Published On: Mon, Jan 7th, 2013

Court didn’t protect citizens adequately

WILLEMSTAD – Institution Schoon Milieu on Curaçao (Clean Environment Curacao) (Smoc) received support from the Dutch professor for public administration L. Rogier in the final verdict in the Isla-case of May last year. This verdict ruled that the government needn't observe the emission standards. In the Caribbean Jurists’ Magazine, Rogier stated this verdict is ‘disappointing’ – both judicially and socially. The court wasn't particularly active as regards investigation and didn't consider the citizens. The court made very reticent use of its freedom of interpretation, motivated extremely summarily and left many questions unanswered. “Unlike the first judge, who had considered the interests that Smoc promotes. These verdicts were motivated in detail.”

After seven years of legal proceedings Smoc stood before the administrative judge almost empty-handed. The government of Curaçao is only to decide once again on the attapulgus clay and the oil spills. With a judicial-technical consideration the court left the actual situation out of the picture: the emission standards and the fine dust. According to the professor, as administrative judge the court had chosen not to contribute toward solving a huge social problem. “This is not positive as regards the esteem of the court and the reputation of the public administration in safeguarding the rights for the citizens.”

Hardy & Maile

The final verdict also quoted the judgment of the European court for the Human Rights of February 14th 2012 (Hardy & Maile versus the United Kingdom). The latter mentions that the national authorities have ample freedom of judgment but that there must be a balance between the interests served by non-observance on the one hand and observance on the other hand.

If a legal regulation (nuisance permit, (editorial office)) is contravened the government must exercise sufficient supervision. Curaçao still lacks a (adequate) Environment Department. Measuring data from 2011 meanwhile seem to point out that both the annual average and the daily average emission standard sulfur dioxide and the standards for fine dust aren’t exceeded. However, in 2012 the daily standard was exceeded three times instead of one time, according to the professor.

Human Rights

Article 8 of the European Treaty to safeguard Human Rights (EHRM) mentions that the right to a private and family life must be protected. The Isla violating the emission standards means the former contravened this article. However, according to the court, as violation of the nuisance permit wasn’t established one cannot rule in advance that article 8 of the EHRM was contravened. “That is a strained interpretation”, Rogier stated. The EHRM points out that a careful consideration of interests is required in environmental cases. According to the professor, one cannot compare the Hardy & Maile case with the Isla-case. The Hardy & Maile case regarded a permit for two terminals with liquid gas in the British harbor city Milford Haven and if the prevailing legislation there was sufficient.

Only the EHRM can judge if article 8 of the EHRM was contravened in this Isla-case. “At the time this comment was written it’s wasn’t confirmed whether a complaint on this issue would be lodged with the EHRM.”

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