AS TO THE ADMISSIBILITY OF
Application No. 12671/87
by G. A.
against Sweden
The European Commission of Human Rights sitting in private
on 13 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 September
1986 by G. A. against Sweden and registered on 22 January
1987 under file No. 12671/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a citizen of Sweden, born in 1922 and
resident in Gothenburg.
The applicant owns a property of 2.000 m², situated at the
seaside at Kolhättan, with two buildings and one garage. Both
buildings may be used for permanent dwelling. The applicant's
intention has been to use the property as his permanent residence.
Near the applicant's property there is a ferry trafficking
between Kolhättan and Svanesund. The operation of the ferry at the
Kolhättan ferry berth creates noise of a low frequency character which
the applicant finds intolerable. Responsible for the running of the
ferry traffic is the National Road Administration (statens vägverk).
By letter of 30 September 1975 the applicant complained about
the noise nuisance and asked the Stenungsund Health Committee
(hälsovårdsnämnden i Stenungsund) to take steps to reduce the noise
and vibrations from the ferries. The request was rejected.
The applicant lodged an appeal with the County Administrative
Board (länsstyrelsen) of Gothenburg and Bohus County (Göteborg och
Bohus län) and a further appeal with the Administrative Court of
Appeal in Gothenburg (kammarrätten i Göteborg). Based inter alia on
the opinion of the National Environment Protection Board (statens
naturvårdsverk) the Administrative Court of Appeal considered that the
noise nuisance from the ferry traffic was a health nuisance (sanitär
olägenhet) for the applicant. It therefore quashed the decision
complained of and referred the matter back to the Stenungsund Health
Committee.
On 25 May 1978 the Health Committee decided that idling would
be prohibited between 00.00 and 05.00 and further that the National
Road Administration should propose measures to reduce the noise in
other respects.
After having received a report from the National Road
Administration, the Health Committee decided, on 5 October 1978, in
application of Sections 62 and 71 of the Health Care Act
(hälsovårdsstadgan) to prohibit idling between 00.00 hours and 05.00
hours and also during other times if the stand still of the ferry
exceeded 5 minutes. The Health Committee also stated that the noise
on the ferries should be further reduced by the National Road
Administration.
On 8 August 1978 a private company had made an investigation
of the noise at the applicant's property and established a level of
52-60 dB (IL) when the ferry passed and 52 dB (IL) when idling at the
ferry berth.
Being dissatisfied with the above decisions the applicant
appealed to the County Administrative Board and requested that there
be no idling at all. The National Road Administration also appealed.
In an opinion to the Board dated 18 December 1978 the County Doctor
(länsläkare) stated inter alia that the effect on human beings of low
frequency noise had not been studied in depth. There were those who
had similar problems to those of the applicant but they were few. On 1
February 1979, the County Administrative Board confirmed the decision
to prohibit idling between 00.00 and 05.00 hours but quashed the
remainder of the Health Committee's decision.
The applicant appealed to the Administrative Court of Appeal
which in a judgment of 27 June 1980 rejected the appeal.
In an opinion to the Court, the National Administration of
Shipping and Navigation (sjöfartsverket) had stated that the levels of
noise which had been established in the case were clearly below what
the National Administration had proposed concerning the maximum level
of noise on board ships in accommodation and recreational rooms, i.e.
90 dB (IL).
The applicant appealed to the Supreme Administrative Court
(regeringsrätten) which, on 19 December 1980, refused to grant leave to
appeal.
In 1983 a new Health Protection Act (hälsoskyddslagen) entered
into force. The applicant then again requested that the Stenungsund
Environmental and Health Committee (miljö- och hälsoskyddsnämnden)
should take measures to reduce the noise nuisance.
The Committee decided on 1 September 1983 not to take any
measures, but it noted that new ferries were now used.
The applicant appealed to the County Administrative Board and
then to the Administrative Court of Appeal which on 28 October 1985
rejected the appeal. On 18 August 1986 the Supreme Administrative
Court (regeringsrätten) refused leave to appeal.
COMPLAINTS
The applicant complains that the low frequency noise and
vibrations from the ferries operated by the National Road
Administration subject him to torture and inhuman treatment. It is
established that low frequency noise is a health hazard to human
beings. The applicant suffers both physically and psychologically
from the noise. Nevertheless, the responsible authorities do not
reduce the noise sufficiently.
The applicant alleges violations of Articles 3, 5 and 8 of the
Convention and of Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. The applicant complains of noise nuisance caused by the
ferries operating near his property. He invokes Articles 3, 5 and 8
(Art. 3, 5, 8) of the Convention and Article 1 of Protocol No. 1 (P1-1)
to the Convention.
The Commission has first examined the application under
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 has previously accepted that noise nuisance
caused by air traffic operated by State bodies may constitute an
interference with an individual's right to respect for his private
life and his home if the level of noise attains a certain level of
intensity (cf. No. 7889/77, Dec. 15.7.80, D.R. 19 p. 186; No. 9310/81,
Dec. 16.10.85 to be published in D.R. and No. 12816/87, Dec. 18.1.89, to
be published in D.R.)
In the present case, it is established that the level of noise
from the operation of the ferries does not exceed the applicable
limits. On the other hand, the Commission does not question that the
applicant nevertheless suffers physically and psychologically from the
noise and that he does so mainly because of the specific low frequency
noise in respect of which specific standards are difficult to
establish.
The Commission considers that it can leave open the question
whether the noise attains such a level that it constitutes an
interference with the applicant's right to respect for his private
life and his home. Even if this were so, such an interference would be
justified under Article 8 para. 2 (Art. 8-2) of the Convention for the
following reasons.
The Commission is satisfied that the operation of the ferries
is lawful under Swedish law and that the alleged interference is "in
accordance with the law". Furthermore, the operation of the ferries
is in the interest of the economic well-being of the country in that
it improves the means of transportation.
The Commission further considers that the alleged interference
is proportionate to the legitimate aim pursued by the operation of the
ferries. It notes the applicant's particular sensitivity for low
frequency noise and observes that his complaints have been thoroughly
examined by the competent domestic bodies and that idling was
prohibited during the night.
In these circumstances, the alleged interference with the
applicant's rights under Article 8 para. 1 (Art. 8-1) is justified
under the terms of paragraph 2 (Art. 8-2).
Consequently, this complaint does not disclose any appearance
of a violation of Article 8 and is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also invokes Article 1 of Protocol No. 1 (P1-1)
which guarantees the right to the peaceful enjoyment of possessions.
It is true that noise nuisance of considerable importance may
affect the value of the property and in extreme cases even render it
unsaleable (cf. the cases referred to above). In such cases an issue
may arise under Article 1 of Protocol No. 1 (P1-1).
However, in the present case, it has not been established that
the value of the applicant's property has, as a result of the noise
nuisance from the ferries, diminished to such an extent that an issue
could arise under Article 1 of Protocol No. 1 (P1-1).
Consequently, an examination of this complaint does not
disclose any appearance of a violation of the said provision.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant also invokes Articles 3 and 5 (Art. 3, 5) of the
Convention.
However, the Commission finds no issue under these provisions.
It follows that these complaints are also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)