Brincat and Others v. Malta

Submitted by John Knox on Fri, 10/24/2014 - 00:00
Regional Decisions
European Court

The applicants were employees at Malta Drydocks Corporation (MDC), a state-owned enterprise, where they alleged that they had been constantly and intensively exposed to asbestos.  They brought their complaints under Articles 2 and 8 of the European Convention.  Additional applicants were the wife and children of Mr Attard, a former employee of MDC, who had died as a result of mesothelioma, a malignant cancer linked to exposure to asbestos.

With respect to Article 2, the Court reiterated that it "does not solely concern deaths resulting from the use of unjustified force by agents of the State but also . . . lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.  This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous."  The Court stated that these obligations may apply in cases dealing with exposure to asbestos at a workplace run by a public corporation owned and controlled by the Government.  The Court noted that it has applied the Article both when an individual has died and "where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application," including cases involving persons suffering from serious illnesses.   The Court considered that Article 2 applied to the complaint brought by the survivors of Mr Attard, but not to the complaint of the other applicants, who had neither been diagnosed with malignant mesothelioma nor any other condition related to asbestos of a life-threatening nature.  The Court noted, however, that "in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8," which it stated did apply to the present case.

Drawing on earlier decisions, including Kolyadenko and Others v. Russia, the Court reviewed the basic principles:

"The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels.  As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres" (citations omitted).  The Court stated that in determining whether a State has complied with its positive obligation, the Court must consider the particular circumstances of the case, including "the domestic legality of the authorities’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved."

The Court also stated that Article 8 requires national authorities "to take the same practical measures as those expected of them in the context of their positive obligation under Article 2."

After reviewing scientific and legal attention to the effects of asbestos on health beginning in the 1930s, the Court concluded that the Maltese Government knew or should have known of the dangers at least as of the early 1970s.  It considered that waiting 15 years, until the mid-1980s, to adopt specific legislation to address the problem "can hardly be seen as an adequate response in terms of fulfilling a State's positive obligations."  Moreover, it stated that from the mid-1980s to the early 2000s, when the applicants left the MDC, "the legislation was deficient in so far as it neither adequately regulated the operation of the asbestos-related activities nor provided any practical measures to ensure the effective protection of the employees whose lives might have been endangered."  In addition, the legislation appears to have been unenforced.  Nor were other practical measures taken, or access to information provided to the applicants.  The Court concluded that the Government had failed to satisfy its positive obligations under Article 2 (with respect to the survivors of Mr. Attard) and Article 8 (with respect to the other applicants), and awarded damages.

The Court rejected the applicants' claim under Article 3, which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."