EHRM, 09-11-2010, nr. 2345/06

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.

The applicant submitted that the noise, vibration, pollution and odour caused by the heavy traffic nearby rendered his home virtually uninhabitable and that the Hungarian authorities' measures to remedy the situation had been insufficient and/or inadequate.

The Government argued that the environmental problems suffered by the applicant had arisen essentially due to a toll introduced by a private motorway company and the State had responded with various measures to protect the inhabitants of Alsónémedi from the level of environmental harm proscribed by the Court's case-law under Article 8, thus complying with its positive obligations in this field.

They submitted in particular that the operator of the motorway in question had collected toll charges as of 1 January 1997. Initially, the charges had been so high that they had deterred traffic from using the motorway and given rise to increased traffic through the neighbouring villages. Upon protests from the local inhabitants, the toll charges had been slightly lowered. Frequent user and fleet discounts had been granted which, however, had not been attractive enough to reduce toll evasion and the resultant noise and environmental pollution suffered by the neighbouring villages. Following a partial governmental buyout of the motorway in 2002, a sticker system had been introduced entailing a substantial reduction of the toll charges. A State-owned company had then been commissioned to enhance safety on the impugned road sections and reduce the environmental burden on the inhabitants. The measures taken by this agency are outlined in paragraph 7 above.

The Court recalls that 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 the place, the 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 within reasonable limits. Breaches of the right to respect of the home are not confined to concrete breaches, such as unauthorised entry into a person's home, but may also include those that are diffuse, such as noise, emissions, smells or other similar 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 (cf. Moreno Gómez v. Spain, no. 4143/02, § 53, ECHR 2004-X).

Moreover, 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 and home even in the sphere of the relations of individuals between themselves (see Moreno Gómez, cited above, § 55).

In the instant case, the Court notes the applicant's submission that, from 1997 onwards, the noise, vibration, pollution and odour caused by the heavy traffic nearby had made his property almost uninhabitable. It also observes that the Government did not dispute in essence that the situation had indeed been problematic after the introduction of the toll on the motorway outside Alsónémedi — although they argued that the measures implemented had alleviated the burden on the applicant to such an extent that the adverse environmental effects had been reduced and did not attain the minimum level of harm proscribed by Article 8 in this field. The Court finds noteworthy that, from 1998 onwards, the authorities constructed three bypass roads, introduced a night speed limit of 40 km/h and provided two adjacent intersections with traffic lights. In 2001 further measures were implemented, namely road signs prohibiting the access of heavy vehicles and re-orientating traffic were installed (see paragraph 7 above).

The Court considers that the State enjoys a certain 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. This consideration also holds true in situations, which do not concern direct interference by public authorities with the right to respect for the home but involve those authorities' failure to take action to put a stop to third-party breaches of the right relied on by the applicant (cf. Moreno Gómez, cited above, § 57). In the present case the State was called on to balance between the interests of road-users and those of the inhabitants of the surrounding areas. The Court recognises the complexity of the State's tasks in handling infrastructural issues, such as the present one, where measures requiring considerable time and resources may be necessary. It observes nevertheless that the measures which were taken by the authorities consistently proved to be insufficient, as a result of which the applicant was exposed to excessive noise disturbance over a substantial period of time. The Court finds that this situation created a disproportionate individual burden for the applicant. In that respect, the Court observes that, on the basis of the expert opinion of Budapest Technical University, the domestic courts concluded that the vibration or the noise caused by the traffic was not substantial enough to cause damage to the applicant's house, but the noise exceeded the statutory level (see paragraph 13 above). The Court has already held that noise pressure significantly above statutory levels, unresponded to by appropriate State 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, cited above, §§ 57 to 63). In the present case, it notes that, despite the State's efforts to slow down and reorganise traffic in the neighbourhood, a situation involving substantial traffic noise in the applicant's street prevailed at least until and including May 2003 when two measuring sessions established noise values respectively 15% and 12% above the statutory ones (see paragraph 11 above) (see, a contrario, Fägerskiöld v. Sweden (dec.), no. 37664/04, ECHR 2008—… (extracts)).

In these circumstances, the Court considers that there existed a direct and serious nuisance which affected the street in which the applicant lives and prevented him from enjoying his home in the material period. It finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant's right to respect for his home and private life. Accordingly, there has been a violation of Article 8 of the Convention.

In respect of non-pecuniary damage, the applicant claimed 20,000 euros (EUR) for the violation of Article 8 of the Convention and EUR 8,000 for the violation of Article 6.

The Government contested these claims.

Deciding on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage under all heads.

The applicant made no costs claim.

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.