In the case of López Ostra v. Spain (Council of Europe), Lopez lodged an application seeking protection of fundamental rights. Lopez had tried to engage the municipal authority in search of a solution to the nuisance and risks posed by the waste-treatment plant. However, the municipal authorities maintained a passive attitude. This prompted Lopez to seek the intervention of the court. In her application, Lopez complained that the industries operating within the vicinity of her residence were not only unlawfully interfering with her home but also her ability to enjoy peace of it. To her, this constituted a violation of her right to freedom of choice of residence. It also constituted an attack on her physical as well as psychological integrity. Further, the unlawful interference constituted an infringement of her liberty as well as her safety.
Several witnesses procured by the applicant presented their evidence before the court. With instruction from the court, the regional agency involved with Environment and Nature was invited to give their expert opinion on the issue. In their report, the agency concluded that the plant was solely operating as a waste-treatment facility for water contaminated with chromium. The effluents were discharged into the river and in the process, it generated foul smell. In their conclusion, they pointed out that the plant was built in the wrong place.
Although Mrs. Lopez application was endorsed by the Crown Counsel, the Audiencia Territorial’s opinion was contrary. Audiencia Territorial held that the noise, fumes, and smell caused by the plant was unquestionably the result of the plant’s operation. However, they did not pose any health risks to the families living around the facility. Rather, the noise, smell, and fumes only affected their quality of life but not to the extent of infringing on the fundamental rights as claimed by the applicant. And that the authorities, who were in charge of addressing the plant issues could not be held liable. To the Audiencia Territorial, the non-possession of a license did not warrant examination at that particular instance given that it was a concern arising out of a breach of ordinary law.
Lopez was not contended with the ruling of the Audiencia Territorial. She proceeded to lodge an appeal with the Supreme Court. In her appeal, Lopez maintained that witnesses’ evidence suggest that that the plant was a source of polluting noise, fumes, irritant smells, and pestilential which was associated with not only her health but also her daughter’s problems. Lopez also complained that the Audiencia Territorial view’s regarding the liability of municipal authorities was not in line with the supervisory powers accorded to mayors as per the 1961 regulations. This was especially in circumstances where the nature of the activity in question was implemented without a license. The Crown Counsel would later plead at the Supreme Court that the applicant ought only to be granted an application with regards to the nuisance which has led to the deterioration in her life. The Supreme Court dismissed the applicant’s appeal on account that the Audiencia Territorial ruling was consistent with the provisions of the constitution it relied on since no public official was found to have entered into her home and cause any harm to her physical integrity. Moreover, the court held that Lopez was free to relocate to another place. And that failure to obtain a license was only matter that could be handled in ordinary court proceedings.
Lopez proceeded to the Constitutional Court where she lodged an appeal. In the appeal, she alleged that there were three violations. The first allegation was her right to physical integrity as per Article 15, the right to her private life and family home as per Article 18, and her right her right to choose freely a location of her residence as per Article 19. The court was to rule that her appeal was inadmissible on grounds that it was ill-founded. Generally, the court ruled that there were no violations of Article 15, Article 18, and Article 19.
Besides Lopez complaints, there were other applications lodged by her two sisters-in-law who were staying in the same building with her. The applicants had lodged an application against the municipality of Lorca and SACURSA that the waste-treatment plant was operating unlawfully. Noting that the waste-treatment plant had been continuing without a license since the first time a similar application was lodged, the court held that the plant ought to be closed until they obtain a license but the enforcement of the order was suspended after an appeal made by the town council of SACURSA. Following the suspension of the enforcement to close the plant, the sisters-in-law were to later lodge another case against SACURSA the court instituted criminal proceedings at the municipal authority for committing an environmental health offense. The judge closed the plant, but the Crown Counsel appealed against the closure. Following the appeal, the judge ordered independent investigations to determine the level of the nuisance emanating from the plant and its health impact on the surrounding homes. Investigators reported high levels of hydrogen sulfide concentrations at the site in excess of permitted level. The sulfur discharge to the river was also above permitted concentrations. A report by the National Toxicology Institute suggests that the gas was only harmful within a range of exposure levels while the Environment and Nature Agency contend that the noise levels generated by the plant were within permitted levels. Further independent reports by a pediatrician, three police officers, and the Ministry of Justice’s Institute of Forensic Medicine in Cartagena contend that the gas concentration in the nearby houses exceeded the permitted limits and that they caused adverse health impacts on the residents. Lopez was later relocated to another municipality-paid house elsewhere, and the judge confirmed that the plant was temporarily closed later.
Finally, Mrs. Lopez lodged a complained with the Commission complaining that the municipal authorities had remained passive in addressing nuisance arising from the waste-treatment plant located near her residence. While lodging this complaint, she relied on Articles 8 para. 1 and 3 (art. 8-1, art. 3) of the European Convention. In her application, she pointed out that there was a violation pertaining respect for her home which had not only caused her family and private life impossible but also subjected to degrading treatment. In their declaration, the Commission found the application admissible and that there was a violation of Article 8 (art. 8) but not of Article 3 (art. 3). The Government objected that it had not breached its obligations as per the Conventions. The government objected on the grounds that Lopez had not exhausted domestic remedies. Further, the government objected on the basis that Mrs. Lopez was no longer a victim at the time of lodging an application with the commission.
While the Convention subscribed to the provisions of Article 8(art.8), the government contested it. Although the government complained that the application was lodged when the applicant was no longer a victim, the Convention pointed out that the relevant authorities prolonged their failure to take the necessary action to address the environmental hazard. Even after the closure of the plant, Mrs. Lopez argued that the plant continues to pollute the environment, and the pollution had a negative health impact in the health of family members. The Commission decision backed by earlier investigations which showed that pollutants such as hydrogen sulfide concentrations on the side were beyond the permitted levels. Although the local municipal authority and the government tried to absolve themselves from the pollution problem, the Commission found both of them liable since the municipal authority provided learned while the Spanish government facilitated the funding. Further, the local authority not only delayed in addressing the issue but also act as a barrier to the enforcement of judicial ruling and thereby contributing to the aggravation of the environmental problem.
Following a long term search for justice, expenses incurred, suffering she encountered, and physical and psychological stress she experienced, Lopez claimed compensation for reimbursements of expenses she had incurred and also damage. The final verdict of the Commission dismissed objections by the government, held that there was a breach of breach of Article 8 (art. 8) of the Convention; no breach of Article 3 (art. 3) of the Convention; awarded 4,000,000 pesetas for damage to Lopez; 1,500,000 pesetas, less 9,700 French francs for costs and expenses; and dismissed the remaining part of the claim for satisfaction of justice.
Works Cited
Council of Europe. Case of López Ostra V. Spain (Application no. 16798/90). Web. 10 April 2016. <http://hudoc.echr.coe.int/fre?i=001-57905>
