Ministers’ Deputies
Information documents

CM/Inf/DH(2007)7 13 February 20071
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Industrial pollution in breach of the European Convention: Measures required by a European Court judgment

Application of Article 46 of the European Convention on Human Rights

Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights

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EXECUTIVE SUMMARY

This memorandum has been prepared to assist the Committee of Ministers in its supervision of the execution of the European Court’s judgment in the case of Fadeyeva against the Russian Federation, which concerns a violation of the applicant’s right to her private life and home by industrial pollution.

According to the European Court, the questions of erasing the effects of the violation for the applicant and preventing new violations are closely connected.

The memorandum sums up the information provided by the Russian authorities to the Committee of Ministers and notes the positive environmental dynamic around Severstal plant since the facts at issue in the judgment. It further points out a number of outstanding issues arising in the light of the Court’s findings. These issues concern in particular:

    - the general legislative and regulatory framework governing the decision-making process leading to the setting up of sanitary zones around polluting enterprises;
    - the public scrutiny of this decision-making process and domestic remedies available to the population;
    - close supervision of polluting enterprises’ compliance with the domestic environmental rules and the action to be taken to ensure compliance.

The information requested from the authorities should allow the Committee of Ministers to assess the appropriateness of further measures that might be needed to ensure the Russian Federation’s full compliance with the Convention’s requirements in this area.

INTRODUCTION

1. This memorandum has been prepared to assist the Committee of Ministers in its supervision of the execution by the Russian Federation of the judgment delivered by the European Court of Human Rights (“the Court”) on 9/06/2005 in the Fadeyeva case. The Court found a violation of Article 8 of the European Convention of Human Rights (“the Convention”) on account of the authorities’ failure to protect the applicant’s private and home life against environmental hazards arising from a steelworks.

2. The violation was due to the authorities’ failure to offer the applicant any effective solution in order to move her into a safer environment or to take effective measures to reduce the industrial pollution to an acceptable level and ensure the compliance of the steel plant with domestic environmental standards.

3. Under Article 46 of the Convention, the execution of the judgment requires in particular the adoption of individual measures to end the violation in respect of the applicant and general measures to prevent similar violations.

4. In response to the questions raised within the Committee of Ministers during the first examination of this case at the 955th meeting (February 2006) (see CM/Del/OJ/DH(2006)955Public), the Russian authorities provided information about measures taken and/or envisaged to comply with the judgment. This information concerns the general framework of protection from industrial pollution in Russia and the change of the situation around the Severstal plant.

5. The Secretariat has therefore prepared this memorandum with a summary of information provided, its preliminary analysis and identification of outstanding issues as to the questions raised by the judgment.

I. General framework of protection from industrial pollution

A. Information submitted by the authorities

      1. General legal and regulatory framework for the establishment of sanitary zones

6. According to Russian law2, air pollution by any enterprise must not exceed maximum permissible limits (MPLs), i.e. a unit which defines the concentration of various toxic substances in the air, set out by law. If an enterprise does not comply with this rule it must set up a sanitary zone around its premises in order to protect the population from dangerous emissions it may generate.

7. The size of these zones is determined depending on dispersion of the emissions in the air (Article 16§3 of the Atmospheric Protection Act) and in accordance with the sanitary classification of polluting enterprises set by the Sanitary Rules of 30/03/20033. In any event, a sanitary zone must be established in such a way that air pollution on its border does not exceed the MPLs.

8. Any dwelling within this zone is consequently forbidden and the persons who already live within the zone must be resettled.

9. According to the authorities, in 2004 the number of enterprises with a sanitary zone was 72,786. The number of persons resettled from the sanitary zones was 144,524.

10. A plan to set up a sanitary zone is prepared by the enterprise itself and the responsibility for the elaboration of the project and its subsequent implementation falls to the director of the enterprise concerned.

11. After the verification by the competent state authorities of the plan’s compatibility with the Sanitary Rules, the establishment of a sanitary zone shall be approved according to the procedure provided for by the Russian legislation (point 2.6 of the Sanitary Rules).

12. Accordingly, a sanitary zone with a radius of 1000 metres was established around the following enterprises and the resettlement of the population from the sanitary zones was organised:

    - OAO Western Siberian metallurgical works in Novokuznetsk;
    - OAO Electrometallurgical industrial complex of Oskolsk in Region of Belgorod;
    - OAO Pellet of Karelia in Karelian Republic;
    - OAO Mikhaylovskiy GOK in Region of Kursk;
    - OAO aluminium plant in Krasnoyarsk.

      2. Authorities’ supervision of polluting enterprises’ compliance with the domestic rules and remedies available to the population

        · supervision by the authorities of polluting enterprises

13. State supervision of the organisation and accomplishment of sanitary zones is ensured by the Federal Agency for supervision of consumers’ rights and well-being (“Agency”) to which the relevant functions of the Ministry of Health were transferred.

14. For example, in 2005 this Agency initiated 21 sets of proceedings before courts regarding the resettlement of persons living within sanitary zones, in 12 of which final judicial decisions have already been delivered.

        · remedies available to the population

15. The Russian authorities also indicated that 119 individual applications related to different issues concerning the implementation of sanitary zones were brought before the courts.

Region

Defendant

Number of applications lodged

Outcome

Kemerovo

Transalservis

 

All granted

Mine Zen

 

Edelvais

 

Kuzbassenergo

5

No information

Kaliningrad

Russian railway

160

pending

Belgorod

Stoylenskiy GOK

11

2 granted

Perm

Motovilikhinskie plants

37

All granted

Kamtex-Khimprom

4

Perm karton

3

Gospassagirelectrotrans

1

16. In the Vologda region, where the Severstal plant is located, the issue of unsatisfactory compliance by the pulp and paper mill Sokolskiy with the injunctions of the territorial organ of the Agency concerning the resettlement of the population from the sanitary zone was submitted to the courts. In these proceedings, the parties reached a settlement agreement and agreed upon a set of measures aiming at the organisation of a sanitary zone.

      3. Draft Environmental Code

17. The Russian authorities also indicated that the Ministry of Natural Resources of the Russian Federation had prepared a draft Environmental Code. The draft has already been considered and approved by the Environmental Committee of the State Duma.

18. The main purposes of the draft are to ensure the constitutional rights of citizens to a friendly environment and to establish favourable conditions for the creation of an environment-friendly economy. The draft provides inter alia compensation for damage to the environment and determines permissible impact on the environment at the level of the best available technology.

B. Secretariat’s assessment

19. The European Court has already stressed in cases of this kind the particular importance of the decision-making process to ensure that due weight is accorded to the interest of the individual. This implies an examination of all procedural aspects of the process leading to the decision in question, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making procedure and the procedural safeguards available, i.e. whether the individuals concerned may challenge decisions before the courts or other independent bodies if they believe that their interests and representations have not been properly taken into account (Hatton and Others against the United Kingdom, judgment of 8/07/2003).

1. As regards the establishment of sanitary zones

20. The general principles governing the setting up of sanitary zones appear to be in compliance with the Convention as interpreted by the above case-law. Indeed, Russian law (in particular the aforementioned Sanitary Rules) requires that the decision-making process in this respect involves appropriate investigations and studies to predict and evaluate in advance the effects on the environment. According to the Court, this requirement is important in order to enable the authorities to strike a fair balance between various conflicting interests at stake (Hatton and Others against the United Kingdom, §128; Taşkın and Others against Turkey, judgment of 4/12/2003, §199).

21. However, it remains unclear how this decision-making process is organised. Point 2.6 of the Sanitary Rules specifies that the size and the boundaries of the zone are approved following a procedure established by Russian legislation.

22. Yet no particular regulations in this respect appear either at the federal or at the regional level, except in the Moscow and Perm regions.

23. In these two regions, the procedure for verification and approval of sanitary zones was established by acts of the local executive body (e.g. the Order of Governor of the Perm Region of 02/03/2004 or Decree of the Government of Moscow of 16/10/2001). These acts provide that the draft of the zone prepared by the enterprise concerned is approved by the local municipal authorities. Approval is given on the basis of an expert opinion as regards the compliance of the draft with the relevant rules and standards. The authorities responsible for verification of the accuracy of the size of the zones proposed by an enterprise are also designated in these acts.

24. In view of this lacuna in Russian law, the authorities may wish to inform the Committee how state supervision of proposals of polluting enterprises to establish a sanitary zone is organised in the Russian Federation. The information with regard to Vologda region would be particularly helpful. The appropriateness of special legislation either at the Federal or local level, providing specific, detailed procedures for setting up of sanitary zones may have to be considered.

      2. Authorities’ supervision of polluting enterprises and procedural safeguards available to the population

        · measures to ensure the compliance by polluting enterprises with domestic environmental standards

25. While the Agency is responsible for supervising the setting up of sanitary zones by polluting enterprises, it remains unclear whether it continuously monitors the situation after the establishment of a sanitary zone, i.e. whether the levels of pollution are below the MPLs outside sanitary zones or on their border.

26. Clarifications are therefore needed as to

    · what action may be taken if the polluting level outside sanitary zone is exceeded (e.g. withdrawal of the operating permit, administrative and criminal sanctions, etc);
    · which authorities are responsible for taking such actions;
    · in what circumstances may the size of a sanitary zone be reviewed;
    · what role might be played by other authorities, such as prosecutors and territorial departments of the Ministry of Natural Resources, in this area.

        · remedies available to private persons

27. It would appear that the only remedy available to individuals living within a sanitary zone is the right to lodge an application before a court to make their right to be resettled enforceable. It remains unclear what are their rights at an earlier stage when an establishment of a zone is decided and whether they have a right to challenge the decision establishing a zone.

28. In this respect, it has to be noted that the Court has already stressed the importance of public access to the conclusions of such studies and to information which would enable individuals to assess the danger to which they are exposed (Taşkın and Others against Turkey, §119).

29. In the case of Hatton and others against the United Kingdom, the Court did not find a violation because the applicants had access to relevant documentation and it would have been open to them to make representations. The Court also noted that if their representations had not been taken into account, it would have been possible for them to challenge subsequent decisions or the scheme itself in court.

30. Therefore information will be helpful on the following issues:

    · how public scrutiny of the establishment of a sanitary zone is ensured;
    · what are judicial or administrative remedies available to individuals in relation to the establishment of sanitary zones?

      3. Draft Environmental Code

31. The intention to adopt the new Environmental Code is welcomed. The authorities may wish to provide the Committee of Ministers with the text of this draft so that it may assess the extent to which it will contribute to preventing new, similar violations. In any event, more details on the progress of the draft of the draft would be useful.

II. Change of the situation around the Severstal steel plant

A. Information submitted by the authorities

1. Change of the sanitary zone

32. The previous sanitary zone of 1000 metres radius from the industrial site of the Severstal plant was established by Municipal Decree No. 30 of 18/11/1992. At that time, the applicant was living within the sanitary zone as her house is located 450 metres from the fence of the plant.

33. In 2002, Decree No. 30 was declared invalid by a domestic court on the ground that it was ultra vires. Consequently, when the European Court delivered its judgment the size of the sanitary zone around Severstal was thus unclear.

34. By letter of 11/10/2006, the Russian authorities indicated that a new sanitary zone was established around the plant in June 2004. The border of this zone new zone was set at a distance of 1000 metres from the main sources of pollution located on the plant’s site, in accordance with the domestic legislation and the environmental studies carried out to this effect by the plant.

35. The draft zone’s compliance with the sanitary standards has been confirmed by an expert opinion delivered on 14/04/2004 by the Sysin Research Institute for Human Ecology and Environmental Hygiene.

36. On 7/06/2004 the current size of the sanitary zone, i.e. 1000 metres from the sources of pollution, was approved by the highest sanitary authority of the Russian Federation, i.e. the Chief Sanitary Doctor of the Russian Federation, Mr. Onishenko. On 8/06/2004 the Regional Centre of the State Sanitary Service of Vologda issued positive sanitary conclusions in respect of the draft.

        · individual situation of the applicant

37. Therefore the applicant no longer lives within the zone since her house is more than 1000 metres away from the main sources of emission of the plant (see the map provided by the authorities and representing the applicant’s house in relation to the main sources of emission of the plant in Appendix 1).

38. The authorities therefore consider that no individual measure is any longer required.

        · situation of other persons living in the vicinity of the plant

39. No information has been provided by the authorities as regards the situation of other persons living in the vicinity to the Severstal plant. No complaints and/or applications to courts have been reported.

2. Current levels of air pollution

40. In letter of 11/10/2006 the Russian authorities indicated that the Severstal plant was now operating in compliance with domestic environmental standards.

        · statistics provided by the authorities

41. They relied on the results registered by the automatic monitoring system of air pollution operating in Cherepovets. According to these results, the number of cases in which MPLs were exceeded has significantly decreased. Notably, the concentration of formaldehyde and of carbon disulphide have respectively become 3 and 5 times less than in 2005. Also, the annual average concentrations of sulphur dioxide dust, of nitrogen dioxide, carbon dioxide, phenols, ammonia and carbon disulphide do not exceed the MPLs provided by Russian legislation.

42. In 2005 the enterprises in Cherepovets spent 2,3 billion roubles (€ 65 million) on measures aimed at further improvement of the air, out of which 2,2 billion roubles (€ 62 million) was spent by the Severstal plant. 2,07 billion roubles (€ 59 million) were spent in the framework of a programme carried out by the Environmental Department of Severstal.

        · measures taken or being taking to ensure the plant’s compliance with the domestic environmental standards

43. In addition, the Cherepovets local authorities are implementing the Programme “Decreasing the impact of environmental factors on the health of population living in the zone of influence of industrial plants for 2004-2015”. This programme includes a number of medical and ecological measures aiming at rehabilitation of the population.

44. Finally, in order to ensure continuous compliance with the regime of the sanitary zone, the Federal Service for ecological, technological and nuclear supervision requested the Department of technological and ecological supervision of Rostechnadzor in the Region of Vologda to reinforce the supervision of Severstal’s compliance with the environmental legislation and to impose sanctions, if necessary.

B. Secretariat’s assessment

        1. General background

45. To allow the Committee of Ministers to assess compliance of the new situation with the judgment, further clarifications appear necessary over and above those requested above (see §24).

46. It appears at the outset that that the Regional Centre of the State Sanitary Service carried out an analysis as to whether the calculations of the project correspond to the annual observations of the plant’s pollution pursuant to the Rule 2.16 of the Sanitary Rules. Clarifications and the indication of detailed conclusions in this respect would be useful.

47. According to Rule 2.17 of these Sanitary Rules, a 1000-metre zone around steel plants is a minimum one. Information would therefore be useful on the criteria used to determine that a 1000-metre zone is sufficient for Severstal.

48. Further, according to Rule 2.31 of the Sanitary Rules, the starting point of a sanitary zone might be sources of emission if there are only high sources of heated emissions. Otherwise a sanitary zone must be established from the boundaries of the industrial site. Therefore clarifications would be helpful about the number and type of the stationary sources of pollution of Severstal.

        2. Situation of the applicant

49. The applicant’s personal situation has considerably changed with the modification of the sanitary zone since the new zone no longer includes the applicant’s place of residence, thus depriving her of the right to be resettled according to domestic legislation.

50. It has already been noted that the mere fact of redrawing the zone cannot be regarded as sufficient to conclude that the applicant no longer suffers from the consequences of the violation found. Indeed, the applicant’s right to a friendly environment will only be secured if the levels of air pollution at her place of residence are in accordance with the MPLs. Information on this particular point is of primer importance for assessment of the issue of individual measures to be taken following the Court’s judgment.

51. It is noted that one of the stationary monitoring posts of the State Agency for Hydrometeorology is located on the applicant’s street and records the emissions of the Severstal plant. The table comparing the annual average pollution at this place in 1999-2003 with the MPLs was submitted to the Court and presented in the judgment (see Appendix 2).

52. The authorities are invited to provide the Committee of Ministers with a similar table showing that recent air pollution at the applicant’s residence (preferably registered on monthly basis) is below the MPLs provided by law.

        3. Situation of other persons in the applicant’s position

53. The statistics provided by the Russian authorities are encouraging as they show a positive general dynamic as regards the decrease of the level of air pollution in the region. However, it remains to be demonstrated whether the level of air pollution all along the new border of the sanitary zone is below the MPLs provided by Russian legislation.

54. The authorities may wish to provide a similar map (see Appendix I) showing the whole sanitary zone around the Severstal plant and indicating the location of all residential buildings in the vicinity. The authorities are also invited to indicate whether there are other complaints or pending proceedings before domestic courts on this issue.

        4. Long-term programmes to improve the situation

55. The authorities indicated in the framework of the proceedings before the European Court that the new deadline for bringing the plant’s emissions below the dangerous level is now 2015 (§ 42 and § 126 of the judgment). The Court considered that the overall improvement of the environmental situation would appear to be very slow (§ 127 of the judgment) and that the authorities failed to show clearly what their policy was in order to accelerate the compliance of the plant with the standards (§ 131).

56. The authorities have mentioned in their action plan certain environmental programmes under way without however specifying what kind of measures have been taken by the local authorities or by the plant itself, e.g. whether any gas-cleaning or dust-collecting devices have already been set up. More details about these programmes would be useful.

Appendix 1

Appendix 2

Extracts from the Government's report on the environmental situation in Cherepovets4

    A.  Dynamics of air pollution in 1999-2003 (compared to MPLs)

Toxic Element

Average daily MPL, mg/m³

1999

2000

2001

2002

2003

Nitrogen dioxide

0.04

0.027

0.022

0.018

0.016

0.025

Nitric oxide

0.06

0.021

0.015

0.011

0.01

0.024

Ammonia

0.04

0.0125

0.011

0.011

0.005

0.016

Manganese

0.001

0.0006

0.002

0.0007

0.0004

0.0008

Carbonic oxide

3.0

1.884

1.3

1.5

1.28

1.76

Dust

0.15

0.264

0.25

0.24

0.2

0.17

Hydrogen sulphide

0.008

0.0002

0.0007

0.0004

0.0006

0.0006

Carbon disulphide

0.005

0.0187

0.015

0.011

0.004

0.0056

Phenols

0.003

0.002

0.0014

0.0012

0.0009

0.0014

Formaldehyde

0.003

0.0136

0.02

0.013

0.0099

0.019

Sulphur dioxide

0.05

0.0049

0.0056

0.0021

0.0024

0.0037

    B.  Average and maximal concentrations of toxic elements over the past 20-30 years

Substance monitored

1974

1983

1989

1996

2003

Aver.

Max.

Aver.

Max.

Aver.

Max.

Aver.

Max.

Aver.

Max.

Dust

-

-

0.3

4.0

0.3

2.1

0.1

1.2

0.2

0.8

Sulphurous anhydride

0.08

0.86

0.04

0.79

0.03

1.170

0.004

0.160

0.004

0.114

Carbon oxide

7

20

1

7

1

16

1

7

1

18

Nitrogen dioxide

0.07

0.65

0.04

0.31

0.04

0.23

0.02

0.16

0.03

0.45

Nitrogen oxide

-

-

0.07

0.058

0.05

0.43

0.02

0.30

0.03

1.02

Hydrogen sulphide

-

-

0.006

0.058

0.002

0.029

0.002

0.023

0.001

0.013

Carbon disulphide

-

-

-

-

-

-

0.011

0.076

0.006

0.046

Phenol

-

-

-

-

0.003

0.018

0.003

0.04

0.001

0.021

Ammonia

-

-

0.27

5.82

0.08

1.37

0.02

0.23

0.02

0.21

Formaldehyde

-

-

-

-

-

-

0.014

0,129

0.019

0.073

1 This document has been classified restricted at the date of issue. It was declassified at the 997th (DH) meeting of the Ministers’ Deputies (05-06 June 2007).

2 The obligation for a polluting enterprise to create a sanitary zone around its territory is provided by a number of federal legislative acts, i.e. the Federal Law On sanitary well-being of the population of 30/03/1999 (Articles 12 and 20), the Environmental Protection Act of 10/01/2002 (Article 44), the Atmospheric Protection Act of 4/05/1999 (Article 16), the Technological Regulation Act of 27/12/2002, the Russian Land Code of 25/10/2001 (Article 88) and the Russian Town-planning Code.

3 СанПиН 2.2.1/2.1.1.1200-03 «Санитарно-защитные зоны и санитарная классификация предприятий, сооружений и иных объектов» утвержденные Главным государственным санитарным врачом РФ

4 .  The data provided above reflects only the results received from stationary monitoring post no. 1 of the State Agency on Hydrometeorology, the nearest to the applicant’s house.



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