September 08, 2014
This guest blog post was written by Elena Sychenko, Ph.D. student at the University of Catania, Law Faculty, Labour Law Department.
On 24 July, the European Court of Human Rights announced its judgment in Brincat and Others v. Malta (the Brincat case). This case was the result of 21 applications of former workers of the public ship repair yard exposed to asbestos. The Government of Malta was held responsible for breaching its positive obligations to protect the rights to life and the right to respect for private life. A violation of the right to life was found where the death of the employee was the result of exposure to asbestos. Where employees had suffered from different diseases, the Court found a violation of the right to respect for private and family life.
Brincat is a landmark case for Occupational Health in all the countries of the Council of Europe. For the first time, the Court found violations of two rights deduced from articles 2 and 8 that are fundamental to this sphere: the right to access information concerning risks the employee is exposed to and the right to protection from dangerous industrial activities. The reasoning of the Court in this case is particularly interesting. Compared to other “occupational health” cases, even if there have not been many of them, the Court develops the content of the positive obligation of protection from dangerous activities and of the positive obligation to provide information about risks. It also uses a very curious reasoning in finding whether the Government of Malta knew or ought to have known about the danger of asbestos.
We’ll say more about this development and illustrate the concretization of the Court’s approach to matters that are closely connected to Occupational Health.
Already in 1994, in the case of Lopez Ostra v. Spain, which concerned severe environmental pollution, the Court interpreted article 8 as including the right to protection from dangerous activities. The scope of the corresponding positive obligation of the States was developed in Öneryıldız v. Turkey, which concerned the death of 9 relatives of the applicant, as a result of methane explosion. In this decision, the Court stated that where dangerous activities are concerned “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.”
In the Brincat case, the Court further specified these findings while considering the arguments of the Government. Malta stated that it had fulfilled its obligation of protection as it: 1. adopted special legislation as soon as it became aware of the problem of asbestos; 2. provided the workers with protective masks; 3. entitled workers to additional payment for work with asbestos.
The Court did not agree with all the three points of the defendant. In the Court’s view, the 1987 Maltese Work Place (Health, Safety and Welfare) Regulations – adopted by the Government as a legislative framework aimed at protecting workers from asbestos – could not be considered as effective compliance with the positive obligation under the Convention. These Regulations were adopted much later than awareness of the problem of asbestos within ILO became widespread and made no reference to asbestos. There were no provisions for any practical measure that could or should have been taken in order to protect the applicants. They didn’t include provisions concerning the right to access information about the dangers inherent in the workplace.
We can conclude that, in evaluating the Maltese legislative framework, the Court specified its view on due legislative measures: they must be well-timed, must contain practical measures of protection and must be implemented in practice. Moreover, the Court underlined the importance of legislation stating that “it cannot rule out the possibility, a priori, that in certain specific circumstances, in the absence of the relevant legal provisions, positive obligations may nonetheless be fulfilled in practice”.
The Court’s view on practical measures was also specified. The use of protective masks, which was regarded by the Government as a protective measure, was not considered to be sufficient to protect workers. It is interesting to notice that this consideration was based on the expert’s conclusions in the national case heard by a Maltese court in 1989. This case concerned the death of а worker in 1979 who was exposed to asbestos in the ship-yard. The Court cited the findings of experts and decided that these masks were of “inadequate quality” and “did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time” (par. 112). Thus, the ECtHR made the Government understand that due practical measures of protection must correspond to the level of scientific knowledge in this field. We suppose that this is a very important point for any further “occupational cases” before the Court.
The Court’s estimation of the use of compensation for the work with dangerous substances could be another interesting point in the case. Unfortunately, the Court did not express its view in substance, as the Government’s general statement that employees who had worked on asbestos (after its dangers became known to the Government) were offered compensation, didn’t provide any relevant information specific to the instant case (par. 115). As a result, this argument was left aside.
The positive duty of the State to provide information about the risk that the person is exposed to was deduced from article 8 of the ECHR, which guarantees the right to respect for private and family life. This wide interpretation of this article did not originate immediately but was rather the result of a slow and consequent process. We might say that it began with the “environmental” case of Guerra and Others v. Italy, where the Court indirectly mentioned the right to assess risk factors connected with the activity of a nearby chemical factory. In McGinley and Egan v. the United Kingdom, the Court was more concrete and directly stated that “where a Government engages in hazardous activities …respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.” The same conclusion was reached in the later Roche v. the United Kingdom case.
The most significant development of the Court’s approach to the right to have access to information concerning risks a person is exposed to can be seen in the recent decision in Vilnes and others v. Norway. In this decision, which concerned the occupational health of divers, the Court stated that the State’s positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives may, in certain circumstances, also encompass a duty to provide such information. The appropriate ways of performing this duty were not mentioned.
In the Brincat case, the Court took a step forward. Considering the Government’s arguments, it found that neither the distribution of the protective masks nor the reference to the OHSA activities could be regarded as a due source of information. The Court also underlined that the Maltese legislation didn’t establish a duty to provide information and the Government didn’t undertake any studies or reports about the asbestos specifically. Thus, the Court focused again on the importance of the legislative framework and made clear that the studies or reports could be a proper way of fulfilling the obligation to provide information.
According to the Court’s case law, the violation of the positive obligation of the State to protect rights under article 2 or article 8 of the ECHR might be found where the State knew or ought to know about the danger. As the Court stated in Opuz v. Turkey, “the scope of positive obligations under article 3 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.” We suppose that this approach is equally applicable to the interpretation of articles 2 and 8 of the ECHR. Therefore, the point about the State’s awareness of the danger to workers’ health becomes a cornerstone for any “occupational health” case.
The Brincat case is a remarkable one because the Court found that Malta ought to have been aware of the problem of asbestos in the seventies. The Court based its conclusion on 3 main pillars: 1. The ILO Convention and Recommendation adopted in 1986 and NOT ratified by Malta; 2. The decision of the national case where the employer was held liable for the death of a ship-yard worker in 1979 as result of exposure to asbestos; 3. The state of scientific knowledge of the medical problems connected with exposure to asbestos.
Although the ILO Convention on the use of asbestos was adopted only in 1986, the Court took into account ILO activities in this sphere stating that “the adoption of such texts comes after considerable preparatory work which may take significant time, and in the ambit of the ILO after having undertaken meetings with representatives of governments, and employers’ and workers’ organizations of all member countries of the organization”. Therefore, Malta as an ILO member could not be unaware of the problematic issue of the use of asbestos even before the adoption of Convention No. 162.
Considering the state of scientific knowledge of the dangers of asbestos, the Court took account of the list, submitted by the applicants, which contained references to hundreds of articles or other publications concerning the subject at issue published from 1930 onwards (par. 106). It was found inconceivable that there was no access to any such sources of information, at least, by the highest medical authorities in the country who had an obligation to remain abreast of scientific developments and advise the Government accordingly.
To conclude this brief analysis of the judgment in the Brincat case, we would like to emphasize one detail: the ECtHR could have easily found these applications inadmissible as, strictly speaking, the national remedies were not exhausted. We assume that the Court’s readiness to hear this case was dictated by a willingness to widen the “social” dimension in the interpretation of the European Convention and to attract attention to the problem of occupational health.
The legal position of the Court contained in this judgment and discussed above might strengthen the position of workers in the sphere of occupational health, specify the State’s obligations in this field and, in the end, entitle employees who suffer from undue working conditions to file applications with the ECtHR
 ECtHR, Brincat and Others v. Malta (60908/11, 62110/11, 62129/11, 62312/11, 62338/11) 24 July 2014.
 See ECtHR, Vilnes and others v. Norway (52806/09 22703/10) 05/12/2013 and partly ECtHR, Roche v. The United Kingdom (32555/96) 19/10/2005.
 ECtHR, López Ostra v. Spain (16798/90) 09/12/1994, par. 51.
 ECtHR, Oneryildiz v. Turkey (48939/99) 18/06/2002
 Ibid, par. 71 and par. 90.
 ECtHR, Guerra and others v. Italy (14967/89) 19-02-1998.
 ECtHR , McGinley and Egan v. the United Kingdom (21825/93, 23414/94) 09/06/1998, par. 101.
 ECtHR, Roche v. the United Kingdom (32555/96) 19/10/2005, par. 167.
 ECtHR, Vilnes and others v. Norway (52806/09 22703/10) 05/12/2013
 See for example ECtHR, Keeffe v. Ireland (35810/09) 28/01/2014 (par. 144) or ECtHR, Öneryildiz v. Turkey (48939/99) 18/06/2002, par. 62.
 ECtHR, Opuz v. Turkey (33401/02) 9 June 2009.
 Asbestos Recommendation, R172, C 162 – the 1986 Asbestos Convention.
 Brincat case, par. 105.