FOURTH SECTION<\/p>\n
DECISION<\/p>\n
Application no.49651\/16
\nVirginia NEAGU
\nagainst Romania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 13\u00a0November 2018 and on 29 January 2019 as a Chamber composed of:<\/p>\n
Ganna Yudkivska, President,
\nPaulo Pinto de Albuquerque,
\nVincent A. De Gaetano,
\nIulia Antoanella Motoc,
\nGeorges Ravarani,
\nMarko Bo\u0161njak,
\nP\u00e9terPaczolay, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n
Having regard to the above application lodged on 11 August 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/p>\n
1.\u00a0\u00a0The applicant, Ms Virginia Neagu, is a Romanian national, who was born in 1945 and lives in Gala\u0163i. She was represented before the Court by Mr C. Cojocariu, a lawyer practising in Orpington, the United Kingdom.<\/p>\n
2.\u00a0\u00a0The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/p>\n
3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n
4.\u00a0\u00a0On 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.<\/p>\n
5.\u00a0\u00a0According to the applicant, in 2013 C.I., the chairman of the owners\u2019 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\u2019s lift had been out of order for long periods of time before becoming operational again in 2013.<\/p>\n
6.\u00a0\u00a0On 17 June 2013 the applicant brought an action (hereinafter \u201cthe main action\u201d) against the owners\u2019 association in order to compel it to render the building\u2019s lift fully operational, to remove the threshold, and to reposition the main entrance door\u2019s 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\u00a014 below) and on the Civil Code.<\/p>\n
7.\u00a0\u00a0Meanwhile, 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 Gala\u021bi County Court allowed the interim application and ordered the owners\u2019 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\u2019s 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\u2019 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\u2019 association, or to ask that a penalty be imposed on the debtor. She did not take any of the action indicated by the bailiff.<\/p>\n
1.\u00a0\u00a0The court proceedings<\/p>\n
8.\u00a0\u00a0On 14 November 2014 the judge in charge of the applicant\u2019s action, together with her court clerk, visited the applicant\u2019s building and examined the access facilities for wheelchairs. They met with C.I., the applicant and V.P. The judge found as follows:<\/p>\n
\u201c- The plaintiff Neagu Virginia is in a wheelchair and needs a personal assistant;<\/p>\n
– She came down from the first floor in the lift;<\/p>\n
– The lift has been operational since 1 May 2013 \u2013 before the date when the interim measures were taken \u2013 as Mr [C.I.] affirms; …<\/p>\n
– 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\u00a0November\u00a02014, because it had been removed during the execution by the bailiff of the interim order;<\/p>\n
– The applicant\u2019s spouse, when he manoeuvres the applicant in her wheelchair over the threshold, affirms that he encounters difficulties;<\/p>\n
– Another man was asked to manoeuvre the wheelchair and he affirmed that he did not encounter any difficulty crossing the step;<\/p>\n
– One of the plaintiff\u2019s 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;<\/p>\n
– The threshold is set under the third door, the closest to the lift;<\/p>\n
– In order to push the wheelchair through the second door, both halves of the door must be opened by pushing them …;<\/p>\n
– 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;<\/p>\n
– It is observed that the wheelchair does not fit if only one half of the door is opened;<\/p>\n
– The plaintiff\u2019s 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;<\/p>\n
– It is observed that the plaintiff\u2019s 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;<\/p>\n
– 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;<\/p>\n
– The ramp was built by the plaintiff\u2019s spouse;<\/p>\n
– There are two hinges on the metal door aligned with the ramp, but the door cannot be realigned because of [adjacent] gas pipes; …\u201d<\/p>\n
9.\u00a0\u00a0On 18 December 2014 the Gala\u021bi District Court dismissed the main action lodged by the applicant against the owners\u2019 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\u2019s access to the building had not been obstructed. In particular, everyone but the applicant\u2019s 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\u2019s requests would disproportionately affect the rights of the other flat owners. In particular, the modifications demanded by the applicant would hinder the \u201cthermal comfort\u201d (confortultermic) of the flats on the ground floor. The court also ordered the applicant to pay 600\u00a0Romanian\u00a0lei (RON) to the owners\u2019 association as reimbursement for its legal costs.<\/p>\n
10.\u00a0\u00a0The applicant lodged an appeal with the Gala\u021bi County Court, arguing that the District Court had failed to include in its report following the judge\u2019s 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\u2011year\u2011old man, whereas the neighbour who had also been asked to manoeuvre the applicant\u2019s wheelchair had been much younger and had been used to manoeuvring wheelchairs frequently, as she worked as a nurse in a hospital.<\/p>\n
11.\u00a0\u00a0In a final decision of 21 October 2015 served on the applicant on 12\u00a0February\u00a02016, 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:<\/p>\n
\u201cThe threshold from the third door in the building does not limit the applicant\u2019s 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\u2019s 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\u2019 rights.<\/p>\n
Removing the threshold would constitute an excessive measure given that, with a minimal effort, the wheelchair can cross it.<\/p>\n
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.\u201d<\/p>\n
2.\u00a0\u00a0Developments after the final decision<\/p>\n
12.\u00a0\u00a0In 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.<\/p>\n
13.\u00a0\u00a0On 27 March and 5 October 2017 the Gala\u0163i County Agency for Payments and Social Inspection (Agen\u0163iaJude\u0163ean\u0103pentruPl\u0103\u0163i\u015fiInspec\u0163ieSocial\u0103Gala\u0163i) visited the applicant\u2019s building, at the Government\u2019s request. It noted that currently the building had \u201can access ramp provided with a handrail on the right-hand side and the doors [allowed] access with a wheelchair and [complied] with the norms…\u201d.<\/p>\n
B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n
14.\u00a0\u00a0The 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, \u00a7\u00a7\u00a034-56, 9\u00a0July\u00a02015).<\/p>\n
COMPLAINT<\/p>\n
15.\u00a0\u00a0Relying 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.<\/p>\n
THE LAW<\/p>\n
16.\u00a0\u00a0The 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:<\/p>\n
Article 8<\/p>\n
\u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n
2.\u00a0\u00a0There 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.\u201d<\/p>\n
Article 14<\/p>\n
\u201cThe 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.\u201d<\/p>\n
A.\u00a0\u00a0The parties\u2019 submissions<\/p>\n
1.\u00a0\u00a0The Government<\/p>\n
17.\u00a0\u00a0The 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\u00a0August\u00a02016, 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\u00a0October 2015 decision, the applicant\u2019s access to her physical environment had been improved and she could no longer claim to be a victim of a violation of her rights.<\/p>\n
18.\u00a0\u00a0The 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\u2019s 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.<\/p>\n
19.\u00a0\u00a0The Government further argued that the courts had taken into account the applicant\u2019s 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.<\/p>\n
2.\u00a0\u00a0The applicant<\/p>\n
20.\u00a0\u00a0The applicant contested the Government\u2019s 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 \u2013 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\u2019s approval to undertake those works herself. Lastly, she argued that once the courts had dismissed her main action on 18\u00a0December\u00a02014, any attempt at enforcing the interim order would have been devoid of any chance of success.<\/p>\n
21.\u00a0\u00a0The applicant further argued that the State\u2019s 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 \u201cbuilt-up environment\u201d.<\/p>\n
22.\u00a0\u00a0She pointed out that she needed certain accommodation to be made in order to be able to access her building. She contested the Government\u2019s assertions that her ability to access the building was \u201creal and normal\u201d, and reiterated that her requests to be afforded access to her physical environment had been considered to be disproportionate to the \u201cthermal comfort\u201d 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\u2019s analysis had been perfunctory and superficial, despite the gravity of what had been at stake for her.<\/p>\n
23.\u00a0\u00a0Lastly, 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.<\/p>\n
B.\u00a0\u00a0The Court\u2019s assessment<\/p>\n
1.\u00a0\u00a0General principles<\/p>\n
24.\u00a0\u00a0The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article\u00a08 (see Pretty v. the United Kingdom, no. 2346\/02, \u00a7\u00a061, ECHR\u00a02002\u2011III, and Di Triziov.Switzerland, no. 7186\/09, \u00a7\u00a063, 2\u00a0February\u00a02016).<\/p>\n
25.\u00a0\u00a0The 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\u2019s 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, \u00a7 70, ECHR 2007\u2011V).<\/p>\n
26.\u00a0\u00a0The 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 \u00c7am v.Turkey, no. 51500\/08, \u00a7 65, 23 February 2016).<\/p>\n
27.\u00a0\u00a0Lastly, 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\u2019s 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 (seeB\u0103rbulescu v. Romania [GC], no. 61496\/08, \u00a7\u00a0129, 5\u00a0September\u00a02017 (extracts)).<\/p>\n
2.\u00a0\u00a0Application of those principles to the facts of the case<\/p>\n
28.\u00a0\u00a0The 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\u00a08 is applicable in the case (see, mutatis mutandis, M\u00f3\u0142kav.\u00a0Poland (dec.), no. 56550\/00, 11 April 2006, and Botta v. Italy, 24\u00a0February\u00a01998, \u00a7\u00a035, Reports of Judgments and Decisions 1998\u2011I), the application is anyway inadmissible on other grounds.<\/p>\n
29.\u00a0\u00a0The Court notes that on 14 November 2014 the judge in charge of hearing the main action visited the building and assessed the applicant\u2019s wheelchair access via the system of doors and ramps installed at the building\u2019s entrance (see paragraph 8 above). On this occasion, the judge concluded that the applicant\u2019s 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\u00a09 above). The applicant\u2019s allegations of lack of access (see paragraph\u00a015 above) are therefore not supported by the domestic court\u2019s 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\u2019 findings of fact, accepts that the applicant is able to pass through the main doors, albeit only by undertaking certain manoeuvres.<\/p>\n
30.\u00a0\u00a0Moreover, the Court observes that in assessing the applicant\u2019s 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\u2019s situation and of her right to receive special protection because of her disability (see paragraph\u00a011 above). They also took into account the situation of her personal assistant (see paragraph 9 above). The courts compared the applicant\u2019s situation with that of the building\u2019s other inhabitants, but also assessed how easy \u2013 comparatively speaking \u2013 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.<\/p>\n
31.\u00a0\u00a0Reiterating 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, \u00a7 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.\u00a039401\/04, \u00a7 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\u2019s special needs and gave relevant and sufficient reasons for their decisions.<\/p>\n
32.\u00a0\u00a0Accordingly, the application is manifestly ill-founded and must be rejected, in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n
For these reasons, the Court, by a majority,<\/p>\n
Declares the application inadmissible.<\/p>\n
Done in English and notified in writing on 21 February 2019.<\/p>\n
Marialena Tsirli\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 GannaYudkivska
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n","protected":false},"excerpt":{"rendered":"
FOURTH SECTION DECISION Application no.49651\/16 Virginia NEAGU against Romania The European Court of Human Rights (Fourth Section), sitting on 13\u00a0November 2018 and on 29 January 2019 as a Chamber composed of: Ganna Yudkivska, President, Paulo Pinto de Albuquerque, Vincent A.…<\/p>\n