Information Note on the Court’s case-law 69

November 2004

Moreno Gómez v. Spain - 4143/02

Judgment 16.11.2004 [Section IV]

Article 8

Positive obligations

Repeated failure of authorities to respect anti-noise regulations: violation

Article 8-1

Respect for home

Respect for private life

Noise nuisance from discotheques: violation

Facts : The city council allowed discotheques to open in the vicinity of the appli cant’s flat. Following complaints by local residents about noise levels, the council resolved not to allow any more establishments to open. However, that resolution was never implemented. A report by a council commissioned expert found that the noise excee ded permitted levels. The police informed the council that nightclubs and discotheques in the area did not close on time and that complaints by local residents were founded. The council adopted a bylaw on noise and vibrations in which it set maximum permit ted noise levels and prohibited new noise generating activities in zones classified as “acoustically saturated”. The area in which the applicant lived was placed in that category. Council staff indicated that noise levels in the vicinity exceeded those per mitted by law. However, the council nonetheless granted a licence for a discotheque to open in the building in which the applicant lived. The licence was declared invalid by a court three years later. The applicant complained of chronic insomnia and seriou s health problems, the noise levels having continued unabated for several years. She issued proceedings against the city council complaining of their failure to take action and seeking reparation for her loss. However, her claim was dismissed on the ground s that she had failed to show the existence of a nuisance inside her home.

Law : Article 8 – The authorities had designated the area in which the applicant lived an acoustically saturated zone, as it was exposed to high noise levels which caused serious dis turbance to local residents. The council staff had confirmed that the permitted noise levels were being exceeded. Consequently, it was being unduly formalistic to require the applicant to prove the actual noise levels inside her home. In view of the volume of noise, at night and beyond permitted levels, and the fact that it had continued over a number of years, the Court found that there had been a breach of the rights protected by Article 8.

Although the authorities had adopted measures which in principle should have been adequate to secure respect for the guaranteed rights, during the period concerned it had tolerated and thus contributed to the repeated flouting of the rules which it itself had established. Regulations to protect guaranteed rights served little purpose if they were not duly enforced. The applicant had suffered a serious infringement of her right to respect for her home as a result of the authorities’ failure to take action to deal with the night-time disturbances. Consequently, the State had failed to discharge its positive obligation to guarantee the applicant’s right to respect for her “home” and her “private life”.

Conclusion : violation (unanimously).

Article 41 – The Court found that the applicant had sustained both non-pecuniary damage and pecuniary damage. It awarded her part of her costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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