La sentenza Cannavacciuolo nel quadro della giurisprudenza della Corte europea dei diritti dell’uomo in materia ambientale: profili controversi

The Cannavacciuolo judgment touches upon two fundamental aspects in ‘environmental’ litigation before the European Court of Human Rights. First, the applicability of Article 2 ECHR instead of Article 8 ECHR to ‘environmental’ cases, irrespective of evidence of the causal link between the onset of pathologies or death, and the exposure to pollution that the State failed to monitor, prevent and put to an end. Second, the compensation of non-pecuniary damage suffered by the victims. In both respects, the judgment appeared, at first reading, to be a landmark decision that would change the paradigm within which the European Court had hitherto operated. However, the judgment itself contained warnings to the contrary, especially the criteria set to distinguish between cases in which pollution stems from a single source or from a multiple source, or between those in which it affects a more or less wide area. Indeed, in the following judgments, the Court has already retraced its steps, denying both the applicability of Article 2 ECHR in a case of serious environmental pollution and compensation in favour of the victims. It is argued, therefore, that a decision of the Grand Chamber is needed, either to bring the Court’s jurisprudence in environmental cases back to coherence or to clarify the scope of the applicability test under Article 2 ECHR, as well as to clarify the reasons underlying the decision to afford or deny just satisfaction in environmental cases. On a different note, it is argued that the pilot-judgement’s failure to provide a compensation mechanism for the population affected by the serious and massive pollution of the so-called Land of Fires, together with the Court's failure to consider the absence of effective domestic remedies to enforce such violations, contribute to making it impossible for persons other than the parties to the judgment to receive any compensation for the violations of the right to life of which they are equally victims. This is due to the domestic courts’ attitude of refraining from granting pecuniary damages in cases of health risks resulting from an established environmental disaster.