant effects on the environment

“must be submitted, prior to
its approval, to the Ministry of the Environment, the Ministry of
Cultural and Environmental Heritage and the authorities of the region
concerned, for an environmental-impact assessment ('EIA'). The
application must state the location of the installation and give
details of the liquid and solid waste and the pollutants and noise
disturbance which it will generate. It must also outline the measures
intended to prevent environmental damage and the environmental
protection and monitoring arrangements. Notice of the application shall
be published at the applicant's expense in the newspaper with the
largest circulation in the region concerned and in a national
newspaper.

The Ministry of the Environment shall, together with the
Ministry of Cultural and Environmental Heritage, after consulting the
authorities of the region concerned, give a decision within ninety days
as to the project's compatibility with environmental regulations.

Where the Ministry of the Environment observes any conduct that is
contrary to the decision on compatibility with environmental
regulations or is likely to endanger the environmental and ecological
balance, it shall order the suspension of operations and shall refer
the matter to the Council of Ministers.”

61. Article 1 of Prime
Ministerial Decree no. 377/1988 lists the types of project that are
subject to the assessment procedure provided for in Law no. 349/1986.
Point (f) of the Article refers to

“facilities for the treatment of
toxic and harmful waste by means of a ... chemical process”.

62. Law
no. 441/1987, amended by Legislative Decree no. 22/1997, contains
provisions on waste treatment and environmental protection.

Article
27 of the Decree governs the licensing of waste-treatment facilities.
The regional council conducts a preliminary examination of proposed new
facilities for the treatment and storage of urban, special, toxic and
harmful waste by means of consultations (conferenze) in which
representatives of the region and the other local authorities concerned
take part.

If the planned facility examined by the regional council
has to undergo a prior environmental-impact assessment within the
meaning of Law no. 349/1986, the licensing procedure is suspended
pending the decision by the Ministry of the Environment.

63. Once the
examination of the project is complete, the regional council awards an
operating licence for the facility in an administrative decision laying
down the necessary environmental-protection conditions and requirements
for the operator to observe. The licence is valid for five years and is
renewable.

Where it emerges from inspections of the site that the
conditions laid down by the authorities are not being met, the
operation of the facility is suspended for up to twelve months.
Subsequently, if the facility's operations have not been brought into
line with the requirements set out in the licence, the licence is
revoked (Article 28 of Decree no. 22/1997).

64. By section 21 of Law
no. 1034/1971, anyone who has cause to fear that his or her rights may
suffer imminent and irreparable damage as a result of the
implementation of an administrative measure which he or she has
challenged or of the authorities' conduct may ask the administrative
courts to take urgent action to ensure, depending on the circumstances,
that the decision on the merits can provisionally take effect.

THE
LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

65. The Government
submitted that the application was premature in that the latest
proceedings instituted by the applicant were still pending in the
Regional Administrative Court. Asserting that an application to the
administrative courts for judicial review was an effective and
accessible remedy, the Government submitted that the applicant should
be required to await the outcome of those proceedings.

66. The
applicant disputed the Government's reasoning. She submitted that since
1994 she had asked the administrative courts on several occasions to
halt the plant's operation. However, although her requests for stays of
execution had been granted and the environmental-impact assessment
concerning the plant had been negative, its activities had never been
stopped.

67. The Court observes that in its decision of 15 March 2005
on the admissibility of the application it held that the Government's
objection that the application was premature should be joined to the
examination of the merits of the case. Having regard to the substance
of the applicant's complaint, it can only confirm that conclusion.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

68. The
applicant complained that the persistent noise and harmful emissions
from the plant, which was only 30 metres away from her house, entailed
severe disturbance to her environment and a permanent risk to her
health and home, in breach of Article 8 of the Convention, which
provides:

Article 8

“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.”

A. The parties' submissions

1. The applicant

69. The applicant
submitted that the plant operated by Ecoservizi had considerably
expanded since being opened in 1982, having spread to barely 30 metres
from the house where she had already been living for several years
before that date, and having reached an annual production capacity of
some 200,000 cubic metres of harmful waste.

70. Since 1991 in
particular, the plant's operations had increasingly been characterised
by the continuous emission of noise and odours, preventing the
applicant from being able to rest and live in adequate conditions, and
had entailed a constant danger to the health and well-being of all
those living in the vicinity. The applicant submitted that such a state
of affairs was wholly incompatible with her right to respect for her
private life and home and her right to health, and contended that the
measures taken by the company were not sufficient to eliminate the
disturbance produced by the plant and the risk resulting from its
operation.

71. The applicant further submitted that the environmental-
impact assessment procedure, which according to the law should have
been an essential prerequisite for the plant's operation, had not been
initiated until several years after Ecoservizi had begun its
activities. Furthermore, the company and the authorities had never
complied with the decrees in which the plant's operation had been
deemed incompatible with environmental regulations, and had disregarded
the instructions issued by the Ministry of the Environment. The
treatment of toxic and harmful waste could not be said to be in the
public interest in such conditions.

2. The Government

72. The
Government did not dispute that there had been interference with the
applicant's right to respect for her home and private life. They
contended, however, that the interference had been justified under the
second paragraph of Article 8 of the Convention.

The Government
asserted that the administrative decisions in which Ecoservizi had been
granted operating licences had been taken in accordance with the law
and had pursued the aims of protecting public health and preserving the
region's economic well-being. The company, they pointed out, processed
almost all of the region's industrial waste, thereby ensuring the
development of the region's industry and protecting the community's
health.

73. In the Government's submission, the instant case differed
from that of Guerra and Others v. Italy (judgment of 19 February 1998,
Reports of Judgments and Decisions 1998-I, p. 227, § 57) for two
reasons. Firstly, Ecoservizi's operations respected the fundamental
right to public health, and secondly, it had not been proved that the
facility in the instant case was dangerous, whereas in Guerra and
Others it had not been disputed that the emissions from the chemical
factory entailed risks for the inhabitants of the town of Manfredonia.
The Government also pointed out the difference between the instant case
and López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-
C), in which the operation of the waste-treatment plant had not been
indispensable to the local community. Emphasising the public-interest
value of Ecoservizi's activities, they observed that regard had to be
had to the fair balance to be struck between the competing interests of
the individual and of the community as a whole, and that there was a
clear body of case-law in which the Court had allowed States a wide
margin of appreciation in environmental matters.

74. The Government
also drew the Court's attention to the latest decisions by the domestic
authorities.

They pointed out, firstly, that on 23 July 2004 the
Lombardy Regional Administrative Court, after considering all the
relevant evidence in the case, had dismissed an application by the
applicant for a stay of execution of the most recent decision to grant
Ecoservizi an operating licence. They further noted that the most
recent EIA procedure had ended on 28 April 2004 with a positive
assessment by the Ministry of the Environment.

This proved that the
relevant authorities had assessed the plant's operations as a whole
and, while ordering the company to comply with certain requirements,
had found that they were compatible with environmental regulations and
did not entail a danger to human health.

75. The Government further
pointed out that Ecoservizi, a company that was very familiar to the
public, not least because of the judicial proceedings and complaints
brought by Ms Giacomelli, had frequently undergone inspections by the
relevant authorities, so that any risk to the applicant's health could
be ruled out. The applicant, whose sole purpose was to secure the
closure or relocation of the plant, had simply alleged a violation of
her right to health, without taking into account the efforts made by
the appropriate authorities to improve the situation and without giving
details or proof of any adverse effects on her health.

B. The Court's
assessment

76. Article 8 of the Convention protects the individual's
right to respect for his private and family life, his home and his
correspondence. A home will usually be the place, the physically
defined area, where private and family life develops. The individual
has a right to respect for his home, meaning not just the right to the
actual physical area, but also to the quiet enjoyment of that area.
Breaches of the right to respect for the home are not confined to
concrete or physical breaches, such as unauthorised entry into a
person's home, but also include those that are not concrete or
physical, such as noise, emissions, smells or other forms of
interference. A serious breach may result in the breach of a person's
right to respect for his home if it prevents him from enjoying the
amenities of his home (see Hatton and Others v. the United Kingdom
[GC], no. 36022/97, § 96, ECHR 2003-VIII).

77. Thus in Powell and
Rayner v. the United Kingdom (judgment of 21 February 1990, Series A
no. 172, p. 18, § 40) the Court declared Article 8 applicable because
“[i]n each case, albeit to greatly differing degrees, the quality of
the applicant's private life and the scope for enjoying the amenities
of his home ha[d] been adversely affected by the noise generated by
aircraft using Heathrow Airport”. In López Ostra (cited above, pp. 54-
55, § 51), which concerned the pollution caused by the noise and odours
generated by a waste-treatment plant, the Court stated that “severe
environmental pollution may affect individuals' well-being and prevent
them from enjoying their homes in such a way as to affect their private
and family life adversely, without, however, seriously endangering
their health”. In Guerra and Others (cited above, p. 227, § 57), the
Court observed: “The direct effect of the toxic emissions on the
applicants' right to respect for their private and family life means
that Article 8 is applicable.” Lastly, in Surugiu v. Romania (no.
48995/99, 20 April 2004), which concerned various acts of harassment by
third parties who entered the applicant's yard and dumped several
cartloads of manure in front of the door and under the windows of the
house, the Court found that the acts constituted repeated interference
with the applicant's right to respect for his home and that Article 8
of the Convention was applicable.

78. Article 8 may apply in
environmental cases whether the pollution is directly caused by the
State or whether State responsibility arises from the failure to
regulate private-sector activities properly. Whether the case is
analysed in terms of a positive duty on the State to take reasonable
and appropriate measures to secure the applicants' rights under
paragraph 1 of Article 8 or in terms of an interference by a public
authority to be justified in accordance with paragraph 2, the
applicable principles are broadly similar. In both contexts regard must
be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and in
both contexts the State enjoys a certain margin of appreciation in
determining the steps to be taken to ensure compliance with the
Convention. Furthermore, even in relation to the positive obligations
flowing from the first paragraph of Article 8, in striking the required
balance the aims mentioned in the second paragraph may be of a certain
relevance (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54-
55, § 51, both cited above).

79. The Court considers that in a case
such as the present one, which involves government decisions affecting
environmental issues, there are two aspects to the examination which it
may carry out. Firstly, it may assess the substantive merits of the
government's decision, to ensure that it is compatible with Article 8.
Secondly, it may scrutinise the decision-making process to ensure that
due weight has been accorded to the interests of the individual (see
Taşkın and Others v. Turkey, no. 46117/99, § 115, ECHR 2004-X).

80.
In relation to the substantive aspect, the Court has held on a number
of occasions that in cases involving environmental issues the State
must be allowed a wide margin of appreciation (see Hatton and Others,
cited above, § 100; Buckley v. the United Kingdom, judgment of 25
September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77; and Taşkın and
Others, cited above, § 116).

It is for the national authorities to
make the initial assessment of the “necessity” for an interference.
They are in principle better placed than an international court to
assess the requirements relating to the treatment of industrial waste
in a particular local context and to determine the most appropriate
environmental policies and individual measures while taking into
account the needs of the local community.

81. To justify the award of
the operating licence for the plant to Ecoservizi and the subsequent
decisions to renew it, the Government referred to the economic
interests of the region and the country as a whole and the need to
protect the citizens' health.

82. However, the Court must ensure that
the interests of the community are balanced against the individual's
right to respect for his or her home and private life. It reiterates
that it has consistently held that although Article 8 contains no
explicit procedural requirements, the decision-making process leading
to measures of interference must be fair and must afford due respect to
the interests safeguarded to the individual by Article 8 (see, mutatis
mutandis, McMichael v. the United Kingdom, judgment of 24 February
1995, Series A no. 307-B, p. 55, § 87).

It is therefore necessary to
consider all the procedural aspects, including the type of policy or
decision involved, the extent to which the views of individuals were
taken into account throughout the decision-making process, and the
procedural safeguards available (see Hatton and Others, cited above, §
104). However, this does not mean that the authorities can take
decisions only if comprehensive and measurable data are available in
relation to each and every aspect of the matter to be decided.

83. A
governmental decision-making process concerning complex issues of
environmental and economic policy must in the first place involve
appropriate investigations and studies so that the effects of
activities that might damage the environment and infringe individuals'
rights may be predicted and evaluated in advance and a fair balance may
accordingly be struck between the various conflicting interests at
stake (see Hatton and Others, cited above, § 128). The importance of
public access to the conclusions of such studies and to information
enabling members of the public to assess the danger to which they are
exposed is beyond question (see, mutatis mutandis, Guerra and Others,
cited above, p. 223, § 60, and McGinley and Egan v. the United Kingdom,
judgment of 9 June 1998, Reports 1998-III, p. 1362, § 97). Lastly, the
individuals concerned must also be able to appeal to the courts against
any decision, act or omission where they consider that their interests
or their comments have not been given sufficient weight in the decision-
making process (see, mutatis mutandis, Hatton and Others, cited above,
§ 128, and Taşkın and Others, cited above, §§ 118-19).

84. In
determining the scope of the margin of appreciation allowed to the
respondent State, the Court must therefore examine whether due weight
was given to the applicant's interests and whether sufficient
procedural safeguards were available to her.

85. The Lombardy
Regional Council first granted Ecoservizi an operating licence for the
plant in question in 1982. The facility was initially designed for the
storage and treatment of hazardous and non-hazardous waste. In 1989 the
company was authorised to treat harmful and toxic waste by means of
“detoxification”, a process involving the use of chemicals potentially
entailing significant risks to the environment and human health.
Subsequently, in 1991, authorisation was given for an increase in the
quantity of waste being treated at the plant, and the facility was
consequently adapted to meet the new production requirements until it
reached its current size.

86. The Court notes at the outset that
neither the decision to grant Ecoservizi an operating licence for the
plant nor the decision to authorise it to treat industrial waste by
means of detoxification was preceded by an appropriate investigation or
study conducted in accordance with the statutory provisions applicable
in such matters.

87. The Court observes that section 6 of Law no.
349/1986 provides that the Ministry of the Environment must carry out a
prior environmental-impact assessment (EIA) for any facility whose
operation might have an adverse effect on the environment; among such
facilities are those designed for the treatment of toxic and harmful
waste using chemicals (see paragraphs 60 and 61 above).

88. However,
it should be noted that Ecoservizi was not asked to undertake such a
study until 1996, seven years after commencing its activities involving
the detoxification of industrial waste.

89. The Court further notes
that during the EIA procedure, which was not concluded until a final
opinion was given on 28 April 2004, the Ministry of the Environment
found on two occasions, in decrees of 24 May 2000 and 30 April 2001
(see paragraphs 38 and 41 above), that the plant's operation was
incompatible with environmental regulations on account of its
unsuitable geographical location and that there was a specific risk to
the health of the local residents.

90. As to whether the applicant
had the opportunity to apply to the judicial authorities and to submit
comments, the Court observes that between 1994 and 2004 she lodged five
applications with the Regional Administrative Court for judicial review
of decisions by the Regional Council authorising the company's
activities; three sets of judicial proceedings ensued, the last of
which is still pending. In accordance with domestic law, she also had
the opportunity to request the suspension of the plant's activities by
applying for a stay of execution of the decisions in issue.

91. The
first set of proceedings instituted by the applicant ended in 1998 when
the administrative courts dismissed her complaints, finding among other
things that she had failed to challenge the decisions in which the
Regional Council had authorised an increase in Ecoservizi's volume of
activity (see paragraph 20 above).

92. However, in the second set of
contentious proceedings the Lombardy Regional Administrative Court and
the Consiglio di Stato, in decisions of 29 April 2003 and 25 May 2004
respectively, held that the plant's operation had no legal basis and
should therefore be suspended with immediate effect (see paragraphs 27
and 29 above).

In accordance with the legislation in force, the
plant's operation should have been suspended so that the company could
bring it into line with environmental-protection regulations and hence
obtain a positive assessment from the Ministry of the Environment.

However, the administrative authorities did not at any time order the
closure of the facility.

93. The Court considers that the State
authorities failed to comply with domestic legislation on environmental
matters and subsequently refused, in the context of the second set of
administrative proceedings, to enforce judicial decisions in which the
activities in issue had been found to be unlawful, thereby rendering
inoperative the procedural safeguards previously available to the
applicant and breaching the principle of the rule of law (see, mutatis
mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR
1999 V).

94. It considers that the procedural machinery provided for
in domestic law for the protection of individual rights, in particular
the obligation to conduct an environmental-impact assessment prior to
any project with potentially harmful environmental consequences and the
possibility for any citizens concerned to participate in the licensing
procedure and to submit their own observations to the judicial
authorities and, where appropriate, obtain an order for the suspension
of a dangerous activity, were deprived of useful effect in the instant
case for a very long period.

95. Nor can the Court accept the
Government's argument that the decree of 28 April 2004, in which the
Ministry of the Environment authorised the continuation of the plant's
operation, and the decision of 23 July 2004, in which the Lombardy
Regional Administrative Court refused the most recent request by the
applicant for a stay of execution, serve as proof of the lack of danger
entailed by the activities carried out at the site and of the efforts
made by the domestic authorities to strike a fair balance between her
interests and those of the community.

96. In the Court's opinion,
even supposing that, following the EIA decree of 28 April 2004, the
measures and requirements indicated in the decree have been implemented
by the relevant authorities and the necessary steps have been taken to
protect the applicant's rights, the fact remains that for several years
her right to respect for her home was seriously impaired by the
dangerous activities carried out at the plant built thirty metres away
from her house.

97. Having regard to the foregoing, and
notwithstanding the margin of appreciation left to the respondent
State, the Court considers that the State did not succeed in striking a
fair balance between the interest of the community in having a plant
for the treatment of toxic industrial waste and the applicant's
effective enjoyment of her right to respect for her home and her
private and family life.

98. The Court therefore dismisses the
Government's preliminary objection and finds that there has been a
violation of Article 8 of the Convention.

III. APPLICATION OF ARTICLE
41 OF THE CONVENTION

99. Article 41 of the Convention provides:

“If
the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

100. The applicant claimed the sum of 1,500,000 euros (EUR)
for pecuniary damage and sought a similar award for non-pecuniary
damage.

She added that she was prepared to forgo part of the sums
claimed if Ecoservizi's operations were immediately stopped or if the
facility was moved to another site.

101. The Government submitted
that the sums claimed were excessive and that the finding of a
violation would constitute sufficient just satisfaction.

102. As to
the specific measures requested by the applicant, the Court reiterates
that its judgments are essentially declaratory in nature and that, in
general, it is primarily for the State concerned to choose, subject to
supervision by the Committee of Ministers, the means to be used in its
domestic legal order to discharge its obligation under Article 46 of
the Convention (see, among other authorities, Öcalan v. Turkey [GC],
no. 46221/99, § 210, ECHR 2005-IV).

103. As regards pecuniary damage,
the Court observes that the applicant failed to substantiate her claim
and did not indicate any causal link between the violation found and
the pecuniary damage she had allegedly sustained.

104. The Court
considers, however, that the violation of the Convention has
indisputably caused the applicant substantial non-pecuniary damage. She
felt distress and anxiety as she saw the situation persisting for
years. In addition, she had to institute several sets of judicial
proceedings in respect of the unlawful decisions authorising the
plant's operation. Such damage does not lend itself to precise
quantification. Making its assessment on an equitable basis, the Court
awards the applicant the sum of EUR 12,000.

B. Costs and expenses

105. The applicant sought the reimbursement of the costs and expenses
incurred before the domestic authorities and the Court. In her bills of
costs she quantified her domestic costs at EUR 19,365 and the costs
incurred before the Court at EUR 3,598.

106. The Government left the
matter to the Court's discretion.

107. According to the Court's
settled case-law, an award can be made in respect of costs and expenses
only in so far as they have been actually and necessarily incurred by
the applicant and are reasonable as to quantum (see, among many other
authorities, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-
II, p. 573, § 49, and Sardinas Albo v. Italy, no. 56271/00, § 110, 17
February 2005).

108. The Court considers that part of the applicant's
costs in the domestic courts were incurred in order to remedy the
violation it has found and should be reimbursed (contrast Serre v.
France, no. 29718/96, § 29, 29 September 1999). It is therefore
appropriate to award her EUR 5,000 under that head. The Court also
considers it reasonable to award her the sum claimed in respect of the
proceedings before it. Accordingly, making its assessment on an
equitable basis, it decides to award the applicant the sum of EUR
8,598.

C. Default interest

109. The Court considers it appropriate
that the default interest should be based on the marginal lending rate
of the European Central Bank, to which should be added three percentage
points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the
merits the Government's preliminary objection and dismisses it after
considering the merits;

2. Holds that there has been a violation of
Article 8 of the Convention;

3. Holds

(a) that the respondent State
is to pay the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts:

(i) EUR 12,000 (twelve thousand
euros) in respect of non-pecuniary damage;

(ii) EUR 8,598 (eight
thousand five hundred and ninety-eight euros) in respect of costs and
expenses;

(iii) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

4. Dismisses
the remainder of the applicant's claim for just satisfaction.

Done in
French, and notified in writing on 2 November 2006, pursuant to Rule 77
§§ 2 and 3 of the Rules of Court.

Vincent BERGER Boštjan M. ZUPANČIČ

Registrar President