AS TO THE ADMISSIBILITY OF
Application no. 62101/00
by Janina FURLEPA
The European Court of Human Rights (Fourth Section), sitting on 18 March 2008 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 12 April 2000,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Janina Furlepa, was a Polish national who was born in 1926, died in 2006 and lived in Olsztyn, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki and subsequently by Mr J. Wołasiewicz of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant lived in a semi-detached house in Olsztyn. In 1994 the house situated on the adjacent plot of land was sold. The new owner - “G. L” - demolished it and began to construct a building there.
On 10 November 1994 the Olsztyn Municipal Office (Urząd Miasta) issued preliminary planning permission authorising G. L. to continue the construction of the building for residential and/or commercial purposes. On 20 December 1994, on an appeal by the applicant, the Olsztyn Regional Office (Urząd Wojewódzki) quashed it and remitted the case. On 21 December 1994 the Olsztyn Municipal Office ordered all the construction works to be stopped and the building area to be secured.
On 30 January 1995 the Olsztyn Municipal Office gave a decision confirming that the intended construction could be located in the specified area (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu). On 23 March 1995 the Self-Government Board of Appeal in Olsztyn (Samorządowe Kolegium Odwoławcze) quashed this decision and remitted the case.
On 6 April 1995 the Municipal Office gave a decision ordering G. L. to secure the building area by constructing a special wall. In spring 1995 G. L. proceeded with the construction of the building.
On 16 May 1995 the Municipal Office delivered a second planning permission (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu) concerning the location of the intended construction. It refused permission for construction of a car repair garage and held that it was only possible to locate a car accessory shop on the site. This decision was later upheld by the Self-Government Board of Appeal, on 5 July 1995. The applicant lodged an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 14 July 1995 the Municipal Office gave a decision discontinuing the administrative proceedings as regards the safety requirements. It was established that G. L. had fulfilled all the necessary requirements as regards the security of the adjacent building.
On 12 July 1995 the Municipal Office ordered G. L. to demolish part of the constructed building as it had been built without the appropriate building permit (pozwolenie na budowę). On 14 November 1995 the Municipal Office again ordered G. L. to demolish part of the new building.
On 5 August 1996 the Municipal Office issued a building permit in favour of G. L. and allowed her to construct a car accessory shop. On 25 September 1996 the Regional Office quashed this decision and remitted the case. It held that as the construction works had begun and been carried out illegally, the case should be considered under Article 48 of the Law on Construction (Prawo budowlane). On 17 October 1996 the Municipal Office allowed the construction of the car accessory shop on the site. This decision was again quashed by the Regional Office on 14 January 1997.
On 7 May 1997 the Municipal Office delivered yet another decision allowing the construction of a car accessory shop and a shop selling new cars on the adjacent plot.
On 14 May 1997 the Supreme Administrative Court gave judgment and quashed the decision of 5 July 1995. It held that according to the local development plan, the planned construction was in a zone designated as residential. While it was possible to allow for such developments as grocery shops and local services, the construction of a car sales point or a car accessory shop was not a development of that kind.
On 25 June 1997 the Olsztyn Regional Office quashed the decision of 7 May 1997 and remitted the case.
On 27 March 1998 the Municipal Office ordered G. L. to stop the construction works as they had been carried out without an appropriate permit. On 11 May 1998 the Regional Office upheld this decision.
On 13 October 1999 the Supreme Administrative Court quashed the decision of 25 June 1997. It held that since 1995 the construction works on G. L.’s plot had been carried out illegally and that the administrative authorities had been fully aware of that fact.
On 14 July 2000 the District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego) ordered the garage to be demolished. This decision was upheld by the Regional Inspector of Construction Supervision (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) on 2 October 2000. On 7 December 2000 the District Inspector of Construction Supervision imposed a fine on G. L. as she had failed to comply with this order. This decision was upheld by the Regional Inspector on 21 January 2001.
Meanwhile, on 23 October 2000 the Regional Sanitary Inspector (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) informed the applicant that there had been an inspection of G. L’s building. During the inspection it was established that no repairing or spraying of cars was taking place. At the same time, the inspector reiterated that he was not competent to decide on the legality of the adjacent building.
On 25 May 2001 the Supreme Administrative Court decided to stay the enforcement of the decision of 21 January 2001. The court noted that enforcement of this decision before G. L’s appeal was examined could expose her to irreversible damage.
On 23 December 2002 G. L. sought to have the decision of the Regional Inspector of Construction Supervision of 2 October 2000 declared null and void. On 9 May 2003 and 23 June 2003 the Head Authority for Construction Supervision refused to declare this decision null and void. On 6 November 2003 the Supreme Administrative Court dismissed a further appeal by G. L.
The applicant complained under Article 8 of the Convention of the State’s failure to protect her private life and home from the serious nuisance arising from activities at her neighbour’s illegally constructed car repair garage.
A. The standing of the applicant’s sons
The Court notes at the outset that the applicant died after the application was communicated to the Government. Subsequently, her sons Adam and Zdzisław Furlepa informed the Court that they wished to pursue the application introduced by their mother.
The respondent Government did not submit any comments.
The Court reiterates that when an applicant dies during the proceedings, the next of kin of the applicant may have a legitimate interest in the continuation of the examination of the case (see, for example, Goc v. Poland (dec.), no. 48001/99, 23 October 2001).
In the present case, the Court accepts that the applicant’s sons can pursue the application.
B. The Government’s preliminary objection
The Government raised a preliminary objection that the applicant had failed to exhaust the available domestic remedies. In their opinion the applicant should have filed a claim under Article 144 in conjunction with Article 222 § 2 of the Civil Code of 1964. They were of the opinion that if there had been any disturbances affecting the applicant’s right to respect for her home, such as noise or air pollution, she should have addressed herself to a civil court in order to seek protection for her rights. They referred, inter alia, to the Supreme Court’s judgment of 18 June 1998 (II CKU6/98) in which that court held that if a claim based on Article 144 in conjunction with Article 222 § 2 of the Civil Code was allowed by a civil court, it was possible to order the demolition of the building which had caused the prohibited disturbance, unless the building had been constructed in accordance with a building permit. The applicant, instead of making use of the Article 144 remedy, had had recourse to various ineffective remedies: a request for institution of criminal proceedings against G. L., requests for disconnection of water, gas and electricity in G. L.’s building and letters to the Ombudsman.
The applicant disagreed. She claimed that her case did not concern disturbances which might typically be caused by a neighbouring house. In order to stop the noise and pollution it was necessary to close the garage, which could not have been done by the courts, but was the task of the public administration.
In the instant case the Court does not find it necessary to rule on whether the remedy advanced by the Government was effective, since even assuming that the applicant has exhausted domestic remedies, it considers that the application is in any event inadmissible for the reasons set out below.
The applicant complained that there had been a violation of Article 8 of the Convention on account of the State’s failure to protect her private life and home from severe nuisance arising from activities at her neighbour’s illegally constructed car repair garage. Article 8 of the Convention in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private and family life, [and] his home...
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 ... public safety or the economic well-being of the country, ..., for the protection of health ..., or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
(a) The Government’s submissions
The Government firstly submitted that there had been no interference by any public authority with the applicant’s right to respect for her home. It was, furthermore, for the applicant to establish the fact of interference, or at least demonstrate its likelihood.
The Government maintained that both the applicant and her neighbour should have benefited from an equal level of legal protection. It could not be held that the applicant’s interests and the corresponding State obligations were more important than the interest of G. L in securing her rights. They underlined the need to strike a balance between competing interests in all disputes concerning neighbour relations.
The Government stressed that the administrative authorities had not remained passive and had taken far-reaching steps to fulfil their positive duties with regard to the applicant’s rights under Article 8 of the Convention. In 1999 the Supreme Administrative Court declared that the construction works on G. L’s plot had been carried out illegally. Subsequently, the District Inspector of Construction Supervision ordered the demolition of the garage and took further steps to have the demolition order executed.
(b) The applicant’s submissions
The applicant submitted that the construction works had been conducted without an appropriate building permit, illegally. In her opinion, the authorities had been fully aware of the fact of the illegal construction. She further stressed that the noise and air pollution had been caused not only by the car repair garage, but also by the demolition of the old building and construction of the new one. She claimed that the public administration for many years had been tolerating the illegal operation of the car garage. She concluded that there was a breach of Article 8 of the Convention.
2. The Court’s assessment
(a) General principles
The Court draws attention to its settled case-law, according to which Article 8, while primarily intended to protect the individual against arbitrary interference on the part of the public authorities, may also entail the adoption by the latter of measures to secure the rights guaranteed by that Article even in the sphere of relations between individuals (see, among many other authorities, López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51, 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 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 Moreno Gómez v. Spain, no. 4143/02, § 55, ECHR 2004-X).
In relation to this, the Court reiterates that there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (see Hatton and Others v. the United Kindgom [GC], no. 36022/97, § 96, ECHR 2003-VIII). Specifically, Article 8 of the Convention applies to severe environmental pollution which 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, even without seriously endangering their health (see, among others, Taykyn and Others v. Turkey, no. 46117/99, § 113, ECHR 2004-X).
(b) Application to the present case
The present case does not concern interference by public authorities with the right to respect for the home, but their 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 house is located in a residential area in Olsztyn. In the 1990s her neighbour constructed a car accessory shop and a car repair garage on the adjacent plot. The Court considers that the mere fact that the construction works had been conducted illegally is not enough to justify the applicant’s assertion that she is the victim of a violation of the Convention (see mutatis mutandis López Ostra, pp. 54-55, § 55-56 cited above).
The Court accepts that the applicant could have been affected by the pollution and noise emitted by the garage. However, the Court must determine whether the nuisance attained the minimum level of severity required for it to constitute a violation of Article 8.
In this connection the Court observes that the applicant did not substantiate her complaint about the alleged environmental nuisance, either in the national proceedings or in the proceedings before the Court. The Court further notes that the applicant has not furnished the Court or the national authorities with any medical certificates to substantiate that her health was adversely affected by the noise or pollution.
It follows that it has not been established that the operation of the car repair garage adjacent to the applicant’s plot caused an environmental hazard, or that the pollution it caused exceeded safe levels set by the applicable regulations. In particular it has not been shown that the pollution complained of was of such a degree or character as to have had any adverse effect on the applicant’s health or that of her family.
Therefore, it cannot be established that the State failed to take reasonable measures to secure the applicant’s rights under Article 8 of the Convention.
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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas
FURLEPA v. POLAND DECISION
FURLEPA v. POLAND DECISION