DISSENTING OPINION OF JUDGE Sir Brian KERR

In Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, § 113, ECHR 2002-VI), the Grand Chamber held that “Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention”. That ruling relates to the “state of domestic law”, and seems to me to go beyond the traditional view that Article 13 does not guarantee a remedy against “legislation” (as in, for example, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, p. 47, § 85). It corresponds closely to the ideas I expressed on Article 13 in my dissenting opinion to the Chamber's judgment of 2 October 2001.

I would here wish simply to record that it is my view, given the nature of the applicants' complaints, the state of domestic law at the time and the role of Article 13 in the Convention structure, that there has been no violation of Article 13 in this case.

[1] . The Government note that these guidelines were promulgated in 1999, and that they represent a target at which sleep will not be disturbed, rather than an international standard.

[2] . The idiom “environmental protection” appears in fifty-seven of our cases. The phrase “environmental human rights” appears for the first time in the majority judgment.

[3] . For example, the extraordinarily sensitive doctrine concerning environmental nuisances goes back to Roman law. Roman law classified these nuisances as immissiones in alienum . Dig.8.5.8.5 Ulpianus 17 ad ed.; see http://www.thelatinlibrary.com/justinian/digest8.shtml

[4] . Declaration of the United Nations Conference on the Human Environment , 1972; see http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=1503 . It is interesting that from the very beginning environmental protection has been linked to personal well-being (health). See note 3, p. 45.

[5] . Kyoto Protocol to the United Nations Framework Convention on Climate Change, see “ the Convention and Kyoto Protocol ” at http://unfccc.int/resource/convkp.html .

[6] . See, for example, Compendium of summaries of judicial decisions in environment related cases (SACEP/UNEP/NORAD Publication Series on Environmental Law and Policy no. 3), C ompendium of summaries at http://www.unescap.org/drpad/ vc/document/compendium/index.htm ; EPA search results at http://oaspub.epa.gov/webi/ meta_first_new2.try_these_first .

[7] . WHO definition of health , see http://www.who.int/about/definition/en/ .

[8] . In Selmouni v France , judgment of 28 July 1999, § 97, we decided to adhere to the definition of torture given in Article 1 of the United Nations Convention against Torture. It therefore makes sense to take into account that excessive noise may in fact amount to “severe pain or suffering, whether physical or mental”. See, for example, paragraph 257 referring to “sounding of loud music for prolonged periods, sleep deprivation for prolonged periods” in “Concluding observations of the Committee against Torture: Israel. 09.05.97. A/52/44, paras. 253-260. (Concluding Observations/Comments) at http://www.unhchr.ch/t bs/doc.nsf/9c663e9ef8a0d080c12565a9004db9f7/69b6685c93d9f25180256498005063da?OpenDocument.

[9] . Similar considerations played a role in Kalashnikov v. Russia , no. 47095/99, ECHR 2002-VI.

[10] . Guidelines for Community Noise – Chapter 4 at http://www.who.int/ environmental _information/Noise/Commnoise4.htm; see also Environmental Protection Agency of Ireland at http://www.epa.ie/Noise/default.htm .

[11] . The guidelines are based on a combination of values of 30 dBLA and 45 dBLA maximum. To protect sensitive persons, a still lower guideline value would be preferred when the background level is low. In the case before the Court, however, almost all the applicants have suffered from night noise events in excess of 80 dBLA and in one case as high as 90 dBLA max. It is noteworthy that the judgment in its assessment did not take into account these international standards concerning the effects noise has on sleep, although the relevant data were available in the file.