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Commissioner and Ombudsman for Future Generations Take Stand in Relation to Proceedings Launched Due to Noise Complaint
Such proceedings in which the authority acts without applying the available official instruments and the discovery process, and without sanctioning the omission cause an impropriety related to the rule of law, and to the right to fair authority proceedings and to a healthy environment, as was concluded by the Commissioner for Fundamental Rights and his Deputy Commissioner responsible for the protection of the interests of future generations.
A complainant from the settlement of Göd turned to the Office of the Commissioner for Fundamental Rights to complain about the unfruitfulness of the proceedings launched due to the loud music played from the outdoor terrace of the catering unit operating next door to her property and to other noise exposure caused by the guests. According to her petition, during her pregnancy and also later on when she stayed home with her baby, music was played incessantly in her neighbourhood, despite the proceedings of the local government bodies.
In their joint report on Case No. AJB-1365/2020, Dr. Ákos Kozma and Dr. Gyula Bándi revealed that the town clerk had received such complaints on several occasions; he inquired into the operation of the catering unit, held consultations, and prepared a draft agreement. The town clerk was fully aware of the fact that the noise and loud music were a considerable nuisance for the residents; however, he failed to notice that no request to define the noise emission limit was submitted, nor was its necessity raised during the proceedings. The town clerk initiated that the municipal council discuss and decide on the rules of night opening hours. With time, police measures became more and more frequent, and complaints were submitted on a weekly basis by several complainants. At the same time, the town clerk did not check compliance with the legal provisions because he did not appropriately clarify the facts of the case, nor did he impose any sanctions. By reference to infringement, the Pest County Government Office annulled the town clerk’s decision on the opening hours.
In full agreement with the decision of the Pest County Government Office annulling the town clerk’s decision, the Commissioner for Fundamental Rights and the Ombudsman for Future Generations established that such proceedings in which regarding a noise complaint, the authority acts without applying the available official instruments, and the discovery process, and without sanctioning the omission cause an impropriety related to the rule of law, as well as to the right to fair authority proceedings and to a healthy environment.
Owing to the disturbance, the complainants may launch a procedure founded on the rules of property or neighbouring rights. The Ombudsman and the Deputy Commissioner concluded that the town clerk had not committed an omission by not opening a property protection procedure, for such procedures are launched upon request. The relevant procedural rules do not allow for issuing a call for missing documents, thus it was a matter of the the complainant’s decision that no proceedings were launched. At the same time, they deemed it important to mention in general that in order to enhance the enforcement of citizens’ rights, it is indispensable that the town clerk authority inform those turning to it about the property protection procedure on the substance (i.e. the deadline for its launching, its legal background, the possibilities of the legal assessment of disturbance, the various procedures that can be opened by the town clerk and the court), and also that the aspects of environmental protection are taken into consideration when making a decision.
With a view to remedying the fundamental rights-related impropriety exposed by the inquiry and to its future prevention, by reference to Section 32(1) of the Ombudsman Act, Dr. Ákos Kozma and Dr. Gyula Bándi called on the Town Clerk of Göd Municipality to pay particular attention to the handling of similar residential complaints, and to apply – in justified cases – the most efficient measures provided by law without delay. In this context, they urged the town clerk to provide proper information to those turning to him about the possibility to launch a property protection procedure; moreover, to conduct the necessary proceedings in order to stop the noise emission, in accordance with the substance of the decision of the Government Office, and to promote – by imposing sanctions if necessary – the culture of compliance.
For the report, please click on the following link: AJB-1365/2020.