FIRST SECTION

DECISION

Application no . 64719/09 Teresa WILK against Poland

The European Court of Human Rights (First Section), sitting on 17 October 2017 as a Committee composed of:

Aleš Pejchal , President, Krzysztof Wojtyczek , Jovan Ilievski , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 2009,

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 Teresa Wilk, is a Polish national who was born in 1938 and lives in Warsaw. She was represented before the Court by Ms M. GÄ…siorowska , a lawyer practising in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Woł ą siewicz , succeeded by Mrs 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. Proceedings before the Mayor of Warszawa- Ursynów

4. On 8 December 1992 the applicant instituted proceedings requesting that the Warsaw- Mokotów Municipal Office ( Urząd Dzielnicowy Gminy Warszawa- Mokotów ) order her neighbour , a certain K.K., to carry out works on his property in order to prevent the flow of excess rainwater which, as she claimed, was flooding her house.

5. On 27 June 1994 the Mayor of Warsaw- Ursynów (“the Mayor”) discontinued the proceedings. He found that the applicant ’ s neighbour ’ s house had been built in accordance with a plan previously approved by the district architect and that the situation complained of by the applicant did not warrant intervention by the construction supervision authority.

6. In response to an appeal lodged by the applicant and after remittal of the case by the Warsaw Governor (“the Governor”), on 25 September 1995 the Mayor again discontinued the proceedings. The Mayor considered that K.K. ’ s land was not the root cause behind the rainwater flooding the applicant ’ s property. The flooding could have been caused by the clogging up of the old rural drainage well system in the applicant ’ s street, which very probably resulted in the flow of excess rainwater onto the adjacent plots of land. Moreover, the applicant ’ s garage entrance was located seven centimetres below street level, which further increased the risk of its being flooded by rainwater. In addition, the flooding of the basement of the applicant ’ s house had been possibly caused by poor planning at the time of its construction and inadequate insulation of the basement walls.

7. Following a further appeal and remittal by the Governor, on 17 December 1999 the Mayor again discontinued the proceedings referring to the reasons previously given.

2. Proceedings before the construction supervision authority

8. In letters dated 22 June, 28 September and 6 December 1999, the applicant requested the Warsaw District Inspector of Construction Supervision (“the District Inspector”) to prevent the rainwater flooding of her house. She complained that the owners of the neighbouring plots had breached the relevant regulations on construction of buildings and requested the District Inspector to take appropriate measures to prevent further damage to her property.

9. On 7 January 2000 the District Inspector instituted the requested administrative proceedings.

10. On 19 May 2000 the District Inspector issued a second decision, in which he refused to institute the requested proceedings. He considered that the reasons for the flooding of the applicant ’ s house had been manifold, related mainly to the rapid urban development of this part of the city. The District Inspector concluded that he had no legal means at his disposal to remedy the situation. The applicant was advised to either address the Mayor directly with her complaints or to bring a civil action for the protection of her property rights.

11. Following another appeal by the applicant, on 25 March 2002 the Mazowiecki Regional Inspector of Construction Supervision (“the Regional Inspector”) quashed the District Inspector ’ s decision. The Regional Inspector noted that the impugned decision had been illogical, as the District Inspector could not refuse to initiate administrative proceedings which he had already initiated by virtue of his own decision of 7 January 2000.

12. On 27 February 2008 the District Inspector discontinued the administrative proceedings in so far as they concerned the quality of the road works carried out in the applicant ’ s street.

13. On 9 June 2008 and on 2 December 2008 the applicant filed a complaint with the Regional Inspector, requesting him to quash the District Inspector ’ s decision of 27 February 2008.

14. On 25 May 2009 the District Inspector discontinued the administrative proceedings in so far as they concerned the flooding of the applicant ’ s house. He found that the raising of the ground level of the applicant ’ s neighbours ’ properties together with the road works which had been undertaken to elevate the level of the street had contributed to the emergence of a rainwater drainage problem in the applicant ’ s neighbourhood . In his view, the occasional flooding of the applicant ’ s house had occurred not because of the two aforementioned factors, but could rather be explained by the overall rapid urban development of the entire neighbourhood . Lastly, the District Inspector noted that the Ursynów Municipality apparently intended to build a new rainwater drainage well system in the foreseeable future, but that this would first require the carrying out of land drainage works in this part of the city. In the light of his findings, he concluded that these matters did not fall within the competence of the construction supervision authority.

15. Following appeals by the applicant and the remittal of the case on two occasions, on 31 May 2010 and 14 January 2011 the District Inspector again discontinued the administrative proceedings, referring to the reasons given previously.

16. In response to yet another appeal by the applicant, on 10 March 2011 the Regional Inspector quashed the District Inspector ’ s decision. He reiterated that the flow of the underground water between the property in question and those adjacent to it had been caused by the road works and the neighbours ’ construction activities.

17. On 21 February 2012 the District Inspector issued a decision and ordered the City of Warsaw to undertake drainage works on part of the street adjacent to the applicant ’ s property. This decision was served on the applicant for information only as she was not a party to the proceedings.

3. Transfer of ownership

18. Meanwhile, on 20 December 2010 the applicant donated the house in question to her son G.W. He subsequently granted her power of attorney to represent him in the proceedings before the construction supervision authority. G.W. has not joined the proceedings before the Court.

4. Complaints about the excessive length of proceedings before the construction supervision authority.

19. On several occasions the applicant submitted complaints to the District Inspector alleging inactivity. She also lodged complaints under section 37 of the Code of Administrative Procedure with the Regional Inspector, in particular on 26 April 2006 and 16 March 2010. Her complaints were allowed by the Regional Inspector on 25 May 2006, 14 May 2009 and 14 May 2010.

5. Civil proceedings before the Warsaw Regional Court

20. On 2 April 2001 the applicant sued jointly the city of Warsaw and two of her direct neighbours in respect of the damage resulting from the rainwater flooding of her property.

21. On 7 March 2006 the Warsaw Regional Court dismissed the applicant ’ s claim and ordered her to pay the costs of the proceedings.

22. On 9 January 2007 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed an appeal lodged by the applicant. It shared the Warsaw Regional Court ’ s findings and confirmed that the applicant ’ s claims had become time-barred.

23. On 1 June 2007 the Court of Appeal rejected the applicant ’ s cassation appeal for failure to pay the applicable fee. The applicant ’ s appeal against this decision was dismissed by the Supreme Court ( Sąd Najwyższy ) on 24 August 2007.

B. Relevant domestic law and practice

1. Civil law remedy

24. Article 222 § 2 of the Civil Code of 1964 ( Kodeks cywilny ) provides that an owner whose use of his or her property has been interfered with by another person in a manner other than physical deprivation may demand that that person restore the original condition and refrain from any further interference.

2. Construction supervision

25. According to section 84 (1) of the Construction Act of 7 July 1994 ( Prawo budowlane ) (“the Construction Act”), the supervision of compliance with the laws governing construction falls to the construction supervision authorities.

3. The 2001 Water Law Act

26. According to section 29 (1) of the Water Law Act of 18 July 2001 ( Prawo wodne ), unless otherwise provided for by the law, a landowner may not alter the water conditions on his land and, in particular, the direction of the flow of rainwater or spring water in a manner that causes damage to neighbouring properties. It also prohibits the release of water or waste onto neighbouring properties.

27. Subsection 3 of the above provision specifies that, if alterations to the water conditions damage the neighbouring properties, the local mayor may issue a decision ordering the owner of the land to restore the original condition or to carry out works aimed at preventing further such damage.

COMPLAINTS

28. The applicant without referring to any provisions of the Convention complained about the delays of the administrative authorities in deciding her case. She also complained under Article 1 of Protocol No. 1, that for many years the authorities had failed to prevent the recurrent flooding of her house by excess rainwater flowing from the adjacent properties and the street.

29. The Court, being the master of characterisation to be given in law to the facts of the case, considers that the applicant ’ s complaints fall to be examined respectively under Articles 6 § 1 and 8 of the Convention.

THE LAW

A. The complaint under Article 6 § 1 of the Convention

1. The parties ’ submissions.

30. The Government submitted that in their view the applicant had failed to exhaust the available domestic remedies in respect of the complaint regarding the length of proceedings. Although the applicant had lodged a complaint under Article 37 of the Code of Administrative Proceedings, she had failed to lodge a complaint alleging the excessive length of the impugned proceedings with an administrative court. She had also failed to lodge a claim for compensation with the civil courts for damage caused by the length of the proceedings.

31. This argument was disputed by the applicant. She submitted that she had exhausted the available domestic remedies as she had lodged many complaints about the length of administrative proceedings.

2. The Court ’ s assessment

32. The Court does not need to rule on the Government ’ s objection regarding non-exhaustion as this complaint is in any event inadmissible for the following reasons.

33. The Court reiterates firstly that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on “arguable grounds”, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive as regards the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).

34. In the present case the Court notes that the applicant lodged an application with the construction supervision authority. In her application, the applicant alleged that the owners of the neighbouring plots had violated the relevant legislation on construction of buildings and requested the authority to take appropriate measures to deal with those violations (see paragraph 8 above). The administrative proceedings had therefore the purpose of establishing whether the owners of neighbouring plots had complied with the relevant legislation in force and applying the sanctions provided therein (see paragraphs 10, 14 and 16 above). The Court notes in this context that these proceedings could not have produced any results which would have been directly decisive for the applicant ’ s civil rights and obligations within the meaning of Article 6 § 1 of the Convention (see, among many other authorities, Balmer -Schafroth and Others v. Switzerland , judgment of 26 August 1997, Reports of Judgments and Decisions 1997 ‑ IV, p. 43, § 32; Sika v. Slovakia (3) , no . 26840/02, §§ 41 ‑ 43, 23 October 2007 ; and Ilona Kapitany v. Hungary ( dec. ) , no. 60759/00), 17 February 2004.

35. The complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

B. The complaint under Article 8 of the Convention

1. The applicant ’ s standing

36. The Court observes at the outset that the applicant transferred the property in question to her son G.W. on 20 December 2010 (see paragraph 18 above).

37. Accordingly, in so far as her complaint relates to the period after 20 December 2010, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. It follows that this part of the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The remainder of the complaint

(a) The parties ’ submissions

38. The Government submitted that the applicant had failed to exhaust the available domestic remedies. In their opinion the applicant had had at her disposal a variety of domestic remedies. In particular she should have lodged a claim under Article 144 in conjunction with Article 222 § 2 of the Civil Code and claimed that her neighbours had infringed her ownership rights. She could have also made use of various compensatory remedies.

39. The applicant disagreed. She claimed that she had unsuccessfully undertaken numerous steps in order to protect her house and property from recurrent flooding.

(b) The Court ’ s assessment

40. In the instant case the Court does not find it necessary to rule on whether the various remedies advanced by the Government would have been effective, since − even assuming that the applicant has exhausted the domestic remedies − it considers that this complaint is in any event inadmissible for the reasons set out below.

41. The Court draws attention to its settled case-law, according to which Article 8, while primarily intended to protect the individual against arbitrary interference on the part of the public authorities, may also entail the adoption by the latter of measures to secure the rights guaranteed by that Article even in the sphere of relations between individuals (see, among many other authorities, López Ostra v. Spain , judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51, and Surugiu v. Romania , no. 48995/99, § 59, 20 April 2004).

42. In relation to this, the Court reiterates that Article 8 of the Convention applies to severe environmental pollution which may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, even without seriously endangering their health (see, among others , Taykyn and Others v. Turkey , no. 46117/99, § 113, ECHR 2004-X).

43. The present case does not concern interference by public authorities with the right to respect for the applicant ’ s home but rather their alleged failure to take action to put a stop to breaches of the right relied on by the applicant.

44. The Court notes that the applicant ’ s house is located in a residential area of Warsaw. Since the 1990s her property has been recurrently flooded by rainwater (see paragraph 4 above).

45. The Court accepts that the applicant may have been affected by flooding. However, the Court must determine whether the nuisance attained the minimum level of severity required for it to constitute a violation of Article 8.

46. In this connection the Court observes that the applicant did not substantiate her complaint about the alleged environmental nuisance in either the national proceedings or the proceedings before the Court.

47. It follows that it has not been established that the alleged rainwater flooding of the applicant ’ s property caused an environmental hazard. In particular it has not been shown that the nuisance complained of was of such a degree or character as to have had any adverse effect on her well-being.

48. Therefore, it cannot be established that the State failed to take reasonable measures to secure the applicant ’ s rights under Article 8 of the Convention.

50. It follows that this 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.

Done in English and notified in writing on 16 November 2017 .

Renata Degener AleÅ¡ Pejchal              Deputy Registrar President