European Court of Human Rights

FOURTH SECTION

Application no. 2912/11
Sebastian KOWAL
against Poland
lodged on 5 January 2011
 

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Sebastian Kowal, is a Polish national who was born in 1987 and lives in Brenna. His application was lodged on 5 January 2011.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On an unspecified date in 2008 the Social Assistance Centre in Brenna instituted proceedings with a view to making the applicant’s father A.K. undergo treatment for alcoholism. They referred to numerous police interventions at the family apartment as a result of A.K.’s repeated acts of aggression and violence against his family and to a diagnosis made by a psychiatrist to the effect that he suffered from alcoholism. He apparently failed to comply with that order.

On 13 February 2009 the Cieszyn District Court convicted the applicant’s father of domestic violence (znecanie sie nad osoba najblizsza). It sentenced him to 1 year and 3 months’ imprisonment and conditionally stayed execution of that sentence for a probation any period of four years. The court also obliged him to abstain from alcohol abuse and assigned a court guardian to supervise his conduct.

On 5 November 2009 the applicant, his mother and younger brother requested the court that the stay of the execution of the sentence be lifted. They submitted that A.K. continued to drink and that his behaviour remained violent.

The court heard evidence from the applicant, his mother, his brother, the court guardian and three other persons. It had regard to the police records and to the guardian’s file. It found that after the judgment had been given the applicant’s father had continued to be violent, had batted his wife, proffered insults and humiliated his sons and had been abusing alcohol.

On 13 April 2010 the Cieszyn District Court gave a decision. It noted that the applicant’s mother had declared that her husband’s behaviour had slightly improved recently and that there were grounds therefore for accepting that he was capable of mending his ways. The court was of the view that in these circumstances it would not be justified to order the prison sentence to be executed. However, it ordered the defendant to leave the family apartment within 14 days, referring to Article 72 § 1 (7) (b) of the Criminal Code. It observed that this obligation could be imposed on a defendant regardless of his ownership of the apartment and that it only limited him in the exercise of the right to live here, his ownership rights remaining intact.

The applicant submits that after that date his father continued to be violent.

On an unspecified later date the applicant requested the assistance of a local bailiff. In reply, he was informed orally that it was legally impossible for the bailiff to take any enforcement steps if the person ordered to leave the apartment refused to do so.

The applicant’s father still lives in the apartment.

B.  Relevant domestic law

Article 13 of the Law on Domestic Violence (Ustawa o przeciwdzialaniu przemocy w rodzinie) was adopted on 29 July 2005. It amended Article 72 § 1 of the Criminal Code by adding to it the following text:

“When staying execution of a sentence, the court may impose on a defendant an obligation to: ...

7. (b)  leave an apartment where the defendant lives with the victim [of the offence concerned].”

COMPLAINT

The applicant complains under Article 8 of the Convention that the State has failed to fulfil its positive obligation to protect him, his younger brother and their mother from domestic violence by failing to take any steps in order to enforce the judicial decision ordering his father to leave the apartment. There is no domestic authority under the applicable laws which was competent or willing to take concrete steps in order to have that decision executed. As a result, the applicant and his family remain exposed to A.K.’s violent behaviour even his criminal conviction and despite the judicial injunction ordering him to leave the apartment.

QUESTIONS TO THE PARTIES

1.  Did the applicant have at his disposal an effective remedy in order to have the judicial order of 13 April 2010 concerning his father’s obligation to leave the family apartment enforced?

If so, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2.  Has there been a violation of his right to respect for his private life, contrary to Article 8 of the Convention?