The specific terms used in relation to matters of domestic violence are described below in detail. However, a comprehensive response to prevent and combat sexual harassment and stalking is still lacking in the legal and policy framework. Generally, beyond domestic violence, sexual violence, stalking and sexual harassment, other forms of violence against women covered by international documents, including the Istanbul Convention, such as forced marriage, female genital mutilation, forced sterilization and crimes committed in the name of "honor," are not specifically addressed by the existing Polish legal and policy framework.
Domestic violence
The legal definition of "domestic violence" differs under Polish legal acts and the applicable international and European laws. "Domestic violence" is defined in the DV Act as a one-time or repeated intentional act or omission violating the rights or personal rights of certain persons enlisted thereunder, in particular, exposing them to the risk of loss of life or health, or violating their dignity, bodily inviolability, freedom, including sexual freedom, or causing damage to their physical or mental health, as well as causing suffering and/or moral harm to those affected by such violence.
Pursuant to the DV Act, persons that may be subject to domestic violence are the offender's next of kin in the meaning of the Criminal Code, i.e., any of the following individuals: the offender's spouse, ascendant, descendant, sibling, relative by marriage in the same line or degree, a person who is an adopted relation of the offender, as well as their spouse, and/or a domestic partner of the offender (any and all persons living jointly or sharing the same household with the offender).
Under the Istanbul Convention, the term "domestic violence" means any and all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim.
In addition, EU Directive 2012/29/EU implements a similar legal framework and terms. Although EU Directive 2012/29/EU does not include the legal definition of domestic violence, it provides in the preamble that close relationship-based violence occurs if committed by a person who is a current or former spouse, partner or other family member of the victim, whether or not the offender shares or has shared the same residence with the victim. Furthermore, EU Directive 2012/29/EU emphasizes that such violence may cover any physical, sexual, psychological or economic violence and may result in any physical, mental or emotional harm or economic loss of a victim.
In view of the considerations above, the following differences between the definition of domestic violence in the Polish legal system and international law should be noted. First, economic violence is not included among the forms of domestic violence covered by the DV Act. Consequently, unlike in the applicable international regulations, Polish law does not provide for the specific protection of the persons who are economically dependent upon the offender (unless combined with other types of domestic violence). Second, the Polish legal definition of domestic violence does not apply to situations where the offender is a former spouse or a partner of the victim. This component is missing in the Polish definition despite the fact that such events appear to be the frequent context for occurrences of domestic violence against women. In contrast, the Istanbul Convention, as well as the EU Directive 2012/29/EU approach, addresses the characteristics of each form of domestic violence, including economic violence or violence conducted by a former spouse or partner of a victim, while recognizing the connection between all these forms as a manifestation of gender-based discrimination.
Stalking and harassment
Poland introduced stalking as a specific criminal offense in 2012, in line with the Istanbul Convention. Article 190a of the Criminal Code criminalizes acts causing a justified sense of threat or significantly violating the privacy of a person or this person's next of kin (as defined above), with a penalty of deprivation of liberty for up to three years. The offense is aggravated when the victim attempts to commit suicide as a consequence of stalking, but this is not the case in instances of domestic violence between spouses and partners, which is the most frequent context for occurrences of stalking. Furthermore, the prosecution of stalking requires a complaint from the victim, except in cases where the victim attempts to commit suicide. According to some representatives of the legal doctrine, such a requirement may place the responsibility of coming forward with the case on the victim instead of the state. Generally, according to Article 55 of the Istanbul Convention, the investigations of offenses should not be wholly dependent on the report or complaint filed by the victim. Such a requirement places the burden to initiate action on the state instead of the victim.
Under Polish law, there is no specific offense that addresses all instances of harassment. It is worth noting that the Act on the Implementation of Certain Provisions of the European Union in the Field of Equal Treatment of 3 December 2010 defines the following:
- Harassment is any undesirable behavior, the purpose or effect of which is to violate the dignity of a person and to create an intimidating, hostile, degrading, humiliating or derogatory atmosphere.
- Sexual harassment is any undesirable sexual behavior toward a person or relating to sex, the purpose or effect of which is to violate the person's dignity, in particular, by creating an intimidating, hostile, degrading, humiliating or derogatory atmosphere. This behavior may consist of physical, verbal or nonverbal elements.
Such definitions are repeated in the Labor Code, which qualifies harassment and sexual harassment as cases of discrimination.
The acts constituting sexual harassment may constitute an offense of abusing a relationship of dependency or rape.
Additionally, in certain cases, the acts qualified as harassment may constitute mistreatment penalized under the Criminal Code (please see Section 5.1 below).
Even though the term is frequently referred to in Polish criminal and civil law, there is no explicit definition of an abuser, or offender or arbitrator, in the Polish legal system.
The term "abuser" should be understood differently depending on whether it is used for the purposes of criminal or civil law.
Under criminal law, the perpetrator of a crime (sensu stricto) is generally a person who directly and personally commits the crime, i.e., fulfills the features of a given prohibited act themselves. In other words, the perpetrator is a direct executor of a prohibited act, e.g., a theft, murder, assault, etc.
However, it is not only the offender of a prohibited act who may be liable for a crime under Polish law. Anyone who organizes a prohibited act to be carried out by another person or who, taking advantage of the dependency of another person on them, orders that person to commit the prohibited act can also be liable for a crime under Polish law.
Further, Polish criminal law provides that anyone who, with an intention for another person to commit a prohibited act, induces this person to do so will be liable for inducing a crime (whether or not this person in fact committed this crime later). Similarly, anyone who, with an intention for another person to commit a prohibited act, serves to facilitate the commission of the act, particularly by providing tools, means of transport or providing advice or information, is liable for aiding and abetting. In addition, anyone who, acting against a particular legal duty to prevent a prohibited act, facilitates its commission by another person through their omission is also liable for aiding and abetting.
Finally, criminal liability may occur for an attempt to commit a crime. According to the Criminal Code, anyone who intends to commit a prohibited act and makes a direct attempt that is subsequently not completed will be held liable for an attempt of a crime. On the other hand, preparations to commit a crime are only punishable when the Criminal Code explicitly provides so (generally applicable to only the most severe crimes).
Polish law does not provide for a comprehensive list of civil protection measures. Undoubtedly, Polish law is rather focused on the protection of victims by way of penal measures applied once the criminal liability has been imposed upon the offender.
For more information regarding the civil protection of victims harmed by domestic violence, see the question "Are there civil protection orders?" in Section 4.1 below.
Under Polish law, "cause of action" is understood as a set of facts that form the basis of a claim against another person, usually in civil law matters. Therefore, a "cause of action" is understood as a combination of facts that give rise to the claim and justify judgment rendered in favor of a party seeking relief.
In formal terms, a cause of action means a subjective right of a person, or more often its elements, the content of which is the right to request a designated person to behave in a certain way.
Blue Card
Under Polish law, the so-called "Blue Card" (in Polish, Niebieska Karta) procedure applies if domestic violence is discovered. The police and social welfare institutions are among the bodies that may initiate this procedure. The Police and other institutions are tasked with providing immediate assistance to the victim and establishing the "Blue Card." A special form is filled out by the representative of one of these institutions, in the presence of the victim, who is also entitled to receive information on the course of the "Blue Card" procedure.
The main objective of the "Blue Card" is to establish cooperation with families affected by violence and to provide help. For example, the arrangement of immediate access to medical assistance if required by a person suspected of being affected by family violence, or with shelter, as required, in a 24-hour assistance facility, including in particular a specialist support center. Also, persons suspected of committing family violence can attend talks on the consequences of family violence in which they will be informed of the possibility of treatment or therapy and participation in correctional and educational programs.
The "Blue Card" procedure is interdisciplinary, as it treats domestic violence as a legal, health, psychological and social problem. Importantly, the consent of the victim of violence is not required for the establishment of the "Blue Card" and procedures related thereto.
Aggrieved party
Pursuant to the Code of Criminal Procedure, the aggrieved person means a natural or legal person or an entity with legal capacity, but without legal personality, whose legal interests protected by law have been directly affected or threatened by a crime. The direct nature of such a breach or threat is, therefore, a basic indicator of harm for the purposes of the criminal proceedings. It means that there cannot be any intermediate link between the act constituting the crime and its effect, i.e., violation or threat of the victim's interests (with the exception applying to the insurance companies).
The term "aggrieved party" does not apply to a person who has compensated the damage caused by a crime and is, therefore, entitled to a recourse claim against the perpetrator of such crime (again, with the explicit exception of the insurance companies).
Injured party
The term "injured party" is used for the purposes of civil law. The injured party means a person whose legal rights or interests have been violated or threatened by nonperformance or the improper performance of an obligation or by a tort, including, but not limited to, crimes both directly and indirectly resulting from such actions.
Therefore, the injured party may be a person whose rights have been violated or threatened by the following:
- tort (ex delicto)
- default or improper performance of an obligation (ex contractu)
Victim of a crime in other legal acts
A victim of a crime is defined in the Polish Charter on the Rights of Victims, which is a soft law instrument. Pursuant to the first point of the charter, a victim is a natural person whose interest, protected by law, has been directly violated or threatened by a crime, as well as their next of kin (in the meaning of the Criminal Code).
Additionally, according to the charter, the victim has a right to: (i) help; (ii) dignity, respect and compassion; (iii) freedom from secondary victimization; (iv) access to justice; (v) mediation and reconciliation with the perpetrator; and (vi) restitution and compensation. Furthermore, subject to the charter, it is necessary that the victim, regardless of whether the perpetrator of the crime has been disclosed, regardless of whether the criminal proceedings (when the victim acquires the status of the aggrieved party) or civil proceedings (when the victim acquires the status of an injured party) are taking place, and regardless of the family relationship between the perpetrator and the victim, obtains the necessary legal, material, medical, psychological and social assistance.
Similarly, the term "victim" is also defined in the UN Declaration and the Istanbul Convention.
One of the most important documents setting standards in the protection of victims is the UN Declaration. Victims of a crime are defined therein as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse of power. The UN Declaration grants victims the right of: (i) access to justice and fair treatment; (ii) restitution; (iii) compensation; and (iv) material, medical, psychological and social assistance.
Finally, Article 2, Point 1 (a) (ii) of EU Directive 2012/29/EU stipulates that victims are not only natural persons who have suffered harm, including physical, mental or emotional harm or economic loss that was directly caused by a criminal offense, but are also family members of a person whose death was directly caused by a criminal offense and who have suffered harm as a result of that person's death.