From Proving Harm to Reviewing Risk: The ECtHR’s Evolving Approach to Environmental Evidence

by Dr Gunay Ismayilova

The European Court of Human Rights’ recent judgment in Addonizio and Others v Italy, concerning the long-term environmental consequences of waste mismanagement in the Terra dei Fuochi region, islikely to be remembered as an environmental case under Article 8 of the Convention that settles an up until then evolving approach to environmental evidence. This commentary argues that the judgment is best understood as the continuation of an important evidentiary development that has gradually emerged in the Court’s environmental case-law.

The significance of this development lies not in expanding the substantive scope of Article 8, but in the Court’s evolving methodology for evaluating environmental evidence and allocating evidentiary scrutiny between applicants and public authorities.

Earlier environmental cases occasionally focused primarily on whether applicants could demonstrate that environmental degradation directly affected their own Convention rights. More recently, however, the Court has increasingly directed its scrutiny towards the State itself, asking whether public authorities adequately assessed environmental risks, gathered sufficient evidence, adopted appropriate preventive measures, and acted proportionately in pursuing competing interests. Thus, the development does not necessarily lie in different outcomes, but in the Court’s gradual relocation of evidentiary scrutiny from individuals to public authorities, which are arguably institutionally better placed to identify, assess, and manage environmental risks.

This commentary first outlines the facts and judgment in Addonizio. It then traces the evolution of the Court’s evidentiary approach by contrasting it with Kyrtatos v Greece, where the Court’s analysis remained centred on whether the applicants had demonstrated that the acknowledged environmental degradation directly interfered with their own Convention rights. It then turns to later judgments that increasingly focus on the proportionality of State action and the adequacy of governmental risk assessment once a sufficient connection with the environmental harm has been established. Ultimately, it argues that Addonizio represents the continuation and perhaps the maturity of this evolving evidentiary approach in the Court’s environmental jurisprudence.

Addonizio and Others v Italy

Facts

The case concerned the construction and operation of a landfill site in the municipality of Sant’Arcangelo Trimonte in the Campania region during a long-running waste management emergency in the region. Emergency legislation adopted during the crisis facilitated the creation of new landfill sites through derogations from ordinary environmental and health and safety requirements.

The site selected for the landfill had previously been used for waste disposal and was situated in an area long associated with hydrogeological instability. Prior to its construction, several environmental assessments and compatibility studies had been carried out. Nevertheless, local authorities and residents raised concerns about the suitability of the location, citing contamination risks, the agricultural use of the surrounding land, and the area’s susceptibility to landslides.

Following the landfill’s opening, criminal and administrative proceedings confirmed numerous environmental concerns. Subsequent investigations identified leachate leakage, groundwater contamination, and significant risks arising from the site’s instability. Parliamentary inquiries likewise concluded that the landfill had been constructed despite the area’s vulnerability being known for a long time.

The applicants complained that the authorities had failed to prevent, minimise, or mitigate the environmental and safety risks associated with the landfill, thereby adversely affecting their health, well-being, and enjoyment of their homes.

Summary of the Judgment

The Court first addressed the applicants’ victim status. It accepted that the applicants residing in Sant’Arcangelo Trimonte could claim to be victims because the environmental pollution and safety risks were capable of directly affecting their personal well-being (para 31). By contrast, applicants residing elsewhere failed to establish a sufficient connection with the environmental harm due to their residence and were therefore excluded from the proceedings (paras 32-33). On the merits, the Court, examining the State’s positive obligations, found that the material before it demonstrated the existence of environmental pollution and serious safety risks resulting from deficiencies in the planning and management of the landfill. It emphasised that the landfill had been authorised in an area known to be vulnerable to landslides and hydrogeological instability (para 40).

The Court further observed that environmental concerns persisted long after the landfill had ceased operations. Reports identified continuous contamination and delays in the implementation of remediation measures. Although the Court considered that it could not determine the precise extent to which the applicants’ lives or health had been affected, it accepted that the pollution and safety risks endangered their health and interfered with their private life (para 42). Consequently, the Court concluded that the authorities had failed to take all the measures necessary to ensure the effective protection of the applicants’ Article 8 rights. It held that the fair balance between the applicants’ interests and those of society as a whole had been upset and therefore found a violation of Article 8.

Analysis: From Individual Harm to Reviewing Risk

Kyrtatos and the Individual-Harm Paradigm

The above had not always been the Court’s approach. Although the Court had previously balanced the interests of applicants and society in environmental and nuisance cases, Kyrtatos v Greece remains one of its most influential early environmental cases. It is distinctive in that the analysis effectively ended once the applicants failed to demonstrate a sufficiently direct impact on their own rights.

The applicants owned property adjacent to a protected coastal wetland. They complained that urban development had transformed the area, destroyed the swamp ecosystem, and damaged protected species. Importantly, the Greek Supreme Administrative Court had already recognised the ecological significance of the area and concluded that the development endangered an important natural habitat protected under Article 24 of the Greek Constitution.

Before the Strasbourg Court, the decisive question was not whether environmental degradation had occurred. The Court recognised that the environment had indeed been severely damaged. Rather, it asked whether the acknowledged environmental degradation had produced a sufficiently direct interference with the applicants’ private life or home to engage Article 8 of the Convention.

The Court stated that ‘the crucial element’ was ‘the existence of a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment’ (para 52). It further reiterated that ‘neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such’ (para 52).

Although environmental degradation was accepted, the Court found that the applicant had not advanced ‘any convincing arguments’ demonstrating that the destruction of the wetland and its wildlife directly affected their private life or home (para 53). In contrast to a number of more recent environmental cases, in which the principal issue at the admissibility stage concerned whether applicants had established a sufficient connection with the environmental harm to qualify as victims, Kyrtatos presented a different question. The applicant’s proximity to the environmentally affected area was not the central issue. Rather, despite accepting the existence of environmental degradation, the Court required the applicant to demonstrate that the acknowledged harm had produced a sufficiently direct interference with their own private life or home for the purposes of Article 8.

The significance of Kyrtatos therefore does not lie in the finding of no violation, but in the structure of the Court’s reasoning. Its scrutiny never moved beyond the threshold question of individual impact. Since the applicant could not demonstrate that the acknowledged environmental degradation had sufficiently interfered with their own Convention rights, the Court did not proceed to examine the proportionality of the authorities’ actions, the adequacy of the environmental assessments conducted by the State, or the quality of governmental decision-making.

Significantly, this approach was criticised even at the time of the judgment (2003). In his dissenting opinion in Kyrtatos, Judge Zagrebelsky argued that the Court drew too sharp a distinction between environmental degradation and quality of life. For him, the destruction of the unique wetland environment adjacent to the applicant’s property inevitably affected their enjoyment of life. His dissent anticipated much of the Court’s later environmental jurisprudence. Although the majority did not adopt this view, the dissent illustrates that even at the time, there was judicial disagreement over whether environmental degradation could realistically be separated from an individual’s quality of life.

The Limits of the Individual-Harm Approach

The evidentiary model exemplified by Kyrtatos is problematic. Environmental harm is rarely individual. Pollution, biodiversity loss, contaminated groundwater, industrial hazards, and climate-related risks are typically collective. Their consequences frequently extend well beyond the experience of a single applicant. Therefore, requiring individuals to demonstrate the precise effects of such complex environmental processes may impose an evidentiary burden that is inherently difficult to fulfil.

These difficulties become even more apparent in disputes involving long-term or cumulative environmental risks. Environmental degradation often unfolds gradually and may become visible only after years of regulatory failures, inadequate monitoring, or insufficient enforcement. In such situations, much of the relevant evidence is ordinarily generated and held by public authorities rather than by affected individuals.

Even assuming that individual harm remains relevant to Article 8, applicants are rarely in the strongest evidentiary position to establish long-term environmental harm or complex environmental risks. While they may be expected to show a sufficient connection with the interference complained of, the evidence necessary to establish that connection often derives from risk assessments, environmental impact assessments, epidemiological studies, and monitoring data generated by public authorities and scientific experts.

Modern environmental governance reflects this institutional reality. Article 24 of the Greek Constitution provides that environmental protection constitutes a duty of the State and requires preventive and protective measures. Likewise, the European Union Environmental Impact Assessment Directive requires the significant environmental effects of projects to be assessed before authorisation is granted. The Aarhus Convention guarantees access to environmental information and public participation in environmental decision-making.

These instruments all proceed from the same premise: the identification, assessment, and management of environmental risks are primarily State responsibilities. Environmental assessment requirements already presuppose that public authorities possess the expertise, information, and institutional capacity to predict and evaluate environmental impacts before authorising environmentally significant activities. The allocation of responsibility for environmental assessments therefore provides an important context for understanding why later Strasbourg jurisprudence increasingly scrutinises governmental investigations, risk assessments, and decision-making processes.

From Proving Harm to Reviewing Risk

The Court’s later jurisprudence demonstrates a gradual move away from the applicant-centred evidentiary model represented by Kyrtatos. This evolution should not be understood as eliminating the victim status requirement. Applicants must still establish a sufficient connection with the environmental harm complained of, whether through geographical proximity, exposure, or another direct link (Fadeyeva v Russia, paras 88–92). The significance of the shift lies in what happens once that threshold has been crossed.

The applicants in Kyrtatos undoubtedly had a factual connection with the environmental degradation because they lived adjacent to the affected wetland. Nevertheless, the Court held that they had failed to demonstrate that the acknowledged environmental harm produced a sufficiently direct interference with their Article 8 rights. Consequently, the Court did not proceed to examine the adequacy of the authorities’ response.

Once a sufficient connection has been established, the Court increasingly examines whether public authorities fulfilled their own obligations to identify, assess, and manage environmental risks. This evolution is reflected in the Court’s increasingly frequent reliance on the fair balance test. Rather than focusing primarily on whether the applicants convincingly reconstructed complex environmental consequences, the Court increasingly asks whether the authorities adopted reasonable preventive measures, implemented appropriate regulatory frameworks, and afforded adequate protection to the applicant’s Article 8 rights (Fadeyeva v Russia, paras 128, 132–134).

The same development can be observed in the Court’s insistence that environmental decision-making must be supported by ‘appropriate investigations and studies’ enabling the authorities ‘to predict and evaluate in advance’ the environmental consequences of potentially harmful activities (Taşkın and Others v Turkey, para 119). The Court did not dispense with the need for applicants to establish victim status or a sufficient connection to the alleged harm. Rather, once those preliminary requirements had been satisfied, its analysis increasingly centred on the adequacy of the State’s investigations, environmental assessments, and decision-making processes, including whether the authorities had acted proportionately in pursuing competing interests.

Subsequent judgments reinforced this approach. The Court increasingly examined whether domestic decision-making processes afforded due respect to the interests protected by Article 8 and frequently relied on governmental monitoring reports, environmental studies, and epidemiological evidence (Hardy and Maile, paras 214, 218–222). The central question became whether the authorities responded adequately to information already in their possession and whether they took reasonable steps to prevent or minimise foreseeable environmental risks (Cordella and Others v Italy, paras 163–182).

Accordingly, the Court’s attention progressively shifted towards governmental knowledge, scientific evidence, and institutional responses, asking what the authorities ‘knew or ought to have known’ and whether they adopted ‘appropriate measures’ capable of protecting the applicant’s Convention rights (Cordella and Others v Italy, para 181).

Addonizio as the Continuation of the Trend

Addonizio illustrates the maturity of this approach. What is notable is not merely the finding of a violation, but the structure of the Court’s reasoning. Its analysis centred on environmental reports, contamination findings, hydrogeological risks, planning deficiencies, and failures to implement remediation measures. The key question was whether the authorities had adequately identified, assessed, monitored, and managed known environmental risks and whether they had acted proportionately in pursuing competing interests. In other words, the Court’s reasoning was structured around the quality of the authorities’ environmental decision-making rather than around the applicants’ ability to prove the precise consequences of the pollution they experienced. The burden of proof effectively shifted from the applicants to the duty-bearer.

Seen in this light, Addonizio is not merely another environmental judgment under Article 8. It reflects the continuation, and perhaps the maturity, of a broader evidentiary development in the Court’s environmental jurisprudence. Once applicants have established a sufficient connection with the environmental harm complained of, the Court increasingly asks whether public authorities discharged their institutional responsibility to identify, evaluate, and address environmental risks before Convention rights were compromised.

Conclusion

The Court has not abandoned the requirement that applicants establish a sufficient connection to environmental harm. Nor has it recognised a free-standing right to environmental protection. Nevertheless, its environmental jurisprudence increasingly reflects a shift in evidentiary focus. Whereas Kyrtatos concentrated on whether applicants could demonstrate a sufficiently direct impact on their own rights, later cases increasingly scrutinise the adequacy of governmental investigations, environmental assessments, scientific evidence, risk management and decision-making processes.

Environmental harm is collective, complex and frequently dependent on information held by public authorities. A judicial review that examines whether authorities properly identified, assessed and managed environmental risks better reflects both the realities of contemporary environmental governance and the State’s institutional responsibility for environmental protection. In that sense, the Court’s shift from proving individual harm towards proportionality review of States’ positive procedural obligations represents a significant evolution in environmental human rights adjudication. The Court’s environmental jurisprudence increasingly reflects a shift from proving harm towards reviewing risk, with judicial scrutiny focusing less on whether individuals can reconstruct complex environmental evidence after the event, but more on whether public authorities fulfilled their responsibility to assess and manage environmental risks before Convention rights were placed at risk.