Communicated on 11 December 2017
FIRST SECTION
Application no. 75031/13
Katarzyna KAPA
and 3 other applications against Poland
lodged on 22 November 2013
STATEMENT OF FACTS
A list of the applicants, who are relatives, is set out in the appendix. They are represented before the Court by Mr Ł. Brydak, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the case, as established by the domestic courts in the course of the civil proceedings described below and as submitted by the applicants, may be summarised as follows.
1. Background
Since an unspecified date the applicant family have lived in a detached house situated in Smolice at no. 11 Cegielna Street, several metres from national road no. 14 (“the N14 road”). The N14 road runs parallel to the applicants’ street through the neighbouring town of Stryków, which has approximately 3500 inhabitants. Where the N14 road runs through Stryków, it is known as Warszawska Street.
2. The operation of the A2 motorway and its effects
On 26 July 2006 the General Directorate of National Roads and Motorways (Generalny Dyrektor Dróg Krajowych i Autostrad, hereinafter “the roads and motorways authority”) opened a new part of the A2 motorway running between the cities of Konin and Stryków. This part of the motorway was connected to the N14 road leading to Warsaw and Łódź. As a result, the traffic in Stryków, especially that involving trucks, seriously increased.
An impact assessment carried out in September 2006 by the Warsaw Institute for Environmental Protection (Instytut Ochrony Środowiska) revealed that noise levels significantly exceeded the statutory norms.
Protests erupted and the residents of Stryków and the surrounding area called on the authorities to urgently limit the traffic on the N14 road, especially at night.
As a result, on 10 August 2006 the roads and motorways authority presented to the city council (Rada Miasta) a plan for the fast‑track construction of a ring road to link the A2 motorway with the N14 road outside the city limits, or alternatively a plan for a two-kilometre extension of the A2 motorway beyond the city limits to connect with the A1 motorway. The latter project, which began late in 2006, was slowed down because of either a lack of government funding or, in the applicants’ submission, because of the roads and motorways authority’s persistent failure to make use of the State and European Union funds allocated to the project.
According to a privately commissioned expert report drawn up on 15 January 2007, the average number of cars passing through Stryków via the N14 road was 15,381 during the day and 2,818 at night, as measured in September 2006. The noise levels measured in Stryków at the same time significantly exceeded the national norms. In particular, the noise levels in residential areas exceeded the norms by 9.9 dB (LAeq) (the equivalent continuous sound level) (15.2% beyond the national norm) to 12.7 dB (LAeq) (19.5% beyond the national norm) during the day, and by 18.5 dB (LAeq) (33% beyond the national norm) to 21.3 dB (LAeq) (38% beyond the national norm) at night. The main cause of the noise was truck traffic, which constituted between 40 and 47% of all the traffic in Stryków. Such a large number of trucks was highly unusual for traffic within a city. The experts concluded that the noise should not be tolerated in the long term, even assuming that the situation was temporary. They recommended that stringent measures be undertaken in order to move a large amount of the traffic beyond the city limits.
Air and water pollution monitoring carried out by the Chief Inspectorate for Environmental Protection (Główny Inspektorat Ochrony Środowiska) in 2006 revealed, inter alia, that the annual average concentration of sulphur dioxide and nitrogen dioxide (pollutants which contribute to acid deposition and eutrophication respectively, which in turn can lead to changes in soil and water quality) on Warszawska Street was 8.9 μg/m3 and 33.1 μg/m3 (micrograms per cubic metre of air) respectively. On a scale of I-V, the waters in that area were rated IV, “unsatisfactory”.
In October 2006 the surface of Warsaw Street in Stryków was repaired.
In December 2006 the roads and motorways authority reorganised the A2 highway in order to alleviate the nuisance of the increased traffic in Stryków. In particular, alternative roads to Warsaw were indicated to the highway users. According to a court-appointed expert’s report, this measure brought the traffic levels on the N14 road back to those from before 2006, but did not eliminate the noise emitted by trucks, especially at night. Measurements taken by the expert in September 2008 revealed that the N14 road remained affected by heavy and fluid traffic, with a significant number of trucks.
The roads and motorways authority did not opt for anti-noise screens along the N14 road, because of insufficient space along Warsaw Street and because of the need to cover up the windows of the adjacent residential buildings and still leave access to individual plots.
On 22 December 2008 the extension to the A2 highway outside Stryków was opened for use. That proved to effectively reduce the heavy traffic on the N14 road, especially in the area where the houses belonging to the applicants and B.W. were located. The applicants confirmed that the traffic had dropped to an acceptable level.
The construction and operation of the A2 highway was authorised by a number of administrative decisions, including the original decision locating the highway, dating back to the 1990s. The construction was preceded by an environmental impact assessment in 2002. In January 2008 a post‑construction environmental impact assessment report was issued. These documents have not been submitted to the Court.
Use of the A2 highway was free of charge from 2006 until 2010 at least.
The operation of the highway resulted in the creation of various logistics centres and large warehouses in the Smolice and Stryków areas. That too led to increased traffic on the streets of those towns.
According to the court-appointed expert’s report, the roads and motorways authority could not have been aware of the level of traffic in Stryków caused by the operation of the A2 highway. The truck traffic was generated not only by the operation of the highway, but also by the operation of other national and regional roads in the vicinity of Stryków.
A privately commissioned report by psychologists drawn up on 15 September 2008 stated that the life of people living on Warszawska Street and on nearby streets was very badly affected by the increased traffic on the N14 road. Warszawska Street was very difficult to cross. Cars emitted a great deal of noise and exhaust fumes, and caused vibrations and other disturbance. That nuisance persisted practically 24 hours per day. As a result, the residents could not open windows, and damage was caused to their houses. The residents lived with serious stress caused by the audible noise and (even more harmful) infrasound stemming from trucks and other vehicles with large engines. This was compounded by the high concentration of exhaust fumes and vibrations.
The experts considered that severe and persistent noise could constitute biological stress causing physiological changes in humans. Such biological stress would initially cause an alert reaction of the human body and, in the event of strong stimulus (noise over 60 dB), could lead to death. Longer exposure to the stimulus caused insomnia, irreversible exhaustion, and also led to death. It was widely accepted among scientists that, because of the particularly strong neural pathways between the hearing apparatus and the brain, persistent audible noise caused not only hearing loss but also mental discomfort, and nervous breakdowns and disorders in internal organs and brain functions, such as cardiological ailments, strokes, breathlessness, dizziness, high blood pressure and the risk of ulcers. Exposing children to noise could cause attention deficit disorders and hyperactivity, learning difficulties, aggression, withdrawal, apathy, insomnia, bed-wetting and night-time fears. Children living in a noisy environment were also very susceptible to drops in their overall immunity, allergies, arthrosis, skin disease, ulcers, nausea, panic attacks, constipation or diarrhoea. The symptoms among the adults included problems with blood circulation and digestion, back pain, asthma, allergies, hair loss, depression, tobacco and alcohol addiction, aggression, depression and infertility.
Ultrasound, which mostly affected women and young people, caused, among other things, earache, hearing and speech impairments, stomach and heart pain, and breathing and hormone production disorders.
Vibrations could lead to the development of a so-called vibrations syndrome which seriously affected various body functions.
The experts concluded that life for the residents of Warszawska Street in Stryków was dreadful, and they risked severe psychophysiological ailments, illnesses and perhaps even a decrease in their life expectancy. All residents complained of interrupted sleep because of unbearable noise, infrasound and vibrations. Some of them had developed autoimmune diseases linked to stress.
3. Civil proceedings against the national roads and motorways authority
On 1 April 2009 the applicants brought a civil action against the State Treasury and the national roads and motorways authority, seeking compensation for damage to their physical and mental health and the infringement of their right to a peaceful and undisturbed private and family life, a home, and a feeling of security (no. XXV C 408/09)
On 7 April 2009 the Warsaw Regional Court (Sąd Okręgowy) joined the applicants’ case to an action which had been lodged one year earlier by a certain B.W., whose house was located in the vicinity of the applicants’ plot, along the N14 road.[1]
On 22 November 2011 the Warsaw Regional Court dismissed the applicants’ action for compensation. In view of the unprecedented nature of the action, the applicants were not ordered to bear any costs of the proceedings.
The regional court admitted as evidence various reports from experts in traffic engineering and acoustics, and heard the claimants and specialists employed at the relevant time by the roads and motorways authority. The court rejected the report prepared by the Chief Inspectorate for Environmental Protection and produced following the monitoring of air pollution in the area on the grounds that, even though it was common knowledge that increased traffic led to increased emissions of exhaust fumes, the exact cause of the air pollution in the area was unknown.
The regional court considered that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by car traffic had gone beyond the statutory norms. The court held that the authorities had not been passive and had not tolerated the nuisance caused by the increased traffic on the N14 road. They had been quick to acknowledge the problem brought to their attention by the area’s residents and to implement an ad hoc measure by diverting a portion of the traffic to the capital via other roads. The authorities had also been swift to prepare and start implementing the plan for a long-term solution – the construction of a ring road around Stryków. As of December 2008 these measures had significantly reduced the amount of traffic in the town. In view of these considerations, the court concluded that the authorities had acted in accordance with the law, namely section 20 of the Law of 21 March 1985 on public roads (see below), and thus could not be held liable for the infringement of the applicants’ personal rights. That element was to distinguish the case from the judgment of the Supreme Court (Sąd Najwyższy) of 23 February 2001 (II CKN 394/00, see below), in which it had been held that the local government’s tolerating noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. In view of that finding, the court considered it unnecessary to examine the results of the noise monitoring report commissioned by the claimants or to obtain expert evidence on the effects of the noise on the applicants’ mental health. Lastly, the court observed that compensation could not be awarded under Article 417 of the Civil Code, because the applicants had not proved that the harm resulting from the increased traffic between 2006 and December 2008 had made them unfit for work.
On 19 December 2012 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed an appeal by the applicants without charging them any court fees.
The appellate court employed the following reasoning.
The construction of the A2 highway had pursued a legitimate general interest of society and had received media attention. Because of that, it was understandable that the highway could not have been simply cut off before reaching Stryków and that traffic had to be directed through the town. The increased traffic had indeed caused a nuisance to the residents of the area, but it was the only available solution which was technically sound. The N14 road had been in operation prior to the motorway, and “nobody had promised ... that [its] construction [would] eliminate or reduce traffic on that road”. The fact that the amount of traffic, especially truck traffic, had increased was as a result of matters beyond the power of the roads and motorways authority. In particular, that authority was not responsible for how many drivers chose and which type of vehicles used the N14 road instead of the alternative roads indicated from the city of Konin. It was also impossible to predict the cars’ impact on air pollution, namely how many cars passing through Warsaw Street would not be equipped with a catalytic converter or would have exhaust pipes which did not work, and what their speed would be and how often they would break down. The roads and motorways authority had acted in compliance with the law, in that they had undertaken firstly ad hoc and then long-term measures to alleviate the nuisance caused by the traffic.
The appellate judgment was served on the applicants on 24 May 2013 and no cassation appeal was available.
B. Relevant domestic law and practice
1. Liability in tort
Article 23 of the Civil Code, which entered into force in 1964, contains a non-exhaustive list of so‑called “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, ... in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law, regardless of the protection laid down in other legal provisions.”
Article 24 paragraph 1 of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement, [the person concerned] may also require the party responsible for the infringement to take the necessary steps to remove [the infringement’s] consequences ... In compliance with the principles of this Code, [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 144 of the Civil Code provides as follows:
“In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property beyond average degree as defined by the socio-economic purpose of the immovable property and the local conditions.”
Under Article 222 § 2 of the Civil Code:
“The owner shall have the right to claim restitution of his lawful position and the cessation of infringements of the law against a person who infringes his ownership other than by depriving the owner of actual control of the property in question.”
There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223 of the Civil Code).
Under Article 415 of the Civil Code, which provides for liability in tort, anyone who through his or her fault causes damage to another is required to repair it.
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Furthermore, Article 77 § 1 of the 1997 Polish Constitution (Konstytucja), which entered into force on 17 October 1997, and Article 417 of the Polish Civil Code provide for the State’s liability in tort. The latter provision reads as follows:
“The State Treasury, or [as the case may be] a local-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission connected to the exercise of public authority.”
Article 4171 § 2 of the Civil Code reads as follows:
“Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after the unlawfulness [of the ruling or decision] has been established in relevant proceedings, except where otherwise provided by law.”
Article 4172 of the Civil Code provides the following:
“If any damage has been caused to a person through the lawful exercise of public authority, the victim shall claim full or partial redress and compensation, provided that the circumstances, in particular the victim’s being unfit for work or his or her difficult financial situation, call for [a ruling on] an equitable basis.”
Article 445 § 1 of the Civil Code, applicable in the event a person suffers a physical injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“...[T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
On 23 February 2001 the Supreme Court ruled in a case concerning the noise nuisance stemming from the traffic on a high-speed road managed by a municipality (II CKN 394/00). The court held firstly that the obligations of local government in the context of protecting the environment came directly from the Act of 31 January 1980 on protecting and shaping the environment (Ustawa o ochronie i kształtowaniu środowiska), which was repealed on 26 October 2001. Those provisions, in conjunction with the relevant civil-law provisions, therefore formed a sufficient basis for claims of a civil nature. Secondly, local government’s tolerating noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Moreover, seeking the removal of the consequences of the infringement of those rights, by means of constructing anti-noise screens, fell within the scope of Article 24 § 1 of the Civil Code.
2. Environmental regulations
(a) Constitutional protection of the environment
Article 5 of the Polish Constitution provides that Poland shall ensure the protection of the environment, being guided by the principle of sustainable development. Other relevant constitutional provisions read as follows:
Article 74
“1. Public authorities shall pursue policies ensuring the ecological security of current and future generations.
2. Protection of the environment shall be the duty of public authorities.
3. Everyone shall have the right to be informed of the quality of the environment and its protection.
4. Public authorities shall support the activities of citizens to protect and improve the quality of the environment.”
Article 68 (4)
“Public authorities shall combat epidemic illnesses and prevent the negative health consequences of degradation of the environment.”
(b) Noise
The duty to protect the environment from noise is set out, defined and further regulated in section 112 et al., section 2.2(a), section 3.5 and section 3.26(a) of the Act of 27 April 2001 on the protection of the environment (Prawo ochrony środowiska, hereinafter “the Protection of the Environment Act”), which has been in force since 1 January 2002, and in the Minister for the Environment’s Ordinance on acceptable levels of noise in the environment (Rozporządzenie w sprawie dopuszczalnych poziomów hałasu w środowisku) in its version of 29 July 2004, in force from 13 August 2004 until 20 July 2007, and in its version of 14 June 2007, in force since 20 July 2007, with further amendments.
The 2004 version of the above ordinance provided that, in areas where multiple families lived, such as the one where the applicants live, the acceptable level of noise stemming from roads was 60 dB(A) during the day and 50 dB(A) at night. The more recent version of the ordinance in question changed these parameters to 65 dB (LAeq) and 56 dB (LAeq) respectively.
Under the Act of 21 March 1985 on public roads (Ustawa o drogach publicznych), which has been in force since 1 October 1985, the administration of public roads and motorways is the responsibility of the Minister for Transport and the roads and motorways authority. This Act imposes various obligations on the latter authority, including an obligation to prevent adverse transformations of the environment which may be caused by the construction or maintenance of roads (section 20(13)), and an obligation to limit or stop road traffic in the event of a direct threat to people’s security (section 20(14)). Moreover, when planning a road, the authorities are duty-bound to assess the impact of the project on road security, such impact including, inter alia, the impact on existing road networks and on the type and amount of traffic (section 24(i)(2)).
Poland is also bound by the European Parliament and the European Council’s Directive 2002/49/EC relating to the assessment and management of environmental noise of 25 June 2002 (“the Environmental Noise Directive”, transposed by Poland by means of an amendment to the Protection of Environment Act dated 18 May 2005). The Directive sets out noise indicators for reporting purposes which otherwise do not constitute legally binding EU-wide noise limit values or targets.
On 17 May 2017 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to adopt measures on environmental noise, namely to establish strategic noise maps and action plans as required under the EU rules (the Noise Directive, Directive 2002/49/EC) to decrease noise pollution in the EU (no. 20172068). The infringement proceedings are currently ongoing.
(c) Air pollution
The obligation to ensure the highest air quality is set out and further regulated in section 85 et al. of the Protection of the Environment Act and in the Minister for the Environment’s Ordinance on acceptable levels of certain substances in the air (...) (Rozporządzenie w sprawie dopuszczalnych poziomów niektórych substancji w powietrzu, alarmowych poziomów niektórych substancji w powietrzu oraz marginesów tolerancji dla dopuszczalnych poziomów niektórych substancji) in its version of 6 June 2002, in force from 12 July 2002 until 3 April 2008, and in its version of 3 March 2008, in force from 3 April 2008 until 3 October 2012.
The ordinance provided that, at the material time, from August 2006 until December 2008, the absolute norm for the annual average concentration of sulphur dioxide in the air was 20 μg/m3, and the norm for nitrogen dioxide was 40 μg/m3, subject to a margin of tolerance. The margin of tolerance was fixed at 8-20% for 2006, at 6-15% for 2007, and at 4-10 % for 2008. Under the law, such levels of nitrogen dioxide were acceptable, taking into account the need to protect human health.
Poland is also bound by the Directive 2008/50/EC of the European Parliament and the European Council of 21 May 2008 on ambient air quality and cleaner air for Europe (which entered into force on 11 June 2008 and which was transposed by Poland by means of two Acts in 2009 and 2012 and seven ordinances in 2012). This Directive establishes air quality objectives, including cost-effective targets for improving human health and environmental quality up to 2020. Limit values for the protection of human health are as follows: for sulphur dioxide, 125 µg/m3 in twenty‑four hours, not to be exceeded more than three times a calendar year; and for nitrogen dioxide, 40 µg/m3 in a calendar year, as of 1 January 2010 (with a 50% margin of tolerance on 19 July 1999, decreasing on 1 January 2001 and every twelve months thereafter by equal annual percentages to reach 0% by 1 January 2010; see Annex XI). Alert and information thresholds are as follows: 500 µg/m3 for sulphur dioxide, and 400 µg/m3 for nitrogen dioxide (Annex XII).
The earlier Council Directive 1999/30/EC relating to limit values for, inter alia, sulphur dioxide and nitrogen dioxide in ambient air (the First Daughter Directive, in force from 19 July 1999 until 10 June 2010, transposed by Poland by means of, inter alia, the 2001 Act on Environmental Protection and the 2002 Ordinance on acceptable levels of certain substances in the air) set out the same daily limit values and alerts thresholds for both pollutants in question (Annexes and II). Under the directive, the daily limit value for sulphur dioxide for the protection of human health (125 μg/m3) was to be applicable as of 1 January 2005.
Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (which entered into force on 27 November 2001 and which was transposed by Poland by means of a series of Acts and ordinances) sets national emission ceilings on, inter alia, annual sulphur dioxide and nitrogen oxide emissions to be attained by 2010 at the latest and to be maintained from that year (Article 4). These ceilings, per calendar year, are 1397 kilotons for sulphur dioxide and 879 kilotons for nitrogen oxide (Annex I).
On 25 February 2016 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to take action to ensure good air quality and safeguard public health in relation to breaches of air pollution limits for nitrogen dioxide under the EU legislation on ambient air quality (Directive 2008/50/EC) (no. 20162010). The infringement proceedings are currently ongoing.
COMPLAINTS
The applicants complain that by routing heavy traffic from the A2 highway via the N14 road, which was not equipped for this, the authorities breached their right to the peaceful enjoyment of their private and family life and their home, as their home is situated at a very short distance from the road. In particular, the applicants submit that the infringement was caused, on the one hand, by the bad planning of the construction of the highway, which disregarded the obligation to ensure the protection of residential areas, and, on the other hand, by the inadequate response to remedy the resulting situation. As regards the former point, the applicants submit that the authorities had already faced a similar situation when they had opened another part of the A2 highway. As to the latter point, the applicants complain that the authorities failed to create good quality alternative roads and to limit the night-time traffic on the N14 road.
QUESTIONS TO THE PARTIES
1. Was the detriment suffered by the applicants on account of the noise, vibration and pollution nuisance caused by the operation of the N14 road from August 2006 until December 2008 sufficiently serious to raise an issue under Article 8 of the Convention? If so, did the State strike a fair balance between the competing interests of individual applicants and the community as a whole? Did the protracted deterioration of the applicants’ living circumstances violate their rights under Article 8 of the Convention with regard to the State’s positive obligations in this field (see Grimkovskaya v. Ukraine, no. 38182/03, 21 July 2011; Deés v. Hungary, no. 2345/06, 9 November 2010; Frankowski v. Poland (dec.), no. 25002/09, 20 September 2011; Greenpeace e. V. and others v. Germany (dec.), no. 18215/06, 12 May 2009; and, mutatis mutandis, Martin Ward v. the United Kingdom (dec.), no. 31888/0, 9 November 2004)?
2. The applicants are requested to comment on whether, in view of their complaint about the noise, pollution and vibrations nuisance as described above, they suffered any adverse effects on their physical or mental health. They are also asked to furnish the relevant medical reports in this respect.
3. The Government are requested to submit the results of the periodical monitoring (państwowy monitoring środowiska) of the levels of air quality, air pollution, and noise (effected under the Law on the Protection of Environment as applicable at the relevant time, and the Minister of Environment’s Ordinance of 17 January 2003 on the types of measurement results related to the use of roads (...) to be transmitted to the relevant authorities for environmental protection ...) for the area where the applicants lived, both for the period preceding August 2006, when traffic on the N14 road was increased due to the opening of the relevant part of the A2 motorway, and for the period after that date.
4. The Government are also asked to submit copies of the relevant administrative decisions concerning the siting, construction and operation of the A2 motorway in the Stryków area and the related environmental impact assessment report, and a copy of the decision authorising the routing of the motorway traffic through the N14 road running through Stryków.
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
75031/13
22/11/2013
Katarzyna KAPA
28/09/1984
Smolice
Łukasz BRYDAK
75282/13
22/11/2013
Jacek JUSZCZYK
29/03/1958
Smolice
Łukasz BRYDAK
75286/13
22/11/2013
Mateusz JUSZCZYK
24/09/1991
Smolice
Łukasz BRYDAK
75292/13
22/11/2013
Barbara Halina JUSZCZYK
30/06/1959
Smolice
Łukasz BRYDAK
[1]. B.W. also applied for the respondent to be ordered to reorganise the traffic by barring 25-tonne vehicles from entering the town of Stryków. He withdrew this claim on 20 February 2009.
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