In the case of Moreno Gómez
v. Spain,
The European Court of Human Rights (Fourth Section),
sitting as a Chamber composed of:
Sir Nicolas BRATZA, President,
Mr M. PELLONPÄÄ,
Mr J. CASADEVALL,
Mr S. PAVLOVSCHI,
Mr J. BORREGO BORREGO,
Mrs E. FURA-SANDSTRÖM,
Ms L. MIJOVIC, judges,
and Mr M. O'BOYLE, Section Registrar,
Having deliberated in private on 29
June and 26 October 2004,
Delivers the following judgment, which was adopted on
the last mentioned date:
PROCEDURE
1. The case originated
in an application (no. 4143/02) against the Kingdom
of Spain lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Spanish
national, Ms Pilar Moreno Gómez (“the applicant”),
on 22 November 2001.
2. The applicant was represented by
Mr Andrés Morey Navarro, of the Valencia Bar.
The Spanish Government (“the Government”)
were represented by Mr Ignacio Blasco Lozano, Agent
of the Government and Head of the Legal Department of
the Human-Rights Office at the Ministry of Justice.
3. The applicant alleged a breach of
her right to respect for her home, contrary to Article
8 of the Convention.
4. The application was allocated to
the Fourth Section of the Court (Rule 52 § 1 of
the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule
26 § 1 of the Rules of Court.
5. By a decision of 29 June 2004 the
Chamber declared the application admissible.
6. The applicant and the Government
each filed observations on the merits (Rule 59 §
1).
7. On 14 September 2004 the applicant,
but not the Government, lodged a written reply to the
Government's observations. She also set out her claim
for just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was
born in 1948 and lives in Valencia.
A. Background to the case
9. The applicant has lived in a flat
in a residential quarter of Valencia since 1970.
10. Since 1974 the Valencia City Council
has allowed licensed premises such as bars, pubs and
discotheques to open in the vicinity of her home, making
it impossible for people living in the area to sleep.
11. Local residents first complained
about vandalism and noise in the locality before 1980.
12. In view of the problems caused
by the noise, the Valencia City Council resolved on
22 December 1983 not to permit any more night clubs
to open in the area. However, the resolution was never
implemented and new licences were granted.
13. In 1993 the City Council commissioned
a report by an expert. The expert found that the noise
levels were unacceptable and exceeded permitted levels.
At 3.35 a.m. on Saturdays they were in excess of 100
dBA Leq (decibels), ranging from 101 to 115.9 dBA Leq.
14. In a report of 31 January 1995
the police informed the Valencia City Council that nightclubs
and discotheques in the sector in which the applicant
lived did not systematically close on time. They said
that they were able to confirm that the local residents'
complaints were founded.
15. On 28 June 1996 the City Council
approved a new bylaw on noise and vibrations, which
was published on 23 July 1996 in the Official Gazette
of Valencia province. Article 8 of the bylaw lays down
that in a family residential area (such as the one in
which the applicant lives) external noise levels were
not to exceed 45 dBA Leq between 10 p.m. and 8 a.m.
Article 30 of the bylaw defines “acoustically
saturated zones” as areas in which the large number
of establishments, activity of the people frequenting
them and passing traffic expose local residents to high
noise levels and cause them serious disturbance.
16. Lastly, the bylaw specified the
conditions that had to be satisfied for an area to be
designated an “acoustically saturated zone”
(zona acústicamente saturada) and the consequences
of designation, which included a ban on new activities
(such as nightclubs and discotheques) that led to acoustic
saturation.
17. Following a resolution of the Valencia
City Council sitting in plenary session on 27 December
1996, which was published in the Official Gazette of
the Valencia province on 27 January 1997, the area in
which the applicant lived was designated an acoustically
saturated zone.
18. However, on 30 January 1997 the
City Council granted a licence for a discotheque to
be opened in the building she lived in. The licence
was subsequently declared invalid by a judgment of the
Supreme Court of 17 October 2001.
19. In order to determine whether the
area should be designated an acoustically saturated
zone, the City Council took various sound-level readings
to monitor acoustic pollution there. In each of its
reports the City Council laboratory indicated that the
noise levels exceeded those permitted by the bylaw.
B. Court proceedings
20. The applicant was
exasperated by the situation, which prevented her from
sleeping and resting and caused her insomnia and serious
health problems. On 21 August 1997 she lodged a preliminary
claim with the Valencia City Council in which she relied
on Article 15 (right to life and to physical integrity)
and Article 18 § 2 (right to the privacy and inviolability
of the home). She sought 3,907 euros (650,000 pesetas)
for the damage she had sustained and the cost of installing
double glazing.
21. Having received no reply from the
authorities and in accordance with the Fundamental Rights
(Protection) Act (Law no. 62/1978), the applicant lodged
an application for judicial review with the Valencia
High Court of Justice on 25 November 1997, alleging
a violation of Articles 15 and 18 § 2 of the Constitution.
22. On 2 October 1997 the Valencia
City Council lodged its written observations. It submitted
that the application was premature and should be declared
inadmissible, as the Council could still find a solution.
This preliminary objection was dismissed in a decision
of 27 October 1997.
23. On 11 December 1997 the representative
of state council's office argued that the court should
find in favour of the applicant. He considered that
there had been a violation of Articles 15 and 18 §
2 of the Constitution and that the applicant's claim
for damages was justified.
24. In a judgment of 21 July 1998,
delivered after an adversarial hearing in public, the
Valencia High Court of Justice dismissed the application
for judicial review. It found that the readings had
been taken in the entrance hall to the building, not
in the applicant's flat, and could not entail a violation
of Articles 15 and 18 § 2 of the Constitution;
it also noted that the medical expert's report stated
only that the applicant had been receiving treatment
for insomnia for several years, without indicating the
length of or reason for such treatment.
25. On 9 October 1998 the applicant
lodged an amparo appeal with the Constitutional Court.
Relying on Articles 14 (equality) and 24 (right to a
fair hearing) of the Constitution, she complained that
the High Court of Justice had not given sufficient reasons
in its judgment or assessed the evidence. She also complained
under Articles 15 and 18 § 2 of the Constitution
of a violation of her rights to life, physical and mental
integrity, privacy and the inviolability of the home.
26. In a decision of 29 May 2000, the
Constitutional Court declared the amparo appeal admissible
and invited the applicant, the representative of state
council's office and the Valencia City Council to submit
their observations. On the same day, it summoned the
parties to a hearing on the merits on 16 May 2001.
27. At the hearing on 16 May 2001,
which was attended by all the parties, the applicant
repeated her factual and legal submissions, stressing
that there had been a violation of her fundamental rights.
28. The Valencia City Council raised
a number of preliminary objections. It further submitted
that the appeal was confined to the decision of the
Valencia High Court of Justice. With regard to the alleged
violation of Articles 15 and 18 § 2 of the Constitution,
it alleged that there was no evidence of noise levels
inside the applicant's home and that the authority concerned
should not bear sole responsibility for the noise to
which the applicant had allegedly been exposed, as it
had very limited means at its disposal to combat it.
29. The representative of state council's
office agreed with the applicant that there had been
a violation of Articles 15 and 18 § 2 of the Constitution.
He argued that the amparo appeal should be regarded
as hybrid, since it both accused the Valencia City Council
of failing to defend the fundamental rights set out
in Articles 15 and 18 of the Constitution and challenged
the Valencia High Court of Justice's decision, alleging
a violation of Articles 14 and 24 of the Constitution
also.
30. As regards the violation of Articles
15 and 18 § 2 of the Constitution, the representative
of state council's office said that, in the light of
the judgments of the European Court of Human Rights,
in particular in the case of López Ostra v. Spain,
there had been a violation of the applicant's right
to the inviolability of her home, as her home environment
had been rendered unfit for ordinary everyday living.
On the basis of the Court's case-law, he sought a broader
definition of the constitutional concept of the “home”.
31. As regards noise levels inside
the applicant's home, the representative of state council's
office considered that the burden of proof had been
reversed, as it was clear in the instant case that officials
from the City Council had confirmed on a number of occasions
that the maximum permitted levels were being exceeded.
Consequently, he did not consider it necessary to require
such proof from the applicant.
32. In a judgment of 29 May 2001, which
was served on 31 May 2001, the Constitutional Court
dismissed the appeal after also dismissing the Valencia
City Council's preliminary objections. It ruled that
the amparo appeal was hybrid in nature, that is to say
that it alleged a violation of Articles 15 and 18 §
2 of the Constitution by the Valencia City Council and
a breach of Articles 14 and 24 of the Constitution by
the Valencia High Court of Justice.
33. As regards the alleged violation
of Articles 14 and 24 of the Constitution, the Constitutional
Court began by noting that it was not entitled to substitute
the High Court's assessment of the evidence with its
own. As to the applicant's allegation that the judgment
did not contain sufficient reasons, it noted that the
High Court's decision could not be regarded as arbitrary
or unreasonable. It further observed that the applicant
had not identified the decisions on which she relied
in alleging discrimination. Thus, there was no evidence
of any violation of Articles 14 and 24 of the Constitution.
34. With regard to the alleged violation
of Articles 15 (right to life and physical integrity)
and 18 § 2 (right to privacy and to the inviolability
of the home) of the Constitution, the Constitutional
Court referred to the decisions in which the European
Court of Human Rights had held that, in cases of exceptional
gravity, repeated damage to the environment could infringe
the right to respect for private and family life under
Article 8 § 1 of the Convention, even if did not
endanger health. The Constitutional Court held, however:
“... there may only be a violation of Article
15 of the Constitution if the level of acoustic saturation
to which a person is exposed as a result of an act or
omission of a public authority causes serious and immediate
damage to his or her health.”
35. The Constitutional Court found
that that test had not been satisfied in the case before
it and pointed out:
“... even though the appellant maintains that
the noise levels to which she was exposed turned her
into an insomniac, the only evidence she has adduced
is a certificate stating that she was admitted to hospital
and saw a doctor, without any indication of the period
for which she had been suffering from lack of sleep
or the cause thereof. ...”
36. The Constitutional Court found
that the applicant had not established a direct link
between the noise and the damage she had sustained.
37. As to the allegation of a violation
of Article 18 of the Constitution, the Constitutional
Court further found that she had not established the
existence of a nuisance in her home that amounted to
a violation of the constitutional provision. It stated:
“... the appellant has confined herself to making
a general complaint by stating that the origin of the
noise was diffuse and not restricted to a single source
of production, and that the acoustic saturation resulted
from a combination of noises. ... on the contrary, her
entire case is based on a few sound-level readings taken
inside her home which gave disparate results ... and
do not establish that there has been a violation of
the right relied on. ...”
38. By way of conclusion, the Constitutional
Court dismissed the amparo appeal on the following ground:
“Consequently, as regards the alleged violation
of the rights relied on the amparo appeal must be dismissed,
as the appellant has failed to prove the existence of
a genuine effective breach of fundamental rights attributable
to the Valencia City Council.”
39. That judgment was delivered by
the Constitutional Court sitting as a full court. However,
two judges expressed concurring opinions. The first
said that the judgment restricted the free development
of the personality at home. He considered that the conditions
that had to be satisfied for there to be a violation
of fundamental rights in the case under consideration
were unreasonable and he defended the need to speak
of a triple layer of constitutional protection, ranging
from the right to physical and moral integrity (Article
15 of the Constitution) to an environment that was suitable
for personal development (Article 45 § 1 of the
Constitution), via the right to privacy in the home
(Article 18 § 2 of the Constitution).
40. The second judge pointed out in
his concurring opinion that there was a preliminary
problem that had not been adequately dealt with, namely
the degree to which the relevant authority was required
to provide the requested protection. Determining the
extent of that obligation was a prerequisite to establishing
whether or not there existed a causal link between the
authority's failure to act and the alleged violation.
The authorities were obliged to exercise their power
when the breach of the fundamental rights attained a
certain level of gravity.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. The Constitution
41. The relevant provisions of the
Constitution read as follows:
Article 10 § 2
“The provisions relating to the fundamental rights
and freedoms recognised under the Constitution shall
be construed in accordance with the Universal Declaration
of Human Rights and the international treaties and agreements
which Spain has ratified in that sphere.”
Article 15
“Everyone shall have the right to life and to
physical and mental integrity. ...”
Article 18 § 2
“The home shall be inviolable. ...”
Article 45 § 1
“Everyone shall have the right to enjoy an environment
suitable for personal development and the duty to preserve
it.
...”
Article 53 § 2
“Every citizen shall be entitled to seek protection
of the freedoms and rights recognised in Article 14
and in the first section of Chapter II by bringing an
action in the ordinary courts under a procedure designed
to ensure priority and expedition and, in appropriate
cases, by an appeal (recurso de amparo) to the Constitutional
Court...”
B. The Fundamental Rights (Protection) Act
(Law no. 62/1978)
42. Section 6, which was repealed by
the Administrative Courts Act of 13 July 1998 (Law no.
29/1998), read as follows:
“... [a]n application for judicial review may
be brought in accordance with the procedural rules set
out in this section in respect of decisions of the public
authorities that are subject to administrative law and
liable to affect the exercise of the fundamental rights
of the person...”
C. The Constitutional Court Act
43. The relevant part of Article 44
of the Constitutional Court Act reads:
“1. An amparo appeal for violations of rights
and guarantees amenable to constitutional protection
... will lie only if:
...
(c) the party relying on the alleged violation formally
pleads it in the relevant proceedings after becoming
aware of its occurrence.”
D. The bylaw on noise and vibrations issued by the Valencia
City Council on 28 June 1986
44. The relevant provisions of the
bylaw provide:
Article 8 § 1
“Permitted external noise-reception levels shall
be determined by reference to the main user of each
of the areas marked on the city development plan and
shall not exceed:
Maximum reception levels:
...
Multiple family residence:
Daytime (from 8 a.m. to 10 p.m.): 55 dB (A)
Night-time (from 10 p.m. to 8 a.m.): 45 dB (A)
...”
Article 30
“1. Zones that are acoustically saturated by additional
causes are areas or places in which the large number
of establishments, activity of the people frequenting
them and passing traffic expose local residents to high
noise levels and cause them serious disturbance.
2. An area may be designated an acoustically saturated
zone (ASZ) if, though individual activities are compliant
with the levels set out in this bylaw, the level of
disturbance due to external noise as referred to in
Article 8 is exceeded twice-weekly in consecutive weeks,
or three times intermittently over a period of 35 days,
and exceeds 20 dB (A).”
E. The expert report
45. The relevant parts of the report
drawn up by Mr X, a professor of applied physics, on
the sound-level readings taken in the district in which
the applicant lived in Valencia read as follows:
“The results obtained from measurements taken
by the Valencia University acoustic laboratory over
a period of several years in the said area and measurements
taken by other bodies showed that ambient noise levels
in this area, in particular at nights and weekends (especially
between 1 a.m. and 3 a.m.) are extremely high. At these
periods in the area concerned the hourly equivalent
sound levels (Leq) frequently exceed 70 dB (A) and the
maximum corresponding levels exceed 80 dB (A).
As a result, we can say that noise levels in dwellings
in this urban area are intolerably high at night-time
and, consequently, detrimental to the health and well-being
of the residents.
This conclusion is based on the fact that, even with
the windows closed (including in the height of summer),
indoor noise levels are very high. It should be noted
that under the current regulations (building norm NBE-CA-88)
the minimum insulation requirement for the frontage
of buildings is 30 dB (A). In practice, that figure
is never attained and is generally in the region of
15 to 20 dB (A).
Consequently, in these circumstances, night-time noise
levels inside the dwellings, for example in bedrooms
overlooking the street, can be estimated at in the region
of 50 dB (A), with maximum levels reaching approximately
60 dB (A). We would point out that this is a general
estimate and is made without the need for specific measurements
to be taken inside the dwellings concerned.
We should explain here that the difference between 50
or 60 dB (A) and 30 dB (A) is enormous. Thus, an increase
from 30 to 33 dB (A) does not represent a slight increase
in noise (as a layman might think) but the doubling
in intensity of the corresponding noise. An informed
reading of this report is only possible if the meaning
of the “decibel” unit used here is correctly
understood.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
46. The applicant complained of noise
and of being disturbed at night by nightclubs near her
home. She alleged that the Spanish authorities were
responsible and that the resulting onslaught of sound
constituted a violation of her right to respect for
her home, as guaranteed by Article 8, which reads as
follows:
Article 8
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except as such as is
in accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the well-being of the country, for the protection
of health or morals, or for the protection of the rights
and freedoms of others.”
A. Submissions of the parties
1. The applicant
47. The applicant complained of inaction
on the part of the local authorities in Valencia, in
particular the City Council, which had failed to put
a stop to the night-time disturbances. She said that
the Government had not put forward any explanation for
the failure to act.
48. Firstly, although the Valencia
City Council was not the direct source of the noise
pollution, it had, in the applicant's submission, caused
the acoustic saturation by issuing an unlimited number
of licences, without taking measures to comply with
the law. The applicant referred to the principles that
had been established in the case of Lopez Ostra v. Spain
(judgment of 9 December 1994, Series A no. 303 C, §
51), which concerned the effects of pollution outside
the home but also the frame of reference for fundamental
rights, in particular the home. She added that the municipal
bylaw required measurements of noise emissions from
external sources to be taken at the front of the building
in which the dwelling was located.
49. In her additional observations
of 14 September 2004, the applicant observed that the
level of the night-time disturbance (from 10 p.m. to
6. 30 p.m.) caused by more than 127 nightclubs infringed
the right to health, as indeed was confirmed by the
World Health Organisation's guidelines. Unlike the position
in the case of Hatton and Others v. the United Kingdom
[GC] (no. 36022/97, ECHR 2003-VIII), her home was neither
within nor adjacent to an area of vital importance,
such as an area relevant to a strategic transport or
communications infrastructure. She stressed that her
home was in an urban area, specifically, a residential
one.
2. The Government
50. The Government submitted that the
noise to which the applicant referred came from private
activities and that, consequently, there had not been
direct interference by the public authority in the right
to the intimacy of the home and to respect for private
and family life. They added that the Valencia City Council
had taken various steps in order to solve the problem
of acoustic pollution in the area in which the applicant
lived. These included preparing and approving a comprehensive
and stringent municipal bylaw, designating acoustically
saturated zones and a policy of imposing penalties,
withdrawing licences and prosecuting offenders.
51. Even assuming that the applicant
had been exposed from time to time to acoustic pollution
and had been able to prove the effect of the noise inside
her home, the relevant authorities had already taken
sufficient measures to remedy the situation.
52. In addition, the courts had noted
in their decisions that the applicant had failed to
establish that she had been exposed to noise inside
her home emanating from night-time disturbances and
that, in any event, Article 8 protection was restricted
to the home and could not apply when the subject matter
of the complaint was a nuisance outside the home. The
Government accordingly maintained that no interference
with the applicant's right to respect for her home could
be found.
B. The Court's assessment
1. General principles
53. Article 8 of the Convention protects
the individual's right to respect for his private and
family life, his home and his correspondence. A home
will usually be the place, the physically defined area,
where private and family life develops. The individual
has a right to respect for his home, meaning not just
the right to the actual physical area, but also to the
quiet enjoyment of that area. Breaches of the right
to respect of the home are not confined to concrete
or physical breaches, such as unauthorised entry into
a person's home, but also include those that are not
concrete or physical, such as noise, emissions, smells
or other forms of interference. A serious breach may
result in the breach of a person's right to respect
for his home if it prevents him from enjoying the amenities
of his home (see Hatton and Others v. the United Kingdom
cited above, § 96).
54. Thus in the case of Powell and
Rayner v. the United Kingdom (judgment of 21 February
1990, Series A no. 172, § 40), the Court declared
Article 8 applicable because: “In each case, albeit
to greatly differing degrees, the quality of the applicant's
private life and the scope for enjoying the amenities
of his home ha[d] been adversely affected by the noise
generated by aircraft using Heathrow Airport”.
In the aforementioned case of López Ostra v.
Spain, which concerned noise pollution and a waste-treatment
plant, the Court said: “severe environmental pollution
may affect individuals' well-being and prevent them
from enjoying their homes in such a way as to affect
their private and family life adversely, without, however,
seriously endangering their health”. In the case
of Guerra and Others v. Italy (judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, §
57), the Court observed: “The direct effect of
the toxic emissions on the applicants' right to respect
for their private and family life means that Article
8 is applicable”. Lastly, in the case of Surugiu
v. Romania (no. 48995/99, 20 April 2004), which concerned
various acts of harassment by third parties who entered
the applicant's yard and dumped several cartloads of
manure in front of the door and under the windows of
the house, the Court found that the acts constituted
repeated interference by third parties with the applicant's
right to respect for his home and that Article 8 of
the Convention was applicable.
55. Although the object of Article
8 is essentially that of protecting the individual against
arbitrary interference by the public authorities, it
may involve the authorities' adopting measures designed
to secure respect for private life even in the sphere
of the relations of individuals between themselves (see,
among other authorities, Stubbings and Others v. the
United Kingdom, judgment of 22 October 1996, Reports
of Judgments and Decisions 1996-IV, pp. 1505, §
62; and Surugiu v. Romania, cited above, § 59).
Whether the case is analysed in terms of a positive
duty on the State to take reasonable and appropriate
measures to secure the applicants' rights under paragraph
1 of Article 8 or in terms of an interference by a public
authority to be justified in accordance with paragraph
2, the applicable principles are broadly similar. In
both contexts regard must be had to the fair balance
that has to be struck between the competing interests
of the individual and of the community as a whole. Furthermore,
even in relation to the positive obligations flowing
from the first paragraph of Article 8, in striking the
required balance the aims mentioned in the second paragraph
may be of a certain relevance (see Hatton and Others
v. the United Kingdom, cited above, § 98).
56. The Court reiterates that the Convention
is intended to guarantee rights that are “practical
and effective”, not “theoretical or illusory”
(see, among other authorities, Papamichalopoulos and
Others v. Greece, judgment of 24 June 1993, Series A
no. 260-B, § 42).
2. Application of
the above principles in the instant case
57. The present case does not concern
interference by public authorities with the right to
respect for the home, but their failure to take action
to put a stop to third-party breaches of the right relied
on by the applicant.
58. The Court notes that the applicant
lives in an area that is indisputably subject to night-time
disturbances; this clearly unsettles the applicant as
she goes about her daily life, particularly at weekends.
The Court must now determine whether the nuisance caused
by the noise attained the minimum level of severity
required for it to constitute a violation of Article
8.
59. The Government have argued that
the domestic courts found that the applicant has failed
to establish the noise levels inside her home. The Court
considers that it would be unduly formalistic to require
such evidence in the instant case, as the City authorities
have already designated the area in which the applicant
lives an acoustically saturated zone, which, according
to the terms of the municipal bylaw of 28 June 1986,
means an area in which local residents are exposed to
high noise levels which cause them serious disturbance
(see paragraph 44 above). In the present case, the fact
that the maximum permitted noise levels have been exceeded
has been confirmed on a number of occasions by council
staff (see paragraphs 14 and 19 above). Consequently,
there appears to be no need to require a person from
an acoustically saturated zone such as the one in which
the applicant lives to adduce evidence of a fact of
which the municipal authority is already officially
aware. Thus, in the domestic proceedings, the representative
of state council's office did not consider it necessary
to require the applicant to adduce such evidence (see
paragraph 31 above) and added that there had been a
reversal of the burden of proof in the present case.
60. In view of its volume – at
night and beyond permitted levels – and the fact
that it continued over a number of years, the Court
finds that there has been a breach of the rights protected
by Article 8.
61. Although the Valencia City Council
has used its powers in this sphere to adopt measures
(such as the bylaw concerning noise and vibrations)
which should in principle have been adequate to secure
respect for the guaranteed rights, it tolerated, and
thus contributed to, the repeated flouting of the rules
which it itself had established during the period concerned.
Regulations to protect guaranteed rights serve little
purpose if they are not duly enforced and the Court
must reiterate that the Convention is intended to protect
effective rights, not illusory ones. The facts show
that the applicant suffered a serious infringement of
her right to respect for her home as a result of the
authorities' failure to take action to deal with the
night-time disturbances.
62. In these circumstances, the Court
finds that the respondent State has failed to discharge
its positive obligation to guarantee the applicant's
right to respect for her home and her private life,
in breach of Article 8 of the Convention.
63. There has consequently been a violation
of that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
64. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned
allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the
injured party.”
A. Damage
65. The applicant claimed 879 euros
(EUR) on account of pecuniary damage for the double
glazing she had had installed in her bedroom. She also
claimed EUR 3,005 for non-pecuniary damage.
66. The Government did not make any
submissions on this point.
67. The Court notes that the sole ground
for awarding the applicant just satisfaction in the
instant case is the failure of the relevant authorities
to take the action they could reasonably have been expected
to take to put a stop to the infringement of the applicant's
right to respect for her home. The Court therefore finds
that there was a causal link between the violation of
the Convention and any pecuniary damage sustained by
the applicant. She is therefore entitled to an award
under that head. Ruling on an equitable basis, as required
by Article 41, it finds that the authorities' failure
to take action undeniably caused the applicant non-pecuniary
damage for which she should also receive compensation
and awards her EUR 3,884 for pecuniary and non-pecuniary
damage.
B. Costs and expenses
68. The applicant also claimed EUR
4,952.15 for the costs and expenses she had incurred
before the domestic courts and the Court. In her statement
of account, she breaks down her claim into (1) the fees
and expenses of her representative in the proceedings
before the domestic courts (EUR 2,091.53), (2) the fees
and expenses of her representative in the proceedings
before the European Court of Human Rights (EUR 2,091.53)
and (3) the cost of translation services (EUR 769.10).
69. The Government did not make any
submissions on this point.
70. Under the Court's case-law, applicants
may recover reimbursement of their costs and expenses
only in so far as they have been actually and necessarily
incurred and are reasonable as to quantum. In the instant
case, and having regard to the material before it and
the aforementioned criteria, the Court considers it
reasonable to award the applicant EUR 4,500.
C. Default interest
71. The Court considers it appropriate that
the default interest should be based on the marginal
lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation
of Article 8 of the Convention;
2. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the
Convention, the following sums;
(i) EUR 3,884 (three thousand eight hundred and eighty-four
euros) for pecuniary and non-pecuniary damage;
(ii) EUR 4,500 (four thousand five hundred euros) in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the
default period plus three percentage points;
3. Dismisses the remainder
of the claim for just satisfaction.
Done in French and notified in writing on 16 November
2004, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
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