CASE OF LÓPEZ OSTRA v. SPAIN
Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
6. Mrs Gregoria López Ostra, a Spanish national, lives in Lorca (Murcia). At the material time she and her husband and their two daughters had their home in the district of "Diputación del Rio, el Lugarico", a few hundred metres from the town centre. 7. The town of Lorca has a heavy concentration of leather industries. Several tanneries there, all belonging to a limited company called SACURSA, had a plant for the treatment of liquid and solid waste built with a State subsidy on municipal land twelve metres away from the applicant’s home. 8. The plant began to operate in July 1988 without the licence (licencia) from the municipal authorities required by Regulation 6 of the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous ("the 1961 regulations"), and without having followed the procedure for obtaining such a licence (see paragraph 28 below). Owing to a malfunction, its start-up released gas fumes, pestilential smells and contamination, which immediately caused health problems and nuisance to many Lorca people, particularly those living in the applicant’s district. The town council evacuated the local residents and rehoused them free of charge in the town centre for the months of July, August and September 1988. In October the applicant and her family returned to their flat and lived there until February 1992 (see paragraph 21 below). 9. On 9 September 1988, following numerous complaints and in the light of reports from the health authorities and the Environment and Nature Agency (Agencia para el Medio Ambiente y la Naturaleza) for the Murcia region, the town council ordered cessation of one of the plant’s activities - the settling of chemical and organic residues in water tanks (lagunaje) - while permitting the treatment of waste water contaminated with chromium to continue. There is disagreement as to what the effects were of this partial shutdown, but it can be seen from the expert opinions and written evidence of 1991, 1992 and 1993, produced before the Commission by the Government and the applicant (see paragraphs 18-20 below), that certain nuisances continue and may endanger the health of those living nearby. 10. Having attempted in vain to get the municipal authority to find a solution, Mrs López Ostra lodged an application on 13 October 1988 with the Administrative Division of the Murcia Audiencia Territorial, seeking protection of her fundamental rights (section 1 of Law 62/1978 of 26 December 1978 on the protection of fundamental rights ("Law 62/1978") - see paragraphs 24-25 below). She complained, inter alia, of an unlawful interference with her home and her peaceful enjoyment of it, a violation of her right to choose freely her place of residence, attacks on her physical and psychological integrity, and infringements of her liberty and her safety (Articles 15, 17 para. 1, 18 para. 2 and 19 of the Constitution - see paragraph 23 below) on account of the municipal authorities’ passive attitude to the nuisance and risks caused by the waste-treatment plant. She requested the court to order temporary or permanent cessation of its activities. 11. The court took evidence from several witnesses offered by the applicant and instructed the regional Environment and Nature Agency to give an opinion on the plant’s operating conditions and location. In a report of 19 January 1989 the agency noted that at the time of its expert’s visit on 17 January the plant’s sole activity was the treatment of waste water contaminated with chromium, but that the remaining waste also flowed through its tanks before being discharged into the river, generating foul smells. It therefore concluded that the plant had not been built in the most suitable location. Crown Counsel endorsed Mrs López Ostra’s application. However, the Audiencia Territorial found against her on 31 January 1989. It held that although the plant’s operation could unquestionably cause nuisance because of the smells, fumes and noise, it did not constitute a serious risk to the health of the families living in its vicinity but, rather, impaired their quality of life, though not enough to infringe the fundamental rights claimed. In any case, the municipal authorities, who had taken measures in respect of the plant, could not be held liable. The non-possession of a licence was not an issue to be examined in the special proceedings instituted in this instance, because it concerned a breach of the ordinary law. 12. On 10 February 1989 Mrs López Ostra lodged an appeal with the Supreme Court (Tribunal Supremo - see paragraph 25 below in fine). She maintained that a number of witnesses and experts had indicated that the plant was a source of polluting fumes, pestilential and irritant smells and repetitive noise that had caused both her daughter and herself health problems. As regards the municipal authorities’ liability, the decision of the Audiencia Territorial appeared to be incompatible with the general supervisory powers conferred on mayors by the 1961 regulations, especially where the activity in question was carried on without a licence (see paragraph 28 below). Regard being had to Article 8 para. 1 (art. 8-1) of the Convention, inter alia, the town council’s attitude amounted to unlawful interference with her right to respect for her home and was also an attack on her physical integrity. Lastly, the applicant sought an order suspending the plant’s operations. 13. On 23 February 1989 Crown Counsel at the Supreme Court filed pleadings to the effect that the situation complained of amounted to arbitrary and unlawful interference by the public authorities with the applicant’s private and family life (Article 18 of the Constitution taken together with Articles 15 and 19 - see paragraph 23 below). The court should accordingly grant her application in view of the nuisance to which she was subjected and the deterioration in the quality of her life, both of which had moreover been acknowledged in the judgment of 31 January. On 13 March Crown Counsel supported the suspension application (see paragraph 12 above and paragraph 25 below). 14. In a judgment of 27 July 1989 the Supreme Court dismissed the appeal. The impugned decision had been consistent with the constitutional provisions relied on, as no public official had entered the applicant’s home or attacked her physical integrity. She was in any case free to move elsewhere. The failure to obtain a licence could only be considered in ordinary-law proceedings. 15. On 20 October 1989 Mrs López Ostra lodged an appeal (recurso de amparo) with the Constitutional Court, alleging violations of Article 15 (right to physical integrity), Article 18 (right to private life and to inviolability of the family home) and Article 19 (right to choose freely a place of residence) of the Constitution (see paragraph 23 below). On 26 February 1990 the court ruled that the appeal was inadmissible on the ground that it was manifestly ill-founded. It observed that the complaint based on a violation of the right to respect for private life had not been raised in the ordinary courts as it should have been. For the rest, it held that the presence of fumes, smells and noise did not itself amount to a breach of the right to inviolability of the home; that the refusal to order closure of the plant could not be regarded as degrading treatment, since the applicant’s life and physical integrity had not been endangered; and that her right to choose her place of residence had not been infringed as she had not been expelled from her home by any authority. 16. In 1990 two sisters-in-law of Mrs López Ostra, who lived in the same building as her, brought proceedings against the municipality of Lorca and SACURSA in the Administrative Division of the Murcia High Court (Tribunal Superior de Justicia), alleging that the plant was operating unlawfully. On 18 September 1991 the court, noting that the nuisance had continued after 9 September 1988 and that the plant did not have the licences required by law, ordered that it should be closed until they were obtained (see paragraph 28 below). However, enforcement of this order was stayed following an appeal by the town council and SACURSA. The case is still pending in the Supreme Court. 17. On 13 November 1991 the applicant’s two sisters-in-law lodged a complaint, as a result of which Lorca investigating judge no. 2 instituted criminal proceedings against SACURSA for an environmental health offence (Article 347 bis of the Criminal Code - see paragraph 29 below). The two complainants joined the proceedings as civil parties. Only two days later, the judge decided to close the plant, but on 25 November the measure was suspended because of an appeal lodged by Crown Counsel on 19 November. 18. The judge ordered a number of expert opinions as to the seriousness of the nuisance caused by the waste-treatment plant and its effects on the health of those living nearby. An initial report of 13 October 1992 by a scientist from the University of Murcia who had a doctorate in chemistry stated that hydrogen sulphide (a colourless gas, soluble in water, with a characteristic rotten-egg smell) had been detected on the site in concentrations exceeding the permitted levels. The discharge of effluent containing sulphur into a river was said to be unacceptable. These findings were confirmed in a supplementary report of 25 January 1993. In a report of 27 October 1992 the National Toxicology Institute stated that the levels of the gas probably exceeded the permitted limits but did not pose any danger to the health of people living close to the plant. In a second report of 10 February 1993 the institute stated that it could not be ruled out that being in neighbouring houses twenty-four hours a day constituted a health risk as calculations had been based only on a period of eight hours a day for five days. Lastly, the regional Environment and Nature Agency, which had been asked to submit an expert opinion by the Lorca municipal authorities, concluded in a report of 29 March 1993 that the level of noise produced by the plant when in operation did not exceed that measured in other parts of the town. 19. The investigation file contains several medical certificates and expert opinions concerning the effects on the health of those living near the plant. In a certificate dated 12 December 1991 Dr de Ayala Sánchez, a paediatrician, stated that Mrs López Ostra’s daughter, Cristina, presented a clinical picture of nausea, vomiting, allergic reactions, anorexia, etc., which could only be explained by the fact that she was living in a highly polluted area. He recommended that the child should be moved from the area. In an expert report of 16 April 1993 the Ministry of Justice’s Institute of Forensic Medicine in Cartagena indicated that gas concentrations in houses near the plant exceeded the permitted limit. It noted that the applicant’s daughter and her nephew, Fernando López Gómez, presented typical symptoms of chronic absorption of the gas in question, periodically manifested in the form of acute bronchopulmonary infections. It considered that there was a relationship of cause and effect between this clinical picture and the levels of gas. 20. In addition, it is apparent from the statements of three police officers called to the neighbourhood of the plant by one of the applicant’s sisters-in-law on 9 January 1992 that the smells given off were, at the time of their arrival, very strong and induced nausea. 21. On 1 February 1992 Mrs López Ostra and her family were rehoused in a flat in the centre of Lorca, for which the municipality paid the rent. The inconvenience resulting from this move and from the precariousness of their housing situation prompted the applicant and her husband to purchase a house in a different part of town on 23 February 1993. 22. On 27 October 1993 the judge confirmed the order of 15 November 1991 and the plant was temporarily closed. 23. The relevant Articles of the Constitution provide: "Everyone shall have the right to life and to physical and psychological integrity, without being subjected to torture or inhuman or degrading punishment or treatment under any circumstances. The death penalty shall be abolished except where it is provided for by military criminal law in time of war." "Everyone has the right to liberty and security. ..." "1. The right to honour and to private and family life and the right to control use of one’s likeness shall be protected. 2. The home shall be inviolable. It may not be entered or searched without the consent of the person who lives there or a judicial decision, except in cases of flagrant offences. ..." "Spanish citizens shall have the right to choose freely their place of residence and to move around the national territory ..." "1. Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it. 2. The public authorities, relying on the necessary public solidarity, shall ensure that all natural resources are used rationally, with a view to safeguarding and improving the quality of life and protecting and restoring the environment. 3. Anyone who infringes the above provisions shall be liable to criminal or, where applicable, administrative penalties as prescribed by law and shall be required to make good any damage caused." 24. Law 62/1978 provides that certain fundamental rights shall be safeguarded by the ordinary courts. The rights protected in this way include inviolability of the home and freedom to choose one’s place of residence (section 1(2)). However, under transitional provision 2(2) of the Law on the Constitutional Court of 3 October 1979, its application is extended to the other rights secured in Articles 14 to 29 of the Constitution (Article 53 of the Constitution). 25. Complaints against decisions of administrative authorities affecting the rights of the individual may be lodged with the administrative division of the appropriate ordinary court (section 6), without its first being necessary to exhaust the administrative remedies (section 7(1)). The procedure followed is an expedited one with shorter time-limits and exemption from certain procedural steps (sections 8 and 10). In the writ the individual may apply to have the impugned decision stayed, and the court rules on such applications by means of a separate, summary procedure (section 7). An appeal lies to the Supreme Court (section 9), which hears such appeals in expedited proceedings. 26. In the field of environmental protection the State and the autonomous communities have enacted many provisions of different ranks in law: Article 45 of the Constitution (see paragraph 23 above); Law 20/1986 of 14 May 1986 on toxic and dangerous waste; Royal Legislative Decree 1302/1986 of 28 June 1986 on environmental impact assessment and Law 38/1972 of 22 December 1972 on atmospheric pollution control. 27. The provisions most frequently relied on in the instant case are the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous approved in Decree 2414/1961 of 30 November. The purpose of this decree is to prevent plant, factories, activities, industries or warehouses, whether public or private, from causing nuisance, impairing normal environmental health and hygiene or damaging public or private property or entailing serious risks to persons or property (Regulation 1). Regulation 3 extends the scope of the regulations to cover noise, vibrations, fumes, gases, smells, etc. Siting of the activities in question is governed by municipal by-laws and local development plans. At all events, factories deemed to be dangerous or unhealthy cannot in principle be built less than 2,000 metres from the nearest housing (Regulation 4). 28. The local mayor is empowered to issue licences for carrying on these activities, to supervise the application of the aforementioned provisions and to impose penalties where necessary (Regulation 6). The procedure for obtaining such licences has several stages, including mandatory consultation of a provincial committee as to the suitability of the safety systems proposed by the applicant in his description of the project. Before the premises are brought into use they must undergo a compulsory inspection by a local-authority technician (Regulations 29-34). An appeal lies to the ordinary courts against decisions to grant or refuse licences (Regulation 42). When a nuisance occurs, the mayor may order the party responsible for it to take steps to eliminate it. If these are not taken within the time specified in the regulations, the mayor may, in the light of the expert opinions obtained and after hearing the person concerned, either impose a fine or temporarily or permanently withdraw the licence (Regulation 38). 29. Article 347 bis was added on 25 June 1983 by the Law making urgent reforms to part of the Criminal Code (8/1983). It provides: "Anyone who, in breach of environmental protection legislation or regulations, causes to be released or directly or indirectly releases into the atmosphere, the soil or ... waters emissions or discharges of any kind that are likely seriously to endanger human health or seriously to interfere with the conditions of animal life, forests, natural sites or cultivated areas, shall be liable to a sentence of between one and six months’ imprisonment (arresto mayor) and a fine of 50,000 to 1,000,000 pesetas. A more severe penalty (six months’ to six years’ imprisonment) shall be imposed where an industrial plant is operating illegally, without having obtained the necessary administrative authorisations, or where express orders of the administrative authorities requiring modification or cessation of the polluting activities have not been complied with or where untrue information has been given about the activities’ environmental impact, or where an inspection by the administrative authorities has been obstructed. ... In all the cases referred to in this Article, temporary or permanent closure of the establishment may be ordered ..."