BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ZAMMIT MAEMPEL v. MALTA
(Application
no. 24202/10)
JUDGMENT
STRASBOURG
22 November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 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
- 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.
- 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
- 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
- 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.
- 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).
- 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.
- In
consequence, over the years the applicants complained to the
Commissioner of Police (“CoP”), but no remedial action
was taken.
- 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”).
- 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.
- 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.
- 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.
- This
notwithstanding, the CoP continued to issue the relevant permits for
the purposes of two feasts per year, to the present date.
- 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)
- 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.
- 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
- 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.
- 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.
- 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
-
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.
- 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).
- 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.”
- 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”
- 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.”
- 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).
- 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.
- 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
- 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.”
- The
Government contested that argument.
- 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)).
- In
the instant case the Court considers that the complaint raised by the
applicants should be examined under Article 8.
A. Admissibility
- 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.
- 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.
- 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).
- 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).
- 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.
- The
Government’s objection ratione materiae is therefore
dismissed.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
-
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 a luxurious property. Thus, any damage
suffered by the applicants was self-imposed as they knowingly chose
to purchase the property, and remained living there for a number of
years, notwithstanding that they were financially able to move
elsewhere. Referring to the Court’s recent case-law (see Galev
and Others v Bulgaria, (dec.), cited above; Deés v.
Hungary, no. 2345/06, 9 November 2010; and
Mileva and Others v. Bulgaria, nos. 43449/02 and
21475/04, 25 November 2010) the Government
noted that in these cases the interference resulted from actions
which disturbed previously peaceful situations, and not, as in the
applicants’ case, a self-inflicted hindrance, due to their
choice to set up home in that specific location.
- Lastly,
the Government submitted that the CoP gave ample opportunity to the
applicants to make submissions, even when there was no legal
obligation to do so. Indeed, the applicants were present at a number
of meetings, both at the police station and on site. Although taking
into account the advice given, the CoP also had to establish a proper
balance between the interests involved, while acting within the
limits of the law. Thus, while such recommendations were followed
when possible, this had not always been the case. The Government
concluded that the applicants’ argument was unfounded, since
their complaints and submissions had led to an examination of their
case by the CoP, the Group of Experts, the Explosives Committee and
also by the Ombudsman, before reaching the domestic courts.
3. General principles
- Although
the object of Article 8 is essentially that of protecting the
individual against arbitrary interference by the public authorities,
it may involve the authorities’ adopting measures designed to
secure respect for private life and home, even in the sphere of the
relations of individuals between themselves (see Moreno Gómez,
cited above, § 55). Thus, Article 8 may apply in
environmental cases, whether the pollution is directly caused by the
State or whether State responsibility arises from the failure to
regulate private-sector activities properly. Whether the case is
analysed in terms of a positive duty on the State to take reasonable
and appropriate measures to secure the applicants’ rights under
paragraph 1 of Article 8 or in terms of an interference by a public
authority to be justified in accordance with paragraph 2, the
applicable principles are broadly similar. In both contexts regard
must be had to the fair balance that has to be struck between the
competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure
compliance with the Convention. Furthermore, even in relation to the
positive obligations flowing from the first paragraph of Article 8,
in striking the required balance the aims mentioned in the second
paragraph may be of certain relevance (see Powell and Rayner,
§ 41, and López Ostra, § 51, both cited
above).
- Although
Article 8 contains no explicit procedural requirements, the
decision-making process must be fair and must afford due respect to
the interests safeguarded to the individual by Article 8. It is
therefore necessary to consider all the procedural aspects, including
the type of policy or decision involved, the extent to which the
views of individuals were taken into account throughout the
decision-making process, and the procedural safeguards available (see
Hatton and Others, cited above, § 104, and Giacomelli
v. Italy, no. 59909/00, § 82, ECHR 2006 XII).
Individuals concerned must also be able to appeal to the courts
against any decision, act or omission where they consider that their
interests or their comments have not been given sufficient weight in
the decision-making process (Giacomelli, cited above, §
83).
4. Application to the present case
- It
is clear that in the present case the disturbances complained of were
not caused by the State or by State organs, but that they emanated
from the activities of private individuals. While the case may
therefore be seen as giving rise principally to the positive
obligations of the State, rather than as an interference by the
State, the Court is not required finally to decide this question, the
test being essentially the same. The question is whether the law, as
applied in the present case, struck a fair balance between the
competing interests of the individuals affected by the disturbance
and the community as a whole.
- In
order to justify the letting off of fireworks at the relevant
distances from the specific location, in the vicinity of the
applicants, the Government referred not only to the cultural and
religious interests of the Maltese community but also to the economic
interests of the country as a whole. In their submission these
considerations serve to justify impinging on the Article 8 rights of
the persons affected by this tradition. The Court considers it
reasonable to assume that firework displays are one of the highlights
of a village feast which attracts village locals, other nationals and
tourists, an occasion which undeniably generates an amount of income
and which therefore, at least to a certain extent, aids the general
economy. Moreover, it has no doubt that traditional village feasts
can be considered as part of Maltese cultural and religious heritage.
The Court observes that according to the second paragraph of Article
8 restrictions are permitted, inter alia, in the interests of
the economic well-being of the country and for the protection of the
rights and freedoms of others. It is therefore legitimate for the
State to have taken the above interests into consideration in the
shaping of the regulatory framework applicable to the fireworks
culture.
- The
Court considers that the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure
compliance with the Convention when it comes to the determination of
regulatory and other measures intended to protect Article 8 rights.
This consideration also holds true in situations which do not concern
direct interference by public authorities with the right to respect
for the home but involve those authorities’ failure to take
action to put a stop to third-party breaches of the right relied on
by the applicant (see Deés, cited above, §
23)
- As
the Court has held on a number of occasions in cases involving
environmental issues, as in the present case, the State must be
allowed a wide margin of appreciation (see Hatton and Others,
cited above, § 100; Buckley v. the United Kingdom, 25
September 1996, §§ 74-77, Reports 1996-IV; Taşkın
and Others, cited above, § 116; and Giacomelli,
cited above, § 82). 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 the 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 (see Hatton and Others, cited above, §
123).
- In
the present case the Court first notes that the noise disturbance
could have, at least in respect of one of the applicants, actually
led to deterioration in his hearing. Moreover, it has already damaged
the applicants’ property, although the Court finds it pertinent
to note that the damage which the property has suffered is minimal,
and reversible. Furthermore, the applicants can take action against
those responsible for such damage through ordinary civil proceedings.
As to any other risks pertaining to the letting off of fireworks,
while the Court notes that the mortality rate relating to the
fireworks industry in Malta is alarming, as noted by the Government,
such accidents occur less frequently during the actual displays and
are often related to fireworks manufacturing. Indeed, in the
applicants’ case no risk to life or personal integrity has to
date materialised (see, conversely, Georgel and Georgeta
Stoicescu v. Romania, no. 9718/03, 26 July
2011). Moreover, the applicants have not adduced evidence as
to any real risk of an explosion destroying their property or
substantially damaging it. Thus, although the Court is not in a
position to entirely exclude any risk of personal injury, in
particular having regard to the unexploded material which has
allegedly been found on the applicants’ property, it finds that
it has not been established that the applicants are subject to a real
and immediate risk to their life or their physical integrity. Neither
does the Court find it sufficiently established that fireworks give
rise to any health concern, other than that mentioned above. This
having been said, the Court is ready to accept that the repeated
letting off of fireworks at sound levels reaching at least 120db, for
two weeks each year, even though intermittently, creates considerable
inconvenience for the applicants, which must be balanced against the
interests of the community.
- The
Court accepts that in this context the authorities were entitled,
having regard to the general nature of the measures taken, to
identify distances from where third parties could perform the
relevant displays, taking into account the geographical situation in
Malta and its population density. The Court further accepts that it
was justifiable to allow for the designation, as letting off sites,
of areas in the rural zones, which were further away from densely
inhabited areas, even though this might result in there being a
shorter distance from other existing properties. As to the
measurements applied, the Court notes that the security distance
applicable to inhabited areas was that of 150 or 200 metres,
according to the type of fireworks concerned. In the applicants’
case, while no minimum distance was applicable, as they lived in an
“uninhabited” area, in practice the actual distance
between their home and the letting off zone was, as recognised by the
parties, 150 metres. The Court, acknowledging that this might offer a
lower degree of protection, notes that such a distance in principle
still affords a certain degree of protection. Moreover, the
application of this distance in practice and the lack of regulation
in respect of distances applicable to uninhabited areas did not mean
that the concerns of the people affected were totally disregarded.
- The
Court notes that the State was not oblivious to the dangers inherent
in the fireworks tradition, and had provided for a certain degree of
protection. Quite apart from the relevant procedure and requirements
for the issuance of permits to allow such displays (see section 14 of
the regulations), as submitted by the Government, regulations were in
place in respect of transportation and unloading of fireworks. Such
actions and the actual letting off of the fireworks were accordingly
monitored by police inspectors and fire-fighters. Insurance covering
the activity was also mandatory. Moreover, obligations were imposed
on the third parties operating such displays (see section 17 of the
regulations) and it has not been contended that the third parties
failed to fulfil these obligations, in so far as it depended on them.
Thus, in assessing whether the right balance has been struck, the
availability of these measures to mitigate the effects of such
displays is a relevant factor carrying considerable weight.
- On
the procedural aspect of the case, the Court notes that a
governmental decision-making process concerning issues of cultural,
environmental and economic impact such as in the present case must
necessarily involve appropriate investigations and studies in order
to allow them to strike a fair balance between the various
conflicting interests at stake. However, this does not mean that
decisions can only be taken if comprehensive and measurable data are
available in relation to each and every aspect of the matter to be
decided. In this respect, the Court notes that the Government have
not adduced evidence in respect of any impact assessment studies made
in this respect; indeed relevant studies have only been put forward
by the applicants, who, however, have not focused on this aspect of
the case. The Court also notes, however, that the authorities have
enacted legislation in this field and have provided consistent
monitoring of the situation through the appointment of a group of
experts (see section 16 of the regulations).
- The
Court notes that the applicants addressed their complaints directly
to the CoP, who was responsible for issuing such permits. Similarly,
the Ombudsman’s reports reflecting the applicants’
concerns had been brought to the CoP’s attention. It was also
open to them to make any representations they felt appropriate to the
Explosives Committee or directly to the group of experts. Indeed, the
group of experts not only considered their representations but made
recommendations supporting the applicants’ position. Had any
representations not been taken into account, or had the CoP, as
happened in the present case, not taken such advice, the applicants
were able to challenge the decisions in the ordinary courts, a course
of action which they chose not to take. The Court notes, however,
that while the CoP’s decisions were not contested through
ordinary proceedings, the applicants undertook constitutional redress
proceedings. In consequence, it cannot be said that they did not have
an opportunity to make their views heard. The fact that the outcome
of the proceedings was not favourable to the applicants is not
sufficient to establish that they were not involved in or given
access to the decision-making process.
- Moreover,
the Court notes that the applicants acquired the property while aware
of the situation of which they are now complaining. Notwithstanding
that the previous owners had informed them of their experience, the
applicants proceeded to purchase the property and made it their home.
The Court considers, as did the domestic courts, that this is a
weighty factor in the relevant balancing exercise, irrespective of
the fact that they were lawfully entitled to live there (see, mutatis
mutandis, Lacz v Poland, (dec.), no. 22665/02, 23 June
2009).
- In
these circumstances the Court does not find that the authorities
overstepped their margin of appreciation by failing to strike a fair
balance between the rights of the individuals affected by those
regulations to respect for their private life and home and the
conflicting interests of others and of the community as a whole, nor
does it find that there have been fundamental procedural flaws which
impinged on the applicants’ Article 8 rights.
- There
has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION
WITH ARTICLE 8 OF THE CONVENTION
- The
applicants complained of a violation of Article
14 read in conjunction with Article 8 that the legislation in force
was discriminatory, as it denied them protection. They
relied on Article 14 of the Convention, which, in so far as relevant,
reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that argument.
A. The parties’ submissions
- The
applicants claim that the definition of inhabited areas was
discriminatory. The difference in treatment lay precisely in the fact
that people who lived in inhabited areas were more deserving of
protection than those who lived in “uninhabited” areas:
this, in their view, constituted discrimination on the basis of
residence. The applicants submitted that such a legislative decision
could never be considered reasonable in that it was not acceptable to
compromise on the safety and security of people.
- The
Government submitted that no breach of Article 14 could be found in
the absence of an interference with Article 8. Moreover, the
applicants had not established on which ground covered by the
Convention they claimed to be suffering discrimination. Furthermore,
the applicants had not been identified as being in an analogous
situation to any person treated differently from them. Indeed, it had
not been proved that other persons living in an “inhabited
area” had been given preferential treatment. In actual fact,
distances of sites for letting off fireworks were always measured
from areas where at least a hundred people lived.
- However,
even assuming that there had been such a distinction, the Government
referred to its margin of appreciation, and to an objective and
reasonable justification, bearing in mind that the distinction was
between people living in an area consisting of small hamlets which
might accommodate one hundred people, and others who lived in
sparsely inhabited areas where fewer than one hundred people lived.
According to the Government, it was clear that the risk of injury or
damage was much higher in densely populated areas than in sparsely
inhabited areas. Thus, once again the State achieved a balance
between the safety and security of people and the country’s
traditions. This balance was all the more clear, bearing in mind that
protective measures were still in place for the safety of people
living in uninhabited areas.
- In
the applicant’s case, fireworks were let off from three
different places, and the relevant distances were respectively 150,
159 and 200 metres away, distances permissible in law for such an
area. The distance of 200 m was also applicable to inhabited areas.
However, if this distance was applied to all areas, firework displays
close enough to the relevant village would not be possible, thus,
this was an unacceptable alternative in view of the geographical
context. In setting the 200 m distance the State had considered the
importance of regulating the letting off of fireworks, the small size
of the country, improving good practice, and the balance between
individual interests and those of the community at large. There had
therefore been no violation of Article 14.
B. The Court’s assessment
1. General Principles
- The
Court reiterates that Article 14 complements the other substantive
provisions of the Convention and its Protocols. It has no independent
existence, since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to this extent it
is autonomous – there can be no room for its application unless
the facts at issue fall within the ambit of one or more of the latter
(see Mintoff v. Malta, (dec.), no. 4566/07, 26 June 2007).
- In
order for an issue to arise under Article 14 there must be a
difference in the treatment of persons in analogous or relevantly
similar situations (see D.H. and Others v. the Czech
Republic [GC], no. 57325/00, § 175, ECHR 2007, and
Burden v. the United Kingdom [GC], no. 13378/05,
§ 60, ECHR 2008-). Such a difference of treatment is
discriminatory if it has no objective and reasonable justification;
in other words if it does not pursue a legitimate aim or if there is
not a reasonable relationship of proportionality between the means
employed and the aim sought to be realised (see Carson and Others
v. the United Kingdom [GC], no. 42184/05, § 61, ECHR
2010 ....). The Court also points out that the grounds on which
those differences of treatment are based are relevant in the context
of Article 14. Only differences in treatment based on an identifiable
characteristic, or “status”, are capable of amounting to
discrimination within the meaning of Article 14 (see O’Donoghue
and Others v. the United Kingdom, no. 34848/07, § 101,
ECHR 2010 ... (extracts).
2. Application to the present case
- The
Court notes that Article 8 has been held to be applicable in the
present case, it follows that Article 14, in conjunction with the
latter provision, is also applicable.
- The
Court refers to its findings in paragraphs 68-73 above, whereby it
concluded that in issuing permits for the letting off of fireworks in
the applicants’ vicinity, and the application of the national
legislation in this respect, the authorities struck a fair balance
between the right of the applicants to respect for their private life
and home and the conflicting interests of others. Thus, even assuming
that the applicants can be considered to be in an analogous situation
to persons living in an inhabited area, the Court considers that,
bearing in mind the relatively small difference in the applicable
distances in practice, the geographical limitations of the country
and the fact that the applicants have not been wholly deprived of
protection, any difference in treatment was objectively and
reasonably justified.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- Lastly,
the applicants make reference to Article 1 of Protocol No. 1 in
respect of the damage they have sustained to their property, as a
consequence of fireworks, over the years.
- The
Court notes that reference to the damage to the applicants’
property was a matter debated before the national jurisdictions in
the ambit of the applicants’ Article 8 complaint. In this light
the Court notes that in so far as this complaint goes beyond the
allegations made under Article 8 which the Court has rejected in
paragraph 73 above, the applicants failed to bring domestic
proceedings in relation to any damage caused by third parties, a
possibility open to them under domestic law. Nor did they cite this
provision before the domestic constitutional jurisdictions.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the
complaint under Article 8 of the Convention admissible and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention;
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy
Registrar President
