CEDH · CASELAW;CLIN;ENG — 7 avril 2009

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Romania - 6586/03 Judgment 7.4.2009 [Section III] Article 8 Article 8-1 Respect for private life Prison cell which had been prisoner’s sole “living space” for many years: article 8 applicable Offensive smells emanating from waste tip in vicinity of prisoner’s cell and affecting his quality of life and well-being: violation   Facts : The applicant was sentenced to ten years’ imprisonment for fraud. While in pre-trial detention he was first held in Arad police headquarters. Following his conviction he was transferred to prisons in Timişoara and Arad, where he had spent most of his detention to date. The applicant brought judicial proceedings to complain of his conditions of detention and the fact that in Arad Prison he had had to put up with stale air and the nauseous stench from a site, about 20 metres from the prison, that had formerly been used for the disposal of household waste. This former refuse tip, managed by company S., which was itself run by Arad City Council, was in use from 1998 to 2003. The applicant’s applications were rejected by the domestic courts. Law : Article 3 – The applicant complained of the conditions in which he had been held in Arad police headquarters and Timişoara and Arad Prisons, particularly in respect of prison overcrowding, the poor quality of food and hygiene conditions. Although there was nothing in the present case to indicate that there had been a real intention to humiliate or degrade the applicant, the absence of such an objective could not rule out a finding that there had been a violation of Article 3. The conditions of detention in issue, which the applicant had had to endure for several years, had subjected him to an ordeal of an intensity which went beyond the level of suffering inherent in detention. Conclusion : violation (unanimously). Article 8 – Applicability : In the instant case, the applicant’s allegations concerning the highly offensive smells that he had had to endure were supported by several elements, including the environmental impact studies prepared by experts at the request of the authorities, which confirmed the very high level of air pollution in the perimeter of the refuse tip and the “extreme unpleasantness” endured by the residents of the neighbouring buildings. While noting that the applicant’s health had not deteriorated through proximity to the former refuse tip, it was to be noted that, in the light of the conclusions of the above-mentioned studies and the length of time for which the applicant had to suffer the nuisance in question, his quality of life and well-being had been affected to the detriment of his private life in a way which was not merely the consequence of his deprivation of liberty. The applicant’s complaint related to aspects which went beyond the context of his conditions of detention as such and which, moreover, concerned the only “living space” that the applicant had had available to him for several years. Article 8 was applicable in this case. Merits : The Romanian authorities were responsible for the offensive fumes and smells complained of by the applicant, as the company S. was run by Arad City Council. In addition, responsibility had been transferred from the Council to S. only in February 2006, and even after that date the environmental authorities had made the City Council directly responsible for closing the refuse tip. Moreover, the file showed that the tip in question had been in operation effectively from 1998 to 2003, and that it had even continued to be used by private individuals thereafter, since the authorities had not taken measures to ensure effective closure of the site. However, throughout that period, the tip had had no proper authorisation either for its operation or for its closure. By failing to follow the required procedure, the local authorities had failed in several of their obligations. Although the relevant authorities were required to commission studies in advance to assess the effects of the polluting activity in question in order to ensure a fair balance between the various competing interests at stake, it was only a   posteriori that they had fulfilled that obligation. These studies had shown that the activity was incompatible with environmental requirements, that there was a high level of pollution exceeding the established norms and that persons living nearby had to put up with significant levels of nuisance caused by offensive smells. In particular, the relevant authorities had explicitly penalised Arad City Council for the absence from the site of any means of informing the public about risks to the environment and public health arising from the existence of the refuse tip, in respect of which closure works and ecological rehabilitation had not been carried out. Finally, the proceedings relating to the work to effect the closure of the refuse tip near Arad Prison were still pending and the Government had not supplied any information about the progress – or even the beginning – of the work to cover over and rehabilitate the site, which was supposed to be completed in 2009. Accordingly, it had to be concluded that the respondent State had failed in its obligations under Article 8 of the Convention and that there had been a violation of the applicant’s right to respect for his private life, within the meaning of that Article. Conclusion : violation (unanimously). Article 41 – EUR 8,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes