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FIRST
SECTION
CASE OF OLUIĆ v. CROATIA
(Application
no. 61260/08)
JUDGMENT
STRASBOURG
20 May
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Oluić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61260/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mrs Marina Oluić
(“the applicant”), on 18 November 2008.
- The
applicant was represented by Mrs D. Kesonja, a lawyer practising in
Rijeka. The Croatian Government (“the Government”) were
represented by their Agent, Mrs Š. StaZnik.
- On
9 April 2009 the President of the First Section decided to
communicate the complaint concerning the applicant's right to respect
for her private life and her home and the applicant's right to
peaceful enjoyment of her possessions to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Rijeka.
- The
applicant owns a part of a house in Rijeka where she lives with her
family. Since December 1999 a bar, F., has been run by a third person
in the other part of the house.
- On
16 March 2001 the applicant wrote to the Primorsko-Goranska County
Sanitary Inspection, the Rijeka Office for Employment, Health and
Social Welfare (Sanitarna inspekcija Ureda za rad, zdravstvo i
socijalnu skrb primorsko-goranske Zupanije u Rijeci – “the
Sanitary Inspection”), reporting that her flat had constantly
been exposed to excessive noise from the F. bar, which was open from
7 a.m. to midnight each day. She invited the Sanitary Inspectorate to
measure the noise. On 30 March 2001 the applicant urged action on her
request.
- Measurements
were carried out on 1 May 2001 at night by an independent expert
firm. The expert found that the level of noise at night had exceeded
the permitted level. In a room situated in the western part of the
applicant's flat the noise level at night reached 35,9 dB (decibels)
which exceeded the permitted level by 5,9 dB. In a room situated in
the eastern part of the applicant's flat the noise at night reached
38,5 dB which exceeded the permitted level by 8,5 dB.
- In
a decision of 1 June 2001 the Sanitary Inspection ordered the company
L., the owner of the bar F., to reduce the level of noise from their
equipment for reproduction of music. The decision relied on the
measurements carried out on 1 May 2001 for the purposes of these
proceedings which had established that the noise from F. exceeded the
prescribed limit. The decision was however quashed on 24 August 2001
by the Ministry of Health, upon an appeal lodged by the respondent
and the case was remitted to the Sanitary Inspectorate.
- Measurements
carried out on 13 October 2001 at night again showed that noise from
F. exceeded the permitted level by 1.8 dB to 6.9 dB depending on the
exact place of measurements. The maximum levels measured inside the
applicant's flat were 36.9 dB and the external noise level, at the
house entrance, 57 dB.
- Measurements
carried out on 17 November 2001 again showed that noise from F.
exceeded the permitted level by 2.1 to 5.2 dB depending on the exact
place of measurements. The maximum level measured at the applicant's
flat was 35.2 dB, and the external noise level 55.2 dB.
- By
decision of 15 February 2002 the Sanitary Inspectorate ordered the
owner of the bar to add sound insulation to the walls and the
inter-floor construction according to the Croatian standards in that
respect.
- An
inspection carried out on 24 April 2002 established that the above
decision had not been complied with.
- On
3 May 2002 the Sanitary Inspectorate ordered the enforcement of the
above decision if the owner did not comply with it by 31 May 2002. On
the latter date an inspection established that the bar F. had been
closed and that the owner had lodged a request with the local Tourism
Office to allow the bar to be closed in order to install the required
sound insulation.
- A
further inspection in the bar F., carried out on 12 June 2002 showed
that sound insulation had been installed. Measurements were not
carried out because the applicant sought the replacement of the
Sanitary Inspector assigned to the case. On 10 July 2002 the request
was denied.
- On
20 September 2002 a further measurement showed that the level of
noise insulation on the first floor was insufficient. The owner of
the bar objected to these findings and on 4 November 2002 a fresh
expert report was ordered.
- On
11 November 2002 the applicant again sought the replacement of the
Sanitary Inspector assigned to the case. Her request was declared
inadmissible on 26 November 2002.
- The
measurements carried out on 14 February 2003 again showed that noise
from F. exceeded the permitted level. On 14 March 2003 the firm L.
informed the authorities that it no longer ran the bar F. An on-site
inspection of 21 March 2003 showed that the first floor of the house
was no longer used as a bar, but only the ground floor. On 24 March
2003 the proceedings were terminated on the grounds that the
measurements previously carried out had shown that the level of noise
on the ground floor was not excessive.
- The
applicant lodged an appeal, which was dismissed by the Ministry of
Health on 19 May 2003. On 25 June 2003 the applicant brought a claim
before the Administrative Court (Upravni sud Republike Hrvatske),
challenging the findings of the administrative bodies.
- Further
measurements carried out for three consecutive nights from 13 to
15 May 2005 showed that the level of noise in the applicant's flat
exceeded the permitted level by 3.2 to 15.6 dB, depending on the time
of measurements. The noise in the period from 10 p.m. to midnight
reached levels of 40.6 dB on the night of 13 to 14 May and 34 dB on
the night of 14 to 15 May.
-
On an unspecified date the applicant lodged a complaint with the
Supreme Court about the length of the proceedings before the
Administrative Court. On 26 March 2007 the complaint was accepted and
the Supreme Court ordered the Administrative Court to adopt a
decision within three months.
- On
24 April 2007 the Administrative Court quashed the lower bodies'
decisions and ordered them to establish whether the noise coming from
the bar was still excessive.
- On
9 October 2007 the second-instance administrative body annulled the
decision of 24 March 2003 on the grounds that the measurements of
noise in the applicant's flat and in the common yard in front of the
house showed that the noise coming from F. was excessive and that the
noise insulation between F. and the applicant's flat was
insufficient.
- On
4 December 2007 the Primorsko-Goranska County Sanitary Inspectorate
ordered expert noise measurements to be carried out on 12 December
2007. These measurements showed that the insulation was sufficient.
On 30 January 2008 the applicant requested new measurements in the
evening hours and without prior notification. This request was
accepted on 17 March 2008 and the applicant was invited to indicate
the date for measurement. She submitted her answer on 15 December
2008 and the measurement was carried out on 19 December 2008. They
showed that the level of noise was again excessive. The maximum level
of noise measured inside the applicant's flat was 31.6 dB and the
external level of noise 54.6 dB.
- On
30 January 2009 the Sanitary Inspectorate ordered the owner of the
bar to reduce the noise. Measurements carried out on 23 February 2009
showed that the level of noise had not exceeded the set standards.
- The
applicant submitted medical documentation of 1 September,
4 October and 8 November 2006, in respect of her daughter, born
in 1966, showing that she suffered from hearing impairment and
recommending that she avoid exposure to noise. She also submitted
medical documentation of 14 and 27 March 2007 in respect of her
husband, born in 1944, showing that he had been treated for heart
disease, including heart surgery.
II. RELEVANT DOMESTIC LAW
- Section
4 of the Bylaw on the Maximum Permitted Levels of Noise in Areas
Where People Work and Live (Pravilnik o najvišim dopuštenim
razinama buke u sredinama u kojima ljudi rade i borave, Official
Gazette no 37 of 25 September 1990) limits the maximum permitted
noise-reception level inside closed residential areas at 30 dB in the
period between 10 p.m. and 6 a.m. (night) and at 40 dB during day.
The limit for external noise-reception level was set at 55 dB during
day and 45 dB at night.
- Section
5 of the Bylaw on the Maximum Permitted Levels of Noise in Areas
Where People Work and Live (Pravilnik o najvišim dopuštenim
razinama buke u sredinama u kojima ljudi rade i borave, Official
Gazette no 145/2004 of 19 October 2004) limits the maximum permitted
noise-reception level inside closed residential areas at 25 dB in the
period between 10 p.m. and 6 a.m. (night) and at 35 dB during day.
The limit for external noise-reception level was set at 55 dB during
day and 45 dB at night.
III. NOISE LEVELS AND INTERNATIONAL STANDARDS
- Most
environmental noises can be approximately described by one of several
simple measures. The sound pressure level is a measure of the air
vibrations that make up sound and it indicates how much greater the
measured sound is than the threshold of hearing. Because the human
ear can detect a wide range of sound pressure levels, they are
measured on a logarithmic scale with units of decibels (dB). If the
instantaneous noise pressure level is measured this is called
“A-weighting” (abbreviated dBA) whereas, if the noise
pressure level is measured over a certain time span, this is called
the “equivalent continuous sound pressure level”
(abbreviated LAeq). Such average levels are usually based on
integration of A-weighted levels. A simple LAeq type measure will
indicate reasonably well the expected effects of specific noise.
- The
World Health Organization (WHO) has published “Guidelines for
Community Noise” (1999) and “Fact Sheet No. 258, on
Occupational and Community Noise” (revised February 2001) which
give guideline values for various environments and situations
(Chapter 4 of the Guidelines). These guideline values are set at the
level of the lowest adverse health effect, meaning any temporary or
long-term deterioration in physical, psychological or social
functioning that is associated with noise exposure, and represent the
sound pressure level which affects the most exposed receiver in a
given environment.
- In
relation to noise levels in homes, the guidelines state that to
protect the majority of people from being seriously annoyed during
the daytime, the sound pressure level on balconies, terraces and in
outdoor living areas should not exceed 55 dB LAeq for steady
continuous noise and should not exceed 50 dB LAeq to protect people
from being moderately annoyed. These values are based on annoyance
studies but most European countries have adopted a 40 dB LAeq as the
maximum allowable for new developments.
- At
night, sound pressure levels at the outside façades of living
spaces should not exceed 45 dB LAeq, so that people may sleep with
bedroom windows open. This value has been obtained by assuming that
the noise reduction from outside to inside with the window partly
open is 15 dB and, where noise is continuous, the equivalent sound
pressure level should not exceed 30 dB indoors, if negative effects
on sleep, such as a reduction in the proportion of REM sleep, are to
be avoided.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the State had failed to protect her from
excessive noise and from being disturbed at night at her home by a
bar operating in a part of the house she inhabited. She relied on
Article 8 of the Convention which reads as follows:
“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.”
A. Admissibility
- The
Government firstly argued that the applicant had failed to exhaust
domestic remedies because she had failed to bring a civil action
against the owner of the F. bar in order to seek that the noise cease
and to seek damages.
- The
applicant argued that she had exhausted available remedies in the
administrative proceedings and that there had been no reason to lodge
a separate civil action.
- The
Court reiterates that an applicant is required to make normal use of
domestic remedies which are effective, sufficient and accessible. It
is also noted that, in the event of there being a number of remedies
which an individual can pursue, that person is entitled to choose a
remedy which addresses his or her essential grievance (see Croke
v. Ireland (dec.), no. 33267/96, 15 June 1999). In other
words, when a remedy has been pursued, the use of another remedy
which has essentially the same objective is not required (see Moreira
Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V, and
Jeličić v. Bosnia and Herzegovina (dec.),
no. 41183/02, 15 November 2005).
- As
to the present case the Court notes that the applicant indeed had a
choice between, on the one hand, a civil action against the owner of
the F. bar whereby she could have sought the removal of the source of
excessive noise, cease of all further exposure to excessive noise as
well as damages in relation to the exposure of her flat to excessive
noise and, on the other hand, the administrative remedies before the
relevant administrative bodies. The applicant opted for the later.
The Court notes that in the administrative proceedings instituted by
the applicant she was able to seek the relevant expert measurements
to be carried out and that the administrative bodies were empowered
to issue decisions ordering the reduction of the noise level. In the
Court's view the administrative remedy was hence able to address a
situation of the violation alleged by the applicant. Therefore, the
applicant was not required at the same time to bring a civil action
or to use any other remedy.
- It
follows that the Government's objection as to the exhaustion of
domestic remedies in so far as it concerns the argument that the
applicant had failed to bring a civil action against the owner of the
bar must be rejected.
- Secondly,
the Government maintained that the applicant had failed to use all
available remedies in the administrative proceedings she had
instituted and that some of these proceedings were still pending. In
particular, she should have brought an action against unlawful act in
court against the administrative authorities which had not carried
out their own enforcement order.
- Thirdly,
the Government submitted that the complaint under Article 8 is
incompatible ratione materiae with the Convention since that
Article was not applicable in the present case. They argued that the
level of noise in the applicant's home had not reached the necessary
level of severity.
- The
applicant argued that she had properly exhausted available remedies
and that any other remedies would have been redundant. She further
argued that the level of noise had been such as to fall within the
ambit of Article 8 of the Convention. The exposure of the applicant
and her family to the excessive noise had persisted over a period of
some eight years and occurred nightly. It had caused the applicant,
her husband and their daughter severe medical problems.
- The
Court considers that both the question of exhaustion of domestic
remedies in the administrative proceedings and the issue of
applicability of Article 8 to the circumstances of the present
case should be joined to the merits, since they are closely linked to
the substance of the applicant's complaint about the State's alleged
failure to protect her from excessive noise for a prolonged period of
time. The Court further considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. Moreover, it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that the measurements carried out by independent
experts in the course of the administrative proceedings she had
instituted had shown that the level of noise at her home had been
excessive over a period of about eight years and that it occurred
nightly. She argued that that situation clearly called for adequate
measures in order to limit the noise exposure according to the set
standards. However, the competent administrative authorities had
failed to protect her from excessive noise.
- The
Government argued that the present case concerned a dispute between
two private parties and not an interference by the State authorities
with any of the applicant's rights protected under Article 8 of the
Convention. The applicant herself had agreed to conversion of a part
of the house to a bar and therefore must have known that she would
have to suffer a certain level of noise, even at night since it was
common knowledge that bars were generally open at night. The
competent administrative authorities had conducted the relevant
proceedings and in the end secured that the applicant was no longer
exposed to excessive noise. Furthermore, the applicant herself had
contributed to the obstruction of the administrative proceedings
because although she had been invited to indicate the time of
measurements of noise as early as 17 March 2008 she had submitted her
answer as late as 15 December 2008.
2. The Court's assessment
(a) General principles
- Article
8 of the Convention protects the individual's right to respect for
his private and family life, his home and his correspondence. A home
will usually be a place, a physically defined area, where private and
family life develops. The individual has a right to respect for his
home, meaning not just the right to the actual physical area, but
also to the quiet enjoyment of that area. Breaches of the right to
respect of the home are not confined to concrete or physical
breaches, such as unauthorised entry into a person's home, but also
include those that are not concrete or physical, such as noise,
emissions, smells or other forms of interference. A serious breach
may result in the breach of a person's right to respect for his home
if it prevents him from enjoying the amenities of his home (see
Hatton and Others v. the United Kingdom [GC], no.
36022/97, § 96, ECHR 2003-VIII).
- The
Court reiterates further that although there is no explicit right in
the Convention to a clean and quiet environment, where an individual
is directly and seriously affected by noise or other pollution, an
issue may arise under Article 8 of the Convention (see Hatton and
Others, cited above, § 96; López Ostra
v. Spain, judgment of 9 December 1994, Series A no. 303-C;
Powell and Rayner v. the United Kingdom, judgment of
21 February 1990, Series A no. 172, p. 18, § 40; and
Furlepa v. Poland (dec.), no. 62101/00, 18 March
2008).
- Although
the object of Article 8 is essentially that of protecting the
individual against arbitrary interference by the public authorities,
it may involve the authorities' adopting measures designed to secure
respect for private life even in the sphere of relations between
individuals (see, among other authorities, Stubbings and Others v.
the United Kingdom, judgment of 22 October 1996, Reports
1996-IV, pp. 1505, § 62, and Surugiu v. Romania,
no. 48995/99, § 59, 20 April 2004). Whether the case is
analysed in terms of a positive duty on the State to take reasonable
and appropriate measures to secure the applicants' rights under
paragraph 1 of Article 8 or in terms of an interference by a public
authority to be justified in accordance with paragraph 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. Furthermore, even in relation to the positive obligations
flowing from the first paragraph of Article 8, in striking the
required balance the aims mentioned in the second paragraph may be of
a certain relevance (see Hatton and Others, cited above, §
98).
- The
Court reiterates that the Convention is intended to guarantee rights
that are “practical and effective”, not “theoretical
or illusory” (see, among other authorities, Papamichalopoulos
and Others v. Greece, 24 June 1993, Series A
no. 260-B, § 42).
(b) Application of the above principles in
the instant case
- The
present case does not concern interference by public authorities with
the right to respect for the home, but their alleged failure to take
action to put a stop to third-party breaches of the right relied on
by the applicant.
- The
Court notes that the applicant's flat is subject to night-time
disturbance, which allegedly unsettles the applicant. The Court must
now determine whether the nuisance caused by the noise attained the
minimum level of severity required for it to constitute a violation
of Article 8. The assessment of that minimum is relative and depends
on all the circumstances of the case, such as the intensity and
duration of the nuisance and its physical or mental effects (see
Fadeyeva v. Russia, no. 55723/00, §§ 68-69,
ECHR 2005-IV, and Fägerskiöld v. Sweden (dec.),
no. 37664/04).
- So
far the Court has addressed the problem of the State's duty to
protect an applicant from excessive noise in several cases. Thus it
found that no disturbance incompatible with the requirements of
Article 8 of the Convention had been suffered by the applicants as
regards aircraft noise (see Hatton and Others, cited above, §§
11-27 and 116-18; and Ashworth and Others v. the United Kingdom
(dec.), no. 39561/98, 20 January 2004); noise from an electric
transformer (see Ruano Morcuende v. Spain (dec.),
no. 75287/01, 6 September 2005); noise from a wind turbine
(see Fägerskiöld v. Sweden, cited above); noise
from a tailoring workshop (see Borysiewicz v. Poland,
no. 71146/01, §§ 5 and 52-55, 1 July 2008); noise from a
lorry maintenance and metal-cutting and grinding workshop (see Leon
and Agnieszka Kania v. Poland, no. 12605/03, §§ 5 and
101-03, 21 July 2009); or noise emanating from a dentist's
surgery (see Galev. v. Bulgaria (dec.), no. 18324/04, 29
September 2009).
- In
reaching its conclusions in the above-mentioned cases the Court
relied on findings such as that the level of noise had not exceeded
acceptable levels; that the applicants had failed to show that they
had suffered specific adverse effects; or that no relevant
measurements had been carried out.
- The
Court finds that the present case is more akin to the case of Moreno
Gómez (see Moreno Gómez v. Spain,
no. 4143/02, ECHR 2004-X) which concerned noise from nightclubs.
Similarly to the situation in Moreno Gómez, and
contrary to the above-mentioned cases where the Court found that the
noise had not been excessive, in the present case the measuring of
the level of noise in the period covering some eight years indicated
that night-time noise had been excessive. The first measurement
carried out on 1 May 2001 showed even then that the level of
noise had been beyond the set standards. Further measurements,
carried out on 13 October and 17 November 2001, 20 September
2002, 14 February 2003 and 19 December 2008 also established
that the level of noise in the applicant's flat had been beyond the
set standards. The Court notes that these measurements were carried
out by independent experts whose findings appear objective and were
not rebuffed in the domestic proceedings.
- In
this connection the Court notes that the Bylaw on the Maximum
Permitted Levels of Noise from 1999 and applicable until 19 October
2004 set the maximum noise-reception levels in the inside of living
areas of residential buildings at 30 dB at night and at 40 dB during
day. The maximum external noise-reception levels were set at 45 dB at
night and 55 dB during daytime.
- The
measurements carried out on 1 May 2001 showed that the level of noise
at night in one of the rooms in the applicant's flat reached 35,9 dB
which exceeded the permitted level by 5,9 dB, while in another room
it reached 38,5 dB which exceeded the permitted level by 8,5 dB.
- The
measurements carried out on 13 October 2001 at night showed that the
maximum level of noise in the applicant's flat reached 36.9 dB and
outside the flat 57 dB, which again exceeded the permitted levels by
16.9 dB and 12 dB, respectively.
- The
measurements carried out on 17 November 2001 at night showed that the
maximum level of noise in the applicant's flat reached 35.2 dB
and outside the flat 55.2 dB, which also exceeded the permitted
levels by 5.2 and 10.2 dB respectively.
- On
19 October 2004 a new Bylaw on the Maximum Permitted Levels of Noise
entered into force which decreased the maximum permitted
noise-reception level inside closed residential areas to 25 dB in the
period between 10 p.m. and 6 a.m. (night) and at 35 dB during day.
The maximum permitted external noise-reception level remained
unchanged (45 dB at night and 55 dB at daytime).
- The
measurements carried out for three consecutive nights between 13 and
15 May 2005 inside the applicant's flat showed that the maximum level
of noise reached 40.6 dB which exceeded the permitted level by
15.6 dB.
- The
measurements carried out on 19 December 2008 at night showed that the
maximum level of noise inside the applicant's flat reached 31.6 dB
and outside the house 54.6 dB which was also beyond the permitted
level by 6.6 dB and 9.6 dB respectively.
- The
Court further notes that the level of noise exceeded the
international standards as set by the World Health Organisation and
most European countries (see §§ 28 to 31 above).
- The
Court is also mindful that the noise in question originated from a
bar operating in the same house where the applicant lives. Also, the
medical documentation submitted by the applicant shows that her
daughter suffered from a hearing impairment and that her condition
required that she was not exposed to noise.
- In
view of the volume of the noise – at night and beyond the
permitted levels – and the fact that it continued over a number
of years and nightly, the Court finds that the level of disturbance
reached the minimum level of severity which required the relevant
State authorities to implement measures in order to protect the
applicant from such noise (see Moreno Gómez,
cited above, § 60).
- In
this connection the Court notes that after the first measurements had
been carried out the local administrative authority used its powers
to adopt certain measures. Thus, it ordered the company L., the owner
of the bar F., to reduce the level of noise from their equipment for
reproduction of music. However, this decision was not complied with.
In the ensuing proceedings there were significant delays. In this
connection the Court stresses that regulations to protect guaranteed
rights serve little purpose if they are not duly enforced. The Court
notes that although the measurements carried out on 13 October and 17
November 2001 both showed an excessive noise level, the
administrative authorities took no action until 15 February
2002, when they ordered the owner of the bar to add sound insulation
to the walls and inter-floor construction according to the Croatian
standards in that respect. However, it turned out that the insulation
installed was insufficient.
- The
Court notes further that the applicant lodged her administrative
claim on 25 June 2003 while the Administrative Court decided on it
almost four years later, on 24 April 2007. In the Court's view such a
long delay made the remedy used by the applicant ineffective and
resulted in her suffering prolonged nightly exposure to excessive
noise. It was only on 23 February 2009 that the level of noise
coming from the bar F. was found to be within acceptable limits.
These facts show that the applicant suffered an infringement of her
right to respect for her home as a result of the authorities' failure
to take action to deal with the night-time disturbances.
- Having
regard to the Government's objections that were joined to the merits
of the complaint, the Court notes that the level of noise to which
the applicant was exposed for a number of years reached the necessary
level of severity and that therefore Article 8 applies in the
circumstances of the present case. Furthermore, the national
authorities allowed this situation to persist for almost eight years
while the various proceedings before the administrative authorities
and the Administrative Court were pending, thus rendering these
proceedings ineffective.
- In
these circumstances, the Court finds that the respondent State has
failed to discharge its positive obligation to guarantee the
applicant's right to respect for her home and her private life.
Accordingly, the Court finds that there has been a violation of
Article 8 of the Convention and dismisses the Government's objections
as to the applicability of Article 8 and the exhaustion of domestic
remedies.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF
THE CONVENTION
- The
applicant complained of a violation of her right to peaceful
enjoyment of her possessions. She relied on Article 1 of Protocol No.
1 to the Convention.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 8, the Court considers that
it is not necessary to examine whether in this case there has been a
violation of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 2 of the Convention that her
life had become unbearable and under Article 6 of the Convention that
she had had no access to a court.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary and EUR
50,000 non-pecuniary damage.
- The
Government deemed the claim
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand it awards the applicant EUR 15,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable to the
applicant.
B. Costs and expenses
- The
applicant also claimed EUR 3,700 for costs and expenses incurred
before the Court.
- The
Government made no comments.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,700 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to
join
to the merits the
Government's objections as to the applicability of Article 8 in the
present case and as to the exhaustion of domestic remedies and
rejects them;
- Declares the complaints concerning the
applicant's right to respect for her private life and her home and
the applicant's right to peaceful enjoyment of her possessions
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into Croatian kunas at the rate
applicable on the date of settlement:
(i) EUR
15,000 (fifteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR
3,700 (three thousand seven hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
