CASE OF UDOVIČIĆ v. CROATIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1950 and lives in Cubinec. 6. Part of the house where the applicant has been living since 1991 with her family is occupied by a bar, and for a certain period of time a shop (see paragraph 43 below), run by company O-P. and its predecessor company F. (hereinafter “the company”), since August 2002. 7. The applicant is the owner of 59.63% of the house, while the company owns the remainder of the house with a share of 40.37%. 8. The bar is located on the ground floor of the house, below the applicant’s flat. The applicant also owns a flat on the ground floor adjacent to the bar. 9. In August 2002 the company began reconstruction work on its premises in order to open a bar and a shop. 10. On 21 August 2002 a building inspector (građevinski inspektor), acting on a complaint by the applicant, found that the reconstruction carried out by the company had not required any additional planning permission or authorisation. 11. The applicant lodged an appeal against the decision of the building inspector with the Ministry of Ecology, Spatial Planning and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, hereinafter “the Ministry of Construction”), arguing that the company had demolished one of the load-bearing walls and had made a hole in the façade. 12. On 28 June 2004 the Ministry of Construction allowed the applicant’s appeal and remitted the case to the building inspector on the grounds that he had failed to establish all the relevant facts. 13. On 7 June 2005 the building inspector found that the company had carried out the construction within the scope defined by the existing planning permissions. 14. The applicant again appealed to the Ministry of Construction, arguing that she had not had an opportunity to participate in the proceedings and that the findings of the building inspector were erroneous. 15. On 6 February 2006 the Ministry of Construction remitted the case to the building inspector on the grounds that he had failed to take into account the obvious modifications to the building, in particular the demolition of the load-bearing wall and fissures on the surrounding walls. 16. On 4 June 2007 the construction inspector ordered the applicant and the company to remove certain walls, a balcony, staircases and part of a rooftop, considering that they had been constructed without the necessary planning permissions. 17. The applicant appealed against that decision to the Ministry of Construction and on 26 October 2007 the Ministry dismissed her appeal. 18. On an unspecified date in 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske) challenging the decisions of the building inspector and the Ministry of Construction. 19. On 3 November 2011 the Administrative Court quashed the decisions of the administrative bodies and ordered that the case be re-examined on the grounds that the relevant facts had not been correctly established. 20. The administrative proceedings are still pending. 21. In August 2002 the company applied to the Koprivničko-Križevačka County State Administration Office (Ured državne uprave u Koprivničko-križevačkoj županiji, hereinafter “the County Office”) for an operating licence to run a bar and a shop. 22. An administrative commission, established to examine whether the premises in which the company intended to run a bar met the necessary operating requirements, noted in its report of 27 August 2002 that those requirements had been met. It relied on an expert report provided by company Z. which, without measuring the noise in the applicant’s flat, because she allegedly would not allow such measurements to be taken in her flat, found that the necessary measures of noise insulation had been put in place. 23. On 30 August 2002 the County Office granted the company a licence to run a bar. 24. The applicant complained to the County Office about that decision, arguing that she had not been allowed to participate in the administrative proceedings. She requested that the proceedings be reopened. 25. On 18 June 2003 the County Office dismissed the applicant’s complaint as ill-founded. 26. The applicant lodged an appeal against that decision with the Ministry of Tourism (Ministarstvo turizma) and on 17 September 2003 the Ministry quashed the decisions of the County Office and ordered that the applicant be allowed to participate in the proceedings. This decision was later, on 6 September 2007, upheld by the Administrative Court. 27. On 22 February 2004 the County Office dismissed the applicant’s request for reopening of the administrative proceedings, and this decision was upheld by the Ministry of Tourism on 22 April 2004. The Ministry held that the applicant had been allowed access to all the relevant documents from the case file, and that therefore it was not necessary to reopen the proceedings. 28. On an unspecified date in 2004 the applicant lodged an administrative action with the Administrative Court. She contended that noise measurements had never been taken in her flat and that the decisions of the lower administrative bodies had numerous substantive and procedural flaws. 29. In October 2005, after company O-P. succeeded to the business activity of company F., it applied to the County Office for operating licences to run a bar and a shop. 30. The company submitted a report drawn up by company E. of noise measurements taken on 5 October 2005. The report measured the level of noise during the night (after 10 p.m.) in the bar, the parking area and the entrance to the applicant’s flat located on the first floor. In assessing the maximum permitted noise levels, this report took into account that the house was situated near a road and considered the applicant’s house to fall within zone 4 under section 5 of the by-law on the maximum permitted levels of noise in areas where people live and work (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, hereinafter “the by-law”) relevant to properties consisting of dwellings and business premises but predominantly used for business purposes (see paragraph 110 below). However, the report indicated that it had not taken into account the relevant spatial planning documents placing a property in the relevant zone because no such documents had been presented to the experts when the measurements were taken (see paragraph 110 below and section 5 § 3 of the by-law). 31. The measurements showed that the external level of noise in the parking area and in the entrance to the applicant’s flat was 48 dB, while the permitted level was 50 dB. It concluded that the noise emanating from the bar to the nearby open and closed areas daily and during the night did not pose any danger to the health of the persons living there. 32. On 6 October 2005 the County Office granted the company O-P. a licence to run a shop. 33. On an unspecified date the applicant challenged this decision before the Ministry of the Economy (Ministarstvo gospodarstva, rada i poduzetništva, hereinafter “the Ministry of the Economy”) arguing that she had not had an opportunity to participate in the proceedings. 34. On 10 October 2005 the County Office agreed with the report drawn up by company E. concerning the level of noise emanating from the bar. This decision was never served on the applicant and it became final and enforceable on 27 October 2005. 35. On 28 October 2005 the County Office issued the company with a licence to run a bar. 36. On an unspecified date in 2005 the applicant lodged an appeal against the County Office’s decision with the Ministry of Tourism, and on 22 December 2005 the Ministry dismissed it as ill-founded. 37. The applicant brought an administrative action against that decision in the Administrative Court, complaining of a number of substantive and procedural flaws in the proceedings before the lower administrative bodies. She contended that she had not had an opportunity to participate in the proceedings, that no measurements of noise and other emissions had ever been taken in her flat, and that the house had not been equipped with the necessary noise insulation. 38. On 15 May 2006 the Ministry of the Economy dismissed the applicant’s appeal against the County Office’s decision granting the company a licence to run a shop (see paragraphs 32 and 33 above). 39. The applicant lodged an administrative action with the Administrative Court Against that decision, reiterating her complaints that she had not been able to participate in the proceedings granting the company a licence to run a shop. 40. On 17 December 2009 the Administrative Court allowed the applicant’s action against the decisions granting the company a licence to run a bar (see paragraphs 35-37 above) and ordered the administrative bodies to re-examine the case on the grounds that they had failed to decide on the applicant’s request for disqualification of the officials who had previously participated in the proceedings. 41. On the same day, the Administrative Court quashed the decisions of the County Office and the Ministry of the Economy granting the company a licence to run a shop (see paragraphs 32-33 and 38-39 above) and remitted the case for re-examination, on the grounds that the applicant had not had an opportunity to participate in the administrative proceedings. 42. On 25 October 2010 the Administrative Inspectorate of the Ministry of Administration (Ministarstvo uprave, Upravna inspekcija, hereinafter “the Administrative Inspectorate”) urged the County Office to adopt a decision on the applicant’s complaints. It stressed that the County Office had failed to comply with the judgments of the Administrative Court (see paragraphs 40 and 41 above) and that the relevant thirty-day time-limit for adopting a decision in the administrative proceedings had been significantly exceeded. It also considered that the central problem lay in the impossibility for the applicant to participate in the proceedings, and thus it instructed the County Office to allow the applicant to take part in the proceedings and to take her arguments into account. 43. On 12 November 2010 the company informed the County Office that it was closing the shop. 44. On 24 November 2010 the Administrative Inspectorate again urged the County Office to terminate the proceedings. It considered that there had been no justified reason for not adopting a decision concerning the applicant’s complaints. As regards the company’s request for a licence to run a bar, the Administrative Inspection identified two central problems: first, insufficient height of the ceiling in the bar, and second, the problem of noise insulation. In respect of the latter, the Administrative Inspection considered that the operating licence issued five years earlier (see paragraph 35 above) could no longer be a valid ground for consideration. It also noted the inordinate length of the proceedings and numerous procedural flaws in the decisions of the County Office, considering such procedural defects contrary to the relevant domestic law. 45. The administrative proceedings are still pending. 46. On 9 September 2008 the County Office instigated administrative proceedings to ascertain whether the noise emanating from the bar and the shop exceeded the permitted levels under the relevant law. 47. On 15 September 2008 the County Office commissioned an expert report from company EL. concerning the noise insulation in the applicant’s house. 48. On 24 November 2008 EL. submitted its report, in which it examined the structure of the separating wall between the living room of the applicant’s flat on the first floor and the bar, and the flooring in the bar. It also examined the separating wall between a room in the applicant’s flat and the shop, as well as the flooring in the shop. 49. The report found that the noise insulation did not satisfy the necessary requirements. Specifically, the noise insulation between the applicant’s living room and the bar was insufficient, while the noise insulation between the shop and the applicant’s flat was within the required parameters. 50. On 15 December 2012 a hearing was held at the County Office, at which the company requested that a new noise report be commissioned, arguing that in the meantime it had taken the necessary measures to improve the noise insulation. 51. On 22 December 2008 an official of the County Office carried out an on-site inspection and heard the parties’ arguments concerning the expert report of 24 November 2008. 52. On 13 February 2009 EL. carried out further measurements of the noise insulation in the structure of the wall separating the applicant’s living room from the bar, and in the flooring of the bar. It found that at the time there was no relevant legislation requiring noise insulation, because at the beginning of 2009 the Croatian Standards Institute (Hrvatski zavod za norme) had repealed all previously existing standards for noise insulation. Thus the report only compared the new results with the results from the previous measurements (see paragraph 49 above). Basing its reasoning on that methodology, and relying on the noise measurements carried out by company B-I. (see paragraphs 62 and 63 below) and company E. (see paragraphs 30 and 31 above), the report found that the noise insulation in the bar was sufficient. 53. On 23 February 2009 the County Office agreed with EL.’s report and found that the noise insulation in the bar and the shop was sufficient. 54. On an unspecified date in 2009 the applicant lodged an appeal with the Ministry of Health (Ministarstvo zdravlja) challenging the decision of the County Office. 55. On 19 March 2009 the Ministry of Health declared the applicant’s appeal inadmissible on the grounds that she did not have standing to lodge an appeal. 56. The applicant lodged an administrative action in the Administrative Court against the decision of the Ministry of Health, arguing that as the owner of a flat located in the same building as the bar she had every interest in lodging an appeal against the decision concerning the noise insulation measures. 57. On 6 June 2012 the Administrative Court quashed the decision of the Ministry of Health and ordered that the applicant’s appeal be examined on the merits. 58. The administrative proceedings are still pending. 59. In May 2005 the applicant and her husband, B.U., complained to the sanitary inspector (sanitarni inspektor) about the level of noise coming from the bar. 60. On 6 June 2007 the Administrative Court, acting upon a complaint concerning the sanitary inspector’s failure to respond, ordered that the complaints be examined. 61. During the proceedings, the inspector commissioned an expert report from company B-I. 62. On 21 January 2008 company B-I. submitted a report on its measurements of the level of noise in the bar and in the applicant’s flats. The level of noise during the day was measured in the entrance and inside the living room of the applicant’s flat on the first floor, with all sources of noise inside the bar switched on; with only an air-conditioning fan running; and while chairs were being dragged across the floor inside the bar. Measurements were also taken inside the applicant’s flat on the ground floor, with all sources of noise switched on, and while chairs were being dragged across the floor inside the bar. The level of noise during the night (after 10 p.m.) was measured under the same conditions and in the same places, with an additional measurement of the level of noise in the entrance and inside the living room of the applicant’s flat on the first floor while only the audio system in the bar was switched on. 63. For the daytime, taking into account the fact that house was situated near a road, the measurements showed that the level of noise was excessive in the applicant’s flat on the ground floor (42dB while the permitted level was 31 dB) and inside the living room of the applicant’s flat on the first floor (40 dB while the permitted level was 36 dB) when chairs were being dragged across the floor inside the bar. During the night, the level of noise was excessive in the entrance to the living room of the flat on the first floor while all sources of noise inside the bar were switched on and in the same area with only the fan running in the bar (46 dB when the permitted level was 44 dB). Furthermore, the level of noise was excessive inside the living room while all sources of noise inside the bar were switched on, and in the same area with only the fan running (30 dB when the permitted level was 27 dB), as well as when chairs were being dragged across the floor inside the bar (40 dB when the permitted level was 27 dB). The level of noise was excessive inside the flat on the ground floor with all sources of noise switched on (30 dB when the permitted level was 26 dB) and while chairs were being dragged across the floor inside the bar (42 dB when the permitted level was 26 dB). 64. On 8 February 2008 the environmental health inspector heard the parties’ objections and commissioned further expert reports from companies B-I. and E. 65. On 7 March 2008 company B-I. submitted its report, in which it found that the company had replaced the air-conditioning system which had been generating noise. It then measured the average noise level inside the living room of the applicant’s flat on the first floor for three fifteen-minute periods during the day and two fifteen-minute periods during the night. It also measured the average noise level in front of the air-conditioning system during the night for two fifteen-minute periods. The report found that the level of noise coming from the bar was not excessive. 66. In March 2008 company E. submitted its report, which also found that the level of noise coming from the bar was not excessive. 67. On 12 March 2008 the sanitary inspector found that the noise coming from the bar had not exceeded the permitted levels. 68. On an unspecified date in 2008 the applicant’s husband lodged an appeal with the Ministry of Health challenging the findings of the sanitary inspector. 69. Meanwhile the applicant’s husband obtained an expert report drawn up by company G-P. and dated 15 March 2008 concerning the level of noise emanating from the bar. This report measured the level of noise during the day and night inside the living room of the flat on the first floor and in front of a window in the living room. In assessing the maximum permitted noise levels this report considered that the applicant’s house fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises where the predominant use is as residential property (see paragraph 110 below). It found, taking into account the ambient noise, that the level of noise measured inside the applicant’s living room during the night was excessive (30.9 dB with sources of noise switched on when the permitted level was 25 dB) and that the bar’s noise protection measures were not adequate. 70. On 28 April 2008 the Ministry of Health upheld the sanitary inspector’s decision of 12 March 2008 (see paragraph 67 above). 71. The applicant’s husband then lodged an administrative action with the Administrative Court, arguing that the noise measurements had not been taken correctly and that the relevant facts had not been correctly established. 72. On 12 May 2008 the sanitary inspector declared the applicant’s complaint of noise nuisance inadmissible on the grounds that he was not competent to examine the case since at the time civil proceedings were pending before the Križevci Municipal Court (Općinski sud u Križevcima) (see paragraphs 79-95 below). 73. The sanitary inspector’s decision was upheld by the Ministry of Health on 23 June 2008. 74. On an unspecified date in 2008 the applicant lodged an administrative action with the Administrative Court against the above decision of the Ministry of Health. 75. On 28 September 2010 the sanitary inspector carried out an on-site inspection in the bar and found that the necessary noise insulation measures had been put in place. 76. On 22 September 2011 the Administrative Court quashed the decision of the Ministry of Health of 28 April 2008 (see paragraphs 67 and 70 above) and ordered a re-examination of the case on the grounds that the decision had been based on contradictory expert reports. 77. On 10 November 2011 the Administrative Court quashed the decision of the Ministry of Health of 23 June 2008 (see paragraph 72 above) and ordered the sanitary inspector to examine the applicant’s complaints on the merits. 78. The proceedings before the sanitary inspector are still pending. 79. On 10 January 2006 the applicant lodged a civil action in the Križevci Municipal Court (Općinski sud u Križevcima) against the company and its director, seeking an injunction against any further noise emissions from the bar. 80. At a hearing on 1 June 2006 the applicant gave evidence before the Križevci Municipal Court. She contended that the noise emanating from the bar had become unbearable and that it was affecting her everyday life. She also complained about smell and other nuisance coming from the bar, in particular about the problems she and her husband had had with drunk and violent customers of the bar. 81. On 29 September 2006 the Križevci Municipal Court conducted an on-site inspection, to which it invited two expert witnesses from the Zagreb Public Health Institute (Zavod za javno zdravstvo Grada Zagreba, hereinafter “the Institute”). It ordered the experts to take the necessary measurements and commissioned noise and pollution expert reports. 82. In its report of 2 October 2006 the Institute took into account the expert report drawn up by company E. (see paragraphs 20 and 31 above). In assessing the maximum permitted noise levels this report observed that the house was situated near a road and considered that it fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises but predominantly residential properties (see paragraph 110 below). The report found that the level of noise in the open area surrounding the bar and inside the applicant’s flat did not exceed the permitted levels for daytime and evening. 83. The Institute also submitted a report concerning the level of pollution emanating from the bar, which found that all emissions were within the permitted levels. 84. On 3 and 5 January 2007 the applicant objected to the Institute’s reports. She contended that noise measurements had been taken only in the living room of her flat on the first floor, and that all sources of the noise in the bar had been switched off when the measurements were taken. She asked the Križevci Municipal Court to question four witnesses, Z.S., Ž.P., I.Č. and D.B., who could confirm her allegations. She also pointed out that the experts had failed to take into account the documentation concerning the noise insulation in the building, and had thus erred in their findings. 85. On 15 February 2007 the Križevci Municipal Court heard the expert witnesses in the presence of the applicant’s lawyer. The noise expert reiterated his findings, and argued that the level of noise had been measured only in the living room, which was the closest area to the bar and in which, as the applicant had told him herself, the noise nuisance was the greatest. He also submitted that the noise had been measured on the balcony of the applicant’s flat on the first floor and that while the measurements were being taken all sources of the noise in the bar had been switched on. He explained that he had not taken into account the documentation on noise insulation because that was not part of his remit. He also considered that the operation of the air-conditioning fan in the bar could in no way influence the level of noise in the applicant’s flat. Lastly, the expert witness pointed out that the previous noise measurements had not found the level of noise in the applicant’s flat to be excessive. 86. At a hearing on 27 March 2007 the Križevci Municipal Court heard the applicant, who reiterated her objections to the expert reports. She asked for the witnesses who had been present during the measuring to be questioned and for a new expert report to be commissioned. 87. At the same hearing the Križevci Municipal Court dismissed the applicant’s request and terminated the proceedings. 88. On 3 April 2007 the four witnesses, Z.S., Ž.P., I.Č. and D.B., who the applicant had asked to be heard at the trial, submitted a statement to the Križevci Municipal Court expressing their dissatisfaction with the manner in which that court had accepted the expert report which, according to them, had contained a number of incorrect statements. 89. On 10 April 2007 the Križevci Municipal Court dismissed the applicant’s civil action, on the grounds that the expert report showed that the level of noise had not exceeded the permitted level and that other evidence from the case file showed that there had been no other nuisance coming from the bar. As regards the applicant’s request for witnesses to be heard, that court held that all relevant facts had been sufficiently established and that there had been no need to take further evidence in respect of the level of noise, particularly since it considered the expert reports well drafted and convincing. 90. The applicant lodged an appeal against the above judgment with the Koprivnica County Court (Županijski sud u Koprivnici) on 29 May 2007, challenging the findings of the first-instance court and reiterating her previous arguments. 91. On 27 March 2008 the Koprivnica County Court dismissed the applicant’s appeal against the Križevci Municipal Court’s judgment as ill-founded. It considered the expert reports convincing and well constructed. 92. On 28 May 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Koprivnica County Court, reiterating her arguments that her private life, home and property had been unjustifiably interfered with by the company. 93. On 2 June 2008 the applicant lodged a criminal complaint with the Križevci Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Križevcima) against the Institute’s experts and the managing director of the company, accusing them of perjury. 94. On 16 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the findings of the lower courts. This decision was served on the applicant on 28 November 2008. 95. On 17 December 2008 the Križevci Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that any objection as to the findings of the experts was within the competence of the civil courts and that there was no evidence that the experts or the company director had deliberately given false evidence to the court. 96. In the period between 2002 and 2013 the applicant called the police on a number of occasions in connection with noise and other emissions from the bar. 97. The police were called in total fifty-seven times (of which forty-nine calls were by the applicant) to the bar in connection with breaches of public peace and order; these calls resulted in twenty-six minor offences proceedings against various individuals. 98. The police also instigated thirty visits by other state bodies (the revenue service, health inspectorate and so on) to the bar, which resulted in sixteen minor offences proceedings for breaches of public peace and order. 99. The applicant also complained to the Križevci Municipal State Attorney’s Office, the Central Inspectorate (Državni Inspektorat), the Office of the Prime Minister of the Republic of Croatia and the Croatian Parliament (Hrvatski sabor) that local and domestic authorities had taken no action, contending that the level of noise and other nuisance coming from the bar had adversely affected her health, dignity, her private and family life and respect for peaceful enjoyment of her possessions. 100. On 27 March 2009 a parliamentary board dealing with the individual complaints urged the Ministry of Health and the Central Inspectorate Office to examine the applicant’s complaints. 101. On 11 October 2012 the parliamentary board again urged the competent authorities to examine the applicant’s complaints, pointing out that the Administrative Court’s judgments had never been complied with and that there had been numerous police call-outs to the bar.