Communicated on 8 December 2020 Published on 11 January 2021

FIRST SECTION

Application no. 70770/16 Tetiana LEBEDENKO-KOROL against Poland lodged on 16 November 2016

STATEMENT OF FACTS

The applicant, Ms Tetiana Lebedenko-Korol , is a Ukrainian national, who was born in 1954 and lives in Marki . The facts of the case, as submitted by the applicant, may be summarised as follows.

On an unknown date the applicant came to Poland. She entered in a relationship with a certain W.K. Since 1989 W.K. had been receiving a police pension ( emerytura milicyjna ).

On 24 February 1995 the applicant and W.K. married.

Between 1995 and 2002 the couple had lived separately, at two different addresses in Gorzów Wielkopolski. In 2002 the applicant, together with her two children from a previous relationship: A.G and N.G, moved to Warsaw while W.K. stayed in Gorzów Wielkopolski.

W.K. died of cancer on 29 August 2004.

On 3 December 2004 the applicant applied for a survivor ’ s pension for herself and her two children: A.G and N.G.

On 13 June 2005 the Social Security Board granted a survivor ’ s pension to A.G and N.K.

On 19 June 2008 the Director of the Social Security Board of the Ministry of Interior ( Zakład Emerytalno-Rentowy Ministerstwa Spraw Wewn ę trznych i Administracji ) refused to grant survivor ’ s pension to the applicant on the ground that at the time of W.K. ’ s death they had not been effectively living in a marital relationship ( faktyczna wspólność małżeńska ). The authority held that during their marriage the applicant and W.K. had not been cohabiting and lived in separately flats. Moreover, the applicant had not taken care of W.K. while he had been ill. She had stayed in Ukraine during the final months of his life and had not participated in his funeral.

The applicant appealed. She submitted that although she had not lived together with W.K. they had maintained a common household. W.K. had supported her financially and participated in the upbringing of her children, A.G. and N.G.

On 29 November 2011 the Warsaw Regional Court dismissed the applicant ’ s appeal. On 25 October 2011 the Warsaw Court of Appeal quashed the first-instance judgment and remitted the case.

On 3 December 2014 the Warsaw Regional Court again dismissed the applicant ’ s appeal. The court held that under section 70 of the Law of 17 December 1998 on pensions from the Social Security Fund ( Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych , “the 1998 Act”), survivor ’ s pension was granted if the widow, at the time of her husband ’ s death had maintained a marital relationship with him. Since the 1998 Act had not included a definition of “maintaining a marital relationship”, the court relied in that respect on the case-law of the Supreme Court and courts of appeal. The court accepted that the fact that the spouses had not lived together was not tantamount to a lack of marital relationship between them. However, the applicant and W.K. had not had any emotional or financial ties and had not maintained a common household. The applicant had not supported W.K. during his terminal illness and found out about his death only several months later. For these reasons the applicant ’ s claim was dismissed.

On 29 April 2016 the Warsaw Court of Appeal dismissed the applicant ’ s further appeal repeating the reasons given by the Regional Court. It held that W.K. and the applicant had lived separately and had not maintained a marital relationship. The court stressed that the fact that they had remained legally married had not been sufficient to confirm their personal and economic ties.

The applicant did not lodge a cassation appeal. She submits that in the circumstances of her case this remedy lacked any prospects of success.

COMPLAINTS

The applicant complains invoking Article 6 of the Convention that the authorities ’ refused to grant her a survivor ’ s benefit solely on the ground that she had not lived with her husband .

QUESTION S TO THE PARTIES

1. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention (compare Muñoz Díaz v. Spain , no. 49151/07, ECHR 2009) ?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?