HFHR submits amicus curiae brief in domestic violence case
The Helsinki Foundation for Human Rights has submitted an amicus curiae brief with the European Court of Human Rights in a case brought by A.K., a female victim of domestic violence. In its brief, the HFHR shows that the problem of domestic violence in Poland is a systemic one. The Foundation also refers to a survey on the actual effectiveness of legal measures carried out among Polish attorneys.
A.K. v. Poland
A.K. complains that Poland violated the prohibition of torture, the right to a fair trial and the right to respect for private and family life (Articles 3, 6(1) and 8 of the European Convention on Human Rights). The woman was physically abused by her brother. She claims that she was not granted appropriate protection, which, in her opinion was demonstrated by, among other things, the rejection of her request for a court order that would oblige her brother to leave their shared home, which was based on the fact that she was no longer living there at the time the request was made. However, she alleges that the court did not take into account that the woman escaped from the premises in fear of her own and her child’s safety. In addition, the prosecutor refused to impose a preventive measure in the form of an order requesting her brother to leave the premises, while, as she claims, her brother has repeatedly violated the already-issued restraint order.
Family violence – systemic problem
In the amicus curiae brief, the HFHR presents a broader legal context, drawing attention the Court’s to the practical approach of authorities and institutions to cases of domestic violence.
Authorities’ failure to take effective measures to counter domestic violence and to provide support and protection to persons experiencing violence means that domestic violence should be regarded as a systemic problem.
“Female victims of domestic violence in Poland do not receive adequate protection. This is a consequence of many factors such as loopholes in law, insufficient effectiveness of victim protection measures, as well as the inadequate commitment of justice authorities to handling this type of cases”, HFHR’s lawyer Jarosław Jagura notes.
In its survey, the HFHR asked lawyers about the difficulties they face in conducting cases of domestic violence. Nearly 80% of the surveyed attorneys noted cases, victims or perpetrators of domestic violence were perceived stereotypically. More than 66% of the respondents said that criminal justice bodies disregarded the case, and more than half indicated that the excessive length of proceedings was a difficulty.
Case separated from potential victim
Separation of the perpetrator from the victim of violence is one of the key aspects of domestic violence prevention. However, the legislation does not provide for effective measures that would allow for quick and effective separation of the perpetrator from the person exposed to violence. Preventive measures that may be used in criminal proceedings do not meet these criteria.
In accordance with Article 11a of the Family Violence Prevention Act, a civil court may oblige a family member living in a shared residence to vacate the residence in question. In A.K.’s case, the courts of both national instances decided that she failed to prove the shared residence requirement (A.K. fled home) and denied granting the measure. According to the HFHR, such an interpretation ignores the specific situation of persons experiencing violence and is incompatible with the purpose of the Family Violence Prevention Act, which is to provide support for victims of domestic violence. A review of the relevant case law shows that courts decided more cases in this fashion.
Divergences in the jurisprudence and the long duration of proceedings for obliging the abusive family member to leave the shared premises means that, according to the HFHR, this institution cannot be regarded as an effective and efficient measure for the protection of victims of domestic violence, in particular in terms of the victim’s separation from the perpetrator and ensuring their safety.
Also, substantive and procedural provisions of criminal law concerning domestic violence do not provide effective protection for victims of domestic violence, say nearly 75% of the lawyers surveyed by the HFHR. In most cases, no preventive measures are taken to separate the perpetrator from the person exposed to violence. Nearly 40% of the surveyed lawyers stated that the preventive measure in the form of an order to vacate the premises was not applied ex officio in any of the cases they argued. At the same time, 25% of the attorneys said that no such measure was applied in any of the cases they argued despite a request submitted by the victim. Moreover, about 40% of the attorneys noted that criminal justice authorities usually did not react to the fact that suspects or accused persons did not comply with the requirements of preventive measures (e.g. a restraining order).
According to the HFHR, the case of A.K. v. Poland is a landmark case, in which the European Court of Human Rights has an opportunity to develop the standards on the protection of victims of family violence. It is to be hoped that this case will contribute to Poland’s adoption of comprehensive measures aimed at preventing and eliminating domestic violence.
The HFHR’s amicus curiae brief and detailed outcomes of the survey may be accessed here .