CASE OF CUENCA ZARZOSO v. SPAIN
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1930 and lives in Valencia. He has lived in San José, a residential district of Valencia since 1962. Since 1974 Valencia City Council (“the City Council”) has allowed licensed premises, such as bars, pubs and discotheques, to open in the vicinity of his home. In view of the problems caused by the noise, the City Council resolved on 22 December 1983 not to permit any more licensed premises to open in the area. However, the resolution was never implemented and new licences were granted. In 1993, the Polytechnic University of Valencia carried out a study of the levels of night-time noise during the weekend on behalf of the City Council. It was reported that in the San José district the noise levels were notably higher to the legally accepted norm. 6. In 1994, the applicant became president of the neighbourhood association of his district. In that position, and in an attempt to improve the noise-pollution situation for both himself and his neighbours, he lodged various claims against the City Council. He also asked for the withdrawal of the business licences of several establishments. The City Council replied that in fact no business activities were being carried out in some of the premises, and that the business activities carried out in the others could not be considered as producing a high level of noise (for example bakeries). Lastly, the licences had in any case expired in many of the establishments. 7. On 28 June 1996 the City Council adopted the municipal Ordinance on noise and vibrations (Ordenanza Municipal de Ruidos y Vibraciones hereinafter “the Ordinance”). Furthermore, in July 2000, at the applicant’s request, the municipality required the pub located in the basement of the applicant’s building to install a noise limiter. 8. Following a resolution of the City Council, sitting in plenary session on 27 December 1996, which was published in the Valencia Official Gazette on 27 January 1997, the area in which the applicant lives was designated an “acoustically saturated zone” (zona acústicamente saturada). 9. In view of the fact that the levels of noise pollution did not decrease, the applicant decided to replace his windows with double glazing and to install air conditioning in order to alleviate the high temperatures caused by having the windows permanently closed in summer. 10. On 14 June 1999 the applicant brought a preliminary State liability claim before the City Council, relying on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to privacy and inviolability of the home) of the Constitution. The applicant asked for compensation for the expenses incurred, as well as for compensation in respect of pecuniary and non-pecuniary damage. 11. Having received no reply from the authorities (silencio administrativo negativo), the applicant lodged a complaint with the Valencia High Court of Justice (“the High Court”) on 5 December 2001. On 5 January 2001 the City Council issued a resolution denying his preliminary State liability claim. The City Council joined the proceedings before the High Court. 12. The applicant provided the court with two reports: the first one of 1 April 1998 prepared by the municipal service for the environment stated that: “Prior to the entry into force of the declaration of an acoustically saturated zone, the levels of disturbance by noise during the night exceeded 65 decibels, mainly during the nights from Thursdays to Sundays from 10 p.m. to 5 a.m. in the morning. ... after the declaration [of the area] as an acoustically saturated zone and the adoption of some corrective measures the levels of disturbance still exceed [those permitted for night-time]. 13. The second report was issued on 28 March 2000 by the same municipal service, which admitted that: “... it must be concluded that ... the limits established in Article 30 § 2 of [the Ordinance] are still being exceeded.” 14. In order to sustain his arguments, the applicant also produced an expert report, produced by an applied physics professor, which was joined to his complaint. The report noted as follows: “The measured noise on the street and the noise perceived by neighbours in their homes, in the Xuquer area of Valencia – which is where the applicant lives – rise high total levels of ... 70 decibels ... Those levels are clearly related to the presence of a concentration of the entertainment industry in that area (pubs and discotheques). 15. As a result of this situation, the expert stated that it could be estimated that the sound levels for instance in a front facing bedroom were approximately 50 decibels (hereinafter dBA) and sometimes they could even reach 60 dBA. The expert highlighted that the City Council had recommended a maximum permitted level at night of 30 dBA. Consequently, there was a difference of 20-30 dBA. However, the expert report pointed out that this was a general estimation and that it was made without measuring the inside of the dwellings concerned. 16. Lastly, the applicant produced a medical report stating that he was suffering from anxiety due to the excessive noise inside his flat. The report concluded by considering that there was a relationship of cause-effect between the noise pollution and his psychiatric illness. 17. During the proceedings, the High Court ordered a legal medical expert report by a specialist in preventive medicine. The appointed expert reported that: “... the nocturnal noise altered necessarily the physiological sleep of Mr Cuenca and his family, [although it is not] possible to ascertain the intensity of the disturbance owing to the lack of corresponding sleep studies”. “... the sleep disturbance as a consequence of that noise produced in Mr Cuenca an ‘anxious depressive syndrome reacting to the noise, change in his psychiatric state manifested by irritability with his, anxiety, diminution of intellectual ability and somatization’”. 18. The City Council maintained that it was not proven that the applicant was suffering the noise level which he claimed in his home, as the environmental noise is perceived differently in each home, according to its height, aspect and other particularities. Furthermore, the City Council had been carrying out extensive activities in order to enforce compliance with the legislation on noise. It could not be said that the City Council tolerated infractions of that legislation. 19. In a judgment of 20 June 2003 the High Court dismissed the complaint. It found that there was no causal connection between the noise pollution and the alleged damage caused to the applicant, since there was no evidence proving that in his particular flat the level of noise pollution exceeded the established limits. Indeed, the applicant had decided to replace his windows without previously asking for a measurement of the noise inside his flat, as provided by Article 54 of the Ordinance. Furthermore, it should be taken into account that the applicant’s flat was on the fourth floor, where the noise would certainly be less intense than on a lower floor. 20. The applicant lodged an amparo appeal before the Constitutional Court, claiming that the State had violated his fundamental rights protected by Articles 14 (equality before the law), 15 (right to life and to physical and moral integrity), 18 (inviolability of the home) and 24 (right to a fair trial) of the Spanish Constitution. This appeal was initially dismissed on 18 October 2004. 21. On 16 November 2004 the European Court of Human Rights (hereinafter “the Court”) delivered a judgment in the case of Moreno Gómez v. Spain (no. 4143/02, ECHR 2004X). In the light of this judgment, the public prosecutor lodged an appeal against the Constitutional Court’s decision, asking for the admission of the applicant’s amparo appeal. On 31 January 2005 the Constitutional Court upheld the public prosecutor’s appeal and declared the amparo appeal admissible. The Constitutional Court stated that the judgment issued by the European Court of Human Rights in the case of Moreno Gomez: “... justifie[d] entirely the reconsideration of the present amparo appeal, in order to ascertain the measure in which it might deal with an analogous case, and to examine whether the objects of analysis of the [Strasbourg] Court [had been] the same fundamental rights as in this amparo appeal”. 22. In the proceedings before the Constitutional Court, the public prosecutor claimed that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the Court had already addressed this issue in the case of Moreno Gómez, which had dealt with the exact same situation suffered by the applicant’s neighbour, and declared that Spain had violated Article 8 of the Convention. The prosecutor considered that Moreno Gómez and the applicant’s case were similar in terms of the facts as well as in the object and the merits, which was in principle sufficient to deliver a judgment on the merits on the alleged violations of the right to private and family life and to inviolability of the home. 23. In a judgment of 29 September 2011, served on the applicant on 19 October 2011, the plenary of the Constitutional Court dismissed the amparo appeal, arguing that (1) both cases were not identical, (2) the applicant had not proved that in his particular case the noise at his flat was above the permitted level, (3) that the City Council had indeed adopted specific measures to reduce noise pollution at the applicant’s neighbourhood and (4) that he had not proved that his health problems had been directly caused by noise pollution. The judgment was not adopted by unanimity. 24. Three judges out of twelve issued a dissenting opinion holding that there had been a violation of Articles 10 § 2, 18 §§ 1 and 2 of the Constitution. In particular, the dissenting judges argued that the standard employed by the Constitutional Court to decide when the right to privacy and family life had been infringed should have been based on the case-law of the Court and that prolonged exposure to a high levels of sound that could be qualified as avoidable and unbearable deserved the protection of the courts, given that it impeded him from living a normal life. They reiterated that according to the judgment delivered in the Moreno Gómez case (cited above), the assessment of a violation no longer depended on the evidence provided by the applicant about the seriousness of the noise pollution inside his home. Instead, the decisive element was to be hereafter the location of the house in an excessively noisy area and it would be enough for the applicant to prove the excessive level of noise in the street. Furthermore, the effects of noise on the applicant’s health had been confirmed by the expert report issued in the proceedings before the High Court.