In the case of Bor v. Hungary,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
50474/08) against the Republic of Hungary lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Hungarian national, Mr László Bor (“the
applicant”), on 15 October 2008.
The applicant was represented by Mr V.
Szűcs, a lawyer practising in Zalaegerszeg. The Hungarian Government (“the
Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public
Administration and Justice.
The applicant complained of the impossibility to
enforcing, in an effectively and timely manner, the Hungarian Railway Company’s
obligation to keep the noise level under control near his home. He relied on
Articles 8, 13 and 17 of the Convention, Article 1 of Protocol No. 1 and
Article 1 of Protocol No. 12. Moreover, he complained under Article 6 § 1 of
the Convention about the length of the related court proceedings.
On 14 March 2012 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1954 and lives in Zalaegerszeg.
The applicant’s house is situated across the
street from Zalaegerszeg Railway Station, in front of the starting position of
trains. When about 1988 the Hungarian Railway Company (“MÁV”) replaced its
steam engines with diesel ones, the noise level increased significantly.
On 22 October 1991 the applicant and his
neighbours filed an action in trespass against MÁV, seeking that it be obliged
to keep its noise emission under control by constructing a noise barrier wall,
modernising the railway station, preheating the engines in another place and avoiding
the use of certain engines. This action was later extended to include a
compensation claim.
Between 7 February 1992 and January 1993 the
proceedings were stayed upon the parties’ request. From 22 July 1994 to 27
November 1998 the proceedings were suspended upon the applicant’s request,
pending his similar complaint before the National Public Health and Medical
Officer Service.
In 1995 the applicant also complained to the
Regional Environment Protection Authority about the noise disturbance. In
remitted proceedings, on 27 August 1997 the Environment Protection Authority established
the noise limits applicable to preheating trains. On 18 May 1998 it imposed a
fine on MÁV for non-compliance with those limits. The noise did not decrease,
therefore the applicant and his neighbours turned to the Public Prosecutor. On
4 May 2008 the Public Prosecutor initiated civil proceedings against MÁV. These
proceedings were consolidated with the ones initiated by the applicant and his
neighbours.
Relying on acoustic and engineering expert
opinions, on 24 September 2004 the Zalaegerszeg District Court established
the existence of sound pollution and ordered MÁV to finance the installation of
soundproof doors and windows on the plaintiffs’ houses, but dismissed the
remaining claims.
On appeal, the case was remitted to the first
instance.
In the remitted proceedings, on 9 November 2005
the District Court delivered a partial judgment, maintaining that the noise
level exceeded the limit value, prohibiting MÁV from making the excessive noise
emission, and obliging it to construct a noise barrier wall.
On appeal, on 30 March 2006 the Zala County
Regional Court dispensed with the obligation to build the protection wall, considering
it unnecessary in addition to the prohibition on noise pollution. The Regional
Court relied on section 101 (3) of the Act no. LIII of 1996 on the Protection
of Nature (“Nature Protection Act”).
The partial judgment having become final, the
first-instance proceedings continued with regard to the compensation claims. On
7 March 2008 the District Court ordered MÁV to pay the applicant
4,150,000 Hungarian forints
(HUF) in compensation for the loss of value of his house and HUF 445,000
for the costs of replacing the doors and windows.
On appeal, on 5 June 2008 the Regional Court partly reversed the judgment, dispensing with the award for the loss of value.
It relied on a real estate expert opinion, according to which if MÁV complied
with the partial judgment, the remaining noise would not reduce the market
value of the house.
MÁV complied with its payment obligation without
delay. In addition to that, between 2010 and 2012 several noise mitigating
measures, investments and developments were implemented at Zalaegerszeg Railway
Station, including reduction in the number of trains passing through the
station, minimisation of the stay of freight trains on passenger-train tracks
and the stationing of trains in the applicant’s street, renovation of engines, electrification
of shunting, reorganisation of pre-heating, limitation of the number of diesel
engines and their operation only on branch tracks, and avoidance of unnecessary
working of machines in the station area.
The applicant claims that due to the above measures
the noise has decreased to a degree but still exceeds the statutory limit value
by night and at dawn. However, no evidence has been produced to that effect.
II. RELEVANT DOMESTIC LAW
Act no. LIII of 1996 on the Protection of Nature
provides as follows:
Section 101
“(1) Users of the environment shall - in the manner specified
in this Act and in other laws - bear criminal, regulatory, civil and
administrative liability for the effects exerted by their activities on the
environment.
(2) Users of the environment shall
a) refrain from performing, and shall stop continuing to
perform conduct endangering or damaging the environment; ...
(3) In case of lack of success or non-compliance with the
provisions contained in subsection (2) items a) and e) the environment
protection authority or - in case of an activity permitted by another
authority, upon the request of the environment protection authority - the
permitting authority or the court shall - depending on the degree of
environment-endangering or environment-damaging - restrict, suspend or prohibit
the environment-endangering or environment-damaging activity until the
conditions determined by it are met.
(4) Where the carrying out of the prevention and restoration
measures affects lands owned, possessed, (used) by others, the owner, possessor
(user) of such lands shall tolerate the carrying out of such prevention and
restoration measures. The owner, possessor (user) of such lands shall be entitled
to indemnification.”
Section 109
“(1) Where the environmental components are damaged in ways
prohibited under the Criminal Code, the public prosecutor shall act in
compliance with the Code of Criminal Procedure.
(2) In case of endangerment of the environment the public
prosecutor shall also be entitled to bring an action for prohibiting the
activity or seeking compensation for damages caused by the environment-endangering
activity.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the noise disturbance
caused by the operation of the railway station made his home virtually uninhabitable,
and he had not received effective and timely protection against that nuisance. He
relied on Articles 8, 13 and 17 of the Convention and Article 1 of Protocol No.
1.
The Court considers that this complaint falls to be examined
under Article 8, 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.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant submitted that the extreme noise disturbance
caused by the railway station had started in 1988, while the first measures
aiming at reducing the noise had only been implemented in 2010. The noise had exceeded
the statutory levels for more than twenty years, and there still remained some
unbearable noise by night and at dawn. In his view, due to the non-compliance
with the statutory levels, the appropriateness of which was not questioned, the
interference with his right to respect his private life and home could not be
regarded as being ‘in accordance with the law’ or proportionate.
The Government argued that the Nature Protection
Act provided for a clear sanction system, which the courts had duly applied by prohibiting
MÁV from making the excessive noise emission and by obliging it to bear the
costs of installing soundproof doors and windows. In full compliance with this
ruling, MÁV had implemented measures which had significantly reduced the noise
emission. The remaining noise should be tolerated by the applicant, as his
house was situated by a railway station, the activity of which served both
public and private interests. Therefore, the restriction on his rights should
be regarded as lawful and proportionate.
The Court recalls that there is no explicit
right in the Convention to a quiet environment, but where an individual is
directly and seriously affected by noise, an issue may arise under Article 8
(see Hatton and Others v. the United Kingdom [GC], no. 36022/97,
§ 96, ECHR 2003-VIII). 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; and
in both contexts the State enjoys a certain margin of appreciation in
determining the steps to be taken to ensure compliance with the Convention.
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 v. the United Kingdom, cited above, § 98).
The Court has already held that noise
significantly above statutory levels, to which the State has not
responded with appropriate measures, may as such amount
to a violation of Article 8 of the Convention (cf. Oluić v. Croatia, no. 61260/08, §§ 48 to 66, 20 May 2010; Moreno Gómez v. Spain,
no. 4143/02, §§ 57 to 63, ECHR 2004-X; Deés
v. Hungary, no. 2345/06,
§ 23, 9 November 2010).
Turning to the present case, the Court notes
that - even assuming that the status of MÁV, a State-controlled enterprise, is that
of a legal entity distinct from the State - the State authorities had, upon the
applicant’s complaint about the company’s noise emission, a positive obligation
under Article 8 § 1 to strike a fair balance between the interest of the applicant
in having a quiet living environment and the conflicting interest of others and
the community as a whole in having rail transport.
The Court notes that the applicant did not
contest the appropriateness of the applicable noise limit values. It further
notes that the applicant has not submitted any evidence to show whether the
noise produced by the activities at the railway station still exceeds those
values. However, the Court attaches importance to the fact, not
contested by the Government, that the statutory noise values were overstepped
until at least the end of the related proceedings in 2008, when MÁV paid for
the replacement of the applicant’s doors and windows (see paragraph 16 above). The
complaint about the noise disturbance was brought in the domestic courts in
1991. The Convention entered into force with regard to Hungary on 5 November
1992, and it took almost sixteen years from this date to carry out a proper balancing
exercise and to reach an enforceable decision by the domestic courts. Therefore,
the applicant remained unprotected against the excessive noise disturbance,
which caused serious nuisance preventing him from enjoying his home, for an
unacceptably long period.
The Court accepts that the State enjoys a margin
of appreciation in determining the steps to be taken to ensure compliance with
the Convention when it comes to the determination of regulatory and other
measures intended to protect Article 8 rights (see Deés v. Hungary, cited
above, § 23). However, it emphasises that
the existence of a sanction system is not enough if it is not applied in a
timely and effective manner. In this respect it draws attention once again to
the fact that the domestic courts failed to determine any enforceable measures
in order to assure that the applicant would not suffer any disproportionate individual
burden for some sixteen years.
. Therefore the Court concludes that
the State has failed to discharge its positive obligation to guarantee the
applicant’s right to respect for his home. Accordingly, there has been a violation
of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant also complained that the length of
the proceedings which he brought in this matter was incompatible with the
“reasonable time” requirement of Article 6 § 1.
The Government did not contest that argument.
The period to be taken into consideration began
on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must be taken
of the state of proceedings at the time. The Court notes that the proceedings
had already been pending for over one year on that date. The period in question
ended on 8 June 2008. It thus lasted for fifteen years and seven months before
two levels of jurisdiction. From this time, a period of one year between 7 February
1992 and January 1993 must be deducted, as the proceedings were stayed upon the
parties’ request. Another period of four years between 22 July 1994 and July
1998 must be further deducted, when the proceedings were suspended upon the
applicant’s request (see paragraph 8 above). The remaining duration
is therefore ten years and seven months for two levels of jurisdiction. In view
of such lengthy proceedings, this complaint must be declared admissible.
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present application (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the
material submitted to it, it finds no reason to reach a different conclusion in
the present circumstances. Having regard to its case-law on the subject, the
Court finds that the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement. There has accordingly been a breach of
Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
. The
applicant, lastly, invoked Article 1 of Protocol No. 12 to the
Convention in respect of alleged discrimination in the
above proceedings.
. Since
Hungary has not ratified Protocol No. 12, this complaint must be rejected as
incompatible ratione personae with the provisions of the Convention
within the meaning of Article 35 § 3 (a) of the Convention and rejected pursuant
to Article 35 § 4.
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 4,000,000 Hungarian forints (HUF)
in respect of pecuniary damage, as compensation for the alleged decrease in the
market value of his house. As non-pecuniary damages, he claimed HUF 18,000,000
for the violation of Article 8 and HUF 10,000,000
for the violation of Article 6 (length).
The Government contested these claims.
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 considers that the applicant must
have sustained some non-pecuniary damage and awards him, on the basis of
equity, EUR 9,500 under this head.
B. Costs and expenses
The applicant also claimed HUF 929,700
for the costs and expenses incurred before the domestic courts and HUF 73,943
(HUF 30,000 of lawyer’s fee and HUF 43,943 of translation costs) plus VAT for
those incurred before the Court.
The Government contested this claim.
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 2,500 covering costs under all heads.
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
1. Declares the complaints concerning Articles
6 § 1 and 8 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention (length of the proceedings);
3. Holds that there has been a violation of
Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable
at the date of settlement:
(i) EUR 9,500 (nine thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
