Published on 12 February 2024
SECOND SECTION
Application no. 27658/22
Natalia DJURINCAIA
against the Republic of Moldova
lodged on 25 May 2022
communicated on 22 January 2024
SUBJECT MATTER OF THE CASE
The application concerns noise pollution adversely affecting the applicant’s daily life.
The applicant, aged sixty-seven and retired, lives in a flat located on the ground floor of an apartment building in Chișinău, which is her only home. In 2017 the municipally owned heat-providing company (joint stock company “Termoelectrica”) moved the local Thermal Distribution Point (TDP) from the common yard space into the basement of the apartment building, directly beneath the applicant’s flat. Since the commissioning of the TDP, the applicant has been continuously disturbed by the noise and vibration emanating from it. The Public Health Agency repeatedly recorded noise levels from the TDP which exceeded the permissible limit by 4.03 dBA, causing night-time disturbance. Despite several attempts by Termoelectrica to reduce the noise level, it persisted.
In 2019 the applicant initiated court proceedings against Termoelectrica, seeking the removal of the TDP from the basement of the building. She argued that the TDP lacked the mandatory authorisation from the Public Health Agency, that it had been built in breach of the construction regulations which prohibited the placement of TDPs under residential buildings and that she suffered hearing and other neurological disorders since the TDP had started operating in the basement.
On 8 September 2020 the Chișinău District Court granted her claims, ordered the removal of the TDP from the basement of the building and awarded the applicant EUR 2,500 in non-pecuniary damages and EUR 1,900 for pecuniary damage. On 27 October 2021 the Chișinău Court of Appeal partially adopted a new judgment which rejected the applicant’s claims in respect of the removal of the TDP and of the pecuniary damage, but upheld the award for non-pecuniary damage. The appellate court concluded that the construction of the TDP had been properly authorised, the removal of the TDP was against the prevailing public interest of municipal heating supply, while the measurements of the noise levels on 27-28 January 2020 had not registered any value exceeding the admissible noise level coming from the TDP as a result of the soundproofing works carried out by Termoelectrica.
The applicant informed the Supreme Court of Justice about the results of the new measurements performed by the Public Health Agency on 17 February 2022, which again registered excessive noise coming from the TDP, exceeding the permissible limit by 0.6; 11.9; 11.9 dBA during the night, when the TDP operated at levels 3, 4 and 5 and by 1.9 dBA during the day, when the TDP operated at levels 4 and 5.
On 11 May 2022 the Supreme Court of Justice rejected the applicant’s appeal on points of law on the merits and upheld the appellate judgment in full.
The applicant complains under Article 8 of the Convention that the ongoing noise and vibrations caused by the TDP located in the basement of her apartment building breached her right to respect for her home and private life. She also complains under Article 6 of the Convention that the courts’ conclusion on the proper authorisation of the TDP was contrary to the law.
QUESTIONS TO THE PARTIES
1. Was the detriment suffered by the applicant on account of the noise sufficiently severe to raise an issue under Article 8 of the Convention (see, mutatis mutandis, Yevgeniy Dmitriyev v. Russia, no. 17840/06, §§ 31-33, 1 December 2020; Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§ 89-97, 25 November 2010; Cuenca Zarzoso v. Spain, no. 23383/12, §§ 40‑54, 16 January 2018)?
If so, and owing to the divergent domestic law provisions regulating placement and authorisation of a Thermal Distribution Point (TDP), was the interference provided for by law (see Dzemyuk v. Ukraine, no. 42488/02, §§ 91-92, 4 September 2014)?
Did the State strike a fair balance between the compeeting interests of the individual applicant and the general interest (see Yevgeniy Dmitriyev v. Russia, no. 17840/06, §§ 53-57, 1 December 2020)?
2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts give sufficient reasons as to whether the placement of the TDP in the basement of an apartment building was in accordance with the requirements provided by law, considering that it had not been authorised by the Public Health Agency (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018)?