FIRST SECTION
DECISION
Application no. 904/18
A.K.
against Poland
The European Court of Human Rights (First Section), sitting on 5 December 2024 as a Committee composed of:
Alena Poláčková, President,
Krzysztof Wojtyczek,
Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 904/18) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2017 by a Polish national, Ms A.K. (“the applicant”), who was born in 1979, lives in Poland and, having been granted legal aid, was represented by Mr Konieczyński, a lawyer practising in Katowice;
the decision to give notice of the complaints under Articles 3 and 8 of the Convention, concerning the State’s positive obligations to investigate allegations of acts of domestic violence and to protect the applicant from them, to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
the comments submitted by the Helsinki Foundation for Human Rights, which had been granted leave to intervene by the President of the Section;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns allegations that the State had failed to protect the applicant from domestic violence at the hands of her brother and did not properly investigate her allegations.
2. The applicant lived together with her elderly father and her brother, Z.K. She was employed in the municipal office as a lawyer and managed a family farm.
3. On 17 June 2016 the applicant called the police to intervene in a situation of domestic violence as Z.K. had been threatening and aggressive. The applicant was taken to hospital and, according to a medical certificate, she had sustained bruises on her head, left arm and stomach; at the hospital she learned that she was pregnant.
4. The police registered the case as pertaining to domestic violence and initiated a follow-up procedure of a so called “blue card” (niebieska karta).
5. Z.K. was taken by the police to a hospital and admitted on a voluntary basis to the hospital’s psychiatric ward. Doctors diagnosed him as suffering from a personality disorder.
6. Z.K. was released on 13 July 2016 and, on the same day, the applicant decided to leave the family home, fearing new incidents of violence particularly in view of her pregnancy. Between 13 July 2016 and 13 November 2017 the applicant lived in a shelter for victims of domestic violence.
7. The health of Z.K. deteriorated further and, on 20 March 2018, he died. On 12 March 2020 the applicant’s father also passed away.
8. On 18 June 2016 the applicant lodged a criminal complaint against Z.K. for physical and mental ill-treatment. She complained that her brother had been violent towards her for thirty years, but the situation had deteriorated after their mother’s death in January 2016.
9. On 14 December 2016 the prosecutor charged Z.K. with physical and mental abuse, uttering threats, and destruction of property. On the same date the prosecutor imposed an obligation to report to the police station and issued a restraining order prohibiting him from approaching the applicant by less than five metres.
10. On 27 March 2017 the prosecutor lodged a bill of indictment against Z.K. in connection with multiple acts of mental and physical ill-treatment of the applicant in the period between 1986 and June 2016.
11. The applicant participated in the proceedings as an auxiliary prosecutor.
12. The trial court requested an expert opinion on the state of health of Z.K. It scheduled the first hearing for July 2017 but adjourned this and the following hearings due to the accused’s absence for health reasons.
13. On 18 June 2018 the proceedings were formally discontinued given the accused’s death.
14. On 18 January 2017 the applicant lodged an application under section 11a of the Prevention of Domestic Violence Act (“the Act”), for an order requiring Z.K. to move out of the family home. She referred to the pending investigation against Z.K. for ill-treatment and the fact that he had been diagnosed as suffering from a personality disorder.
15. On 10 April 2017 the C. District Court dismissed her application. It held that in order to grant the application under section 11a of the Act, it was necessary for the family members to live together in a family home. However, as the applicant and her brother had not been living together since the applicant moved out to a shelter on 13 July 2016, there were no grounds to grant the order requiring Z.K. to leave the family home.
16. On 8 November 2017 the C. Regional Court dismissed an appeal by the applicant. It observed that the order prescribed in section 11a of the Act was separate and independent from restraining orders that could be imposed in the context of the criminal proceedings and was not dependent on the criminal liability of the perpetrator of domestic violence. The order granted under section 11a of the Act did not affect the legal title to a family home but resulted in a temporary restriction on the use of the home by a person who was considered to have resorted to domestic violence. It noted, in particular, that the applicant had lodged the request six months after the incident of 17 June 2016. The court underlined that the applicant was an adult, a lawyer, employed in the municipal office since 2008, thus her decision to move out had not been involuntary but rather a conscious decision motivated by her brother’s behaviour. Given obscure family relations between the conflicted parties, aggravated by the dysfunctional character of the family and various court proceedings instructed by the applicant against her father and brother, financial motivation of the applicant could not be excluded. The court underlined that the procedure in question was of an urgent nature aimed at providing legal assistance to a victim of domestic violence by isolating the perpetrator from the victim, and not an instrument shaping the property interests of the conflicted parties.
17. The applicant complained under Articles 3 and 8 of the Convention that she was not afforded adequate protection as a victim of domestic violence. She further complained that the investigation into her allegations had not been effective and that the authorities had not removed Z.K. from the flat occupied by them.
THE COURT’S ASSESSMENT
18. The Court has established clear and extensive case-law concerning complaints relating to domestic violence under Articles 2 and 3 of the Convention (see, for example, Kurt v. Austria [GC], no. 62903/15, 15 June 2021; Opuz v. Turkey, no. 33401/02, ECHR 2009; E.S. and Others v. Slovakia, no. 8227/04, 15 September 2009; and Talpis v. Italy, no. 41237/14, 2 March 2017).
19. In the present case the applicant complained that she was subjected to abuse by her brother over many years, however, there is no evidence that she had contacted the police, or otherwise complained, about her brother’s behaviour prior to the event of 17 June 2016. From the material at the Court’s disposal, it is apparent that the applicant brought one incident to the attention of the authorities – the assault of 17 June 2016, at the heart of the present case.
20. This is not therefore a case where the domestic authorities did nothing in the face of repeated and credible complaints by the applicant of violence or threats of violence (cf. Kontrová v. Slovakia, no. 7510/04, 31 May 2007, and Opuz, cited above). The Court concludes that the applicant did not provide any evidence justifying her allegation that the authorities had been aware of the acts of violence by her brother and could have prevented the assault of 17 June 2016.
21. The general principles concerning the States’ procedural obligation to investigate cases of alleged domestic violence are summarised in, for example, Tunikova and Others v. Russia (nos. 55974/16 and 3 others, §§ 73, 78 and 114-15, 14 December 2021). The Court reiterates that special diligence is required in dealing with domestic violence cases, the specific nature of which, as recognised in the Preamble to the Istanbul Convention, must be taken into account in the context of domestic proceedings (see Buturugă v. Romania, no. 56867/15, § 67, 11 February 2020).
22. Turning to the facts of the instant case, the Court considers that following the assault of 17 June 2016 the applicant raised an arguable claim of ill-treatment attaining the threshold of Article 3, triggering the State’s (procedural) obligation to conduct an effective official investigation. The investigation was initiated in September 2016 and the prosecutor charged Z.K. three months later. The Government submitted that during the investigation the prosecuting authorities undertook many actions: in particular, heard witnesses, collected medical evidence and obtained expert evidence. On 14 December 2016 the prosecutor further imposed on the alleged perpetrator police supervision and a restraining order not to approach the applicant. The bill of indictment was lodged after a further four months, on 27 March 2017. The trial court scheduled the first hearing for July 2017, but it was adjourned due to the accused’s health problems.
23. The Court notes that the applicant failed to indicate what shortcomings she had attributed to the authorities in respect of their duty to investigate. The Government noted that some hearings scheduled for September and October 2017 were also adjourned due to the applicant’s absence. The Court thus considers that the criminal proceedings were initiated promptly and conducted with due expedition and diligence. They had not been terminated because of the accused’ illness and death in March 2018. Under such circumstances the Court finds that the Polish authorities have complied with their positive obligations to conduct an effective investigation into an allegation of ill-treatment (compare and contrast M. and M. v. Croatia, no. 10161/13, § 152, ECHR 2015 (extracts)).
24. From the scarce submissions by the applicant’s lawyer, it appears that the applicant perceived that the authorities had failed in their positive obligations under the Convention mainly in their refusing the temporary measure under section 11a of the Act. The Government underlined that the applicant had been effectively protected from the risk of violence by her brother by other measures imposed by the prosecutor and the actual physical separation from her brother.
25. The Court’s reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate method for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. In the case at hand the courts justified the refusal of the application of this particular measure in well‑reasoned decisions, after a thorough examination of the entire file, in the proceedings in which the applicant had actively participated. The courts took into account all elements of the case, including her personal situation and complex family relations. In the proceedings the applicant was represented by a legal aid lawyer, and she could lodge an appeal and evidentiary motions.
26. Overall, the Court considers that the authorities took many actions responding to the assault of 17 June 2017 and aimed at protecting the applicant as a victim of domestic violence. The police opened the relevant procedure of “blue card” and apparently monitored the applicant’s situation. The applicant’s brother was placed in a psychiatric hospital where he was diagnosed with a mental disorder. He remained in the hospital for a total of twenty-seven days. The applicant was offered a place in a shelter and the prosecutor issued a restraining order prohibiting the perpetrator of the violence from approaching the applicant by less than five meters. There is no evidence that the applicant complained that this order had been breached. The applicant remained employed as a lawyer in the municipal office and afterwards moved out to another address.
27. Regard being had to all the elements examined above, the Court concludes that there had been no breach of the State’s positive obligations under Articles 3 and 8 of the Convention.
28. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 January 2025.
Liv Tigerstedt Alena Poláčková
Deputy Registrar President