Scholarly article on topic 'Preserving the Right to a Healthy Environment: European Jurisprudence'

Preserving the Right to a Healthy Environment: European Jurisprudence Academic research paper on "Law"

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Abstract of research paper on Law, author of scientific article — Lucretia Dogaru

Abstract At global and european level as well it is the necessity to recognize a new fundamental human right, that is the right to a healthy and balanced environment, has only gradually developed. From a human rights point of view, the right to a healthy and quality environment is a fundamental right whose nature and characteristics do not change over time passage or as a consequence of circumstance changes.The right to a healthy environment was recognized through an extensive interpretation of the applicability domain of certain rights, expressly provided for in the provisions of the European Convention of Human Rights. Although there are no provisions in the Convention or its additional Protocols, that expressly refer to the right to a healthy and ecologically balanced environment, the European Court of Human Rights has recognized in its case-law and that of the European Commission, that certain types of deteriorations of the environment with serious consequences for the individuals or even the failure of the public authorities to provide information regarding the ecological risks that invidiuals are exposed to can constitute breaches of certain rights protected throught the provisions of the Convention, such as right to life, right to private and family life or right to property. The European Charter of Fundamental Rights provides, concerning the environmental protection, that a high level of environmental protection and of environment quality improvement must be integrated in the EU politics and be guaranteed according to the principle of sustainable development.

Academic research paper on topic "Preserving the Right to a Healthy Environment: European Jurisprudence"

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Procedia - Social and Behavioral Sciences 141 (2014) 1346 - 1352

WCLTA 2013

Preserving The Right To A Healthy Environment: European

Jurisprudence

Lucretia Dogaru a *

0 Petru Maior" University, N. Iorga Str., Targu-Mures, 540088, Romania

Abstract

At global and european level as well it is the necessity to recognize a new fundamental human right, that is the right to a healthy and balanced environment, has only gradually developed. From a human rights point of view, the right to a healthy and quality environment is a fundamental right whose nature and characteristics do not change over time passage or as a consequence of circumstance changes.The right to a healthy environment was recognized through an extensive interpretation of the applicability domain of certain rights, expressly provided for in the provisions of the European Convention of Human Rights. Although there are no provisions in the Convention or its additional Protocols, that expressly refer to the right to a healthy and ecologically balanced environment, the European Court of Human Rights has recognized in its case-law and that of the European Commission, that certain types of deteriorations of the environment with serious consequences for the individuals or even the failure of the public authorities to provide information regarding the ecological risks that invidiuals are exposed to can constitute breaches of certain rights protected throught the provisions of the Convention, such as right to life, right to private and family life or right to property. The European Charter of Fundamental Rights provides, concerning the environmental protection, that a high level of environmental protection and of environment quality improvement must be integrated in the EU politics and be guaranteed according to the principle of sustainable development.

© 2014 The Authors. Published by Elsevier Ltd.This is an open access article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/3.0/).

Selection and peer-review under responsibility of the Organizing Committee of WCLTA 2013. Keywords: European Charter of Fundamental Rights, right to a healthy environment, public authority, lack of action;

1. Aspects concerning the sanctioning of the right to a healthy environment in the european law.

The European Union treaties do not expressly sanction the right to a healthy environment or to the quality of life. In

* Corresponding author: LucretiaDogaru Tel.: +04-074-511-2816 E-mail address: dogaru_lucretia@yahoo.com

1877-0428 © 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/).

Selection and peer-review under responsibility of the Organizing Committee of WCLTA 2013. doi:10.1016/j.sbspro.2014.05.232

order to protect such fundamental rights, the European Court of Justice has frequently inspired from the common constitutional customs of the member states as well as from the international treaties to which these have contributed or are part at. The key treaty in this matter is represented by the European Convention of Human Rights [Stated in case/1973, -Nold v. KG v. Commission, decision of 1974. Similarly, article 6, Title 1 of the Maastricht Treaty establishes the obligation of the European Union to respect the fundamental rights as these are protected by the European Convention of Human Rights and as these derive from the common constitutional customs of member states as general principles of european law].

The European Charter of Fundamental Rights of 2001 provides in article 37, concerning the environmental protection, that a high level of environmental protection and of environment quality improvement must be integrated in the EU politics and be guaranteed according to the principle of sustainable development. However, these provisions were criticized by the European Parliament for they do not grant the individual the right to a clean environment [M. Sukin, D. M. Ong, R. Wight, Sourcebook on Environmental Law, Routledge Cavendish, 2001, p. 851].

Up until the Single European Act there were no express and clear provisions in the texts of the treaties regarding environmental protection, for the main activity of the Community was primarily directed towards the creation of an internal market and when directives were adopted the Preamble of the Rome Treaty as well as article 2 of TCE were invoked as legal grounds. The first acts on environmental protection issued by european institutions were adopted at the end of the 1960' and as a consequence of the European Council from Paris, 1972, succesive action programmes based on ecological problems were drafted [See T. §tefan, B. Andre$an-Grigoriu, Drept comunitar, C.H. Beck, Bucharest, 2007, p. 694].

The enactement activity continued after the first global Conference on environment from Stockholm - 1972 and after the 1992 Rio de Janeiro Conference on environment and development, so much that today, according to the European Commission [European Commission, Towards Sustainability, E Of.J. 138, 1993, p. 11; L. Kramer, Focus on European Environmental Law, Sweet and Maxwell, London, 1997, p. 26] more than 200 legal instruments specific to secondary legislation are in force.

In the european law, general distinct legal norms are dedicated to environmental protection, for example Title XVI (XIX), intitled „Environment Protection", of the Treaty establishing the European Economic Community, signed in Rome at march 25th 1957.

Taking into consideration that in the EU regions there are different situations, the environmental politics place an important focus on a high level of protection and sustainable conservation so that the main objective followed consists of „adopting adequate measure that will ensure the necessary efficiency in fighting polution" [For details D. Mazilu, Dreptul comunitar al mediului, Lumina Lex, Bucharest, 2008, p. 14-15].

The protection and ensurance of a healthy living environment at EU level has been done, as previously mentioned, succesively, not only at legislative level but also through environmental programmes that were draftd to this end such as the Vth Programme of Action for Environment of the European Community and the Programme for the 2001-2010 period entitled „Our Future, Our Choice" - adressing issues as climate changes, biodiversity, environmental protection, health etc [I. M. Aromes, O nouä provocare - dreptul de a träi intr-un ,,ora§ verde", Human Rights Revue, no. 2/2005, p. 55.].

According to the scholarly literature [M. Shaw, International Law, Cambridge University Press, 2003, p. 754], transnational polution, global warming and the nuclear perils that pose a threat to the human life and health represent problems of international dimension and consequently require an international and unitary solution and answer.

In 1972 the Stockholm Declaration was adopted by the Environment Conference and this document contains certain environment principles, amongst which the principle of the right of nations to a healthy life, in harmony with nature can be found. In 1991, the United Nations Conference on Environment and development lead to the adoption of the Rio Declaration that encloses 27 principles on sustainable development and the need of a healthy, quality environment [A. Aust, Handbook of International Law, Cambridge University Press, 2005, p. 330]. At international level, the relationship between human rights and the right to a healthy environment is analysed from different perspective. For some authors [M. Fitzmaurice, The Right of the Child to a Clean Environment, Southern Illinois University Law Journal, no. 23/1999, p. 611-656], there are 3 main orientations: there are no human rights without the right to a healthy environment; the right to a healthy environment is an already existing right; the right to a healthy environment derives from other human rights (such as the right to life, health, information) [D. Shelton, Human Rights, Environmental Rights, and the Right to Environment, Stanford Journal of International Law, no.

28/1991, p. 105].

The recognition of the fact that human rights are connected with environmental protection was underlined in the Report intitled Human Rights and Environment, report that accentuates that the damage caused to the environment has a direct effect on the exercise of other certain rights, as the right to life and right to health [N. Schrijver, F. Weiss, B. Sima, International Law and Sustainable Development: Principles and Practice, Martinus Nijhoff Publisher, 2004, p. 389].

The notion of healthy environment entails not only an unpoluted environment but also a balanced one from an ecological point of view, as established in the Project of Declaration of Principles on Human Rights and Environment, document that recognizes expressly the cultural and spiritual importance of the natural environment. The special connection between the human and nature is acknoledged also in the World Charter on Nature, stating that civilization has its roots in nature and the coexistence in harmony with nature offers to mankind the best opportunities for creativity development. From this pespective, thus, the preservation of nature becomes a condition for individual wellfare and requires a dimension of human rights [Appreciated by M. Déjeant - Pons, M. Pallemaerts, Human rights and the Environment, published by Council of Europe, 2001, p. 20].

2. The recognition of the right to a healthy environment in the European Convention on Human Rights.

At global and european level the necessity to recognize a new fundamental human right, that is the right to a healthy and balanced environment, has only gradually developed.

The phrase „environment" is not mentioned in the provisions of the European Convention on Human Rights and less the concept of a right to a healthy environment. At a first analysis it can be thus stated that the right to a healthy environment is not part of the rights and liberties category that it generates [See C. Bîrsan, Convenfia europeanâ a drepturilor omului. Comentariupe articole, C.H. Beck, Bucharest, 2005, p. 621].

Similarly, the Convention does not directly determine whether an individual has the right to a healthy environment. The first cases concerning environmental issues brought before the Court had as a starting point the idea that the Convention does not provide for the right to environmental protection or environmental quality standards. In most cases, the Convention has been used as a support for numerous requests having as object the ensurance of an acceptable level of environmental quality [S. Wolf, N. Stanley, Wolf and Stanley on Environmental Law, Routledge Cavendish, 2003, p. 481].

The main concern consist of the question: to what extend can individuals invoke this new subjective right to a healthy environment, alongside the state's correlative obligation in front of an international judicial body. What is being followed recently by the Convention bodies is the transformation of the right to a healthy environment in a subjective right protected by the Convention. We mention the fact that the states members to the Council of Europe have not adopted an additional protocol to the Convention that would provide also this right, as proceeded with other fundamental rights (property, education, free elections).

The right to a healthy environment was recognized in the european case-law through „rebound", namely through an extensive interpretation of the applicability domain of certain rights, expressly provided for in the provisions of the Convention [F. Sudre, La protection du droit a l'environment par la Convention européenne des droits de l'homme, Vol. Communaute européenne et environment, colloque, Angers, october 1994, Documentation française, 1997, p. 209]. It derives consequently that any infringement of the right to a healthy environment can not be invoked as such before the European Court for it is not protected in terminis by the Convention.

Analyzing the case-law of the European Court of Human Rights, we can observe that the violation of the right to a healthy environment has been discused in connection with other fundamental rights expressely provided for, such as the right to life, right to private and family life, right to property, right to a fair trial, freedom of speech [For details C. Bîrsan, p. 622].

There is no provision in the Convention or in its additional protocols that refers directly to the right to a healthy and ecologicaly balanced environment. Still, the European Court of Human Rights has recognized in its case-law and that of the European Commission, that certain types of deteriorations of the environment with serious consequences for the individuals or even the failure of the public authorities to provide information regarding the ecological risks that invidiuals are exposed to can constitute breaches of certain rights protected throught the provisions of the Convention, such as right to life (article 2 of the Convention), right to private and family life (article 8 (1) [See M. Déjeant - Pons, M. Pallemaerts, Human rights and the Environment, published by Council of Europe, 2001, p. 15] of the Convention) or right to property (article 1 of the Additional Protocol 1 to the Convention).

3. Few case-law regarding the right to a healthy environment

Alongside the right to life, provided for in article 2, para. (1) of the Convention, the right to private and family life sanctioned in article 8, para. (1) has been most frequently usitated in cases that involve damages to the environment by polution. The evolutive interpretation of the Court concerning these concepts has allowed for these damages produced to the environment to fall within the scope of the notions of „right to life", „private life" and that of „family life".

Therefore, the ECHR case-law [For details see A. Rest, Improved Environmental Protection through an Expanded Concept of Human Rights, Environmental Policy and Law Revue, no. 213/1997, p. 27] offers new means of improving environmental protection by extending the concept of human rights and by creating a link between these two notions that have been separately analysed.

Through its decision in the Lopez-Ostra vs. Spain [Lopez-Ostra v. Spain, no. 16798/90, decision of 9 december 1994] case from 1994, the ECHR has opened a path for the protection of human rights againts environmental polution. This decision of the Court represents the first indirect recognision of the existence of a human right to a healthy and safe environment, by determining the violation of article 8 in the context of polution [A. Kiss, D. Shelton, Manual of European Environmental Law, Cambridge University Press, New York,1993, p. 42]. The decision in this case proved a jurisprudential flexibility as well as the legal desire of seeing that environmental violations be considered as violations of human rights, intensifying thus the legal protection of polution victims and offering them, nonetheless, the possibility of bringing a claim before the ECHR by invoking article 8 in respect to every polution source.

The protection of the right to a healthy environment, through article 8 of the Convention concerning the right to private life, family life and residence has, however, its limitations. Thereby, in a case [] where the plaintiffs argued, on the grounds of this legal text, that the urban constructions in the south-east of a greek island lead to the „distruction of the environment they live in", the european court underlined that the essential element that allows to be determined whether if, in the circumstances of a case, the violations brough to the environment represents a breache of one of the rights protected by the provisions of para. (1) of article 8 consists of the existence of a negative effect induced on the private or family life of a person, the mere general degradation of it not being enough of a cause. Neither article 8 nor any other provision of the Convention does not guarantee, specifically, the general protection of the environment as such, and in this case the plaintiffs did not allege a high enough level of damage in order to be taken into consideration, on the grounds of article 8, para. 2 of the Conventions [Kyrtatos v. Greece, no. 41666/1998, decision of 22nd may 2003].

The Court has decided in numerous cases concerning the respect of private and family life guaranteed by article 8, such as Khatun and others vs. UK [Khatun and others v. UK, decision of 1 st july 1998] from 1998, where the plaintiffs filled a request to the Court due to the disturbances caused by dust polution generated by a construction site from the area. In the case, the Court denieded the requests and accepted the arguments of the other party regarding the public wellfare.

As far as our country is concerned, Romania has been found quilty for the first time by the European Court of Human Rights in 2009 for violating the right to a healthy environment in the Tatar vs. Romania [Tatar v. Romania, no. 6702/01, decision of 27th january 2009], a case concerning the impact on the environment of a cyanide based technology used for the extraction of gold. The plaintiffs invoked the passivity of the national authorities, argueing that these were responsible for not taking the necessary measures in order to protect their health and the environment against the polution resulting from the extraction of gold and the technology used, obligation stated in article 8 of the Convention. Moreover, they argued that there had not been an efficient consultation with the public before the exploitation started and that the technology used posed a threat to their lives and for the environment. With all the evidence invoked by the Government in its defence, the Court decided that in the case the plaintiffs complained not by the existence of an act but more so by an inaction, demonstrating that the society stood at the origin of the ecologic accident from january 2000, as described in an ample manner by the international press and that constituted the object of a report of both the European Union and the United Nations.

The Court considered that although there does not exist a causal probability, the existence of a serious and substantial risk for the health and wellfare of the plaintiffs imposes on the State to fulfill its positive obligation to adopt reasonable and adequate measures capable of protecting the rights regarding the respect of private life and their residence as well as the right to enjoy a healthy and protected environment. The Court, concluding that the romanian authorities have failed in fulfilling their obligation to prequisitely and of a satisfactory manner evaluate the

eventual risks of the activity in question and to take the adequate and capable measures to protect the rights of the plaintiffs in respect of their private life and their residence as well as the right to enjoy a healthy and protected environment. Also, the Court established that the national authorities have failed in fulfilling their obligation to inform the population of the city of Baia-Mare that was in the impossibility of knowing the possible prevention means of a similar accident or the measure imposed in similar cases.

In Branduse vs.Romania case of 2009, the plaintiff was executing an inprisonment punishment in the penitenciary of the city of Arad and invoked a high degree of olfactory polution caused by the garbage tip of the city situated in the proximity of the penitenciary and whose organisation and use was contrary to the environment legislation. Through its decision from the 7th of march 2009, the Court stated that article 8 is applicable in the case even if the plaintiffs health had not been affected taking into consideration the period of time during which he had to endure the polution, the quality of his life being affected in such a manner that it turned into a breach of his private life. The Court determined that the authorities are responsible for not fulfilling their obligations regarding the decisional process, the impact studies, the lack of public information.

Article 8 of the Convention has been linked to the environmental issue in numerous cases involving phonic polution. The Court interpreted the concept of residence in the sense that it includes the right to enjoy the peaceful use of the housing, and article 8 offers this protection agains any intrusions on private life and residence caused by noises or disturbances [See Ursula Kilkelly, A Guide to the implementation of Article 8 of the European Convention on Human Rights, Human Rights Handbooks, No.1, DGHR-Council of Europe, 2001, p. 10.]. We remind in this context: Arrondelle vs.United Kingdom, Powell&Rayner vs.United Kingdom, Baggs vs.United Kingdom [For details, see Dinah Shelton, Human Rights and the Environment:Jurisprudence of Human Rights Bodies, Background Paper, No.2, Joint UNEP-OHCHR Expert Seminar on Human Rights and Environment, 14-16 January, Geneve]. In the Taski and others vs. Turkey case of 2005, the plaintiffs invoked the risk that the nearby gold mine poses for the accumulation of cyanide that can persist for decaded, an thus violating their right to a healthy environment. The Court showed in this case that the severe polution of the environment that can affect the wellbeing of individuals and can prevent them from enjoying their homes so that it negatively impacts their private and family life and thus determining the violation by the state of the provisions of article 8 from the Convention. The same provision is invoked as well in the Giacomelli vs.Italy case of 2006, where the plaintiff complaints about the phonic and olfactive polution caused by a garbage depositary instalation nearby the city of Brescia, constituting a permanent risk to her health and home. The Court decided in the case that a home is the place where private and family life develops and that the individual, based on article 8 has the right to demand respect to its residence, entailing not only the property right but also to enjoy in peace and quiet that space.

The right to environment can be capitalyzed by bringing a complaint based on article 2 of the Convention as well as article 3, as an element of the right to physical integrity and health [See A. J. Bradbook, IUCN Academy of Environmental Law Colloquium, IUCN Academy of Environmental Law, The Law for Sustainable Development, Cambridge University Press, 2005, p. 275].

In the Oneryildiz vs. Turkey [Oneryildiz v. Turkey, no. 48939/99, decision of 18th june 2002] case, the Court delibered considering a complaint regarding the right to a healthy environment based on article 2 of the Convention. The meaningful interferences in the quality of life and the threatening of life caused by the activity of the public authorities can represent the basis of an action according to article 2 of the Convention. We mention the famous Guerra vs. Italy case of 1998 where the Court decided that the Government that held information about the circumstances that created a predictible and imminet peril of a possible damage to the physical health and integrity can constitute a breach of article 2. The plaintiffs proved the fact that the activity carried out by the factory in the case represents a „major accident that puts in peril the environment" [Dissenting opinion of judge Jambrek in the Guerra v. Italy case] by emissions of harmfull gases into the atmosphere. Clearly, the provisions of the Convention spread also in the area of protection of physical integrity

The problem of state responsability as failure of public information appeared in the LCB vs. United Kingdom [LCB v. UK, no. 23413/94, decision of 9th june 1998] case of 1998. The problem of the actions that the state is bound to take in case of perils also constituted the subject of other decisions in other cases, such as the McGinley andEgan vs. United Kingdom [McGinley and Egan v. UK] of 1998. Whenever certain activities entail hidden risks to the health of individuals, the obligation to inform the potential victims includes both drawing up of documents and specific procedures of information acces. The idea of state responsability according to article 2 of the Convention was underlined in the Osman vs. United Kingdom [Osman v UK, no. 28194/95, decision of 28th december 1998] case, where it was shown that any public authority that has information about the existance of a serious health risk

and fails to take preventive measures, leading to damages, will be held accountable for violating article 2 of the European Convention on Human Rights.

The European Court of Human Rights has recognized that environmental degradation can involve those provision of the Convention that protect the property right of a person [See Brennan Van Dyke, Proposal to Introduce The Right to a Healthy Environment Into the European Convention Regime, Virginia Environmental Law Journal, No.13/1994, p. 328].

Article 1 of Additional Protocol 1 to the Convention states „Every natural or legal person is entitled to the peaceful enjoyment of his possessions". Numerous cases have been solved by invoking the violation of this provision, the Court establishing that the damages caused by various formes of polution having as a result a depreciation in the value of the good object of the property right.

In the Oneryildiz vs. Turkey case of 2004, the Court pronounced on a complaint regarding the right to a healthy environment, based of article 2 of the Convention and article 1 of Additional Protocol 1 to the Convention regarding property [Oneryildiz v. Turkey, no. 48939/99, decision of 18th june 2002].

4. Final conclusions.

From a human rights point of view, the right to a healthy and quality environment is a fundamental right whose nature and characteristics do not change over time passage or as a consequence of circumstance changes. The fundamental human rights are inalienable and this inalienability applies also in the case of the right to a healthy environment.

Alongside the right to life, regulated in article 2 (1) of the Convention, the right to private and family life provided for in article 8 (1) has been most frequently used in cases involving damages to the environment caused by polution. The evolutive interpretation of the Court concerning these concepts has allowed for these damages produced to the environment to fall within the scope of the notions of „right to life", „private life" and that of „family life". Despite the progress made by the Court in respect to the case-law regarding the environment and the fundamental human rights the problem of direct acces to the european justice is still one of the time being. Therefore, an individual does not have the possibility to bring a claim before the ECHR until it exhausts all internal means: charges brought before all the competent courts in the state of origin. This period of time and the complex judicial system has considerably limited the protection of the right to a healthy environment.

References

M. Sukin, D. M. Ong, R. Wight (2001), Sourcebook of Environmental Law (p. 851), Routledge Cavendish.

M. Shaw (2003), International Law (p. 754), Cambridge University Press.

A. Aust (2005), Handbook of International Law (p.330), Cambridge University Press.

5. Wolf, N. Stanley (2003), Wolf and Stanley on Environmental Law (p. 481), Routledge Cavendish.

A. Kiss, D. Shelton (1993), Manual of European Environmental Law (p.42), Cambridge University Press, New York.

F. Sudre (1994), La protection du droit a l'environment par la Convention européenne des droits de l'homme (p.

209), Vol. Communaute européenne et environment, colloque, Angers. M. Déjeant - Pons, M. Pallemaerts (2001), Human rights and the Environment (p.20), published by Council of Europe.

C. Bîrsan (2005), Conven^ia europeanâ a drepturilor omului. Comentariu pe articole (p.621), C.H. Beck, Bucharest. T. Çtefan, B. Andre^an-Grigoriu (2007), Drept comunitar (p.694), C.H. Beck, Bucharest.

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D. Mazilu (2008), Dreptul comunitar al mediului (p. 14-15), Lumina Lex, Bucharest. European Commission (1993), Towards Sustainability (p.11), E Of.J. 138.

L. Kramer (1997), Focus on European Environmental Law (9.26), Sweet and Maxwell, London. I. M. Aromes, O noua provocare - dreptul de a trâi într-un „ora§ verde" ( p.55), Human Rights Revue, no. 2/2005. M. Fitzmaurice, The Right of the Child to a Clean Environment (p. 611 - 656), Southern Illinois University Law Journal, no. 23/1999.

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A. Rest, Improved Environmental Protection through an Expanded Concept of Human Rights (p.27), Environmental Policy and Law Revue, no. 213/1997.

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Ursula Kilkelly (2001), A Guide to the implementation of Article 8 of the European Convention on Human Rights (p.10), Human Rights Handbooks, No.1, DGHR-Council of Europe.

ECHR Case-law:

Nold v. KG v. Commission, decision of 1974.

Kyrtatos v. Greece, no. 41666/1998, decision of 22nd may 2003.

Khatun and others v. UK, decision of 1st july 1998.

Lopez-Ostra v. Spain, no. 16798/90, decision of 9 december 1994.

LCB v. UK, no. 23413/94, decision of 9th june 1998.

McGinley and Egan v. UK, above cited.

Osman v UK, no. 28194/95, decision of 28th december 1998.

Oneryildiz v. Turkey, no. 48939/99, decision of 18th june 2002.

Tatar v. Romania, no. 6702/01, decision of 27th january 2009.