II Council of Europe
| Date | 01 June 1995 |
| Published date | 01 June 1995 |
| Author | Leo Zwaak |
| DOI | 10.1177/016934419501300206 |
| Subject Matter | Part B: Human Rights News |
NQHR211995
The Committee reiterated its holdings in the Mutombo Case and noted that the
behaviour of Mr. Khan of submitting his torture allegations only after his refugee claim
had been refused and deportation procedures had been initiated to be 'not uncommon for
victims of torture' (paragraph 12(3». It also emphasized that evidence existed that torture
was widely practised in Pakistan, that Pakistan was not a party to CAT and that, in the
event of his forced return to Pakistan, Mr. Khan would 'no longer have the possibility
of applying to the Committee for protection' (paragraph 12(5».
It
finally concluded that
substantial grounds existed for believing that the author would be in danger of being
subjected to torture and, consequently, that his expulsion or return to Pakistan in the
prevailing circumstances would constitute a violation of Article 3 CAT.
During the same session, three other communications have been declared
inadmissible. Two Cases
of
X vs Switzerland (Nos.
17
and 18/1994) were submittedby
Zairian citizens and alleged members of the opposition party UDPS who had fled the
country in 1989 and 1990 respectively, and whose asylumrequests were rejected by the
Swiss authorities. Although they based their complaints on the ruling in the Mutombo
case, the Committee dismissed their accounts as lacking the minimum substantiation that
would render the communication compatible with Article 22 CAT. The Case
of
J.E. and
E.B. vs Spain (No. 1011993), which involved very serious allegations of torture by the
Spanish Guardia Civil against a couple from the Basque province, was declared
inadmissible on the ground of non-exhaustion of domestic remedies.
II COUNCIL OF EUROPE
Leo Zwaak
A. European
Court
of Human Rights
private
and
family life and for the home.
9December 1995, Lopez Ostra (Spain), A 303-C. (See for the facts of this case NQHR,
Vol. 12,
No.1,
1994, p. 58.) A plant for the treatment of waste from tanneries began to
operate without the municipal licence required under the regulations on activities
classified as dangerous, noxious or unhealthy. As soon as it started up, it caused health
problems and nuisance to many local people, including the applicant. This prompted the
municipal authorities to evacuate people livingnear the plant and eventually, in the light
of expert opinions produced by the relevant authorities, to order the cessation of certain
waste-settling operations. The treatment of waste water contaminated with chromium,
however, continued. After returning to her home, the applicant continued to suffer health
problems and noted a detoriation in the environment and the quality of life. The Court
pointed out that the Murcia Audiencia Territorial had accepted that, without constituting
a grave health risk, the nuisances at issue impaired the quality of life of those living in
the plant's vicinity,
but
it had held that the impairment was not serious enough to infringe
the fundamental rights recognised in the Constitution. The Court nevertheless considered
that severe environmental pollution might affect individuals' well-being and prevent them
from enjoying their homes in such a way as to affect their private and family life
adversely, without, however, seriously endangering their health. At all events, regard
must be had for the fair balance that had to be struck between the competing interests of
the individual and of the community as a whole. In the instant case, the waste-treatment
plant at issue had been built to solve a serious pollution problem in Lorca, but as soon
156
Human Rights News
as it had started up, it had caused nuisance and health problems to many local people.
The town council had reacted promptly by rehousing the residents affected, free of
charge, in the town centre for the summer months, but its members could not have been
unaware that the problems had continued after the partial cessation of the plant's
operations on 9 September 1988. The Court noted that the municipal authorities had not
only failed to take steps to protect the applicant's right to respect for her home and for
her private and family life, but had also resisted judicial decisions to that effect. In
proceedings instituted by the applicant's sisters-in-law, they had appealed against the
Murcia
High
Court's decision ordering the temporary closure of the plant. Similarly,
Crown Counsel, a State authority, had appealed against a decision to the same effect
taken by the investigating judge, with the result that the plant had not been temporarily
closed until 27 October 1993. The Court accordingly held that, despite the margin of
appreciation left to it, the respondent State had not succeeded in striking a fair balance
between the interest of the town of Lorca's economic well-being (that of having a waste-
treatment plant) and the applicant's effective enjoyment of her right to respect for her
home and
her
private and family life. In the Court's opinion, there had accordingly been
aviolation
of
Article 8. In the Court's opinion, the conditions in which the applicant and
her family had lived for a number of years had certainly been very difficult but had not
amounted to degrading treatment within the meaning of Article 3. The Court accepted that
the applicant had sustained some damage on account
of
the violation of Article 8. Her old
flat must have depreciated and the move must have entailed expense and inconvenience.
Account also had to be taken
of
the fact that for a year the municipal authorities had paid
the rent
of
the flat occupied by the applicant and her family in the centre of Lorca and
that the waste-treatment plant had been temporarily closed on 27 October 1993. The
applicant had, moreover, undeniably sustained non-pecuniary damage. Making an
assessment on an equitable basis, the Court awarded her 4,000,000 pesetas
for
damage.
Article 6(1)
ECHR:
Right
to a
fair
trial; Article 1Protocol
No.1
ECHR:
Right
to
peaceful
enjoyment
of possessions; Article 9
ECHR:
Freedom
of religion; Article 11
ECHR:
Freedom
of association; Article 13
ECHR:
Right
to an effective
remedy;
Article 14
ECHR:
Prohibition
of discrimination.
9December 1994, The Holy Monasteries (Greece), A 301-A. (See for the facts of this
case NQHR, Vol. 11,
No.3,
1993, pp. 316-317.) The applicant monasteries
had
accumulated extensive property acquired by donation before the formation of the Greek
State in 1829. A great percentage of this property had already been expropriated during
the first years of existence
of
the Greek State. The management which remained in their
ownership, was to be exercised by a church institution, whose board members were
appointed by the Holy Synod. A new law modified the rules concerning the management,
administration and representation of all monastic estates. These tasks were assigned to a
body whose composition was altered in that the majority of its members were to be
appointed by the State. The Court considered that by creating a presumption of State
ownership, the relevant law shifted the burden
of
proofso that it now fell on the applicant
monasteries, which could only assert their ownership of the land in issue if it derived
from a duly registered title deed, from a statutory provision or from a final court decision
against the State and not from adverse possession or even a final court decision against
aprivate individual. The State, deemed to be the owner of such agricultural and forest
property was automatically given the use and the possession of it. In the Court's opinion,
that was
not
merely a procedural rule relating to the burden of proof but a substantive
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