WASIEWSKA v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Ms Jadwiga Wasiewska, is a Polish national, who was born in 1936 and lives in Bydgoszcz. She was represented before the Court by Mr A. Drozd, a lawyer practising in Bydgoszcz. 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. In 1997 the applicant and her husband T.W. divorced. The applicant submitted that prior to the divorce her former husband had thrown her out of their flat. He changed the locks and prevented the applicant from entering to take personal items belonging to her, their daughter and granddaughter. 5. On 30 April 2002 the applicant and her former husband reached a friendly settlement as regards the division of their marital property, i.e. the flat. The applicant became the sole owner of the flat against the payment to T.W. of 32,000 Polish zlotys (PLN) until 2 September 2002. Her former husband retained the right to stay in the flat until that date. However, T.W. made it impossible for the applicant to sell the flat so that she could have the money to pay him his share. 6. The applicant’s former husband obtained an enforcement order against the applicant with the result that part of her retirement pension was seized by the bailiff to help pay off her debt. She was also obliged to pay half of the maintenance costs for the flat. 7. In 2006 the applicant brought a civil case for eviction against her former husband. On 22 September 2008 the Bydgoszcz District Court allowed the applicant’s action and ordered the eviction of T.W. At the same time it ordered that the defendant be allocated social housing by the municipality. The execution of the judgment was to be stayed until he had been allocated social housing. 8. The applicant appealed, complaining about the part of the court’s judgment obliging the municipality to award her former husband social housing. Her appeal was dismissed on 9 April 2009 by the Bydgoszcz Regional Court. The appeal lodged by T.W. was rejected for formal reasons. 9. On 29 March 2010 the Bydgoszcz District Court issued an order confirming that the judgment of 22 September 2008 was final. 10. Subsequently T.W. instituted proceedings in which he sought to quash the enforcement order arguing that the flat allocated to him by the municipality had been in bad condition. On 29 June 2011 the Bydgoszcz Regional Court finally dismissed his application to quash the enforcement order. 11. On an unspecified date the applicant made use of a remedy provided by the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki– “the 2004 Act”). She complained about the length of the enforcement proceedings conducted by the court bailiff. 12. On 9 November 2011 the Bydgoszcz Regional Court dismissed the complaint finding that there had been no delay on the part of the bailiff. 13. The applicant’s former husband refused two offers of social housing in 2010. In 2012 he was offered another flat which had to be refurbished before he could move in. 14. The applicant submitted that in July 2013 T.W. finally moved out and she regained possession of her flat. 15. On an unspecified date in 2009 the applicant brought a civil claim for damages against her former husband, T.W. She relied on section18 (1) of the 2001 Act claiming that T.W. had been living in her flat without legal title to it. She sought compensation from him in the amount calculated in reference to the cost of rent for a similar apartment on the free market. 16. On 15 April 2001 the Bydgoszcz DC partly granted the action and awarded the applicant PLN 17,600 (approximately 4,200 euros (EUR)) in compensation for T.W.’s use of the flat without legal title. The court established that since the eviction order the applicant’s former husband had no right to stay in the flat and since he continued to live there he had been liable to pay compensation. T.W. appealed. 17. On 22 September 2011 the Bydgoszcz Regional Court allowed the appeal and dismissed the applicant’s action. The court agreed with the lower court’s findings as to the facts of the case, in particular that T.W. had no right to stay in the flat. However the appellate court noticed that since T.W. had had the right to social housing, on the basis of section 18 (3) of the 2001 Act, he had been liable to pay only his share of rent. There was no legal basis to order him to pay compensation on the basis of free-market calculations. Since the applicant sought compensation and not the reimbursement of half of the maintenance costs, the court dismissed her action. 18. 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, misszkaniowym 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. 19. 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.” 20. 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. 21. 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.