Information Note on the Court’s case-law No. 176
July 2014
Brincat and Others v. Malta - 60908/11, 62110/11, 62129/11 et al.
Judgment 24.7.2014 [Section V]
Article 2
Positive obligations
Death as a result of prolonged exposure to asbestos in Government run ship yard: violation
Article 8
Positive obligations
Damage to health as a result of prolonged exposure to asbestos in Government run ship yard: violation
Article 35
Alleged failure to exhaust civil remedy affording no compensation in respect of non-pecuniary damage: preliminary objection dismissed
Facts – The applicants were employees (or their relatives) of a Government-run ship repair yard from 1968 to 2003. They allege that they (or their relatives) were constantly and intensively exposed to asbestos particles during their employment repairing ship machinery insulated with asbestos. This resulted in damage to their health and in one case the death of one of the workers (Mr Attard) from asbestos related cancer.
In May 2009 the applicants brought constitutional redress proceedings alleging that the State had failed to protect them (or their relatives) from unnecessary risks to their health and they sought compensation. Their applications were ultimately dismissed in April 2011 for non-exhaustion of domestic remedies, the Constitutional Court considering that constitutional redress proceedings could only be brought after the applicants had brought civil proceedings for damages arising out of tort or contractual liability.
Law 
(a)  Admissibility – Article 35 § 1 (exhaustion of domestic remedies): The Government had submitted that the applicants had not exhausted domestic remedies as they had failed to institute an ordinary civil action in tort, opting instead to attempt constitutional redress proceedings. Rejecting that submission, the Court re-affirmed that  in the event of a breach of Articles 2 and 3 of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies. The same had to be true of the applicants’ complaint under Article 8 which in this specific case was closely connected to those provisions. The Court accordingly rejected the Government’s argument that there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases. It considered that the domestic courts’ and Government’s reliance on the Court’s judgment in Zavoloka v. Latvia* was based on a very broad reading of that case. In Zavoloka the Court held solely that there was no right to non-pecuniary damage in the specific circumstances of that case, where the applicant’s daughter had died as a result of a traffic accident due to the negligence of a third party and where no responsibility, direct or indirect, could be attributed to the authorities. It therefore had to be distinguished from the applicants’ case.
Noting that under Maltese law the constitutional remedy, unlike a civil action in tort, was capable, in theory at least, of affording appropriate compensatory redress in respect of both pecuniary and non-pecuniary damage, and that there was no pre-existing mandatory legal requirement to bring an action in tort before using the constitutional remedy, the Court considered that the applicants could not be blamed for having pursued one remedy instead of two.
Conclusion: preliminary objection dismissed (unanimously).
(b)  Merits – Articles 2 and 8: The Court reiterated that the State had a positive duty to take reasonable and appropriate measures to secure applicants’ rights under Articles 2 and 8 of the Convention. In the context of dangerous activities, the scope of the positive obligations under Articles 2 and 8 of the Convention largely overlapped. Indeed, the positive obligation under Article 8 required the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2.
The Court found that the Maltese Government had known or ought to have known of the dangers arising from exposure to asbestos at least from the early 1970s, given the domestic context as well as scientific and medical opinion accessible to the Government at the time. The applicants had been left without any adequate safeguards against the dangers of asbestos, either in the form of protection or information about risks, until the early 2000s by which time they had left employment at the ship repair yard. Legislation which had been passed in 1987 had not adequately regulated asbestos related activity or provide any practical measures to protect employees whose lives may have been endangered. Lastly, no adequate information was in fact provided or made accessible to the applicants during the relevant period of their careers at the shipyard.
The Court concluded that, in view of the seriousness of the threat posed by asbestos, and despite the State’s margin of appreciation as to the choice of means, the Government had failed to satisfy their positive obligations, to legislate or take other practical measures under Articles 2 and 8. 
Conclusion: violation of Article 2 (substantive aspect) in respect of Mr Attard (unanimously); violation of Article 8 in respect of the other applicants (unanimously).
Article 41: EUR 30,000 in respect of the claim for non-pecuniary damage under Article 2; awards ranging from EUR 1,000 to EUR 12,000 in respect of the claims for non-pecuniary damage under Article 8; claims in respect pecuniary damage dismissed.
(See also Öneryıldız v. Turkey [GC], 48939/99, 30 November 2004, Information Note 69; Roche v. the United Kingdom [GC], 32555/96, 19 October 2005, Information Note 79; Budayeva and Others v. Russia, 15339/02, 20 March 2008, Information Note 106; Kolyadenko and Others v. Russia, 17423/05 et al., 28 February 2012; Vilnes and Others v. Norway, 52806/09 and 22703/10, 5 December 2013, Information Note 169; and O’Keeffe v. Ireland [GC], 35810/09, 28 January 2014, Information Note 170)
*  Zavoloka v. Latvia, 58447/00, 7 July 2009, Information Note 121.

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