JOINT DISSENTING OPINION OF JUDGES COSTA, RESS, TÜRMEN, ZUPANČIČ AND STEINER

I. Introduction

We regret that we cannot adhere to the majority's view that there has been no violation of Article 8 of the European Convention on Human Rights in this case. We have reached our joint dissenting standpoint primarily from our reading of the current stage of development of the pertinent case-law. In addition, the close connection between human rights protection and the urgent need for a decontamination of the environment leads us to perceive health as the most basic human need and as pre-eminent. After all, as in this case, what do human rights pertaining to the privacy of the home mean if, day and night, constantly or intermittently, it reverberates with the roar of aircraft engines?

1. It is true that the original text of the Convention does not yet disclose an awareness of the need for the protection of environmental human rights [2] . In the 1950s, the universal need for environmental protection was not yet apparent. Historically, however, environmental considerations are by no means unknown to our unbroken and common legal tradition [3] whilst, thirty-one years ago, the Declaration of the United Nations Conference on the Human Environment stated as its first principle:

“... Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being ...” [4]

The European Union's Charter of Fundamental Rights (even though it does not at present have binding legal force) provides an interesting illustration of the point. Article 37 of the Charter provides:

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

These recommendations show clearly that the member States of the European Union want a high level of protection and better protection, and expect the Union to develop policies aimed at those objectives. On a broader plane the Kyoto Protocol makes it patent that the question of environmental pollution is a supra-national one, as it knows no respect for the boundaries of national sovereignty [5] . This makes it an issue par excellence for international law – and a fortiori for international jurisdiction. In the meanwhile, many supreme and constitutional courts have invoked constitutional vindication of various aspects of environmental protection – on these precise grounds [6] . We believe that this concern for environmental protection shares common ground with the general concern for human rights.

II. Development of the case-law

2. As the Court has often underlined: “The Convention is a living instrument, to be interpreted in the light of present-day conditions” (see, among many other authorities, Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26, and Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 26-27, § 71). This “evolutive” interpretation by the Commission and the Court of various Convention requirements has generally been “progressive”, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the “European public order”. In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on.

3. In previous cases concerning protection against aircraft noise the Commission did not hesitate to rule that Article 8 was applicable and declared complaints of a violation of that provision admissible – in Arrondelle and Baggs , for example. In Arrondelle v. the United Kingdom (no. 7889/77, Commission decision of 15 July 1980, Decisions and Reports (DR) 19, p. 186) the applicant's house was just over one and a half kilometres from the end of the runway at Gatwick Airport. In Baggs v. the United Kingdom (no. 9310/81, Commission decision of 16 October 1985, DR 44, p. 13) the applicant's property was 400 metres away from the south runway of Heathrow Airport. These two applications, which were declared admissible, ended with friendly settlements. While that does not mean that there was a violation of the Convention, it does show that the respondent Government accepted at that time that there was a real problem. And it was for purely technical reasons that the Court itself, in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172), which also concerned flights in and out of Heathrow, refused to look into the Article 8 issue.

4. The Court has given clear confirmation that Article 8 of the Convention guarantees the right to a healthy environment: it found violations of Article 8, on both occasions unanimously, in López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C) and Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I). The first of those cases concerned nuisances (smells, noise and fumes) caused by a waste-water treatment plant close to the applicant's home which had affected her daughter's health. The other concerned harmful emissions from a chemical works which presented serious risks to the applicants, who lived in a nearby municipality.

5. The Grand Chamber's judgment in the present case, in so far as it concludes, contrary to the Chamber's judgment of 2 October 2001, that there was no violation of Article 8, seems to us to deviate from the above developments in the case-law and even to take a step backwards. It gives precedence to economic considerations over basic health conditions in qualifying the applicants' “sensitivity to noise” as that of a small minority of people (see paragraph 118 of the judgment). The trend of playing down such sensitivity – and more specifically concerns about noise and disturbed sleep – runs counter to the growing concern over environmental issues all over Europe and the world. A simple comparison of the above-mentioned cases ( Arrondelle , Baggs and Powell and Rayner ) with the present judgment seems to show that the Court is turning against the current.

III. The positive obligation of the State

6. The Convention protects the individual against direct abuses of power by the State authorities. Typically, the environmental aspect of the individual's human rights is not threatened by direct government action. Indirectly, however, the question is often whether the State has taken the necessary measures to protect health and privacy. Even assuming it has, direct State action may take the form of permitting, as here, the operation of an airport under certain conditions. The extent of permissible direct State interference and of the State's positive obligations is not easy to determine in such situations, but these difficulties should not undermine the overall protection which the States have to ensure under Article 8.

7. Thus, under domestic law, the regulatory power of the State is involved in protecting the individual against the macroeconomic and commercial interests that cause pollution. The misleading variation in this indirect juxtaposition of the individual and the State therefore derives from the fact that the State is under an obligation to act and omits to do so (or does so in violation of the principle of proportionality). In this respect, we have come a long way from the situation considered by this Court in Powell and Rayner (cited above, pp. 9-10, § 15), in which the Noise Abatement Act specifically exempted aircraft noise from its protection. The issue in the context of domestic law is, therefore, whether the State has done anything or enough.

8. At least since Powell and Rayner (p. 18, § 41), the key issue has been the positive obligation of the State.

9. The majority tries to distinguish the present case from Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45), which dealt with the sexual intimacy aspect of the applicant's private life. In Dudgeon (p. 21, § 52) it is said: “The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8.” The majority judgment differentiates this case from Dudgeon by saying: “the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation” (see paragraph 123 of the judgment).

10. It is logical that there be an inverse relationship between the importance of the right to privacy in question on the one hand and the permissible intensity of the State's interference on the other hand. It is also true that sexual intimacy epitomises the innermost concentric circle of private life where the individual should be left in peace unless he interferes with the rights of others. However, it is not logical to infer from this that the proportionality doctrine of inverse relationship between the importance of the right to privacy and the permissible interference should be limited to sexual intimacy. Other aspects of privacy, such as health, may be just as “intimate”, albeit much more vital.

11. Privacy is a heterogeneous prerogative. The specific contours of privacy can be clearly distinguished and perceived only when it is being defended against different kinds of encroachments. Moreover, privacy is an aspect of the person's general well-being and not necessarily only an end in itself. The intensity of the State's permissible interference with the privacy of the individual and his or her family should therefore be seen as being in inverse relationship with the damage the interference is likely to cause to his or her mental and physical health. The point, in other words, is not that the sexual life of the couple whose home reverberates with the noise of aircraft engines may be seriously affected. The thrust of our argument is that “health as a state of complete physical, mental and social well-being” is, in the specific circumstances of this case, a precondition to any meaningful privacy, intimacy, etc., and cannot be unnaturally separated from it [7] . To maintain otherwise amounts to a wholly artificial severance of privacy and of general personal well-being. Of course, each case must be decided on its own merits and by taking into account the totality of its specific circumstances. In this case, however, it is clear that the circles of the protection of health and of the safeguarding of privacy do intersect and do overlap.

12. We do not agree with the majority's position taken in paragraph 123 of the Grand Chamber judgment and especially not with the key language in fine where the majority considers: “Whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.” When it comes to such intimate personal situations as the constant disturbance of sleep at night by aircraft noise there is a positive duty on the State to ensure as far as possible that ordinary people enjoy normal sleeping conditions. It has not been demonstrated that the applicants are capricious, and even if their “sensitivity to noise” and “disposition to be disturbed by noise” may be called “subjective”, the Court agreed that they were affected in their ability to sleep “considerably ... by the scheme at issue” (see paragraph 118 of the judgment).

13. It is significant in this respect that under Article 3 sleep deprivation may be considered as an element of inhuman and degrading treatment or even torture [8] . Already, in the inter-State case of Ireland v. the United Kingdom (judgment of 18 January 1978, Series A no. 25, p. 41, § 96), the Court held, inter alia , that “... holding the detainees in a room where there was a continuous loud and hissing noise ...” constituted a practice of inhuman and degrading treatment [9] . In the light of the subsequent development of our case-law in Selmouni v. France ( [GC], no. 25803/94, § 97, ECHR 1999-V), the same treatment would now most probably be considered as torture. The present case does not involve torture or inhuman and degrading treatment, and we do not suggest that the complaint could possibly be reclassified under Article 3 of the Convention. Nevertheless, we think that the problem of noise, when it seriously disturbs sleep, does interfere with the right to respect for private and, under specific circumstances, family life, as guaranteed by Article 8, and may therefore constitute a violation of said Article, depending in particular on its intensity and duration.

14. We also find it inconsistent that the judgment (in paragraph 126) should take into account “serious passenger discomfort” whereas it downgrades (see paragraph 118) the discomfort of all the residents, who are exposed to aircraft noise to a “subjective element [of] a small minority of people being more likely than others to be woken or otherwise disturbed in their sleep ...”. We do not find it persuasive to engage in the balancing exercise employing the proportionality doctrine in order to show that the abstract majority's interest outweighs the concrete “subjective element of a small minority of people”. According to the World Health Organisation (WHO) Guidelines [10] , measurable effects of noise on sleep start at noise levels of about 30 dBLA. These criteria are objective. They show that this susceptibility to noise is not “subjective” in the sense of being due to over-sensitivity or capriciousness [11] . Indeed, one of the important functions of human rights protection is to protect “small minorities” whose “subjective element” makes them different from the majority.

15. According to the Consultation Paper published by the government in November 1998, “any value attached to a marginal night flight had to be weighed against the environmental disadvantages. These could not be estimated in monetary terms, but it was possible, drawing on a 1992 sleep study, to estimate the numbers of people likely to be awakened”. The 1992 sleep study was limited to sleep disturbances and did not even take into account the problems of those who had been unable to get to sleep in the first place. It is noteworthy that the government's claims in respect of the country's economic well-being are based on reports prepared by the aviation industry. The government did not make any serious attempt to assess the impact of aircraft noise on the applicants' sleep. When the 1993 Scheme was introduced, only very limited research existed on the nature of sleep disturbance and prevention. In this respect, we agree with the findings in the Chamber's judgment (paragraphs 103-06). Nor has the government really shown that it has explored all the alternatives, such as using more distant airports.

16. In principle, the general reference to the economic well-being of the country is not sufficient to justify the failure of the State to safeguard an applicant's rights under Article 8. In Berrehab v. Netherlands (judgment of 21 June 1988, Series A no. 138), for example, the Court found that the actions of the authorities could not be justified by the alleged economic well-being of the Netherlands. In López Ostra (cited above), too, the Court held, after examining the Government's argument, that “... the State did not succeed in striking a fair balance between the interests of the town's economic well-being ...and the applicant's effective enjoyment of her right to respect for her home and her private and family life” (p. 56, § 58).

17. Although we might agree with the judgment when it states: “the Court must consider whether the State can be said to have struck a fair balance between those interests [namely, the economic interests of the country] and the conflicting interests of the persons affected by noise disturbances” (see paragraph 122 of the judgment), the fair balance between the rights of the applicants and the interests of the broader community must be maintained. The margin of appreciation of the State is narrowed because of the fundamental nature of the right to sleep, which may be outweighed only by the real, pressing (if not urgent) needs of the State. Incidentally, the Court's own subsidiary role, reflected in the use of the “margin of appreciation”, is itself becoming more and more marginal when it comes to such constellations as the relationship between the protection of the right to sleep as an aspect of privacy and health on the one hand and the very general economic interest on the other hand.

18. As stated above, reasons based on economic arguments referring to “the country as a whole” without any “specific indications of the economic cost of eliminating specific night flights” (see paragraph 126 of the judgment) are not sufficient. Moreover, it has not been demonstrated by the respondent State how and to what extent the economic situation would in fact deteriorate if a more drastic scheme – aimed at limiting night flights, halving their number or even halting them – were implemented.

IV. Realistic assessment under Article 41

19. Finally, and in view of the powers of the Court under Article 41 and the alleged importance of the macroeconomic interests at stake, indemnification of the “small minority” should be less of a problem rather than more. The applicants' rights could have been treated much more realistically than they were by the majority. In other words, the issue could have been circumscribed to the “small minority's” entitlement to just satisfaction for the real pecuniary and non-pecuniary damage incurred. Since we do not believe that the “subjective element” referred to in paragraph 118 of the judgment is simply a euphemism for “capricious hyper-sensitivity”, the applicants in our opinion ought to have been awarded just satisfaction.