Facts and proceedings
P. Z. was found guilty of intellectual and physical abuse over his parent (Article 207 §1 KK). For more than 5 years, the accused repeatedly started a riot during which he strangled, pushed, jerked, threw at the injured objects (glasses, bottles, crippled/orthopedic ball), insulted and humiliated her with words commonly regarded as vulgar and abusive and the threat of suicide forced her to transfer money to him. The Gdańsk-North territory Court in Gdańsk sentenced the perpetrator to 10 months imprisonment with conditional suspension for 2 years, committed to treatment of addictions and prohibited contact and approach to the victim at a distance of 50 m.
The judgement was not contested by the parties and was finalized in May 2024.
No mandatory supervision
The lawyer General brought an appeal under Article 521(1) of the NCP against the convicted person, alleging a gross violation of Article 73(2) of the KK — the absence of a judgement against the perpetrator of the compulsory supervision of a curator or of a trustworthy person, association, institution or social organisation whose activities include the care of rearing, preventing demoralisation or aid to convicted persons.
The ultimate Court acknowledged the D.A.'s right, and found the cassation valid, of course. He pointed out that the failure to apply mandatory supervision could not justify the fact that the common residence of the victim and the sentenced individual ceased. The condition that exists at the time of the crime, not at the time of the conviction, even in the event that the perpetrator and the victim no longer live together at the time of the conviction, indicates, or even is absolutely certain (e.g. the death of the victim) that the condition is permanent.
Consequently, the ultimate Court annulled the judgement in the part concerning the deficiency of a supervision decision and referred the case to a re-examination in this regard.
This judgement is not only individual but besides systemic. The fact that the ultimate Court one more time had to remind of the compulsory nature of supervision in the event of force against a individual residing together demonstrates the persistent, incorrect judicial practice in lower courts. Although Article 73(2) of the KK provides for mandatory supervision of the perpetrator of home force has been in force for 10 years, there are inactive situations in which courts omit the work to apply it, due to the misconception that supervision can be disregarded if the perpetrator and the victim no longer live together. This approach is incompatible with the nonsubjective of regulation and leads to a weakening of the protection of victims of home violence.
The legislature has imposed an work of supervision not by accident – it is to execute not only a protective function, but besides a preventive function. This measurement not only protects a peculiar victim, but besides prevents the repetition of a pattern of force against others with whom the perpetrator can establish individual or household relations in the future. In this sense, surveillance is not only educational but besides socially preventive – it reduces the hazard of escalation of force and strengthens the sense of safety of possible victims.
Therefore, this ultimate Court ruling should be read not only as a correction of an individual mistake but as an appeal for consistent and uniform application of the law in home force cases.
