By: Jozef Seghers*
Ilva Taranto is Europe’s largest steel plant, and its travails have given rise to commensurate amounts of legislation and court cases. In the past few weeks, the plant has been in the news in Italy once more, as the government wrangled with the private shareholders over yet another investment plan, which is supposed to turn the plant into Europe’s largest ‘green’ steelworks. This is just the latest episode in a story that has been running for decades. This blog is about the European Court for Human Rights’ (ECtHR, the Court) 2019 judgement in Cordella and Others v Italy, one of several related to Ilva Taranto.
The case is especially salient in the light of the climate cases pending before the Court. In those cases, as in this one, the issue of evidence is critical. In scientifically complex cases especially, it is not because something is known to be true in fact, that it can be found proven in a court of law. The way in which scientific evidence supported the Court’s finding of a violation in the case of Cordella and others, may have opened a door through which the Grand Chamber could take further steps in the climate cases currently dealing with.
In the Cordella case, a group of citizens alleged a breach of Articles 2 and 8 of the European Convention of Human Rights (ECHR, the Convention) due to the ongoing pollution of their environment caused by the Ilva Taranto steelworks. Focussing on the evidentiary aspects of this case and linking them to the Court’s broader practice in environmental cases, I find that an acceptance of a risk-based approach to evidence in environmental matters, based on the precautionary principle, may be budding at the Court. Nevertheless, important hurdles remain for plaintiffs, and clarity and consistency regarding the burden of proof applied by the Court are still lacking, even though this is a legitimate expectation for plaintiffs and for the general public.
Operations at the steelworks in Taranto (Apulia, Italy) were started in 1965 by the state-owned steel company Ilva. In 2002, Ilva was forced to close the hot zone of its Cornigliano plant in Genoa (Liguria, Italy) following a national court order citing above-average mortality in the surrounding area caused by its emissions. Production was then transferred to Taranto. The steelworks there are now Europe’s largest, covering 15 square kilometres. Together with its suppliers, it employs 12.000 people in a region where one in six is jobless. The factory is currently co-owned by ArcelorMittal and an Italian state investment company.
The case was raised by two applications, which the Court joined, of two groups of 52 and 128 (current or former) residents of Taranto, a city of 200.000. The environmental and health impacts of the plant’s emissions have been the subject of extensive scientific studies, which found, among other facts, high concentrations of pollutants with established adverse health effects around the plant, including significantly elevated mortality and long-term increases in the incidence of tumours and cardiovascular disease.
The Court cites nine out of those reports in its judgment. A third-party intervention (TPI) by ISDE Italia – Medici per l’ambiente added additional evidence, which shows an increased incidence of autism, miscarriages and birth defects in the area around the steel plant. Crucially, as we will see below, several reports established a causal link between the health effects at population level and the pollution caused by the plant.
Government policy and (in)action: waiting for Godot
Starting in 1990, the Italian authorities adopted several environmental measures aiming to reduce emissions and to clean up pollution at Ilva Taranto. These were not immediately implemented. Moreover, from 2012, as the plant ran into financial troubles, the government allowed delays, exemptions or immunities related to the implementation of these environmental measures through the decreti salva-Ilva or‘save-Ilva decrees’, a series of legislative decrees regarding the economic viability and activities of the plant.
Several national criminal procedures regarding the steelworks had been concluded or were pending at the time of the ECtHR judgment. Italy’s implementation of the Integrated Pollution prevention and Control Directive was found lacking by the Court of Justice of the European Union, and the European Commission found the Taranto steelworks in breach of the Industrial Emissions Directive, noting continuing high emissions, with grave consequences for the environment and the health of the local population.
I will now describe the Court’s reasoning and findings, focussing on the parts relevant to what follows in section 4.
The alleged violations: iura novit curia
The applicants firstly alleged a violation of Articles 2 and 8 (right to life and right to respect for private and family life, respectively) of the Convention, accusing the Italian state of not having adopted the required legal and regulatory measures to protect their health and the environment, and of having failed to provide information on the pollution and related health risks. Applying the principle of “iura novit curia” or “the court knows the law,” a maxim which means that it is for judges to decide which law applies to a case, the Court decided to ignore the possible violation of Article 2 and treated the case only as a potential Article 8 violation, without giving any arguments (this issue also plays in the climate cases pending before the court, as is thoroughly discussed by Keller and Heri).
Secondly, the applicants alleged a violation of Article 13 of the Convention (right to an effective remedy), of which the court found a violation. Further discussion of this violation falls outside of the scope of this blog post.
Questions of admissibility: actio popularis or not?
The Italian government claimed that the applicants were bringing an inadmissible actio popularis, an application lodged in the interest of the public as a whole. To support this, the government referred to the general nature of the applicants’ claims and disputed that they showed any concrete, personal damage. The court took the opposite view, referring to Italian official documents which delineate the zone affected by the pollution, in which nearly all of the applicants live or have lived. Based on the reports included in the evidence, it was clear to the Court that they ran a substantially elevated risk of a number of illnesses, thus fulfilling the victim-status requirement. The Court further found the alleged harm to be sufficiently serious to fulfil the condition set by Article 35 §3 of the Convention.
The merits: unjustifiable harm to the environmental and the applicants’ health
One of the first points the Court discussed is the way in which the current case differs from an earlier application related to pollution from the Taranto steelworks, the Smaltini case. The differences between the cases are interesting and will be discussed in more detail in my analysis further in this blog post. For now, it suffices to clarify that in the Smaltini case, a single applicant alleged a violation of Article 2 of the Convention on the basis that the Italian courts didn’t recognise the causal link between her cancer and the emissions of the Taranto plant. The case was declared inadmissible, since the Court found the absence of a proven, individual causal link to have been duly motivated in the prior national judgments.
The Court pointed out that the Cordella case doesn’t involve individual causality, but the question of how the government’s lack of environmental and health protection measures affects the applicants. It went on to state that, on the basis of the scientific evidence, a causal link has been proven between exposure to the pollutants emitted by Ilva, and cancer and cardiovascular, respiratory, renal and digestive disease for persons living in the areas surrounding the plant.
It further noted the continuing delays in the implementation of pollution reduction plans, the immunity for environmental infringements that was granted to executives and owners of the plant in the frame of the ‘salva Ilva’-decrees, and the fact that no improvement in this situation was reasonably foreseeable, given the financial difficulties of the plant.
The Court concludes that the Italian government didn’t respect the required fair balance between the serious environmental harm affecting well-being and private life of the applicants on the one hand, and society in general, on the other. Thus, it finds a violation of Article 8 of the Convention.
The remainder of the judgment, on Articles 13 and 46 and the damages, is outside the scope of this blog. The very limited damages awarded and the Court’s refusal to apply Article 46 do, however, raise questions regarding the effective execution of ECtHR judgments and whether a judgment such as this one constitutes sufficient redress for applicants. While this question is out of the scope of this blog post, interesting contributions have been made by Greco and Ovey.
I will focus my analysis on the evidentiary questions raised by environmental cases, which bring the Court’s evidentiary practice into focus, and present specific challenges. A brief overview of the Court’s environmental jurisprudence and how it relates to the prevention of future harms will set the scene for the evidentiary analysis.
Whose right to a healthy environment?
The Cordella-case is part of an evolving environmental jurisprudence by the Court. Even though there are no outright environmental rights in the ECHR, there is an extensive body of environmental jurisprudence by the Court. It has applied its ‘living instrument’-doctrine to assess the impact environmental risks have on the rights it is mandated to protect. Through this doctrine, the Court aims to ensure that Convention rights “do not remain theoretical and illusory, but rather come in a practical and effective focus” (Braig, Kutepoiva and Vouleli).
Apart from a number of procedural rights, it can be argued that the Court recognises a substantial right to a clean environment, which it derives from, among others, Article 8 of the Convention. This is coupled, however, to a strict ‘victim-status’ requirement, which calls for a direct, harmful effect on a person’s private or family life, not just a general environmental degradation. This is an anthropocentric approach, requiring that any harm is directly related to a human victim—understandably, perhaps, since the ECHR is a human rights convention. NGOs can, as happened in the Cordella case, introduce TPIs, but the Court’s practice doesn’t allow applications by environmental associations (for a more extensive discussion of this, see Kobylarz.
The Cordella judgment nevertheless granted the claim of a large number of applicants at once. The larger the group of victims becomes, the more difficult it becomes to disentangle the victim from the community and the environment she lives in. This dovetails with the concept of ‘risk communities’ as proposed by Ambrus. It may represent a first step towards a more community-oriented approach, in which individual interests combine into the public interest, or even towards an eco-centric turn. This will hopefully be followed through in the pending climate cases before the Court. Those, given the incomparable geographic and temporal scope of anthropogenic climate change and its impact, present new challenges aplenty, pertaining among other things to (extra-)territorial jurisdiction.
The precautionary principle: locking the barn door before the horse escapes?
Contrasting Smaltini and Cordella helps shed light on how the Court grapples with the question of future harm. In the first case, it didn’t accept the existence of a causal link between pollution and an individual case of cancer, on the basis that even though the health risks posed by the plant were clear, no evidence was presented linking the specific type of cancer the plaintiff Smaltini suffered from to the plant’s emissions. In the second (in which, admittedly, the applicants and TPI supplied rather better evidence), it does accept that a potential adverse effect caused by a lack of state action can constitute a violation of Convention rights. Albeit, in this case, only of Article 8, since the Court refused to judge on Article 2.
One can wonder why a link between pollution and future harm was regarded as proven, whereas that between an existing illness and the same pollution wasn’t. One possibility I’d suggest is that proving causality in an individual case is a lot more difficult than it is in larger groups. The scientific evidence in the Smaltini case wasn’t judged to be strong enough, whereas the many scientific, epidemiological studies led the Court to find a causal link between pollution and potential harm in Cordella. This allowed it to apply the precautionary principle of environmental law, taking a more risk-based approach which has the potential to avoid the realisation of future harms, thus locking the proverbial barn door before the horse escapes.
It has by now become clear that environmental cases in general, and pollution cases in particular, raise a number of specific evidentiary challenges.
Firstly, given the complex interlinkages between pollution, environmental harm, and the health risks or effects that are a prerequisite for admissibility, the Court inevitably has to rely on scientific expert evidence when dealing with such cases. Combined with its deference to national court systems’ factual findings and its reluctance to do its own fact-finding, this places a heavy burden on applicants. This is a hurdle that applicant Smaltini failed to take. The applicants in the Cordella case did succeed in bringing enough scientific evidence to convince the Court. The TPI was also quoted by the Court, highlighting the role such interventions can play in helping applicants and the Court grapple with scientific complexity.
Secondly, the Court usually applies the—high—standard of ‘beyond a reasonable doubt’. Even though it is known to take evidentiary difficulties into account, allowing a certain degree of flexibility, it is usually loth to allow probabilistic evidence (as extensively analysed by Sulyok). As in the Smaltini case, and even allowing for the patchy way in which the applicant submitted evidence, proving full causality against a background of scientific uncertainty can be considered tantamount to probatio diabolica, or the legal requirement to achieve an impossible proof. The Court did leave the door open, however, to evolving science. The question remains if the acceptance of a causal link at a group level, through epidemiological evidence, represents a step through this door. As I stated earlier, proving statistically significant links between pollution and health risks at group level is quite different from proving individual causality.
This brings me to a third and final observation: the Cordella case, by itself and in comparison to Smaltini, vividly illustrates that the standard of proof, and if and how it can be met, depends on the principles applied. On the one hand, when, as in the Smaltini case, strict causality is required, meeting the ‘beyond a reasonable doubt’-standard before a Court disinclined to allow probabilistic evidence, is exceedingly hard, even for a well-advised applicant. On the other hand, when a precautionary, and thus risk-based, approach is taken, it becomes possible to prove that pollution is causally linked to environmental and health risks to an extent that allows to find a breach of a state’s positive obligations under Article 8.
In this blog, I have discussed the ECtHR’s judgment in the case of 180 applicants living in the vicinity of Ilva, a very large and very polluting steelworks in Taranto. As I set out in part 2 of this post, the importance of the plant as an employer seems to have carried such weight for the Italian authorities that they allowed the pollution it generates to jeopardise the health of local citizens. As discussed in part 3, the Court found the imbalance to have been such that it constitutes a violation of Article 8 of the Convention.
I analysed the judgment and compared it to the Smaltini case, an earlier decision related to the Taranto steelworks. Both cases were then linked to the broader evidentiary questions raised by pollution and environmental cases. I first discussed the Court’s victim-status requirement, and how the Cordella case eases proving this by allowing a group application. Subsequently, I described the way in which this case illustrates the Court’s budding acceptance of a risk-based, precautionary approach in environmental matters, which favours group applications. Finally, I discussed scientific complexity and the Court’s beyond a-reasonable-doubt standard as major hurdles for applicants in environmental cases. I then argued that a risk-based approach can help overcome these burdens, especially for larger groups of applicants. This offers hope for the pending climate cases before the Court.
To conclude, I would like to link the above to the broader question of the Court’s legitimacy. Even when taking into account the Court’s subsidiary role, and thus the requirement to adapt the intensity of its review in function of states’ margin of appreciation, I think it is reasonable to expect clarity and consistency as regards the burden of proof. An analysis from 2014 concludes that, even taking into account varying review intensity, this is lacking. Legitimacy vis-à-vis states, however, needs to be balanced with regard to applicants and the general public, for whom a coherent and well-argued approach to evidence and the standard of proof, allowing a fair chance for a successful application, is an equally legitimate expectation.
*Jozef Seghers is a Master in Laws student at the University of Ghent