CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 novembre 2011

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s1E55ED50 { width:27.54pt; display:inline-block } .sF2BC4CC3 { width:192.77pt; display:inline-block }       FOURTH SECTION             CASE OF ZAMMIT MAEMPEL v. MALTA   (Application no. 24202/10)         JUDGMENT           STRASBOURG   22 November 2011   FINAL   04/06/2012     This judgment has become final under Article   44 §   2 (c) of the Convention. It may be subject to editorial revision . In the case of Zammit Maempel v. Malta , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   David Thór Björgvinsson   George Nicolaou,   Zdravka Kalaydjieva,   Nebojša Vučinić, judges,   David Scicluna, ad hoc judge, and Fatoş Aracı, Deputy Section Registrar , Having deliberated in private on 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24202/10) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Maltese nationals, Mr Frederick Zammit Maempel and Ms Suzette Zammit Maempel, Mr Julian Zammit Maempel and Ms   Martina Zammit Maempel (“the applicants”), on 26 April 2010. 2.     The applicants were represented by Dr S. Grima, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General, and Dr Donatella Frendo Dimech, Advocate at the Attorney General’s Office. 3.     The applicants alleged that their rights under Articles 8, 6 and 14 in conjunction with Article 8 of the Convention, were being infringed by the permits issued for the letting off of fireworks nearby, without their having had the opportunity to comment on the matter. Moreover, the legislation in force, which they claimed was discriminatory, denied them the relevant protection. 4.     On 20 September 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29 § 1). 5.     Mr Vincent De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly the President of the Chamber decided to appoint Judge David Scicluna to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants are Maltese nationals who were born in 1949, 1956, 1984 and 1986 respectively and live in San Gwann, Malta. The third and fourth applicants are the children of the first and second applicants. A.     Background of the case 7.     The applicants have resided in a house in San Gwann owned by the first and second applicants since 1994. Their property includes 4,800 sq. m of surrounding fields. The house is one of three houses in a remote area of grassland. 8.     Every year, on the occasion of certain village feasts, firework displays are set up in the fields close to the applicants’ residence (a distance of 150 metres or more). 9.     The applicants allege that every time fireworks are let off from this area they are exposed to grave risk and peril to their life, physical health and personal security. Moreover, the heavy debris produced causes considerable damage to the residence. 10.     In consequence, over the years the applicants complained to the Commissioner of Police (“CoP”), but no remedial action was taken. 11.     On an unspecified date the applicants brought their complaint before the Ombudsman. By a report of 10 December 1999, the latter recommended that in considering applications for discharge of fireworks from areas whose residents had put forward complaints, the CoP should request the advice of a group of experts established by law in order to determine whether the area in question ought to be declared a restricted area in terms of Rule 15 of the Control of Fireworks and Other Explosives Regulations (“the regulations”). 12.     Eventually, the group of experts recommended that the fields from where the fireworks were being let off should be classified as a restricted area in terms of the regulations. 13.     In spite of this recommendation the CoP again issued permits for the letting off of fireworks from the field in question for the purposes of two village feasts. Since the committee of experts had not, at the relevant time, been constituted, the CoP acted on the recommendations of the Explosives Committee. 14.     The applicants again complained to the Ombudsman. By a report of 22 February 2001, the latter held the complaint justified and noted that the two licences issued were not in accordance with the regulations (regarding the applicable distances and type of fireworks). The group of experts had the duty to give advice and the competent authority had little justification to exercise its discretion and refuse this expert advice on such technical matters. While the pressure applied on the authorities from various quarters in such cases was well known, this was an instance of maladministration which could not but attract criticism. 15.     This notwithstanding, the CoP continued to issue the relevant permits for the purposes of two feasts per year, to the present date. 16.     The applicants alleged that further requests to the CoP, by the applicants and their neighbours, for information or reasons as to why they had not been consulted, remained unheeded, except for one meeting which was held at the police station in the absence of the group of experts. B.     Proceedings before the Civil Court (constitutional jurisdiction) 17.     On 13 April 2005 the applicants instituted constitutional redress proceedings, complaining that the CoP was not protecting them as he was duty bound to do. While he ignored the experts’ recommendations, the applicants had not been consulted about the issue of the relevant permits. They submitted that the law did not protect their interests, in that although it established a certain distance which had to be maintained between residences and the letting off of fireworks, it applied such distances only to “inhabited areas” which according to law meant “an aggregation of houses inhabited, or capable of being inhabited, by more than one hundred persons”. However, their house was one of three in the area and thus did not benefit from the protection of the law. Moreover, they claimed that the law was deficient, as it did not provide a procedure for issuing licences whereby the residents were informed and could make submissions to safeguard their interests, or appeal against the issue of such permits. Furthermore, the application of the definition of “inhabited area” resulted in discriminatory treatment against the applicants. They invoked Article 8, alone and in conjunction with Article 14 of the Convention. 18.     On 14 February 2006 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicants’ claims in part. It dismissed the complaint about the failure of the authorities to take appropriate procedures for the issue of licences for lack of exhaustion of ordinary remedies. For the rest, it held that the legal definition of “inhabited area” breached the applicants’ rights under Article 8, alone and in conjunction with Article 14, and that the law regarding the issue of permits and licences also breached their rights under Article 8, in that its application failed to include sufficient procedural safeguards. The Court noted that the applicants were aware of the situation when they purchased the property. However, it noted that the letting off of fireworks had caused damage to the applicants’ property, namely to the roof’s membrane and the swimming pool area, as a result of the debris produced; and during the relevant feasts the noise levels were very high, to the extent that the applicants were suffering hearing impairment that could become permanent. Although the effects of this pollution were not continuous, as in most cases which had been decided by the ECHR, the practice of letting off of fireworks would certainly continue and its effects on the applicants included damage and threats to their person and their home, as dangerous unexploded fireworks were often found in the surroundings. In consequence, the court considered that, while the legality of the issue of these permits was questionable, by depriving the applicants of protection, on the basis that their area did not accommodate a hundred people, the law was not giving due weight to the interests of the applicants. C.     Constitutional Court proceedings 19.     The respondent State, together with the Fireworks Association of St   Helen and the Maltese society of Pyrotechnics, appealed. In common they submitted, inter alia , that unlike the ECHR cases dealing with environmental pollution, the present case did not deal with such pollution, because, among other reasons, the letting off of fireworks was restricted to a few hours over a few days in a whole year. 20.     On 30 October 2009, the Constitutional Court reversed the first-instance judgment. It noted that the applicants’ case was not grounded on Article 1 of Protocol No. 1 to the Convention, although the applicants had made reference to damage to their property, but on Article 8. Thus, the Court had to establish whether the State had taken all the necessary measures to protect the applicants’ rights under this provision. The Court acknowledged that the noise and peril to their lives and property during certain days created an inconvenience for the applicants which amounted to interference. However, the interference was in accordance with the law, as it had its basis in the Control of Fireworks and Other Explosives Regulations, and whether the CoP had issued licences according to the regulations, a matter which was to be examined by the ordinary courts as established by the first-instance court, was irrelevant. As to the proportionality of the interference the Court considered that in the present case the complaint was not directed towards a fireworks factory near the applicants’ residence, but simply the venue used to let off the fireworks at a specific time. In the present case, the relevant law struck a balance between the conflicting interests by means of specific measures, such as the times at which fireworks could be let off; the type of fireworks which could be let off; the different venues which could be used; the security distances which had to be complied with; compulsory insurance coverage; the presence of a fire engine; and police on site. Indeed, in the present case the police were on site to make sure that the action was taken according to the permits issued and a person from the relevant association was present in the area of the applicants’ houses as a precaution. The latter association also offered the applicants its help and protection to prevent any harm to the property. Thus, it could not be said that the applicants had not been protected. As to the definition of “inhabited area”, it was to be borne in mind that Malta was a small country, densely populated, with few, if any, areas where no people lived, and such legislation could only be seen in this context. Furthermore, the letting off of fireworks happened in a limited period for a few hours in a week twice a year and some years even less often. Acknowledging that such noise might also cause disturbance to other persons, old and young especially, the court could not ignore the fact that the applicants had been informed of this danger by the previous owner (who had had an accident in the house due to the fireworks) before they bought the house. Yet, they chose to purchase the said property. Overall the court was of the view that the legislator had successfully tried to reach a balance between the right to home and private life of the applicants and the traditional, cultural, religious and touristic needs of Maltese society, bearing in mind the size of the island. This might be otherwise if it were established that the measures applied were or would not be in accordance with the parameters set by law, a matter which the applicants had and have the right to contest before the ordinary courts regarding any future permit granted. In consequence there was no violation of Article 8 of the Convention. 21.     As to the alleged discrimination, the court reiterated that the provision only applied to persons in analogous situations. However, the applicants had not proved that they had been treated differently to other persons who resided in “inhabited areas”. Moreover, it has already been held that the applicants were receiving appropriate protection and that the applicants had knowingly decided to move to the area in question. II.     RELEVANT DOMESTIC LAW AND PRACTICE 22.     Fireworks in Malta have a long-standing tradition which is still very much alive in the crowded calendar of village feasts that take place all over Malta and Gozo, especially in the summer months. 23.     The facts of this case deal with a specific area where fireworks are let off during two separate weeks annually and only during particular days, therefore not on a daily basis during those weeks. Moreover, from 1999-2005 the site was used for fireworks less regularly (following a death amongst the pyrotechnic personnel of the relevant parish while manufacturing fireworks). 24.     The relevant sections of the Control of Fireworks and Other Explosives Regulations, Subsidiary Legislation 33.03, as amended by Legal Notice 243 of 1998, in so far as relevant at the time of the present case, read as follows:     Section 2 “In these regulations, unless the context otherwise requires - “inhabited area” means any area in which there is an aggregation of houses inhabited, or capable of being inhabited, by more than one hundred persons;” Section 12 “Any person who applies for a licence to discharge fireworks as provided for in article 24 of the Ordinance shall - ( a ) comply with the times set out in the First Schedule or as otherwise indicated in the licence; ( b ) satisfy the Commissioner that the fireworks were manufactured in a licensed factory; ( c ) produce a policy of insurance adequately covering any claims arising from the death or personal injury to third parties or from damage to third party’s property that may be caused by any explosion or other factor during discharge of fireworks; ( d ) ensure that persons letting off fireworks are in possession of a Category "A", "B" or "C" licence.” Section 14 “No person shall discharge any fireworks from any site unless - ( a ) the site is the one approved for that purpose in a licence issued under the Ordinance; ( b ) in the discharge of any fireworks from any approved site, he satisfies the provisions set out in the First and Second Schedules; ( c ) the pipes for the discharge of aerial fireworks are effectively screened at the site by wooden boards, sandbags, tyres or cardboard or wooden boxes filled with soil or similar material, so as to prevent the flying of fragments caused by unintentional explosion.” Section 15 “(1) Only fireworks of the approved type may be let off from a restricted site. (2) For the purposes of sub-regulation (1) hereof, a "restricted site" is a site so declared by the Commissioner on the advice of the group of experts referred to in regulation 16 and includes an area within such distance from such site as may be declared by the Commissioner on the advice of the same group, and "fireworks of the approved type" are fireworks of such type as may be approved by the Commissioner for the purpose on the advice of the said group.”   Section 16 “(1) The Minister shall appoint a group of experts under the chairmanship of the chairman of the Explosives Committee for the purposes of regulation 15, consisting of - ( a ) all the members of the Explosives Committee, ( b ) a representative of the Museums Department, ( c ) a representative of the Planning Authority, ( d ) a representative of such association as in the opinion of the Minister is most representative of fireworks manufacturers, ( e ) such other person chosen from amongst persons who in the opinion of the Minister have knowledge and experience in explosives and/or fireworks after consultation with the most representative organisations concerned in such matters. (2) In submitting their advice, the experts shall take into consideration the type of fireworks to be discharged from the site, the value, historical or otherwise, of the site from where these fireworks are intended to be discharged, and the safety distances involved.” Section 17 “The person licensed to discharge fireworks shall take the necessary steps for the recovery and removal from the area around the site of discharge, of such items of fireworks which fail to ignite or explode as well as any other material resulting from the discharge of such fireworks.” Section 18 “No aerial fireworks shall be discharged on any day and times other than those indicated in the Police permit.” 25.     The First Schedule of the regulations, in so far as relevant at the time of the present case, regarding times of discharging of fireworks, provided as follows: “1. Moving the Statue from the Niche   8 a.m.. .................................. 10 minutes 12 noon ............................................. 10 minutes Removal of the statue from the niche .... 20 minutes Evening display .....................20 minutes, not to finish later than 10 p.m. 2. First and Second Day of Triduum 8 a.m.. .................................. 10 minutes 12 noon ............................................. 10 minutes End of religious function ( barka ) .... 20 minutes Evening display .....................20 minutes, not to finish later than 10 p.m. 3. Third Day of Triduum As per days at 1 and 2 above, except that the evening display may extend for up to 45 minutes, but not to exceed 11 p.m. 4. Eve of the Feast Ta Deum or 8 a.m.. .................................. 30 minutes 12 noon ............................................. 10 minutes Evening service (Translazzjoni) ........................ 1 hour of daylight fireworks display Evening display ................................. to commence by not later than 10 p.m. but to finish by not later than 11.30pm (provided that any such display shall not exceed in total a maximum of two hours from commencement) 4. Day of the Feast 8 a.m.. ............... 10 minutes 12 noon/Sanctus ............................................. 20 minutes Procession ............................................ (a) 7 p.m. and to finish by 11 p.m. in general             or (b) 8 a.m. to finish by noon” 26.     The Second Schedule of the regulations, in so far as relevant at the time of the present case, provided as follows:   D. Distances for the letting off of fireworks “( a ) To be discharged from 60 metres distance from an inhabited area or public streets used regularly by motor vehicles - bukketti tal-kulur and beraq/spanjoli of up to 5cms diameter; maroons cannot be discharged. ( b ) To be discharged from 150 metres distance from an inhabited area or public streets used regularly by motor vehicles - maroons not exceeding 7.6 cm in diameter and 7.6 cm in length; also coloured, whistles or cracker shells ( kaxxi tal-bombi, kuluri, beraq u sfafar ). ( c ) To be discharged from 200 metres distance from an inhabited area or public streets used regularly by motor vehicles - all other types of fireworks.” 27.     The Explosives Committee is not constituted by law to advise on such matters, but forms part of the Group of Experts established by Law (section 16, above). 28.     According to a report of the Environment Commission of the Archdiocese of Malta, there were fourteen fatalities and thirty-eight injuries related to fireworks between 1997 and 2006, of which only 4% occurred during the actual discharge of fireworks. 29.     To date the majority of firework-related accidents remains associated with factory accidents, with, for example, the following data available for the year 2010, according to local newspapers:   February – Two men die in an explosion at St Sebastian fireworks factory in Qormi. April – Two escape unhurt when the San Bartolomeo factory explodes in Għargħur. May – One man dies at St Catherine’s fireworks factory in Marsaxlokk. August – A man dies at the August 15 fireworks factory in Mosta. September – Għarb fireworks factory explodes, three dead, one missing and two injured (with a final tally of six dead). THE LAW I.     ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION 30.     The applicants complained under Articles 8 and 6 of the Convention that their rights were being infringed by the permits issued for the letting off of fireworks nearby, for two village feasts per year, without their having the opportunity to comment on the matter, and by the fact that the area had not been declared a restricted area following the advice of a group of experts. In consequence, they complained that they were suffering a disproportionate interference with their right to respect for their private life and home. The relevant Articles, in so far as relevant, read as follows: Article 8 “1.     Everyone has the right to respect for his ... family life ... 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.” Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.” 31.     The Government contested that argument. 32.     The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19   February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia , private life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania , no. 7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy , no. 16318/07, § 27, ECHR 2010 ‑ ... (extracts)). 33.     In the instant case the Court considers that the complaint raised by the applicants should be examined under Article 8. A.     Admissibility 34.     The Government contended that Article 8 was not applicable to the present case. While cases regarding environmental damage had often been brought before the Court, the provision could not cover the facts of the instant case, which were far less serious in nature and did not produce continuous or permanent pollution. Thus, the inconvenience suffered by the applicants over a few hours yearly was too trivial to be protected by the provision. 35.     The applicants submitted that according to the Court’s jurisprudence, noise pollution, damage to property and exposure to physical and personal hazards amounted to an interference with their Article 8 rights. In the present case, noise levels reached at least 120db according to expert reports, and in their view amounted to noise pollution. Moreover, the fireworks industry had claimed ten lives in the last two years, and the applicants had suffered damage to their property and developed hearing impairments. 36.     The Court reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits. Breaches of the right to respect of the home are not confined to concrete breaches such as unauthorised entry into a person’s home, but may also include those that are diffuse, such as noise, emissions, smells or other similar forms of interference. A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home (see Moreno Gómez v. Spain , no. 4143/02, § 53, ECHR 2004-X, and Deés v. Hungary , no. 2345/06, § 21, 9 November 2010). Although there is no explicit right in the Convention to a clean and quiet environment, where an individual is directly and seriously affected by noise or other pollution an issue may arise under Article 8 of the Convention (see Hatton and Others v. the United Kingdom [GC], no.   36022/97, § 96, ECHR 2003 ‑ VIII; López Ostra v. Spain , 9 December 1994, Series   A no.   303-C; Powell and Rayner v. the United Kingdom , 21   February 1990, Series A no. 172, § 40; Furlepa v.   Poland (dec.), no.   62101/00, 18 March 2008; and Oluić v. Croatia , no. 61260/08, § 45, 20   May 2010). 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, among others, Taşkın and Others v.   Turkey , no.   46117/99, §   113, ECHR 2004-X). 37.     However, under Article 8 the alleged nuisance must have attained the minimum level of severity required for it to amount to an interference with applicants’ rights to respect for their private lives and their homes. The assessment of that minimum is relative and depends on all the circumstances: the intensity and duration of the nuisance, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city (see, among other authorities, Fadeyeva v. Russia , no. 55723/00, §§ 66-70, ECHR 2005-IV, and Galev and Others v Bulgaria , (dec.), no. 18324/04, 29 September 2009). 38.     The Court has no doubt that the letting off of fireworks in the vicinity of the applicants’ home, situated in the “countryside” or what by Maltese standards can be considered a rural area, can reach noise levels of 120db. While it is not disputed that such a level of noise was emitted only during a limited period of time, for two weeks over a whole year, and at intervals (see Relevant domestic law), it can be accepted that the noise had at least a temporary effect on both the physical and to a certain extent the psychological state of those exposed to it. In consequence, such noise, in the Court’s view, falls under the notion of noise pollution (see, for example, Moreno Gómez, cited above, §§ 59-62; and Ashworth and Others v. the United Kingdom , (dec.), no. 39561/98, 20   January   2004) and can be considered to reach the minimum level of severity required for it to affect the applicants’ rights to respect for their private lives and their homes (see, for example, Oluić , cited above, § 62, in respect of noise from a bar; and Mileva and Others v. Bulgaria , nos. 43449/02 and 21475/04, § 97, 25   November 2010, in respect of a computer club’s business; and conversely, Galev and Others , (dec.), cited above, in relation to noise emanating from a dentist’s surgery; Fägerskiöld v. Sweden (dec.), no.   37664/04, 26 February 2008, concerning noise from a wind turbine; and Leon and Agnieszka Kania v. Poland , no.   12605/03, §§ 101-03, 21   July   2009, concerning noise from a lorry maintenance and metal-cutting and grinding workshop). It also notes that as a consequence of the fireworks display the applicants’ property has suffered a certain amount of damage, a matter which has not been contested. Furthermore, the applicants’ family may be exposed to some physical and personal risk. Taking into account these factors as a whole, the Court considers that the effects of such displays on the applicants’ private and family life and on the enjoyment of their homes was such that the alleged nuisance attained the level of severity required for Article 8 to be engaged. 39.     The Government’s objection ratione materiae is therefore dismissed. 40.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The applicants’ submissions 41.     The applicants complained of a continuing violation of their right to respect for private and family life as a result of the issuing of permits for two feasts a year in their locality. The CoP had failed to consider the area a restricted area for the relevant law purposes, against the relevant experts’ advice on the matter. Moreover, this procedure denied them the opportunity to make submissions on the matter. Thus, they considered that the recurring firework displays close to their residence (minimum 150m) constituted undue interference with their right to respect for private and family life. 42.     Primarily, they contended that according to section 15 (2) of the regulations (see Relevant domestic law) the CoP’s discretion was curtailed, as he had to act on the advice given to him by the group of experts. Thus, ignoring that advice clearly resulted in procedural incorrectness, making the interference unjustifiable. Referring to section 16 (2) (see Relevant domestic law) the applicants submitted that there was no point in such a group if their advice went unheeded. Thus, they considered that the decisions taken by the authority were not in accordance with the law, since the relevant distances had not been respected nor had the relevant recommendations from various bodies been taken into account. They therefore contested the validity of the permits issued, claiming that the Government had not proved that all the permits had been properly issued. However, they stated that proceedings in this respect had not been instituted, because even if the permits were in accordance with the law, it was the application of that law which breached their rights. 43.     The applicants claimed that the suffering caused was too serious to be ignored and that therefore the interference could not be considered proportionate, irrespective of any margin of appreciation enjoyed by the state. 44.     According to the applicants this activity would last an hour and a half on two days at each feast. This activity caused them to suffer heavy noise pollution (noise levels of at least 120db according to expert reports) which had resulted, for the first applicant, in a mild degree of sensorineural hearing loss (following impulsive shock noise) as shown by a medical report which excluded pertinent disease or age-related changes and where the first applicant declared no history of recreational noise exposure. Moreover, they alleged that smoke inhalation also affected their health. The activity had further caused other damage to their property (as had been the case with the pool and roof membrane) as a result of debris and other residues (such as burning string, cardboard and unexploded fireworks). Furthermore, such fireworks posed an unacceptable risk even to their lives, for example, they alleged that if a container full of fireworks were to explode, their house and the rest of the cluster of houses would be wiped out – as often happened with firework factory explosions. They highlighted that for two days before the feast fireworks were stored in a container close to the applicants’ property. They considered that the hazard of such a situation was evident, given that, allegedly, the last fireworks-related accident had claimed five lives, and occurred while fireworks were being stored in such a container before being discharged. The applicants, both in domestic and Court proceedings, submitted a photo of thirty unexploded fireworks collected by them. They noted that unexploded components of fireworks were not easily detectable, by them or others, during onsite inspections. 45.     The applicants argued that other security measures would not be sufficient. Indeed, before the domestic courts it had been shown that there was no access to the applicants’ property for fire engines, except for a Scout fire engine, which would be inadequate for a house fire. The relevant insurance also did not cover bodily injury or damage to property from a defect in the fireworks, or the failure of fireworks to ignite. They considered it ironic that streets in the vicinity were closed off for safety reasons but that the State felt no need to protect the applicants from the same dangers. 46.     They submitted that the protection proposals by the band clubs concerned had been refused, because covering the area with cardboard was not a practical solution, particularly because of the wind which often blew in the direction most likely to affect the applicants’ property, according to the statistics of prevailing winds. Moreover, according to the architects it was impossible to cover all the relevant areas. 47.     The applicants claimed that although fireworks started being let off in the area in the 1980s before they bought the property, they did not know the damaging effects before they actually moved into the property. Moreover, the Government had issued the relevant permits for their property. In consequence, their right to live there had been in conformity with the law and it followed that they also deserved protection. 48.     The applicants further considered that there were available alternatives, such as moving the site further north, but that even if there had not been, it was not reasonable for culture and tradition to prevail in the event that this damaged an individual and breached his or her rights. 49.     Lastly, quite apart from this lack of protection, the applicants contended that they had had no opportunity to make submissions, and therefore were excluded from the decision-making process. 2.     The Government’s submissions 50.     According to the Government the CoP always abided by the law in force when issuing the relevant permits, and each discharge of fireworks was covered by a valid permit. They explained that according to the law the Group of Experts and the Explosives Committee could only give advice to the CoP, who ultimately had discretion to decide whether to issue such permits. Similarly, the Ombudsman’s recommendations were not binding. However, any allegation in respect of the lawfulness of such an action had not fulfilled the exhaustion requirement, as the applicants had failed to use ordinary domestic remedies, namely a challenge to the administrative acts. Indeed, the applicants had never pursued ordinary civil proceedings contesting any of the CoP decisions. Moreover, the Government disputed the Ombudsman’s findings of 22 February 2001, which were based on the premise that the 200 m distance also applied to areas which did not qualify as “inhabited areas”. In fact there were no legal minimum distances applicable for areas which were “not inhabited”, but safety precautions were in place according to the regulations and the conditions imposed on permits. 51.     The Government considered the case as one regarding positive obligations, in that the letting off of fireworks was carried out by third parties but it was the State which issued the relevant conditions, regulations and permits. Such measures regulated interference by third parties with a person’s private rights, and required a balance to be reached between the religious and social expression of village communities and the interests of the applicants. 52.     The Government also submitted that any interference was proportionate and justified under paragraph two of the provision and that the domestic courts were in the best position to analyse the situation. They noted that firework displays had a long tradition in the country and many people devoted voluntary work, time and money to that cause which they considered their hobby. Village feasts and firework displays were a part of Maltese character and culture, and were one of the major tourist attractions during the summer period. Moreover, the feasts created substantial economic activity, with a huge positive impact on the economy of the country. 53.     Against this background the Government had to provide for regulation to avoid any danger arising from firework displays. For this reason it regulated both the manufacturing of fireworks and the way they were displayed, in such a way as to maintain the tradition and the economic activity whilst protecting and ensuring safety for all concerned. Fireworks legislation had evolved to reflect the urban development of the Maltese islands. These regulations bore in mind the residents in the vicinity of the sites and the size of the country, together with its population density. They noted that had the legislation applied the same distance from any house, the firework tradition, dearly appreciated by many, would cease to exist. Specifically, in the present case, there was no other alternative, such as moving the site further north, since this “new” area would have been far too close to other residences and would virtually abut a road. In the Government’s view the regulations had reached an appropriate balance, as had been held by the Constitutional Court which based its judgment on relevant and sufficient reasons, bearing in mind the size of the country, the duration of the interference, and the element of self-imposed hardship. 54.     Acknowledging that noise can be considered a pollutant, the Government submitted that the evidence put forward by the applicants did not show the normal level of noise in their household and whether in their lives they had been subject to high levels of noise, such as clubbing music or use of headphones, other factors which could also have caused an impairment. Indeed, in respect of the first applicant they noted that he was a sixty-one-year-old amateur drummer, and no proof had been submitted that any hearing disability was not already present before he moved to that address. As evidenced by the applicants’ documentation before the domestic courts, their hearing returned to normal just after the letting off of fireworks and therefore the fireworks could only have had a minor temporal effect - and the applicants had been aware of any such possible danger, which had allowed for price negotiation on purchase. The Government noted that the fact that fireworks were discharged in the open abated the effects of noise pollution. Moreover, fireworks were discharged at intervals, over short periods of time, the longest period being a continuous thirty minutes for the main aerial display. The Government also considered that the applicants could stay away from home during that limited period of time if they feared for their hearing to such an extent. 55.     Making reference to the Court’s case-law, the Government reiterated that there had not been any serious environmental pollution, the letting off of fireworks was not a permanent source of pollution, nor did it create any irreversible damage - just marks and spots on the swimming pool deck and the roof membrane of the applicants’ house. They argued that the probability that the applicants’ property was affected by debris and so on was heavily dependent on the wind direction, which was subject to constant change. Moreover, the applicants never instituted claims against the third parties responsible in respect of the minimal damage they had suffered, nor did they accept any precautionary assistance, such as protecting the swimming pool, its deck and the house roof with protective fire retardant material, which would absorb the effect of any falling material. The Government contended that the allegation that unexploded material or burning fireworks fell on to the property had not been supported by irrefutable evidence. While it had not been established where the applicants collected the unexploded fireworks, the Government noted that thirty pieces of unexploded material over twelve years showed how limited the impact was. 56.     Thus, in the Government’s view it would not be proportionate to exclude firework displays from these two village feasts because one family’s swimming pool might be dirtied or slightly damaged. Indeed, the minimal inconvenience to the applicants was acceptable, given that in a diverse modern and organised society everyone had to endure some inconvenience, this being inherent in the principle of social solidarity. 57.     The Government noted that, as prescribed by law, the exercise was strictly monitored to prevent accidents, and safety measures (including a fire engine) were in place to respond where necessary, together with the relevant insurance policy. Police inspectors ensured that the fireworks were being let off according to the regulations in force, and accompanied transportation of the fireworks from the factory to the site. Moreover, the Government noted that one of the permit conditions was that persons discharging fireworks had the duty to search the surrounding area for unexploded material after the fireworks were let off. Thus, the associations responsible for discharging fireworks engaged individuals to attend to the site and ensure safety precautions were implemented and adhered to. Indeed, these associations had offered to cover the applicants’ outdoor areas, but the applicants, unlike their neighbours, had refused the offer. Since this action required the authorisation of the applicants, the Government could not be blamed for the applicants’ refusal to allow such an action. 58.     The Government considered that the applicants’ allegations were exaggerated and that the rate of accidents during the discharge of fireworks was, though regrettable, comparable to accidents at places of work or traffic accidents. Moreover, accidents during displays were invariably suffered by the people discharging the fireworks, apart from exceptional circumstances when inexperienced third parties came across unexploded material and attempted to discharge it. The Government insisted that accidents related to firework manufacturing could not be of any relevance to the present case. As to the storage of fireworks in containers, the Government submitted that, as a security measure, fireworks were brought on site on the day of the display. They were handled carefully, spread around the area and not left in clusters, to reduce the danger of accidental ignition. The operation was constantly monitored by fire-fighters. It followed that the applicants’ allegation that an explosion would wipe out their house was unfounded and unsubstantiated. 59.     The Government highlighted that the applicants knew about the current practice and the damage which the previous owner had suffered as a result of the discharge of fireworks, and yet they chose to purchase the relevant property, which at the time was a farmhouse and which the applicants converted into