CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 mars 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 23 March 2018   FIRST SECTION Application no. 42212/15 Józef FEDOSIUK against Poland lodged on 18 September 2015 STATEMENT OF FACTS The applicant, Mr Józef Fedosiuk, is a Polish national, who was born in 1956 and lives in Gdynia. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Nuisance Since 1988 the applicant and his family have lived in a semi ‑ detached house which is owned by the applicant and his wife. The land on which the house is situated measures approximately 380 square metres. The applicant grows an orchard and a garden there. On an unspecified date, the applicant’s neighbour from the adjacent property built a three-line high pressure self-service car-wash, operating twenty-four hours per day and seven days per week. This construction and activity were authorised under a series of administrative decisions (see point   2 below). The noise emitted by the car-wash, as measured by the authorities in 2009, had exceeded the statutory norms (see point 2 below). As established by the civil court (see point 3 below), the noise was caused primarily by the engines of the users’ vehicles and car-wash machines, and to a lesser extent, by the users who would engage in noisy behaviour, such as listening to loud music, slamming the car doors, cleaning their car rugs and disposing of glass bottles and trash. The civil court also established that the chemicals used by the car ‑ wash were certified for use. They comprised chemical compounds, such as 2 ‑ butoxyethanol and propan-2-ol (Isopropyl alcohol), which were solvents of some irritancy and strong odour. These substances, if used over a long time, might cause serious nuisance in the form of steam and smell. The Polish law had not regulated the norms for the chemical compounds in question and no methodology had been developed to monitor such emissions. It had not been recorded that the operation of the car-wash was causing excessive air pollution or water and soil contamination. The civil court considered it established that the car-wash, because of its vicinity to the applicant’s property, caused nuisance to the applicant and impeded him from fully enjoying his home and garden. Overall, the domestic court found that the nuisance which was caused by the car-wash was periodical and its intensity depended on the wind direction and the users’ behaviour. In unfavourable conditions, the nuisance might have forced the applicant to stop using his garden and to close the house windows. As established by the civil court, on an unspecified date, the neighbour had equipped all washing lines with anti-noise curtains. The curtains were not in permanent use, in particular when, during weekend and bank holidays, the employees of the car-wash were not on the premises. 2.     Administrative proceedings (a)     Proceedings leading to the operation of the neighbour’s car-wash (i)     Initial approval of the development project On 25 March 2008 the Gdynia Mayor ( Prezydent Miasta , “the mayor”) approved the car-wash development project submitted by the applicant’s neighbour ( decyzja o warunkach zabudowy dla inwestycji ). The mayor, dismissed the objections made by the applicant and other residents of the nearby property because the car-wash was to be constructed on a separate plot of land with independent access from the main street. After the examination of several-level-appeals which had been lodged by the applicant’s wife, ultimately on 18   May   2011 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal lodged by the applicant and his wife. (ii)     Car-wash construction plan and construction permit On 18 July 2008 the mayor approved the construction plan submitted by the applicants’ neighbour and authorised the construction of a four ‑ line car ‑ wash ( decyzja o zatwierdzeniu projektu budowlanego i pozwolenia na budowę ). Subsequently, the administrative authorities and courts issued a number of decisions relating to the applicant’s wife’s application for access to public information and for re-opening, and to her appeals. Ultimately, on 24   February 2011 the Supreme Administrative Court dismissed the cassation appeal lodged by the applicant’s wife. (iii)     Operation permit On 12 February 2009 the mayor authorised the operation of the car-wash ( pozwolenie na użytkowanie ) and obliged its owner to clean up, by 9   March 2009, the public grounds adjacent to his property in so far as they had been affected by the construction works. The applicant submitted that the permit had been issued despite the fact that the car-wash did not comply with environmental standards, especially in respect of noise. The applicant and his wife were not entitled under the law to challenge that decision. (b)     Complaints about car-wash emissions The applicant submitted that the administrative law had not envisaged any remedies to ensure monitoring and cessation of the emissions of 2 ‑ butoxyethanol and propan-2-ol. His administrative actions had consequently been restrained to noise emissions. (i)     First complaint On 14 April 2009 the applicant’s wife filed an application with the mayor, asking for the restitution of the decent state of the environment. On 20 July 2009 the Gdańsk Regional Inspectorate of Environmental Protection ( Wojewódzki Inspektor Ochrony Środowiska ) revealed that the noise emitted by the car-wash operating for two and for three cars simultaneously, as measured during the day at the height of 4 metres and at the distance of 13 metres from the source of noise (in the applicant’s garden, 2.5 metres from the outer wall of his house), exceeded the national statutory levels, namely that it ranged from 59.6 to 59.9 dB. The applicant was present during the measuring and did not make any complaints about the methods used by the inspectorate. On 22 August 2009 the mayor ordered the applicant’s neighbour that he ensure that the noise emitted by the car-wash, as measured at the property’s edge adjacent to the residential area where the applicant lived, was not to exceed 55dB during the day and 45 dB at night. In the applicant’s submission, the authorities had not ensured the implementation of the decision. (ii)     Second complaint On an unspecified date in June 2010 the applicant complained with the Gdańsk Regional Inspectorate of Environmental Protection that the noise emissions from the car-wash continued exceeding the statutory norms and asked that action be taken. On 9 October 2010 the Gdańsk Regional Inspectorate of Environmental Protection made new noise measurements nine metres from the source. It was thus revealed that the car-wash emitted noise ranging from 61.1 to 65.4   dB during the day. It appears that the applicant did not attend the measuring process. The applicant submitted that the administrative authorities had not taken any further measures against his neighbour. 3.     Civil proceedings against the neighbour On 15 June 2010 the applicant lodged a civil action, among others, seeking the cessation of the car-wash operation in view of the noise and chemical pollution. The applicant formally relied on Article 24 of the Civil Code, arguing that the car-wash activity infringed on his right to health, peaceful home and to life in unpolluted environment. He also made reference to the term of “beyond an average degree” within the meaning of Article 144 of the Civil Code. The applicant also applied for an interim injunction under Article 730 1 of the Code of Civil Procedure, asking that his neighbour be barred from operating his car-wash on Sundays and public holidays, and at night from 10 p.m. to 6 a.m. On 6 April 2011 the Gdańsk Regional Court ( Sąd Okręgowy ) dismissed the applicant’s application for an interim injunction on the grounds that the harmful effects of the car-wash on the applicant’s personal rights had not been made plausible ( uprawdopodobnione ). On 20 July 2011 the Gdańsk Court of Appeals ( Sąd Apelacyjny ) dismissed an interlocutory appeal against this decision because, in its view, the applicant failed to demonstrate that the goal of any future court ruling in the applicant’s favour would be impossible or difficult to implement unless the interim injunction was ordered. On 30 July 2013 the Gdańsk Regional Court examined the applicant’s action under Articles 24 and 144 of the Civil Code, in so far as the scope of these provisions overlapped, and dismissed it. The court based its findings of fact (as described in point 1 above), inter alia , on the administrative decisions related to the operation of the car-wash; the reports of the environmental protection inspectorate; a report of the court-appointed expert in environment protection; privately-produced video recordings and photographs; and on the submissions of the parties to the impugned proceedings and of other the residents of the area. The court held that the nuisance resulting from the neighbour’s car-wash had gone “beyond the average degree” within the meaning of Article 144 of the Civil Code in that it emitted noise exceeding the statutory norms and steam containing odorous chemical compounds and periodically restricting the applicant in the use of his property. The fact the car-wash was operating under permit did not automatically render its business activity lawful within the meaning of the applicable law on liability. The court concluded, nevertheless, that the applicant’s claim was too far reached because he had failed to demonstrate that the protection of his personal rights required a total bar on the neighbour’s business. On 10 April 2014 the Gdańsk Court of Appeals dismissed the applicant’s appeal, which was brought, inter alia on the grounds that the case should only have been examined under Article 24 of the Civil Code, without Article 144 of that code. The appellate court firstly observed that it was the master of legal characterisation and, consequently, that the applicant’s argument was in principle not legitimate. It then observed that Article 24 of the Civil Code, in principle, allowed for the presumption of unlawfulness, which, in turn, resulted in the shifting of the burden of proof onto a defendant. Acting within the limits of one’s property rights, could nevertheless exclude such unlawfulness. The court found it therefore necessary to examine the case from the perspective of the collision of two sets of civil rights: on the one hand, the neighbour’s ownership right to use his property and, on the other, the applicant’s rights to health and peaceful home. The court observed that the scope of the former right was defined in Article 144 of the Civil Code, prohibiting any activities which would disturb the enjoyment of adjacent immovable property beyond an average degree. The burden of proving the nuisance beyond an average degree was, under the law, on the applicant plaintiff. The appellate court considered that the first-instance court’s conclusion that the neighbour’s activity disturbed the applicant beyond an average degree was insufficient and unconvincing in that it was based only on the fact that the noise exceeded the statutory norms and the expert’s statement that the steam emitted by the car-wash contained chemical compounds, the smell of which periodically made it impossible for the applicant to fully enjoy his home and garden. The appellate court observed that the case had to be examined against the fact that the car-wash was operating in a heavily urbanised area. It also noted that the expert’s report was subjective as no objective norms existed to determine the levels of emissions of smell and chemical pollution. It followed that: (i) the neighbour’s activity was prima facie lawful as it was within the scope of his proprietor’s right, and (ii) the evidence produced in the course of the proceedings by the applicant did not allow for the holding that the nuisance caused by the car-wash disturbed the applicant beyond the average degree as defined by the socio-economic purpose of the immovable property and the local conditions, and that it was therefore unlawful. On 16 June 2015 the Supreme Court refused to entertain the applicant’s cassation appeal. B.     Relevant domestic law Civil liability Article 23 of the Civil Code, which entered into force in 1964, contains a non-exhaustive list of so ‑ called “ personal rights” ( prawa osobiste ). This provision states: “The personal rights of an individual, ... in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law, regardless of the protection laid down in other legal provisions.” Article 24 paragraph 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement, [the person concerned] may also require the party responsible for the infringement to take the necessary steps to remove [the infringement’s] consequences ... In compliance with the principles of this Code, [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” Article 144 of the Civil Code provides as follows: “In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property beyond average degree as defined by the socio-economic purpose of the immovable property and the local conditions.” COMPLAINTS The applicant complains, invoking Article 6 of the Convention, that the civil court which examined his case was unfair and biased against him. In particular, the applicant complains that the court changed the legal qualification of his action without informing him of this in time. That, in the applicant’s view caused inequality of arms in that: he could not argue his case in line with the newly required elements; the burden of proof unexpectedly shifted to him; and the submission and assessment of evidence was erroneously carried out under Article 144 of the Civil Code and not under Article 24 of that code. Moreover, the courts of higher jurisdiction did not cure the above-mentioned shortcomings. The applicant also complains under Article 8 of the Convention that the State failed in its positive obligation to protect him from the interference with his right to respect for his private and family life and for home. QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to respect for his private life and his home, within the meaning of Article 8 of the Convention?