Orzeczenia sądów
Opublikowano: www.echr.coe.int

Decyzja
Europejskiego Trybunału Praw Człowieka
z dnia 29 stycznia 2019 r.
49651/16

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0129DEC004965116

FOURTH SECTION

DECISION

Application no. 49651/16

Virginia NEAGU

against Romania

The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 and on 29 January 2019 as a Chamber composed of:

Ganna Yudkivska, President,

Paulo Pinto de Albuquerque,

Vincent A. De Gaetano,

Iulia Antoanella Motoc,

Georges Ravarani,

Marko Bošnjak,

Péter Paczolay, judges,

and Marialena Tsirli, Section Registrar,

Having regard to the above application lodged on 11 August 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

THE FACTS

1. The applicant, Ms Virginia Neagu, is a Romanian national, who was born in 1945 and lives in Galaţi. She was represented before the Court by Mr C. Cojocariu, a lawyer practising in Orpington, the United Kingdom.

2. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, from 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.

4. On 22 May 2012 the applicant was diagnosed with a permanent physical disability. At present she can only move around with the aid of a wheelchair. V.P., her spouse, was appointed her legal guardian and personal assistant. At the time of the facts relevant to the present case, according to the applicant, V.P. was elderly (born in 1942) and frail. They own the flat they live in.

5. According to the applicant, in 2013 C.I., the chairman of the owners' association of their building, installed two additional doors: one inside the building (in front of the lift), and one (in point of fact, a set of double doors) on the threshold of the building, which visitors had to open after entering through the main entrance door. In addition the building's lift had been out of order for long periods of time before becoming operational again in 2013.

6. On 17 June 2013 the applicant brought an action (hereinafter "the main action") against the owners' association in order to compel it to render the building's lift fully operational, to remove the threshold, and to reposition the main entrance door's hinges so that the access ramp would be aligned with the door in order to allow the applicant unhindered access in her wheelchair. She relied on the provisions of Law no. 448 (see paragraph 14 below) and on the Civil Code.

7. Meanwhile, the applicant also lodged an interim application for the same measures to be taken during the period of the court proceedings in respect of the main action. In a final decision of 10 October 2013 the Galaț i County Court allowed the interim application and ordered the owners' association to remove the threshold in question and to reposition the door in order to align it with the access ramp. The applicant sought the services of a bailiff for the enforcement of the interim order and on 22 January 2014 the bailiff, together with a team of gendarmes, visited the applicant's building in order to verify the situation. Despite his efforts, the bailiff was unable to obtain enforcement of the interim order because of the opposition of the owners' association. Consequently, on 3 March 2014 he decided to temporarily stay the enforcement proceedings and informed the applicant that, under Article 903 of the Code of Civil Procedure, it was possible to either seek authorisation from a court to carry out the works herself, at the expense of the owners' association, or to ask that a penalty be imposed on the debtor. She did not take any of the action indicated by the bailiff.

1. The court proceedings

8. On 14 November 2014 the judge in charge of the applicant's action, together with her court clerk, visited the applicant's building and examined the access facilities for wheelchairs. They met with C.I., the applicant and V.P. The judge found as follows:

"- The plaintiff Neagu Virginia is in a wheelchair and needs a personal assistant;

- She came down from the first floor in the lift;

- The lift has been operational since 1 May 2013 - before the date when the interim measures were taken - as Mr [C.I.] affirms; ...

- The parties specify that the threshold ... [has remained in the same state] since the date on which the action was lodged; it was put in place on a temporary basis on 12 November 2014, because it had been removed during the execution by the bailiff of the interim order;

- The applicant's spouse, when he manoeuvres the applicant in her wheelchair over the threshold, affirms that he encounters difficulties;

- Another man was asked to manoeuvre the wheelchair and he affirmed that he did not encounter any difficulty crossing the step;

- One of the plaintiff's neighbours, a woman ... of average build, aged 46, was also asked to push the wheelchair ... and she also managed without any difficulty to cross the step;

- The threshold is set under the third door, the closest to the lift;

- In order to push the wheelchair through the second door, both halves of the door must be opened by pushing them ...;

- The same neighbour was asked to push the wheelchair through the second door and through the metal door, and she proceeded as follows: she turned the wheelchair against the door, pushed through the second door, and when she got out, in order to go through the metal door it was necessary to open the second half of the metal door, which is normally closed;

- It is observed that the wheelchair does not fit if only one half of the door is opened;

- The plaintiff's spouse says that he wishes for the positioning of the hinges to be moved on the street side of the entrance door, in order to align them with the ramp;

- It is observed that the plaintiff's wheelchair can only reach the ramp if the metal door is opened and if [the wheelchair] is slightly angled to the left while being pushed;

- Mr [C.I.] placed, near the ramp, a wooden plank 20 cm wide and 3 cm thick in order to extend the ramp, but only when the investigation started; it had not been there when we arrived;

- The ramp was built by the plaintiff's spouse;

- There are two hinges on the metal door aligned with the ramp, but the door cannot be realigned because of [adjacent] gas pipes; ..."

9. On 18 December 2014 the Galaț i District Court dismissed the main action lodged by the applicant against the owners' association. On the basis of the evidence in the file, including its own observations, the court found that the lift had been repaired and that the applicant's access to the building had not been obstructed. In particular, everyone but the applicant's husband had proved themselves able to push the wheelchair over the step at the entrance door. In addition, the applicant could access the building if her personal assistant opened the second half of the main entrance door, which normally remained closed, and angled the wheelchair slightly to the left when passing through the door. The District Court considered that the applicant's requests would disproportionately affect the rights of the other flat owners. In particular, the modifications demanded by the applicant would hinder the "thermal comfort" (confortul termic) of the flats on the ground floor. The court also ordered the applicant to pay 600 Romanian lei (RON) to the owners' association as reimbursement for its legal costs.

10. The applicant lodged an appeal with the Galaț i County Court, arguing that the District Court had failed to include in its report following the judge's visit of 14 November 2014 the fact that the door had been fitted with a pneumatic system and that the wheelchair had been difficult to manoeuvre. She furthermore reiterated that her assistant had been a 73–year–old man, whereas the neighbour who had also been asked to manoeuvre the applicant's wheelchair had been much younger and had been used to manoeuvring wheelchairs frequently, as she worked as a nurse in a hospital.

11. In a final decision of 21 October 2015 served on the applicant on 12 February 2016, the County Court allowed the appeal only in so far as the level of costs was concerned and reduced it to RON 200. The County Court upheld the remainder of the judgment given by the District Court. The relevant parts read as follows:

"The threshold from the third door in the building does not limit the applicant's rights, as guaranteed by the applicable laws. It can be crossed [with the aid of] a few manoeuvres, as the first-instance court correctly assessed during its visit to the building. Removing the threshold would be an excessive measure and would harm the interests of the ground-floor flat owners. The additional door and the threshold were installed in order to ensure the thermal comfort of the occupants. Only a few manoeuvres are necessary [in order to cross the threshold] and they do not require a particular effort [un effort deosebit] on the part of the applicant's assistant. While it is true that the applicant benefits from the protection of Law no. 448/2006, [the rights guaranteed by Law 448] must also be assessed in relation to her neighbours' rights.

Removing the threshold would constitute an excessive measure given that, with a minimal effort, the wheelchair can cross it.

Repositioning the main entrance door and its hinges would also [constitute] an excessive measure. The wheelchair can cross if the left half of the door is opened and the wheelchair is angled slightly. Repositioning the hinges is also not possible because of the gas pipes."

2. Developments after the final decision

12. In 2016 the outer metal door was replaced with a new door, which had a wider opening and was easier to navigate in a wheelchair. Additionally, the original ramp, which had been built by the applicant and her spouse, was replaced with a new one.

13. On 27 March and 5 October 2017 the Galaţi County Agency for Payments and Social Inspection (Agenţia Judeţeană pentru Plăţi şi Inspecţie Socială Galaţi) visited the applicant's building, at the Government's request. It noted that currently the building had "an access ramp provided with a handrail on the right-hand side and the doors [allowed] access with a wheelchair and [complied] with the norms...".

B. Relevant domestic law and practice

14. The evolution of the legislation concerning the protection afforded to people with disabilities, as well as the relevant domestic practice, is detailed in Gherghina v. Romania ((dec.) [GC], no. 42219/07, §§ 34-56, 9 July 2015).

Zarzuty

COMPLAINT

15. Relying on Articles 8 and 14 of the Convention, the applicant complained that she could not enjoy a normal life because she could not leave her flat, as the main entrance to her residential building was obstructed.

Uzasadnienie prawne

THE LAW

16. The applicant complained that she was unable to enjoy a normal life because the main entrance to her residential building was obstructed. The application was communicated under Articles 8 and 14 of the Convention, which read as follows:

Article 8

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

A. The parties' submissions

1. The Government

17. The Government raised several objections to the admissibility of the application. In particular, they considered that the applicant had failed to observe the six-month time-limit imposed by the Convention, as her letter, dated 12 August 2016, could not have been posted before 13 August 2016, thus more than six months after the date when the applicant had been notified of the final court decision, on 12 February 2016. They also argued that after the adoption of the 21 October 2015 decision, the applicant's access to her physical environment had been improved and she could no longer claim to be a victim of a violation of her rights.

18. The Government further pointed out that the applicant had withdrawn her complaint concerning the operation of the lift in her building. Furthermore, they contended that the bailiff had done everything within his power to assist the applicant in the enforcement of the interim order. The applicant, however, had not lodged any complaint regarding the bailiff's inactivity and had failed to request permission from a court to carry out the works herself. Therefore, the complaint should be declared inadmissible for non-exhaustion of domestic remedies.

19. The Government further argued that the courts had taken into account the applicant's needs and had observed her environment by means of undertaking an investigation. Their conclusion that her ability to access to the building had not been hindered had rendered any request for further changes unnecessary. Their decision had thus taken into consideration all the interests at stake and had carefully balanced them against each other.

2. The applicant

20. The applicant contested the Government's assertions concerning the six-month time-limit and reiterated that the application form had been posted on 11 August 2016 and that the date of 12 August 2016 had been erroneously entered on the form. She further contended that she had received neither acknowledgement of nor redress for the violations suffered. She noted that the interim proceedings had lasted in total approximately nine months: four months for the court proceedings and another five months for the enforcement stage - a length of time which was excessive, considering the urgent nature of the proceedings. Moreover, because she had been living in a state of poverty she could not have afforded to cover the cost of the above-mentioned works, even temporarily, if she had sought the court's approval to undertake those works herself. Lastly, she argued that once the courts had dismissed her main action on 18 December 2014, any attempt at enforcing the interim order would have been devoid of any chance of success.

21. The applicant further argued that the State's responsibility in the present case derived not from the actions of private parties, but from its failure to secure to the applicant the exercise of her rights and from its own undertakings to gradually improve the accessibility of disabled people to the "built-up environment".

22. She pointed out that she needed certain accommodation to be made in order to be able to access her building. She contested the Government's assertions that her ability to access the building was "real and normal", and reiterated that her requests to be afforded access to her physical environment had been considered to be disproportionate to the "thermal comfort" of some of her neighbours. She felt that this balancing exercise had been particularly cynical and had demonstrated a lack of empathy and understanding of the rights of people with disabilities. She considered that the domestic court's analysis had been perfunctory and superficial, despite the gravity of what had been at stake for her.

23. Lastly, the applicant argued that the domestic courts should have also examined the obligations incumbent on the owners association, not only to secure access to people with disabilities but also to administer, maintain, and repair the common parts of the buildings.

B. The Court's assessment

1. General principles

24. The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002–III, and Di Trizio v. Switzerland, no. 7186/09, § 63, 2 February 2016).

25. The Court further observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007–V).

26. The Court has already held that, in order to comply with the requirements of Article 14 of the Convention, the States have an obligation to make reasonable accommodation in the case of people with disabilities (see Çam v. Turkey, no. 51500/08, § 65, 23 February 2016).

27. Lastly, the Court considers it useful to reiterate that when it comes to establishing the facts, it is sensitive to the subsidiary nature of its task and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Bărbulescu v. Romania [GC], no. 61496/08, § 129, 5 September 2017 (extracts)).

2. Application of those principles to the facts of the case

28. The Court notes at the outset that the Government raised several objections of inadmissibility in the course of the case. However, it considers that it is not necessary to examine them because, even assuming that Article 8 is applicable in the case (see, mutatis mutandis, Mółka v. Poland (dec.), no. 56550/00, 11 April 2006, and Botta v. Italy, 24 February 1998, § 35, Reports of Judgments and Decisions 1998–I), the application is anyway inadmissible on other grounds.

29. The Court notes that on 14 November 2014 the judge in charge of hearing the main action visited the building and assessed the applicant's wheelchair access via the system of doors and ramps installed at the building's entrance (see paragraph 8 above). On this occasion, the judge concluded that the applicant's wheelchair could pass through the doors and that even her husband, who acted as her personal assistant, could manage the manoeuvres necessary for accessing the building (see paragraph 9 above). The applicant's allegations of lack of access (see paragraph 15 above) are therefore not supported by the domestic court's findings. The Court has no reasons to contradict those findings, which were reached after the domestic court authorities had established direct contact with the applicant and had made a direct assessment of her physical environment. The Court furthermore notes that the applicant, who had a legal right to a personal assistant, could have sought the services of a State-paid personal assistant, but preferred to assign this task to her husband. In this context, the Court, taking into account the domestic courts' findings of fact, accepts that the applicant is able to pass through the main doors, albeit only by undertaking certain manoeuvres.

30. Moreover, the Court observes that in assessing the applicant's situation, the domestic courts weighed the hardship endured by her against the interests of the other inhabitants of her building (see paragraphs 9 and 11 above). The State authorities were mindful of the applicant's situation and of her right to receive special protection because of her disability (see paragraph 11 above). They also took into account the situation of her personal assistant (see paragraph 9 above). The courts compared the applicant's situation with that of the building's other inhabitants, but also assessed how easy - comparatively speaking - her access would be should she have a different personal assistant. The Court considers that the domestic courts gave convincing reasons when explaining why the measures requested by the applicant would be excessive.

31. Reiterating the fact that the States enjoy a wide margin of appreciation when they are required to strike a balance between competing private and public interests or Convention rights (see, mutatis mutandis, S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011) the Court does not find any reason, let alone a cogent reason, to substitute its view for that expressed in the domestic decisions, as the applicant urged the Court to do (see, mutatis mutandis, MGN Limited v. the United Kingdom, no. 39401/04, § 155, 18 January 2011). Therefore, in the light of all the material before it, the Court concludes that the domestic courts struck a fair balance between the competing interests, took account of the applicant's special needs and gave relevant and sufficient reasons for their decisions.

32. Accordingly, the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Sentencja

FOR THESE REASONS, THE COURT, BY A MAJORITY,

Declares the application inadmissible.

Done in English and notified in writing on 21 February 2019.

Marialena Tsirli

Ganna Yudkivska

Registrar

President