STRZELECKA v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. 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. 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. 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 lokatorów, 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.