CASE OF LÓPEZ OSTRA v. SPAIN
(Application no. 16798/90)
09 December 1994
In the case of López Ostra v. Spain1,
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 A2, 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:
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.
On 10, 17 and 20 June 1994 the Commission supplied various documents which the Registrar had requested on the President’s instructions.
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
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
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).
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
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
3. Proceedings in the Constitutional Court
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
2. Complaint of an environmental health offence
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.
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.
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.
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.
II. RELEVANT DOMESTIC LAW
A. The Constitution
"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. ..."
"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. ..."
"Spanish citizens shall have the right to choose freely their place of residence and to move around the national territory ..."
"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
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
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 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
"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
FINAL SUBMISSIONS TO THE COURT
AS TO THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. The objection based on failure to exhaust domestic remedies
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.
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).
B. The objection that the applicant was not a victim
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).
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
"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.
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).
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).
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).
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 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.
There has accordingly been a violation of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION
"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).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
"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) 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 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
2. Before the Convention institutions
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.
1 The case is numbered 41/1993/436/515. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
3 Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 303-C of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.