AS TO THE ADMISSIBILITY OF
by Stanisław LIS
The European Court of Human Rights (Fourth Section), sitting on 8 September 2009 as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 February 2003,
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 applicant, Mr Stanislaw Lis, is a Polish national who was born in 1937 and lives in Sieradz. He was represented before the Court by Mr A. Pieścik, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was allocated a flat in 1970 in a building owned by the Śródmieście Housing Cooperative in Szczecin. In the 1980s the applicant started experiencing problems with the ventilation system. He complained to the housing cooperative about this and the presence of carbon monoxide in the flat. On 30 March 1994 he sued the cooperative, inter alia, for an order that it repair the ventilation in the flat and for compensation.
On 7 April 1997 the Szczecin District Court ordered the housing cooperative to repair the ventilation system in the applicant’s flat by 31 March 1998. It further awarded the applicant compensation. It found on the basis of expert evidence that the ventilation system was malfunctioning because of a construction defect in the building. On 11 December 1997 the Szczecin Regional Court dismissed an appeal by the applicant. On 2 April 1998 a writ of execution was issued in respect of the judgment of 7 April 1997.
In August 1999 the cooperative concluded a contract with a contractor Jan-Mar concerning repairs to the ventilation duct in the applicant’s building. The works were terminated on 30 September 1999.
On 30 November 1999 the ventilation system was checked by a chimney sweep, who found that it now complied with the relevant norms.
On 4 January 2000 the applicant made an application to the Szczecin District Court for an order requiring the housing cooperative to comply with the judgment of 7 April 1997.
The ventilation system again started to malfunction and so on 1 June 2000 the housing cooperative concluded another contract with a construction company to repair the ventilation duct.
On 18 July 2000 the District Court set a time-limit until 31 August 2000 for the cooperative to comply with the judgment. At the time, it found that the judgment could also be executed by the applicant in the cooperative’s stead and at its expense.
On 4 October 2000 the housing cooperative informed the applicant that the repair works had been completed. However, the applicant was not satisfied with the result and requested the Szczecin Regional Sanitary and Epidemiological Station to take appropriate measures.
Subsequently, he requested an advance on the costs of the necessary works. However, in the subsequent proceedings, the District Court decided on the basis of an expert opinion that the judgment of 7 April 1997 could be executed only by the cooperative itself. According to an expert opinion, in order to repair the ventilation system in the applicant’s flat it was necessary to have access to and carry out works in other flats in the building, which precluded the applicant carrying out the works himself. On 23 April 2002 the District Court set a new time-limit of one month from the date on which its decision had become final for the housing cooperative to repair the ventilation system in the applicant’s flat. The applicant appealed. On 18 February 2003 the Szczecin Regional Court dismissed his appeal.
On 17 September 2001 and 18 February 2002 the ventilation system in the applicant’s building was checked. No technical irregularities were noted.
On an unspecified date in 2004 the housing cooperative instituted proceedings in the District Court against the applicant, claiming that it had complied with the obligations imposed by the judgment of 7 April 1997. On 16 February 2004 the Szczecin District Court imposed a fine of 500 zlotys (PLN) on the president of the housing cooperative or five days’ imprisonment in default for failing to comply with the court’s decision of 23 April 2002. It further ordered the cooperative to comply with the judgment of 7 April 1997 by 31 March 2004. In the event of default, a fine of PLN 700 would be imposed on the president and the deputy president of the housing cooperative. The housing cooperative appealed. It submitted that it had enforced the judgment of 7 April 1997. On 5 August 2004 the Szczecin Regional Court dismissed the appeal.
On 23 February 2005 the Szczecin District Court set a new time-limit of one month from the date on which its decision had become final for the cooperative to comply with the judgment and stated that the president and deputy president would be liable to a fine of 700 PLN in default. On 12 April 2005 the President of the District Court informed the applicant that the repair works specified in the judgment of 7 April 1997 could only be performed by the cooperative. In the event of a continued failure to comply, the applicant could request the imposition of higher fines.
According to official tests carried out in September 2005, the concentration of carbon monoxide in the applicant’s kitchen was over the permissible limit.
Meanwhile, on 4 November 2004 the housing cooperative filed a motion to stay the writ of execution on the grounds that it had complied with the obligations imposed by the judgment of 7 April 1997.
On 28 July 2006 the Szczecin District Court gave judgment in which it deprived the judgment of 7 April 1997 of its enforceability in so far as it had ordered the cooperative to repair the ventilation system in the applicant’s flat. It held that the judgment of 7 April 1997 did not indicate the exact manner in which the ventilation system was to be repaired and that it was not possible for the system to be repaired only in the applicant’s flat, as a more general solution had to be found. Works had been performed by the cooperative in 1999 and 2000 to restore the permeability of the ventilation system. While, according to several measurements that had been taken the level of carbon monoxide in the applicant’s flat was too high, that level also depended on the proper functioning of the ventilation system and the expert opinions indicated that the applicant himself had prevented the proper functioning of the system by sealing off the access of air through the windows. The District Court therefore concluded that the ventilation system in the applicant’s flat had been repaired in accordance with the judgment of 7 April 1997.
The applicant appealed. On 12 April 2007 the Szczecin Regional Court dismissed his appeal. It upheld the first instance judgment and referred to the expert’s opinion confirming that the cooperative had complied with the judgment of 7 April 1997
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005-VIII) and judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V).
Without invoking any specific provisions of the Convention, the applicant complained that the judgment of the Szczecin District Court of 7 April 1997 had not been executed.
The applicant complained of the State authorities’ failure to enforce the judgment of 7 April 1997. The complaint falls to be examined under Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
A. The parties’ submissions
In their observations, the Government firstly maintained that in so far as the applicant may be understood to be complaining about the length of the enforcement proceedings he had failed to exhaust the required domestic remedies as he had not lodged a complaint under the 2004 Act. They further submitted that according to the judgment of the Szczecin District Court of 28 July 2006, which was now final, the judgment of 7 April 1997 had already been complied with by the defendant housing cooperative. They stressed that the District Court had performed a detailed scrutiny and left no room for doubt that the obligation imposed on the housing cooperative had been fulfilled. They further noted that according to the District Court’s judgment, the ventilation system had been repaired as a result of construction works commissioned in 1999 and 2000.
The Government said in conclusion that the Szczecin District Court’s judgment of 7 April 1997 had been complied with in 1999 and 2000, as the District Court had confirmed on 28 July 2006. In their submission, the present application should be found manifestly ill-founded.
The applicant disagreed claiming that the judgment of 7 April 1997 had not yet been complied with. He further objected to the Szczecin District Court’s judgment of 28 July 2006. Lastly, he claimed that he had suffered serious health problems due to the malfunctioning of the ventilation system in his flat.
B. The Court’s assessment
In so far as the Government maintained that the applicant failed to exhaust the required domestic remedies, the Court does not find it necessary to decide whether the remedy referred to by the Government in the instant case was effective, since even assuming that the applicant has complied with the exhaustion rule, it considers that the application is in any event inadmissible for the reasons set out below.
The Court notes that the judgment in favour of the applicant became enforceable on 2 April 1998. According to the terms of the judgment of 7 April 1997 the housing cooperative was required to make extensive repairs to the ventilation system, not only in the applicant’s flat but in the whole building. The Court further notes that on 28 July 2006 the Szczecin District Court confirmed that the judgment in question had been complied with in 1999 and 2000.
In this respect, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court or to substitute its own assessment for that of the national courts or other national authorities unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). In other words, the Court cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness, which is not the position in the instant case.
The Court further observes that a delay in the execution of a judgment may be justified in particular circumstances (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III, Kukalo v. Russia, no. 63995/00, §§ 51 52, 3 November 2005). It further considers that the enforcement of a judgment for extensive repairs may take longer than payment of a sum of money (see, mutatis mutandis, Shilov and Baykova v. Russia, no. 703/02, §§ 21-26, 29 June 2006).
In the present case the period of enforcement, which lasted for about two years, does not appear to have been so long as to impair the essence of the applicant’s right to a court or to represent a disproportionate interference with his property rights.
It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention
For these reasons, the Court unanimously
Declares the application inadmissible.
Early Nicolas Bratza