FOURTH SECTION

DECISION

Application no . 14217/10 Wiktoria STRZELECKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 December 2014 as a C hamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 1 March 2010,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

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

1 . The applicant, Ms Wiktoria Strzelecka , is a Polish national, who was born in 1924 and lives in Starachowice . She is represented before the Court by Ms M. Cedro-Szyba , a lawyer practising in Kielce.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska , of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. The background

4 . On 24 August 2000 the applicant signed a lease contract with the Starachowice Communal Housing Community, “TBS” (“ Towarzystwo Budownictwa Społecznego ” ) concerning a two-room flat located in Starachowice . The applicant knew the flat as it had been rented until then by her son-in-law. The flat measured forty-eight square metres and the applicant was the only tenant. The applicant was to pay rent in the amount of 268 Polish zlotys (PLN).

5 . The building in which the applicant ’ s flat was located was owned by the Starachowice Municipality but managed by the TBS, a legal entity designed to provide low-rent housing to households of modest means and financed by the State-owned Housing Fund ( Krajowy Fundusz Mieszkaniowy ). From 2007 the applicant ’ s flat was managed by another company. The Government submitted that it had never been considered as social housing but as low-rent accommodation for the less well-off.

6 . The applicant ’ s rent, which included central heating, cold water and other charges, was increased on several occasions, and presently amounts to PLN 530.

7 . The applicant has been paying the rent irregularly, apparently contesting the amount due for central heating, as the flat was always cold because of the poor state of the windows. Moreover, her heating costs increased as she had refused to install indicators of actual consumption of heat on her radiators. After several years she accumulated substantial debt. In 2006 the TBS obtained a court judgment against the applicant, and her granddaughter who was living with her, ordering them to pay maintenance charges. It appears that the court bailiff seized part of the applicant ’ s pension in execution of this order.

8 . In 2009 the Starachowice Municipality agreed to cancel the applicant ’ s debt in the amount of PLN 9,600 provided that the applicant continued to pay monthly rent. Afterwards another debt of PLN 3,900 was not cancelled because the applicant had failed to comply with one of the conditions for cancellation that is to continue paying the maintenance in full. In 2013 the municipality again negotiated with the applicant to cancel her debts upon the condition of her payment of the rent in full in 2014. The municipality agreed to cancel 100% of overdue interest and 50% of the main debt. The remainder of the applicant ’ s debt of PLN 18,000 was spread into 402 payments of PLN 50.

9 . Since 2001 the applicant has been receiving a monthly housing benefit in an amount which started at PLN 280 and recently reached PLN 500. This benefit, designed to help cover heating costs during winter months, was paid directly to the company managing the building. It was paid on the basis of administrative decisions which covered period from two years to several months per year. It appears that since 2008 the applicant has been receiving the benefit without interruption.

2. The state of the flat

10 . Since 2001 the applicant has repeatedly complained to the TBS, and later to the municipality, that the state of the flat was unsatisfactory. She submitted that the windows were very old and poor fitted, and she could not open or close them.

11 . As early as March 2001 the TBS had acknowledged that the windows needed to be changed. However, it has been postponing the works due to the applicant ’ s non-payment of her debt.

12 . In 2007 the applicant lodged a civil action against the TBS in which she sought payment and to be allocated another flat.

13 . As part of the proceedings an expert opinion was ordered. The opinion submitted to the court on 21 May 2007 stated, in so far as relevant:

... “2. The windows are in very poor general condition. The glass is broken in two windows and cracked in others. Windows ’ s frames and glass are covered in dust and were not cleaned in years. The wooden frames are dirty and have paint missing, I think they must last have been painted about thirty years ago. About half the putty is missing, and the glass is actually sticking out of the frame, which causes a real danger of the glass falling out on to people on the pavement. No sign of using widely available window seals. I consider that due to dirty windows the amount of light in the flat is reduced by 30-40%.

3. In general all the walls are covered with mould, dirt and residue from the gas cooker. The same applies to the furniture. There is a discernible smell of mustiness in the flat.

4. The air vents (size 15 x 15 cm) in the kitchen and bathroom are not working properly, no draught was perceived; the total surface of the openings was covered with dust and soot, which is probably what blocked them ... ”

14 . In his conclusions the expert considered that the damp and mould had been caused by the total lack of ventilation in the applicant ’ s flat. The current state of the flat was “an insult to basic requirements for inhabited accommodations”. The state of the windows places passers-by at risk, and they need urgent replacement. In general the expert considered that the applicant should be held responsible for the state of the flat due to her total lack of care, cleaning and maintenance. The expert pointed to the fact that in the neighbouring flats the windows were as old as the applicant ’ s but well maintained and the flats had not problem of mould or ventilation.

15 . On 25 June 2007 the Starachowice District Court dismissed the applicant ’ s action. The court established that at the time of signing the lease agreement the applicant had acknowledged the good overall state of the flat except for a broken glass in one window. She noticed no mould or problems with closing and opening of the windows.

The court concluded that the state of the flat had deteriorated due to the applicant ’ s negligence in ventilating and cleaning it. The court also agreed with the TBS that replacement of the windows may be made conditional upon the applicant paying the debts she owned to the community.

16 . The applicant lodged an appeal but on 7 November 2007 the Kielce Regional Court dismissed it.

17 . In 2008 an emergency chimney sweep was organised. At the same time the Mayor confirmed to the applicant that “the Municipality ’ s obligations as regards refurbishment of the flat will be fulfilled after you pay your financial debts for the [maintenance of the] flat.”

18 . The windows remain unchanged and no works have been carried out.

3. The eviction order

19 . It appears that the applicant occupied from the beginning her flat together with her granddaughter, M, and her child. In 2003 a second child was born. Since then the applicant has been occupying the small bedroom and her granddaughter, with her children, the other room.

20 . The relationship between the applicant and her granddaughter deteriorated. The applicant claims to have been insulted and beaten up by her granddaughter on many occasions. On 22 January 2002 the granddaughter was convicted by the Starachowice District Court of verbal and physical abuse of the applicant. She was sentenced to eight months ’ imprisonment, suspended for three years.

21 . On 23 December 2008 the applicant lodged a civil action with the Starachowice District Court for eviction of her granddaughter and her children.

22 . On 21 May 2009 the Starachowice District Court allowed the applicant ’ s action and ordered the eviction of M., with her two children (file no. I C 1/09). At the same time it ordered that the defendants be allocated social housing by the municipality. The execution of the judgment was to be stayed until they had been allocated social housing.

23 . On 18 June 2009 the judgment became final and binding.

24 . The applicant asked the municipality on many occasions to enforce the judgment by granting social housing to M and her children.

25 . The Starachowice Mayor replied to the applicant on 5 May and 16 December 2010 and on 13 April 2011 that her request would be dealt with speedily.

26 . On 2 January 2012 M rejected the municipality ’ s offer of a social housing. Afterwards in August 2012 the municipality proposed her another flat for rent which she accepted.

27 . The applicant submitted that in October 2012 her granddaughter had been granted a social housing and had moved out.

4. The applicant ’ s health condition

28 . In 2012 the applicant was declared as suffering of permanent disability since 1999. It appears that she suffers of heart and lungs problems and has impaired hearing.

B. Relevant domestic law and practice

29 . The December 2006 Amendment to the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code ( Ustawa o ochronie praw lokator ó w , mieszkaniowym zasobie gminy i o zmianie kodeku cywilnego , “the 2001 Act” ) added a new provision (subsection (5)) to section 18, which makes the municipality liable, under the rules of tort, for any damage sustained by the landlord on account of the municipality ’ s failure to provide the tenant with social housing. This provision reads:

“(5) If the municipality has not provided social housing to a person who is entitled to it by virtue of a judgment, the landlord shall have a claim for damages against the municipality on the basis of Article 417 of the Civil Code.”

Consequently, the municipality ’ s failure is statutorily deemed to be an “unlawful omission” within the meaning of Article 417 of the Civil Code.

30 . Article 417 of the Civil Code reads in so far as relevant:

“1. The State Treasury, municipality or another legal person wielding public power by virtue of the law shall be liable for damage caused by an unlawful act or omission in the exercise of that power.”

31 . The Supreme Court, in its ruling of 25 June 2008 (no. CZP 46/2008) concerning a claim for damages under section 18(5) of the 2001 Act read in conjunction with Article 417 of the Civil Code, confirmed that a landlord was entitled to full compensation for any damage sustained on account of a municipality ’ s failure to provide social housing to a tenant.

32 . Pursuant to section 18(3) of the 2001 Act, as long as the municipality has not supplied social housing, the tenant pays the same amount of rent that he would have paid if the tenancy had not been terminated. According to section 18 (1) and (2), other tenants in respect of whom the tenancy has terminated and who have not vacated the flat pay compensation to a landlord corresponding to the market-related rent that the landlord could normally receive. If such compensation does not cover losses incurred by a landlord, he may seek supplementary compensation.

33 . Section 19 of the 2001 Act provides that the provisions protecting the rights of the owner of the property may also be used to protect rights of a tenant.

34 . According to the Law of 21 June 2001 the tenant is supposed to keep his flat in a proper technical, hygienic and sanitary state. The tenant is responsible for minor repairs relating to normal use of the object of lease in particular repair and maintenance of windows and doors and paining of the doors and windows.

COMPLAINT

35 . The applicant complained without relying on any Articles of the Convention about her difficult situation steaming from the delay in enforcement of the eviction order against her granddaughter and the overall state of the flat.

THE LAW

A. Article 6 of the Convention

36 . The Court considers that the complaint about the authorities ’ failure to enforce the eviction order against M should be examined under Article 6 of the Convention. This Article, in so far as relevant, reads as follows:

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

37 . The Government submitted that the applicant failed to exhaust domestic remedies available to her. After the eviction judgment became final the Starachowice municipality was under obligation to provide M with social housing. Since they failed to do so it was open for the applicant to lodge a civil claim for damages from the municipality as stipulated in section 18 (5) of the 2001 Act taken together with Article 417 of the Civil Code. The Government referred to the Supreme Court ’ s jurisprudence which had confirmed the landlord ’ s right to full compensation for any damage sustained as a result of the municipality ’ s failure to provide social housing to the tenant.

38 . The applicant failed to comment on the admissibility or merits of the complaint relating to non-enforcement of the eviction judgment.

39 . The rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. Recourse should therefore be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. As a consequence, complaints intended to be made before this Court should have first been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV and Cardot v. France , 19 March 1991, § 34, Series A no. 200).

40 . The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see McFarlane v. Ireland [GC], no. 31333/06, § 107 10 September 2010 and T. v. the United Kingdom [GC] , no. 24724/94, 16 December 1999, § 55).

However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among many other authorities, Selmouni v. France [GC], no. 25803/94 , §§ 74-77, ECHR 1999 V and Knaggs and Khachik v. the United Kingdom ( d ec. ), nos. 46559/06 and 22921/06 , § 155, 30 August 2011).

42 . Turning to the particular circumstances of the case the Court notes that the eviction order given by the Starachowice District Court on 21 May 2009 became final and binding on 18 June 2009. However, the eviction of M was conditioned upon her receiving a social housing from the municipality. Thus the court stayed the execution of the judgment until social housing could be allocated to her. The Starachowice Mayor finally allocated a social housing to M in January 2012 but this offer was rejected by her. Few months later M accepted a different flat from the municipality and she vacated the applicant ’ s flat in October 2012.

43 . As indicated by the Government it would have been possible for the applicant to have brought a claim for damages against the municipality under section 18 (5) of the 2001 Act read in conjunction with Article 417 of the Civil Code. The Court notes that following an amendment introduced in December 2006, the 2001 Act clearly stipulates that the municipality is liable for its failure to provide the tenant with social housing in the execution of a final judgment. This remedy offers a possibility to obtain compensation, under the rules of tort, for damages sustained by the landlord on account of the municipality ’ s failure to act. This was confirmed by the domestic courts ’ case law, including the Supreme Court. The latter ’ s case ‑ law clearly confirms that a landlord is entitled to full compensation for any damage sustained on account of a municipality ’ s failure to provide social housing to a tenant (see paragraph 31 above). The Government underlined that the applicant could clearly take advantage of those remedies because they offer protection to owners (landlords) as well as to tenants (section 19 of the 2001 Act, see paragraph 33 above).

45 . However, the applicant did not to attempt to use this remedy. In this regard, the Court observes that the applicant did not offer any explanation as to why she failed to claim damages from the municipality.

46. Bearing in mind that applicants are required to use “any procedural means that might prevent a breach of the Convention” (see paragraph 39 above), the Court finds that the complaint is inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Article 8 of the Convention

47 . The parties disagreed as to who should be considered responsible for the bad state of the flat. The Government referred to the domestic courts ’ findings pointing to the applicant ’ s negligence as the main reason for the quick deterioration of the windows. Moreover, they considered inappropriate that the applicant had stopped paying maintenance costs for the flat, or had paid only a part of the sum due, because she had considered the quality of the services unsatisfactory. In such situation it was acceptable for the management company to postpone the changing of the windows until the debts were paid.

48 . The Court reiterates that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations between individuals.

49 . The Court had also held that Article 8 does not guarantee the right to have one ’ s housing problem solved by the authorities nor does it give a right to be provided with a home (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, § 99, 18 January 2001). While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision ( ibid ). In socio-economic matters such as housing the margin of appreciation available to the State is necessarily a wide one (see James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, p. 32, § 46; and Mellacher and Others v. Austria , judgment of 19 December 1989, Series A no. 169, p. 25, § 45; and, mutatis mutandis , Fadeyeva v. Russia , no. 55723/00, ECHR 2005 ‑ ...).

The Court has also held that the scope of any positive obligation to house the homeless must be limited (see Costache v Romania ( dec ), no. 25615/07 , 23 July 2012, § 21 and O ’ Rourke v. the United Kingdom ( dec. ), no. 39022/97) . ) . Thus, for example, in the case of Marzari v. Italy (no. 36448/97, 4 May 1999) the Court stated that a refusal by the authorities to provide housing assistance to an individual suffering from a serious disease might in certain circumstances raise an issue under Article 8 because of the special link between such refusal and the private life of the individual.

50 . Turning to the circumstances of the instant case the Court firstly observes that the authorities provided the applicant with the low rent accommodation and that the flat in question belonged to the Starachowice Municipality. It should be also underlined that the municipal authorities had cancelled one substantial debt accumulated by the applicant in 2009 (see paragraph 8 above). Afterwards she failed to comply with the terms of agreement with the authorities, in particular, to pay maintenance costs in full, and the second agreement to cancel her debt had not been finalised. Most recently, in 2013, the municipality again offered the applicant to cancel most of her debts and spread the payments.

The Court also notes that since 2001 the domestic authorities have been awarding the applicant housing benefits which, albeit not continuously, had covered for majority of her monthly maintenance costs of the flat (see paragraph 9 above).

51 . As regards the applicant ’ s living conditions it is to be noted that the flat was located in a block which was built in the 1970s. It was not contested by the Government that the flat had been in poor overall condition and particularly the windows had been old and dilapidated. The Court takes note of the domestic court ’ s findings that the windows had been in a correct state in 2000 when the applicant moved in. As established by the domestic courts she voluntarily swapped the flats with her son-in-law and the degradation of the windows happened later primarily due to her own lack of care (see paragraphs 14 and 15 above).

It is undisputed that the applicant is an old person with numerous health problems. The municipality acknowledged that the windows qualified for removal as early as 2001 however they have been postponing the works due to the applicant ’ s failure to pay monthly charges regularly and in full, thus accumulating debt towards the management company.

53 . The Court also does not find it established that the applicant ’ s living conditions were linked to any unlawfulness in domestic terms (see mutatis mutandis , Moldovan and Others , cited above, López Ostra v. Spain , no. 16798/90, 9 December 1994; Fadeyeva , cited above).

54 . Accordingly, and having regard to the margin of appreciation open to the State in this context, the fact that the applicant benefited from a low ‑ rent accommodation and housing benefit, the Court does not consider that the State has failed to ensure respect for the applicant ’ s private and family live.

55 . Having regard to all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President