December 01, 2010
This post has been written by Laurens Lavrysen, one of our colleagues at the Human Rights Centre.
Traffic noise pollution – especially at night – is one of the biggest health risks of contemporary Europe. This kind of pollution causes inter alia sleep disturbance, cardiovascular diseases, aberrant social behavior and stress. Guidelines from the World Health Organization recommend an average of less than 40 dB(A) outside of bedrooms to prevent negative health effects from night noise. Nonetheless, figures of the European Union show that about 30 % of the population in EU countries is exposed to road traffic noise at night at levels exceeding 55 dB(A) (see: http://www.euro.who.int/en/what-we-do/health-topics/environmental-health/noise/). It seems surprising that it was only in the very recent case of Deés v. Hungary that the European Court of Human Rights had to rule on this severe environmental problem.
The applicant lives in the Hungarian town Alsónémedi. After the introduction of a toll on a neighboring privately owned motorway at the beginning of 1997, the cross-town traffic increased dramatically. Many trucks chose alternative routes, including the street where the applicant lived. The Hungarian authorities tried to discourage traffic by building three bypass roads, imposing a 40 km/h speed limit at night, prohibiting access for vehicles of over 6 tons and re-orientating traffic. Police presence in the neighborhood was increased with a view to enforce these measures. In 2003 an expert, appointed by a domestic court, measured noise levels of 69.0 dB(A) and 67.1 dB(A) on two separate days, exceeding the statutory limit of 60 dB(A) (decibel is a logarithmic unit, 69 dB is nine times 60 dB). The domestic courts however considered that the authorities had done everything that could be reasonably expected to protect the applicant’s interests and dismissed his claim. The applicant disagreed and lodged an application with the Strasbourg Court.
Although the right to a quiet and healthy environment is not incorporated in the Convention, it is settled case-law that environmental pollution, such as noise, emissions or smells, can amount to an interference with the right to respect for someone’s private life and home (art. 8 ECHR). In earlier cases, the Court already dealt with aircraft noise pollution (Powell and Rayner v. The United Kingdom (1990), Hatton and Others v. The United Kingdom (2001, GC 2003)) and noise from nightclubs and bars (Moreno Gomez v. Spain (2004), Oluić v. Croatia (2010)). In line with these cases, the Court considered that there rested a positive obligation on the Hungarian authorities to adopt measures to secure respect for the applicant’s right to respect for his private life and home.
The Court considered that states enjoy “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”. Hungary had to balance between the interests of road-users and those of the inhabitants of the surrounding areas. The Court recognized “the complexity of the State’s tasks in handling infrastructural issues (…), where measures requiring considerable time and resources may be necessary”. Nevertheless, the measures 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 thus concluded that Hungary failed to discharge its positive obligation, in violation of art. 8 of the Convention.
In earlier cases the Court already concluded 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”. This case differs however from prior ones because the State had done a lot of efforts to decrease the traffic noise pollution. These efforts were in fact explicitly acknowledged by the Court. This was nonetheless not sufficient to avoid a violation of art. 8 ECHR.
In line with this judgment, one could therefore argue that when environmental pollution significantly exceeds statutory levels, there rests a positive obligation of result and not just one of means on the responsible authorities to make sure that pollution decreases. Needless to say, such an interpretation of article 8 ECHR would have enormous implications for all kinds of projects that have adverse environmental effects – in particular with regard to infrastructural works that have a negative effect on traffic noise pollution. That could be a very powerful tool for individuals to challenge governments unwilling or unable to enforce their own environmental legislation.