No room for ravers

Oluić v Croatia (application no. 61260/08) is a decision of the First Section of the European Court of Human Rights demonstrating, if further evidence were needed, that Croatia, housing and article 8 just don’t get along all that well.

Mrs Oluić complained that noise from a bar operating in a part of the house that she inhabited breached her rights under Article 8 and Article 1 of the First Protocol of the Convention. She also said that article 2 had been breached as her life had been made unbearable and that article 6 had been breached as she was denied access to a court. The ECtHR wasted no time in finding those two complaints inadmissible, but did find a breach of Article 8 in Croatia’s failure to discharge its positive obligation to guarantee her right to respect for her home and private life. On that basis there was no need to consider A1P1.

Mrs Oluić first complained to the local Sanitary Inspection department about the noise from the bar in March 2001. Over the following years she had cause to complain numerous times. Measurements carried out on behalf of Sanitary Inspection showed that the noise level in her flat was above the limits defined by domestic legislation. The owners of the bar were ordered to reduce the level of noise, but that decision was quashed on appeal. The owners were then ordered to install sound insulation. Although this was subsequently done, it didn’t provide adequate insulation, and measurements showed that noise was still exceeding the permitted level.

In March 2003 the owners of the bar informed the local authorities that they no longer ran it. An inspection a week later showed that only one floor was being used as a bar, while previously the bar had been spread over two floors. Three days after that (24 March 2003) proceedings were terminated on the basis that the bar was now only on one floor and previous measurements had not shown the noise on that floor to be excessive.

Mrs Oluić’s appeal against that decision was dismissed by the Ministry of Health, so in June 2003 she brought a claim before the Administrative Court. Further measurements continued to show that the noise level in her flat exceeded the permitted level. Mrs Oluić complained to the Croatian Supreme Court about the length of time it was taking for the Administrative Court to deal with her complaints and in March 2007 the Supreme Court ordered the lower court to make a decision within three months. A month later the Administrative Court did reach a decision and ordered the lower bodies to establish whether the noise from the bar was still excessive.

There then appears to have been a difference of opinion between lower administrative bodies (the judgment is not very clear as to the identity of all of them) whether the level of noise was excessive and whether the insulation was sufficient.

When Mrs Oluić complained to the ECtHR the Croatian government argued that she had not exhausted all domestic remedies as she could have taken a civil action against the owners of the bar. The ECtHR noted at [35] that where there are multiple remedies to choose from, a person is entitled to pick one that addresses their essential grievance. In the ECtHR’s view the administrative remedy that Mrs Oluić pursued was able to address the alleged violation and there was no need to bring a civil action as well.

At [45] the ECtHR noted that Article 8 may be engaged “where an individual is directly and seriously affected by noise or other pollution” – see for instance Lopez Ostra v Spain and Hatton v UK. Of course in Hatton there was no breach of Article 8, because regard has to be had to fair balance that needs to be struck between the competing interests of the individual concerned and the community as a whole.

It is well known that Article 8 may impose positive obligations on public authorities to take the necessary steps to ensure that the enjoyment of Article 8 rights is real and substantial, this may include steps to secure respect for those rights between individuals (at [46] the ECtHR cites Stubbings v UK and Surugiu v Romania, and see also Kroon v Netherlands).

In effect the decision in this case boiled down to whether in all the circumstances the noise constituted a nuisance severe enough to violate Article 8. At [50] the ECtHR noted a series of cases, including Hatton, where it found that Article 8 had not been violated. However, it considered that the present case was closer to Moreno Gomez v Spain, a case involving noise from nightclubs (although it seems to me that the noise in that case was louder and continued later into the night). The ECtHR concluded that the level of noise reached the necessary level of severity to engage Article 8 and that this was allowed to continue by the national authorities for almost eight years.

Mrs Oluić’s Article 8 rights had therefore been breached. The ECtHR awarded her 15,000 Euro, a figure seemingly plucked completely out of thin air.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
Posted in Housing law - All, Nuisance and tagged , , , .

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