FOURTH SECTION
DECISION
Application no. 31339/04
by Maria DARKOWSKA and Marek DARKOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 15 November 2011 as a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 26 July 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Maria Darkowska (“the first applicant”) and Mr Marek Darkowski, are Polish nationals who were born in 1961 and 1957 respectively and live in Sokółka. They were represented before the Court by Ms A. Zemke-Górecka, a lawyer practising in Białystok. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The background
1. The applicants owned a flat in Krynki in which they lived until June 2005. The flat is located on the first floor of a block of flats. On 3 August 2000 the applicants and their neighbours participated in a residents’ meeting. It was decided that the communal boiler room be dismantled and that each of the residents would provide for their own heating.
2. In September 2000 the applicants’ neighbour from the second floor, Mr S (“S”), installed a central heating stove in his cellar and connected it to the chimney running through the applicants’ flat.
2. The administrative proceedings for removal order
3. The applicants applied to the building and fire inspectors to report that their neighbours’ central heating stove had been installed without the necessary building permit and was causing carbon monoxide pollution in their flat. On 29 May 2001 the fire inspector carried out an inspection of the chimney in the applicants and their neighbours’ flats.
4. On 14 August 2001 the District Building Inspector ordered S to dismantle the central heating stove. The Inspector established that the heating system had been installed without the building permit and that the exhaust tube was not wide enough. In consequence, the smoke from the coal burned in the stove had been coming out through the leaking ventilation system into the applicants’ kitchen. The Inspector underlined that such smoke normally contained carbon monoxide, which constituted a danger to the applicants’ health. S appealed unsuccessfully.
5. The first applicant repeatedly complained to the Inspector that his decision had not been enforced by S. On 14 December 2001 the Building Inspector fined S for non-compliance with the decision to dismantle the stove.
6. On 30 April 2002 the Building Inspector carried out an inspection of the venue and informed the Mayor that the decision to dismantle the stove had been enforced. Another inspection was carried out on 23 May 2002. It confirmed that the heating installation had been dismantled.
3. Proceedings before the sanitary authorities
7. On 4 December 2002 the first applicant complained to the District Sanitary Inspector about air pollution in her flat. On 2 January 2003 the Sanitary Inspector confirmed that the nuisance caused in the applicants’ flat by the smoke coming out of the chimney was due to the heating stove used by S. He further informed the applicants that it was the responsibility of the Mayor to ensure that the heating installation of their neighbours complied with the relevant building regulations.
8. On 14 February 2003 the Regional Sanitary Inspector informed the applicants that the use of the central heating stove did not pose any danger to their life or health. According to the tests carried out by the sanitary authorities on 6 February 2003 the concentration of carbon monoxide in their flat was below the permissible level.
4. The administrative proceedings for building permit
9. On 1 March 2002 S applied to the Sokółka District Mayor (“the Mayor”; Starosta) for a building permit to install a heating system in his cellar. The proceedings were instituted on 12 March 2002. On 27 March 2002 the Mayor rejected the application on the grounds that S had not complied with the District Building Inspector’s earlier decision to dismantle the heating system.
10. On 7 May 2002 S made a new application for a building permit. On 24 June 2002 the Mayor granted it, having regard to the fact that the decision to dismantle the stove had been enforced. On 19 August 2002 the Podlaski Governor quashed the impugned decision. The subsequent Mayor’s decision granting a building permit was again quashed on appeal.
11. On 5 February 2003 the Mayor dismissed S’s application for a building permit for lack of all the required documents. S appealed against the decision and on 11 March 2003 the Podlaski Governor quashed it.
12. On 28 March 2003 the Mayor stayed the proceedings for a building permit because their outcome depended on the conclusion of a related set of proceedings instituted by the District Building Inspector (see point 5 below).
13. On 8 April 2004 the Mayor resumed the proceedings for a building permit at the applicants’ request. An inspection of the chimney in S’s apartment revealed no defects. On 21 April 2004 the Mayor discontinued the proceedings for a building permit as devoid of purpose, finding that S had complied with the conditions imposed by the Building Inspector and had been allowed to use the stove (see paragraph 20 below).
14. The applicants appealed. On 3 June 2004 the Podlaski Governor quashed the decision since the applicants had not been given an opportunity to defend their position in the proceedings.
15. On 14 July 2004 the Mayor again discontinued the proceedings. That decision was upheld by the Podlaski Governor on 24 September 2004 following an inspection. The Governor found that the proceedings for the building permit were devoid of purpose because the applicants’ neighbours had already installed the heating system. The applicants lodged a complaint with the Białystok Regional Administrative Court which appears to have been dismissed.
5. Proceedings before the Building Inspector (regularisation of the heating installation)
16. On 4 December 2002 the applicants informed the District Building Inspector that S had been unlawfully using his heating stove.
17. On 14 March 2003, the Building Inspector issued a decision aimed at regularising the heating installation and ordered S to prepare an expert opinion on its suitability. He observed that in accordance with the Building Act the installation at issue could not be subject to a demolition order. The Building Inspector established that there had been no causal link between the installation and the alleged air pollution and the fissures in the applicants’ flat. In the light of various opinions submitted by the parties he expressed a preliminary view that the heating installation had complied with the relevant regulations.
18. The decision became final on 5 April 2003 since the applicants did not appeal against it. Subsequently, they unsuccessfully requested the building authorities to declare it null and void.
19. On 30 September 2003 S submitted the opinion of an authorised expert on the suitability for use of their heating system.
20. On 6 April 2004 the District Building Inspector carried out an inspection of the heating system which confirmed that S had fulfilled the conditions indicated in the above expert opinion. The District Building Inspector informed the Mayor that his decision of 14 March 2003 had been complied with and that S had been allowed to use the central heating stove.
21. On 17 June 2004 the Building Inspector re-opened ex officio the proceedings, having regard to the Sokółka District Court’s judgment of 30 August 2002 which, in his opinion, concerned the same subject-matter (see paragraph 30 below). On 5 July 2004 the Building Inspector revoked his earlier decision of 14 March 2003 and discontinued the proceedings for installation of the heating system by S, having regard to the judgment of 30 August 2002.
22. On 14 December 2004 the Regional Inspector quashed the decision of 5 July 2004. He found that the proceedings should not have been discontinued because the neighbours’ heating stove had been still illegally connected to a chimney. The Regional Inspector had also regard to a decision on interpretation of the judgment of 30 August 2002 (see paragraph 33 below).
23. On 2 March 2006 S applied to the District Building Inspector for permission to use the stove. On 31 March 2006 the District Building Inspector issued a decision which formally confirmed that the neighbours had complied with the obligations imposed on them. The applicants appealed. Following a round of various decisions, the Regional Inspector eventually concluded that the District Inspector should have ordered an expert opinion.
24. The District Building Inspector complied and an opinion prepared by an independent expert, Z.M was submitted on 10 July 2007. The opinion was based on the inspection of the heating installation, chimney and ventilation duct and on the analysis of relevant building regulations and various previous opinions. It evaluated in a very comprehensive manner the conditions of the use of the heating installation. The expert concluded that the chimney was impermeable and that the installation was compatible with the relevant regulations. The only technical shortcoming concerned the diameter of the tube in the chimney which should be increased. In respect of the stains in the applicants’ flat, the expert found that they originated from the lack of correct ventilation of the flat due to a defective ventilation duct, and recommended the insulation of the duct with a view to resolving the issue. He excluded as entirely unproven the proposition put forward by the applicants and the opinion of expert P.K. submitted in the second set of civil proceedings that the tarry substances could have penetrated into the applicants’ flat (see paragraph 36 below). The applicants contested that opinion.
25. On 2 August 2007 the District Building Inspector ordered the neighbours to carry out some works in accordance with the expert opinion. That decision was subsequently quashed.
26. On 2 November 2007 the District Building Inspector revoked his decision of 14 March 2003 and ordered S to carry out the works recommended by the expert in his opinion of 10 July 2007. Following their unsuccessful appeal to the Regional Inspector, the applicants filed a complaint with the administrative court.
27. On 8 May 2008 the Regional Administrative Court dismissed their complaint as ill-founded. It thoroughly examined the opinion of expert Z.M. and held that the opinion had clearly indicated that it was possible to make the installation conform to the relevant regulations. It further noted that the proposed solution was also aimed at elimination of neighbourly conflicts. The applicants appealed to the Supreme Administrative Court.
28. On 17 July 2009 the Supreme Administrative Court dismissed the cassation appeal. It concurred with the findings of the lower court and found no shortcomings in the expert opinion. The court emphasised that the solution concerning the regularisation of the installed heating system had not violated the law or the rights of third parties, including the applicants.
6. The civil actions
(a) the first set of proceedings
29. On 17 December 2001 the first applicant lodged a civil action against S in which she sought restitution of a legal situation and abstention from infringements of law. She further sought 5,000 Polish zlotys (PLN) in respect of pecuniary damage.
30. On 30 August 2002 the Sokółka District Court partly allowed her action in that it ordered the defendant to stop the infringements of the first applicant’s right to peaceful enjoyment of the possession by the use of the central heating stove. It held that the first applicant’s claim for removal of the defendants’ heating system was too far-reaching and found it sufficient to have the applicants’ kitchen restored to its original state. The court dismissed her claim for pecuniary damage as unsubstantiated. It established that the defendants had connected the heating system to a chimney which was not technically adapted to such a function. In consequence soot and tarry substances had been penetrating the applicants’ flat. The first applicant’s appeal was rejected on formal grounds.
31. On 3 November 2003 the applicant’s lawyer instituted enforcement proceedings. At a court hearing held on 5 May 2004 the debtor stated that the creditor had not allowed him to enter the apartment in order to execute the judgment.
32. On 5 July 2004 the Sokółka District Court stayed the enforcement proceedings at the first applicant’s request.
33. On 19 November 2004 the District Court gave a decision on interpretation of its judgment of 30 August 2002. It held that the objective of its judgment was to prevent the defendants from causing nuisance to the applicants occasioned by the discharge of soot and tarry substances, however the fact that the stove had been connected to a chimney could not be seen per se in breach of the judgment.
34. On 8 September 2005 the court discontinued the enforcement proceedings in the absence of a request from the creditor to resume the proceedings.
(b) the second set of proceedings
35. On 18 April 2006 the applicants instituted a new set of civil proceedings against S, in which they sought an order to dismantle the heating system.
36. On 2 February 2007 the District Court gave a judgment in which it allowed the applicants’ action, referring to the opinion of expert P.K. The court established that in spite of works undertaken by S, the negative effect on the applicants’ flat, as found in its previous judgment of 30 August 2002, still existed. In particular, a wall in their kitchen had become stained as a result of the reaction of steam and soot which were penetrating through the leaky tube and chimney. The court thus ordered S to permanently disconnect the central heating stove and to brick up the entrance to the chimney.
37. On 30 July 2007 the applicants’ lawyer instituted enforcement proceedings. On 22 November 2007 the court stayed the enforcement proceedings following the applicants’ request of 24 October 2007. Their request was related to the pending administrative proceedings. On 24 November 2008 the court discontinued the enforcement proceedings as the applicants had not requested that they be resumed.
7. The criminal proceedings against S
38. On 22 December 2002 the first applicant informed the police that an offence had been committed and requested them to initiate criminal proceedings against S. After initial discontinuation of the investigation, in June 2003 the Sokółka District Prosecutor indicted S before the Sokółka District Court.
39. On 14 October 2003 the trial court convicted S of a breach of building law and sentenced him to four months’ imprisonment. The court found him guilty of installing the central heating stove in November 2001 without the required permits, of using it afterwards, and of reconnecting it in December 2002 in spite of the decisions of the Building Inspector ordering him to stop use of the stove. By using his central heating stove S had caused smoke containing carbon monoxide and carbon dioxide as well as tarry substances to penetrate into the applicants’ flat which exposed the applicants to imminent danger to their life and health. The second applicant appealed against the judgment, arguing that the penalty imposed on S was too lenient. On 26 February 2004 the Białystok Regional Court dismissed his appeal. Subsequently, S served his prison term.
40. Subsequently the prosecution service, apparently at the applicants’ request, instituted a second set of criminal proceedings against S. On 31 March 2004 the Sokółka District Court gave a summary judgment in which it found S guilty of reconnecting the stove and using it between January 2003 and January 2004. The court sentenced him to fifteen months of restriction of liberty together with the obligation to perform thirty hours of unpaid work per month. The judgment became final and enforceable on 13 April 2004.
41. In 2004 a third set of criminal proceedings was instituted against S. On 21 December 2004 the District Prosecutor discontinued the investigation, having regard, inter alia, to the results of the examination of the applicants’ apartment by the sanitary authorities on 11 February 2003. The applicants appealed unsuccessfully.
8. Other developments
42. On 29 December 2004 the applicants bought another flat in Sokółka, for which they obtained a mortgage. It appears that in June 2005 they moved out of the flat in Krynki.
COMPLAINTS
43. The applicants complained, invoking Article 6 of the Convention, about the unreasonable length of the administrative proceedings in their case.
44. The applicants complained under Article 8 § 1 of the Convention that since 2000 the authorities have failed to take effective action to stop their neighbour from putting their life and health at risk by unlawful use of his central heating. The State has not fulfilled its positive obligation to protect their right to respect for their private and family life, in particular their physical and moral integrity. In spite of several criminal court judgments convicting S of inappropriate use of the heating stove the authorities had been unable to enforce these decisions and to effectively protect them. Moreover, although the civil courts ordered S to dismantle the stove, these decisions have never been enforced.
45. The applicants submitted that the authorities had failed to protect their rights under Article 1 of Protocol No 1. As a consequence of the authorities’ ineffectiveness the applicants were obliged to buy a new flat as they were afraid for their life and health. They could not continue to live in their flat in Krynki for fear of their life; nor could they sell it, as S was still using the heating system that damaged their flat and put the inhabitants at risk.
THE LAW
A. Alleged breach of Article 6 § 1
46. The Government argued that the applicants had not exhausted domestic remedies with regard to their complaint under Article 6 § 1 of the Convention about the unreasonable length of the administrative proceedings. They submitted that the applicants could have lodged complaints about the inactivity of the relevant administrative authority, first with the higher authority (Article 37 of the Code of Administrative Procedure; “CAP”) and, subsequently, with an administrative court (sections 16 and 17 of the 1995 Supreme Administrative Court Act and, subsequently, section 3 § 2 of the 2002 Proceedings before Administrative Courts Act). The Government further argued that the applicants could have availed themselves of civil actions in order to seek redress for the alleged damage which had resulted from the inactivity of the administrative authorities (Articles 417 and 417¹ § 3 of the Civil Code).
47. With regard to the merits, the Government stressed that all sets of administrative proceedings had been delayed by the applicants’ conduct. They had objected to nearly all decisions, in particular to those imposing on their neighbour an obligation to bring the heating installation in line with the building regulations and hindered granting the final permit for the use of the installation.
48. The applicants did not comment.
49. The Court recalls that it has held in a number of cases against Poland that in order to comply with the requirement of exhaustion of domestic remedies in the context of lengthy administrative proceedings it was necessary to have recourse first to a hierarchical complaint about inactivity of an administrative authority and if this proved unsuccessful, to a subsequent complaint to the administrative court (see Derda v. Poland, no. 58154/08, § 44, 1 June 2010 with further references). The Court notes that the applicants, who were represented by a lawyer, were involved in three different sets of administrative proceedings concerning respectively the issue of a removal order, building permit and regularisation of the heating installation. In none of those proceedings were hierarchical complaints lodged alleging inactivity on the part of the administrative authorities or a subsequent complaint with the administrative court. Accordingly, the Court finds that the applicants failed to exhaust the relevant domestic remedies and the Government’s objection in this respect is well-founded.
50. With regard to their alleged failure to pursue civil actions, the Court recalls that the arguments raised by the Government are the same as those already examined by the Court in previous cases against Poland (see Grabiński v. Poland, no. 43702/02, § 74, 17 October 2006; Boszko v. Poland, no. 4054/03, § 35, 5 December 2006; Puczyński v. Poland, no. 32622/03, § 40, 8 December 2009; Derda, cited above, § 47 and Iskrzyccy v. Poland, no. 9261/02, § 55, 14 September 2010) and the Government have not submitted any new arguments which would lead the Court to depart from its previous findings that those actions could not be considered effective remedies within the meaning of Article 35 § 1 of the Convention. For those reasons, the second limb of the Government’s objection must be dismissed.
51. It follows that the complaint under Article 6 § 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged breaches of Article 8 and Article 1 of Protocol No. 1
1. The Government’s submissions
52. The Government first argued that the complaints were incompatible ratione personae since the alleged violations were not attributable to the State but resulted from the actions of S, the applicants’ neighbour. There was also no failure of the authorities to take appropriate measures to protect the applicants against the action of others.
53. The Government secondly argued that the applicants had not exhausted a number of effective domestic remedies in respect of their complaints under Article 8 and Article 1 of Protocol No. 1. First, they could have filed a claim under Article 222 § 2 of the Civil Code (“CC”) seeking to stop the infringements with their rights of ownership. The Government submitted that the first applicant had filed such a claim and the District Court had partly granted it by a judgment of 30 August 2002. However, she failed to exhaust this remedy since subsequently she had requested the court to stay the enforcement proceedings. Similarly, with regard to the second District Court’s judgment of 2 February 2007, the applicants again requested that the enforcement proceedings be stayed. In this connection the Government argued that the requirement of exhaustion of remedies comprised equally an obligation to pursue the enforcement proceedings and that it was the applicants themselves who had voluntarily decided not to press the enforcement of the judgments given in their favour.
54. Furthermore, had the applicants sustained damage as a result of their neighbours’ actions, they should have sought compensation for any material and/or non-material damage caused by them under Articles 415 and 448 of the CC respectively. The applicants could have also brought a civil action under Articles 24 and 448 of the Civil Code and sought compensation for the infringement of their personal rights, in particular their health.
55. With regard to the merits of the complaint under Article 8, the Government argued that the applicants were not prevented from enjoying their home in such a way as to involve their private and family life. The expert opinions obtained in the case did not prove that the emissions from the heating installation were dangerous to the applicants’ life or health and for that reason the complaint was manifestly ill-founded.
56. The Government averred that the authorities had taken the necessary steps by having instituted administrative proceedings aimed at verifying the compliance of the heating installation with the relevant building and safety regulations. Furthermore, the authorities had to strike a fair balance between the competing interests of the applicants and their neighbours since the case concerned the issue of peaceful enjoyment of a co-owned apartment building. The Government maintained that apart from any positive obligation to secure the applicants’ right to respect for their home, a similar obligation in respect of the neighbours’ right to respect for their home had to be taken into consideration. In the administrative proceedings it was established that the level of carbon monoxide emissions had not been exceeded. In respect of any identified technical shortcomings, the authorities ordered the neighbours to make them good.
57. With regard to the merits of the complaint under Article 1 of Protocol No. 1, the Government submitted that the applicants had not raised before the Court any substantiated argument demonstrating that their property rights had been violated by an act of the State or by its failure to act. In the Government’s opinion, the applicants’ subjective and one-sided feeling that remaining in the flat was harmful to their health could not engage the State’s responsibility under Article 1 of Protocol No. 1. The applicants did not submit any arguments or expert reports proving that the continued operation of the heating installation had exceeded the permissible level of pollutants and all the examinations carried out in the context of various administrative proceedings revealed no threat to the applicants’ life or health.
58. The applicants were not forced to move out of their flat. The Government noted that the applicants failed to substantiate their contention that they had been unable to sell their flat on account of the defective heating installation. Even assuming that that was the case, the State provided them with effective remedies which ought to have been used.
2. The applicants’ submissions
59. The applicants disagreed with the Government’s assertion that they had failed to exhaust all relevant domestic remedies.
60. The applicants argued that the authorities had failed in their duty to protect their rights. From 2001 the administrative authorities have tolerated the unlawful use of the heating installation which put their life and health at risk. They alleged that the administrative authorities had not respected civil and criminal judgments given in the case and committed a number of errors in dealing with their case.
61. The applicants strongly contested the opinion of expert Z.M. for lack of consistency and failure to take into account various opinions submitted in the context of civil and criminal proceedings indicating the unsuitability of connecting a heating installation to the chimney and the risk of emission of carbon monoxide. They also objected to the administrative authorities and the administrative courts’ reliance on that opinion with regard to the proceedings concerning regularisation of the installation.
62. The applicants averred that as a consequence of the authorities’ ineffectiveness they had been forced to move out of their flat and take a mortgage to buy a new property. They claimed that it would be impossible to find a buyer for their flat as living in it was harmful to one’s life and health.
3. The Court’s assessment
63. The Government argued that the complaints under Article 8 and Article 1 of Protocol No. 1 were incompatible ratione personae since the alleged breaches were not attributable to the State but resulted from the actions of a private individual. They secondly claimed that the applicants did not properly exhaust certain remedies or failed to exhaust some other remedies. The Court considers that it is not necessary to rule on the above objections since it finds that the complaints are in any event inadmissible for the reasons set out below.
64. With regard to the alleged breach of Article 8 of the Convention, the Court notes that the applicants were involved in a long-standing dispute with their neighbour concerning the nuisance caused by the emissions from his heating system in the form of carbon monoxide pollution and the discharge of soot and tarry substances into their apartment. In this connection they instituted a number of administrative, civil and criminal proceedings against their neighbour. The applicants generally complained that the State failed to comply with its positive obligations to protect their right to respect for their private and family life and home.
65. The Court has recently summarised the relevant principles in the case of Apanasewicz v. Poland (no. 6854/07, §§ 93-95, 3 May 2011; see also Oluić v. Croatia, no. 61260/08, §§ 44-46, 20 May 2010).
66. The first question to determine is whether the nuisance complained of reached the minimum level of severity required for it to amount to interference with the applicants’ rights to respect for their homes and private and family lives. The assessment of that minimum is relative and depends on all the circumstances of the case: the nuisance’s intensity and duration, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards inherent to life in a modern city (see, among others, Fadeyeva v. Russia, no. 55723/00, §§ 66‑70, ECHR 2005‑IV; Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008; and Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§ 93-97, 25 November 2010).
67. The Court notes that at least for some time the applicants’ neighbour used the disputed heating installation without having obtained the required permits. However, the mere fact that the installation was unlawful is not sufficient to ground the applicants’ assertion that their rights under Article 8 have been interfered with (see Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008). The Court must rather examine, on the basis of the materials in the case file, whether the alleged emissions from the central heating were sufficiently serious to amount to an interference with the applicants’ rights to respect for their private lives and their homes.
68. The Court will first consider the findings made by the authorities in the context of administrative proceedings. With regard to the alleged carbon monoxide pollution it observes that following the relevant tests carried out in February 2003 the sanitary authorities established that the permissible level of carbon monoxide in the applicants’ flat was not exceeded and they were informed that the use of the heating installation was not harmful to their life and health (see paragraph 8 above). Later, the District Building Inspector found in his decision of 14 March 2003, which the applicants did not appeal, that there had been no causal link between the use of the heating installation and the alleged air pollution and the fissures in the applicants’ flat (see paragraph 17 above). Furthermore, the Court notes that with regard to the administrative proceedings concerning the regularisation of the heating installation the District Building Inspector obtained the opinion of expert Z.M. who analysed the issue of conformity of the heating installation with the relevant regulations in a very thorough manner. The opinion confirmed that, save for one minor technical detail, the installation complied with all relevant regulations. It also convincingly excluded as unproven the applicants’ allegation that the tarry substances penetrated their flat (see paragraph 24 above). This opinion was relied on by the building authorities in requiring the applicants’ neighbour to carry out the necessary works with the view to securing safe evacuation of the fumes from the stove. The Court attaches particular weight to that opinion which it finds comprehensive and diligent and to the judgments which dismissed the challenge to the decisions based on it, in particular the Supreme Administrative Court’s judgment of 17 July 2009 which confirmed that the regularisation did not breach the applicants’ rights (see paragraphs 27-28 above).
69. As regards the civil proceedings initiated by the applicants, the District Court in its first judgment of 30 August 2002 found that the neighbour had interfered with the applicants’ ownership rights in that he had connected the heating installation to a chimney which was not suitable for evacuation of the fumes and the use of the installation led eventually to the soot and tarry substances penetrating their kitchen wall (see paragraph 30 above). The court ordered the neighbour to have the applicants’ kitchen restored to its original state; however the former was not allowed to enter the applicants’ flat in order to execute the judgment (see paragraph 31 above). By a second judgment of 2 February 2007 the District Court ordered the applicants’ neighbour to permanently disconnect the central heating stove. It found, basing itself on the opinion of expert P.K., that despite works undertaken by the neighbour the interference with the applicants’ ownership rights continued and that brown stains formed in their kitchen as a result of the reaction of steam and soot which were penetrating through a leaky tube and chimney (see paragraph 36 above). The Court notes that subsequently to that judgment the expert Z.M. clearly established that the stains in the applicants’ kitchen originated from defective ventilation and had nothing to do with the release of soot or tarry substances. It further notes that in respect of both civil judgments the applicants requested that their enforcement be stayed, and later those enforcement proceedings were discontinued for lack of interest on the applicants’ part (see paragraphs 34 and 37 above). Be that as it may, the Court is not persuaded that the interferences with the applicants’ ownership rights as identified by the civil judgments amounted to a serious detriment to them. Moreover, the applicants have not shown to the Court’s satisfaction that the pollution complained of was of such degree or character as to cause any noxious effect on their health (see Wałkuska v. Poland (dec.), no. 6817/04, 29 April 2008).
70. In conclusion, having particular regard to the findings made in the administrative proceedings referred to above, the Court finds that the alleged disturbances resulting from the use of the heating installation were not sufficient to reach the minimum level of severity required to engage Article 8 (see Furlepa and Wałkuska, cited above; Borysiewicz v. Poland, no. 71146/01, §§ 52‑55, 1 July 2008); Leon and Agnieszka Kania v. Poland, no. 12605/03, §§ 101‑03, 21 July 2009; Galev and Others v. Bulgaria (dec.), no. 18324/04, 29 September 2009; and compare and contrast Apanasewicz v. Poland, cited above, §§ 97-98).
71. The applicants also complained under Article 1 of Protocol No. 1 to the Convention that as a consequence of the authorities’ ineffectiveness they had been obliged to buy a new flat as they had been afraid for their life and health. The Court recalls that Article 1 of Protocol No. 1 does not guarantee the right to enjoy one’s possessions in a pleasant environment (see Moore v. the United Kingdom (dec.), no. 40425/98, 15 June 1999; Ünver v. Turkey (dec.), no. 36209/97, 26 September 2000; Taşkın and Others v. Turkey (dec.), no. 46117/99, 29 January 2004 and Galev and Others, cited above). Furthermore, having regard to its findings in respect of the nuisance occasioned by the heating installation, the Court does not find it established that the applicants were forced to move out of their flat or that they were or will be unable to sell it.
72. Having regard to the foregoing, the Court finds that the complaints under Article 8 and Article 1 of Protocol No. 1 to the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyDavid Thór Björgvinsson Registrar President
Full & Egal Universal Law Academy