THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38197/03
by Ioan MARCHIŞ and Others
against Romania
The European Court of Human Rights (Third Section), sitting on 28 June 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 7 November 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ioan Marchiş, Mr. Gheorghe Glodean and Mr. Ion Buftea are Romanian nationals who were born in 1950, 1957 and 1970 respectively and live in Strâmtura. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. In 2001 a private individual, B.P., started the construction of a residue-collecting basin in order to carry out the production of alcohol. The 10,000 litre capacity basin was located in the centre of the village of Strâmtura, a few hundred metres from the applicants’ windows and close to a supermarket, school, church and the town hall.
2. According to the information submitted by the Government, the residue-collecting basin was located 1 km from the first applicant’s property and 300 m from the second applicant’s property. The third applicant had a property 30 m from the basin, but during the period within which the distillery operated he did not live there.
3. B.P. started the production of alcohol without obtaining the necessary authorisations. Therefore, the mayor of the village imposed two fines on him for this breach.
4. On 27 March 2002 the Baia Mare Environmental Protection Inspectorate granted an environmental permit for the operation of the distillery, although they had initially dismissed BP’s request for authorisation. In granting the permit, the issuing authority imposed on the beneficiary an obligation not to cause discomfort in the area and interdicted him from releasing residues directly into the village’s water supply.
5. On 30 March 2002 the mayor of Strâmtura authorised the operation of the distillery.
6. In 2002 the applicants lodged a civil action with the Maramureş District Court, seeking to obtain the cancellation of the environmental permit granted to B.P. They contended that the operation of the distillery in the centre of their village, close to the school and church, had caused discomfort – not only to them, but also to other inhabitants of the village, had affected their health and had polluted the water passing through the village. They added that the residue-collecting basin was very close to the houses of the second and the third applicants, making their lives intolerable. They contended, in particular, that they had not been able to open their windows because of the smell and because of the countless flies that had been attracted by the residues collected in the basin.
7. By a judgment rendered on 9 December 2002, the Maramureş County Court dismissed their action on the grounds that the environmental permit had been lawfully granted. It stated that a public meeting had been organised by the mayor and that eighty people had attended it. It considered the applicants’ allegations concerning the insufficient number of attendees at the meeting to be unsubstantiated, noting that the law did not require a specific type of public meeting, consultation of the population or a minimum number of attendees at a public meeting. With regard to the location of the distillery in the centre of the village, the court noted that all the competent authorities had considered that the operation of the distillery would neither disturb its neighbours nor affect the environment.
8. The applicants filed an appeal on points of law, claiming, inter alia, the absence of consent from neighbours located in close proximity to the distillery. On 28 May 2003 the Cluj Court of Appeal dismissed the appeal on points of law filed by the applicants, stating that according to Law no. 453 of 18 July 2001, the consent of neighbouring proprietors was only necessary in the event of construction of new buildings or measures being taken that were necessary for their protection. It noted that the written consent of the inhabitants living in the region had been obtained, being mentioned in a minute drafted by the mayor of the village on 14 March 2002.
9. The applicants continued to submit complaints regarding the allegedly illegal and damaging activities of the distillery to all competent authorities.
10. Consequently, a review was carried out by the Prefect’s office (Corpul de control al Prefectului) on 2 July 2002. It concluded that the matters mentioned in the applicants’ complaints were not substantiated.
11. According to a letter dated 15 December 2003, the Maramureş County Council informed the first applicant that in November 2003 the Maramureş Public Health Department had cancelled an environmental health permit required for the operation of the distillery. Furthermore, from the documents submitted by the applicant it appears that on 5 December 2003 the same authority had imposed a fine on the owner of the distillery for nonobservance of the obligations established for the operation of the distillery.
12. Based on the same source of information, it also appears that the tax authorities imposed a substantial fine on the distillery owner and ordered that the distillery’s activities be ceased starting from 15 June 2004.
13. The Government submitted that the functioning of the distillery had ceased in 2005.
B. Relevant domestic law and practice
14. Provisions of domestic law relevant to the present case are to be found in Tătar v. Romania (no. 67021/01, ECHR 2009‑... (extracts)).
COMPLAINTS
15. The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that, by granting permits for the operation of a distillery close to their properties, the Romanian authorities had interfered with their peaceful enjoyment of their properties and had made it impossible for them to enjoy their private and family lives.
16. Relying on Article 6 § 1 of the Convention they complained that the domestic courts had not taken into account all relevant pieces of evidence – in particular, witness testimonies – determinative of the lawfulness of the authorisation of the distillery.
THE LAW
A. Complaint under Article 8 of the Convention
17. The applicants complained that their right to enjoy their private and family lives in accordance with Article 8 of the Convention had been infringed by noxious smells and residues released by the distillery. In so far as relevant, this provision reads:
“1. Everyone has the right to respect for his private and family life [and] his home ...
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 ... the economic well-being of the country, ... or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
18. The Government first questioned the victim status of the applicants, maintaining that they had not had property close to the distillery and that accordingly they had not been directly affected by its functioning. Thus, they contended that the first applicant’s property had been situated 1 km from the distillery, while the second applicant’s property had been situated 300 m from it. With respect to the third applicant, the Government submitted that he had not lived in Strâmtura during the period covered by the application.
19. The Government also submitted that the complaint under Article 8 of the Convention should be declared inadmissible ratione materiae because of the temporary character of the activities carried out at the distillery. They contended that the distillery had only been authorised to operate on thirty days per year, twenty-four hours per day, and that it had only been operational for three years, namely from 2002 until 2005, when it had ceased its activities due to the non-observance by the distillery owner of the requirements of the permit to operate the distillery.
20. Furthermore, the Government submitted that the infringements complained of by the applicants had not been so serious as to attain the level of severity required by the Court’s case-law to fall within the sphere of Article 8.
21. The applicants maintained that their rights under Article 8 of the Convention had been infringed.
22. They firstly maintained that the domestic courts had dismissed their action for the annulment of the environmental permit on the grounds that the legal requirements for the grant of that permit had been met, although, in their opinion, the necessary written consent of neighbouring property owners had not been obtained and a construction permit had been illegally obtained.
23. The first applicant further contended that, although he had not lived in close proximity to the distillery, the smells and the residues released by it had disturbed him while he had been going to church, to the town hall or to the supermarket located in the village centre.
2. The Court’s assessment
a) As to the third applicant’s victim status
24. The Court points out that in order to raise an issue under Article 8 an interference must directly affect the applicant’s home, family or private life (see Fadeyeva v. Russia, no. 55723/00, § 68, ECHR 2005‑IV).
25. As noted in the decision of 28 May 2003 rendered by the Cluj Court of Appeal and as confirmed by the police, it appears that the third applicant did not live in Strâmtura during the period within which the distillery operated. Furthermore, after the Government had raised their objection, the third applicant did not express any position in this respect.
26. The Court concludes that the third applicant cannot claim to be a “victim” for the purposes of Article 34 of the Convention. The Government’s objection must therefore be allowed as regards the third applicant.
b) As regards the admissibility of the complaint raised by the first two applicants
27. The Court observes that the distillery and the residue-collecting basin were located in the centre of the village, close to a supermarket, school, church and the town hall. In relation to the first two applicants’ homes, they were located 1 km from the first applicant’s property and 300 m from the second applicant’s property.
28. The Court reiterates that there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise, smells or other pollution, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII). Specifically, Article 8 of the Convention applies to severe environmental pollution which may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, even without seriously endangering their health (see, among others, Taşkın and Others v. Turkey, no. 46117/99, § 113, ECHR 2004‑X).
29. Thus, the Court has found Article 8 to be applicable in, among others, the following circumstances: in López Ostra v. Spain (judgment of 9 December 1994, § 51, Series A no. 303-C, pp. 54-55) the applicant lived for many years only 12 m from a waste-treatment plant which emitted smells, noise and fumes, including hydrogen sulphide emissions which exceeded the permitted limit and which could have endangered the health of those living nearby. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I) all the applicants lived in a village approximately 1 km from a factory which was classified as being high-risk, as, in the course of its production cycle of fertilisers and caprolactam, it released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. In addition, because of the factory’s geographical position, its emissions into the atmosphere were often channelled towards the village.
30. Similarly, in Fadeyeva v. Russia (cited above) the applicant lived 450 m from the site of a steel plant (the largest iron smelter in Russia), within a delimited area in which the toxic pollution caused by steel production was excessive and where the maximum concentrations of pollutants registered near the applicant’s home were often ten times higher than the average annual concentrations, which were already above safe levels.
31. Likewise, in Giacomelli v. Italy (no. 59909/00, 2 November 2006) the applicant lived 30 m from a plant used for the storage and treatment of “special waste”, including the “detoxification” of hazardous waste, a process involving treatment of special industrial waste using chemicals. The operation of the plant had been found to be incompatible with environmental regulations by the Ministry of the Environment.
32. Again in the same vein, in Băcilă v. Romania (no. 19234/04, 30 March 2010) the applicant lived in Copşa Mică, near a plant operated by the Sometra company, one of Europe’s biggest producers of lead and zinc and at the time the biggest employer in the town. The plant discharged into the atmosphere significant amounts of sulphur dioxide and dust containing heavy metals, mainly lead and cadmium. Analyses carried out by public and private bodies established that heavy metals could be found in the town’s waterways, in the air, in the soil and in vegetation, at levels of up to twenty times the maximum permitted. The rate of illness, particularly respiratory conditions, was seven times higher in Copşa Mică than in the rest of the country. The Court found that the authorities had failed to strike a fair balance between the public interest in maintaining the economic activity of the biggest employer in a town and the applicant’s effective enjoyment of the right to respect for her home and for her private and family life.
33. Thus, as demonstrated by the above-mentioned cases, the Court reiterates that, in order to raise an issue under Article 8, interference must directly affect an applicant’s home, family or private life and the adverse effects of environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There will be no arguable claim under Article 8 if the detriment complained of is negligible in comparison to the environmental hazards inherent in life in every modern city (see Fadeyeva, cited above, §§ 68-69).
34. Turning to the case before it, the Court must establish whether there was any interference with the home, family and private lives of the first two applicants due to the operation of the distillery.
35. As is well established in the Court’s case-law, it is for the national authorities to make the initial assessment of the existence of interference. However, their decision remains subject to review by the Court for conformity with the requirements of the Convention (Buckley v. the United Kingdom, 25 September 1996, §§ 74-77, Reports 1996‑IV).
36. The Court notes that the domestic courts dismissed the applicants’ action on the grounds that all legal requirements for the delivery of an environmental permit had been met. They based their decisions on the conclusions of the competent authorities to the effect that the location of the distillery in the centre of the village would neither disturb its neighbours nor affect the environment.
37. The Court also notes that the reasons provided by the domestic authorities, both administrative and judicial, were plausible and based on a careful examination of the case. The Court is of the view that there is no indication of any arbitrariness in their reasoning.
38. Furthermore, the Court observes that the applicants did not substantiate their complaint about the alleged environmental nuisance before the national authorities. They provided no medical or environmental expert opinions or other evidence of the damage or nuisance allegedly caused to them by the operation of the distillery in the vicinity of their properties, either in the domestic proceedings or in the proceedings before the Court. Hence, it has not been reliably established that the operation of the distillery caused an environmental hazard, or that the pollution it caused exceeded safe levels set by the applicable regulations. In particular, it has not been shown that the pollution complained of was of such a degree or character as to cause any noxious effect on the applicants’ health or that of their families (contrast with López Ostra, cited above, 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, §§ 918, 66 and 67, 7 April 2009, concerning the smell from a waste dump).
39. It further considers that, even though the applicants’ properties are located nearby the distillery and the residue-collecting basin, it does not appear that the smells are such as to seriously affect the applicants or prevent them from enjoying their homes and their private and family lives.
40. Therefore, in the Court’s view, the nuisance caused by the distillery cannot be considered as an interference with the applicants’ rights.
41. Even if there was an interference, the Court observes that the distillery was only authorised to operate on thirty days per year, twenty-four hours per day, and that it only operated for three years, namely from 2002 until 2005. Furthermore, in 2005 it ceased its activities due to the prompt intervention of the Romanian authorities, which fined the distillery owner for non-observance of the requirements established in the permit to operate the distillery.
42. Hence, having regard to the above and to its case-law, the Court finds that, in so far as the matter complained of is within its competence, it does not disclose any appearance of a violation of Article 8 in the present case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Other complaints
43. In respect of their complaint that the operation of the distillery had prevented them from peacefully enjoying their possessions, the applicants relied on Article 1 of Protocol No. 1 to the Convention.
44. 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 the abovementioned Taşkın and Others).
45. It further observes that the applicants have not proved that the value of their properties has suffered as a result of the operation of the distillery close to their home. The Court, for its part, considers that it cannot speculate on this matter, all the more so since it would appear that the applicants did not specifically plead before the domestic courts that the impugned development adversely affected the value of their properties.
46. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
47. In respect of their complaint of unfairness in the judicial review proceedings, the applicants relied on Article 6 § 1 of the Convention. They complained that the domestic courts had not taken into account all relevant pieces of evidence – in particular, witness’ testimonies – determinative of the lawfulness of the distillery’s permit.
48. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
49. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy