“My house is my castle” – the protection of victims of domestic violence under Polish law
Although the Polish legal system has undergone some changes as a result of Poland’s adoption of the Istanbul Convention (1),there still are a number of substantive and procedural shortcomings that women suffering from domestic violence have to face when accessing justice.
One of the most pressing problems relates to the need to guarantee the separation of the victim (and her children or other dependant members of the family) from the perpetrator. Many women stay with their abusive partners or husbands simply because they have nowhere else to go, and because they are afraid to report the violence to the police, knowing that they will have to live with the perpetrator throughout the entirety of the lengthy proceedings, which would expose them to further abuses and the risk of revenge.
Art. 23 of the Istanbul Convention requires state parties to take not only legislative, but also other types of measures to provide shelters for victims of domestic violence. What is important is that such shelters should be easily accessible and sufficiently numerous to ensure safe accommodation and provide support for all victims of domestic violence. As practice shows, in Poland there are not enough places in the shelters in which women can seek refuge. It is even harder to find a place accepting both women and their minor children, which is why many women compromise their safety and decide to stay at home for the sake of their children. Even if children are not directly subjected to violence, women are often afraid to move out and leave them with the perpetrator − both fearing for their safety and being afraid that this will be seen as child abandonment. This in turn can put the mother in a bad light and thus result in restrictions or deprivation of parental rights in the future.
Another problem is the lack of specialized shelters. In fact, women who leave their homes because of violence are often sent to institutions for homeless women. These shelters cannot be considered a solution adapted to the special needs of women suffering from domestic violence (2). Many municipal shelters used for accommodating victims of domestic violence in Warsaw are simply unfit for this purpose − the duration of stay is too short, their locations are too remote, and there is a lack of access to medical assistance tailored to the needs of victims of domestic violence (3). The situation in other cities is similar, if not worse. This is yet another reason why women often decide to return home and continue to live with a perpetrator.
Some changes in the legislation aimed at solving these issues were made in 2010. The possibility of a speedy civil trial against the perpetrator, in which a court can order him to leave the dwelling unit shared with the victim, was introduced into the Domestic Violence Prevention Act (4). This solution is available regardless of the right of the ownership of the dwelling or other property rights that the perpetrator may have. According to the statute, the court is obliged to hold a hearing within a period of one month, but in practice this is rarely the case. As recently reported by the Polish Ombudsman, most of these proceedings last longer, in extreme cases even as long as nine months (5). This situation does not seem to comply with Art. 52 of the Istanbul Convention, which establishes the obligation to provide competent authorities with the power to order a perpetrator of domestic violence − in a situation of immediate danger − to vacate the residence of the victim or person at risk and to prohibit the perpetrator from entering the residence or contacting the victim or person at risk.
Throughout the course of criminal proceedings against the perpetrator, however, it is possible to issue a restraining order or order him to leave the dwelling unit shared with the victim (6). These are so called “preventive measures” that are applied by a prosecutor (on his or her own motion or on the motion of the police) or by a court. But even on those occasions when the prosecutor decides to apply such orders, the whole procedure usually lasts too long, and therefore can prove ineffective as a means of providing direct protection for the victims. The most severe preventive measure, i.e. temporary arrest, is another way of guaranteeing safety, but it is restricted to the most serious situations only. It seems questionable whether restraining and protection orders existing under Polish law meet every single criterion set forth by Art. 53 of the Istanbul Convention, such as those of availability and speediness.
One of the solutions to improve the means of separation of victims from perpetrators and to guarantee a better protection of victims’ rights is the possibility of granting additional powers in this regard to police officers. The police should be given the possibility to issue restraining orders when there is an immediate threat for the victim. Police officers should be trained in order to conduct proper risk analysis. This would probably require some kind of reform of the “Blue Card” procedure, which was introduced in 2011. The procedure is implemented by specially established local interdisciplinary teams and its main purpose is to prevent the escalation of domestic violence, and to implement individual assistance plans. Interdisciplinary teams consist of police officers, social workers, healthcare staff, teachers, local committees for solving alcohol-related problems and representatives of NGOs. The whole procedure is independent from and complementary to any court proceedings (criminal, family, civil). Risk “My house is my castle” – the protection of victims of domestic violence under Polish law Anna Głogowska-Balcerzak & Anna Szałkiewicz University of Lodz, Faculty of Law and Administration/ Women’s Rights Centre analysis should be seen as an important component of the Blue Card procedure, which could allow for the application of effective prevention mechanisms. Police officers and other members of interdisciplinary teams involved in the Blue Card procedure often know the situation of the families involved in it. Therefore, they are in a position to predict threats and decide about the application of different legal measures designed to protect victims. It goes without saying that the police play an essential role in domestic violence prevention. Due to the fact that police officers can respond quickly to domestic violence, they should be endowed with the fastest and most efficient measures to separate perpetrators from the victims of domestic violence.
At present, a police officer is entitled to apply preventive detention in cases where a perpetrator of domestic violence poses a direct threat to life or health (7). The detainee must be released within 48 hours unless a motion for a temporary arrest is filed to the court (8). In 2010 the amendment of the Domestic Violence Prevention Act made significant changes in the arrest policy (9). New provisions expanded police officers’ powers, introducing the provision of mandatory arrest, until then unknown in the Polish criminal procedure. The so called “arrest process” is an independent means of coercion, used when there is a reasonable assumption that the suspected person has committed an offence, and there is a threat that such a person may go into hiding or destroy the evidence of his offence or if his identity could not be established (10). Due to the need to ensure the safety of domestic violence victims who live together with an abusive member of the family, new grounds for making an arrest were also introduced to the Law on Criminal Procedure in 2010. Under the first instance, in the case of domestic violence, the decision to make an arrest is left at police discretion. The grounds for arrest are more or less the same as in the standard police arrest procedure mentioned above, but an offence must be committed to the detriment of a person living together with the offender, (11) and at the same time there must be a risk of reoffending. This is especially the case when the suspect threatens to commit another offense. In cases where the offence was committed with the use of a firearm, knife or other dangerous item an arrest becomes obligatory. The purpose of introducing mandatory arrests was to strengthen police responses to domestic violence and lower the rate of repeat domestic violence offences.
To conclude, the implementation of domestic violence prevention policy was undoubtedly a manifestation of the pursuit for effective measures to protect victims. Despite a wide range of possibilities to ensure a safe and secure environment for all victims of domestic violence, research demonstrates that the problem lies not only in insufficient legal measures but also in the approach of those who provide services for victims (12). The stereotypes and prejudices concerning domestic violence are still present in our society and unfortunately they strongly affect the response to that phenomenon. That is why, although there are various different legal mechanisms that can be used to separate victims from perpetrators, the system does not seem to work properly and guarantee safety.
By Anna Glogowska-Balcerzak and Anna Szałkiewicz
Anna Głogowska-Balcerzak is working with victims of domestic violence as a lawyer at the Women’s Rights Center, and also as a consultant for La Strada Foundation against trafficking in persons and slavery. She is currently a PhD candidate at the Department of International Law, University of Lodz. She can be contacted at: email@example.com
Anna Szałkiewicz is a PhD candidate at the Department of Administrative Law, University of Lodz and a volunteer at Women’s Rights Center in Lodz.
1 Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul 12 April 2011 (CETS No.210).
2 WAVE Step up! Campaign Blue Print, Vienna, January 2016, p. 6, available at: http://fileserver.wave-network.org/home/WAVE_StepUp_CAMPAIGN.pdf
3 See: Report by Nils Muižnieks Commissioner for Human Rights of the Council of Europe following his visit to Poland from 9-12 February 2016, CommDH (2016) 23, par. 157.
4 Domestic violence prevention act from 29 of July 2005 (Dz.U. 2005 No 180 Item 1493 as amended)
5 See: Inquiry by Polish Ombudsman, published on 14 of July 2016, available on: https://www.rpo.gov.pl/pl/content/ilu-sprawc%C3%B3wprzemocy-domowej-zosta%C5%82o-zmuszonych-do-wyprowadzeniasi%C4%99-z-domu-jak-szybko-s%C4%85dy-o-tym (in Polish only).
6 The law on criminal procedure from 6 of June 1997 (Dz. U. 1997 No. 89, Item 555), Art. 275, 275a.
7 The Law on Police from 6 of April 1990 (Dz.U. 1990 No. 30 Item 179), Art. 15a.
8 The Law on Criminal Procedure from 6 of June 1997 (Dz. U. 1997 No. 89, Item 555), Art. 248.
9 Domestic Violence Prevention Act from 29 of July 2005 (Dz.U. 2005 No. 180 Item 1493 as amended).
10 The Law on Criminal Procedure from 6 of June 1997 (Dz. U. 1997 No. 89, Item 555), Art. 244 § 1
11 The protection covers not only close family members, but also every person living together with the perpetrator. On the other hand, however, the personal scope is limited only to a narrowly defined group of suspects.
12 Report of the Women’s Rights Centre, Stereotypes in the court in cases concerning violence against women, Warsaw 2016 (available in Polish only). Anna Głogowska-Balcerzak is working with victims of domestic violence as a lawyer at the Women’s Rights Center, and also as a consultant for La Strada Foundation against trafficking in persons and slavery. She is currently a PhD candidate at the Department of International Law, University of Lodz. firstname.lastname@example.org Anna Szałkiewicz is a PhD candidate at the Department of Administrative Law, University of Lodz and a volunteer at Women’s Rights Center in Lodz.