GAIDA proti Německu

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32015/02
by Hans GAIDA
against Germany

The European Court of Human Rights (Fifth Section), sitting on
3 July 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 26 August 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hans Gaida, is a German national who was born in 1940 and lives in Neuhäusel in Germany. He is represented before the Court by Mr W. Krahn-Zembol, a lawyer practising in Wendisch Evern, Germany. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of a plot of land. He lives on these premises and has been using his property to run an amateur poultry farm since 1984.

1. The administrative proceedings

On 5 July 1995 the Westerwaldkreis Regional Authority (Landrat) issued a building license to Deutsche Telekom AG (“T-AG”), a shareholding company with the German Federal State as its majority shareholder.
The building licence entitled the T-AG to expand an existing and legally erected antenna on the plot of land adjacent to the applicant’s premises and to install a mobile phone base station at a distance of approximately twenty metres from the applicant’s house.

On 13 September 1995 the applicant filed an objection (Widerspruch) with the Regional Authority with the aim to have the licence revoked.
He alleged that the radiation emanating from the base station caused him insomnia and serious health problems including tinnitus and cardiac arrhythmia. Furthermore, the breeding of his poultry had been seriously disturbed with the fledglings not hatching at all or with serious deformations. He finally complained that the adjacent base station reduced the commercial value of his own plot of land.

On 28 June 2000 the Regional Authority rejected the applicant’s objection. It noted that the radiation emanating from the base station complied with the standards prescribed by the relevant safety guidelines for exposure of the public to radio-frequency energy issued by the Federal Government in December 1996 (26. Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes, see relevant domestic law below). In the absence of conclusive scientific evidence to the contrary, it had to be assumed that no health damages could be expected.

2. The proceedings before the Koblenz Administrative Court

On 25 July 2000 the applicant lodged a motion with the Koblenz Administrative Court (Verwaltungsgericht). Submitting several medical attestations, he alleged that his health problems as well as the breeding anomalies of his poultry had been caused by radiation emanating from the base station. For lack of conclusive scientific evidence, it was impossible to evaluate the risks emanating from base stations, in particular with respect to so-called “non-thermal effects” (effects which have not been caused by warming up biological tissues). Accordingly, a number of experts regarded the relevant safety guidelines to be insufficient. In order to prove the existence of a broad scientific discussion on health risks caused by base stations, the applicant submitted several scientific reports. He requested the Administrative Court to hear expert opinion on the question as to whether there existed a causal link between his diseases, those of his poultry and the radiation emanating from the base station and as to whether the pertinent safety guidelines were sufficient to protect neighbours from harmful effects of radiation.

On 30 January 2001 the Koblenz Administrative Court rejected the applicant’s claim, finding that the base station complied with the relevant legal provisions. The Administrative Court noted, firstly, that the radiation emanating from the base station was in accordance with the safety guidelines for exposure of the public to radio-frequency energy. According to an attestation issued by the Regulatory Authority for Telecommunication and Mail on 31 January 1995, the safety distance to be observed amounted to 2.35 metres, while the applicant’s house was removed some twenty meters from the base-station.

With regard to the applicant’s right to the protection of his health as guaranteed by Article 2 § 2 of the Basic Law the Administrative Court held that the Government, when drafting the safety guidelines, had considered all relevant scientific information and stayed well within its margin of appreciation. With regard to the scientific reports submitted by the applicant, the Court found as follows:

“According to the current state of scientific research, there exists no unambiguous theory of causation which would allow proving non-thermal effects of electromagnetic fields. Taking into account the reports and publications submitted by the plaintiff, in particular the publication on the international conference on mobile phone base stations held in Salzburg on 7-8 June 2000, the necessity of preventive measures with regard to non-thermal effects remains controversial within the scientific community. The positive obligation under Article 2 § 2 of the Basic Law does not require to take into account unconfirmed scientific findings.”

The Administrative Court saw no need to obtain further evidence, as the courts were not required to raise data on scientifically unconfirmed issues.

3. The proceedings before the Rheinland-Pfalz Court of Appeal

On 20 August 2001 the Rheinland-Pfalz Court of Appeal (Oberverwaltungsgericht) refused to grant the applicant leave to appeal. Mainly confirming the Administrative Court’s reasoning, it found that in the absence of any substantial scientific confirmation that the safety guidelines were completely inadequate (völlig unzulänglich), there was no reason to take the requested evidence. With regard to the applicant’s alleged health problems, the Court of Appeal found as follows:

“The medical attestation by the general practitioner St. dated 2 October 2000, submitted by the applicant in the administrative proceedings, does not confirm that the unspecified health problems which are listed therein have been caused by the mobile phone base station. The same applies to the medical opinion of Dr Sch. dated
19 January 2000, who merely described the plaintiff’s health problems on the basis of earlier medical reports – apparently without having examined him personally –
as typical health problems of persons who lived in the direct vicinity of mobile phone stations and referred to earlier scientific reports dealing with the effects of high frequency radiation. This medical opinion is couched in such general terms that it does not allow assuming a possible causation in the specific case. In the absence of any conclusive, precise indications, but only based on assumptions regarding a causal connection between the phone station and the plaintiff’s health problems, there was no reason to take the requested evidence by hearing expert opinion, having regard to the limits set in the safety guidelines and the present state of scientific research; the more so, as the distance between the plaintiff’s house and the phone station exceeds the safety distance prescribed in the safety guidelines by far.”

4. The proceedings before the Federal Constitutional Court

On 27 September 2001 the applicant raised a constitutional complaint, alleging a violation of his right to life and physical integrity as guaranteed by Article 2 § 2 of the Basic Law.

On 28 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant’s complaint as being
ill-founded.

It noted that the relevant safety guidelines were based on the concurring recommendations issued by the International Commission on Radiological Protection (ICRP), the International Commission on Non-Ionizing Radiation Protection (ICNIRP) and the German Commission on Radiological Protection (Strahlenschutzkommission, SSK). They were based on verified health risks caused by the warming up of biological tissues.
The Government had refused to adopt further security measures for lack of conclusive scientific evidence. The Federal Council (Bundesrat) had put the Government under an obligation to submit a report whenever new research results on the evaluation of possible long-term health risks caused by radio-frequency energy appeared.

The Federal Constitutional Court found that the Government was not obliged to tighten the safety guidelines as long as there was no reliable knowledge as to the dangerousness of high frequency radiation.
When fulfilling its obligations under Article 2 § 2 of the Basic Law, the Government disposed of a wide margin of appreciation, which allowed to consider the competing public and private interests. The positive obligation under the constitution did not stipulate that any possible security measure had to be taken. A violation of that obligation could only be established if the public authority did not provide for any security measures at all or if the measures taken were completely inadequate or completely insufficient to provide the required protection. There was no obligation to take precautions against merely hypothetical dangers.

With regard to the lower courts’ alleged obligation to take evidence on the current standard of scientific knowledge on the dangerousness of
high-frequency radiation, the Federal Constitutional Court found as follows:

“In areas of complex situation of danger (komplexe Gefährdungslagen) such as the present one, where no conclusive scientific evidence exists, the Government in their function as a secondary lawmaker (Verordnungsgeber) enjoy an appropriate margin of appreciation. In such a situation of uncertainty the State’s positive obligations require the courts neither to verify inconclusive scientific findings by means of the procedural law, nor to control the Government’s decision by evaluating the relevant safety limits according to the latest state of research. It is primarily up to the Government to constantly observe and evaluate the scientific progress in order to take further security measures if this appears to be necessary. A violation of the Government’s duty to adjust the guidelines can only be established if it becomes clear that a regulation aimed at the protection of health which had once been in accordance with the law becomes unconstitutional because of new scientific findings or a change of the factual situation. The Court of Appeal respected this limited scope of judicial review by refusing to make an independent risk assessment on the basis of evidence taken in court as long as there existed no research results of considerable scientific value regarding the inadequacy of the present safety limits.”

The Federal Constitutional Court further considered that this distribution of the burden of responsibility between the executive power and the courts duly took into account their different capacities to assess the relevant facts. With a view to the broad international research in this area, which had not yet rendered any definite results, it was currently impossible to evaluate the situation by merely examining solitary expert reports. An adequate evaluation was only possible by constant observation of all research results in the different scientific areas. This task was carried out by several international and national scientific commissions. The Constitutional Court found that the necessary overall examination could not be attained by taking evidence in individual court proceedings. The general scientific progress was not sufficiently advanced to enable the lower courts to independently evaluate such risks.

The Constitutional Court finally found that the lower courts had not been obliged to hear expert opinion on the applicant’s allegations that his own health had been damaged by radiation. In the absence of a scientifically confirmed examination method, the applicant had failed to submit sufficient evidence that an examination of his state of health could render any new results.

B. Relevant domestic law

1. Imission Control

The establishment and operation of installations which may have harmful effects on the environment are regulated by the Federal Immission Control Act (Bundes-Immissionsschutzgesetz). The installation in the present case was not subject to licensing under this act. However, the Regional Authority, when deciding on the building licence, was under an obligation to examine whether the base station was compatible with the regulations of the Immission Control Act, the relevant provisions of which read as follows:

Article 22

Obligations of Operators of Installations not Subject to Licensing

“(1) Installations not subject to licensing shall be established and operated in such a way that

1. harmful effects on the environment which are avoidable according to the state of the art are prevented,

2. harmful effects on the environment which are unavoidable according to the state of the art are kept to a minimum, and

3. wastes produced during the operation of such installations can be duly disposed of.”

Article 23

Requirements Concerning the Establishment, Nature and Operation of Installations not Subject to Licensing

“(1) The Federal Government is authorised, after hearing the parties concerned, to provide by ordinance, with the consent of the Federal Council (Bundesrat), that the establishment, nature and operation of installations not subject to licensing satisfies specific requirements with a view to protecting the general public and the neighbourhood from harmful effects on the environment ... as well as taking precautions against such harmful effects on the environment, which means in particular that

1. ...

2. the emissions released from such installations shall not exceed specified limits”

On 16 December 1996 the Federal Government iussed an ordinance under Article 23 § 1 of the Immissions Control Act (26. Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes). In its first appendix, the Government set specified limits which must not be exceeded by
high-frequency installations.

2. Proceedings before the Administrative Courts

The proceedings before the Administrative Courts are governed by the Code of Administrative Procedure (Verwaltunsgerichtsordnung), Article 86 § 1 of which reads as follows:

Article 86

“(1) The Court examines the facts of the case ex officio. It is not bound by the parties’ submissions or by their requests to take evidence.”

COMPLAINTS

1. The applicant complained under Article 8 § 1 of the Convention that the radiation emanating from the base station seriously damaged his health.

2. The applicant further complained under Articles 8 § 1 and 6 § 1 of the Convention about the domestic courts’ refusal to take evidence in his case.

3. Invoking Article 1 of Protocol No. 1 to the Convention, the applicant finally complained that the value of his plot of land had been considerably reduced by the existence of the base station on the adjacent plot.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The applicant complained that the radiation emanating from the base station damaged his health. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

A. The parties’ submissions

1. The applicant

The applicant alleged that the safety guidelines issued by the Federal Government were not in accordance with the law, because they did not duly take into account the broad scientific discussion and recent research on possible harmful effects of high-frequency radiation, in particular with respect to non-thermal effects. The guidelines were based on the recommendations of certain commissions which were neither democratically elected nor controlled and were insufficient to protect the population from the long-term effects of radiation. He further alleged that the Federal Government had in the past failed to instigate sufficient research into the area of health dangers caused by high-frequency radiation. Relying on abstract scientific conclusions, they had, in particular, failed to examine specific damages which had occurred in the vicinity of mobile phone base stations. The Government’s approach led to an unacceptable delay until the dangerous effects of mobile phone stations would finally be accepted.
By only selectively accepting the results of scientific research, the Government did not take into account serious indications and evidence as to the harmfulness of exposure to radiation. Further to a number of publications, the applicant submitted open letters published in 2002 by a substantial number of doctors (Bamberger Appell, Freiburger Appell) who considered that the exposure to high-frequency radiation had harmful effects on their patients’ health and well-being. In his observations in reply submitted to the Court on 24 November 2005, the applicant pointed out that the Federal Government had been the majority share holder of T-AG, thus creating an additional responsibility on the side of the Federal State.

2. The Government

The Government alleged that they had taken all necessary steps to protect the public from possible harmful effects of radiation. The legislator had taken existing concerns seriously and had weighed the interest in protection from radiation on the one hand against the public interest to have access to mobile communication and economic interests on the other. The limits laid down in the safety guidelines were based on comprehensive research and were up to date with the established state of research. The German Commission on Radiological Protection and the Federal Office for Radiation Protection continually examined the current status of national and international research. There were no established or reproducible scientific findings to substantiate that health injuries could occur as long as these limits were complied with. Isolated indications of effects relevant to human health could not be confirmed by follow-up studies. This also applied to the scientific reports submitted by the applicant. Furthermore, the Government continued to instigate research and to improve public information. Approximately fifty research projects were currently conducted within the framework of the German Mobile Telecommunication Research Program.
It followed that the Government had fulfilled its positive obligations under Article 8 of the Convention. With regard to the Federal Government’s participation in T-AG, the Government pointed out that the applicant had not raised this issue either in the proceedings before the domestic courts or in his previous submissions to the Court.

B. The Court’s assessment

1. General principles

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. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other 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 Hatton and Others v.
the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII; Moreno Gómez v. Spain, no. 4143/02, § 53, ECHR 2004‑...; Luginbühl v. Switzerland (dec.), no. 42756/02, 17 January 2006; and Giacomelli v. Italy, no. 59909/00, § 76, ECHR 2006‑...).

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 even in the sphere of the relations of individuals between themselves. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or in terms of 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. 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 a certain relevance (see Hatton, cited above, § 98; Moreno Gómez, cited above, § 55; López Ostra v. Spain, judgment of
9 December 1994, Series A no. 303‑C, § 51; and Giacomelli, cited above,
§ 76).

The Court considers that in a case such as the present one, which involves government decisions affecting environmental issues, there are two aspects to the examination which it may carry out. Firstly, it may assess the substantive merits of the Government’s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Hatton, cited above, § 99; and Giacomelli, cited above, § 79).

In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, § 100; Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77; Taşkın and Others v. Turkey, no. 46117/99, § 116; Luginbühl, cited above; and Giacomelli, cited above, § 80).

2. Application of the above principles in the instant case

The Court notes that the applicant’s house is situated at a distance of approximately twenty metres from the phone base station. It is not in dispute between the parties that the applicant’s plot is exposed to a certain degree of radiation emanating from the base station. Furthermore, German law grants the applicant the right to contest the impugned building license before the domestic authorities. Under these circumstances, the Court considers that Article 8 of the Convention is applicable to the present case (see, mutatis mutandis, Ruano Morcuendo v. Spain (dec.), no. 75287/01,
6 September 2005; and Luginbühl, cited above).

As noted above, broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of interference by a public authority with Article 8 rights. The Court is not therefore required to decide whether the fact that the German Government was, at the time the impugned licence was issued, the majority share holder of the
T-AG is sufficient to establish direct State responsibility and whether the applicant has validly introduced this fact into the proceedings before the Court.

Turning to the question whether the impugned licence was in accordance with the law, the Court notes that the licence was based on the pertinent legal provisions and that the emanations from the base station undisputedly stayed well within the limits of the pertinent safety guidelines issued by the Federal Government.

The Court further accepts that the granting of the impugned licence pursued a legitimate aim, namely the interest in the economic well-being of the country, as well as the interest of the general public to use mobile phone technology.

Having regard to the question whether the domestic authorities struck a fair balance between the public interest and the applicant’s interest to be protected from potentially harmful radiation, the Court notes that both parties have submitted a number of expert reports in support of their respective allegations. While the applicant has submitted a number of scientific reports indicating that there exists a controversial scientific debate as to possible harmful effects of radiation emanating from mobile phone base-stations, he conceded that currently there existed no conclusive evidence as to the harmfulness of radiation which stays within the limits permitted by the pertinent guidelines.

The Court further observes that the safety guidelines on which the domestic authorities relied were based on the concurring recommendations issued by several national and international advisory bodies. The Court considers that a governmental decision-making process concerning complex issues of environmental and economic policy, 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 (see Hatton, cited above, § 128; Giacomelli, cited above, § 83). In this respect, the Court notes that the Government have undertaken not only to actively promote research in the relevant area, but to regularly review if the state of research necessitated an adjustment of the pertinent regulations.

As regards the procedural aspects of the case, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments which he considered relevant to his case. The factual and legal reasons for the decisions dismissing his action were set out at length by three court instances, including the Federal Constitutional Court.

The Court further observes that the domestic courts examined the applicant’s offers of proof and gave ample reasons why they decided not to take the requested evidence. The Court notes, in particular, that the Federal Constitutional Court considered that the area of scientific research into possibly harmful effects of radio frequency on the human body was so complex that it was primarily up to the Government as secondary lawmaker to constantly review the international state of research and to assess the potential dangers of radiation. In the absence of any conclusive evidence that the measures taken by the Government were inadequate, the courts were not bound to take evidence in the applicant’s specific case.

In these circumstances and as long as there exists no conclusive evidence as to the harmful effects of radiation which stays within the pertinent safety guidelines, the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right 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 either in the preparation of the relevant safety guidelines for exposure of the public to radio-frequency energy or in the administrative court proceedings on the applicant’s case (see, mutatis mutandis, Luginbühl, cited above).

It follows that the applicant’s complaint under Article 8 is manifestly
ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

For the same reasons as those invoked under Article 8 of the Convention, the applicant complained about a violation of his right to life within the meaning of Article 2 of the Convention.

Having regard to its findings under Article 8, the Court considers that also this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant further complained about the domestic courts’ refusal to take evidence on the causation of his own health damages and of those of his poultry. He furthermore alleged that he had been denied any opportunity to contest the pertinent safety guidelines before the domestic authorities.
He invoked Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Referring to the reasons given by the domestic courts, the Government maintained that the domestic authorities had thoroughly examined the applicant’s case and that their decision not to take evidence could not be considered as arbitrary.

Assuming applicability of Article 6 § 1 to the present case, the Court reiterates, at the outset, that Article 6 of the Convention, while guaranteeing the right to a fair hearing, does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I; and Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140,
p. 29 §§ 45 and 46).

Having regard to its findings under the procedural aspect of Article 8, the Court considers that the domestic authorities’ refusal to take evidence in the applicant’s case cannot be regarded as arbitrary. In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6 § 1 of the Convention.

It follows that the applicant’s complaint under Article 6 § 1 is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

The applicant finally complained under Article 1 of Protocol No. 1 to the Convention that the value of his plot of land had been considerably reduced by the existence of the base station on the adjacent plot.

Having regard to its findings under Article 8 of the Convention, the Court considers the case does not raise a separate issue under Article 1 of Protocol No. 1.

V. ARTICLE 29 §3 OF THE CONVENTION

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President