The Ministry created a bill amending the Civil Procedure Code and some other laws. Among them was the Police Act. Unfortunately.
In June this year, the Ministry of Justice prepared a bill amending the Police Act, which, as part of the legislative process, recently entered the opinion phase.
First of all, the aim is to increase the powers of police officers and to introduce a new institution which, according to the authors of the idea, aims to introduce comprehensive solutions to the legal order concerning the rapid isolation of a person affected by violence from a violent person, in situations where it poses a threat to the lives or health of the household.
These are intended to be effective instruments for the legal protection of a violent person.
There is doubt as to whether the proposed project, apart from the practically complete omission of the interests of the person suspected of domestic violence, will indeed provide protection and improve the situation for victims of this violence.
A completely new instrument designed to serve more effective protection of a person affected by violence is to give the police the power to order immediately to leave the apartment and its immediate surroundings or to prohibit the approach to the apartment and its immediate surroundings, which is subject to judicial review.
It was rightly pointed out in the statement that, in the current legal order, proceedings for the obligation of the abuser in the family to leave the apartment are carried out on a non-trial basis on the basis of general provisions, which do not immediately promote the safety of the person affected by the violence, for whom it is essential at that time to be sufficiently separated from the violent person.
As a result, a person whose life and health are threatened by violence is forced to leave the apartment. The question is whether the Ministry's idea really is a good solution. Let us look at how this new institution will look in practice, examining the most important provisions.
According to the proposed amendment, a police officer has the right to issue to a person who, in his conduct of domestic violence, within the meaning of the provisions on the prevention of domestic violence, poses a threat to the life or health of a person affected by violence, an order to leave immediately the apartment and its immediate surroundings, or a ban on approaching the apartment and its immediate surroundings.
The order or prohibition may be applied together. The order or prohibition shall be immediately enforceable. What does that mean? It is that a police officer has just replaced the court. Without depreciating law enforcement, giving powers so far reserved for judicial authority should not give rise to enthusiasm.
Quoting the classic – let's not go that way.
A citizen may be literally forced to leave the house where he is staying with a close person (the Act does not order "closer persons" to have any legal title for the premises), and the duties of an officer are limited to indicating him the nearest accommodation, it does not matter whether the alleged perpetrator of the violence has anywhere to go.
Other police activities, such as hearing family members and the perpetrator of violence themselves, are already de facto optional, as the following paragraphs contain the phrase ‘maybe’ and ‘if possible’, so a brief assessment of the situation can determine everything.
The person to whom the order or prohibition has been issued shall be entitled to a complaint before the court. Complaint shall be made within the time limit 3 days from the date of service of the order or prohibition, as instructed by that person with the service of the order or prohibition.
I wonder how a person who may have just ended up in a lodge, armed only with a toothbrush, especially since a warrant or a ban can also be issued in the absence of a shared apartment or its immediate surroundings of a family member who uses violence in the family during a police operation.
Therefore, the opportunity for the addressee to explain and present his version of the events may be quite limited.
However, this does not change the fact that the person concerned by the order or prohibition is required to indicate to the police officer the address of the whereabouts and, if possible, the telephone number at which it will be available and to inform the competent police department of any change of that address or number.
The ‘address’ probably refers to one of many property housing units of the average citizen of our country, not a homeless shelter.
In its complaint, the complainant may request examination of the conduct of the activity, the legitimacy and the legality of the decision.
The provisions of the Code of Civil Procedure on proceedings for the obligation of the perpetrator of violence to leave the apartment and its immediate surroundings and to prohibit the approach to the apartment and its immediate surroundings shall apply mutatis mutandis to the complaint.
The court shall find the complaint promptly, but no later than within 3 days from the date of his entry into court. The Tribunal shall revoke the contested order or prohibition in the event of its finding of unjustified or illegality and shall immediately inform the affected person.
The order or prohibition shall expire after expiry two weeks from the days and since his release, unless he was extended by the court. In the event that the person to whom the order has been sent proves to be ‘innocent’, this means that he has lost his constitutional right to the inviolability of the apartment only on two weeks.
If the order was actually about an aggressive person, he would return home after that time, certainly very changed and much calmer, to the delight of the family, which will be on its own, because the role of an officer at this moment will end.
It is impossible to disagree with the project's authors that family violence is a complex problem for the whole society, a problem with complex psychological conditions, multiple causes and multifaceted consequences for all family members, requiring comprehensive regulation in public law and active, transparent cooperation between authorities, public institutions and other specialised bodies with competent and professional competence. The only question is whether the proposed project, apart from the practically complete omission of the interests of the person suspected of domestic violence, will indeed provide protection and improve the situation for victims of this violence.
Author:
Rafał Czepik, legal advisor, graduate of the Faculty of Law at the University of Warsaw, specialist in economic and civil law
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