March 11, 2025
Corina Heri
On 20 January 2025, the ECtHR issued a Chamber judgment in Cannavacciuolo and Others v. Italy. This environmental pollution case concerns an area known colloquially as the Terra dei Fuochi (“Land of Fires”) because it is notoriously plagued by the illegal dumping, burying and burning of waste on private land. This decades-long practice, which is commonly associated with organised criminal groups (the “Ecomafia”), has culminated in what has been described as an “environmental massacre”. In addition to its approach to victim status and standing, which will be covered elsewhere on this blog, this judgment stands out because of its focus on the right to life in Article 2 ECHR, and its enrichment of that provision with due diligence obligations, a risk-based approach to causality, and general measures under Article 46. Notably, however, it does this in ways continuous with well-established principles of the Court’s environmental case-law. The present post reads this judgment as vindication of the link between human rights and the environment, but also as a window into the ongoing politicisation and exceptionalism concerning climate change after the 2024 KlimaSeniorinnen climate judgment.
Cannavacciuolo (formerly known as Di Caprio) was brought by five local associations and 41 individual applicants living in the Terra dei Fuochi. This area, which is plagued by the illegal dumping of hazardous, special and urban waste, covers 90 municipalities in the Caserta and Naples provinces in the Campania region, and is home to 2.9 million people.
The problem of illegal dumping and incineration of hazardous waste in this region is well-known, with seven separate parliamentary commissions of inquiry having been created to investigate it between 1995 and 2018. These commissions documented air, soil and water pollution and the contamination of the area with e.g. dioxins, heavy metals and industrial sludge. As early as 1996, these commissions noted that cancer rates in the region were rising. Successive parliamentary and NGO reports throughout the late 1990’s and early 2000’s documented the problem of illegal dumping and burning of hazardous waste, describing the area as the “dustbin of Italy”. These reports also documented the involvement of organised crime, rising cancer rates and the lack of alternative, legal avenues for disposing of hazardous waste.
In 2013, the domestic authorities began taking legislative measures. They subsequently set up cancer screening programs, contamination testing schemes and an action plan for dealing with the situation. They also began more heavily penalising environmental pollution under criminal law. In the meantime, however, Italy’s failings concerning adequate waste disposal were repeatedly found to violate EU law, resulting in fines imposed in a 2015 CJEU judgment that cost Italy approximately EUR 130 million by 2018.
Cannavacciuolo has been described as a landmark judgment. On the merits, its outcome was not unprecedented, in the sense that the Court had already found Article 2 violations in past environmental cases. This includes Öneryıldız (lethal methane explosion at a rubbish tip), Budayeva (failure to implement land-planning and emergency relief policies ahead of a deadly mudslide) and Brincat (asbestos exposure). However, Cannavacciuolo differs from past cases in terms of the scale and (diffuse, private-actor) origin of the harm in question. It is also the first pollution case in which the Court found a violation of Article 2 ECHR. And, notably, it transforms Article 2 by applying standards on due diligence and causality previously developed in the Article 8 environmental case-law.
The health impacts of pollution – and the authorities’ decades-long knowledge of the situation – were not at dispute. Instead, the government focused on contesting the applicability of Article 2, and the existence of a causal link between the waste-related pollution and specific health impacts. The Court rejected these arguments, noting medical evidence and finding that there was a ‘sufficiently serious, genuine and ascertainable’ risk to life to engage Article 2 ECHR and trigger the authorities’ duty to act. In doing so, it considered the situation to meet the KlimaSeniorinnen definition of a “real and imminent risk” (paras. 377 and 390). This meant that it was neither necessary nor appropriate to require individual applicants to prove a direct causal link between the exposure to pollution and a specific life-threatening illness or death.
This approach to causality and scientific evidence, in addition to the decision to prioritise Article 2 over Article 8 ECHR and the Court’s engagement with purely private activities, is noteworthy. Applying the precautionary principle (as it had previously done explicitly in Tătar, and implicitly in KlimaSeniorinnen, where it rejected a “but for” approach to causation), the Court held that ‘the fact that there was no scientific certainty about the precise effects the pollution may have had on the health of a particular applicant cannot negate the existence of a protective duty’ (para. 391). Otherwise, it held, the State could simply deny the existence of the problem, thereby rendering Article 2 ineffective.
Article 2 accordingly applied here, and the Court found that the Italian State was under a positive obligation to take all appropriate steps to safeguard the lives of the applicants. This entailed several interrelated, context-dependent obligations, namely (para. 395):
In evaluating Italy’s compliance with these obligations, the Court assessed all of the measures taken in response to the Terra dei Fuochi phenomenon. It examined, first, measures to identify polluted areas and verify pollution levels. Here, the Court noted a striking ‘absence of a systematic approach to identifying the affected areas and the pollutants released’, even though the authorities had known about the problem for two decades (para. 401). Given the delayed and limited efforts to monitor pollution, as well as delayed legislative action and cursory decontamination efforts, the Court found that the authorities had not acted with the diligence required of them. In doing so, it clarified its notion of due diligence, which had been mentioned previously in Fadeyeva v. Russia, Mileva and Others v. Bulgaria, and KlimaSeniorinnen (para. 538(e)).
In terms of measures taken to investigate health impacts,the Court reiterated a report from the Italian Senate that noted lacunae in domestic data collection until at least 2013. After that, a growing number of epidemiological studies were commissioned and increased cancer screening was introduced in the area. Still, given that increased cancer incidence in the region was noted as early as 1998, but no legislative steps were taken until 2013, with no action to implement these until mid-2016, the Court found that the authorities had not investigated the health impacts with the required diligence.
In terms of measures to combat the situation, the Court noted the involvement of organised criminal groups, corporate actors, and individuals ‘who operated outside the bounds of any lawful conduct’ (para. 431). To prevent and deter illegal dumping of hazardous waste, the government focused on monitoring and a criminal-law approach. However, monitoring had begun more than a decade after it became aware of the problem, and heavier criminalization was slow to emerge and led to very limited prosecutions.
As concerned measures in connection with waste cycle management, the Court noted that while the case was not directly about the so-called “waste crisis” in Campania, as previously considered in Di Sarno and Locascia, the authorities’ shortcomings in managing the waste cycle had contributed to the Terra dei Fuochi phenomenon.
As concerned the provision of information, the Court noted several issues, including the absence of a ‘comprehensive and accessible communication strategy’ (para. 457) and the long-term classification of evidence on the issue, which was subject to official secrecy until 2013 (para. 458).
Overall, the Court emphasized the slow nature of the State response, finding that the pre-2013 measures were ‘fragmented at best, and that no meaningful efforts to approach the problem in a systematic, comprehensive, and coordinated manner can be detected’ (para. 461). As a result, the Court found that the government had not approached the problem ‘with the diligence warranted by the seriousness of the situation’ (para. 465) and that it had accordingly violated Article 2 ECHR. It was accordingly not necessary to further examine whether there was an adequate legal framework in place to prosecute those responsible for the pollution. It was also not necessary to examine the claims made under Article 8 ECHR.
On the merits, this judgment reversed the KlimaSeniorinnen approach by beginning with consideration of Article 2 ECHR, and allowing examination of that provision to consume the Article 8 ECHR issue. KlimaSeniorinnen conspicuously did the opposite, establishing an Article 8 violation and therefore finding it unnecessary to examine Article 2. To the KlimaSeniorinnen Court, this was an issue of little consequence: the standards under the two provisions, it held, ‘to a very large extent are similar’ (para. 537).
It is true that the standards concerning positive obligations under these two provisions overlap in environmental cases; health impacts can fall under either provision. However, that does not render these rights interchangeable. Notably, Article 8 ECHR comes with a limitations clause and a propensity towards a wide margin of appreciation, while Article 2 violations carry a particular gravity. In prioritising Article 2 ECHR, Cannavacciuolo renders the right to life practically and effectively applicable to systemic environmental issues. It clarifies that a “real and imminent risk” to life can trigger the State’s due diligence obligations and take the place of demonstrated direct causality between environmental impacts and a concrete health condition or death. Nota bene, earlier right-to-life environmental cases repeatedly failed on the causality front (e.g. Smaltini v. Italy, L.C.B. v. the United Kingdom).
As discussed above, the Court has found environmental violations of Article 2 before, but Cannavacciuolo was the first pollution case in which it did so. The case thus differs from past Article 2 environmental cases in terms of the scale and origin of the harm in question, and because of its approach to due diligence and causality.
However, Cannavacciuolo did not come out of the blue. Previous environmental cases under Article 8 laid much of the groundwork for this judgment. For example, the 2019 Cordella case likewise foregrounded due diligence (“la diligence voulue”) and established causality based on general scientific studies without requiring direct proof of a link between pollution and concrete individual health impacts. Later, in Locascia, the Court noted that, based on studies concerning environmental pollution and cancer incidence in Campania, there was ‘no reason to question that (…) a causal link existed between exposure to waste treatment and an increased risk of developing pathologies’ (para. 127).
Neither is this the first case finding an ECHR violation given pollution by private actors. However, in past cases, State involvement with a source of pollution has been more direct, largely focusing on the failure to properly regulate private industry, with recurring elements of state involvement in the enterprises concerned. Compared for example to Pavlov (industrial air pollution) and Cordella (a notoriously polluting, formerly state-owned steelworks), Cannavacciuolo is different, in that it is about illegal activities conducted entirely by private actors, and many diffuse ones at that.
In contemplating how States must respond to rights violations caused by the conduct of private actors, the Court noted its doubts about ‘the effectiveness of the given legal framework in preventing environmental crimes’ (para. 440). Relatedly, Council of Europe Member States have recently been negotiating the cornerstones of a “pan-European environmental criminal law” by drafting a Convention on the Protection of the Environment through Criminal Law. However, criminalisation is not at the core of this judgment, and the Court instead takes a systemic, contextualised approach that notes criminal law deficits alongside e.g. the absence of alternative, legitimate avenues for waste disposal. Read in light of studies on the harms of human rights law’s coercive turn, this is a welcome development.
Overall, Cannavacciuolo’s innovation on the merits lies in the transposition of standards from the amorphous, deferential context of Article 8, and onto the right to life. This makes good on KlimaSeniorinnen’s premise that environmental standards can travel across these two provisions. Perhaps it may even help to diffuse arguments, as e.g. recently made in Switzerland under an originalist reading of Article 8, that the ECHR should not apply to environmental issues because these are neither about “private life” nor “family life”. Against this background, Cannavacciuolo vindicates the link between human rights and the environment.
Despite its willingness to draw on some aspects of KlimaSeniorinnen, especially its approach to risk, Cannavacciuolo distinguishes climate cases from environmental ones. Thus, it declares the former case’s standards on locus standi inapplicable to (non-climate) environmental cases. On the merits, this distinction is also apparent in its willingness to engage with a complex, systemic environmental challenge affecting a potentially vast number of people – without first restricting victim status in the vein of KlimaSeniorinnen. Ultimately, the Cannavacciuolo approach to Article 2 provides a strong, comprehensive assessment of government (in-)action, rendering it a far cry from the deference and minimalism of KlimaSeniorinnen.
On principle, it is not clear why the pollution in question here is so different from the CO2 emissions at stake in KlimaSeniorinnen – both are geographically widespread, come from a diffuse range of sources, and have far-reaching impacts on human life and health. The two are also interrelated, forming part of the triple planetary crisis (of climate change, pollution and biodiversity loss) that the Heads of State and Government of the Council of Europe have declared it their ambition to combat. This point was convincingly made in two separate opinions, with Judge Serghides noting the multigenerational impacts of both situations and Judge Krenc arguing against the exceptionality of climate change. Both judges make important arguments: holding up Cannavacciuolo alongside KlimaSeniorinnen shows that that two cases share many similarities on principle. This in turn makes plain the extent to which the Court exercised deference in KlimaSeniorinnen. Meanwhile, the opinions of Judges Krenc and Serghides indicate a refreshing willingness to engage more deeply, comparatively and integratedly with systemic environmental problems, without siloing off climate change.
What does this case tell us about the state of the Court’s environmental case-law? Some might argue that the Court, emboldened by the Grand Chamber’s KlimaSeniorinnen judgment, is now taking a more hands-on approach to environmental cases. However, this impression does not hold up to scrutiny. Instead, Cannavacciuolo shows that the Court’s environmental case-law – which long pre-existed KlimaSeniorinnen – continues to develop apace, with climate change being singled out as an exceptional area requiring particular deference given its political sensitivity.
Cannavacciuolo does several things that the KlimaSeniorinnen Grand Chamber refused to do. It not only examines the merits of Article 2, applying the precautionary principle and a due diligence approach to causality concerning harms to individual victims, but it also goes on to apply the pilot judgment procedure under Article 46 ECHR for the first time in any environmental case. This requires the State to introduce a comprehensive strategy bringing together existing or envisaged measures, an independent monitoring mechanism and a public information platform to put an end to the systemic problem at issue. This, in and of itself, is striking – a sign that the Court is finally willing to take full advantage of its remedial toolbox in environmental cases.
Overall, Cannavacciuolo may well prove a crucial link between existing environmental case-law and a future jurisprudence capable of engaging with the realities of environmental breakdown within the “triple planetary crisis”. Not only does it facilitate individual access to the Court in environmental cases, but it also answers the call to address patent State inaction, address evidentiary problems in environmental cases, and take a more hands-on approach to the very real health impacts of pollution. Still, this judgment stays firmly in the Court’s wheelhouse: it doesn’t address mental health implications, disparate impacts on particularly vulnerable groups, the global issue of pollution or the contribution of waste issues to climate change; it does not recognise the much-debated (at the CoE) right to a healthy environment or the rights of environmental defenders, and neither does facilitate a transition to more ecocentric or more-than-human understandings of environmental protection. Lastly, it engages with a situation of pollution ex-post, after decades of State inaction. This judgment is accordingly not a revolution, but an (important) extension of existing doctrines. In doing so, it vindicates the ECHR’s relevance for environmental protection, and the unmistakable link between human rights and the environment.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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