"Or families or discos": six years of battle against noise in Orense street in Madrid

Now, María recognizes that the sentence is a “triumph” not only for her, but for the entire area surrounding that street in Madrid, a 650-meter corridor of homes and offices full of ground floors where there are a dozen nightclubs and which was declared an environmental protection zone in 2015 precisely because of the high noise levels. She was called to testify as a witness in the trial that was held as a result of the demand of the community of neighbors against that nightclub. “At first I didn’t get involved, because you think that this never amounts to anything and you get particularly scared, but this shows you that nightlife cannot coexist with families,” she celebrates.

Jorge Pinedo, an environmental lawyer who represented the community of neighbors in the trial, acknowledges that the fine imposed by the court “is fine”, although he believes that criminally it is “low”. “I suppose that the fine will hurt them and it is true that they cannot make another mistake, but the place is not closed because now it is run by another company that has no record. They disable the previous one, but the site can continue to work, ”he laments.

The sentence condemns the owners of Rococo as perpetrators of a crime against the environment and imposes a sentence of one year, three months and one day in prison and a fine of 2,160 euros, as well as disqualification from working in places of leisure night for 18 months. The management company will have to pay 180,000 euros and will not be able to operate again for the next two years.

“Between the nightclub located at minus 1 and the affected buildings, located on the 4th floor, there were two office floors, and even on the 8th floor the sound levels exceeded 6 dBA, in addition to the constant affectation in the common areas, garages and stairs, according to witnesses, neighbors of the building and whose homes were not directly affected, “says the ruling. “The exposed findings already show, by themselves, that acoustic regulations have been repeatedly and seriously contravened, exceeding the limits established for the exterior by up to 22 dBA and those set for bedrooms by up to 7 dBA”, he adds.

Another club around the corner

The problem in general with these judicial processes, Pinedo points out, is the time that goes from when the neighbors begin to feel the noise until there is a sentence that condemns them. “Persecuting societies is very difficult, because they change, they put up a different society, which is a screen, they close the previous one but they continue with a new one without precedents. In addition, they are undercapitalized, you fine them, seize them and they have nothing,” says this environmental lawyer, who chairs the association Juristas contra el Ruido and who also represents the neighbors in a case very similar to that of Rococó, that of the nightclub Lemon. The situation is so similar that both rooms are located a few meters apart.

“One night I was watching an episode of Game of Thrones with my wife and while they were slitting one of their throats on the screen, with the volume that a scene like this has, the soundtrack was the music of the disco. Surround sound”, ironically Enrique Francés, also a resident of Orense, 14, but on the left side. He and his family began experiencing the noise in late 2015. “Hell begins when Lemon opens but before it was called Roxy, Glass, Taste…” he says.

In the beginning, the noise was mainly environmental, which after some reforms stopped being so intense, but the real problem was –and is– a type of noise that is transported through the beams and walls and that even leads to the fifth floor of the building, where Frances lives. “The problem is the low frequencies that are transmitted by the structures. Even if the ambient noise levels are not very high, you put your ear to the pillow and listen to the thump thump. It is a poison that gets into you and undermines your existence, completes Pinedo.

Frances’s son was eight years old when the “hell” began. He couldn’t stand the noise. They put plugs on him but they fell off and they didn’t work either. “They took their voices away, but not the blow, everything reverberated, we had to take him to a psychologist because he had tremendous insomnia problems,” he says. The community of neighbors took the case to court and the case is now in the investigation phase, but years of calls to the Police, private noise measurements and direct complaints to the owners of the place took place to reach this point.

In 2015, the Azca area was declared by the Madrid City Council as a special acoustic protection (ZPAE)a specific regulation for areas of the city with very high noise levels that prevents, among other things, the new implantation, extension or modification of establishments such as nightclubs, restaurants-shows or café-shows, or discotheques, dance halls or bars. glasses.

Four years later, a ruling by the Superior Court of Justice of Madrid (TJSM) forced Lemon’s owner company, Nicojose SL, to close the club because it lacked a license. A couple of months later, the club reopened under the name of the company New Nicojose SL, despite the fact that the municipal regulation prevented it. “They close it in court because they didn’t have a license, the company that runs it puts a ‘new’ in front of it and the City Council arrives and gives a license to a nightclub with a capacity of 400 people. It’s crazy,” laments Pinedo.

After the reopening, Francés met with the new owners and forwarded their complaints to them. “The solution they gave me is that they paid me 2,000 euros a month to leave my house. They told me that it was much cheaper for them to pay me than to do soundproofing. One day I came back from watching soccer with my son and they were waiting for me at the gate to ask me what I was going to do,” he says. His family has lived in that apartment since 2004 and before that the house belonged to his wife’s grandparents. “I would have sold it and gone elsewhere, but my wife says why are we going to have to go because of some crazy people? The kids go to school across the street. I do not regret not having taken the money from them because also later who knows. You leave and they stop paying you after two months, ”he reasons.

Francés says he is desperate after years and years of administrative, legal and personal struggle. He says that the owners already know him and rebuke him on the street. He says that once he looked out onto the balcony, which overlooks the entrance to the nightclub, where he stands in line to enter, and the managers began to record him. He also believes that they have bought some doormen to know in advance when the Police arrive to measure noise levels and to be able to lower the volume before they take out the sound level meters.

Crimes against the right to health, home and family life

The conviction of Rococo is far from the first that the owners of a nightclub receive, although it is especially important because of what that area of ​​Madrid represents. “It is very important to know that in the end these behaviors have consequences. For some time now, most of the accusations of noise pollution end in a conviction”, explains in an interview with this newspaper the Madrid prosecutor specializing in the Environment, César Estirado, who personally intervened in the Rococó case.

Stretched recalls that these crimes related to noise and especially those caused by nightclubs and cocktail bars are especially serious because they violate the right to health, but also the right to family life or the inviolability of the home.

The European Court of Human Rights (ECHR) has repeatedly condemned the Spanish State for this reason. The first time in 2004, due to the complaint of a resident of Valencia with serious insomnia problems due to the opening of several bars and clubs around his house in the mid-1970s.

In that sentence, the ECHR stated that violations of the right to a home do not only include material damage, such as the search, but also intangible damage such as noise and other interference. Europe condemned Spain again for similar reasons in 2011 and 2018.

“The position of the ECHR is based on studies by the World Health Organization that speak of the serious psychological and physical problems that being subjected to an excessive volume of noise for a long time implies. That is already very clear. Not protecting a person in their home space against excessive noise, the European Court of Human Rights has told us, violates the right to health of people, to family life, to the inviolability of the home. The court equates it to an occupation of the house, that is, they do not let you live in your own house, ”explains the prosecutor.

In Spain, the Supreme Court has condemned on several occasions the owners of night bars and discos, although since the last reform of the Penal Code, in 2015, during the Government of Mariano Rajoy, it has been reducing some sentences imposed in previous instances. For example, in the case of a bar in Pasaia, in Gipuzkoa, which for more than a decade tortured the upstairs neighbors with noise. Between 2002 and 2013, the tenants of the houses in the block where the establishment was located had to face discomfort and thousands of complaints, as well as “adaptive anxiety disorders, with pharmacological treatment”.

The High Court reduced the sentence imposed by the Provincial Court from 3 years and 8 months in prison to one year and a fine of 1,800 euros. In the sentence, the judges did not question either the facts or the complaint, but instead charged against “glamorous errors in legislative technique” and a “thoughtless systematic organization” of its precepts of the reform of the Penal Code, which forced them to alleviate the miseries. Last year the Supreme Court reduced this type of sentence up to three times.

“Administrative regulation is very good and very complete, both at the state and municipal levels, for example in Madrid,” says Estirado. It is very good and it gives means to the town halls to act at a sanctioning level and corrective measures are imposed”. The prosecutor acknowledges, however, that the Supreme Court has shown a disparate criterion as a result of the “improvable” wording of the reform of the Penal Code, but in any case, he says, “the judges urge the legislator to review it” because the penalties are ridiculous for the seriousness of the facts. In any case, he believes that the situation, even despite the sales, is not at all “impunity.”

In what Estirado does agree with the lawyer Pinedo is that the times that go from the beginning of the problems until there is a conviction are very lax. “When people decide to file a criminal complaint, they are already very burnt out, because before coming to the prosecutor, people have gone to the police eight times, they have filed complaints with the City Council…”. This is the case of Enrique Francés, who after almost ten years of bad sleep and dozens of complaints admits that he is “discouraged”. Maria didn’t even get to this point and decided to leave. “It gives you anxiety, depression. You have to medicate. It destroys family and neighbor relationships. It’s like a pandemic, deep down, for those who live there,” summarizes Pinedo.