THIRD SECTION
DECISION
Application no. 39369/18
Kostadinka Nikolova KUNEVA
against Greece
The European Court of Human Rights (Third Section), sitting on 29 April 2025 as a Committee composed of:
Peeter Roosma, President,
Ioannis Ktistakis,
Lətif Hüseynov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 39369/18) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2018 by a Bulgarian national, Ms Kostadinka Nikolova Kuneva (“the applicant”), who was born in 1964, lives in Athens and was represented by Mr H. Tagaras, a lawyer practising in Athens;
the decision to give notice of the complaints under the procedural limb of Articles 2 and 3 of the Convention to the Greek Government (“the Government”), represented by their Agent, Mrs N. Marioli, President at the State Legal Council and their Agent’s delegate, Mr K. Georgiadis, Legal Advisor at the State Legal Council, and to declare the remainder of the application inadmissible;
the parties’ observations;
noting that the Bulgarian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the vitriolic attack on a trade unionist in the street by unknown people, which resulted in her disfigurement and partial blindness. The applicant complained about the alleged failure of the judicial authorities to identify the attackers, establish the liability of her employer and to award her compensation for non-pecuniary damage.
2. The applicant was hired in 2003 by a company to provide cleaning services in the Electric Railway stations. The applicant became involved in trade union activities, which resulted in tension between her and the employer company.
3. On 22 December 2008, while the applicant was returning to her home from her workplace, she was violently attacked by two unknown men, who immediately fled the scene. Following the applicant’s admission to the intensive care unit, it was found that she suffered from second and third‑degree chemical burns on her face, neck, scalp, the front and back of her thorax, neck, left shoulder and back, left-side occipital area, her hands and parts of her left arm, burns in the corneas of both eyes, her mouth and pharynx. The applicant was intubated, could not speak or swallow and stayed in the hospital from 23 December 2008 until 7 December 2009, where she underwent multiple surgeries. She was further hospitalised both in Greece and abroad for large periods of time, but she never fully recovered. As concluded by the domestic courts, her serious injuries could have resulted in her death either instantly due to the chemical burns or during her hospitalisation due to the possibility of septic complications from her burns.
4. Following the attack on the applicant, criminal proceedings were initiated ex officio for attempted murder with intent, and incitement to that crime. Following the conclusion of the preliminary investigation, the case file was archived to the Unknown Perpetrators Archive by an order of the Public Prosecutor of the Athens Court of First Instance dated 19 January 2015. Following the applicant’s request in 2016, the case file was retrieved from the Archive and further investigation was conducted. E.R. was identified as a possible suspect. By its Order no. 3096/2017 published on 25 July 2017, the Athens Board of Misdemeanour Judges decided not to press charges against E.R. as there was no evidence against him, the applicant not having recognised him as the perpetrator of the assault on her.
5. In 2011, the applicant lodged with the Athens One-member Court of First Instance an application against the employer company, requesting pecuniary and non-pecuniary damage, as it had been known prior to the assault that she was in danger and the employer company had failed to take appropriate measures. By its decision no. 3429/2013, the first-instance court held that the assault against the applicant fell within the concept of “work accident”, as it happened when she was returning from work. Moreover, the employer company should have known that the applicant was in danger due to her trade union activities for which she had received threats and, consequently, should have received the appropriate measures, such as assigning her to a duty station closer to her home and to the morning shift, for her protection. It awarded the applicant 250,000 euros (EUR). The decision was reversed by the Piraeus Court of Appeal by its decision no. 9/2016, which held that the assault could not be attributed to negligence by the employer company. In particular, neither the tension between the applicant and the employer company nor the tense relationships between the applicant and other employees who disagreed with the applicant’s trade union activities were incidents that should have objectively led the company to change the schedule or workplace of the applicant in order to avoid the assault, as there had been no indication that it would take place before it happened. Moreover, while the applicant had requested the modification of her schedule and workplace on multiple occasions before the incident, she had never invoked a danger to her security as the reason. The latter decision was upheld by the Court of Cassation by its decision no. 959/2018 which was pronounced on 22 May 2018.
THE COURT’S ASSESSMENT
6. The applicant complained under Articles 2 and 3 of the Convention about the alleged failure of the judicial authorities to identify the attackers and draw the necessary conclusions to establish the liability of her employer and to award her compensation for non-pecuniary damage.
7. Having regard to the fact that the applicant suffered serious life‑threatening injuries (see paragraph 3 above), the Court considers that the complaint falls to be examined under Article 2 of the Convention (see Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 139, 142-43, 25 June 2019).
8. The Government submitted that the applicant had not complied with the six-month time-limit in respect of the two separate sets of criminal investigation which had been completed more than six months before the introduction of the application. In the alternative, the Government argued that the applicant had not exhausted the domestic remedies, as she had failed to introduce an action for damages under Article 105 of the Introductory Law to the Civil Code.
9. The Court does not need to rule separately on all of the Government’s objections, as the present application is in any event inadmissible for the reasons set out below.
10. The Court refers to its established case-law pertaining to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 129-132 and 134-136, 19 December 2017). The Court reiterates that, in the event of death or life-threatening physical injury, the State’s duty to safeguard the right to life must be considered to also involve having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. The form of investigation required by this obligation varies according to the nature of the interference with the right to life. Article 2 may, and under certain circumstances must, include recourse to the criminal law. For instance, where death has been caused intentionally, a criminal investigation is generally necessary; the same is true when life has intentionally been put at risk (see Nicolae Virgiliu Tănase, cited above, §§ 158-59, with further references). The Contracting Parties’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 234, ECHR 2014 (extracts)).
11. In cases such as these, therefore, the Court has considered that any subsequent civil proceedings undertaken by the applicant were not an adequate and effective remedy within the meaning of Article 35 § 1 which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit (see Lopes, cited above, § 136).
12. Turning into the circumstances of the present case, the Court notes that following the incident that took place on 22 December 2008, criminal proceedings were initiated ex officio and were concluded on 19 January 2015 by an order of the Public Prosecutor of the Athens Court of First Instance. Following the applicant’s request in 2016, the case file was reopened and concluded on 25 July 2017 by an order the Athens Board of Misdemeanour Judges (see paragraph 4 above). The criminal proceedings were thus separated into two distinct phases and the applicant should have introduced her application as regards the respective parts of the investigation within six months of the date on which each set of the proceedings was concluded (see Tsalikidis and Others v. Greece, no. 73974/14, § 52, 16 November 2017), and in any event no later than six months after the latter decision of 25 July 2017.
13. The Court observes that the applicant lodged her application with the Court on 12 August 2018, that is, within six-months from the final judgment of the Court of Cassation ending the civil proceedings (see paragraph 5 above). These proceedings aimed solely at obtaining compensation from her employer for acts, for which no criminal liability had been established. They cannot therefore be said to be an adequate and effective remedy within the meaning of Article 35 § 1, which the applicant had to exhaust and which should therefore be taken into account for the purposes of the six-month time‑limit (see Güzüpek v. Turkey (dec.), no. 51181/10, § 47, 26 February 2019).
14. In conclusion, in view of the above, the Court finds that the application has been lodged out of time and must be rejected under 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 May 2025.
Olga Chernishova Peeter Roosma
Deputy Registrar President