In
the case of López Ostra v. Spain,
The
European Court of Human Rights, sitting, in accordance with Article
43 (art. 43) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr A. Spielmann,
Mrs E. Palm,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
and
also of Mr H. Petzold,
Acting Registrar,
Having
deliberated in private on 24 June and 23 November 1994,
Delivers
the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 8 December 1993, within
the three-month period laid down by Article 32 para. 1 and Article
47 (art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16798/90) against the Kingdom of Spain lodged with
the Commission under Article 25 (art. 25) by a Spanish national, Mrs
Gregoria López Ostra, on 14 May 1990.
The
Commission’s request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Spain recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Articles 3 and 8 (art. 3, art. 8) of the
Convention.
In response to the enquiry made in accordance with Rule 33 para. 3
(d) of Rules of Court A, the applicant stated that she wished to
take part in the proceedings and designated the lawyer who would
represent her (Rule 30). On 10 January 1994 the lawyer was given
leave by the President to use the Spanish language in the
proceedings (Rule 27 para. 3).
The Chamber to be constituted included ex officio Mr J.M. Morenilla,
the elected judge of Spanish nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 24 January 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr J. De Meyer, Mrs E. Palm, Mr F.
Bigi, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr G. Mifsud Bonnici
(Article 43 in fine of the Convention and Rule 21 para. 4) (art.
43). Subsequently Mr A. Spielmann, substitute judge, replaced Mr De
Meyer, who was unable to take part in the further consideration of
the case (Rule 22 paras. 1 and 2 and Rule 24 para. 1).
As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Spanish Government
("the Government"), the applicant’s lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the orders made in
consequence, the Registrar received the Government’s and the
applicant’s memorials on 3 and 4 May 1994 respectively. On 16
May the Secretary to the Commission informed the Registrar that the
Delegate would submit his observations at the hearing.
On
10, 17 and 20 June 1994 the Commission supplied various documents
which the Registrar had requested on the President’s
instructions.
In accordance with the decision of the President, who had also given
the Agent of the Government leave to address the Court in Spanish
(Rule 27 para. 2), the hearing took place in public in the Human
Rights Building, Strasbourg, on 20 June 1994. The Court had held a
preparatory meeting beforehand.
There
appeared before the Court:
-
for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for Human Rights, Ministry of Justice, Agent;
-
for the Commission
Mr F. Martínez, Delegate;
-
for the applicant
Mr J.L. Mazón Costa, abogado, Counsel.
The
Court heard addresses by them and also their replies to questions
from two of its members.
On
23 November 1994 it declined to accept observations submitted out of
time by counsel for the applicant on 13 October 1994 which related
to the reimbursement of his fees in the national proceedings.
AS TO THE FACTS
Mrs Gregoria López Ostra, a Spanish national, lives in Lorca
(Murcia).
At
the material time she and her husband and their two daughters had
their home in the district of "Diputación del Rio, el
Lugarico", a few hundred metres from the town centre.
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
The town of Lorca has a heavy concentration of leather industries.
Several tanneries there, all belonging to a limited company called
SACURSA, had a plant for the treatment of liquid and solid waste
built with a State subsidy on municipal land twelve metres away from
the applicant’s home.
The plant began to operate in July 1988 without the licence
(licencia) from the municipal authorities required by Regulation 6
of the 1961 regulations on activities classified as causing nuisance
and being unhealthy, noxious and dangerous ("the 1961
regulations"), and without having followed the procedure for
obtaining such a licence (see paragraph 28 below).
Owing
to a malfunction, its start-up released gas fumes, pestilential
smells and contamination, which immediately caused health problems
and nuisance to many Lorca people, particularly those living in the
applicant’s district. The town council evacuated the local
residents and rehoused them free of charge in the town centre for
the months of July, August and September 1988. In October the
applicant and her family returned to their flat and lived there
until February 1992 (see paragraph 21 below).
On 9 September 1988, following numerous complaints and in the light
of reports from the health authorities and the Environment and
Nature Agency (Agencia para el Medio Ambiente y la Naturaleza) for
the Murcia region, the town council ordered cessation of one of the
plant’s activities - the settling of chemical and organic
residues in water tanks (lagunaje) - while permitting the treatment
of waste water contaminated with chromium to continue.
There
is disagreement as to what the effects were of this partial
shutdown, but it can be seen from the expert opinions and written
evidence of 1991, 1992 and 1993, produced before the Commission by
the Government and the applicant (see paragraphs 18-20 below), that
certain nuisances continue and may endanger the health of those
living nearby.
B. The application for protection of fundamental rights
1. Proceedings in the Murcia Audiencia Territorial
Having attempted in vain to get the municipal authority to find a
solution, Mrs López Ostra lodged an application on 13 October
1988 with the Administrative Division of the Murcia Audiencia
Territorial, seeking protection of her fundamental rights (section 1
of Law 62/1978 of 26 December 1978 on the protection of fundamental
rights ("Law 62/1978") - see paragraphs 24-25 below). She
complained, inter alia, of an unlawful interference with her home
and her peaceful enjoyment of it, a violation of her right to choose
freely her place of residence, attacks on her physical and
psychological integrity, and infringements of her liberty and her
safety (Articles 15, 17 para. 1, 18 para. 2 and 19 of the
Constitution - see paragraph 23 below) on account of the municipal
authorities’ passive attitude to the nuisance and risks caused
by the waste-treatment plant. She requested the court to order
temporary or permanent cessation of its activities.
The court took evidence from several witnesses offered by the
applicant and instructed the regional Environment and Nature Agency
to give an opinion on the plant’s operating conditions and
location. In a report of 19 January 1989 the agency noted that at
the time of its expert’s visit on 17 January the plant’s
sole activity was the treatment of waste water contaminated with
chromium, but that the remaining waste also flowed through its tanks
before being discharged into the river, generating foul smells. It
therefore concluded that the plant had not been built in the most
suitable location.
Crown
Counsel endorsed Mrs López Ostra’s application.
However, the Audiencia Territorial found against her on 31 January
1989. It held that although the plant’s operation could
unquestionably cause nuisance because of the smells, fumes and
noise, it did not constitute a serious risk to the health of the
families living in its vicinity but, rather, impaired their quality
of life, though not enough to infringe the fundamental rights
claimed. In any case, the municipal authorities, who had taken
measures in respect of the plant, could not be held liable. The
non-possession of a licence was not an issue to be examined in the
special proceedings instituted in this instance, because it
concerned a breach of the ordinary law.
2. Proceedings in the Supreme Court
On 10 February 1989 Mrs López Ostra lodged an appeal with
the Supreme Court (Tribunal Supremo - see paragraph 25 below in
fine). She maintained that a number of witnesses and experts had
indicated that the plant was a source of polluting fumes,
pestilential and irritant smells and repetitive noise that had
caused both her daughter and herself health problems. As regards the
municipal authorities’ liability, the decision of the
Audiencia Territorial appeared to be incompatible with the general
supervisory powers conferred on mayors by the 1961 regulations,
especially where the activity in question was carried on without a
licence (see paragraph 28 below). Regard being had to Article 8
para. 1 (art. 8-1) of the Convention, inter alia, the town council’s
attitude amounted to unlawful interference with her right to respect
for her home and was also an attack on her physical integrity.
Lastly, the applicant sought an order suspending the plant’s
operations.
On 23 February 1989 Crown Counsel at the Supreme Court filed
pleadings to the effect that the situation complained of amounted to
arbitrary and unlawful interference by the public authorities with
the applicant’s private and family life (Article 18 of the
Constitution taken together with Articles 15 and 19 - see paragraph
23 below). The court should accordingly grant her application in
view of the nuisance to which she was subjected and the
deterioration in the quality of her life, both of which had moreover
been acknowledged in the judgment of 31 January. On 13 March Crown
Counsel supported the suspension application (see paragraph 12 above
and paragraph 25 below).
In a judgment of 27 July 1989 the Supreme Court dismissed the
appeal. The impugned decision had been consistent with the
constitutional provisions relied on, as no public official had
entered the applicant’s home or attacked her physical
integrity. She was in any case free to move elsewhere. The failure
to obtain a licence could only be considered in ordinary-law
proceedings.
3. Proceedings in the Constitutional Court
On 20 October 1989 Mrs López Ostra lodged an appeal (recurso
de amparo) with the Constitutional Court, alleging violations of
Article 15 (right to physical integrity), Article 18 (right to
private life and to inviolability of the family home) and Article 19
(right to choose freely a place of residence) of the Constitution
(see paragraph 23 below).
On
26 February 1990 the court ruled that the appeal was inadmissible on
the ground that it was manifestly ill-founded. It observed that the
complaint based on a violation of the right to respect for private
life had not been raised in the ordinary courts as it should have
been. For the rest, it held that the presence of fumes, smells and
noise did not itself amount to a breach of the right to
inviolability of the home; that the refusal to order closure of the
plant could not be regarded as degrading treatment, since the
applicant’s life and physical integrity had not been
endangered; and that her right to choose her place of residence had
not been infringed as she had not been expelled from her home by any
authority.
C. Other proceedings concerning the Lorca waste-treatment plant
1. The proceedings relating to non-possession of a licence
In 1990 two sisters-in-law of Mrs López Ostra, who lived in
the same building as her, brought proceedings against the
municipality of Lorca and SACURSA in the Administrative Division of
the Murcia High Court (Tribunal Superior de Justicia), alleging that
the plant was operating unlawfully. On 18 September 1991 the court,
noting that the nuisance had continued after 9 September 1988 and
that the plant did not have the licences required by law, ordered
that it should be closed until they were obtained (see paragraph 28
below). However, enforcement of this order was stayed following an
appeal by the town council and SACURSA. The case is still pending in
the Supreme Court.
2. Complaint of an environmental health offence
On 13 November 1991 the applicant’s two sisters-in-law lodged
a complaint, as a result of which Lorca investigating judge no. 2
instituted criminal proceedings against SACURSA for an environmental
health offence (Article 347 bis of the Criminal Code - see paragraph
29 below). The two complainants joined the proceedings as civil
parties.
Only
two days later, the judge decided to close the plant, but on 25
November the measure was suspended because of an appeal lodged by
Crown Counsel on 19 November.
The judge ordered a number of expert opinions as to the seriousness
of the nuisance caused by the waste-treatment plant and its effects
on the health of those living nearby.
An
initial report of 13 October 1992 by a scientist from the University
of Murcia who had a doctorate in chemistry stated that hydrogen
sulphide (a colourless gas, soluble in water, with a characteristic
rotten-egg smell) had been detected on the site in concentrations
exceeding the permitted levels. The discharge of effluent containing
sulphur into a river was said to be unacceptable. These findings
were confirmed in a supplementary report of 25 January 1993.
In a
report of 27 October 1992 the National Toxicology Institute stated
that the levels of the gas probably exceeded the permitted limits
but did not pose any danger to the health of people living close to
the plant. In a second report of 10 February 1993 the institute
stated that it could not be ruled out that being in neighbouring
houses twenty-four hours a day constituted a health risk as
calculations had been based only on a period of eight hours a day
for five days.
Lastly,
the regional Environment and Nature Agency, which had been asked to
submit an expert opinion by the Lorca municipal authorities,
concluded in a report of 29 March 1993 that the level of noise
produced by the plant when in operation did not exceed that measured
in other parts of the town.
The investigation file contains several medical certificates and
expert opinions concerning the effects on the health of those living
near the plant. In a certificate dated 12 December 1991 Dr de Ayala
Sánchez, a paediatrician, stated that Mrs López
Ostra’s daughter, Cristina, presented a clinical picture of
nausea, vomiting, allergic reactions, anorexia, etc., which could
only be explained by the fact that she was living in a highly
polluted area. He recommended that the child should be moved from
the area.
In
an expert report of 16 April 1993 the Ministry of Justice’s
Institute of Forensic Medicine in Cartagena indicated that gas
concentrations in houses near the plant exceeded the permitted
limit. It noted that the applicant’s daughter and her nephew,
Fernando López Gómez, presented typical symptoms of
chronic absorption of the gas in question, periodically manifested
in the form of acute bronchopulmonary infections. It considered that
there was a relationship of cause and effect between this clinical
picture and the levels of gas.
In addition, it is apparent from the statements of three police
officers called to the neighbourhood of the plant by one of the
applicant’s sisters-in-law on 9 January 1992 that the smells
given off were, at the time of their arrival, very strong and
induced nausea.
On 1 February 1992 Mrs López Ostra and her family were
rehoused in a flat in the centre of Lorca, for which the
municipality paid the rent.
The
inconvenience resulting from this move and from the precariousness
of their housing situation prompted the applicant and her husband to
purchase a house in a different part of town on 23 February 1993.
On 27 October 1993 the judge confirmed the order of 15 November
1991 and the plant was temporarily closed.
II. RELEVANT DOMESTIC LAW
A. The Constitution
The relevant Articles of the Constitution provide:
Article 15
"Everyone shall have the right to life and to
physical and psychological integrity, without being subjected to
torture or inhuman or degrading punishment or treatment under any
circumstances. The death penalty shall be abolished except where it
is provided for by military criminal law in time of war."
Article 17 para. 1
"Everyone has the right to liberty and security.
..."
Article 18
"1. The right to honour and to private and family
life and the right to control use of one’s likeness shall be
protected.
2. The home shall be inviolable. It may not be entered
or searched without the consent of the person who lives there or a
judicial decision, except in cases of flagrant offences. ..."
Article 19
"Spanish citizens shall have the right to choose
freely their place of residence and to move around the national
territory ..."
Article 45
"1. Everyone shall have the right to enjoy an
environment suitable for personal development and the duty to
preserve it.
2. The public authorities, relying on the necessary
public solidarity, shall ensure that all natural resources are used
rationally, with a view to safeguarding and improving the quality of
life and protecting and restoring the environment.
3. Anyone who infringes the above provisions shall be
liable to criminal or, where applicable, administrative penalties as
prescribed by law and shall be required to make good any damage
caused."
B. The 1978 Law on the protection of fundamental rights
Law 62/1978 provides that certain fundamental rights shall be
safeguarded by the ordinary courts. The rights protected in this way
include inviolability of the home and freedom to choose one’s
place of residence (section 1(2)). However, under transitional
provision 2(2) of the Law on the Constitutional Court of 3 October
1979, its application is extended to the other rights secured in
Articles 14 to 29 of the Constitution (Article 53 of the
Constitution).
Complaints against decisions of administrative authorities
affecting the rights of the individual may be lodged with the
administrative division of the appropriate ordinary court (section
6), without its first being necessary to exhaust the administrative
remedies (section 7(1)). The procedure followed is an expedited one
with shorter time-limits and exemption from certain procedural steps
(sections 8 and 10).
In
the writ the individual may apply to have the impugned decision
stayed, and the court rules on such applications by means of a
separate, summary procedure (section 7).
An
appeal lies to the Supreme Court (section 9), which hears such
appeals in expedited proceedings.
C. Environmental protection provisions
In the field of environmental protection the State and the
autonomous communities have enacted many provisions of different
ranks in law: Article 45 of the Constitution (see paragraph 23
above); Law 20/1986 of 14 May 1986 on toxic and dangerous waste;
Royal Legislative Decree 1302/1986 of 28 June 1986 on environmental
impact assessment and Law 38/1972 of 22 December 1972 on atmospheric
pollution control.
The provisions most frequently relied on in the instant case are
the 1961 regulations on activities classified as causing nuisance
and being unhealthy, noxious and dangerous approved in Decree
2414/1961 of 30 November.
The
purpose of this decree is to prevent plant, factories, activities,
industries or warehouses, whether public or private, from causing
nuisance, impairing normal environmental health and hygiene or
damaging public or private property or entailing serious risks to
persons or property (Regulation 1). Regulation 3 extends the scope
of the regulations to cover noise, vibrations, fumes, gases, smells,
etc.
Siting
of the activities in question is governed by municipal by-laws and
local development plans. At all events, factories deemed to be
dangerous or unhealthy cannot in principle be built less than 2,000
metres from the nearest housing (Regulation 4).
The local mayor is empowered to issue licences for carrying on
these activities, to supervise the application of the aforementioned
provisions and to impose penalties where necessary (Regulation 6).
The
procedure for obtaining such licences has several stages, including
mandatory consultation of a provincial committee as to the
suitability of the safety systems proposed by the applicant in his
description of the project. Before the premises are brought into use
they must undergo a compulsory inspection by a local-authority
technician (Regulations 29-34).
An
appeal lies to the ordinary courts against decisions to grant or
refuse licences (Regulation 42).
When
a nuisance occurs, the mayor may order the party responsible for it
to take steps to eliminate it. If these are not taken within the
time specified in the regulations, the mayor may, in the light of
the expert opinions obtained and after hearing the person concerned,
either impose a fine or temporarily or permanently withdraw the
licence (Regulation 38).
D. The Criminal Code
Article 347 bis was added on 25 June 1983 by the Law making urgent
reforms to part of the Criminal Code (8/1983). It provides:
"Anyone who, in breach of environmental protection
legislation or regulations, causes to be released or directly or
indirectly releases into the atmosphere, the soil or ... waters
emissions or discharges of any kind that are likely seriously to
endanger human health or seriously to interfere with the conditions
of animal life, forests, natural sites or cultivated areas, shall be
liable to a sentence of between one and six months’
imprisonment (arresto mayor) and a fine of 50,000 to 1,000,000
pesetas.
A more severe penalty (six months’ to six years’
imprisonment) shall be imposed where an industrial plant is
operating illegally, without having obtained the necessary
administrative authorisations, or where express orders of the
administrative authorities requiring modification or cessation of
the polluting activities have not been complied with or where untrue
information has been given about the activities’ environmental
impact, or where an inspection by the administrative authorities has
been obstructed.
...
In all the cases referred to in this Article, temporary
or permanent closure of the establishment may be ordered ..."
PROCEEDINGS BEFORE THE COMMISSION
Mrs López Ostra applied to the Commission on 14 May 1990.
She complained of the Lorca municipal authorities’ inactivity
in respect of the nuisance caused by a waste-treatment plant
situated a few metres away from her home. Relying on Articles 8
para. 1 and 3 (art. 8-1, art. 3) of the Convention, she asserted
that she was the victim of a violation of the right to respect for
her home that made her private and family life impossible and the
victim also of degrading treatment.
On 8 July 1992 the Commission declared the application (no.
16798/90) admissible. In its report of 31 August 1993 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 8 (art. 8) but not of Article 3 (art. 3). The
full text of the Commission’s opinion is reproduced as an
annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
The Government requested the Court to allow their preliminary
objections or, failing this, to find that the Kingdom of Spain had
not breached its obligations under the Convention.
At the hearing the applicant’s lawyer requested the Court to
rule that in the instant case Spain had not fulfilled its
obligations under Articles 8 and 3 (art. 8, art. 3) of the
Convention.
AS TO THE LAW
The applicant alleged that there had been a violation of Articles 8
and 3 (art. 8, art. 3) of the Convention on account of the smells,
noise and polluting fumes caused by a plant for the treatment of
liquid and solid waste sited a few metres away from her home. She
held the Spanish authorities responsible, alleging that they had
adopted a passive attitude.
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. The objection based on failure to exhaust domestic remedies
The Government contended, as they had done before the Commission,
that Mrs López Ostra had not exhausted domestic remedies. The
special application for protection of fundamental rights she had
chosen to make (see paragraphs 10-15 and 24-25 above) was not the
appropriate means of raising questions of compliance with the
ordinary law or disputes of a scientific nature over the effects of
a waste-treatment plant. This procedure was a shortened, rapid one
intended to remedy overt infringements of fundamental rights, and
the taking of evidence under it was curtailed.
The
applicant should, on the other hand, have instituted both criminal
proceedings and ordinary administrative proceedings, which had
proved to be effective under similar circumstances. In respect of
the same facts, for instance, her sisters-in-law had brought
ordinary administrative proceedings in April 1990 and had then
lodged a criminal complaint on 13 November 1991. The relevant
judicial authorities had ordered closure of the plant on 18
September and 15 November 1991 respectively, but enforcement of
those orders had been stayed on account of appeals lodged by the
municipal authorities and Crown Counsel (see paragraphs 16 and 17
above). On 27 October 1993 the plant had been closed by order of the
judge in the criminal proceedings but both sets of proceedings were
still pending in the Spanish courts. If the Court determined the
present case on the basis of the documents produced by the parties
relating to those proceedings, as the Commission did in its report,
its decision would prejudge their outcome.
Like the Commission and the applicant, the Court considers that on
the contrary the special application for protection of fundamental
rights lodged by the applicant with the Murcia Audiencia Territorial
(see paragraph 10 above) was an effective, rapid means of obtaining
redress in the case of her complaints relating to her right to
respect for her home and for her physical integrity, especially
since that application could have had the outcome she desired,
namely closure of the waste-treatment plant. Moreover, in both
courts that dealt with the merits of the case (the Murcia Audiencia
Territorial and the Supreme Court - see paragraphs 11 and 13 above)
Crown Counsel had submitted that the application should be allowed.
As to the need to wait for the outcome of the two sets of
proceedings brought by Mrs López Ostra’s sisters-in-law
in the ordinary (administrative and criminal) courts, the Court
notes, like the Commission, that the applicant is not a party to
those proceedings. Their subject-matter is, moreover, not exactly
the same as that of the application for protection of fundamental
rights, and thus of the application to Strasbourg, even if they
might have the desired result. The ordinary administrative
proceedings relate in particular to another question, the failure to
obtain the municipal authorities’ permission to build and
operate the plant. The issue of whether SACURSA might be criminally
liable for any environmental health offence is likewise different
from that of the town’s or other competent national
authorities’ inaction with regard to the nuisance caused by
the plant.
Lastly, it remains to be determined whether, in order to exhaust
domestic remedies, it was necessary for the applicant herself to
institute either of the two types of proceedings in question. Here
too the Court agrees with the Commission. Having had recourse to a
remedy that was effective and appropriate in relation to the
infringement of which she had complained, the applicant was under no
obligation also to bring other proceedings that were slower.
The
applicant therefore provided the national courts with the
opportunity which is in principle intended to be afforded to
Contracting States by Article 26 (art. 26) of the Convention, namely
the opportunity of putting right the violations alleged against them
(see, inter alia, the De Wilde, Ooms and Versyp v. Belgium judgment
of 18 June 1971, Series A no. 12, p. 29, para. 50, and the Guzzardi
v. Italy judgment of 6 November 1980, Series A no. 39, p. 27, para.
72).
It follows that the objection must be dismissed.
B. The objection that the applicant was not a victim
The Government raised a second objection already advanced before
the Commission. They acknowledged that Mrs López Ostra -
like, for that matter, the other residents of Lorca - had been
caused serious nuisance by the plant until 9 September 1988, when
part of its activities ceased (see paragraph 9 above). However, even
supposing that smells or noise - which would not have been excessive
- had continued after that date, the applicant had in the meantime
ceased to be a victim. From February 1992 the López Ostra
family were rehoused in a flat in the town centre at the
municipality’s expense, and in February 1993 they moved into a
house they had purchased (see paragraph 21 above). In any case, the
closure of the plant in October 1993 brought all nuisance to an end,
with the result that neither the applicant nor her family now
suffered the alleged undesirable effects of its operation.
At the hearing the Delegate of the Commission pointed out that the
investigating judge’s decision of 27 October 1993 (see
paragraph 22 above) did not mean that someone who had been forced by
environmental conditions to abandon her home and subsequently to buy
another house had ceased to be a victim.
The Court shares this opinion. Neither Mrs López Ostra’s
move nor the waste-treatment plant’s closure, which was
moreover temporary (see paragraph 22 above), alters the fact that
the applicant and her family lived for years only twelve metres away
from a source of smells, noise and fumes.
At
all events, if the applicant could now return to her former home
following the decision to close the plant, this would be a factor to
be taken into account in assessing the damage she sustained but
would not mean that she ceased to be a victim (see, among many other
authorities, the Marckx v. Belgium judgment of 13 June 1979, Series
A no. 31, pp. 13-14, para. 27, and the Inze v. Austria judgment of
28 October 1987, Series A no. 126, p. 16, para. 32).
The objection is therefore unfounded.
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
Mrs López Ostra first contended that there had been a
violation of Article 8 (art. 8) of the Convention, which provides:
"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 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 economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others."
The
Commission subscribed to this view, while the Government contested
it.
The Government said that the complaint made to the Commission and
declared admissible by it (see paragraphs 30 and 31 above) was not
the same as the one that the Spanish courts had considered in the
application for protection of fundamental rights since it appeared
to be based on statements, medical reports and technical experts’
opinions of later date than that application and wholly unconnected
with it.
This argument does not persuade the Court. The applicant had
complained of a situation which had been prolonged by the
municipality’s and the relevant authorities’ failure to
act. This inaction was one of the fundamental points both in the
complaints made to the Commission and in the application to the
Murcia Audiencia Territorial (see paragraph 10 above). The fact that
it continued after the application to the Commission and the
decision on admissibility cannot be held against the applicant.
Where a situation under consideration is a persisting one, the Court
may take into account facts occurring after the application has been
lodged and even after the decision on admissibility has been adopted
(see, as the earliest authority, the Neumeister v. Austria judgment
of 27 June 1968, Series A no. 8, p. 21, para. 28, and p. 38, para.
7).
Mrs López Ostra maintained that, despite its partial
shutdown on 9 September 1988, the plant continued to emit fumes,
repetitive noise and strong smells, which made her family’s
living conditions unbearable and caused both her and them serious
health problems. She alleged in this connection that her right to
respect for her home had been infringed.
The Government disputed that the situation was really as described
and as serious (see paragraph 40 above).
On the basis of medical reports and expert opinions produced by the
Government or the applicant (see paragraphs 18-19 above), the
Commission noted, inter alia, that hydrogen sulphide emissions from
the plant exceeded the permitted limit and could endanger the health
of those living nearby and that there could be a causal link between
those emissions and the applicant’s daughter’s ailments.
In the Court’s opinion, these findings merely confirm the
first expert report submitted to the Audiencia Territorial on 19
January 1989 by the regional Environment and Nature Agency in
connection with Mrs López Ostra’s application for
protection of fundamental rights. Crown Counsel supported this
application both at first instance and on appeal (see paragraphs 11
and 13 above). The Audiencia Territorial itself accepted that,
without constituting a grave health risk, the nuisances in issue
impaired the quality of life of those living in the plant’s
vicinity, but it held that this impairment was not serious enough to
infringe the fundamental rights recognised in the Constitution (see
paragraph 11 above).
Naturally, 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.
Whether
the question is analysed in terms of a positive duty on the State -
to take reasonable and appropriate measures to secure the
applicant’s rights under paragraph 1 of Article 8 (art. 8-1)
-, as the applicant wishes in her case, or in terms of an
"interference by a public authority" to be justified in
accordance with paragraph 2 (art. 8-2), 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, and in any case the
State enjoys a certain margin of appreciation. Furthermore, even in
relation to the positive obligations flowing from the first
paragraph of Article 8 (art. 8-1), in striking the required balance
the aims mentioned in the second paragraph (art. 8-2) may be of a
certain relevance (see, in particular, the Rees v. the United
Kingdom judgment of 17 October 1986, Series A no. 106, p. 15, para.
37, and the Powell and Rayner v. the United Kingdom judgment of 21
February 1990, Series A no. 172, p. 18, para. 41).
It appears from the evidence that the waste-treatment plant in
issue was built by SACURSA in July 1988 to solve a serious pollution
problem in Lorca due to the concentration of tanneries. Yet as soon
as it started up, the plant caused nuisance and health problems to
many local people (see paragraphs 7 and 8 above).
Admittedly,
the Spanish authorities, and in particular the Lorca municipality,
were theoretically not directly responsible for the emissions in
question. However, as the Commission pointed out, the town allowed
the plant to be built on its land and the State subsidised the
plant’s construction (see paragraph 7 above).
The town council reacted promptly by rehousing the residents
affected, free of charge, in the town centre for the months of July,
August and September 1988 and then by stopping one of the plant’s
activities from 9 September (see paragraphs 8 and 9 above). However,
the council’s members could not be unaware that the
environmental problems continued after this partial shutdown (see
paragraphs 9 and 11 above). This was, moreover, confirmed as early
as 19 January 1989 by the regional Environment and Nature Agency’s
report and then by expert opinions in 1991, 1992 and 1993 (see
paragraphs 11 and 18 above).
Mrs López Ostra submitted that by virtue of the general
supervisory powers conferred on the municipality by the 1961
regulations the municipality had a duty to act. In addition, the
plant did not satisfy the legal requirements, in particular as
regards its location and the failure to obtain a municipal licence
(see paragraphs 8, 27 and 28 above).
On this issue the Court points out that the question of the
lawfulness of the building and operation of the plant has been
pending in the Supreme Court since 1991 (see paragraph 16 above).
The Court has consistently held that it is primarily for the
national authorities, notably the courts, to interpret and apply
domestic law (see, inter alia, the Casado Coca v. Spain judgment of
24 February 1994, Series A no. 285-A, p. 18, para. 43).
At
all events, the Court considers that in the present case, even
supposing that the municipality did fulfil the functions assigned to
it by domestic law (see paragraphs 27 and 28 above), it need only
establish whether the national authorities took the measures
necessary for protecting the applicant’s right to respect for
her home and for her private and family life under Article 8 (art.
8) (see, among other authorities and mutatis mutandis, the X and Y
v. the Netherlands judgment of 26 March 1985, Series A no. 91, p.
11, para. 23).
It has to be noted that the municipality not only failed to take
steps to that end after 9 September 1988 but also resisted judicial
decisions to that effect. In the ordinary administrative proceedings
instituted by Mrs López Ostra’s sisters-in-law it
appealed against the Murcia High Court’s decision of 18
September 1991 ordering temporary closure of the plant, and that
measure was suspended as a result (see paragraph 16 above).
Other
State authorities also contributed to prolonging the situation. On
19 November 1991 Crown Counsel appealed against the Lorca
investigating judge’s decision of 15 November temporarily to
close the plant in the prosecution for an environmental health
offence (see paragraph 17 above), with the result that the order was
not enforced until 27 October 1993 (see paragraph 22 above).
The Government drew attention to the fact that the town had borne
the expense of renting a flat in the centre of Lorca, in which the
applicant and her family lived from 1 February 1992 to February 1993
(see paragraph 21 above).
The
Court notes, however, that the family had to bear the nuisance
caused by the plant for over three years before moving house with
all the attendant inconveniences. They moved only when it became
apparent that the situation could continue indefinitely and when Mrs
López Ostra’s daughter’s paediatrician
recommended that they do so (see paragraphs 16, 17 and 19 above).
Under these circumstances, the municipality’s offer could not
afford complete redress for the nuisance and inconveniences to which
they had been subjected.
Having regard to the foregoing, and despite the margin of
appreciation left to the respondent State, the Court considers that
the State did not succeed in striking a fair balance between the
interest of the town’s economic well-being - that of having a
waste-treatment plant - and the applicant’s effective
enjoyment of her right to respect for her home and her private and
family life.
There
has accordingly been a violation of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION
Mrs López Ostra submitted that the matters for which the
respondent State was criticised were of such seriousness and had
caused her such distress that they could reasonably be regarded as
amounting to degrading treatment prohibited by Article 3 (art. 3) of
the Convention, which provides:
"No one shall be subjected to torture or to
inhuman or degrading treatment or punishment."
The
Government and the Commission took the view that there had been no
breach of this Article (art. 3).
The Court is of the same opinion. The conditions in which the
applicant and her family lived for a number of years were certainly
very difficult but did not amount to degrading treatment within the
meaning of Article 3 (art. 3).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
Under Article 50 (art. 50),
"If the Court finds that a decision or a measure
taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the internal law
of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured party."
Mrs
López Ostra claimed compensation for damage and reimbursement
of costs and expenses.
A. Damage
The applicant asserted that the building and operation of a
waste-treatment plant next to her home forced her to make radical
changes to her way of life. She consequently sought the following
sums in reparation of the damage sustained:
(a)
12,180,000 pesetas (ESP) for the distress she suffered from 1
October 1988 to 31 January 1992 while living in her former home;
(b)
ESP 3,000,000 for the anxiety caused by her daughter’s serious
illness;
(c)
ESP 2,535,000 for the inconvenience caused from 1 February 1992 by
her undesired move;
(d)
ESP 7,000,000 for the cost of the new house she was obliged to buy
in February 1993 because of the uncertainty of the accommodation
provided by the Lorca municipal authorities;
(e)
ESP 295,000 for expenses incurred in settling into the new house.
The Government considered that these claims were exaggerated. They
pointed out that the Lorca municipal authorities had paid the rent
for the flat occupied by Mrs López Ostra and her family in
the town centre from 1 February 1992 until she moved into her new
house.
The Delegate of the Commission found the total sum sought
excessive. As regards the pecuniary damage, he considered that while
the applicant had theoretically been entitled to claim a new home,
she was bound to give her former one in exchange, due allowance
being made for any differences in size and characteristics.
The Court accepts that Mrs López Ostra sustained some damage
on account of the violation of Article 8 (art. 8) (see paragraph 58
above). Her old flat must have depreciated and the obligation to
move must have entailed expense and inconvenience. On the other
hand, there is no reason to award her the cost of her new house
since she has kept her former home. Account must be taken of the
fact that for a year the municipal authorities paid the rent of the
flat occupied by the applicant and her family in the centre of Lorca
and that the waste-treatment plant was temporarily closed by the
investigating judge on 27 October 1993 (see paragraph 22 above).
The
applicant, moreover, undeniably sustained non-pecuniary damage. In
addition to the nuisance caused by the gas fumes, noise and smells
from the plant, she felt distress and anxiety as she saw the
situation persisting and her daughter’s health deteriorating.
The
heads of damage accepted do not lend themselves to precise
quantification. Making an assessment on an equitable basis in
accordance with Article 50 (art. 50), the Court awards Mrs López
Ostra ESP 4,000,000.
B. Costs and expenses
1. In the domestic courts
The applicant claimed a total of ESP 850,000 for costs and expenses
incurred in the domestic courts.
The Government and the Delegate of the Commission pointed out that
Mrs López Ostra had received free legal aid in Spain, so that
she did not have to pay her lawyer, whose fees should be paid by the
State.
The Court likewise finds that the applicant did not incur expenses
in this respect and accordingly dismisses the claim in question. Mr
Mazón Costa cannot rely on Article 50 (art. 50) to claim just
satisfaction on his own account as he accepted the terms of the
legal aid granted to his client (see, among other authorities, the
Delta v. France judgment of 19 December 1990, Series A no. 191-A, p.
18, para. 47).
2. Before the Convention institutions
Mrs López Ostra claimed ESP 2,250,000 for her lawyer’s
fees in the proceedings before the Commission and the Court, less
the sums paid as legal aid by the Council of Europe.
The Government and the Delegate of the Commission considered this
amount excessive.
In the light of the criteria laid down in its case-law, the Court
considers it equitable to award the applicant ESP 1,500,000 under
this head, less the 9,700 French francs paid by the Council of
Europe.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s preliminary objections;
2. Holds that there has been a breach of Article 8 (art. 8) of the
Convention;
3. Holds that there has been no breach of Article 3 (art. 3) of
the Convention;
4. Holds that the respondent State is to pay the applicant, within
three months, 4,000,000 (four million) pesetas for damage and
1,500,000 (one million five hundred thousand) pesetas, less 9,700
(nine thousand seven hundred) French francs to be converted into
pesetas at the exchange rate applicable on the date of delivery of
this judgment, for costs and expenses;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 9 December 1994.
Rolv RYSSDAL
President
Herbert PETZOLD
Acting Registrar
