FOURTH SECTION

DECISION

Application no . 20026/12 Katarzyna SKRZEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 30 August 2016 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges,

and Andrea Tamietti, Deputy Registrar ,

Having regard to the above application lodged on 26 March 2012,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Katarzyna Skrzek, is a Polish national who was born in 1944 and lives in Warsaw. She is represented before the Court by Mr T. Siembieda, a lawyer practising in Warsaw.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The applicant ’ s husband abused alcohol and uttered threats of violence against the applicant and their two daughters. She complained about this to the domestic authorities for the first time on 27 December 2003, but later withdrew her complaint. Accordingly, on 30 January 2004 the Piaseczno District Court discontinued the investigation.

4. On 15 March 2004 the applicant lodged another complaint with the police about theft, submitting that her husband had stolen a considerable amount of money from her with a view to making her withdraw the first complaint. On 30 March 2004 the applicant was questioned. She stated that she no longer was in conflict with her husband. On 5 April 2004 the police declined to institute an investigation and their decision was upheld by the prosecutor.

5. On 4 and 10 January 2005 the applicant complained again to the police about her husband having stolen her personal effects, uttered threats of violence and threatened to set the house on fire.

6. An investigation was opened on an unspecified date and subsequently discontinued on 19 May 2005, the police having found that there was no sufficient evidence to establish that E.S. had stolen the applicant ’ s property or employed violence against her. Following an appeal by the applicant, in which she reiterated that he had often uttered threats – for example, that he would set the house on fire – a court ordered the investigation to be resumed. This decision was subsequently approved by the Piaseczno District Prosecutor on 23 May 2005.

7. In July 2005 the Warsaw Regional Court issued a divorce decree, dissolving the applicant ’ s marriage. The court found that the marital breakdown was exclusively the fault of E.S.

8. E.S. appealed.

9. On 19 August 2005 the applicant complained again to the police about threats made by E.S. When she was questioned the applicant alleged that E.S. was continuing to make threats against her and her daughters; in particular, he threatened to set the applicant and their house on fire. She was increasingly afraid to live under the same roof as him.

10. On 30 September 2005 a bill of indictment against E.S. was filed with the court. He was charged with stealing from the applicant and with committing domestic violence – an offence punishable under Article 207 § 1 of the Criminal Code – between 1 March 2003 and 7 September 2005, namely, uttering threats to kill her and set fire to the house, insulting her, and shaking and pushing her.

11. On 13 December 2005 the applicant requested the Warsaw District Court to set the date for the first hearing. She submitted that she continued to live with E.S. in the same house and that she felt threatened by his conduct. The presiding judge scheduled the first hearing for 8 March 2006. At that hearing the court assigned two expert psychiatrists with a view to establishing whether E.S. was fit to stand trial.

12. On 9 March 2006 the applicant again requested that a criminal investigation against E.S. be instituted, alleging a new instance of violence and threats to kill her.

13. On 13 April 2006 expert psychiatrists examined E.S.; they found that that single examination had not enabled sufficient clinical observations for them to form an opinion. At the hearing held on 19 April 2006 the experts requested the court to have him placed in a psychiatric hospital for six weeks of observation.

14. On 21 April 2006 the Warsaw Court of Appeal dismissed E.S. ’ s appeal against the divorce judgment. It upheld the findings of fact of the first-instance court regarding his abusive conduct throughout the marriage.

15. On 26 April 2006 the police discontinued the investigation instituted following the applicant ’ s request of 9 March 2006 (see paragraph 12 above). They were of the view that in the absence of evidence – other than that given by the applicant and her daughters, who lacked objectivity – and because E.S. had refused to give evidence, there were no sufficient grounds for bringing charges against him. This decision was approved by the Piaseczno district prosecutor on 28 April 2006. The applicant appealed.

16. On 4 May 2006 E.S. set fire to the couple ’ s house. He died in the fire. The house was almost completely destroyed. An expert opinion dated 25 June 2006 stated that the house had been deliberately set on fire.

17. On 25 October 2006 the Warsaw-Mokotów District Court upheld the prosecutor ’ s decision of 28 April 2006 (see paragraph 15 above), ruling that there was no sufficient evidence to institute criminal proceedings on charges of domestic violence against E.S.

18. On 30 May 2008 the Piaseczno district prosecutor discontinued the investigation concerning the fire. The district prospector noted that a farewell letter from E.S. had been found in the remnants of the building. The letter, together with certain items also found there, had indicated that E.S. had set the house on fire.

19. In June 2007 the applicant brought a civil action against the State under the provisions of civil law on liability in tort. She claimed compensation in respect of the value of the house and in respect of the non-pecuniary damage that she had suffered. She claimed that the State had failed to provide her with adequate protection against her husband ’ s dangerous behaviour and violence. The authorities had been aware that he was violent towards her and that he had repeatedly uttered threats against her, including repeated threats to set the house on fire. Criminal proceedings against him had been instituted, but as they had been conducted very slowly, they had amounted to no real protection against E.S. As a result, he had set the marital house on fire and the applicant lost her home.

20. By a judgment of 7 May 2010 the Warsaw Regional Court dismissed the applicant ’ s claim, finding that there was no causal link between the State authorities ’ acts and omissions and the fact that E.S. had set the house on fire. On 5 May 2011 the Warsaw Court of Appeal dismissed the applicant ’ s appeal. This judgment, together with its written reasoning, was served on the applicant ’ s legal-aid lawyer on 26 August 2011.

21. On 5 October 2011 the applicant asked the lawyer whether a cassation appeal with the Supreme Court could be lodged in her case.

22. By a letter of 26 October 2011 the lawyer informed the applicant that there were no grounds on which to lodge a cassation appeal with the Supreme Court.

COMPLAINTS

23. The applicant complained that the State had failed to fulfil its positive obligation to protect her from domestic violence by failing to take appropriate, timely and effective steps. She further complained that her right to respect for her home had been breached as the State had failed to prevent her husband from setting the marital house on fire, despite the fact that she had repeatedly informed the authorities of his threats to this effect. The applicant relied on Articles 3, 8 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention.

THE LAW

24. The applicant complained that the State had failed to fulfil its positive obligation to protect her from domestic violence by failing to take appropriate, timely and effective steps. The applicant relied on Articles 3, 8 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention.

Article 35 § 1 of the Convention stipulates:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

25. The Government argued that the applicant had failed to submit her case to the Court within the six-month time-limit provided for by Article 35 § 1 of the Convention. They were of the view that the time-limit had started to run on 27 August 2011, a day after the judgment of the appellate court had been served on the applicant ’ s lawyer (see paragraph 20 above), and had ended on 27 February 2012. The application had been brought before the Court on 26 March 2012.

26. The Government further argued that the judgment of the appellate court was final and enforceable. The cassation appeal which the applicant had sought to have lodged on her behalf should be regarded as an extraordinary remedy. The applicant had therefore not been obliged to bring her case before that court by means of a cassation appeal.

27. The applicant disagreed. She submitted that under Polish law, legal representation before the Supreme Court was mandatory. Hence, she had been obliged to seek legal advice as to the possibility of a cassation appeal in her case. Lodging her application with the Court prior to attempting to lodge a cassation appeal would have exposed her to the risk of seeing her case rejected for failure to exhaust domestic remedies. It was ultimately only the legal opinion on the non-availability of a further remedy that had triggered the start of the running of the six month time-limit.

28. The Court reiterates that the primary purpose of the six-month rule is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 39, 29 June 2012).

29. The Court further reiterates its established case-law pertaining to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined. The requirement of exhaustion provides States with an opportunity to put matters right through their own legal system before answering to an international tribunal (see Akdivar and Others v. Turkey , 16 September 1996, § 65).

However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient ( Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006 ‑ II). Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. UK (dec.), no. 57420/00, 21 March 2000, ECHR 2003-I). Where an applicant has tried a remedy that the Court considers ineffective, the time taken to do so will not i nterrupt the running of the six ‑ month time-limit, which may lead to the application being rejected as out of time (see Rezgui v. France (dec.), no. 49859/99 , ECHR 2000 ‑ XI, Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999; Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002 and Sapeyan v. Armenia , no. 35738/03, § 21, 13 January 2009).

30. The Court first notes that the applicant instituted civil proceedings claiming compensation for damage suffered on account of the alleged failure of the State to protect her against her violent husband (see paragraph 19 above).

31. The Court will leave open the question of whether civil proceedings for damages are a relevant remedy in respect of complaints about the State ’ s alleged failure to protect the applicant against domestic violence because, for the following reasons, it considers that the application has been introduced out of time.

32. The applicant was represented by a lawyer in civil proceedings. On 26 August 2011 the appellate court ’ s judgment of 5 May 2011 was served on the lawyer concerned (see paragraph 20 above) and it was on that date that the applicant ’ s legal representative became aware of that judgment. It was from this date onwards that it became open to the applicant to consult the lawyer as to the availability and prospects of success of a further remedy, namely a cassation appeal to the Supreme Court. The applicant failed to do so in a timely fashion. It was not argued, let alone shown, that the applicant had been prevented in any way from getting in touch with the lawyer earlier then on 5 October 2011. In these circumstances, the Court considers that the point of departure for the six-month time-limit provided for by Article 35 § 1 of the Convention should be fixed at 26 August 2011 and not at a later date, such as the date on which the applicant was informed by her lawyer that there were no grounds on which to lodge a further appeal against the judgment of 5 May 2011 (see paragraph 22 above). The court further notes that the applicant lodged her application on 26 March 2012, which is more than six months after the da te of the serving of the second ‑ instance judgment on her lawyer.

33. Accordingly, the application has been introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 September 2016 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President