case the right to health
COURT
(CHAMBER)
CASE OF LÓPEZ OSTRA v. SPAIN
(Application
no. 16798/90)
JUDGMENT
09
December 1994
The European Court of Human Rights, sitting,
in accordance with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A**,
as a Chamber composed of the following judges:
Mr
R. Ryssdal,
President,
Mr
R. Bernhardt,
Mr
A. Spielmann,
Mrs
E. Palm,
Mr
J.M. Morenilla,
Mr
F. Bigi,
Mr
A.B. Baka,
Mr
M.A. Lopes Rocha,
Mr
G. Mifsud Bonnici,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 24 June and
23 November 1994,
Delivers the following judgment, which was
adopted on the last-mentioned date:
PROCEDURE
1. The
case was referred to the Court by the European Commission of Human Rights
("the Commission") on 8 December 1993, within the three-month period
laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.
It originated in an application (no. 16798/90) against the Kingdom of Spain
The Commission’s request referred to Articles
44 and 48 (art. 44, art. 48) and to the declaration whereby Spain
2. In
response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of
Court A, the applicant stated that she wished to take part in the proceedings
and designated the lawyer who would represent her (Rule 30). On 10 January 1994
the lawyer was given leave by the President to use the Spanish language in the
proceedings (Rule 27 para. 3).
3. The
Chamber to be constituted included ex officio Mr J.M. Morenilla, the elected
judge of Spanish nationality (Article 43 of the Convention) (art. 43), and Mr
R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 January
1994, in the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr R. Bernhardt, Mr J. De Meyer, Mrs E. Palm,
Mr F. Bigi, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr G. Mifsud Bonnici (Article
43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr A.
Spielmann, substitute judge, replaced Mr De Meyer, who was unable to take part
in the further consideration of the case (Rule 22 paras. 1 and 2 and Rule 24
para. 1).
4. As
President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the
Registrar, consulted the Agent of the Spanish Government ("the
Government"), the applicant’s lawyer and the Delegate of the Commission on
the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the
orders made in consequence, the Registrar received the Government’s and the
applicant’s memorials on 3 and 4 May 1994 respectively. On 16 May the Secretary
to the Commission informed the Registrar that the Delegate would submit his
observations at the hearing.
On 10, 17 and 20 June 1994 the Commission
supplied various documents which the Registrar had requested on the President’s
instructions.
5. In
accordance with the decision of the President, who had also given the Agent of
the Government leave to address the Court in Spanish (Rule 27 para. 2), the
hearing took place in public in the Human Rights Building, Strasbourg, on 20
June 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Government
Mr
J. Borrego Borrego, Head of the Legal Department
for
Human Rights, Ministry of Justice, Agent;
- for the Commission
Mr
F. Martínez, Delegate;
- for the applicant
Mr
J.L. Mazón Costa, abogado, Counsel.
The Court heard addresses by them and also
their replies to questions from two of its members.
On 23 November 1994 it declined to accept
observations submitted out of time by counsel for the applicant on 13 October
1994 which related to the reimbursement of his fees in the national
proceedings.
AS TO THE FACTS
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.
I. THE
CIRCUMSTANCES OF THE CASE
A. Background to the case
7. The
town of Lorca
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.
B. The application for protection of fundamental
rights
1. Proceedings in the Murcia
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.
2. Proceedings in the Supreme Court
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.
3. Proceedings in the Constitutional Court
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.
C. Other proceedings concerning the Lorca
waste-treatment plant
1. The proceedings relating to non-possession of
a licence
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
2. Complaint of an environmental health offence
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
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
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.
II. RELEVANT DOMESTIC LAW
A. The Constitution
23. The relevant Articles of the Constitution
provide:
Article 15
"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."
Article 17 para. 1
"Everyone has the right to liberty and
security. ..."
Article 18
"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. ..."
Article 19
"Spanish citizens shall have the right to
choose freely their place of residence and to move around the national
territory ..."
Article 45
"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."
B. The 1978 Law on the protection of fundamental
rights
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.
C. Environmental protection provisions
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).
D. The Criminal Code
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 ..."
PROCEEDINGS BEFORE THE COMMISSION
30. Mrs López Ostra applied to the Commission on
14 May 1990. She complained of the Lorca municipal authorities’ inactivity in
respect of the nuisance caused by a waste-treatment plant situated a few metres
away from her home. Relying on Articles 8 para. 1 and 3 (art. 8-1, art. 3) of
the Convention, she asserted that she was the victim of a violation of the
right to respect for her home that made her private and family life impossible
and the victim also of degrading treatment.
31. On 8 July 1992 the Commission declared the
application (no. 16798/90) admissible. In its report of 31 August 1993 (Article
31) (art. 31), it expressed the unanimous opinion that there had been a
violation of Article 8 (art. 8) but not of Article 3 (art. 3). The full text of
the Commission’s opinion is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS TO THE COURT
32. The Government requested the Court to allow
their preliminary objections or, failing this, to find that the Kingdom of Spain
33. At the hearing the applicant’s lawyer
requested the Court to rule that in the instant case Spain had not fulfilled
its obligations under Articles 8 and 3 (art. 8, art. 3) of the Convention.
AS TO THE LAW
34. The applicant alleged that there had been a
violation of Articles 8 and 3 (art. 8, art. 3) of the Convention on account of
the smells, noise and polluting fumes caused by a plant for the treatment of
liquid and solid waste sited a few metres away from her home. She held the
Spanish authorities responsible, alleging that they had adopted a passive
attitude.
I. THE
GOVERNMENT’S PRELIMINARY OBJECTIONS
A. The objection based on failure to exhaust
domestic remedies
35. The Government contended, as they had done
before the Commission, that Mrs López Ostra had not exhausted domestic
remedies. The special application for protection of fundamental rights she had
chosen to make (see paragraphs 10-15 and 24-25 above) was not the appropriate
means of raising questions of compliance with the ordinary law or disputes of a
scientific nature over the effects of a waste-treatment plant. This procedure
was a shortened, rapid one intended to remedy overt infringements of
fundamental rights, and the taking of evidence under it was curtailed.
The applicant should, on the other hand, have
instituted both criminal proceedings and ordinary administrative proceedings,
which had proved to be effective under similar circumstances. In respect of the
same facts, for instance, her sisters-in-law had brought ordinary
administrative proceedings in April 1990 and had then lodged a criminal
complaint on 13 November 1991. The relevant judicial authorities had ordered
closure of the plant on 18 September and 15 November 1991 respectively, but
enforcement of those orders had been stayed on account of appeals lodged by the
municipal authorities and Crown Counsel (see paragraphs 16 and 17 above). On 27
October 1993 the plant had been closed by order of the judge in the criminal
proceedings but both sets of proceedings were still pending in the Spanish
courts. If the Court determined the present case on the basis of the documents
produced by the parties relating to those proceedings, as the Commission did in
its report, its decision would prejudge their outcome.
36. Like the Commission and the applicant, the
Court considers that on the contrary the special application for protection of
fundamental rights lodged by the applicant with the Murcia Audiencia
Territorial (see paragraph 10 above) was an effective, rapid means of obtaining
redress in the case of her complaints relating to her right to respect for her
home and for her physical integrity, especially since that application could
have had the outcome she desired, namely closure of the waste-treatment plant. Moreover,
in both courts that dealt with the merits of the case (the Murcia Audiencia
Territorial and the Supreme Court - see paragraphs 11 and 13 above) Crown
Counsel had submitted that the application should be allowed.
37. As to the need to wait for the outcome of the
two sets of proceedings brought by Mrs López Ostra’s sisters-in-law in the
ordinary (administrative and criminal) courts, the Court notes, like the
Commission, that the applicant is not a party to those proceedings. Their
subject-matter is, moreover, not exactly the same as that of the application
for protection of fundamental rights, and thus of the application to Strasbourg
38. Lastly, it remains to be determined whether,
in order to exhaust domestic remedies, it was necessary for the applicant
herself to institute either of the two types of proceedings in question. Here
too the Court agrees with the Commission. Having had recourse to a remedy that
was effective and appropriate in relation to the infringement of which she had
complained, the applicant was under no obligation also to bring other
proceedings that were slower.
The applicant therefore provided the national
courts with the opportunity which is in principle intended to be afforded to
Contracting States by Article 26 (art. 26) of the Convention, namely the
opportunity of putting right the violations alleged against them (see, inter
alia, the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series
A no. 12, p. 29, para. 50, and the Guzzardi v. Italy judgment of 6 November
1980, Series A no. 39, p. 27, para. 72).
39. It follows that the objection must be
dismissed.
B. The objection that the applicant was not a
victim
40. The Government raised a second objection
already advanced before the Commission. They acknowledged that Mrs López Ostra
- like, for that matter, the other residents of Lorca - had been caused serious
nuisance by the plant until 9 September 1988, when part of its activities
ceased (see paragraph 9 above). However, even supposing that smells or noise -
which would not have been excessive - had continued after that date, the
applicant had in the meantime ceased to be a victim. From February 1992 the López
Ostra family were rehoused in a flat in the town centre at the municipality’s
expense, and in February 1993 they moved into a house they had purchased (see
paragraph 21 above). In any case, the closure of the plant in October 1993
brought all nuisance to an end, with the result that neither the applicant nor
her family now suffered the alleged undesirable effects of its operation.
41. At the hearing the Delegate of the Commission
pointed out that the investigating judge’s decision of 27 October 1993 (see
paragraph 22 above) did not mean that someone who had been forced by
environmental conditions to abandon her home and subsequently to buy another
house had ceased to be a victim.
42. The Court shares this opinion. Neither Mrs
López Ostra’s move nor the waste-treatment plant’s closure, which was moreover
temporary (see paragraph 22 above), alters the fact that the applicant and her
family lived for years only twelve metres away from a source of smells, noise
and fumes.
At all events, if the applicant could now
return to her former home following the decision to close the plant, this would
be a factor to be taken into account in assessing the damage she sustained but
would not mean that she ceased to be a victim (see, among many other
authorities, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31,
pp. 13-14, para. 27, and the Inze v. Austria judgment of 28 October 1987,
Series A no. 126, p. 16, para. 32).
43. The objection is therefore unfounded.
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE
CONVENTION
44. Mrs López Ostra first contended that there had
been a violation of Article 8 (art. 8) of the Convention, which provides:
"1. Everyone has the right to respect for
his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others."
The Commission subscribed to this view, while
the Government contested it.
45. The Government said that the complaint made to
the Commission and declared admissible by it (see paragraphs 30 and 31 above)
was not the same as the one that the Spanish courts had considered in the
application for protection of fundamental rights since it appeared to be based on
statements, medical reports and technical experts’ opinions of later date than
that application and wholly unconnected with it.
46. This argument does not persuade the Court. The
applicant had complained of a situation which had been prolonged by the municipality’s
and the relevant authorities’ failure to act. This inaction was one of the
fundamental points both in the complaints made to the Commission and in the
application to the Murcia Audiencia Territorial (see paragraph 10 above). The
fact that it continued after the application to the Commission and the decision
on admissibility cannot be held against the applicant. Where a situation under
consideration is a persisting one, the Court may take into account facts
occurring after the application has been lodged and even after the decision on
admissibility has been adopted (see, as the earliest authority, the Neumeister
v. Austria judgment of 27 June 1968, Series A no. 8, p. 21, para. 28, and p.
38, para. 7).
47. Mrs López Ostra maintained that, despite its
partial shutdown on 9 September 1988, the plant continued to emit fumes,
repetitive noise and strong smells, which made her family’s living conditions
unbearable and caused both her and them serious health problems. She alleged in
this connection that her right to respect for her home had been infringed.
48. The Government disputed that the situation was
really as described and as serious (see paragraph 40 above).
49. On the basis of medical reports and expert
opinions produced by the Government or the applicant (see paragraphs 18-19
above), the Commission noted, inter alia, that hydrogen sulphide emissions from
the plant exceeded the permitted limit and could endanger the health of those
living nearby and that there could be a causal link between those emissions and
the applicant’s daughter’s ailments.
50. In the Court’s opinion, these findings merely
confirm the first expert report submitted to the Audiencia Territorial on 19
January 1989 by the regional Environment and Nature Agency in connection with
Mrs López Ostra’s application for protection of fundamental rights. Crown
Counsel supported this application both at first instance and on appeal (see
paragraphs 11 and 13 above). The Audiencia Territorial itself accepted that,
without constituting a grave health risk, the nuisances in issue impaired the
quality of life of those living in the plant’s vicinity, but it held that this
impairment was not serious enough to infringe the fundamental rights recognised
in the Constitution (see paragraph 11 above).
51. Naturally, severe environmental pollution may
affect individuals’ well-being and prevent them from enjoying their homes in
such a way as to affect their private and family life adversely, without,
however, seriously endangering their health.
Whether the question is analysed in terms of a
positive duty on the State - to take reasonable and appropriate measures to
secure the applicant’s rights under paragraph 1 of Article 8 (art. 8-1) -, as
the applicant wishes in her case, or in terms of an "interference by a
public authority" to be justified in accordance with paragraph 2 (art.
8-2), the applicable principles are broadly similar. In both contexts regard
must be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole, and in any case
the State enjoys a certain margin of appreciation. Furthermore, even in
relation to the positive obligations flowing from the first paragraph of
Article 8 (art. 8-1), in striking the required balance the aims mentioned in
the second paragraph (art. 8-2) may be of a certain relevance (see, in
particular, the Rees v. the United Kingdom judgment of 17 October 1986, Series
A no. 106, p. 15, para. 37, and the Powell and Rayner v. the United Kingdom
judgment of 21 February 1990, Series A no. 172, p. 18, para. 41).
52. It appears from the evidence that the
waste-treatment plant in issue was built by SACURSA in July 1988 to solve a
serious pollution problem in Lorca due to the concentration of tanneries. Yet
as soon as it started up, the plant caused nuisance and health problems to many
local people (see paragraphs 7 and 8 above).
Admittedly, the Spanish authorities, and in
particular the Lorca municipality, were theoretically not directly responsible
for the emissions in question. However, as the Commission pointed out, the town
allowed the plant to be built on its land and the State subsidised the plant’s
construction (see paragraph 7 above).
53. The town council reacted promptly by rehousing
the residents affected, free of charge, in the town centre for the months of
July, August and September 1988 and then by stopping one of the plant’s
activities from 9 September (see paragraphs 8 and 9 above). However, the
council’s members could not be unaware that the environmental problems
continued after this partial shutdown (see paragraphs 9 and 11 above). This
was, moreover, confirmed as early as 19 January 1989 by the regional
Environment and Nature Agency’s report and then by expert opinions in 1991,
1992 and 1993 (see paragraphs 11 and 18 above).
54. Mrs López Ostra submitted that by virtue of
the general supervisory powers conferred on the municipality by the 1961
regulations the municipality had a duty to act. In addition, the plant did not
satisfy the legal requirements, in particular as regards its location and the
failure to obtain a municipal licence (see paragraphs 8, 27 and 28 above).
55. On this issue the Court points out that the
question of the lawfulness of the building and operation of the plant has been
pending in the Supreme Court since 1991 (see paragraph 16 above). The Court has
consistently held that it is primarily for the national authorities, notably
the courts, to interpret and apply domestic law (see, inter alia, the Casado
Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 18, para.
43).
At all events, the Court considers that in the
present case, even supposing that the municipality did fulfil the functions
assigned to it by domestic law (see paragraphs 27 and 28 above), it need only
establish whether the national authorities took the measures necessary for
protecting the applicant’s right to respect for her home and for her private
and family life under Article 8 (art. 8) (see, among other authorities and
mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985,
Series A no. 91, p. 11, para. 23).
56. It has to be noted that the municipality not
only failed to take steps to that end after 9 September 1988 but also resisted
judicial decisions to that effect. In the ordinary administrative proceedings
instituted by Mrs López Ostra’s sisters-in-law it appealed against the Murcia
High Court’s decision of 18 September 1991 ordering temporary closure of the
plant, and that measure was suspended as a result (see paragraph 16 above).
Other State authorities also contributed to
prolonging the situation. On 19 November 1991 Crown Counsel appealed against
the Lorca investigating judge’s decision of 15 November temporarily to close
the plant in the prosecution for an environmental health offence (see paragraph
17 above), with the result that the order was not enforced until 27 October
1993 (see paragraph 22 above).
57. The Government drew attention to the fact that
the town had borne the expense of renting a flat in the centre of Lorca, in
which the applicant and her family lived from 1 February 1992 to February 1993
(see paragraph 21 above).
The Court notes, however, that the family had
to bear the nuisance caused by the plant for over three years before moving
house with all the attendant inconveniences. They moved only when it became
apparent that the situation could continue indefinitely and when Mrs López
Ostra’s daughter’s paediatrician recommended that they do so (see paragraphs
16, 17 and 19 above). Under these circumstances, the municipality’s offer could
not afford complete redress for the nuisance and inconveniences to which they
had been subjected.
58. Having regard to the foregoing, and despite
the margin of appreciation left to the respondent State, the Court considers
that the State did not succeed in striking a fair balance between the interest
of the town’s economic well-being - that of having a waste-treatment plant -
and the applicant’s effective enjoyment of her right to respect for her home
and her private and family life.
There has accordingly been a violation of
Article 8 (art. 8).
III.
ALLEGED VIOLATION OF ARTICLE 3
(art. 3) OF THE CONVENTION
59. Mrs López Ostra submitted that the matters for
which the respondent State was criticised were of such seriousness and had
caused her such distress that they could reasonably be regarded as amounting to
degrading treatment prohibited by Article 3 (art. 3) of the Convention, which
provides:
"No one shall be subjected to torture or
to inhuman or degrading treatment or punishment."
The Government and the Commission took the
view that there had been no breach of this Article (art. 3).
60. The Court is of the same opinion. The
conditions in which the applicant and her family lived for a number of years
were certainly very difficult but did not amount to degrading treatment within
the meaning of Article 3 (art. 3).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE
CONVENTION
61. Under Article 50 (art. 50),
"If the Court finds that a decision or a
measure taken by a legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows only
partial reparation to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
Mrs López Ostra claimed compensation for
damage and reimbursement of costs and expenses.
A. Damage
62. The applicant asserted that the building and
operation of a waste-treatment plant next to her home forced her to make
radical changes to her way of life. She consequently sought the following sums
in reparation of the damage sustained:
(a) 12,180,000 pesetas (ESP) for the distress
she suffered from 1 October 1988 to 31 January 1992 while living in her former
home;
(b) ESP 3,000,000 for the anxiety caused by
her daughter’s serious illness;
(c) ESP 2,535,000 for the inconvenience caused
from 1 February 1992 by her undesired move;
(d) ESP 7,000,000 for the cost of the new
house she was obliged to buy in February 1993 because of the uncertainty of the
accommodation provided by the Lorca municipal authorities;
(e) ESP 295,000 for expenses incurred in
settling into the new house.
63. The Government considered that these claims
were exaggerated. They pointed out that the Lorca municipal authorities had
paid the rent for the flat occupied by Mrs López Ostra and her family in the
town centre from 1 February 1992 until she moved into her new house.
64. The Delegate of the Commission found the total
sum sought excessive. As regards the pecuniary damage, he considered that while
the applicant had theoretically been entitled to claim a new home, she was
bound to give her former one in exchange, due allowance being made for any
differences in size and characteristics.
65. The Court accepts that Mrs López Ostra
sustained some damage on account of the violation of Article 8 (art. 8) (see
paragraph 58 above). Her old flat must have depreciated and the obligation to
move must have entailed expense and inconvenience. On the other hand, there is
no reason to award her the cost of her new house since she has kept her former
home. Account must be taken of the fact that for a year the municipal
authorities paid the rent of the flat occupied by the applicant and her family
in the centre of Lorca and that the waste-treatment plant was temporarily
closed by the investigating judge on 27 October 1993 (see paragraph 22 above).
The applicant, moreover, undeniably sustained
non-pecuniary damage. In addition to the nuisance caused by the gas fumes,
noise and smells from the plant, she felt distress and anxiety as she saw the
situation persisting and her daughter’s health deteriorating.
The heads of damage accepted do not lend
themselves to precise quantification. Making an assessment on an equitable
basis in accordance with Article 50 (art. 50), the Court awards Mrs López Ostra
ESP 4,000,000.
B. Costs and expenses
1. In the domestic courts
66. The applicant claimed a total of ESP 850,000
for costs and expenses incurred in the domestic courts.
67. The Government and the Delegate of the
Commission pointed out that Mrs López Ostra had received free legal aid in Spain
68. The Court likewise finds that the applicant
did not incur expenses in this respect and accordingly dismisses the claim in
question. Mr Mazón Costa cannot rely on Article 50 (art. 50) to claim just
satisfaction on his own account as he accepted the terms of the legal aid
granted to his client (see, among other authorities, the Delta v. France
judgment of 19 December 1990, Series A no. 191-A, p. 18, para. 47).
2. Before the Convention institutions
69. Mrs López Ostra claimed ESP 2,250,000 for her
lawyer’s fees in the proceedings before the Commission and the Court, less the
sums paid as legal aid by the Council of Europe.
70. The Government and the Delegate of the
Commission considered this amount excessive.
71. In the light of the criteria laid down in its
case-law, the Court considers it equitable to award the applicant ESP 1,500,000
under this head, less the 9,700 French francs paid by the Council of Europe.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses
the Government’s preliminary objections;
2. Holds
that there has been a breach of Article 8 (art. 8) of the Convention;
3. Holds
that there has been no breach of Article 3 (art. 3) of the Convention;
4. Holds
that the respondent State is to pay the applicant, within three months,
4,000,000 (four million) pesetas for damage and 1,500,000 (one million five
hundred thousand) pesetas, less 9,700 (nine thousand seven hundred) French
francs to be converted into pesetas at the exchange rate applicable on the date
of delivery of this judgment, for costs and expenses;
5. Dismisses
the remainder of the claim for just satisfaction.
Done in English and in French, and
delivered at a public hearing in the Human Rights Building, Strasbourg
Rolv RYSSDAL
President
Herbert PETZOLD
Acting Registrar
* The case is numbered 41/1993/436/515. The first number is the case's position on
the list of cases referred to the Court in the relevant year (second
number). The last two numbers indicate
the case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications to the
Commission.
**
Rules A apply to all cases referred to the Court before the entry into force of
Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by
that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several times
subsequently.
* Note by the Registrar. For
practical reasons this annex will appear only with the printed version of the
judgment (volume 303-C of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the registry.