FIFTH SECTION
 
 
 
 
 
 
CASE OF JUGHELI AND OTHERS v. GEORGIA
 
(Application no. 38342/05)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
13 July 2017
 
 
FINAL
 
13/10/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jugheli and Others v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Erik Møse,
 Nona Tsotsoria,
 Yonko Grozev,
 Síofra O’Leary,
 Mārtiņš Mits,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 20 June 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38342/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Georgian nationals, Mr Ivane Jugheli (“the first applicant”), Mr Otar Gureshidze (“the second applicant”) and Ms Liana Alavidze (“the third applicant”), on 3 March 2005. 2. The applicants were represented by Ms S. Japaridze of the Georgian Young Lawyers Association (GYLA) and Mr P. Leach of the European Human Rights Advocacy Centre (EHRAC), as well as Ms N. Jomarjidze, Ms T. Abazadze and Ms T. Dekanosidze, lawyers of GYLA and Ms J. Evans, a lawyer of the EHRAC. The Georgian Government (“the Government”) were represented by their successive Agents, most recently Mr B. Dzamashvili of the Ministry of Justice. 3. The applicants alleged that a thermal power plant in close proximity to their homes had endangered their health and well-being. 4. On 12 February 2007 the complaint under Article 8 of the Convention was communicated to the Government. 5. On 29 July 2016, after the parties had filed with the Court all their submissions on the admissibility and merits of the case and the application of Article 41 of the Convention, the applicants’ representative, Ms Japaridze, informed the Court that she could no longer represent her clients on account of her appointment to a position in the Government. 6. On 1 February 2017 the Government informed the Court that the first applicant had died on 12 March 2016 and requested to strike the application out in respect of the latter. On 8 May 2017 the applicants’ representative informed the Court that the first applicant’s heir did not wish to pursue the proceedings before the Court and agreed with the Government’s request. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
7. The applicants, all Georgian nationals, were born in 1946, 1947 and 1957 respectively. At the material time they lived in different flats in a residential block (“the building”) constructed in 1952 and situated at 4 Uznadze Street in Tbilisi. 8. The building is located in the city centre, in close proximity (approximately 4 metres) to the “Tboelectrocentrali” thermal power plant (“the plant”). The plant was constructed in 1911 and reconstructed at a later date. It started operations in 1939. For several decades it burned coal to generate power, before replacing it with natural gas. The plant provided the adjacent residential areas with electricity and heat. 9. Several accidents have been reported throughout the plant’s history. An accident on 10 April 1996 rendered it inoperative for more than thirty days. An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since 1986. 10. On 2 November 1999 Presidential Decree No. 613 was issued, stating that the plant was to be privatised and sold directly to a private company. The privatisation agreement between the Government and the company was concluded on 6 April 2000. 11. On 2 February 2001 the plant partially ceased generating power owing to financial problems. However, it continued to use some of the generators. 12. According to the applicants, while operational the plant’s dangerous activities were not subject to the relevant regulations, as a result of which, in addition to some other alleged nuisances, it emitted various toxic substances into the atmosphere negatively affecting their well-being. B. Domestic proceedings
1. First set of proceedings
(a)  Correspondence with the domestic authorities
13. On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities, alleging that nuisances were emanating from the plant such as air, noise and electromagnetic pollution and water leakage. By official letters dated 22 March 2000, 19 October 2000 and 16 January 2001 the Tbilisi City Hall (“the City Hall”) acknowledged that the residents of the building had been affected by the nuisances they had complained of. It advised the central Government that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation. 14. In the letter dated 22 March 2000 the City Hall asked the plant to implement certain environmental protection measures, including the installation of chimney filters to reduce the air pollution emanating from the plant. The request was left unaddressed. 15. On 1 October 2001, in an official response to a query by the applicants, the City Hall confirmed that the plant’s activities fell within the “first category” within the meaning of the Environmental Permits Act (see paragraphs 43-44 below) and that the Ministry of the Environment and Natural Resources (“the Ministry of the Environment”) was responsible for issuing the relevant permit. (b)  Action for damages and the friendly settlement
16. On an unspecified date in the summer of 2000 the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant. A friendly settlement was reached between the parties on 12 December 2000, according to which the claimants would renounce their claims in exchange for a commitment by the plant’s management to provide them with hot water, electricity and heat free of charge. Owing to technical difficulties and a lack of cooperation between the relevant authorities, the friendly settlement was left unenforced. 2. Second set of proceedings
(a)  In the Tbilisi Regional Court
(i)  The claimants’ submissions
17. On 25 October 2001 the applicants and three other residents of the building (“the claimants”) brought a fresh action against the plant and other respondents including the Tbilisi electricity distribution company, AES TELASI JSC (“AES”), the City Hall and the Ministry of the Environment. They claimed compensation for pecuniary and non-pecuniary damage for the harm caused to their health and well-being by the air, noise and electromagnetic pollution and water leakage emanating from the plant. They relied on privately commissioned independent expert opinions in support of their complaints. (ii)  Expert examinations commissioned by the court
18. On 7 March and 23 September 2002 the Tbilisi Regional Court granted a request by the claimants and ordered the Ministry of Justice, the Ministry of Labour, Health and Social Affairs and the Ministry of the Environment to arrange a number of expert examinations. The latter were intended to measure the environmental pollution caused by the plant, clarify how the associated harmful effects had affected the claimants’ health and might have endangered human life, and identify appropriate remedies. (α)  Air pollution
19. An expert examination dated 28 October 2002 and carried out by the Expertise and Special Research Centre at the Ministry of Justice concluded as follows:
“As the “Tboelectrocentrali” plant does not have a [buffer] zone and is immediately adjacent to a residential building, the plant’s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases.”
20. On 17 January 2003 the Institute of Environmental Protection (“the IEP”) at the Ministry of Environment issued an expert opinion on the air pollution and noise levels in the residential area concerned. It noted that while the plant’s equipment responsible for the emission of toxic substances stood idle, it was impossible to determine the real pollution situation with which the residents had had to cope for years and noted that “the results were considerably minimised compared to the possible real picture.”
21. The expert opinion disclosed that the plant’s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning. That document also incorrectly indicated the height of the chimneys as 30.8 metres instead of the actual 27 metres, which could lead to the pollution data being misleadingly decreased. 22. With regard to the air pollution and the possible impact upon the residents of the building, the expert opinion concluded as follows:
“Considering the fact that the plant does not have a [buffer] zone and is immediately adjacent to a residential building ..., taking into account the direction of the wind, a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area.”
23. The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin, it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits. It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits twenty-four hours a day. The IEP proposed that the competent municipal authorities either ban those industrial activities or ensure the plant’s relocation outside the town, where at least a buffer zone could be established. 24. On 4 March 2003 the Institute of Scientific Research in Health and Hygiene at the Ministry of Labour, Health and Social Affairs responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SO2, CO, NO2, smoke and black dust. These were mucocutaneous disorders, conjunctivitis, bronchitis, bronchopulmonary and other pulmonary diseases, allergies, different types of cardiovascular disease and anoxemia (low oxygen levels in the blood), which could lead to other serious disorders. (β)  Noise levels
25. On 17 January 2003 the IEP issued an expert opinion concerning the noise levels in the building. Without specifying the noise levels in the individual flats of the applicants, the opinion concluded in generic terms that “the residential building ... situated at 4 Uznadze Street [was] affected by noise in excess of the permissible limits.”
26. On 6 February 2004 the IEP expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants. It concluded that the permissible levels of noise were exceeded only with respect to two claimants and not in the applicants’ apartments. (γ)  Electromagnetic pollution
27. An expert opinion issued by the IEP on 7 November 2002 stated that the intensity of the electromagnetic waves did not exceed the permissible levels. 28. The expert opinion produced by the Ministry of Labour, Health and Social Affairs on 17 January 2003 disclosed that, in some instances, the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels. It concluded however that it was impossible to establish the exact source of the electromagnetic pollution. (δ)  The applicants’ health
29. On 13 May 2003 the court ordered the Forensic Medical Examination Centre at the Ministry of Labour, Health and Social Affairs to examine the health of four of the claimants. The third applicant and another claimant were not included, without any reasons being given for their exclusion. Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant. 30. The Forensic Medical Examination Centre carried out the court‑commissioned examination between 7 August and 17 September 2003. A panel of experts concluded that the four claimants “[had] been affected by a combined impact of protracted exposure to harmful factors such as SO2, NO, CO2 as well as black dust, noise and electromagnetic pollution negatively impacting their health.” The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome. The panel considered it “possible that the asthenic syndrome and neurasthenia ... [had been] caused by the prolonged and combined effect of being exposed to harmful factors.” It added that “taking into account the circumstances of the case, the worsening of the health conditions of the persons examined [had not been] excluded.”
(iii)  Regional Court’s findings
31. On 12 March 2004 the Tbilisi Regional Court dismissed the claims of the applicants and another claimant, but partially allowed the claims of two other claimants (“the successful claimants”) with respect to the noise pollution emitted by the plant’s generators. Relying on the expert examination of the IEP concerning the noise levels, the court found that only the two successful claimants’ flats were affected by noise in excess of the permissible limits. It awarded them 5,000 Georgian laris (GEL – equivalent to 1,981 euros (EUR))[1] each, holding the plant, the City Hall, and the Ministry of the Environment jointly liable:
“... Both the City Hall and the Ministry failed to fulfil the obligations imposed on them by law. That is to say, despite the claimants’ numerous requests and complaints, [the authorities concerned] failed to take specific measures to ensure an environment safe enough for the claimants’ health.”
32. Furthermore, acknowledging that the plant was responsible for the infiltration of water into the foundations of the building, the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls. 33. As regards the air pollution complained of, the court found that the material before it did not prove a causal link between the emissions and the claimants’ health problems described in the Forensic Medical Examination Centre’s expert report. It further suggested that the third applicant and another claimant had refused to undergo the medical examination. 34. While the court accepted the experts’ conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances, it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution. (b)  In the Supreme Court
35. On 4 May 2004 the claimants appealed to the Supreme Court. Relying on the Court’s judgment in the case of López Ostra v. Spain (9 December 1994, Series A no. 303‑C) and the findings of the court‑commissioned expert examinations at the domestic level, they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution, the absence of purification equipment over the plant’s chimneys and its impact upon their health and well-being, and the defectiveness of the plant’s technical compliance document. They further disagreed with the lower court’s findings with respect to the alleged noise pollution emanating from the plant. 36. On 21 April 2005 the Supreme Court delivered a final judgment in the case. It upheld the appeals of the two already successful claimants and ordered the plant’s operators, the City Hall and the Ministry of the Environment to pay them, jointly, GEL 7,000 (EUR 2,938)[2] each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant’s activities on 2 February 2001 and affected them individually (see paragraphs 11 and 26 above). In addition, it ordered the plant to pay GEL 50 (EUR 21) monthly to one claimant and GEL 100 (EUR 42) to the other. It further upheld the lower court’s finding concerning the plant’s responsibility for the infiltration of water into the foundations of the building. 37. The Supreme Court rejected the complaint concerning the electromagnetic pollution as unsubstantiated. 38. As regards the submissions concerning the air pollution, the Supreme Court dismissed them as unsubstantiated. It reasoned that the claimants’ reference to violations of environmental standards, regardless of their validity, could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant’s permit be revoked, that filters be installed over the chimneys, that other environmental protection measures be implemented, or that the hazardous activities be banned or relocated. 39. The court further noted that the Court’s findings in the case of López Ostra v. Spain could not serve as grounds for requesting damages. It highlighted the fact that the plant in the instant case had been operational since 1939 while the flats had been built at a later date in 1952. It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by Dangerous Substances Act (see paragraph 47 below). It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise, smells, steam and gases caused by the ordinary industrial activities of the neighbouring plant, whose essential purpose had been to supply the nearby buildings with heating and hot water. The court interpreted the applicants’ unenforced friendly settlement in an earlier set of proceedings (see paragraph 16 above) as their acceptance of the ecological discomfort. 40. The Supreme Court further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air. Consequently, the appellants were no longer being affected by the pollution. Moreover, they had failed, in the court’s opinion, to show what specific pecuniary damage, if any, had been sustained as a result of the air pollution in the previous years. It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems. II. RELEVANT DOMESTIC LAW
A. The 1995 Constitution
41. Article 37 of the Constitution reads as follows:
Article 37
“3. Everyone has a right to live in a healthy environment and to use the natural and cultural environment. Everyone has a duty to protect the natural and cultural environment. 4. Taking into consideration the interests of current and future generations, the State shall guarantee the protection of the environment and the rational use of the natural resources as well as a sustainable development of the country in line with the economic and ecological interests of the society in order to create a safe environment for human health.”
B. Environmental regulations
42. Section 40 of the Environmental Protection Act of 10 December 1996 (“the Environment Act”) required all industrial units commencing operations to be equipped with reliable equipment designed for the processing, purification and environmental control of dangerous waste. 43. Section 4(1) of the Environmental Permits Act of 15 December 1996 (“the Environmental Permits Act”) provided that for the purposes of obtaining environmental permits, industrial activities were divided into four categories based on their scope, importance and the degree of environmental impact. Section 4(2) defined the activities classified as “first category” as:
“Activities that due to their scope, location and substance may cause serious negative and irreversible impact upon the environment, natural resources and human health.”
44. Under section 4(2)(b), energy generating industrial activities, including those of thermal power plants, fell under the “first category” and required an environmental permit to be issued by the Ministry of Environment based on an environmental impact assessment study and an ecological expert report. It further stated that the population should participate in the decision-making process. 45. The Preamble specified that the Environmental Permits Act applied only to industrial activities to be commenced after its entry into force. As concerns companies that had commenced their industrial activities before its enactment, section 15(2) of Government Decree no. 154 of 1 September 2005 set 1 January 2009 as the deadline for submitting environmental impact assessment studies in order to obtain the relevant permits. 46. As regards regulations concerning buffer zones, Article 30 § 3 of the Health Code of 8 May 2003 stipulated that a buffer zone (had to be established in order to avoid air pollution in residential areas as a result of industrial activities. Under section 64(4)(a) and (b) of Order no. 234/n issued by the Ministry of Labour, Health and Social Affairs on 6 October 2003, the minimal size of a buffer zone between an industrial unit and a residential area, in circumstances where the concentration of various hazardous substances did not exceed the acceptable limits, must be at least 50 sq. m. and could be reduced to 25 sq. m. for industrial units using only natural gas for their operations. 47. Under section 6(6) of the Compensation for Damage Inflicted by Dangerous Substances Act of 23 July 1999, responsibility and the obligation to pay compensation for damage caused by dangerous substances to another person or his or her property is excluded if he or she was aware of the risk of pollution and knowingly put himself or herself or the property at risk. THE LAW
I. PRELIMINARY ISSUES
48. The Court notes that the first applicant died in the course of the Convention proceedings, on 12 March 2016. The Government requested the Court to strike the application out in respect of the first applicant. On 8 May 2017 the applicants’ representative informed the Court that the first applicant’s heir did not wish to pursue the proceedings before the Court and agreed with the Government’s request. In the light of the foregoing, the Court concludes that, in so far as the first applicant is concerned, it is no longer justified to continue examination of the application within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of that part of the case. 49. In view of the above, it is appropriate to strike the application out of the list in so far as the first applicant is concerned. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
50. The second and third applicants (“the applicants”) complained that the State had failed to protect them from the air pollution as well as noise and electromagnetic pollution emanating from the thermal power plant located in the immediate vicinity of their homes. This had resulted in a severe disturbance to their environment and a risk to their health in violation of Article 8 of the Convention, which reads as follows:
“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 Government
51. The Government noted that considering the temporal scope of the Convention with respect to Georgia and the suspension date of the thermal power plant’s main activities, the period of the applicants’ situation that the Court was concerned with was from 20 May 1999 to 2 February 2001. According to the Government, the period in consideration was short and there was no evidence that a violation of the applicants’ rights had taken place during this particular time. 52. The Government submitted that no causal link existed between the applicants’ health conditions and the alleged air pollution and that the third applicant had refused to undergo the medical examination commissioned by the domestic court, making it impossible to argue that the plant’s activities had had any direct impact upon her health. 53. The Government further argued that the alleged interference with the applicants’ rights under Article 8 of the Convention had not been a direct interference by the authorities but had emanated from activities of a private company which was solely responsible for the operations of the plant in view of the privatisation agreement of 6 April 2000. 54. The Government further submitted that no element of domestic illegality was involved in the instant case. They referred to the fact that the relevant environmental legislation had been adopted at a later date than the launch of the power plant’s activities in 1939 and that the pertinent regulatory framework, including the obligation to submit an environmental impact assessment study and obtain the relevant environmental permit, had not been applicable to the plant’s activities until 1 January 2009 (see paragraph 45 above). 55. Lastly, referring to the absence of a buffer zone and the possible negative impact of the air pollution upon the residents of the relevant area, the Government noted that the plant in the instant case had been operational since 1939 while the building had been constructed at a later date in 1952. The Government submitted in this connection that, by having chosen to settle in such a building voluntarily, the applicants had assumed any possible risks emanating from the plant in question and were thus barred from claiming a violation of their rights under the Convention. They further argued that the applicants’ earlier unenforced friendly settlement to accept the supply of hot water, electricity and heat free of charge for the alleged environmental discomfort (see paragraph 16 above) could mean that the nuisance complained of had not been of a sufficiently serious nature. 2. The applicants
56. The applicants submitted that they had suffered a serious interference with their rights under Article 8 of the Convention on account of the severe environmental pollution emanating from the thermal power plant in close proximity to their homes and the State’s failure to regulate the hazardous industrial activity. They relied on the expert reports commissioned by the domestic courts in support of their claims (see paragraphs 18-24 and 29-30 above). They further argued that the third applicant had not refused to undergo the medical examination commissioned by the first-instance court, as it had selected the claimants at random. 57. The applicants maintained that the absence of a buffer zone between their building in the city centre, the dangerous industrial activities carried out at the plant and the absence of appropriate purification equipment to minimise the impact of hazardous emissions had seriously interfered with their health and well-being protected under the Convention. 58. Furthermore, according to the applicants, the lower court had inaccurately concentrated on the impact of the air pollution in conditions where the plant had ceased most of its activities despite the core of the claimants’ submissions referring to the period of the plant’s active operations until 2 February 2001. 59. The applicants further submitted that the Supreme Court had been unfair in finding that they had accepted the interference with their rights by having chosen to settle in the building that had been built in 1952, after the launch of the plant’s industrial activities in 1939. They argued that the building had been constructed during Soviet times when any construction of that type fell within the exclusive competence of the State and, in any event, they had only learnt about the danger emanating from the plant after they had moved into the building. B. Admissibility
60.

Outcome for Article 8: violation