Communicated on 17 February 2015

FOURTH SECTION

Application no. 20026/12 Katarzyna SKRZEK against Poland lodged on 26 March 2012

STATEMENT OF FACTS

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

The circumstances of the case

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

The applicant ’ s husband abused alcohol and uttered threats of violence against the applicant and her two daughters. She complained about this to the domestic authorities for the first time on 27 December 2003, but later she withdrew her complaint.

Accordingly, on 30 January 2004 the Piaseczno District Court discontinued the investigation.

On 15 March 2004 the applicant lodged another complaint about theft, submitting that her husband had stolen securities valued at 204,000 Polish zlotys (PLN) (approx.50 ,000 euros (EUR)) and other savings, with a view to making her withdraw her first complaint.

On 5 April 2004 the police refused to institute the investigation and their decision was upheld by the prosecutor.

On 4 and 10 January 2005 the applicant complained again about her husband having stolen her personal effects and personal papers, blocking access to the phone, making it impossible for her to invite anyone to their home, uttering threats of violence and threatening to set the house on fire.

During the investigation she had given evidence to the effect that he often shook and pushed her. She said that she had never requested a relevant medical certificate as she was ashamed of being a victim of domestic violence.

An investigation was opened on an unspecified date and subsequently discontinued on 19 May 2005, the police finding that there was no sufficient evidence to establish that E.S. had stolen the applicant ’ s property or used physical violence. Following the applicant ’ s appeal in which she reiterated that she felt she was in danger as he often uttered threats, namely 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.

In July 2005 a divorce dissolving the applicant ’ s marriage was issued, the Warsaw Regional Court finding that E.S. was at exclusive fault for the marital breakdown ( rozwód z winy wyłącznej ). The court found that E.S. had abused alcohol and had frequently been aggressive towards the applicant and her two daughters.

E.S. appealed against this judgment.

On 19 August 2005 the applicant complained again about threats made by E.S.

When she was questioned later in August 2005 during the investigation which had been resumed following the decision approved by the Piaseczno District Prosecutor, the applicant alleged that E.S. continued to make threats against her and her daughters, in particular, that he would set the applicant and their house on fire. She stated that she was increasingly afraid to live under the same roof with him.

On 30 September 2005 a bill of indictment against E.S. was lodged with the court. He was charged with theft to the detriment of the applicant and with domestic violence, an offence punishable under Article 207 para. 1 of the Criminal Code ( znęcanie się ), committed between 1 March 2003 and 7 September 2005 by uttering threats to kill her and set the house on fire, proffering insults, shaking and pushing her. He was also charged with theft.

On 13 December 2006 the applicant requested the Warsaw District Court to set the date for the first hearing in the case. 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 set the first hearing, upon a recommendation of the President of the Division, for 8 March 2006. At that hearing the court assigned two expert psychiatrists with a view to establishing whether E.S. could stand trial.

On 9 March 2006 the applicant again requested that a criminal investigation against E.S. be instituted, referring to an incident of physical violence (in June 2005), threats to kill her (in August and February 2005) and his making it impossible for her to live in the house normally.

On 13 April 2006 the expert psychiatrists examined E.S. and found that one examination had not provided sufficient clinical observations for them to give a decision.

At the hearing held on 19 April 2006 they requested the court to have him placed in a psychiatric hospital for six weeks of observation.

On 21 April 2006 the Warsaw Court of Appeal dismissed E.S. ’ s appeal against the divorce judgment. It fully upheld the findings of fact made by the first-instance court as to his abusive conduct and alcohol abuse throughout the marriage.

On 26 April 2006 the police discontinued the investigation instituted following the applicant ’ s request of 9 March 2006. It had regard to the evidence given by the applicant ’ s daughters and to the fact that in the past, investigations on charges of domestic violence had been conducted following the applicant ’ s complaints. It was of the view that in the absence of evidence other than that given by the applicant and her daughters who lacked objectivity, and also because E.S. had refused to give evidence, there were no sufficient grounds to bring charges against E.S.

This decision was approved by the Piaseczno District Prosecutor on 28 April 2006.

The applicant appealed.

On 4 May 2006 E.S. set the couple ’ s house on fire. He died in the fire. The house was almost completely destroyed.

On 25 October 2006 the Warszawa- Mokotów District Court upheld the prosecutor ’ s decision of 28 April 2006, considering that there was no sufficient evidence to institute the criminal proceedings on charges of domestic violence against E.S.

On 30 May 2008 the Piaseczno District Prosecutor discontinued the investigation concerning the fire. It was noted that a farewell letter from E.S. had been found in the remnants of the building. It transpired therefrom and from certain items found there that he had set the house on fire.

In June 2007 the applicant lodged 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 damages in respect of non-pecuniary damage 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 to her and that he repeatedly uttered threats against her, including repeated threats to set the house on fire. Criminal proceedings against him had been instituted, but as they were conducted very slowly, they 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.

By a judgment of 7 May 2010 the Warsaw Regional Court dismissed her claim, finding in essence 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 Appellate Court dismissed her appeal. This judgment was served on the applicant, together with its written grounds, on an unspecified date.

On 5 October 2011 the applicant hired a lawyer with a view to lodging a cassation appeal with the Supreme Court.

By a letter of 26 October 2011 the lawyer informed the applicant that there were no grounds on which to bring a cassation appeal with the Supreme Court in the case. The cassation grounds could not include issues of admissibility of evidence or the manner in which the court had made findings of fact in the case.

COMPLAINTS

The applicant complains that the State failed to fulfil its positive obligation to protect her from domestic violence by failing to take appropriate, timely and effective steps. She further complains that her right to respect for her home was breached as the State failed to prevent her husband from setting the house on fire, despite the fact that she had repeatedly informed them of his threats to this effect.

The applicant relies on Articles 3, 8 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted effective domestic remedies and complied with the six-month time-limit as required by Article 35 § 1 of the Convention in relation to her complaints under Articles 3 and 8 of the Convention?

2. Has there been a breach of Articles 3 and 8 of the Convention? In particular, were the authorities aware of the threats made to the applicant?

Did they comply with their positive obligation to take all necessary steps to protect the applicant ’ s rights, as required by Articles 3 and 8 (see Osman v. the United Kingdom , 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII)?

Did the authorities conduct a prompt and effective investigation in compliance with the requirements under Article 2, 3 and 8 (see, for example, Opuz v. Turkey , no. 33401/02, §§ 108-13, ECHR 2009) ?