Friday, 30 May 2008

Gone with the Wind

It may have passed unnoticed, as happens with many admissibility decisions, but last February the Court handed down its first decision dealing with nuisance from wind turbines – considering the possible drawbacks of this environmentally friendly way of producing electricity. The case of Lars and Astrid Fägerskiöld against Sweden concerns noise nuisance of wind turbines erected near the applicants’ secondary home in the countryside. The Court assessed, amongst others, whether the noise directly affected the applicants home, family and private life (it did) and whether its effects attained a “minimum level of severity’ (they did not). Essentially, the level of noise did not exceed national or international (WHO) standards. According to the Court’s information, the in-house noise levels caused by the turbines oscillated between the noise in ‘a quiet room’ and noise caused by ‘moderate rainfall’! To summarise the decision, the authorities proceeded with due diligence, informing people in the area affected, conducting noise level tests and adjusting their policy as a result. National laws and regulations were respected. The Fägerskiöld decision is therefore mainly interesting as an example of a (moderately) ‘best practice’. The ECHR may contain a right to remain silent (in a criminal law context), but does not encompass a right to silence…

Another issue of note in this case – especially for housing rights afficionados like myself – is that the Court reaffirmed that secondary homes, used by people during holidays only, can fall within the concept of “home” of Article 8 ECHR. In Fägerskiöld the Court reiterated what it had earlier held in the case of Demades v. Turkey:

A person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. Therefore, a secondary house, which is fully furnished and equipped and used, inter alia, as a holiday home, can qualify as a “home” within the meaning of Article 8.

At times the decision borders on a commercial for wind energy (it makes one curious what kind of energy source the Strasbourg Court building uses!):

[T]o the Court, there is no doubt that the operating of the wind turbine is in the general interest as it is an environmentally friendly source of energy which contributes to the sustainable development of natural resources. It observes that the wind turbine at issue in the present case is capable of producing enough energy to heat between 40 and 50 private households over a one-year period, which is beneficial both for the environment and for society. (…) wind power is a renewable source of energy which is beneficial for both the environment and society.

The Convention itself contains no explicit environmental rights. In the last decade the Court has, however, started to adjudicate “green” cases. The 1994 judgment in López Ostra v. Spain, concerning industrial pollution, was the first case in this context in which the Court found a violation. In general, states have been granted a wide margin of appreciation in environmental cases, but violations – especially of Article 8 ECHR – have been found by the Court in various situations. Mostly, these concern instances in which the authorities failed to enforce existing national laws aimed at containing or limiting environmental or other nuisance. Well-known instances include Spanish nightclubs producing too much noise (Moreno Gómez) and air pollution by a Russian steel plant (Fadeyeva). The Court, in this way, helps to ensure that state parties take their own regulations on environmental protection seriously. Ironically, the environment only benefits from this protection if potential or real damage affects human beings.

For an extensive analysis of the Court’s stance in environmental cases, I recommend a very recent paper posted on SSRN by Ole Pedersen of the University of Aberdeen, entitled ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?' An older overview is to be found in Margaret DeMerieux’ ‘Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Oxford Journal of Legal Studies, Vol. 21, No. 3 (2001), pp. 521-561. The Council of Europe has published a booklet entitled Environmental Protection and the European Convention on Human Rights (2005) and a Manual on Human Rights and the Environment - Principles emerging from the case-law of the European Court of Human Rights (2006), both also available in electronic version, but unfortunately not for free. Enough materials to green legal minds!

For the applicants this decision obviously wasn’t a sight for sore eyes, but rather a sigh for sore ears!

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