In an analogous vein, resolution #9150-98 at 18:33 hours on December 22, 1998, contains the following reasoning:
\"All public agencies involved in such events must take note that, in accordance with the rights protected by the Political Constitution, so-called 'patron saint festivals' and fairs that, due to their size, resemble them cannot be held unless the necessary measures are previously taken to guarantee public health and tranquility, so that these are not altered beyond what is tolerable. It is also necessary to point out that the interested communities have the right to know the measures that have been adopted, in order to challenge those they consider might affect them, such as the suitable location, street closures, authorization of high-volume sound equipment, sanitary services, sale of liquor involving scandal, and in short all those disturbances that entail a sacrifice of their usual tranquility beyond what is reasonable and a danger to public health. (...)
\"the respondent Municipality must be warned that, although it is true that the respondent Ministries granted the requested permits, it is within its competence and obligation to carefully analyze the location of the Celebrations and the strict compliance with the given provisions, since these are activities carried out in its canton.\"
And it is also worth citing judgment #3619-99 at 13:12 hours on May 14, 1999:
\"It must be taken into account that the importance of the place where this series of events will be located lies not only in the safety and health of the people, but also in their right to rest, freedom of transit, and public tranquility by not being forced to endure intolerable situations they suffer when residing near the celebrations.\"
Resolutions that grant constitutional rank to the right of individuals not to be disturbed in their home due to noises that are bothersome to them, especially during rest hours.
Alongside these considerations, it is deemed necessary to elaborate on the situation set forth in the amparo, as it is known that, for some time now, disagreements related to noise caused mainly by recreational establishments, whether with ambient music or live shows, have increased. Internationally, the issue of noise has been addressed as a public health problem. A group of experts from the World Health Organization drafted the so-called guidelines for urban noise in London, in 1999 (http://www.cepis.ops-oms.org/bvsci/e/fulltext/ruido/ruido2.pdf). In them, noise is defined as an unwanted sound and the main sources of urban noise are identified as traffic –motor vehicle, rail, and air–, construction, public works, and the neighborhood. Within this last category, neighborhood noise, that produced by restaurants, cafeterias, discotheques, music –live or recorded–, sports competitions, play areas, parking lots, and domestic animals stands out. This type of noise lacks sufficient regulation. The Organization emphasizes that noise pollution, unlike other forms of pollution, continues to increase unsustainably with the harmful consequences it has been revealed to have for health, differentiating seven distinct types of after-effects: effects on hearing, sleep, physiological functions, mental health, performance, behavior, and combined effects of noise from mixed sources. In the specific case of effects on sleep –linked to establishments that remain open during nighttime hours– it is explained that uninterrupted sleep is a prerequisite for good physiological and mental functioning. Likewise, the primary effects of its disruption are “difficulty falling asleep, sleep interruption, alteration in sleep depth, changes in blood pressure and heart rate, increased pulse, vasoconstriction, variation in respiration, cardiac arrhythmia, and greater body movements”; while the secondary effects –noticeable the following day– consist of “perception of lower sleep quality, fatigue, depression, and reduced performance”. Thus, the complaint of the petitioner and the active coadjuvants must be analyzed not only as linked to the right to privacy, but also to the right to health.
This right, derived from our constitutional text, from norms 21 and 73, is equally regulated in international law provisions, both as a purely health problem and as an environmental one. In the first condition, it appears in the texts of the Protocol of San Salvador of 1988 to the American Convention on Human Rights (Everyone has the right to health, understood as the enjoyment of the highest level of physical, mental and social well-being, Article 10.1); the International Covenant on Economic, Social and Cultural Rights of 1966 (The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Article 10.1), and the Universal Declaration of Human Rights (Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, Article 25). Belonging to the second category are the principles enunciated at the Stockholm Conference, of October 1972 (Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations, Principle 1) and at the United Nations Conference on Environment and Development, the 1992 Rio Declaration on Environment and Development (Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature, Principle 1).
In domestic Costa Rican law, several provisions allude to the issue of noise, either generally or for specific cases. Specifically, the General Law of Urban Leases, for example, qualifies the carrying out of noisy activities as abusive enjoyment of the property by the lessee, which would allow the property owner to invoke the resolution of the contract (Article 54). The Mining Code, for its part, considers harmful noise a factor of environmental deterioration (Article 103). Now, with regard to the case under study, the general provisions of the Regulation for the Control of Noise Pollution –Executive Decree #28718-S of June 15, 2000– establish a framework to regulate it, defining noise as “undesirable or disturbing sound that psychologically or physically affects the human being or exceeds the limitations established in this Regulation” (Article 3) and foreseeing parameters of a temporal nature –it establishes a daytime schedule, from 6:00 a.m. to 8:00 p.m., and nighttime, from 8:00 p.m. to 6:00 a.m., except in relation to Executive Decree #11492-S which determines it from 6:00 a.m. to 6:00 p.m.– and local nature –it classifies zones as urban-residential, commercial, industrial, and tranquility (Article 4)– to oversee it. Similarly, the Procedure for Noise Measurement, Executive Decree #32692-S of August 9, 2005, in its Article 3, on definitions, attributes to the word noise the meaning of “mixed and disorderly sound or set of sounds, undesirable or disturbing that psychologically, physically or in any other way affects the human being or that exceeds the established regulatory limitations”. The regulatory provisions reviewed find, in turn, legal basis in the Organic Law of the Environment and the General Health Law, which classify noise as a form of atmospheric pollution (Articles 60 and 62 of the former, 294 of the latter) and link it to human health (Article 59 of the cited Organic Law).
In light of the legal framework just described, several inconsistencies detected in this amparo are concerning, since on one hand the noise problem the plaintiff claims to suffer is minimized, alleging that the sanitary requirements needed by a premises of that nature are fully met; but on the other, the active coadjuvants reaffirm the petitioner's accusations, and the police reports of October 20, December 3 and 4, all dates of 2005, state that various noises produced by the premises could be heard from the plaintiff's home: music at high volume, voices, and automobiles. Furthermore, this Court notes with attention that the Ministry of Health authorized a sound confinement plan “on the understanding that the responsibility for the effectiveness and proper functioning of the Plan (...) is exclusively that of the owner and the responsible professional”, a warning that must be contextualized within the oversight responsibilities that also correspond to the Ministry and the Municipality of Naranjo, as protector of the inhabitants' health. The interventions of the two respondent agencies have not meant a clear response to the interests of the neighbors who have exposed the nuisances caused by the discotheque's operation. In the case of the Municipality, the complaint was answered nine months later, assuring that an investigation would be carried out, but limited to the events of February 2005, which gives reason to understand that continuity of the study would be omitted (folio 19). Regarding the Ministry of Health, the only report on record is that contained in official letter RCO-URPAH-365-2005 of November 30, 2005, in which, without technical parameters, it is assured that there is no nuisance for the neighbors (folio 94). A visit scheduled for December 3rd is alluded to, the holding and result of which are unknown, because the date on which the report was issued is prior. Consequently, in application of the precautionary (Article 61 of the Organic Law of the Environment and 15 of the Rio de Janeiro Declaration) and pro homine principles, in case of doubt, this Chamber inclines towards protecting the rights to health and an environment free of noise pollution of the plaintiff and the active coadjuvants, granting the amparo, with the consequences detailed below.
It must first be clarified, however, in relation to the brief presented by the representatives of the commercial premises, that although they are also holders of a fundamental right, such as the freedom of enterprise, which for this specific case implies the right to start a business, the exercise of that right is affected by one of the general limits for fundamental rights, which is not causing harm to third parties. Here, this Chamber has it as proven that the right to health and tranquility of several local neighbors was jeopardized. They attempt to demonstrate, with the signatures of other neighbors, on folio 142, that no harm is produced. However, with this, what can be concluded is that there is no unanimous perception within the community about the nuisance that the noise from the premises can cause, since the evidence this Chamber has taken –the active coadjuvancy and the police reports of October and December– shows that the problem is not a product of the plaintiff's imagination or bad faith, as they try to make it seem. Nor is it a matter of emptying her freedom of commerce of content, ordering, for example, the definitive closure of the premises, but rather that its development occurs within channels of respect for the rights of others, with adequate oversight by the authorities responsible for defending the inhabitants' health.
Based on the foregoing, the following is adopted as the effects of granting the amparo: regarding the Ministry of Health, an order is issued to Luis Edgardo Quesada Quesada, in his capacity as Director of the Área Rectora de Salud of Naranjo, so that within fifteen days, counted from the notification of this judgment, he verifies whether the noise confinement plan approved by the Ministry is being complied with. If this is not the case, he must issue the pertinent sanitary order as soon as possible. In any case, he must continue to exercise controls, at least monthly, over the activity of the premises, in relation to noise pollution. As for the Municipal Mayor of Naranjo, Mario Solís Rojas, he is also ordered to immediately arrange what is necessary to monitor that the operation of the local establishment in question does not disturb the neighbors' tranquility, both regarding noise and the strict compliance with the permitted hours.