Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12671/87

by G. A.

against Sweden

The European Commission of Human Rights sitting in private

on 13 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 September

1986 by G. A. against Sweden and registered on 22 January

1987 under file No. 12671/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a citizen of Sweden, born in 1922 and

resident in Gothenburg.

The applicant owns a property of 2.000 m², situated at the

seaside at Kolhättan, with two buildings and one garage. Both

buildings may be used for permanent dwelling. The applicant's

intention has been to use the property as his permanent residence.

Near the applicant's property there is a ferry trafficking

between Kolhättan and Svanesund. The operation of the ferry at the

Kolhättan ferry berth creates noise of a low frequency character which

the applicant finds intolerable. Responsible for the running of the

ferry traffic is the National Road Administration (statens vägverk).

By letter of 30 September 1975 the applicant complained about

the noise nuisance and asked the Stenungsund Health Committee

(hälsovårdsnämnden i Stenungsund) to take steps to reduce the noise

and vibrations from the ferries. The request was rejected.

The applicant lodged an appeal with the County Administrative

Board (länsstyrelsen) of Gothenburg and Bohus County (Göteborg och

Bohus län) and a further appeal with the Administrative Court of

Appeal in Gothenburg (kammarrätten i Göteborg). Based inter alia on

the opinion of the National Environment Protection Board (statens

naturvårdsverk) the Administrative Court of Appeal considered that the

noise nuisance from the ferry traffic was a health nuisance (sanitär

olägenhet) for the applicant. It therefore quashed the decision

complained of and referred the matter back to the Stenungsund Health

Committee.

On 25 May 1978 the Health Committee decided that idling would

be prohibited between 00.00 and 05.00 and further that the National

Road Administration should propose measures to reduce the noise in

other respects.

After having received a report from the National Road

Administration, the Health Committee decided, on 5 October 1978, in

application of Sections 62 and 71 of the Health Care Act

(hälsovårdsstadgan) to prohibit idling between 00.00 hours and 05.00

hours and also during other times if the stand still of the ferry

exceeded 5 minutes. The Health Committee also stated that the noise

on the ferries should be further reduced by the National Road

Administration.

On 8 August 1978 a private company had made an investigation

of the noise at the applicant's property and established a level of

52-60 dB (IL) when the ferry passed and 52 dB (IL) when idling at the

ferry berth.

Being dissatisfied with the above decisions the applicant

appealed to the County Administrative Board and requested that there

be no idling at all. The National Road Administration also appealed.

In an opinion to the Board dated 18 December 1978 the County Doctor

(länsläkare) stated inter alia that the effect on human beings of low

frequency noise had not been studied in depth. There were those who

had similar problems to those of the applicant but they were few. On 1

February 1979, the County Administrative Board confirmed the decision

to prohibit idling between 00.00 and 05.00 hours but quashed the

remainder of the Health Committee's decision.

The applicant appealed to the Administrative Court of Appeal

which in a judgment of 27 June 1980 rejected the appeal.

In an opinion to the Court, the National Administration of

Shipping and Navigation (sjöfartsverket) had stated that the levels of

noise which had been established in the case were clearly below what

the National Administration had proposed concerning the maximum level

of noise on board ships in accommodation and recreational rooms, i.e.

90 dB (IL).

The applicant appealed to the Supreme Administrative Court

(regeringsrätten) which, on 19 December 1980, refused to grant leave to

appeal.

In 1983 a new Health Protection Act (hälsoskyddslagen) entered

into force. The applicant then again requested that the Stenungsund

Environmental and Health Committee (miljö- och hälsoskyddsnämnden)

should take measures to reduce the noise nuisance.

The Committee decided on 1 September 1983 not to take any

measures, but it noted that new ferries were now used.

The applicant appealed to the County Administrative Board and

then to the Administrative Court of Appeal which on 28 October 1985

rejected the appeal. On 18 August 1986 the Supreme Administrative

Court (regeringsrätten) refused leave to appeal.

COMPLAINTS

The applicant complains that the low frequency noise and

vibrations from the ferries operated by the National Road

Administration subject him to torture and inhuman treatment. It is

established that low frequency noise is a health hazard to human

beings. The applicant suffers both physically and psychologically

from the noise. Nevertheless, the responsible authorities do not

reduce the noise sufficiently.

The applicant alleges violations of Articles 3, 5 and 8 of the

Convention and of Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains of noise nuisance caused by the

ferries operating near his property. He invokes Articles 3, 5 and 8

(Art. 3, 5, 8) of the Convention and Article 1 of Protocol No. 1 (P1-1)

to the Convention.

The Commission has first examined the application under

Article 8 (Art. 8) of the Convention which provides:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

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."

The Commission has previously accepted that noise nuisance

caused by air traffic operated by State bodies may constitute an

interference with an individual's right to respect for his private

life and his home if the level of noise attains a certain level of

intensity (cf. No. 7889/77, Dec. 15.7.80, D.R. 19 p. 186; No. 9310/81,

Dec. 16.10.85 to be published in D.R. and No. 12816/87, Dec. 18.1.89, to

be published in D.R.)

In the present case, it is established that the level of noise

from the operation of the ferries does not exceed the applicable

limits. On the other hand, the Commission does not question that the

applicant nevertheless suffers physically and psychologically from the

noise and that he does so mainly because of the specific low frequency

noise in respect of which specific standards are difficult to

establish.

The Commission considers that it can leave open the question

whether the noise attains such a level that it constitutes an

interference with the applicant's right to respect for his private

life and his home. Even if this were so, such an interference would be

justified under Article 8 para. 2 (Art. 8-2) of the Convention for the

following reasons.

The Commission is satisfied that the operation of the ferries

is lawful under Swedish law and that the alleged interference is "in

accordance with the law". Furthermore, the operation of the ferries

is in the interest of the economic well-being of the country in that

it improves the means of transportation.

The Commission further considers that the alleged interference

is proportionate to the legitimate aim pursued by the operation of the

ferries. It notes the applicant's particular sensitivity for low

frequency noise and observes that his complaints have been thoroughly

examined by the competent domestic bodies and that idling was

prohibited during the night.

In these circumstances, the alleged interference with the

applicant's rights under Article 8 para. 1 (Art. 8-1) is justified

under the terms of paragraph 2 (Art. 8-2).

Consequently, this complaint does not disclose any appearance

of a violation of Article 8 and is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also invokes Article 1 of Protocol No. 1 (P1-1)

which guarantees the right to the peaceful enjoyment of possessions.

It is true that noise nuisance of considerable importance may

affect the value of the property and in extreme cases even render it

unsaleable (cf. the cases referred to above). In such cases an issue

may arise under Article 1 of Protocol No. 1 (P1-1).

However, in the present case, it has not been established that

the value of the applicant's property has, as a result of the noise

nuisance from the ferries, diminished to such an extent that an issue

could arise under Article 1 of Protocol No. 1 (P1-1).

Consequently, an examination of this complaint does not

disclose any appearance of a violation of the said provision.

It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant also invokes Articles 3 and 5 (Art. 3, 5) of the

Convention.

However, the Commission finds no issue under these provisions.

It follows that these complaints are also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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G.A. v. SWEDEN

G.A. v. SWEDEN

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