FIFTH SECTION

DECISION

Application no. 52499/11 Inita VECBAÅ TIKA and Others against Latvia

The European Court of Human Rights ( Fifth Section), sitting on 19 November 2019 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Yonko Grozev, Lado Chanturia , judges , and Milan Bla Å¡ko , Deputy Section Registrar ,

Having regard to the above application lodged on 18 August 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants ’ names, years of birth, places of residence and property names may be found in the appendix. All applicants are Latvian nationals, save for Ms Vadeiķīte , who is a Lithuanian national. They were represented before the Court by Ms I. Nikuļceva , a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce .

2 . On 7 January 2013 the applicants ’ complaints under Article 6 § 1 and Article 8 of the Convention were communicated to the Government. Further to the notification under Article 36 § 1 of the Convention and Rule 44 § 1 (a), the Lithuanian Government did not wish to exercise their right to intervene in the present case.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicants are or were either land or house owners (the first, third, fourth, fifth, seventh, eighth, tenth, twelfth, fifteenth, sixteenth, seventeenth and eighteenth applicants) or residents (the second, sixth, ninth, eleventh, thirteenth, fourteenth and nineteenth) in Dunika parish, now within the territory of Rucava municipality. Dunika parish is located in the west of Latvia, in an area some 12 to 30 km from the Baltic coast; it borders with Lithuania.

5 . On 5 July 2013 the applicants ’ representative informed the Court of the death of the fourth, ninth and twelfth applicants in 2013, 2013 and 2011 respectively. She also informed the Court that their legal heirs (the fifth and sixth, tenth and eleventh applicants respectively) wished to pursue the proceedings on their deceased relatives ’ behalf.

1. General spatial planning

6 . Between 28 July 2004 and 10 November 2006 Dunika Parish Council adopted several decisions with a view to general spatial planning of Dunika parish. On 9 November 2005 the State Environment Bureau ( Vides pārraudzÄ«bas valsts birojs ) decided not to carry out a strategic environmental impact assessment as the general spatial plan had been drafted in compliance with the general spatial plan for Liepāja District. On 10 November 2006 the general spatial plan was approved and the relevant municipal by-laws were issued. None of the above provided for any wind ‑ energy related zoning in Dunika parish.

7 . On 22 March 2007 Dunika Parish Council approved a new general spatial plan. A wind-energy zone ( v ēja enerģijas ieguves zona ) was established in Dunika parish for the first time; it encroached on the applicants ’ real property and the neighbouring properties.

8 . On 21 June 2007 Dunika Parish Council approved the final general spatial plan and issued municipal by-law no. 3 ( Liepājas rajona Dunikas pagasta teritoriālais plānojums ) . A wind-energy zone comprising about 35% of the parish territory was included in the spatial plan. The applicants ’ property and the neighbouring properties were included in that zone, which was deemed suitable for the development of wind farms. The construction of wind farms was allowed in that zone on condition that it complied with domestic law; all project-related documents had to be approved by the relevant environmental authorities.

2. Detailed spatial planning

( a ) In relation to the first applicant ’ s property

10 . On 22 December 2008 Dunika Parish Council commenced detailed spatial planning for the properties named “ Šuķi ” and “ Skrandas ”, which were adjacent to the first applicant ’ s property “ Kalvaiti ” and where a specific number of wind turbines would be located. Around each wind turbine there was to be a protection zone ( aizsargjosla ) to prevent any damage which might be caused in that area. It appears that the protection zone extended into the land owned by the first applicant.

11 . On 9 March 2009 the first draft of the detailed spatial plan for those properties was opened for public consultation.

12 . The first applicant approached the municipal authority on several occasions in summer and autumn of 2009 with various queries in relation to the specific location of the wind turbines, the protection zones around them, the public consultation process and other domestic procedures. Her submissions were examined: some were taken into account (in relation to the protection zones around the wind turbines) and others were rejected.

13 . On 1 July 2009 Rucava Municipal Council convened for the first time. In accordance with domestic law, newly established municipal councils had to re-issue general and detailed spatial plans for their territories within three months. Until then, the general and detailed spatial plans issued previously were applicable.

14 . On 17 December 2009 Rucava Municipal Council approved the final detailed spatial plan for the properties “ Šuķi ” and “ Skrandas ” and issued municipal by-law no. 41. It was planned to erect three wind turbines, each with a total height of 149 metres and with a power capacity of 2 MW.

(b) In relation to the other properties (entirety of wind farms)

15 . On an unspecified date in 2009 the process for drawing up detailed spatial plans for forty-one wind turbines each with a maximum height of 149 metres was started in Dunika parish. According to the applicants, it was only at that point that they learned about the wind-energy related plans in their municipality.

16 . On 19 March 2009 the first public consultation took place in connection with the detailed spatial plan for wind farms in Dunika parish. Another meeting was held one month later. Some of the applicants in the present case attended those meetings.

17 . On 3 September 2009 the State Environment Bureau decided not to carry out an environmental impact assessment in respect of the siting of forty-one wind turbines in Dunika parish. It was noted that the turbines would be erected in a relatively wide area on twenty-nine properties; they would not be sited in specially protected areas (the closest Natura 2000 areas were one to three kilometres away). The nearest individual homes would be some 400 to 600 metres away from the wind turbines.

18 . There is no information concerning the approval of or any litigation pertaining to the detailed spatial plans in respect of other properties adjacent to the applicants ’ homes or properties.

3. Proceedings before the Constitutional Court

20 . On 1 and 16 July 2010 respectively the Constitutional Court initiated proceedings with reference to section 16(1)(3) of the Law on the Constitutional Court (see paragraph 49 below). Under that provision the Constitutional Court had competence to examine whether the municipal by-laws were in compliance with the Constitution. On 23 September 2010 the proceedings concerning both individual constitutional complaints were joined.

21 . On an unspecified date the applicants were informed that the case would be examined by means of a written procedure.

22 . On 24 February 2011 the Constitutional Court delivered its judgment in case no. 2010-48-03.

23 . The Constitutional Court ’ s analysis under Article 115 of the Constitution can be summarised as follows.

24 . The State had to ensure the right of everyone, including future generations, to live in an adequate environment by providing information, and preserving and improving the state of the environment. The plan to develop wind energy had been aimed at fulfilling the State ’ s positive obligation under Article 115 of the Constitution, namely, to ensure social welfare and an adequate environment. The municipal authority had the discretion to determine the necessity of establishing a wind farm on its territory.

25 . As to the compliance with the precautionary principle, the Constitutional Court found that the municipal authority had at its disposal information about the impact of wind turbines on human health and the environment. It had been able to take that information into account when planning the specific locations for wind turbines so that they would not pose a threat to human health and the environment. It had not been disputed before the Constitutional Court that wind turbines had an impact on birds and bats, that their presence had an aesthetic impact on the landscape, and that their operation caused noise, shade and shadow flicker. The parties to the proceedings had different views about the degree of this impact and, specifically, about the impact on human health.

26 . The Constitutional Court went on to examine various aspects of the impact of wind farms. It held that: ( i ) the impact on birds and bats was not such as to breach the principle of sustainable development; (ii) a negative impact on flora and fauna had not been established; and (iii) the impact on the landscape had been taken into account by the municipal authority as it had not been planned to locate wind turbines closer than 500 metres from residential homes.

27 . As regards the much-debated issue of the impact on human life and health, the Constitutional Court noted that the operation of wind turbines did not generally relate to hazardous emissions, penetration of sewage or chemical substances into the soil, or to other waste. The risks and potential adverse effects existed only in the vicinity of wind turbines. It was therefore important to clearly establish their location. The contested general spatial plan had not provided any specific information as to the location, total number, height or power of the wind turbines. Consequently, such information had to be provided in the detailed spatial plan. The Constitutional Court concluded that the contested general spatial plan did not breach the State ’ s obligation to protect human life and health on condition that the location of each specific wind turbine was established in the detailed spatial plan in accordance with the applicable legal requirements. In addition, the first applicant ’ s argument that the location of the wind turbines, as established by the detailed spatial plan, posed a threat to human life and health was dismissed as unsubstantiated.

28 . Furthermore, noise was accepted as being one of the most adverse impacts of wind turbines. However, the Constitutional Court did not analyse the permissible noise levels in the case before it because that issue had to be examined with reference to the Law on Pollution ( Pies ārņojuma likums ) and its underlying regulations. Reference was made to section 14 of that Law, which stipulated that a polluting activity could not be started if the relevant limits relating to environmental quality had been or could be exceeded. In any event, the operation of wind turbines would not be allowed if the noise levels exceeded those limits. At the same time, the Constitutional Court referred to the permissible limit of 40dB for night-time noise and noted that the detailed spatial plan had been adopted on the basis of an estimate that the noise generated by the wind turbines at a wind speed of 10m/s would not exceed 39 dB in the first applicant ’ s home. The Constitutional Court concluded that the general and detailed spatial plans were compatible with a person ’ s right to rely on the premise that “the permissible noise levels would not be exceeded”.

29 . It had not been disputed before the Constitutional Court that one of the negative impacts of wind turbines was also the shade and shadow flicker created by them. The Constitutional Court referred to domestic case-law of other countries to conclude that those effects were insignificant if wind turbines were located at a distance of at least three times the height of a wind turbine from a residential home. In accordance with the detailed spatial plan, the first applicant ’ s home was located at a permissible distance.

30 . The State had a positive obligation to create a regulatory framework to prevent the risks associated with the operation of wind turbines (falling ice formations, collision with flying objects such as birds, hot-air balloons, parachutists or small aircraft, and other accidents). In Latvia such a framework had been laid down in the Law on Protection Zones ( Aizsargjoslu likums ). Under section 32 1 (2) of that Law a protection zone around a wind farm had to be 1.5 times larger than the maximum height of a wind turbine. Various domestic authorities had provided different interpretations of the manner in which the breadth of a protection zone was to be calculated. The main aim of the protection zone was to guarantee the safety of people and the environment, and the security of the relevant infrastructure. It was forbidden, among other things, to build a residential house, create a leisure centre or organise a public event in such an area. In so far as protection zones were concerned, the contested plans complied with the Law on Protection Zones and Article 115 of the Constitution.

31 . The impact of wind turbines on personal welfare had to be assessed under Article 105 of the Constitution, but also taking into account the procedural aspect of Article 115, namely, the right to participate in the environmental decision-making process. The Constitutional Court examined only alleged interference with the property rights of those applicants who were owners of real property in Dunika parish. It accepted that the construction of wind turbines might have an impact on the applicants ’ property rights. In particular, to enjoy their possession in the most beneficial way – without changes to the landscape, shade and noise caused by wind turbines. Thus, wind turbines located on neighbouring properties might cause an interference with the applicants ’ property rights.

32 . The Constitutional Court held that the failure to carry out a strategic environmental impact assessment may be considered a significant procedural violation rendering the whole spatial plan unlawful.

33 . As regards the general spatial plan, the Constitutional Court went on to examine whether in 2007 the municipal authority : ( i ) had had the right to include a wind-energy zone in the new plan (see paragraph 7 above), and (ii) had examined the necessity of carrying out a strategic environmental impact assessment. The Constitutional Court held that the municipal authority could include that zone, but that it had to request an opinion from the State Environment Bureau about the necessity of carrying out a strategic assessment. Whilst from the point of view of substantive law, the municipal authority could adopt the general spatial plan without a strategic environmental assessment, from the point of view of procedural law it had to receive the opinion of the State Environment Bureau in that respect. The latter argued, before the Constitutional Court, that it would have insisted on carrying out a strategic assessment, had the municipal authority informed them in 2007. Be that as it may, in 2009-10 the State Environment Bureau had carried out a number of initial environmental impact assessments in respect of some of the twenty-three detailed spatial plans; its conclusion had been not to carry out an environmental impact assessment (one such decision has been cited in paragraph 17 above). Moreover, although the municipal authority had informed the relevant authorities about the newly adopted general spatial plan, the relevant ministry had not seen any procedural violations. At the time when the Constitutional Court adopted its judgment, some of the issues had already been examined during the initial assessment procedure and the relevant authorities had not seen any serious issues which might pose a threat to the environment. Therefore, the Constitutional Court concluded that the said procedural violation could no longer be considered as serious enough to affect the lawfulness of the general spatial plan.

34 . The Constitutional Court found no breaches of the public consultation process as regards the general spatial plan. In an ideal situation, the municipal authority could have avoided unnecessary tension by providing the owners with objective information about positive and negative aspects of wind turbines in the early stages of the public consultation process. However, the fact that it had not performed its function in the best possible way could not be considered as a significant procedural violation. The Constitutional Court held that the general spatial plan had been lawful.

35 . As regards the detailed spatial plan, the Constitutional Court noted that an initial environmental impact assessment had been carried out. There had been no need for a strategic assessment. Examining the material before it, the Constitutional Court found no breaches of the public consultation process. There was no indication that the first applicant would not have been heard or that her opinion would not have been assessed. The Constitutional Court also noted that the protection zone around the wind turbine in the detailed plan did not encumber the first applicant ’ s property. The purpose of her constitutional complaint was to prevent a possible breach of her fundamental rights. The subject matter of the proceedings before the Constitutional Court was not to determine the breadth of the protection zone and, consequently, the alleged interference with the first applicant ’ s property rights.

36 . The Constitutional Court concluded that the contested general and detailed spatial plans had been adopted in accordance with the law. It established that the restriction of the fundamental right to property had a legitimate aim, that is, to protect the rights of others and ensure social welfare. As to proportionality, the Constitutional Court dismissed the applicants ’ argument that an alternative option could have been to locate the wind turbines not closer than 2 km from their properties. Such a solution would generally prevent all other owners from using their properties for the production of wind energy, and consequently, it would not achieve the legitimate aim as effectively as the contested spatial plans.

37 . The Constitutional Court took into account the fact that more precise details of the contested general spatial plan were given in the detailed spatial plans, which could envisage the siting of the wind turbines at an adequate distance from existing residential houses, as well as the fact that the contested detailed spatial plan envisaged the siting of the wind turbines at an adequate distance from the first applicant ’ s home. It thus held that the restrictions of the applicants ’ property rights were less significant than the public benefit to be gained from the achievement of the legitimate aim and the development of the wind farm within the framework of the specific project. Therefore, those restrictions were proportionate.

4. Subsequent events

39 . On 31 March 2010 the relevant authority issued building permit ( b ūvatļauja ) no. 47-2010 to erect three wind turbines on “ Skrandas ”, which was adjacent to the first applicant ’ s property “ Kalvaiti ”, and approved the corresponding technical plan ( tehniskais projekts ).

40 . The first applicant contested the permit. Firstly, she applied to Rucava Muncipal Council. Then she lodged an application with the Administrative District Court ( Administrat īvā rajona tiesa ).

41 . On 9 May 2011 the Administrative District Court terminated the proceedings on the grounds that the technological plan and the permit had already been declared null and void by the planning authority on 14 March 2011 because they were not in compliance with the protection zones included in the detailed spatial plan.

42 . On 8 June 2011 the planning authority issued another building permit no. 103-11 to construct one wind turbine on “ Skrandas ”; it was valid for two years. The first applicant contested the permit before Rucava Municipal Council. Then she lodged an application with the Administrative District Court. Subsequently, the domestic courts at three instances examined and dismissed her claim.

43 . On 24 August 2011 the Public Utilities Commission ( Sabiedrisko pakalpojmu regul Ä“Å¡anas komisija ) modified and extended the licence granted for production of energy to the company that was developing the project. The company was given until 13 July 2016 to commence energy production.

44 . On an unspecified date the company that was developing the project submitted a new proposal to build fewer but more powerful wind turbines (with a power capacity for each turbine of up to 3 MW). The environmental impact assessment procedure was started in relation to thirty-one wind turbines. Eventually, on 21 November 2014 the State Environment Bureau issued its conclusions to the effect that the proposed activity was not permissible. Their conclusions were valid until 21 November 2017. Accordingly, the proposal for more powerful wind turbines was not accepted.

45 . At the time of the last exchange of observations between the parties, no wind turbines had been erected near the applicants ’ homes or properties. It appears that in 2013 a new general spatial plan for Rucava municipality was issued covering the planning period from 2013 to 2025. The new plan envisaged stricter conditions for the development of wind farms and allowed them to be sited only in areas where detailed spatial plans had been approved and the relevant building permits had been issued.

B. Relevant domestic law and practice

1. The Constitution

46 . Article 105 of the Constitution ( Satversme ) provides:

“ Everyone has the right to property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided for by law. Forced deprivation of property in the interests of society shall be authorised only in exceptional cases, on the basis of a special law, and in return for fair compensation.”

47 . Article 115 of the Constitution provides:

“The State shall protect the right of everyone to live in an adequate environment ( labvēlīga vide ) by providing information about the state of the environment and by taking care of the preservation and improvement of the environment.”

2. Spatial planning

48 . The legal framework for spatial planning in Latvia was laid down in the Spatial Planning Law ( Teritorijas plānošanas likums ), effective from 26 June 2002 to 1 December 2011. Since then, a new law – the Spatial Development Planning Law ( Teritorijas attīstības plānošanas likums ) – has taken effect. By contrast to the old law, the new Spatial Development Planning Law provides that detailed spatial plans are amenable to judicial review by the administrative courts (section 30). General spatial plans, however, remain to be examined by the Constitutional Court. Prior to lodging an individual constitutional complaint, a person must lodge an application with the relevant ministry (section 27).

3. Law on the Constitutional Court

49 . Section 16(1)(3) of the Law on the Constitutional Court ( Satversmes tiesas likums ) provides that the Constitutional Court is competent to examine cases concerning compliance of other legal instruments with legal norms (instruments) of superior legal force. With effect from 1 January 2010 a new section was inserted in the Law on the Constitutional Court. It provides that an application to institute constitutional proceedings may be lodged in relation to spatial planning at the municipal level (including detailed spatial plans) within six months of the day on which the relevant municipal by-law comes into force and in accordance with the procedure laid down in the new Spatial Development Planning Law (section 19 3 (2)).

4. The Constitutional Court ’ s practice

50 . On 24 February 2011 the Constitutional Court delivered a judgment in case no. 2010-48-03, which had been brought by the present applicants (see paragraphs 19 et seq. above).

COMPLAINTS

51 . All applicants complained under Article 6 § 1 of the Convention of a breach of their right of access to a court to contest the general and detailed spatial plans, which allowed the construction of wind farms in Dunika parish.

52 . The applicants also complained of a breach of their rights under Article 8 of the Convention on account of the fact that the State had authorised the construction of wind farms near their homes in Dunika parish (which the first group of applicants owned and where the second group of applicants resided).

53 . The first group of applicants invoked Article 1 of Protocol No. 1 to the Convention and alleged that the commercial activities of wind farms, which had been allowed by the general spatial plan, as well as the erection of wind turbines on neighbouring land, which had been allowed by the detailed spatial plans, breached their property rights.

54 . Lastly, the first group of applicants argued that they did not have an effective remedy, as guaranteed by Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1, to complain of a breach of their property rights.

THE LAW

A. Preliminary issues

55 . The Government contested the standing of the deceased applicants ’ relatives to continue the proceedings on behalf of the fourth, ninth and twelfth applicants.

56 . The Court considers that it does not need to rule on the issue of locus standi of the deceased applicants ’ relatives, as the application is inadmissible in any event for the following reasons.

B. Alleged violation of Article 6 § 1 of the Convention

57 . The applicants complained of a breach of their right of access to a court to contest the general and detailed spatial plans, which had allowed the construction of wind farms in Dunika parish. The only venue had been the Constitutional Court, but it could not be considered a “tribunal” within the meaning of Article 6 § 1 of the Convention. They had been unable to participate in person; there had been no public hearing before the Constitutional Court. Their case had been decided by means of a written procedure. Most importantly, the Constitutional Court was a subsidiary mechanism for protection of human rights and its jurisdiction was limited to reviewing the constitutionality of legal provisions. It could not decide on other issues such as, for instance, the awarding of compensation for human rights ’ breaches.

58 . The applicants relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

59 . The Government contested that argument.

1. The parties ’ submissions

60 . The Government contested the applicability of Article 6 § 1 to the proceedings before the Constitutional Court (they referred to Benthem v. the Netherlands , 23 October 1985, §§ 32-36, Series A no. 97; Roche v. the United Kingdom [GC], no. 32555/96, §§ 116-26, ECHR 2005 ‑ X; and Ringeisen v. Austria , 16 July 1971, § 94, Series A no. 13).

61 . More specifically, as to the applicants ’ opposition to the general and detailed spatial plans allowing the construction of wind farms in Dunika parish, the Government submitted that neither the Constitution nor the Convention provided a substantive right to object to their construction. The right at issue therefore had no basis in domestic law. As to the applicants ’ criticism of the decision-making process, it was related not to the exercise of their substantive “civil rights” but rather to their procedural rights; thus, there was no basis for such rights under national law either. As to the allegedly adverse effects of the wind turbines on the applicants ’ health and well-being, the Government drew an analogy with the case of Balmer ‑ Schafroth and Others v. Switzerland (26 August 1997, Reports of Judgments and Decisions 1997 ‑ IV). In this connection, they submitted that the outcome of the proceedings before the Constitutional Court was not directly decisive for the applicants and the rights asserted by them were too tenuous and remote.

62 . The Government also considered that the applicants could not be considered as victims in the present case because they had not requested an oral hearing before the Constitutional Court.

63 . The applicants, for their part, argued that the dispute in the present case related to their civil rights – right to respect for private life and home and also their right to peaceful enjoyment of possessions. The interference with their rights had stemmed directly from the disputed general spatial plan. They submitted that the dispute in question was serious and genuine, and that it was directly decisive for their civil rights. Given that the Constitutional Court ’ s judgment and its interpretation of the law provided therein were binding on all domestic authorities, including the courts, any decisions taken by the domestic authorities could not contradict the Constitutional Court ’ s judgment. In the applicants ’ view, their rights had a legal basis in national law (they referred to the Spatial Planning Law and the Law on the Constitutional Court, see paragraphs 48-49 above) and international law (they referred to, among other things, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters).

64 . The applicants conceded that they had not requested the Constitutional Court to hold a hearing but pointed out that domestic law did not provide for such a possibility.

2. The Court ’ s assessment

65 . The Court reiterates that proceedings come within the scope of Article 6 § 1, even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations. More generally, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“ contestation ” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner in which it is exercised; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Meimanis v. Latvia , no. 70597/11, §§ 42-43, 21 July 2015, with further references). And finally, the right at stake has to have a “civil” character.

66 . The Court notes that the constitutional complaints brought by the present applicants related to the general and detailed spatial plans, which had allowed for the construction of wind farms in Dunika parish. In the proceedings before the Constitutional Court, the applicants relied on “the right to property” and “the right to an adequate environment” (see paragraph 19 above). The Constitutional Court examined the compatibility of the general and detailed spatial plans with precisely those human rights as enshrined in Articles 105 and 115 of the Constitution (see paragraphs 23-38 above).

67 . In the present case the Court does not consider it necessary to determine whether the rights as invoked by the applicants had a “civil” character or whether there was a genuine and serious “dispute” because, in any event, the third criterion for Article 6 § 1 of the Convention to be applicable is not fulfilled. In that respect, the Court reiterates that it must be satisfied that the proceedings before the Constitutional Court were directly decisive for the applicants ’ rights in question.

68 . In this connection, the Government placed particular emphasis on the case of Balmer-Schafroth and Others , in which the applicants had challenged the extension of a nuclear power station ’ s licence. The Court found that Article 6 § 1 did not apply to the proceedings in that case because the applicants had not “establish[ ed ] a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they [had] failed to show that the operation of [the] power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent” (see Balmer ‑ Schafroth and Others , cited above, § 40). Later, in Athanassoglou and Others v. Switzerland ([GC], no. 27644/95, §§ 46 ‑ 55, ECHR 2000 ‑ IV), the Court fully confirmed that position.

69 . The Court finds this objection to be well founded. The Constitutional Court in the present case held that, in general, the operation of wind turbines was not associated with the emission of any hazardous substances or harmful effects on human health. Possible adverse effects were found to exist only at a certain, relatively short, distance from wind turbines. However, the general spatial plan did not lay down specific locations for wind turbines in Dunika parish; therefore, such locations had to be specified in detailed spatial plans taking into account the applicable legal requirements (see paragraphs 27 and 37 above). Only the first applicant contested before the Constitutional Court the detailed spatial plan for the properties which were adjacent to her property (see paragraph 19 above). In this respect, the Constitutional Court found that the first applicant ’ s property fell outside the protection zone as established around the planned wind turbine and thus it was not established that the first applicant will suffer from a breach of her human rights (see paragraph 35 above). In so far as the noise emanating from wind turbines was concerned, the Constitutional Court established that the operation of a wind turbine would not, in any event, be allowed if the noise levels where to exceed the permissible limits laid down in law (see paragraph 28 above). Nothing in the evidence, presented in the proceedings before the Court, would allow it to put in doubt those findings of the Constitutional Court of Latvia.

70 . The Court concludes that the applicants in the present case have failed to show that the adoption of the general and detailed spatial plans, allowing the construction of wind turbines at an adequate distance from their properties or homes as held by the Constitutional Court (see paragraph 37 above), exposed them personally to a serious and specific harm and that there existed a direct link between the proceedings before the Constitutional Court and the rights relied on by the present applicants (contrast with Bursa Barosu Başkanliği and Others v. Turkey , no. 25680/05, §§ 75 and 127, 19 June 2018). Consequently, the effects on their rights have not been established with a degree of probability that would make the outcome of the proceedings before the Constitutional Court directly decisive within the meaning of the Court ’ s case-law.

71 . Accordingly, Article 6 § 1 is not applicable to the proceedings before the Constitutional Court in the present case. The applicants ’ complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.

C. Alleged violation of Article 8 of the Convention

72 . The applicants also complained of a breach of their rights under Article 8 of the Convention on account of the fact that the State had authorised the construction of wind-energy farms near their homes in Dunika parish, which the first group of applicants owned and where the second group of applicants resided (see paragraph 4 above). In this regard the applicants stated that wind turbines generated high noise levels and caused other nuisance (vibrations, low-frequency sound, shade and shadow flicker) affecting their health and well-being. They also argued that the Contracting States had positive obligations inherent in an effective respect for private life under the Convention. The applicants relied on the Aarhus Convention, and the right to live in an environment adequate to one ’ s health and well-being.

73 . Article 8 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.”

74 . The Government contested that argument.

1. The parties ’ submissions

75 . The Government considered that the applicants could not claim to be “victims” of a violation of their rights under Article 8 of the Convention because not a single wind turbine had been erected. There had been no impact on the applicants ’ health and well-being, or on their right to respect for their private life and home. The Government considered their complaint purely theoretical. It only concerned the possible impact of wind turbines (they referred to Monnat v. Switzerland , no. 73604/01, §§ 31-32, ECHR 2006 ‑ X) . The Government also argued that there were no activities of the State that had a causal link with the allegedly negative impact on the applicants. There had been no detriment at all that the applicants might complain of and no adverse effects of environmental pollution attaining a minimum level of severity regarding the applicants ’ homes, and, therefore, no arguable claim under Article 8 of the Convention (they referred to López Ostra v. Spain , 9 December 1994, § 51, Series A no. 303 ‑ C; Kyrtatos v. Greece , no. 41666/98, § 52, ECHR 2003-VI ( extracts ); Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 118, ECHR 2003 ‑ VIII; and Fadeyeva v. Russia , no. 55723/00, § 69, ECHR 2005 ‑ IV).

76 . The applicants submitted that, in accordance with the Court ’ s case-law, even if they had not been actually affected, they had standing as “victims” if they produced reasonable and convincing evidence of the likelihood that a violation affecting them personally would occur (they referred to Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom ( dec. ), no. 56672/00, ECHR 2004 ‑ IV; Segi and Gestoras Pro- Amnistía v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom ( dec. ), nos. 6422/02 and 9916/02, ECHR 2002 ‑ V; Fédération chrétienne des témoins de Jéhovah de France v. France ( dec. ), no. 53430/99, ECHR 2001 ‑ XI; and Tauira and Others v. France , no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83 - B, p. 112). They pointed out that the general and detailed spatial plans allowed construction of wind farms in Dunika parish and that there were no legal grounds to prohibit their construction later on (for example, by refusing to issue a building permit); the relevant permits had already been issued and the company had obtained a licence to produce electricity. They disagreed with the Government that the impact in the present case was “purely theoretical” and “possible”; they considered it to be direct and serious.

2. The Court ’ s assessment

77 . The Court reiterates that there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (see Hatton and Others , cited above, § 96). Specifically, Article 8 of the Convention applies to severe environmental pollution which 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, even without seriously endangering their health (see TaÅŸkın and Others v. Turkey , no. 46117/99, § 113, ECHR 2004 ‑ X).

78 . However, Article 8 does not merely compel the State to abstain from arbitrary interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life and home. In any event, whether the question 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 (see Di Sarno and Others v. Italy , no. 30765/08, § 105, 10 January 2012).

79 . In contrast to the vast majority of the cases decided by the Court in relation to environmental matters which concern actual and existing nuisances, the Court notes that the applicants ’ complaint in the present case relates to an alleged nuisance arising from the operation of wind turbines which have not yet been erected (see paragraph 45 above). The applicants ’ main argument in this respect was that their participation in the decision-making process as regards the general and detailed spatial plans was crucial because otherwise they would not be able to effectively oppose any subsequent construction (see paragraph 76 above). The Court, however, cannot accept this argument for the following reasons.

80 . All of the applicants in the present case lodged a joint constitutional complaint, which was directed against the general spatial plan allowing the construction of wind farms in Dunika parish. Only the first applicant contested before the Constitutional Court the detailed spatial plan for the properties which were adjacent to her property (see paragraph 19 above). She then instituted further proceedings before the administrative courts to challenge the building permit issued for a specific wind turbine to be erected (see paragraphs 40-42 above).

81 . It was established by the Constitutional Court that the location of wind turbines had to be specified in detailed spatial plans, that the first applicant ’ s property fell outside the protection zone set around the planned wind turbine and that the operation of a wind turbine would not, in any event, be allowed if the noise levels where to exceed the permissible limits laid down in law (see paragraph 69 above, with further references). While the necessary building permits for certain wind farms have been issued (see paragraphs 42 and 76 above), there is no information in the case material as to whether all of the permits are still valid to date – at least one of them has been annulled (see paragraph 41 above). It is not clear whether the construction of the wind park in Dunika parish has been delayed because of pending litigation (see paragraph 42 above), annulled or expired building permits (see paragraph 41 above) or because the project to develop wind farms in Dunika parish has been abandoned, modified or otherwise thwarted (see paragraph 44 above).

82 . The applicants have not been able to produce any evidence showing that the operation of wind turbines near their properties or homes in Dunika parish would directly and seriously affect them with the necessary degree of probability. The Court considers that the mere mention of certain adverse effects arising from the operation of wind turbines in general is not enough in that regard.

83 . In such circumstances, the Court does not have reasonable and convincing evidence that there would be a risk of endangering the applicants ’ private and family life as a result of the adoption of the general and detailed spatial plans, which allowed the construction of wind farms in Dunika parish.

84 . The Court, therefore, accepts the Government ’ s objection that it has not been established that the applicants would be directly and seriously affected in the circumstances of the present case. Accordingly, the applicants ’ complaint under Article 8 of the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

D. Alleged violation of Article 1 of Protocol No. 1 to the Convention

85 . The first group of applicants (see paragraph 4 above) also alleged a breach of their property rights on account of the fact that the commercial activities of wind farms and the siting of wind turbines on the neighbouring properties had been allowed. They argued that the value of their properties had been significantly reduced and that they could not easily sell or rent them. Their existing or future business plans (for example countryside tourism, livestock farming, agriculture or apiculture) had been ruined.

86 . The Court reiterates that Article 1 of Protocol No. 1 does not guarantee the right to enjoy one ’ s possessions in a pleasant environment. That being said, a severe nuisance may seriously affect the value of real property and thus amount to a partial expropriation (see Galev and Others v . Bulgaria ( dec. ), no. 18324/04, 29 September 2009 with further references).

87 . However, the applicants in the instant case have not submitted any evidence that house prices in general or the value of their properties in particular have been adversely affected by the general and detailed spatial plans allowing the construction of wind farms in Dunika parish (see Galev and Others , cited above; Ashworth and Others v. the United Kingdom ( dec. ), no. 39561/98, 20 January 2004; and Ivan Atanasov v. Bulgaria , no. 12853/03, § 83, 2 December 2010). Nor have they produced any evidence to show the extent of the losses allegedly suffered by their businesses as a result of the general and detailed spatial plans allowing the construction of wind farms in Dunika parish (see Ivan Atanasov , ibid.).

88 . The Court thus considers that the applicants ’ complaint under Article 1 of Protocol No. 1 to the Convention is not substantiated. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

E. Alleged violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention

89 . Lastly, the first group of applicants (see paragraph 4 above) argued under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention that they did not have an effective remedy to complain of a breach of their property rights.

90 . The Court reiterates that a complaint may only be made under Article 13 in connection with a substantive claim which is “arguable” (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). The Court has found that the applicants ’ complaint under Article 1 of Protocol No. 1 is manifestly ill-founded. It finds that that claim cannot be said to be “arguable” within the meaning of the Convention case-law.

91 . It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 December 2019 .

Milan Blaško Gabriele Kucsko-Stadlmayer Deputy Section Registrar President

Name

Birth year

Residence

Property

Inita VECBAÅ TIKA

1964Dunika

Kalvaiti

Vilma DOBELE

1944Dunika

Mežāres

Kristīne PREISA

1981Liepāja

Preisi , Mežāres

Vilma VARNA

1952Dunika

Saulstari , Kretuli

Ilmars VARNA

1955Dunika

Saulstari , Cinkusi

Armands VARNA

1979Dunika

Saulstari

Anna SEDOLA

1929Dunika

Sedoli

Sandra BEÅ…UÅ E

1965Dunika

Dzirkaļi

Miķelis SĪKLIS

1926Dunika

JurÄ·i

Ilgvars SĪKLIS

1963Dunika

JurÄ·i , Kaijas

Spodra Mudīte KUNDZIŅA

1943Dunika

Iesalnieki

Jānis KUNDZIÅ…Å

1922Dunika

Iesalnieki

Indra VADEIĶĪTE

1982Dunika

Iesalnieki

Mareks MIHAILOVS

1972Dunika

Iesalnieki

Ausma LÄ«na BALODE

1940Dunika

Brīvkalni

Irma Alvīne KAPILINSKA

1942Dunika

Gauri

Jānis KŪMA

1951Dunika

Mazarāji

Marta MAME

1949Dunika

Skalbes

Gatis MAMIS

1975Dunika

Skalbes