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DEES v. HUNGARY - 2345/06 [2010] ECHR 1772 (9 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1772.html
Cite as:
[2010] ECHR 1772,
57 EHRR 12,
(2013) 57 EHRR 12
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SECOND
SECTION
CASE OF DEÉS v. HUNGARY
(Application
no. 2345/06)
JUDGMENT
STRASBOURG
9 November
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Deés v.
Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Stanley
Naismith, Section
Registrar,
Having
regard to the partial decision of 14 April 2009,
Having
deliberated in private on 5 and 20 October 2010,
Delivers
the following judgment, which was adopted on the last–mentioned
date:
PROCEDURE
The
case originated in an application (no. 2345/06) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr György Deés
(“the applicant”), on 6 January 2006.
The
applicant was represented by Mr F.G. Lelik, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
The
applicant alleged, in particular, that because of the noise,
pollution and smell caused by the heavy traffic in his street, his
home had become almost uninhabitable, in breach of Article 8 of the
Convention. Moreover, he complained under Article 6 about the length
of the related court proceedings.
On
14 April 2009 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged
interference with the applicant's right to respect for his home and
the complaint concerning the length of the proceedings to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1950 and lives in Alsónémedi.
It appears that from early 1997 the volume of cross-town traffic in
Alsónémedi increased, since a toll had been introduced
on the neighbouring, privately owned motorway M5. In order to avoid
the rather high toll charge, many trucks chose alternative routes
including the street (a section of national road no. 5201) in
which the applicant's house is situated.
To
counter this situation, from 1998 onwards three bypass roads were
built; and several measures, including a 40 km/h speed limit at
night, were implemented in order to discourage traffic in the
neighbourhood. Two nearby intersections were provided with traffic
lights. In 2001 road signs prohibiting the access of vehicles of over
6 tons and re-orientating traffic were put up along an Alsónémedi
thoroughfare, an arrangement which also affected the applicant's
street. The Government submitted that compliance with these measures
had been enforced by the increased presence of the police in general
in Alsónémedi and in particular in the applicant's
street; in the applicant's view, however, no effective enforcement
was in place.
In
or about 1997 the applicant observed damage to the walls of his
house. He obtained the opinion of a private expert, who stated that
the damage was due to vibrations caused by the heavy traffic. The
applicant also alleges that, because of the increased noise and
pollution due to exhaust fumes, his home has become almost
uninhabitable.
On
23 February 1999 the applicant brought an action in compensation
against the Pest County State Public Road Maintenance Company before
the Buda Central District Court. He claimed that, due to increased
freight traffic in his street, the walls of his house had cracked.
The case was transmitted to the Budapest Regional Court for reasons
of competence on 11 March 1999. On 11 November, 16 December 1999
and 30 March 2000, the court held hearings. On 6 April 2000 it
dismissed the claims.
On
appeal, the Supreme Court, acting as a second-instance court, held a
hearing on 30 January 2002, quashed the first-instance judgment and
remitted the case.
In
the resumed proceedings, on 2 June 2002 the Regional Court appointed
as expert the Department of Road Construction at Budapest Technical
University. The latter presented an opinion on 20 January 2004 which
was discussed at the hearing of 29 April 2004. The expert stated that
the level of noise outside the applicant's house had been measured as
69.0 dB(A) on 5 May and 67.1 dB(A) on 6 May 2003, daytime on
both occasions, as opposed to the applicable statutory limit of 60
dB(A). On 10 June 2004 the court held another hearing
and ordered the supplementation of the opinion, which was done on 15
September 2004.
On
17 February 2005 the Regional Court dismissed the applicant's claims.
It relied on the opinion of the expert, documentary evidence and the
testimony of the parties. It refused the applicant's motion to obtain
the opinion of another expert since it was of the view that the
original opinion was thorough and precise.
The
court noted the expert's opinion that the vibration, as measured on
the scene, was not strong enough to cause damage to the applicant's
house, nor could the traffic noise entail cracks in its walls
although it was higher than the statutory level. The court therefore
concluded that no causal link could be established between the
measures adopted by the respondent authority and the damage to the
house. The court observed that the respondent had spent more than one
billion Hungarian forints on developing the road system in the area,
constructed four roundabouts and put up several road signs and
traffic lights in order to divert traffic from Alsónémedi.
In sum, it had carried out every measure with a view to sparing
Alsónémedi from heavy traffic and limiting the speed of
cross-town traffic that could reasonably be expected in the
circumstances to protect the applicant's interest. The respondent had
to balance competing interests, since the barring of heavy vehicles
from a public road might have been advantageous to the inhabitants of
Alsónémedi but could have caused disproportionate
prejudice to the other users or providers of public and private
transportation.
On
15 November 2005 the Budapest Court of Appeal dismissed the
applicant's appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the nuisance caused by the heavy traffic in
his street amounted to a violation of his right to respect for his
private life and home as guaranteed by Article 8 of the Convention,
which reads as follows:
“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
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicant submitted that the noise, vibration, pollution and odour
caused by the heavy traffic nearby rendered his home virtually
uninhabitable and that the Hungarian authorities' measures to remedy
the situation had been insufficient and/or inadequate.
The
Government argued that the environmental problems suffered by the
applicant had arisen essentially due to a toll introduced by a
private motorway company and the State had responded with various
measures to protect the inhabitants of Alsónémedi from
the level of environmental harm proscribed by the Court's case-law
under Article 8, thus complying with its positive obligations in this
field.
They
submitted in particular that the operator of the motorway in question
had collected toll charges as of 1 January 1997. Initially, the
charges had been so high that they had deterred traffic from using
the motorway and given rise to increased traffic through the
neighbouring villages. Upon protests from the local inhabitants, the
toll charges had been slightly lowered. Frequent user and fleet
discounts had been granted which, however, had not been attractive
enough to reduce toll evasion and the resultant noise and
environmental pollution suffered by the neighbouring villages.
Following a partial governmental buyout of the motorway in 2002, a
sticker system had been introduced entailing a substantial reduction
of the toll charges. A State-owned company had then been commissioned
to enhance safety on the impugned road sections and reduce the
environmental burden on the inhabitants. The measures taken by this
agency are outlined in paragraph 7 above.
The
Court recalls that 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 within reasonable limits. Breaches of the right to respect
of the home are not confined to concrete breaches, such as
unauthorised entry into a person's home, but may also include those
that are diffuse, such as noise, emissions, smells or other similar
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 (cf. Moreno
Gómez v. Spain, no. 4143/02,
§ 53, ECHR 2004 X).
Moreover,
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 and home even in the
sphere of the relations of individuals between themselves (see Moreno
Gómez, cited above, § 55).
In
the instant case, the Court notes the applicant's submission that,
from 1997 onwards, the noise, vibration, pollution and odour caused
by the heavy traffic nearby had made his property almost
uninhabitable. It also observes that the Government did not dispute
in essence that the situation had indeed been problematic after the
introduction of the toll on the motorway outside Alsónémedi
– although they argued that the measures implemented had
alleviated the burden on the applicant to such an extent that the
adverse environmental effects had been reduced and did not attain the
minimum level of harm proscribed by Article 8 in this field. The
Court finds noteworthy that, from 1998 onwards, the authorities
constructed three bypass roads, introduced a night speed limit of 40
km/h and provided two adjacent intersections with traffic lights. In
2001 further measures were implemented, namely road signs prohibiting
the access of heavy vehicles and re-orientating traffic were
installed (see paragraph 7 above).
The
Court considers that the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure
compliance with the Convention when it comes to the determination of
regulatory and other measures intended to protect Article 8 rights.
This consideration also holds true in situations, which do not
concern direct interference by public authorities with the right to
respect for the home but involve those authorities' failure to take
action to put a stop to third-party breaches of the right relied on
by the applicant (cf. Moreno Gómez,
cited above, § 57). In the present
case the State was called on to balance between the interests of
road-users and those of the inhabitants of the surrounding areas. The
Court recognises the complexity of the State's tasks in handling
infrastructural issues, such as the present one, where measures
requiring considerable time and resources may be necessary. It
observes nevertheless that the measures which were taken by the
authorities consistently proved to be insufficient, as a result of
which the applicant was exposed to excessive noise disturbance over a
substantial period of time. The Court finds that this situation
created a disproportionate individual burden for the applicant. In
that respect, the Court observes that, on the basis of the expert
opinion of Budapest Technical University, the domestic courts
concluded that the vibration or the noise caused by the traffic was
not substantial enough to cause damage to the applicant's house, but
the noise exceeded the statutory level (see paragraph 13 above).
The Court has already held that noise pressure significantly above
statutory levels, unresponded to by appropriate State measures, may
as such amount to a violation of Article 8 of the Convention (cf.
Oluić v. Croatia,
no. 61260/08, §§ 48 to 66, 20 May 2010; Moreno
Gómez v. Spain, cited above,
§§ 57 to 63). In the present
case, it notes that, despite the State's efforts to slow down and
reorganise traffic in the neighbourhood, a situation involving
substantial traffic noise in the applicant's street prevailed at
least until and including May 2003 when two measuring sessions
established noise values respectively 15% and 12% above the statutory
ones (see paragraph 11 above) (see, a
contrario, Fägerskiöld
v. Sweden (dec.), no. 37664/04, ECHR
2008–... (extracts)).
In
these circumstances, the Court considers that there existed a direct
and serious nuisance which affected the street in which the applicant
lives and prevented him from enjoying his home in the material
period. It finds that the respondent State has failed to discharge
its positive obligation to guarantee the applicant's right to respect
for his home and private life. Accordingly, there has been a
violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant also complained that the length of the proceedings which he
brought in this matter was incompatible with the “reasonable
time” requirement of Article 6 § 1. The Government
contested that argument.
The
period to be taken into consideration began on 23 February 1999 and
ended on 15 November 2005. It thus lasted almost six years and nine
months for two levels of jurisdiction. In view of such lengthy
proceedings, this complaint must be declared admissible.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present circumstances. Having regard to its case-law on the subject,
the Court finds that the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement. There
has accordingly been a breach of Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
In
respect of non-pecuniary damage, the applicant claimed 20,000 euros
(EUR) for the violation of Article 8 of the Convention and EUR 8,000
for the violation of Article 6.
The
Government contested these claims.
Deciding
on an equitable basis, the Court awards the applicant EUR 6,000
in respect of non-pecuniary damage under all heads.
B. Costs and expenses
The
applicant made no costs claim.
C. Default interest
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
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Hungarian forints at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President