AS TO THE ADMISSIBILITY OF
by Nikola Ivanov GALEV and Others
The European Court of Human Rights (Fifth Section), sitting on 29 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 14 May 2004,
Having deliberated, decides as follows:
The applicants, Mr Nikola Ivanov Galev, Sonya Yotova Galeva, Emil Nikolov Galev and Sonya Asenova Galeva, are Bulgarian nationals who were born in 1927, 1929, 1959 and 1961 respectively and live in Sofia. They are represented before the Court by Mr N. Teoharov, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants and Ms P.V. own flats in a four storey building in Sofia. The first and the second applicants own a flat on the first floor, P.V. owns two flats on the second and the third floors, and the third and the fourth applicants own a flat on the fourth floor.
In December 1998 P.V. started reconstructing her flat on the second floor with a view to turning it into a dentist’s surgery.
On 28 December 1998 the applicants wrote to the building supervision authorities, urging them to stop the reconstruction. Their complaint was sent to the municipal authorities. On 8 February 1999 they inspected the site, finding that the reconstruction had been carried out without the requisite permit. On 17 February 1999 they referred the matter to the competent building supervision authorities.
On 25 March 1999 the building supervision authorities drew up a report, noting that P.V. had carried out the reconstruction without an approved plan and without a building permit. On 29 April 1999 they opened an administrative penal procedure against her and on 7 June 1999 fined her. She was further warned that under the applicable regulations a flat could not be transformed into a medical facility unless it was situated on the ground floor. Exceptions were only possible with the consent of all other owners in the building.
On 1 June 1999 P.V. obtained from all the neighbours bar the applicants a declaration that they agreed to the reconstruction of her flat, and on 21 June 1999 applied for a building permit. On 9 August 1999 the chief architect of the borough issued the permit. On 2 September 1999 the borough mayor set it aside, but on 3 July 2000 his decision was annulled by the building supervision authorities as being ultra vires.
In the meantime, pursuant to further complaints by the applicants, on 10 November 1999 the chief architect of Sofia ordered an inspection with a view to determining whether the use of the dentist’s surgery should be prohibited and its electricity and water supply cut.
On 30 March 2000 a building supervision inspector found that P.V.’s flat had been reconstructed without the consent of the other owners and recommended further action.
On 27 February 20002 the building supervision authorities upheld the permit issued on 9 August 1999, finding that the construction was in line with the construction papers, and that, under section 156(3) of the 2001 Territorial Organisation Act (see Relevant domestic law and practice below), once construction had started, a building permit could only be invalidated in limited circumstances, which were not in place.
The applicants sought judicial review of this decision. On 10 June 2003 the Sofia City Court dismissed their application, agreeing that under section 156(3) of the 2001 Territorial Organisation Act, once construction had started, a building permit could be invalidated on limited grounds only.
On 21 January 2004 the Supreme Administrative Court rejected the applicants’ ensuing appeal, fully agreeing with the lower court’s reasoning.
It does not seem that the applicants have tried to bring a claim under section 109(1) of the 1951 Property Act against P.V. (see Relevant domestic law and practice below).
B. Relevant domestic law and practice
1. The 2001 Territorial Organisation Act
The 2001 Territorial Organisation Act entered into force on 31 March 2001. Its section 38(3), which superseded earlier similar provisions, provides that a flat situated in a condominium may be used as a medical cabinet, entailing visits by outsiders, provided that (i) it is on the ground floor, (ii) all sanitary, hygienic, technical, fire protection etc. requirements have been complied with, and (iii) the “immediate neighbours” have given their express written and notarised consent. It goes on to provide that a flat located on a higher floor may exceptionally be used as a medical cabinet, but only if approval has been given by the general meeting of the condominium and express written and notarised consent has been obtained from all owners of flats in the building.
Section 156(2) of the Act, as in force between March 2001 and July 2003, set out an exhaustive list of grounds for invalidating building permits for constructions which had already started. Breaches of the requirements of section 38 did not feature among them. Section 156(3) provided that building permits could be invalidated solely on the grounds specified in section 156(2).
2. The 1951 Property Act
Section 50 of the 1951 Property Act provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of the neighbouring properties.
Under section 109(1) of the Act, an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights.
In an interpretative decision of 6 February 1985 (тълк. реш. № 31 от 6 февруари 1985 г. по гр.д. № 10/1984 г., ОСГК на ВС) the former Supreme Court explained that this claim (actio negatoria) provides protection against unjustified interferences – whether direct or indirect – which prevent an owner from using fully his property. It can be used to declare such interferences unlawful and enjoin the persons concerned to stop them and remove their effects (for instance, demolish a construction in a neighbouring property). Unlike the decisions of the building supervision authorities, the courts’ judgments pursuant to such claims finally determine the disputes between the aggrieved owner and the author of the interference, and may be executed by force.
The claim may be brought by the owner against any person, irrespective of whether or not they are owners of an adjoining property (реш. № 1544 от 30 октомври 2002 г. по гр.д. № 18899/2001 г., ВКС, IV г.о.). It may be brought by the owner of a flat in a condominium against the owner of another flat (реш. № 1818 от 13 ноември 2002 г. по гр.д. № 2183/2001 г., ВКС, ІV г.о.). It may be joined to a tort claim in respect of any past loss (реш. № 1272 от 16 септември 2004 г. по гр.д. № 660/2003 г., ВКС, ІV г.о.).
Noise nuisance is actionable under section 109(1) (реш. № 133 от 29 декември 1988 г. по гр.д. № 100/1988 г., ОСГК на ВС).
For the purposes of section 109(1), a distinction needs to be made between buildings on neighbouring properties and activities taking place there; while the former may be lawful and thus not actionable, the latter may unduly impinge on neighbours’ rights and thus be subject to injunctive relief (реш. № 216 от 4 март 1985 г. по гр. д. № 43/85 г., ВС, IV г.о.).
According to the case law of the former Supreme Court and of the Supreme Court of Cassation between November 1992 and January 2009, the question whether a building (or a reconstruction of an existing building) amounts to “unjustifiable activity” within the meaning of section 109(1) should be determined independently and does not automatically hinge on whether it complies with the building rules and regulations or has been approved by the administrative authorities. The decisive factor is whether or not it in fact unduly interferes with the neighbours’ enjoyment of their rights (реш. № 1291 от 16 ноември 1992 г. по гр.д. № 1038/1992 г., ВС, ІV г.о.; реш. № 1506 от 9 февруари 1993 г. по гр.д. № 1364/1992 г., ВС, ІV г.о.; реш. № 1245 от 4 юли 1994 г. по гр.д. № 2149/1992 г., ВС, ІV г.о.; реш. № 1190 от 2 юли 1999 г. по гр.д. № 2042/1998 г., ВКС, ІV г.о.; реш. № 1319 от 5 юли 1999 г. по гр.д. № 501/1998 г., ВКС, ІV г.о.; реш. № 1446 от 26 юли 1999 г. по гр.д. № 256/1999 г., ВКС, ІV г.о.; реш. № 7 от 24 февруари 2000 г. по гр.д. № 1440/1999 г., ВКС, ІV г.о.; реш. № 1803 от 11 ноември 2002 г. по гр.д. № 2124/2001 г., ВКС, ІV г.о.; реш. № 366 от 5 април 2004 г. по гр.д. № 2866/2002 г., ВКС, ІV г.о.; реш. № 316 от 18 февруари 2005 г. по гр.д. № 2746/2003 г., ВКС, ІV г.о.; реш. № 20 от 29 януари 2009 г. по гр.д. № 6259/2007 г., ВКС, ІV г.о.).
“1. Everyone has the right to respect for his private ... life [and] his home ...”
The Court observes at the outset that the applicants did challenge, including by way of judicial review, the lawfulness of the reconstruction carried out by their neighbour. However, these proceedings centred on the legality of the changes to the building and – unlike a claim under section 109(1) of the 1951 Property Act – did not involve direct consideration of the question which the applicants now wish to put before the Court, namely whether the operation of the dentist’s surgery would unduly interfere with their rights under Article 8 of the Convention. Nonetheless, the Court does not need to decide whether the applicants have failed to exhaust domestic remedies, because it considers that their complaint is in any event manifestly ill founded, for the following reasons.
In the present case, the first question for decision under Article 8 is whether the alleged nuisance attained the minimum level of severity required for it to amount to an interference with the applicants’ rights to respect for their private lives and their homes. The assessment of that minimum is relative and depends on all the circumstances: the intensity and duration of the nuisance, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city (see, among other authorities, Fadeyeva v. Russia, no. 55723/00, §§ 66 70, ECHR 2005 IV).
On this point, the Court starts by observing that the mere fact that the works carried out by the applicants’ neighbour were not lawful is not sufficient to ground their assertion that their rights under Article 8 have been interfered with (see Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008). The Court must rather examine, on the basis of the materials in the case file, whether the alleged noise, smell and health hazards were sufficiently serious to amount to an interference with the applicants’ rights to respect for their private lives and their homes.
In the Court’s view, it cannot be assumed, on the face of it, that the noise emanating from a dentist’s surgery, be it that emitted by the medical equipment or that resulting from patients’ entering and leaving the premises, rises above the usual level of noise in an apartment block in a modern town (compare with Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 11 27 and 116 18, ECHR 2003 VIII; and Ashworth and Others v. the United Kingdom (dec.), no. 39561/98, 20 January 2004, concerning aircraft noise; with Moreno Gómez v. Spain, no. 4143/02, §§ 9 19, 45 and 58 60, ECHR 2004-X, concerning noise from night clubs; with Ruano Morcuende v. Spain (dec.), no. 75287/01, 6 September 2005, concerning noise from an electric transformer; with Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008, concerning noise from a wind turbine; with Borysiewicz v. Poland, no. 71146/01, §§ 5 and 52 55, 1 July 2008, concerning noise from a tailoring workshop; and with Leon and Agnieszka Kania v. Poland, no. 12605/03, §§ 5 and 101 03, 21 July 2009, concerning noise from a lorry maintenance and metal cutting and grinding workshop). Unlike those cases, which concerned either constant or night time noise, it is logical to assume that the noise, if any, in the present case, was likely to be restricted to office hours and unlikely to reach very high levels. The case file does not contain any noise tests or similar material showing that as a result of the operation of the dentist’s surgery the level of noise in the applicants’ building has risen above acceptable levels (contrast with the cases just cited). Nor is there any evidence showing that the applicants have suffered specific adverse effects on account of this.
Similarly, it cannot be assumed, on the face of it, that the smell, if any, coming from a dentist’s surgery rises above acceptable levels (contrast with López Ostra v. Spain, 9 December 1994, §§ 7, 8, 49, 50 and 52, Series A no. 303 C, concerning the smell from a waste treatment plant; with Wałkuska v. Poland (dec.), no. 6817/04, 29 April 2008, concerning the smell from a pigsty; and with Brânduşe v. Romania, no. 6586/03, §§ 9 18, 66 and 67, 7 April 2009, concerning the smell from a waste dump). The case file does not contain any material showing that the applicants were unduly affected by any such smell.
Lastly, there is no evidence indicating that the stream of patients created any health hazard in the applicant’s building.
The Court additionally observes that it has a subsidiary role vis-à-vis the national authorities and courts and must be cautious in taking on the role of a tribunal of fact (see, among other authorities and mutatis mutandis, McKerr v. the United Kingdom, no. 28883/95, § 117, ECHR 2001 III). Where domestic proceedings have taken place, it is, as a rule, not its task to substitute its own assessment of the facts for that of the domestic courts (see, among many other authorities, Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). In the instant case, by contrast, there have been no national proceedings addressing the key issue in the case, and this was not due to the lack of appropriate remedies in domestic law (see, mutatis mutandis, McKerr, cited above, § 117 and the cases cited there).
The lack of a fact finding exercise at the domestic level and the lack of proof that the operation of the dentist’s surgery unduly interfered with the applicants’ private lives and the enjoyment of the amenities of their homes prevent the Court from concluding that the nuisance of which they complain reached the minimum level of severity required to engage Article 8.
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
With regard to the first limb of the complaint, the Court observes that Article 1 of Protocol No. 1 does not guarantee the right to enjoy one’s possessions in a pleasant environment (see Moore v. the United Kingdom (dec.), no. 40425/98, 15 June 1999; Ünver v. Turkey (dec.), no. 36209/97, 26 September 2000; and Taşkın and Others v. Turkey (dec.), no. 46117/99, 29 January 2004). As to the second limb, the Court notes that, while a severe nuisance may affect the value of real estate and thus amount to a partial expropriation, there is no evidence showing that the construction of the dentist’s surgery caused the value of the applicant’s flats to drop (see Rayner, at p. 14, and Taşkın and Others, both cited above).
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court observes that the running of the six month time limit under Article 35 § 1 of the Convention with regard to complaints not included in the initial communication to the Court is interrupted only on the date when they are first submitted to the Court (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001; Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005; Ivan Vasilev v. Bulgaria, no. 48130/99, § 60, 12 April 2007; and Ivanova Sokolova v. Bulgaria (dec.), no. 26057/04, 29 April 2008). The instant complaint did not feature in the applicants’ initial letter; it was formulated for the first time in the application form, lodged on 16 May 2005, whereas the proceedings to which it relates ended on 21 January 2004, more than six months before that.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen