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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
12853/03
by Ivan Atanasov ATANASOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 10 November 2009 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 20 March 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the facts that Zdravka Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 of the Rules of Court), and that the Bulgarian Government accordingly appointed Mirjana Lazarova Trajkovska, the judge elected in respect of the former Yugoslav Republic of Macedonia, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court),
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ivan Atanasov Atanasov, is a Bulgarian national born in 1959 and living in Elshitsa. He is represented before the Court by Ms A. Gavrilova Ancheva, a lawyer practising in Sofia. The respondent Government are represented by Ms S. Atanasova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
The applicant lives in the village of Elshitsa, in the Panagyurishte municipality, in a house owned by him and his former wife. His parents also live in that house. His daughter, from whose mother the applicant is divorced, stays with him every first and third weekend of the month and one month in the summer. The applicant’s house is situated about one kilometre from the tailings pond (хвостохранилище) and the flotation plant (обогатителна фабрика) of a copper ore mine. The applicant cultivates agricultural land located about four kilometres from the pond.
The pond, whose surface area is 98.3 ha, was in operation until 1991. The mine continued to operate until 1999. After their decommissioning, measures for the conservation and reclamation of the pond were taken. In June 1994 a scheme, drawn up in March 1994, was subjected to an environmental impact assessment (“EIA”), the conclusion of which was positive. In December 1994 the EIA was submitted for public discussion by the inhabitants of Elshitsa and modified in line with their comments. The scheme was approved by the Interdepartmental Expert Council of the Ministry of Industry in October 1997 and began to be implemented in January 1999. It consisted in laying earth and soil and planting vegetation on the pond. Its implementation was stopped in April 1999.
2. The new reclamation scheme and its approval
In May 1999 Mr Marin Blagiev, operating as a sole trader under the business name “ET Marin Blagiev”, proposed to the Ministry of Industry a new solution for the reclamation of the tailings pond. The solution consisted in the temporary capping of the pond’s surface and slopes with soil cement, to prevent the spreading of dust, and in the use of sludge from a waste-water treatment plant in Plovdiv for biological reclamation.
On 1 June 1999 the Pazardzhik Regional Inspectorate of Environment and Waters gave a negative opinion on the new scheme. It expressed doubts as to the durability and the stability in acid environments of the soil cement intended to be used for capping the pond. The proposed technology would provide a provisional solution for containing the dust spread from the pond, but would not lead to the pond’s full reclamation. Moreover, ET Marin Blagiev had not specified the chemical composition of the sludge from the Plovdiv waste-water treatment plant. They appeared to contain heavy metals, as the plant treated not only domestic, but also industrial waste water. According to the relevant classifier, sludge resulting from the treatment of the latter was hazardous waste.
On 2 June 1999 Panagyurishte’s mayor also expressed a negative opinion on the new scheme. He noted, inter alia, that the previous scheme had been fully approved and its implementation had started. In addition, the composition of the sludge coming from the Plovdiv plant was unclear, as it treated not only domestic, but also industrial waste water. There existed therefore a possibility that the sludge might contain heavy metals.
However, on 3 June 1999 the Interdepartmental Expert Council of the Ministry of Industry approved ET Marin Blagiev’s proposal and allowed him to submit a new scheme.
In a letter of 24 June 1999 to the Minister for Industry, the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved.
On 1 July 1999 the Minister for Industry transferred the tailings pond from the assets of the State-owned company Panagyurski Mini EAD to those of a specially formed State-owned company, Eco Elshitsa EOOD.
On 27 August 1999 ET Marin Blagiev presented its scheme to the Ministry of Industry. At about the same time Panagyurski Mini, which had been implementing the initial reclamation scheme, presented to the Ministry of Industry an update to the initial scheme.
The Ministry appointed a specialist expert council to consider the two schemes. This council comprised experts from the Ministries of Industry, of Environment and Waters, and of Finance, as well as from Panagyurski Mini and ET Marin Blagiev. It held a meeting on 7 September 1999, at which it discussed the relative merits of the two schemes. It noted that both lacked checks on the stability of the pond. However, according to an expert report, neither scheme would impair the pond’s stability. Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the middling slimes after the reclamation had ended. The problems relating to the neutralisation of the acid waters were partially addressed in ET Marin Blagiev’s scheme and not addressed in Panagyurski Mini’s scheme. According to an expert report, it was possible to use stabilised waste-water sludge from the Plovdiv treatment plant. The area around the pond did not have enough humus for the biological reclamation envisaged by Panagyurski Mini’s scheme; it would thus be necessary to enrich the existing soil artificially. ET Marin Blagiev’s scheme envisaged finishing the reclamation in eighteen months and resolving the dust-spread problem even before that. Panagyurski Mini’s scheme also had an eighteen month timeline, but it was unrealistic. ET Marin Blagiev’s scheme provided for the restoration of the productive qualities of 19.2 ha of polluted soil outside the tailings pond and its use for the production of specialised grass. According to the accounts submitted by the two firms, ET Marin Blagiev’s scheme would cost 5,139,356 Bulgarian levs (BGN), and Panagyurski Mini’s scheme BGN 5,878,945. For these reasons, the council recommended that the Interdepartmental Expert Council of the Ministry of Industry approve ET Marin Blagiev’s scheme. Two experts representing Panagyurski Mini disagreed, saying that this scheme did not comply with various regulatory requirements. In particular, waste-water sludge was not appropriate for reclamation; humus was much better suited for that task. Moreover, it was unclear whether the use of sludge would yield stable and safe results. According to the relevant classifier, the sludge from the Plovdiv plant was hazardous waste, because it came not only from domestic, but also from industrial waste water. The documents relating to the scheme did not specify the exact toxic-substances content of the sludge. Finally, the scheme’s scope and potential effects on the environment warranted an EIA. The updated initial scheme had none of these drawbacks, but, on the contrary, would provide a durable solution.
At its following meeting on 9 September 1999 the Interdepartmental Expert Council of the Ministry of Industry, comprising representatives from several ministries, discussed the two schemes. It examined the findings of the specialist expert council, as well as the opinions of the Pazardzhik Regional Inspectorate of Environment and Waters, of Panagyurishte’s mayor, and of the regional governor. It also heard explanations by Mr Blagiev. After a discussion, which touched upon, among other matters, the alleged heavy-metal content in the sludge from the Plovdiv plant, the council unanimously resolved to approve the scheme submitted by ET Marin Blagiev. This resolution was approved by the Minister for Industry.
In a newspaper interview published on 21 September 1999 the Minister for Environment said that the new reclamation scheme was controversial and that she intended to challenge it. In her view, a fresh method of reclamation was to be sought, if need be with the help of academia.
The implementation of the new scheme started in October 1999. Eco Elshitsa was the investor and ET Marin Blagiev the contractor.
3. The granting of the waste carriage and treatment licence
On 13 January 2000 the Pazardzhik Regional Inspectorate of Environment and Waters found that the company carrying sludge from the Plovdiv plant to the pond was doing so without the licence required under section 12(1) the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (see “Relevant domestic law” below), which amounted to an administrative offence. On 29 March 2000 it fined the company.
As a result, ET Marin Blagiev applied for such a licence. It was granted by the Minister for Environment and Waters on 22 February 2000. In her decision the Minister allowed ET Marin Blagiev to process up to 400 tonnes of domestic waste-water sludge a day. In particular, he could carry stabilised sludge from the Plovdiv treatment plant to the pond, store it in pits or other open air containers and use it for fertilising soils or improving the environment. The sludge was to be carried in lorries, with between six and eleven runs from the Plovdiv plant to the pond per day. It was to be laid on the pond in keeping with the technology approved by the Interdepartmental District Council and with certain other precautionary measures. The laying of sludge had to be finished before 30 December 2001. In the meantime, ET Marin Blagiev had to submit quarterly chemical analyses of the sludge to the Ministry of Environment and the Pazardzhik Regional Inspectorate of Environment and Waters.
4. The applicant’s attempt to obtain judicial review of the licence
After finding out about the licence, on 21 December 2000 the applicant applied to the Supreme Administrative Court for judicial review of the Minister’s decision to grant it. He argued that it was null and void, as its implementation was impossible. The decision allowed ET Marin Blagiev to carry and process domestic waste-water sludge. However, this could not be done, because the waste water treated in the Plovdiv plant came from both domestic and industrial sources. It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge. The applicant further argued that the Minister’s decision unlawfully classified the sludge as industrial waste, as under the relevant rules it was hazardous waste; this was also evident from various analyses. Furthermore, the Minister had taken the decision in breach of the rules of procedure, as no EIA had been drawn up.
In his application the applicant requested the Supreme Administrative Court to stay, as an interim measure, the enforcement of the impugned decision, as failure to do so could frustrate the purpose of the proceedings. As the court did not rule on this request, on 21 February 2001 the applicant renewed it. He argued that the continuing implementation of the decision could lead to irreparable harm for the environment, as the spreading of sludge was still going on at a regular pace.
In a decision of 21 March 2001 (опр. № 1826 от 21 март 2001 г. по адм. дело № 732/2001, ВАС, ІІ отд.) a three member panel of the Supreme Administrative Court declared the application for judicial review inadmissible. It held that the applicant had not been party to the administrative proceedings and thus had no standing to seek review of the Minister’s decision. His interests could not be adversely affected by the decision, but solely by the potential unlawful actions of the persons whom the decision authorised to carry and process waste.
The applicant appealed. On 14 June 2001 a five member panel of the Supreme Administrative Court quashed the three member panel’s decision and remitted the case for an examination on the merits (опр. № 4333 от 14 юни 2001 г. по адм. дело № 3777/2001, ВАС, петчленен състав). It held that the applicant, as well as all persons who lived near the tailings pond, had an interest in preventing activities which could pollute their environment and thus impair their health. The Minister’s decision allowed ET Marin Blagiev to carry waste to Elshitsa and store it there. It was therefore reviewable on an application by any person adversely affected by the allowed activities.
On 28 August 2001 the applicant once more reminded the court of his request for a stay of the decision’s enforcement. On 18 September 2001 the three-member panel turned down the request. It held, without stating the basis for such a finding, that the information in the file did not point to any danger for the applicant’s interests.
A hearing listed for 16 October 2001 did not take place, as ET Marin Blagiev had not been properly summoned. It took place on 15 January 2002. The court heard the parties’ arguments. The prosecutor participating in the proceedings ex officio submitted that the application should be allowed.
In a decision of 23 January 2002 (опр. № 605 от 23 януари 2002 г. по адм. дело № 4993/2001, ВАС, ІІ отд.) the three-member panel discontinued the proceedings. It held that the case had become moot, as the licence granted to ET Marin Blagiev had expired on 30 December 2001.
The applicant appealed, arguing, inter alia, that he had a continuing legal interest in seeking judicial review of the decision, because it had allowed waste disposal near his home, which could lead to problems for his health. The decision’s annulment was in addition a prerequisite for successfully prosecuting an action in respect of the harm occasioned by the unlawful waste disposal. The decision’s effects had not ended on 30 December 2001, as the negative results of the activities which it had made possible could persist for years to come.
On 24 September 2002 a five-member panel of the Supreme Administrative Court upheld the decision (опр. № 8432 от 24 септември 2002 г. по адм. дело № 7232/2002, ВАС, петчленен състав). It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings. The three-member panel had had regard to a fresh development which had occurred during the pendency of the proceedings, namely the expiry of the licence. The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a legal interest, as reparation of this damage could be sought in a civil action.
5. The efforts to have the reclamation scheme halted
The new reclamation scheme drew widespread disapproval from the inhabitants of Elshitsa. On 10 and 19 April 2000 Mr Angel Petrov, a member of the Panagyurishte Municipal Council, sent letters to the Ministry of Health and to the National Centre for Hygiene, Medical Ecology and Nutrition (a subdivision of the Ministry of Health). He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond.
The National Centre replied on 25 April 2000. It said that there existed a risk of heavy-metal contamination impacting on the population’s health within a ten kilometre perimeter around the pond. The reclamation scheme lacked a suitable system for monitoring the underground waters, where the migration of such metals could be expected, as the polymer cover was not stable in the long term. According to an expert in the Centre’s toxicology laboratory, the heavy-metal content of the sludge spread on the pond was above the regulatory maximum, as shown by the chemical analysis of samples. The high levels of copper, zinc, cadmium, nickel, cobalt and chrome led to a pollution risk and a risk to the population’s health. So did the presence in the sludge of lead and manganese. These metals could have a negative impact on the nerve, respiratory and cardiovascular systems, the kidneys, the liver and the production of blood. Some of them were allergens, mutagens and carcinogens. The implementation of the scheme would thus lead to a risk of dust from the sludge spreading in the atmosphere. There was also a risk that these metals would migrate through the surface and underground waters, because of the acid pH of the water in the pond. The methodology for reclaiming old polluted areas classified the area situated ten to twenty kilometres from the source of the pollution as being at risk.
Having received the Centre’s opinion, on 17 May 2000 Mr Petrov asked the Chief Sanitary Inspector to stop the operation of the site. He did not receive a reply. Mr Petrov also alerted the mayor of Panagyurishte.
On 29 May 2000 Panagyurishte’s mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy-metal content. Such samples were then taken and sent to the National Centre for Hygiene, Medical Ecology and Nutrition. In a letter of 6 June 2000, accompanied by an expert opinion by a researcher in its toxicology laboratory, the Centre said that the lead, cadmium, copper, zinc, chrome and nickel content of the sample was well above the maximum allowed levels. Copper and zinc had a negative effect on agricultural plants and livestock. Lead, cadmium, chrome and nickel were systematically toxic for mammals and humans: they could harm the peripheral and the central nerve systems, the production of blood, the liver and the kidneys. These metals also had mutagenic and carcinogenic effects. In addition, chrome, cadmium and nickel were strong allergens. The underlying soil cement cover would provide some protection for the underground waters in the region, but it was unclear how it would prevent the migration of heavy metals to the surface waters.
On 12 June 2000 Panagyurishte’s mayor and the regional governor sent a letter to the Deputy Prime Minister, urging him to halt the scheme’s implementation and noting that its continuation could lead to civil unrest in Elshitsa. Apparently no reply was received.
On 13 December 2001 the Ministry of Environment and Waters granted Eco Elshitsa a permit to discharge waste water, setting certain limits on the content of heavy metals and other toxic substances in it, and requiring the company to report to the competent authorities on a monthly basis.
On 25 September 2002 the works on the pond were accepted by the authorities.
On 11 August 2004 the mayor of Elshitsa asked the environmental inspection authorities in Pazarzdhik to provide him with information about Eco Elshitsa’s monthly self monitoring reports. On 8 September 2004 those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations.
6. The attempts to carry out an EIA and other assessments of the scheme
On 9 January 2001, as a result of pressure from the inhabitants of Elshitsa, the Minister for Environment and Waters ordered Eco Elshitsa to commission an EIA. In an additional decision of 1 March 2001 she specified that the EIA had to be ready by 31 March 2001.
As a result of a hunger strike by three members of a public committee opposed to the scheme and of a visit by the Minister for Environment and Waters to Elshitsa, on 10 November 2001 the Pazardzhik Regional Inspectorate of Environment and Waters, noting that no EIA had been drawn up, ordered that the implementation of the scheme be stopped pending the assessment’s finalisation. However, by that time about 97 ha of the 98.3 ha of the pond had already been covered with sludge.
The EIA was ready in March or April 2002. It was submitted for a public discussion, at which three experts from the University of Sofia’s faculty of geology and geography expressed their misgivings about the scheme.
On 4 July 2002 the Minister for Environment and Waters decided not to accept the EIA and sent it back for revision. She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme, the lack of information about the hazardous substances involved in the scheme, and the fact that the team which had drawn it up did not include an expert on the health and hygiene related aspects of the environment. The Minister therefore instructed the experts to revise the EIA and, in particular, to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond. It was to be specifically checked for heavy metals and mercury content. The taking of samples for this analysis had to be done in the presence of the persons concerned. The experts were also to indicate the tailings’ permeability, before and after the pond’s capping with soil cement, as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after eighteen months of use. The revised EIA was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond, and to propose concrete measures to tackle this problem. The analysis had to focus specifically on the penetration of heavy metals in the food chain.
In October 2003 Eco Elshitsa and the company which it had hired to draw up the EIA submitted additional documents to the Ministry of Environment and Waters. In a letter of 17 October 2003 the Minister informed them that these documents did not contain the information requested in her decision of 4 July 2002. It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment. However, under the regulations in force, it was not necessary to pursue the matter further and finalise the EIA. As the works on the site had already been completed, it was sufficient for Eco Elshitsa to produce a self-monitoring report on the impact of the scheme.
Following pressure from the inhabitants of Elshitsa and the local authorities, on 6 April 2004 the Minister of Health ordered the National Hygiene and Ecology Centre to carry out an assessment of the environment and the impact of the reclamation scheme on the local population’s health. In a letter of 14 June 2004 the Centre informed the Ministry that its experts were ready to complete the task, but that it could cover only 20% of the necessary funding, amounting to BGN 8,000. At the time of the latest information from the applicant (30 June 2008) the remainder of the money had not been found and the assessment had not been completed.
The first self-monitoring report by Eco Elshitsa was drawn up in November 2007 and covered the period between November 2006 and November 2007. It gave an account of, inter alia, the heavy-metal content of water coming out of the pond and of grass near it. These measurements were based on two water samples and five grass samples. One of the water samples did not show a heavy-metal content above the regulatory maximum levels, whereas the other did, leading the report to conclude that the pond’s drainage waters were heavily polluted. According to the report, the polluting content of the grass samples was below the regulatory maximum level, but the applicant submitted that its authors had used the wrong comparators, using the regulatory maximum levels for soil, not grass, which were considerably lower. The report said that the pond should continue to be monitored, but at a decreasing pace, with sample-taking once a year for grass and twice a year for water. Further reporting was envisaged in 2010.
B. Relevant domestic law
1. The 1991 Constitution
The relevant provisions of the 1991 Constitution read as follows:
Article 15
“The Republic of Bulgaria shall ensure the preservation and the reproduction of the environment, the conservation of the variety of living nature, and the reasonable utilisation of the country’s natural and other resources.”
Article 55
“Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.”
2. The 1991 and 2002 Environment Protection Acts
Under section 19(1) of the 1991 Environment Protection Act, superseded by the 2002 Environment Protection Act, all activities of private individuals and entities and State bodies could be subjected to an EIA. Section 20(1)(1) provided that an EIA was mandatory for all schemes listed in a schedule to the Act. These included the dumping of industrial and domestic waste and of waste-water sludge (point 27.4 of the Schedule, as in force between 1997 and 2001). An EIA could be carried out in other cases as well, pursuant to a proposal by those concerned to the competent authorities (section 20(3)).
The EIA was to be commissioned by the investor and carried out by independent experts having no connection with the planning of the scheme and no vested interest in its completion (section 21(1)). The expenses were to be borne by the investor (section 23(2)). The final report was to be submitted to the competent authority, which had to organise a public discussion on it (sections 23(1) and 23a(1)). The public had to be notified of the discussion at least one month in advance, through the mass media or other appropriate channels (section 23a(2)). The competent authority was to decide on the scheme’s feasibility not later than three months (after an amendment in 2001, one month) after the discussion (section 23b(1)). The decision was to be notified to the investor and publicly announced through the mass media or other appropriate channels (section 23b(2)). Those concerned could seek judicial review (section 23b(3)). Under section 23c, the authorities had to ban or halt schemes whose EIAs were negative or which had not been subjected to an EIA if one was mandatory.
Under section 29, the text of which has been reproduced in section 170 of the 2002 Environment Protection Act, everyone was bound to make good the damage which they had, through their fault, caused to another by polluting or spoiling the environment. The amount of compensation could not be less than the money needed to repair the damage. Under section 30(1), the text of which has been reproduced in section 171 of the 2002 Environment Protection Act, those who had suffered damage as described in section 29 could lodge an action to enjoin the polluter to put an end to the breach and eliminate the pollution’s effects. Section 30(2) provided that such an action could be brought by any individual, the municipal authorities, and non profit associations. There is no reported case law on the application of any of these provisions.
3. The 1997 Limitation of the Adverse Impact of Waste on the Environment Act
Under section 12(1) of the 1997 Limitation of the Adverse Impact of Waste on the Environment Act, which was superseded by the 2003 Waste Management Act, a licence was needed for all activities relating to the collection, storage or decontamination of waste. The authorities’ decision to grant such a licence was subject to judicial review (section 50).
Under section 37(2), the construction of facilities and installations for the storage and decontamination of waste was allowed only on the basis of a positive EIA.
4. The 1988 State Responsibility for Damage Act
Section 1(1) of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA”), renamed on 12 July 2006 the 1988 State and Municipalities Responsibility for Damage Act, provides that the State is liable for the damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings. The court examining the claim for compensation cannot inquire into the validity of a voidable decision; it may merely examine whether a decision is null and void. Section 8(2) provides that if another statute provides for a special avenue of redress, the Act does not apply.
COMPLAINTS
THE LAW
A. Article 8 of the Convention
In respect of his complaint that the second reclamation scheme had had an adverse impact on his private and family life and his home the applicant relied on Article 8 of the Convention, which provides, in so far as relevant:
“1. Everyone has the right to respect for his private and family life [and] his home ...
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.”
The Government submitted that the environment in Elshitsa had not deteriorated after the decommissioning of the mine. The applicant’s worries in this respect were misplaced and had not materialised. This could be seen from the self monitoring report drawn up by Eco Elshitsa. There was thus no indication that the applicant’s private life or home had been affected in any way.
The Government further argued that the reclamation scheme had been implemented in line with the applicable regulations. It had been approved in strict compliance with the regulatory requirements. There was no indication that the Minister for Environment and Waters’ decision to grant ET Marin Blagiev a licence to carry waste-water sludge had been unlawful. In particular, the law did not require a prior EIA for reclamation projects, as they were intended to reduce the effects of earlier contaminating activities and improve the environment. The health concerns of Elshitsa’s inhabitants had been fully taken into account by the authorities.
The applicant disputed the Government’s assertion that the reclamation scheme had not increased pollution in the area where he lived. Firstly, Eco Elshitsa’s report was actually indicative of pollution, as it found that the heavy-metal content of the water flowing out of the pond was higher than the regulatory maximum. The report was in parts misleading because it used erroneous comparators, and covered only the time between November 2006 and November 2007. No information was available in respect of the preceding period and it was not envisaged to provide such information in the future. Moreover, the report did not contain any estimate of the scheme’s effects on the health of the local population. In any event, it could not be seen as a reliable source of information as it had been drawn up by the very company which should have been monitored. The applicant secondly relied on official reports dating from 1997, 2004 and 2006, which stated that the sludge from the Plovdiv plant contained heavy metals and constituted hazardous waste. Furthermore, an expert opinion obtained by the mayor of Elshitsa showed that the scheme had increased the pond’s toxicity instead of providing a durable solution to the problem with its reclamation.
The applicant further pointed out that, since no studies had been carried out to assess the scheme’s impact on the health of the local population, it was extremely hard to prove actual harm to his health. However, such harm was very likely, especially in the long term.
In the applicant’s submission, the scheme’s approval and implementation had not been lawful. First, it did not comply with the applicable technical regulations. Second, since the laying of sludge in fact amounted to a waste disposal operation, it had been necessary to carry out an EIA, under both the law as it stood at the time of the implementation of the scheme and after the 2002 changes. The discontinuation of the EIA procedure had therefore been unwarranted. Moreover, even if an EIA was not mandatory, one should have been carried out to dispel or confirm the local population’s well founded fear. However, the authorities had chosen to ignore their continued protestations, had not completed the EIA and had not made funding available for an assessment of the scheme’s effect on their health.
In the applicant’s view, the authorities had not struck a proper balance between his rights and the interests of the community. They had opted for a controversial and polluting reclamation scheme over a benign one only because of the former’s presumed lower cost, which had eventually turned out to be higher. When reaching their decision, they had not taken into account the opinion of the local authorities and had not notified those likely to be affected. Later they had ignored the applicant’s requests to stay the scheme’s implementation, and had not imposed on the contractor any obligations to minimise the impact of its activities on the environment.
The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Article 1 of Protocol No. 1
In respect of his complaint that as a result of the reclamation scheme he could not peacefully enjoy his possessions the applicant relied on Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government argued the applicant’s rights under this provision had not been infringed in any way.
In the applicant’s submission, the laying of polluting sludge near his house had prevented him from using it normally, had reduced its value and had put his business at risk. These activities, which fully disregarded his economic interests, had failed to strike a fair balance under Article 1 of Protocol No. 1 for the same reasons as those set out under Article 8 of the Convention.
The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
C. Article 6 § 1 of the Convention
In respect of his complaints relating to the proceedings before the Supreme Administrative Court the applicant relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government did not comment on this complaint.
The applicant argued that Article 6 was applicable, as the proceedings concerned his constitutionally guaranteed rights to a healthy environment and respect for his personal sphere. These rights undoubtedly had a civil character, and the outcome of the proceedings was decisive for their exercise, as well as for the right to seek compensation for the damage flowing from an unlawful administrative decision. Moreover, the decision whose review he had sought had not been a discretionary one.
The applicant further submitted that he had not been able to obtain a ruling on the substance of his claim. This was the result of the slow pace of the proceedings, as well as of the court’s failures to stay the reclamation scheme’s implementation and to address the applicant’s arguments that despite the expiry of the licence, its effects had not ceased to exist.
The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
D. Article 13 of the Convention
In respect of his complaint that he had not been afforded any remedy for his complaints under Article 8 of the Convention and under Article 1 of Protocol No. 1 the applicant relied on Article 13, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government argued that there was no indication that attempts had been made to challenge the decision of the Interdepartmental Expert Council of the Ministry of Industry to approve the scheme proposed by ET Marin Blagiev. They also argued that the actions under sections 29 and 30 of the 1991 Environment Protection Act, superseded by sections 170 and 171 of the 2002 Environment Protection Act, were effective remedies against anyone – private persons or public authorities – who caused pollution or degradation of the environment.
The applicant submitted that the Council’s decision had not been made public. It had therefore not been possible to challenge it. Moreover, the instruments on the basis of which that body functioned did not make clear provision for its decisions to be open to legal challenges by those concerned. He had tried another remedy, which had been just as likely to provide him adequate redress: an application for judicial review of the waste treatment licence. Concerning actions under the Environment Protection Acts, there were no examples of one having been used successfully to date. In addition, such actions presupposed existing harm, whereas he should not have been made to wait for the emergence of such harm. Finally, an action under the SRDA would have been admissible only if the administrative decision alleged to have caused damage had been overturned in prior proceedings, which was not the case.
The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Claudia
Westerdiek Peer Lorenzen
Registrar President