Communicated on 18 December 2014

THIRD SECTION

Application no. 23383/12 Miguel CUENCA ZARZOSO against Spain lodged on 13 April 2012

STATEMENT OF FACTS

The applicant, Mr Miguel Cuenca Zarzoso , is a Spanish national, who was born in 1930 and lives in Valencia. He is represented before the Court by Mr A. Morey Navarro, a lawyer practising in Valencia.

A. The circumstances of the case

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

The applicant has lived in a residential quarter of Valencia since 1962. Since 1974 the Valencia City Council has allowed licensed premises such as bars, pubs and discotheques to open in the vicinity of his home, making it impossible for people living in the area to sleep. In view of the problems caused by the noise, the Valencia City Council resolved on 22 December 1983 not to permit any more night clubs to open in the area. However, the resolution was never implemented and new licences were granted.

Following a resolution of the Valencia City Council sitting in plenary session on 27 December 1996, which was published in the Valencia Official Gazette on 27 January 1997, the area in which the applicant lived was designated an “acoustically saturated zone” ( zona acústicamente saturada ). However, the situation did not change. The applicant, exasperated by a situation which prevented him from sleeping and resting, decided to replace his windows with double glaze windows and install an air conditioner to avoid the heat caused by having these windows permanently closed in summer.

The applicant lodged numerous claims with the Valencia City Council but the City Council did not take any measures to solve this situation. On 14 June 1999 the applicant brought a preliminary state liability claim before the Valencia City Council. Relying on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to the privacy and inviolability of the home) of the Constitution, the applicant sought EUR 7.326,82 (1.219.080 pesetas ) for pecuniary and non-pecuniary damage. Having received no reply from the authorities, the applicant lodged an application for judicial review with the Valencia High Court of Justice on 5 December 2001. I n a judgment of 20 June 2003 the Valencia High Court of Justice dismissed the application for judicial review. It found that there was no causal connection ( nexo de causalidad ) between the noise pollution and the alleged damage caused to him, since there was no evidence proving that in his particular flat the level of noise pollution exceeded the established limits.

The applicant lodged an amparo appeal with the Constitutional Court, claiming that the State had violated the applicant ’ s fundamental rights protected by Articles 14 (equality before the law), 15 (right to life and to physical and moral integrity), 18 (home) and 24 (right to a fair trial) of the Spanish Constitution. This appeal was initially dismissed on 18 October 2004. However, on 16 November 2004 the European Court of Human Rights (hereinafter “ ECtHR ”) delivered the judgment on the case Moreno Gómez v. Spain , which, according to the applicant, dealt with an almost identical situation. In view of this judgment, the Public Prosecutor lodged an appeal against the Constitutional Court ’ s decision. On 31 January 2005 the Constitutional Court upheld the Public Prosecutor ’ s appeal and declared the amparo appeal admissible. The Public Prosecutor then issued a report stating that there had been a violation of Articles 15 and 18 § 2 of the Constitution. The Public Prosecutor argued that the ECtHR had already addressed this issue in the case of Moreno Gómez v. Spain (cited above), which dealt with the exact same situation lived by the applicant ’ s neighbour, Ms. Pilar Moreno Torres, where the Court declared that the Spanish State had violated Article 8 of the Convention. However, in a judgment of 29 September 2011, which was served on 19 October 2011, the Constitutional Court dismissed the appeal, arguing that both cases were not identical and that the applicant had not proved that in his particular case the noise at his apartment was above the permitted level and that his health problems were directly caused by noise pollution. The judgment was not adopted by unanimity, since three judges issued a dissenting opinion holding that there was a violation of Articles 10.2, 18.1 and 18.2 of the Constitution.

B. Relevant domestic law

1. Spanish Constitution

Article 10 § 2

“The provisions relating to the fundamental rights and freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements which Spain has ratified in that sphere.”

Article 14

“Spaniards are equal before the law; they may not be discriminated against in any way on grounds of birth, race, sex, religion, opinions or any other condition or personal or social circumstance.”

Article 15

“Everyone shall have the right to life and to physical and mental integrity. ...”

Article 18 § 1

“The right to honour , to personal and family privacy and to the own image is guaranteed”.

Article 18 § 2

“The home shall be inviolable. ...”

Article 24

“1. All persons have the right to obtain effective protection by the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence .

2. Likewise, all have the right to the ordinary judge predetermined by law; to defence and assistance by a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence ; not to make self-incriminating statements; not to plead themselves guilty; and to be presumed innocent....”

Article 45 § 1

“Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it...”

Article 53 § 2

“Every citizen shall be entitled to seek protection of the freedoms and rights recognised in Article 14 and in the first section of Chapter II by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and, in appropriate cases, by an appeal ( recurso de amparo ) to the Constitutional Court...”

2. The Fundamental Rights (Protection) Act (Law no. 62/1978)

Article 6 (repealed by the Administrative Courts Act of 13 July 1998 Law no. 29/1998)

“... [a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person...”

3. The Constitutional Court Act

Article 44 -1c

“1. An amparo appeal for violations of rights and guarantees amenable to constitutional protection (...) will lie only if:

(...)

(c) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence.”

4. The bylaw on noise and vibrations issued by the Valencia City Council on 28 June 1986

Article 8 § 1

“Permitted external noise-reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed:

Maximum reception levels:

(...)

Multiple family residence :

Daytime (from 8 a.m. to 10 p.m.): 55 dB (A)

Night-time (from 10 p.m. to 8 a.m.): 45 dB (A)

(...)”

Article 30

“1. Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance.

2. An area may be designated an acoustically saturated zone (ASZ) if, though individual activities are compliant with the levels set out in this bylaw, the level of disturbance due to external noise as referred to in Article 8 is exceeded twice-weekly in consecutive weeks, or three times intermittently over a period of 35 days, and exceeds 20 dB (A).”

COMPLAINT

The applicant complains under Article 8 of the Convention of inaction on the part of the local authorities in Valencia, in particular the City Council, which failed to put a stop to the night-time disturbances. The fact that the City Council had imposed various sanctions to some nightclubs is not enough to consider that Spain has fulfilled its positive duty to take reasonable and appropriate measures to secure the applicant ’ s right under Article 8.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his private and family life and home, contrary to Article 8 of the Convention (see Moreno Gómez v. Spain , no. 4143/02, judgment of 16 November 2004)?