Country
Croatia
Sources
InforMEA
Tagging
Remedies, Inspections, Permits, Taxation, Admissibility, Damages, Prevention, Human Rights, Air pollution
Abstract
The applicant Oluic (O) owned part of a house in Rijeka in Croatia where she lived with her family. Since December 1999 a bar had been run by a third party who lived in the other part of the house. In 2001 O wrote to the Sanitary Inspection(SI) (which was a public authority responsible for noise nuisance abatement in the area in which O lived) claiming that her flat had been constantly exposed to excessive noise from the bar which was open from 7am until midnight each day. In January 2009 the SI ordered the owner of the bar to reduce the noise level but a month later measurements showed that the noise levels from the bar had not exceeded the set standards. O then brought an action before the European Court of Human Rights on the basis that the State had failed to protect her from the excessive noise which emanated from the bar. Firstly, the Government argued that O had failed to exhaust domestic remedies in the administrative proceedings. The Government also argued that O had failed to enlist the aid of civil proceedings to abate the nuisance. The Court held that before one could invoke the assistance of the Court, one was required to make use of normal domestic remedies which are effective, sufficient and accessible. If there were a number of domestic remedies, an individual could make use of a remedy which addressed his or her grievance. In other words, when a remedy had been pursued there was no need for the applicant to pursue another remedy which had the same objective. In the instant case the remedies which O had invoked were aimed at securing the same objective as the appropriate civil proceedings, namely abating the noise from the bar. Therefore, the Government’s argument that the applicant had failed to exhaust domestic remedies by reason of failing to take civil proceedings against the author of the nuisance fell to be rejected. Secondly, the Government argued that the applicant had failed to exhaust domestic remedies, in that the administrative proceedings against the bar owner were still pending. Thirdly, the Government claimed that the level of noise to which the applicant was exposed had not reached the necessary level of severity for Article 8 to be engaged. Fourthly, the Government claimed that the dispute simply concerned two private individuals in contradistinction to an act of the State against the individual. The court held that that both the second, third and also fourth issues fell to be decided on the merits of the case. Tthe Court held that whilst there is no right to a clean and quiet environment under human rights law, where an individual is both directly and also seriously affected by noise or other forms of pollution, Art 8 could be engaged. The Court went on to state that whereas Art 8 is essentially aimed at protecting the individual against arbitrary interference by public authorities it may involve the authorities adopting measures which are designed to secure respect for private life even in the sphere of relations between private individuals themselves. However, in determining whether Art 8 had been breached the applicable principles were the same, that is to say, regard had to be paid to the competing interests of the individual and of the community. The instant case concerned an allegation that the relevant public authorities had failed to put a stop to third parties breaching the applicant’s rights under Art 8. The Court then went on to hold that both the volume of noise and also its duration reached the minimum level of severity which required the relevant authorities to implement measures in order to protect the applicant from such a noise in terms of Article 8. The fact that the noise which was excessive and also the fact that the national authorities had allowed the situation to persist for almost eight years, meant that the State had failed to discharge its positive obligation to guarantee the applicant’s right to respect for her home and family life. Therefore, there had been a violation of Art 8.