CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 août 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 27 August 2018   FIRST SECTION Application no. 904/18 A.K. against Poland lodged on 23 December 2017 STATEMENT OF FACTS 1.     The applicant, Ms A.K., is a Polish national who was born in 1979 and lives in C. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background facts 3.     The applicant lived in a family home with her parents and her brother, Z.K. She alleged that she had been exposed to physical and psychological abuse by her brother over a considerable period of time. The incidents of such violence had intensified after their mother died in January 2016. 4.     On 17 June 2016 the applicant called the police to intervene in a situation of domestic violence. The police found Z.K. to be threatening and aggressive. The applicant was taken to hospital for a check-up. According to a medical certificate, the applicant had sustained haematomas to her head, left arm and stomach. 5.     The applicant’s brother was admitted on a voluntary basis to the hospital’s psychiatric ward. Doctors diagnosed him as suffering from a personality disorder. Z.K. was released on 13 July 2016 after twenty-seven days in hospital. 6.     On the same day, the applicant decided to leave the family home, fearing new incidents of violence. Having learnt that she was five to six weeks pregnant, she also wished to protect herself and her unborn child. 7.     Between 13 July 2016 and 13 November 2017 the applicant lived in a shelter for victims of domestic violence. 2.     Criminal proceedings against Z.K. 8.     On 18 June 2016 the applicant lodged a criminal complaint against Z.K. for physical and mental ill-treatment (Article 207 § 1 of the Criminal Code). 9.     On 18 July 2016 the applicant requested that the prosecutor issue an order requiring Z.K. to leave the family home. That request was refused. The prosecutor granted the applicant’s request for an order prohibiting Z.K. from approaching her. However, according to the applicant, Z.K. frequently breached the order and threatened her. 10.     On 27 March 2017 the prosecutor lodged a bill of indictment against Z.K. with the Częstochowa District Court. The prosecutor charged him, inter alia , with mental and physical ill-treatment of the applicant in the period between 1986 and June 2016. It appears that the criminal proceedings are pending. 3.     Application under the Prevention of Domestic Violence Act 11.     On 18 January 2017 the applicant lodged an application with the Częstochowa District Court, pursuant to 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 submitted that for many years she had been a victim of domestic violence on the part of her brother. 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. 12.     On 10 April 2017 the Częstochowa District Court dismissed her application. It established that the applicant had lived with her brother and her father in the family house until 13 July 2016. On that day she had left the family house and moved to a shelter. The applicant had taken this decision at the suggestion of police officers. The court further established that the applicant and Z.K. had been in conflict for many years, and that the conflict had intensified after the death of their mother. It found that Z.K. had been verbally and physically violent towards the applicant. He had forced the applicant to carry out hard physical labour and to serve him. He had taken the applicant’s money and locked her in a basement. The court noted that the prosecutor had carried out an investigation against Z.K. for ill ‑ treatment and that a bill of indictment had been lodged with a court. 13.     The District Court found that the applicant should be considered a victim of domestic violence, having regard to the facts of the case and the definition of domestic violence set out in section 2 (2) of the Act. It held, however, 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, the applicant and her brother had not been living together since the applicant moved to a shelter on 13 July 2016. In these circumstances, there were no grounds to grant an order requiring Z.K. to leave the family home. The court further noted that the provisions of the Act did not allow this obligation to be imposed, even in cases where a victim of domestic violence had left the jointly-occupied home due to fears for her safety. 14.     The applicant appealed. She argued that the district court had erroneously interpreted section 11a of the Act and that all conditions for the grant of an order under this provision had been satisfied. 15.     The applicant submitted that in July 2016 she had been at the beginning of her difficult pregnancy. Being a victim of domestic violence and pregnant, it was evident that her decision to leave the family home in July 2016 was motivated by the need to ensure safety for her and her unborn child. She submitted that the court’s interpretation of section 11a had been illogical. That interpretation had led to the conclusion that, in order to benefit from the rights prescribed in the Act, the applicant would have to continue living with her violent brother and thus expose herself and her child to a continual risk of violence. The applicant also argued that she was the co-owner of the family home and her belongings remained there. Her stay in the shelter for victims of domestic violence was of a temporary and involuntary nature. 16.     On 8 November 2017 the Częstochowa Regional Court dismissed the applicant’s appeal. 17.     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. 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. The possibility to grant this order was not dependent on the criminal liability of the perpetrator of domestic violence. 18.     The Regional Court agreed with the lower court’s conclusion that the order sought by the applicant under section 11a of the Act could not have been granted since the condition of her living jointly in the family home with her brother had not been satisfied. It also noted that the applicant had lodged her application only on 10 January 2017, more than six months after the incident of 17 June 2016. It further expressed some doubt as to whether the applicant’s decision to leave the family home had been involuntary. 4.     Application for compulsory placement of Z.K. in a psychiatric institution 19.     On 12 July 2016 the applicant lodged an application with the Częstochowa District Court for compulsory placement of her brother in a psychiatric institution. 20.     The court appointed experts in psychiatry to assess Z.K.’s mental condition. The experts found that Z.K. was suffering from a personality disorder. However, their view was that Z.K. should be treated in an open health centre and not in a closed mental institution. 21.     The applicant subsequently withdrew her application for compulsory placement. B.     Relevant domestic law 22.     Section 11a of the Prevention of Domestic Violence Act ( ustawa   o   przeciwdziałaniu przemocy w rodzinie ) of 29 July 2005 provides that a victim of domestic violence may request a court order to remove a perpetrator of domestic violence, who lives jointly with the victim, from a family home. COMPLAINTS 23.     The applicant complains under Articles 3, 6 § 1 and 8 of the Convention that she was not afforded adequate protection as a victim of domestic violence, referring to the dismissal of her application under section 11a of the Act. She claims that the courts did not take properly into account Z.K.’s violent behaviour and the fact that she had been forced to leave her family home out of fear for her safety. On this point she had followed the advice of the police officers. The applicant also refers to her difficult pregnancy, which required her admission to hospital on three occasions. The civil courts did not take into account the pending criminal case against Z.K. The applicant also submits that Z.K. was under police supervision and was under a restraining order not to approach the applicant. However, he frequently breached the order. QUESTIONS TO THE PARTIES Did the State authorities in the present case comply with their positive obligation under Article 3 or Article 8 of the Convention to protect the applicant from acts of violence by her brother ( M. and M. v. Croatia , no.   10161/13, § 136, ECHR 2015 (extracts))? In particular:   (a)     Was the dismissal of the application under section 11a of the Prevention of Domestic Violence Act in breach of that positive obligation?   (b)     Did the prosecuting authorities act adequately to prevent the applicant’s ill-treatment, of which they appear to have been aware?   (c)     Did the authorities comply with their procedural obligation to conduct an effective investigation into the case of the applicant’s alleged ill ‑ treatment?