Noise pollution
II. RELEVANT DOMESTIC LAW 41. Under domestic law inactivity on the part of authorities is open to challenge. Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time ‑ limits fixed in that Code. 42. If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 200 4. 43. On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 44. The applicant complained that the State had failed to protect her home from nuisance arising from the operation of the workshop run by her neighbour. She relied on Article 8 of the Convention which, in so far as relevant, provides as follows: “1. Everyone has the right to respect for 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 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.” 45. The Government argued that the applicant had failed to exhaust the available domestic remedies. She should have lodged a claim with a civil court, referring to Article 144 in conjunction with Article 222 § 2 of the Civil Code of 1964. They were of the view that if there had been any disturbances affecting the applicant ’ s right to respect for her home, such as noise pollution, she should have addressed herself to a civil court in order to seek protection for her rights. They referred to the case-law of the Supreme Court which had held that the protection under Article 144 of the Code encompassed not only the owner ’ s obligation to abstain from direct interferences with the neighbouring property, but also from acts which could negatively affect persons living on it (III CZP 89/74). She should also have had recourse to the provisions of the Civil Code governing liability in tort. The administrative authorities had not been under any obligation to act in the applicant ’ s case. 46. The applicant disagreed. She submitted that the authorities had been obliged to take positive measures to protect her against interferences with her right to respect for home and referred to the Court ’ s findings in López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303 ‑ C and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B. In the circumstances of the case it was the task of the public administration to act as an arbiter and find, by way of taking necessary active steps provided for by law, the proper balance between the applicant ’ s interests and those of her neighbour, taking also into consideration the interests of the community. The authorities had failed to do so. In these circumstances, the applicant should not be obliged to have recourse to the available instruments of civil law. 47. The Court finds that it is not required to decide whether or not the applicant has exhausted domestic remedies, as the complaint is in any event inadmissible for the following reasons. 48. The Court has recognised in its case-law that 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 for 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). 49. Thus in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40) the Court declared Article 8 applicable because “[i]n each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In López Ostra (cited above, pp. 54-55, § 51), which concerned pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution 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, without, however, seriously endangering their health”. In Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable. 50. Article 8 may apply in environmental cases, whether the pollution is directly caused by the State or whether State responsibility arises from failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant ’ s 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 (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54-55, § 51, both cited above). 51. However, as demonstrated by the above-mentioned cases, in order to raise an issue under Article 8, the interference must directly affect the applicant ’ s home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. 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). 52. Turning to the present case, the Court accepts that the applicant and her family might have been affected by the operation of the workshop in her neighbour ’ s house. However, the Court must also establish whether it has been shown that this nuisance reached the minimum level of severity set by its case-law. 53. In this connection, the Court observes that in the course of the proceedings noise evaluation tests were carried out at an unspecified date before February 2003 and again in 2003. The Court is aware that the applicant criticised the procedure by which these tests had been carried out before the domestic authorities and that the administrative court accepted her arguments (see paragraphs 28, 31 and 32 above). In these circumstances it is not wholly implausible that the results of those tests were not fully reliable. However, the Court notes that the applicant has not submitted the results of those tests to the Court. Nor has she submitted, either in the domestic proceedings or in the proceedings before the Court, any alternative noise tests which would have allowed the noise levels in her house to be ascertained, and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards, or exceeded the environmental hazards inherent in life in every modern town (see, in this connection, Fadeyeva v. Russia, cited above, § 69 ). 54. The Court further observes that the applicant has not submitted, either to the national authorities or to the Court itself, any documents to show that her health or that of her family had been negatively affected by the noise emitted by the workshop. 55. In the absence of such findings it cannot be established that the State failed to take reasonable measures to secure the applicant ’ s rights under Article 8 of the Convention (compare and contrast the Court ’ s findings in noise pollution cases such as Moreno Gómez v. Spain, no. 4143/02, § § 59- 62, ECHR 2004 ‑ X; Ashworth and Others v. the United Kingdom, 20 January 2004 (dec.), no. 39561/98,). 56. Having regard to the above considerations and its case-law, the Court finds that it has not been established that the noise levels complained of in the present case were so serious as to reach the high threshold established in cases dealing with environmental issues. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 57. The applicant complained of a violation of her right to a hearing within a reasonable time. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 58. The period to be taken into consideration began in September 1993 when the applicant requested that the lawfulness of the workshop ’ s operation be determined, and has not yet ended. It has thus lasted over fourteen years for three levels of jurisdiction. A. Admissibility 59. The Government submitted that the applicant had not exhausted remedies available under Polish law in respect of excessive length of administrative proceedings. They argued that the applicant had had the opportunity to lodge with the Polish civil courts a claim for compensation for damage caused by the excessive length of the administrative proceedings under Article 417 of the Civil Code. 60. The applicant argued that she should not be required to avail herself of the compensatory remedy relied on by the Government. 61. The Court has already found that the complaint under section 17 of the Supreme Administrative Court Act was a sufficient and effective remedy in cases in which an applicant complains about the excessive length of administrative proceedings (see Zynger v. Poland (dec.), no. 66096/01, 7 May 2002 and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002). The same applies to the analogous remedy introduced by sections 3 and 149 of the Law on Procedure before Administrative Courts. Having regard to the fact that the applicant has availed herself of these remedies by lodging relevant complaints with the administrative courts, the Court sees no ground on which to depart from its established case-law and to find that the applicant should also have availed herself of the compensatory remedy relied on by the Government (see Olszewska v. Poland, no. 13024/05, §§ 32 ‑ 37, 8 December 2007). 62. The Court concludes that, having availed herself of the remedy provided by administrative law, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation. Accordingly, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies. The Government ’ s plea of inadmissibility on the ground of non ‑ exhaustion of domestic remedies must therefore be dismissed. 63. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 64. The Government refrained from making submissions on the merits of this complaint. 65. The applicant reiterated that the proceedings had lasted too long. She stressed that their excessive length and various unjustified delays had been repeatedly acknowledged by various domestic authorities, in particular by the administrative courts. 66. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 67. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 68. Having examined all the material submitted to it and in particular the findings of the domestic authorities that the proceedings were not conducted expeditiously, the Court has not found any grounds on which it could reach a different conclusion in the present case. 69. Having regard to its case ‑ law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 70. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. 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 72. The applicant claimed 125, 00 0 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage. The Government contested this claim. 73. 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 10, 0 00 euros (EUR) in respect of non ‑ pecuniary damage. B. Costs and expenses 74. The applicant also claimed PLN 3,800 for legal costs borne in the proceedings before the Court. She did not submit any documents in support of her claim. 75. The Government submitted that the applicant should obtain reimbursement of costs and expenses only in so far as it had been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 76. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his 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. The Court observes that the applicant failed to produce any documents in support of his claim. In those circumstances, the Court makes no award under this head (see Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006). C. Default interest 77. 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.
The Court declared inadmissible (manifestly ill-founded) the applicants’ complaint under Article 8 of the Convention, finding that it had not been established that the noise levels complained of were serious enough to reach the high threshold established in cases dealing with environmental issues. In particular, the applicant never submitted to the Court the results of noise tests which would have allowed the noise levels in her house to be ascertained and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards. She had, furthermore, failed to submit any documents to show that her health or that of her family had been negatively affected by the noise. In the absence of such findings it could not be established that the Polish authorities had failed to take reasonable measures to secure her rights under Article 8 of the Convention. In this case the Court further found a violation of the applicant’s right to a hearing within a reasonable time under  Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention.