|
Protection of the environment is accepted as coming within the “general interest” referred to in paragraph 2 which may entitle the State to interfere with the enjoyment of property. In Fredin v Sweden the applicant had obtained a permit to exploit a grave pit. An amendment to the law on nature conversation subsequently authorized the revocation of such permits. The Court was prepared to find that nature conservation could justify State interference with the right of peaceful possession.
D. Article 6 (the right to a fair trial)
The right to a fair trial provides procedural rather than substantive protection. Commentators are divided as to whether protection of the environment is better achieved through the use of substantive rights such as the right to life or respect for home life or through procedural protection provided by the right to a fair trail and the right to information. Dicey was clear in his view that a “practical procedure is worth a thousand pious pronouncements of principle”.
The right to a fair trial applies to civil as well as criminal trials. The reference to “civil rights and obligations” has been interpreted by the Court to mean private law rights and obligations, including property rights and the exercise of business and commercial activities.
In Zander v Sweden the applicant was unable to challenge the decision of a licensing authority to allow a company to dump waste on a tip without requiring the company concerned to take precautionary measures to avoid pollution of the applicant’s drinking water. The Court found this to be a breach of Article 6. In Benthem v The Netherlands the applicant applied for a licence to operate an installation for the delivery of liquid petroleum gas for motor vehicles. The licence was necessary to constuct installations that might be a source of danger or disturbance to surroundings. The licence was granted by local authorities but was then quashed by a national decree. The applicant alleged that the dispute had not been heard by an independent and impartial tribunal. Article 6 was held to be applicable.
In contrast, those who object to proposed action by the State to protect the environment also have the right to challenge such action before a tribunal. In Fredina, a landowner was unable to obtain judical review of the authority’s decision to prohibit him from extracting gravel. The Court held that this amounted to a breach of Article 6.
E. Article 10 (the right to freedom of expression)
Public access to information on the environment is recognized as a key aspect of environmental protection. Article 10 includes the right to receive information. This has been interpreted as a negative obligation on the State not to impede an individual from obtaining access to information requested. It has not however, extended to a positive obligation on the state to provide information. This was confirmed in Guerra v Italy which, as referred to above, concerned the failure by the Italian authorities to provide the local population with information about the risks from a nearby chemical factory. The State was found not to be in breach of Article 10 on the basis that the freedom to receive information could not be construed a imposing on a state positive obligations to collect and disseminate information of its own motion . Article 10 may, however, be useful to environmental protestors, though again the courts are likely to seek to hold a balance between freedom of expression and the preservation of public order .
|
