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Inhabitant of Ostrava suffering from lung cancer sues the Ministry of the Environment for air pollution

Yesterday, on 5 November 2018, a lawsuit against the Ministry of the Environment (MoE) on liability for health damages and death of her husband from lung cancer was filed with the District Court in Prague 10. The plaintiff seeks damages for lung cancer, which she has managed to cure, but her husband has succumbed to the illness in October. The cause of the disease is seen in the long-term excessive concentration of air pollutants at their place of residence in Ostrava-Radvanice and in the fact that the MoE failed to provide effective measures to decrease the pollution to legal limit values.

The plaintiff and her husband lived their whole life in Ostrava-Radvanice and Bartovice, where the legal limit values of air pollution have been exceeded for a long period of time. This state of affairs is unlawful in itself. In addition, in such a situation the Ministry of the Environment has the obligation to do everything possible to reduce the pollution as soon as possible to the legal level. The Ministry has not fulfilled this obligation. The purpose of the action is to have the ministry take responsibility for the consequences of this failure, which results in adverse effects on the health of the people living in the polluted area" said Pavel Černý (Frank Bold Advokáti), the plaintiff’s attorney.

Both spouses lived an active life and did not smoke, yet in 2016 and 2017 lung cancer broke out. The plaintiff has managed to cure the disease, but her husband succumbed last month. No surgery or other treatment was possible in his case. The cause of their illness cannot be unambiguously proved, but statistical probability of its occurrence can be calculated. The action is based on the statements of doctors and epidemiologists, as well as on the judgments of the European Court of Human Rights in two similar cases, where the court ruled in favour of the plaintiff. [1]

Radvanice and Bartovice show the highest concentration of carcinogenic benzo(a)pyrene and one of the highest concentrations of fine dust particles in the Czech Republic. Since 2005, the MoE has had a legal obligation [2] to take effective measures against this pollution. Both the Ministry of the Environment and the Moravian-Silesian Region have adopted a number of strategic documents [3], aiming to improve the state of the air, nevertheless the pollution has not been reduced to a legal level. [4]

„Most of the plans for cleaner air include only a vague description of the situation or non-specific measures. This was also the case of Ostrava’s Air Quality Plan, which was quashed last year by the Supreme Administrative Court for its inefficiency. Because national authorities are not implementing measures to decrease air pollution, people’s health is being damaged," comments the situation Petra Marie Andrášik, lawyer at Frank Bold specialized in environmental law.

Footnotes:

[1] Cases Fadeyeva v. Russia (2005, complaint n. 55723/00), López Ostra v. Spain (1994, complaint n. 16798/90)

[2] The obligation originally stemmed from Section 7 (11) of Act No. 86/2002 Coll., On Air Protection. Now, Article 9 of Act No. 201/2012 Coll., on air protection, sets the obligation to issue Air Quality Improvement Plans. Also, Directive 2008/50/EC, on ambient air quality and cleaner air for Europe, requires Member States to adopt so-called Air Quality Plans if "the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case". As regards benzo(a)pyrene, Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air requires from the Member States in Article 3 to take all necessary measures to ensure that in zones and agglomerations in which the benzo(a)pyrene concentrations laid down in Annex 1 to the Directive are exceeded, targeted values will be achieved.

[3] These include the following documents: "The Regional Integrated Program for the Improvement of Air Quality in the Moravian-Silesian Region", "The Government Report on the Methods of Solving the Inappropriate Environmental Situation in the Moravian-Silesian Region", "Action Plan of the Ministry of the Environment for the Moravian-Silesian Region of April 4, 2011"," Joint Declaration on Measures to Improve Air Quality in the Moravian-Silesian Region ", signed by representatives of the Ministry of the Environment and the Moravian-Silesian Region on June 3, 2011

[4] State of exceedance of limit values for this year: http://portal.chmi.cz/files/portal/docs/uoco/web_generator/exceed/summary/others_2018_CZ.html

 

  

The Right to Clean Air project is funded within the context of the European Commission's LIFE Programme.

 

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Kristína Šabová

Lawyer, Head of the Responsible Energy Section