Published on 14 June 2021

FIRST SECTION

Application no. 38342/19 S and Others against Poland lodged on 9 July 2019 communicated on 25 May 2021

STATEMENT OF FACTS

1 . The first applicant S, and the second applicant T, are brothers. They were born in 1991 and 1992 respectively. Their maternal uncle, W, born in 1972 is the third applicant. Their maternal grandmother, M, born in 1952, is the fourth applicant. All applicants are represented by Mr. J. Głuchowski , a lawyer practicing in Poznań .

The circumstances of the case

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

3 . Ms B and Mr Z married in 1991.

4 . On 16 June 1991 Z joined the police service.

5 . It appears that in 1993 Z threatened his wife B with his service weapon. Following the incident Z had his service weapon removed from him. In 1997 he was summoned to a disciplinary interview in connection with his failure to undergo training. In 2003 Z spent several weeks in hospitals to treat his alcohol dependency.

6 . In 2004 Z applied for divorce.

7 . At least since May 2004 Z had been verbally and physically abusing his wife and sons.

8 . On 5 June 2004 the police were called by B in connection with a domestic disturbance and violence by her husband. During the police intervention Z closed himself in the bathroom from where he continued to insult his wife and threaten that he would kill her. On that day the police opened the so called “blue card” file for cases of domestic violence.

9 . On 6 June 2004 Z appeared at work under influence of alcohol. He was not allowed to start the service; the police ID was removed from him. On 7 June 2004 the chief of the police station opened disciplinary proceedings against him.

10 . On 9 June 2004 a police officer visited the domicile of the couple within the “blue card” follow-up procedure. B explained that her husband stopped paying any money to support the family and spent time drinking alcohol in his room. B informed the police officer that she had been too afraid of her husband to lodge a formal criminal complaint. She confirmed that he had been verbally and physically abusive towards her and their sons. On 7 May 2004 her husband had not let her into the flat after her late return home.

11 . On 24 June 2004 Z received a disciplinary punishment of demotion to a lower rank.

12 . On 18 July 2004 police intervened during a domestic disturbance caused by Z. He was taken to a sobering-up centre.

13 . On 13 August 2004 the police intervened again at the domicile of the couple due to the aggressive behaviour of Z who was drunk.

14 . On 19 September 2004 B repeatedly called the police, saying that Z had been verbally and physically abusive towards her and their sons. The police officers intervened on that day on three occasion but could not talk to Z as he locked himself in his room.

15 . On 14 September 2004 the divorce of the couple was pronounced. The court granted custody over S and T to their mother. Z was however allowed to share the same apartment with his former wife and sons.

16 . On 30 September 2004 another set of disciplinary proceedings were instituted against Z by the Konin Chief of Police. The charges against Z concerned the events of 19 September 2004, when the police had intervened on three occasions at his domicile, and Z ’ s failure to appear for a medical examination scheduled for 21 September 2004.

17 . On 15 October 2004 a police officer interviewed B and her sons at the police station as a follow-up in the “blue card” procedure. B indicated that in spite of the divorce Z lived in the same flat and she was afraid for her and her sons ’ safety.

18 . On 27 October 2004 Z was found guilty in the disciplinary proceedings and dismissed from the police service. The decision was not final.

19 . On 19 November 2004 B prepared a formal criminal complaint to the prosecutor requesting that a criminal investigation be opened against her former husband for physical and verbal abuse of her and her sons. She posted it on 22 November 2004. It was delivered the following day.

20 . On 23 November 2004 Z was heavily drinking and repeatedly hitting the door of B ’ s room. She did not open. The first and the second applicant, her sons, came home. They could enter B ’ s room and talk to her. At night they were woken up by the noise of their father again trying to get to B ’ s room, calling her on her phone and insulting her.

21 . It appears that B repeatedly called the police and they came at 6 a.m. on 24 November 2004. The police did not enter the flat as nobody opened them the door.

22 . On 24 November 2004 Z came late to work but did not stay at the premises. A breathalyser test showed that he was under strong influence of alcohol. Afterwards a police officer took Z to his father ’ s house.

23 . On 24 November 2004 in the early afternoon, when children were not at home, Z returned to the flat occupied by the family. He killed B inflicting on her 60 blows with a knife and scissors.

24 . On the same day at 2.41 p.m. the body of B was found by her sons.

25 . On 25 November 2004 the decision of 27 October 2004 was upheld by the Regional Head of Police and on the same day Z ’ s dismissal from the police service became effective.

26 . On 24 November 2004 at 7 p.m. Z was arrested by the police. The alcohol test showed he had 1.93 mg/l in breath and 4.4 % in blood. He admitted to having killed his former wife.

27 . In the criminal proceedings against Z it was further disclosed that:

- the sons witnessed multiple situations of verbal and physical abuse of B by their father;

- they repeatedly heard their father threatening that he would kill their mother;

- B ’ s father and mother testified seeing bruises and blues on B ’ s body;

- B ’ s brother explained that his sister had been terrified to testify against Z as he had been a police officer;

- the explanations by Z that he noticed a man in B ’ s room on the night of 23 November 2004 were dismissed as improbable and contrary to all evidence.

28 . On 17 January 2006 the Konin Regional Court found Z guilty of having murdered B. He was also convicted of the offence of physical abuse of B, between May and 24 November 2004, in the following way: he initiated quarrels during which he had been beating her, wringing her hands, threatening to deprive her of life, calling her with vulgar words, dousing her with water, disturbing her bedtime by knocking on the door of the room where she had lived and by calling her phone numbers. He was sentenced to twenty-years ’ imprisonment.

29 . Following Z ’ s appeal, on 11 April 2006 the sentence was reduced to fifteen-years ’ imprisonment by the Poznań Court of Appeal.

30 . In 2015 the applicants lodged a civil claim for payment against the State Treasury, the Konin Police Station. They claimed that their personal rights were breached in consequence of B ’ s murder by her former husband (Article 448 and 446 § 3 of the Civil Code). The applicants submitted that Z had been an alcoholic for thirteen years and verbally and physically abusing his wife. When he had murdered his former wife, Z was an active police officer. The police service should be considered responsible for the selection of persons serving in the police force and revision of their suitability if necessary. The police superiors had reacted too late and in an insufficient manner failing to take any action that could have prevented the crime. They were therefore liable for Z ’ s actions and should pay compensation to B ’ s sons, mother and brother.

31 . On 10 November 2016 the Konin Regional Court dismissed the action. The court established that the State Treasury could not be held responsible for actions of Z as he had committed the crime in a private capacity and that the abuse and murder of B had no link with his service as a police officer.

32 . On 20 January 2017 the applicants lodged an appeal. They argued that the State ’ s responsibility was engaged as Z had been an active police officer when he had murdered B. He committed the murder after months and years of having verbally and physically abusing his wife and threatening with taking her life. He murdered B during the working hours, in his police uniform, and using a knife he had been carrying to work. During all police interventions at his house he had always invoked his special status as a police officer. The applicants also relied on the Court ’ s case-law under Article 2 of the Convention, arguing that the police force, and the State in general, were responsible for a failure to take relevant actions to prevent the murder.

33 . On 6 December 2017 the Poznań Court of Appeal dismissed their appeal. In particular, the court dismissed the allegations that the police authorities had failed to take sufficient measures to eliminate the danger posed by Z. Several disciplinary proceedings were instituted against him and he had been diagnosed and treated for alcohol dependency syndrome. Moreover, on 27 October 2004, Z had been disciplinarily dismissed from the service. The court agreed with the defendant, the police station, that there had been no other measure, in addition to disciplinary investigations, that could have prevented Z from having committed the crime. The court concluded that since Z had not murdered B on duty, or in connection with the performance of any official activities as a police officer, the defendant could not be held liable for the harm sustained by the applicants.

34 . On 5 March 2008 the applicants lodged a cassation appeal in which they repeated the arguments that the liability of the State Treasury was justified by the special status of Z as a police officer.

35 . On 7 December 2018 the Supreme Court refused to entertain their cassation appeal.

COMPLAINTS

36 . The applicants complain that the State failed to comply with its positive obligations under Article 2 of the Convention to protect life of B. The State should be held responsible for the actions of Z, a police officer, even off duty, and should set high professional standards within their law-enforcement system and ensure that the persons serving in this system meet the requisite criteria. In the instant case the police force was for many years aware that Z had been unstable, treated for alcoholism and other psychiatric problems, and had been increasingly violent towards B and his sons. Nevertheless, the authorities failed to take decisive and effective actions which could have prevented Z from materialising his threats against B. The applicants underline that the police interventions in connection with domestic violence were carried out by the police officers from the same police station as Z.

37 . Secondly, the applicants complain that the State also failed to comply with its positive obligations to protect the family against the domestic violence. They invoke Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relative ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case (see Opuz v. Turkey , no. 33401/02, ECHR 2009 and Talpis v. Italy , no. 41237/14, 2 March 2017)?

2. Has there been a violation of Article 3 of the Convention as a result of the alleged failure by the Polish authorities to take appropriate measures with a view to protecting the first and the second applicants from ill ‑ treatment to which they were subjected by Z, their father (see E.S. and Others v. Slovakia , no. 8227/04, 15 September 2009)?