CASE OF OLUIC v. CROATIA
Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, ratione materiae);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant lives in Rijeka. 5. The applicant owns a part of a house in Rijeka where she lives with her family. Since December 1999 a bar, F., has been run by a third person in the other part of the house. 6. On 16 March 2001 the applicant wrote to the Primorsko-Goranska County Sanitary Inspection, the Rijeka Office for Employment, Health and Social Welfare (Sanitarna inspekcija Ureda za rad, zdravstvo i socijalnu skrb primorsko-goranske županije u Rijeci – “the Sanitary Inspection”), reporting that her flat had constantly been exposed to excessive noise from the F. bar, which was open from 7 a.m. to midnight each day. She invited the Sanitary Inspectorate to measure the noise. On 30 March 2001 the applicant urged action on her request. 7. Measurements were carried out on 1 May 2001 at night by an independent expert firm. The expert found that the level of noise at night had exceeded the permitted level. In a room situated in the western part of the applicant's flat the noise level at night reached 35,9 dB (decibels) which exceeded the permitted level by 5,9 dB. In a room situated in the eastern part of the applicant's flat the noise at night reached 38,5 dB which exceeded the permitted level by 8,5 dB. 8. In a decision of 1 June 2001 the Sanitary Inspection ordered the company L., the owner of the bar F., to reduce the level of noise from their equipment for reproduction of music. The decision relied on the measurements carried out on 1 May 2001 for the purposes of these proceedings which had established that the noise from F. exceeded the prescribed limit. The decision was however quashed on 24 August 2001 by the Ministry of Health, upon an appeal lodged by the respondent and the case was remitted to the Sanitary Inspectorate. 9. Measurements carried out on 13 October 2001 at night again showed that noise from F. exceeded the permitted level by 1.8 dB to 6.9 dB depending on the exact place of measurements. The maximum levels measured inside the applicant's flat were 36.9 dB and the external noise level, at the house entrance, 57 dB. 10. Measurements carried out on 17 November 2001 again showed that noise from F. exceeded the permitted level by 2.1 to 5.2 dB depending on the exact place of measurements. The maximum level measured at the applicant's flat was 35.2 dB, and the external noise level 55.2 dB. 11. By decision of 15 February 2002 the Sanitary Inspectorate ordered the owner of the bar to add sound insulation to the walls and the inter-floor construction according to the Croatian standards in that respect. 12. An inspection carried out on 24 April 2002 established that the above decision had not been complied with. 13. On 3 May 2002 the Sanitary Inspectorate ordered the enforcement of the above decision if the owner did not comply with it by 31 May 2002. On the latter date an inspection established that the bar F. had been closed and that the owner had lodged a request with the local Tourism Office to allow the bar to be closed in order to install the required sound insulation. 14. A further inspection in the bar F., carried out on 12 June 2002 showed that sound insulation had been installed. Measurements were not carried out because the applicant sought the replacement of the Sanitary Inspector assigned to the case. On 10 July 2002 the request was denied. 15. On 20 September 2002 a further measurement showed that the level of noise insulation on the first floor was insufficient. The owner of the bar objected to these findings and on 4 November 2002 a fresh expert report was ordered. 16. On 11 November 2002 the applicant again sought the replacement of the Sanitary Inspector assigned to the case. Her request was declared inadmissible on 26 November 2002. 17. The measurements carried out on 14 February 2003 again showed that noise from F. exceeded the permitted level. On 14 March 2003 the firm L. informed the authorities that it no longer ran the bar F. An on-site inspection of 21 March 2003 showed that the first floor of the house was no longer used as a bar, but only the ground floor. On 24 March 2003 the proceedings were terminated on the grounds that the measurements previously carried out had shown that the level of noise on the ground floor was not excessive. 18. The applicant lodged an appeal, which was dismissed by the Ministry of Health on 19 May 2003. On 25 June 2003 the applicant brought a claim before the Administrative Court (Upravni sud Republike Hrvatske), challenging the findings of the administrative bodies. 19. Further measurements carried out for three consecutive nights from 13 to 15 May 2005 showed that the level of noise in the applicant's flat exceeded the permitted level by 3.2 to 15.6 dB, depending on the time of measurements. The noise in the period from 10 p.m. to midnight reached levels of 40.6 dB on the night of 13 to 14 May and 34 dB on the night of 14 to 15 May. 20. On an unspecified date the applicant lodged a complaint with the Supreme Court about the length of the proceedings before the Administrative Court. On 26 March 2007 the complaint was accepted and the Supreme Court ordered the Administrative Court to adopt a decision within three months. 21. On 24 April 2007 the Administrative Court quashed the lower bodies' decisions and ordered them to establish whether the noise coming from the bar was still excessive. 22. On 9 October 2007 the second-instance administrative body annulled the decision of 24 March 2003 on the grounds that the measurements of noise in the applicant's flat and in the common yard in front of the house showed that the noise coming from F. was excessive and that the noise insulation between F. and the applicant's flat was insufficient. 23. On 4 December 2007 the Primorsko-Goranska County Sanitary Inspectorate ordered expert noise measurements to be carried out on 12 December 2007. These measurements showed that the insulation was sufficient. On 30 January 2008 the applicant requested new measurements in the evening hours and without prior notification. This request was accepted on 17 March 2008 and the applicant was invited to indicate the date for measurement. She submitted her answer on 15 December 2008 and the measurement was carried out on 19 December 2008. They showed that the level of noise was again excessive. The maximum level of noise measured inside the applicant's flat was 31.6 dB and the external level of noise 54.6 dB. 24. On 30 January 2009 the Sanitary Inspectorate ordered the owner of the bar to reduce the noise. Measurements carried out on 23 February 2009 showed that the level of noise had not exceeded the set standards. 25. The applicant submitted medical documentation of 1 September, 4 October and 8 November 2006, in respect of her daughter, born in 1966, showing that she suffered from hearing impairment and recommending that she avoid exposure to noise. She also submitted medical documentation of 14 and 27 March 2007 in respect of her husband, born in 1944, showing that he had been treated for heart disease, including heart surgery. 26. Section 4 of the Bylaw on the Maximum Permitted Levels of Noise in Areas Where People Work and Live (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 37 of 25 September 1990) limits the maximum permitted noise-reception level inside closed residential areas at 30 dB in the period between 10 p.m. and 6 a.m. (night) and at 40 dB during day. The limit for external noise-reception level was set at 55 dB during day and 45 dB at night. 27. Section 5 of the Bylaw on the Maximum Permitted Levels of Noise in Areas Where People Work and Live (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 145/2004 of 19 October 2004) limits the maximum permitted noise-reception level inside closed residential areas at 25 dB in the period between 10 p.m. and 6 a.m. (night) and at 35 dB during day. The limit for external noise-reception level was set at 55 dB during day and 45 dB at night. 28. Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise. 29. The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations (Chapter 4 of the Guidelines). These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment. 30. In relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments. 31. At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided.