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European Court of Human Rights throws out Portuguese climate case

This week, the European Court of Human Rights (ECHR) dismissed a case brought by six Portuguese teenagers from areas in Portugal ravaged by wildfires and heatwaves.

The case – filed in September 2020 against the 27 EU member states as well Britain, Switzerland, Norway, Russia and Turkey – was the largest-ever climate case to be heard by the European Court of Human Rights (ECHR) in Strasbourg.

With the support of the British-based Global Legal Action Network (GLAN), the Portuguese applicants, aged between 11 and 24, sought a legally-binding decision that would force states to act.

Applicants argued that climate change threatens their rights including to life, physical and mental wellbeing.

The judges found that the six climants in Duarte Agostinho and Others v Portugal and 32 Others had not used all the legal avenues available to them in their home country and had not exhausted domestic remedies. No jurisdiction could be established for the other states in the case.

The judgment rejected the argument that the claimants could not take action at home. Portuguese domestic law 'provides for a non-contractual civil liability action against the state by which compensation could be obtained for harm or damages caused by unlawful action or inaction by the state,' they ruled. ‘The Portuguese legal system also provides for administrative remedies whereby administrative courts could be asked to compel the administration to adopt measures regarding, inter alia, the environment and quality of life.'

While no case specifically concerning climate change has so far been decided, 'environmental litigation is now a reality of the domestic legal system', the judges ruled. 

Judgments in two other climate change cases were also handed down.

One, brought by a former French mayor, was also dismissed. The court found the former resident and mayor of Grande-Synthe did not have victim status nor a sufficiently relevant link with the commune, in Calais, France.

In the Swiss case, four women and a Swiss association Verein KlimaSeniorinnen Schweiz claimed Swiss authorities were not taking sufficient action, despite their duties under the ECHR, to mitigate the effects of climate change. Though the individual complaints were inadmissible, the court found a violation of Article 8 and that Switzerland had failed to comply with its positive obligations under the convention concerning climate change.

Swiss authorities had not acted in time or in an appropriate way to develop and implement relevant legislation and measures to mitigate the effects of climate change, the judges ruled. They also found violation of Article 6 (access to justice) as the association’s legal action had been rejected on ‘inadequate and insufficient considerations’ both by the administrative authority and then by the national courts at two levels of jurisdiction.

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