October 03, 2012
Is the roof of the house in which you own a flat leaking? Is there a delay in repairs? Do you have to repaint the walls? Is there a delay of enforcement of decisions that ordered the repairs? These now seem to be valid questions for your potential human rights violation.
In the case of Bjelajac v. Serbia the Court found a violation of Article 1 of Protocol No.1 due to unjustified delay in enforcing a national court’s ruling. The ruling in substance was about a leaking roof of a house in which the applicant owned a flat.
The applicant also complained of a breach of her property rights because of the failure to enforce certain administrative decisions. These decisions in substance concerned an occupation of some of the common premises of the apartment building by some of the tenants, restricting the use of the premises by others. To this claim, the Court responded by applying the admissibility criterion that requires the applicant to demonstrate a significant disadvantage before the case will be assessed on its merits by the international Court. And the Court found that the applicant had not suffered a significant disadvantage in this situation and declared this part of the application inadmissible.
Returning to the leaking roof part of the claim, the Court did not apply the ‘significant disadvantage criterion’. From the Court’s case law one can see that the criterion applies where, notwithstanding a potential violation of a right from a purely legal point of view, the level of severity attained does not warrant consideration by an international court (see Adrian Mihai Ionescu v. Romania, Korolev v. Russia; read a post here ). Further, the level of severity shall be assessed in the light of the financial impact of the matter in dispute and the importance of the case for the applicant.
Taking a closer look at the particular circumstances of this case, from the text of the judgment one can see that the damage done to the flat was of a kind that repainting of walls was necessary and amounted (in the view of a national court) to costs of 100 euros (para.11). Another passage of the judgment provides that problems with a leaking roof made the applicant’s living conditions ‘difficult’ (para.7). The applicant was 65 years old at that time. It should also be noted that the roof has been, after a delay, fixed and the applicant received 300 euros from the company for the material damages. Furthermore, the case was properly dealt with by national courts in civil proceedings, ordering the repairing of the roof and paying for the damages done to the flat.
I am more inclined to apply the significant disadvantage criterion also to this part of the application and to find that the situation was not severe enough for it to be assessed in Strasbourg. We know from the facts of the case that only repainting was necessary, so there were no severe damages done to the apartment. I agree that a leaking roof can be stressful and annoying – one has to arrange some pots for the water drops, move things in the apartment so they don’t get wet, the paint on the walls is damaged and it doesn’t look good. But that’s it.