By Nele Schuldt
[This post first appeared on Strasbourg Observers]
On October 11th 2022, the third section of the Strasbourg Court delivered an important judgment in the case of Pavlov and Others v Russia (Application no. 31612/09), concerning air pollution, which will hopefully prove to have great ramifications for pending and future environmental and climate cases. In short, the majority spelled out that the regulation of air pollution entails positive obligations for the State, which had remained unfulfilled in the present case. Seen in the light of the pending climate cases before the Grand Chamber, the third section of the Court comes across as having been determined to rally a progressive majority amongst a smaller group of judges and to prepare the Court for the task which awaits of tackling even bigger questions concerning the negative impact of environmental degradation and climate change on human rights. This is particularly evident in the two concurring opinions which located the case within the general direction of environmental litigation. Important evidentiary points were also raised, which will form the focal point of this contribution. To start, this blog post sets out the facts of the case, continues by reviewing the majority findings, and then critically discusses the separate opinions as well as evidentiary points before expressing the hope that the case is indicative of the direction of future environmental jurisprudence by the Strasbourg Court.
In Pavlov, 22 applicants had complained to the Strasbourg Court about the failure of the Russian Federation to take protective measures against the effects of industrial air pollution. They alleged this interfered with their right to respect for private life under Article 8 of the Convention (para. 53). The applicants, who lived several kilometers away from “large industrial undertakings” (para. 5), claimed that the concentration of harmful substances in the atmospheric air and drinking water in the city of Lipetsk had consistently exceeded Maximum Permissible Levels (MPL). This had previously been confirmed at the domestic level, with the District Court stating that “the evidence presented before the court demonstrates that the level of air pollution in Lipetsk is high” (para. 10). Despite the domestic authorities’ awareness of the dire environmental situation in Lipetsk, no sanitary protection zone had been erected to protect the citizens of the city. (para. 8)
For the purposes of assessing Russia’s obligations under the Convention, the Strasbourg Court limited its review to the time from when Russia had joined the Convention (in 1998) up until the present day, although the pollution issue had persisted for much longer (para. 60). In view of the facts before it, the Court found that the present situation fell within the scope of Article 8 of the Convention given its concrete interference with the applicants’ private life. In this regard, as done previously (para. 101), it acknowledged the subjective element inherent in the assessment of any alleged infringement on the quality of life – which forms part of the right to respect for private life – of the applicants:
“[I]t is hard to distinguish the effect of environmental hazards from the influence of other relevant factors, such as age, profession or personal lifestyle. “Quality of life”, in turn, is a subjective characteristic which hardly lends itself to a precise definition (ibid., para. 106).” (para. 61).
The Court nonetheless recognised the existence of an “elevated risk to health” in its identification of the existence of an interference with the applicants’ Article 8 rights. In this respect, it drew parallels with Cordella v Italy, Fadeyeva v Russia and Dubetska and Others v Russia. In these cases, violations of Convention rights were found, despite the absence of unequivocal medical evidence proving that the exposure to air pollution had caused the negative health condition (para. 68). In Pavlov,the Court also retraced the history of its environmental jurisprudence and noted how judgments had considered varying distances from a factory for recognizing potential adverse health implications for the applicants. Although the applicants in Pavlov lived at considerable distances from the polluting sites, and had not supplied evidence indicating a significant risk to their health, the majority of the judges were content to observe that “the levels of pollution (…) were not negligible” (para. 71) and outside the scope of pollution levels generally expected from “life in every modern city” (ibid). Thus, considerable distance from the factory did not prevent the Court from assessing whether the interference had been justified or not. Another factor on which the Court “attaches particular importance” (para. 67) is that the domestic courts had accepted that the applicants had standing, rather than having refused to examine the case due to the polluting site’s distance. Finally, the Government’s submission that the interferences could not be attributed to it due to the industrial undertakings having all been privately owned (para. 74) was dismissed by the Court, who instead emphasized the positive obligations falling on the State.
Based on the aforementioned considerations, the Court found a violation of Article 8 of the Convention. A crucial factor in this finding was the domestic authorities’ awareness of the “long-standing and well-known” (para. 77) critical environmental situation. This, in turn, triggered a positive obligation on the part of the State and led the Court to assess whether the State had taken reasonable and appropriate measures in balancing the rights of individual applicants vis-à-vis the general economic interest of the region. The Court found “no cogent reason” (para. 84) for the ongoing delay in the construction of sanitary protection zones. The majority determined that the domestic courts had carried out an unsatisfying balancing exercise which did not properly assess whether “measures were in fact effective and capable of remedying the adverse consequences.” (para. 85). It consequently listed a number of ways in which the domestic courts could have carried out a proper assessment by examining: first, whether inspections or administrative proceedings had led to improvements in equipment or technological process; second, why permitted emissions levels had been disregarded; and, third, whether funding for environmental improvement had been proportionate to the calculated environmental damage (para 85). Although the majority acknowledged that certain steps had been taken, i.e., notably observing the “substantial increase in funds allocated by the State for the support of environmental programmes in Lipetsk” (para 89), it still found that the applicants were exposed to considerable health risks because “the industrial air pollution in Lipetsk has not been sufficiently curbed” (para. 92). Consequently, a violation of Article 8 under the Convention was found, and the applicants were awarded non-pecuniary damages of 2,500 EUR each.
- Concurring opinions
The two separate concurring opinions of Judge Serghides and Judge Krenc deserve particular attention. Both highlight the significant advancement made in international environmental law as well as climate litigation’s overall trend in Europe and globally, to which, they insist, the Court should not be turning a blind eye. Judge Serghides starts off by highlighting the recognised interrelatedness and interdependence of human rights and the environment. He draws on soft law and makes reference to some of the latest recommendations of the Council of Europe’s Committee of Ministers, which lay down that Member States should
“reflect on the nature, content and implications of the right to a clean, healthy and sustainable environment and, on that basis, actively consider recognising at the national level this right as a human right that is important for the enjoyment of human rights and Is related to other rights and existing international law.” (Conc. Op. Judge Serghides, para. 4)
Judge Serghides then refers to Strasbourg case law (Fredin v Sweden) where the Court itself “recognizes for its part that in today’s society the protection of the environment is an increasingly important consideration.” (Conc. Op. Judge Serghides, para. 5) He complements this view with findings by the European Committee of Social Rights in Marangopoulos Foundation for Human Rights (MFHR) v Greece (2006) which highlight the relationship between a healthy environment and human rights, as well as the evolutive nature of the Charter. He then draws parallels to the Convention, and agrees with Natalia Kobylarz, a senior lawyer and environmental specialist at the Court, that despite the lack of an explicit right to a healthy environment, “the link between the environment and human rights intrinsically exists” (Conc. Op. Judge Serghides, para. 7, citing Kobylarz, 2018, p. 100). In a groundbreaking way which is crucial for future climate litigation cases, Judge Serghides argues that Article 8 ECHR has already been interpreted with an evolutive mindset, creating both negative and positive obligations for the State in protecting the environment (Conc. Op. Judge Serghides, para. 11), in a phrasing which seems to have in mind the climate cases pending before the Court. (On a side note, Section III also relinquished jurisdiction on the KlimaSeniorinnen case to the Grand Chamber.) Judge Serghides admits that the identified sub-right under Article 8 of the Convention concerning the protection of the environment has not yet reached jus cogens status but sees it coming due to the expected “negative, sometimes cataclysmically negative, direct and indirect implications of climate change”, capable of gravely interfering with human rights (Conc. Op. Judge Serghides, para. 17).
Quite remarkably, Judge Serghides indeed engages in a political discussion, namely the need to adopt an additional protocol to the Convention, capable of securing the right to a healthy environment. He argues, that this “would be an incentive for stronger domestic environmental laws and a more protection-focused approach by the domestic courts, but, most importantly, it would provide broader and more complete Convention protection of the potential right secured by the Court.” (Conc. Op. Judge Serghides, para. 21) Even without the current existence of this protocol, however, such unambiguous pronouncements send a hopeful signal that the Court may be prepared to widen its scope under Article 8 to appreciate issues related to climate change, the more so since there are many examples where separate opinions have led the way for future majority opinions.
Judge Krenc, in his concurring opinion, regrets that the majority has not referred to “international standards relating to the protection of the environment.” (Conc. Op, Judge Krenc, para. 2) He emphasises the importance of relying on both hard law and soft law sources for establishing the emergence of a “common standard between Member States” (Conc. Op. Judge Krenc, para. 3) and reminds his colleagues of President Spano’ address regarding two crucial elements for the progressive interpretation of environmental case law, namely “the living instrument doctrine and developments in international law as analysed through the principle of harmonious interpretation” (Con. Op. Judge Krenc, para. 5). All of these are crucial aspects for environmental cases before the Court, given that there is no explicit right to a healthy environment within the Convention.
In summary, both concurring opinions underscore that the Court itself has already applied an evolutive approach in the case law concerning Article 8 and that it has acknowledged the interrelatedness between human rights and the environment. These conclusions will form a crucial basis for pending and future climate cases.
- (Partly) Dissenting Opinions
The other two separate opinions also raise important points to be considered. The joint partly dissenting opinion by Judges Elosegui and Roosma criticises the majority’s choice to award non-pecuniary damages. In the dissenters’ view, the lack of proof of direct suffering from any negative health consequences as a result of the industrial pollution makes the applicants part of an entire corpus of people consisting of up to half a million people – namely the entire city. This, of course, raises floodgate concerns since “hundreds of thousands” (Partly Diss. Op. Judges Elosegui and Roosma, para. 2) of potential applicants may choose to litigate before the Court. Another interesting aspect is the influential role attributed to the, inter alia, proximity of the polluting factory, which, in the partly dissenting judges’ opinion, should determine the amount of compensation paid to the applicants. Although the majority the role that proximity to the polluter may play its assessment of an alleged interference with Convention rights, both majority and minority opinion fail to sufficiently justify how, from a scientific standpoint, the distance to a polluting factory actually impacts upon the alleged victims. This point has been raised by Sulyok, who argues that the Court’s use of ‘proxies’, or the use of pseudo-scientific terms, circumvent a causal assessment based on science and thus obscures an actual, proper assessment of the science. In Sulyok’s words, this “can only result in rough justice” (p. 155) and does not afford proper weight to actual scientific indicators.
The dissenting opinion of Judge Lobov also merits attention: he asserts that the Court is applying a double standard and refers to the 2009 Greenpeace v Germany decision, in which an emphatically subsidiary approach was taken in assessing Germany’s policies for diesel emissions. In the present opinion, Lobov criticises the majority for having “take[n] a strikingly opposite approach” (Diss. Op. Judge Lobov, para. 18). Lobov’s concern about the subsidiary role of the Court will resonate with those who take a conservative view of the Court’s role in reviewing domestic policy decisions. Rightly, in my opinion, Judge Lobov asks:
“Are the judges in Strasbourg well placed to decide that the toxic effects of pollutants in the air of Lipetsk are more dangerous than those provoked by soot particles and respirable dust emissions in the heavy traffic areas of Hamburg (…)?” (Diss. Op. Judge Lobov, para. 16).
In my view, however, the question goes beyond the subsidiary role of the Court. Instead, I would argue that this question is primarily one of epistemic nature: how can we ensure that judges are well-placed (read: in a position to incorporate scientifically complex evidence in their legal reasoning) to respond to technically complex evidence when assessing the pollution levels of a steel factory in Lipetsk, a port area in Hamburg, or indeed the adverse impacts of pollution from anthropocentric climate change? What cannot be ignored is the fact that the Court has finally woken up and recognised the grave impacts of environmental degradation and human rights. Perhaps this indeed may answer Judge Lobov’s puzzlement about the Court’s differing approach in the 2009 environmental decision vis-à-vis the majority’s conclusion in 2022: in Keller and Heri’s words, “[t]he time to engage with the challenges posed by climate cases, and to ensure this future, is now” (pg. 174). Arguably, the majority in Pavlov has understood the link between the Court’s environmental and climate case law and signaled its preparedness to handle pending and future cases of even greater scale.
Several points can be made on the use of the available scientific evidence in the Court’s finding of a Convention violation, three of which deserve particular mention.
First, the majority’s discussion on evidence in this present case invites a commentary on the scope of what the Court perceives to be admissible evidence. In its statement of facts concerning air pollution in Lipetsk, the Court incorporates information drawn “from public sources” (para. 46). I would like to draw attention to this interesting concept. Although the Court overall appears to adopt an adversarial approach towards facts (meaning that the parties in the proceedings are solely responsible for providing the evidence that is to be assessed), the Court indeed has powers to conduct its own fact-finding as provided for in Article 38(1)(a) which states: “If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation (…).” The Court itself has highlighted its fact-finding ability proprio motu (para 160), and can do so both at the pre-admissibility stage, as well as the post-admissibility stage. Indeed, Leach argues that in certain situations, this discretionary power undergoes a metamorphosis: “if, in a particular case, there is a clear indication of the need for fact-finding, it is arguable that the Court’s prerogative to initiate fact-finding missions turns into a legal obligation to do so” (pg. 47). In the present case, the Court’s realisation that “it cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other.” (para. 62) could arguably lead it to rely on publicly available sources that were not provided by either party. To some Judges, this approach may occur to fall outside the scope of the fact-finding duties of the Strasbourg Court, whereas others may interpret this as falling within their duty when “assess[ing] the evidence in its entirety” (ibid). The underlying, rather philosophical question to be asked is whether the Court is satisfied with a ‘judicial truth’ that potentially excludes other notions of justice – namely including ex officio other available public sources that may have been excluded by the parties deliberately or unconsciously – in the interest of avoiding judicial overreach.
In the past, contradicting or inconsistent evidence in environmental cases have hindered the Court from carrying out an adequate assessment of the merits of the case. A number of factors come into play, one of them, as summarized by Kanhanga and Voigt, referring to the ” lack [of] scientific expertise among judges, which is sometimes exacerbated by scientific uncertainties.” Whereas the practical obstacle of a lack of scientific expertise amongst judicial members can be helped by the abovementioned critical fact-finding exercise whereby judges draw on science experts to explain complex subjects, contradicting or inconclusive scientific evidence remains a challenging hurdle to overcome. Scientific uncertainties in itself, however, should not lead the Court to dismiss cases too easily. For it to do so would risk creating a route to a juridical ‘no-mans-land’, whereby states would evade further scrutiny purely based on the complexity of the case. [This refers to other contexts as well, see for example Y and others v Bulgaria, where the Court relies on the lack of statistical evidence of a systemic problem with regards to domestic violence – thereby placing an impossible burden of proof on the applicants to provide such evidence, whilst simultaneously potentially incentivising states not to collect such information so as to avoid being called out on any systemic discrimination/domestic violence issues]. In other words, refraining from examining cases further is far from a neutral exercise, as it tips the balance in favor of Respondent Governments and may therefore create an unjust advantage for States who would benefit from submitting inconclusive or contradicting evidence. To tie this into the pursuant discussion of one of the focal points of the concurring opinions – in similar ways, this dilemma as to the scope of including publicly available evidence also pertains to the use of ‘soft law’ or other international legal sources.
Secondly, the Court emphasizes the “evidentiary difficulties usually presented by cases concerning the environment” (para. 62). Regrettably, the Court does not go into further detail about the kinds of evidentiary difficulties it has in mind (other than those mentioned in para 61, see above). One can only assume that it may be referring to the difficulty for the applicant to prove a direct link between a polluting source and future or invisible harms from which they would be suffering, or, indeed, the difficulty for the Court faced with contradicting evidence to determine which evidentiary source seems most reliable (a topic which would deserve a separate blog post.) In any case, in Pavlov, the Court does elaborate on the factors to which it pays due regard when assessing an environmental case, namely: 1) the findings of domestic courts/authorities, 2) the factual circumstances of the case and 3) domestic legal provisions on acceptable pollution levels (para. 62). In addition, the Court considers the “applicant’s personal accounts of events (…), medical certificates, as well as relevant reports, Statements or studies made by private entities” (ibid). This non-exhaustive summary, which points to the Court’s free approach towards evidence, helps to imagine potential routes which litigants could take when submitting evidence to the Court.
My third comment concerns the appended scientific evidence which were provided both by the applicants and the Government. One such appendix showcases levels of concentrations of harmful substances in the atmospheric air in Lipetsk between the years 1998-2008. The substances mentioned range from dust, carbon monoxide, sulphur dioxide, nitrogen dioxide, nitric oxide, hydrogen sulphide, phenol, formaldehyde and sulfites, with highlights added to those numbers that exceed the domestic standards of MPLs. Interestingly, the judgment offers no further explanations as to the range of effects that these substances may have, with some substances, (and their concentrations above the MPL), such as Nitrogen dioxide, arguably much more harmful than other substances. Of course, it is unknown which other explanations were provided to the Court—yet, this case demonstrates the range of challenging scientific questions with which judges have to grapple when dealing with increasingly complex environmental cases. The 9-page long scientific appendices (contrast Cordella with no scientific appendix and Fadeyeva with brief scientific appendix) may also signal the Court’s willingness and indeed confidence that it is ready to take into consideration more complex science.
In light of Russia’s unfortunate exit from the Council of Europe, the implementation of this specific judgment will likely never be carried out. Yet this case is particularly relevant for pending and future climate litigation. By spelling out positive obligations on part of the State to regulate polluting industries, the Court has potentially created an important bridge for similar climate change cases whereby States will be scrutinise based on their regulatory efforts with regards to corporations within their respective jurisdictions. In other words, states can no longer escape responsibility by asserting that private companies may have caused the alleged human rights violation.
In order to find this violation of the Convention, the Court had to consider the totality of evidence before it, and to make use of publicly available sources, which is a welcome step towards an effective use of any information that may help clarify the facts of the case. The importance of fact-finding in environmental cases cannot be overlooked: it forms a vital part of the legal analysis, and may often be decisive in whether a sufficient causal link between the environmental hazard and the alleged human rights violation can be established or not. Judge Lobov’s critique still raises important points: when the Court changes its approach towards environmental issues, it must not leap ahead, which may lead to unintended and undesirable effects of becoming a ‘one-hit wonder’. In previous instances, this led to the case being sidelined and ignored in consequent environmental judgments. It is thus imperative that the Court work in incremental steps, preferably assembling a strong majority behind its decisions, whilst assuring legitimacy by relying on sound scientific evidence. In Pavlov, the majority has done just that: it has worked with ample records of scientific evidence, not gone too far in relying on soft law (although I agree with Judge Krenc that these international documents could have been mentioned at the very least), and produced a judgment that is overwhelmingly supported by the Chamber. This proves a hopeful step for the pending climate cases.
*I would like to warmly thank Prof. Marie-Bénédicte Dembour, Prof. Élisabeth Lambert, former Judge Pinto de Albuquerque and my colleagues Anne-Katrin Speck, Emma Várnagy and Edward Kahutia for their useful feedback, comments and discussions.