LEGISLATION ON DOMESTIC VIOLENCE IN
LOBBYING, IMPLEMENTATION , SUCCESSES AND
OBSTACLES
I believe that in the beginning of
my speech it is important to mention that
There are two main reasons for which this problem is being observed in different manner:
Due to aforementioned issues specific right has been established - right to be free from domestic violence.
In 2002. the Law on Amendments to Criminal Law of Republic of Serbia has been passed and it was enforced in March 2002. That is when domestic violence has been defined as specific criminal act for the first time.
Today there is criminal and family legal system for protection form domestic violence.
FAMILY LAW SYSTEM FOR PROTECTION FROM DOMESTIC
VIOLENCE
In February 2005. the Parliament of
Republic of Serbia has passed a new Family Law which is being enforced since
The Family Law and the
aforementioned Law on amendments to the Criminal Law of Republic of Serbia from 2002 are based on regulations
consisted in the “Legal protection from domestic violence Model” which was
compiled by the Victimology Society of Serbia
and which was supported by women’s non-governmental organizations and
groups in Serbia.
The Family Law strictly prohibits
domestic violence and it states the right of each individual to protection from
domestic violence.
Within this law domestic violence is defined as behaviour of a family member that harms physical integrity, mental health or tranquillity of another family member. The law also names different forms of domestic violence:
1.
Infliction or attempt of infliction of physical harm;
2.
Causing feelings of fear with a treat of killing or inflicting physical harm to
family member or person close to;
3.
Forcing to sexual relation;
4.
Invitation to sexual relation or sexual relation with a person who is not 14
years old or with incapable person;
5.
Limitation of freedom of movement or communications with third
parties;
6.
Verbal assaults, as any other impertinent, reckless or malice
behaviour.
The legislator deliberately refused
to name the forms of domestic violence through classification based on the
enumeration principle due to fact that violence has many manifestations and to
try to make a clear list of the forms of violence would make the task of
complete protection of victims impossible.
Range of persons who can demand
protection from domestic violence is also widely determined and it
includes:
1.
Spouses and
ex-spouses
2.
Children, parents, and other related cousins (in blood, in law and adoption) and
persons related by guardianship;
3.
Persons who live or lived in the same family
household;
4.
Extra marital partners or ex extra marital partners;
5.
Couples who were or still are in emotional or sexual relationship, or who have
or are expecting a child, even though they have never lived together in a shared
household
In
such manner cases of violence in emotional relationships, both in heterosexual
and homosexual relationships are included.
The
court may issue one or more orders against the person who perpetuates domestic
violence that temporarily prohibits or limits personal relations with other
family member.
Protection
orders form domestic violence are:
1.
Issuance of a injunction for removing from the family house or apartment,
regardless the right of owning or renting the
property;
2.
Issuance of a injunction for moving in the family house or apartment, regardless
the right of owning or renting the property;
3.
Prohibition of approaching family member at a certain
distance;
4.
Prohibition of access to the place of residence or workplace of a family member
at a certain distance;
5.
Prohibition of further disturbance of family member.
(3) Protection order from domestic violence may last maximum up to
one year, though it may be extended until the reasons for which it was issued no
longer exist.
Furthermore, Family Law of Serbia
provides that a parent shall entirely be deprived of parental right in case he
or she abuses the rights or neglects duties consisted within the parental right.
That is the most serious family law sanction that is practically imposed only in
cases of extreme violence of a parent against a child. When progress in this
area is concerned, it is of importance to mention that the government of
Proceedings regarding protection
from domestic violence are specific form of civil proceedings and they are
regulated by the Family Law. In all the cases that are not regulated by the
Family Law, rules stated within the Law on Civil Proceedings are
enforced.
Legal issues consisted within
marital and parental proceedings are rather complex and for that reason new
Family Law provides that such proceedings shall be entrusted to specialised
panels of judges. Specialisation is enacted
since
The Family Law provides that
proceedings in the field of protection from domestic violence shall be
considered urgent. First hearing is appointed within the term of eight days from
the day the charge has been received. As a general rule, the court should
conduct entire proceedings in no more than two hearings and pass the sentence.
The court of second instance is obligated to reach the decision within the
period of 15 days from the day of charge delivery. Unfortunately, that is not
the case in practice. Victims may sometimes wait for months, and in some cases
even a year before the court order is issued. In such a long period of time
imposition of protective measures aiming at saving the victim from violence
quickly and efficiently, loses its meaning. Such things happen because there are
no proper sanctions for negligent judges who do not perform their duties
efficiently. The victim may only make
a complaint against the inefficient judge to the president of the court
and the president of the court may admonish the judge or assign another panel of
judges to conduct the case.
In such proceedings, the principle
of disposition – where parties are given freedom of disposition is quite
limited. The court may impose the protective measures that have not been
demanded by the charge of the party. It is also of great importance that the
Family Law provides that the court may determine protective measures in case he
or she, after the consideration of the evidence, comes to conclusion that the
complainant, defendant or their child is the victim of domestic
violence.
In the nature of things, these
proceedings are not open for public and the principle of discretion is in
effect.
Apart from the family member who has
been a victim of domestic violence and his or her legal representative, charge
aiming at imposition of protective measures from domestic violence, as well as
extension of these measures may also be brought by the public prosecutor and the
guardianship authority (Social service centre). The public prosecutor or the
guardianship authority who brings a charge has the same status as the party,
which means that they are given rights and duties during the proceedings as
those of the natural persons. However, such authorities are also not trained
properly to work with victims of violence. Besides, prosecutor’s office and the
social service centres are financed by the state budget. They are required to
pay all the expenses during the proceedings such as legal costs, engagement of
experts. Since the budget does not provides financial means for that purpose,
public prosecutors and guardianship authorities hesitate to bring charges
against domestic violence.
Moreover, victims of psychological
violence are in a very difficult position during the proceedings aiming at
imposition of protective measures. More accurately it is almost impossible to
impose protective measures in such cases for many reasons. Firstly, judges are
not sensitised to this issue. I am obligated to mention once again that we are
referring to Balkan country where patriarchal traditional thought still
dominates. As a consequence, many among the judges do not include shouting,
disrespectful language, and similar behaviours into domestic violence but
consider such behaviour as ordinary. Apart from that, psychological violence has
multiple manifestations and very frequently it occurs only between the
perpetrator and the victim and not in presence of third parties. In such cases
it is rather difficult, and sometimes entirely impossible to present evidence of
violence before the court. The victim cannot record audibly or visually the
perpetrator of violence since such tapes cannot be presented as evidence before
the court. In accordance with our law system the only evidence considered is
limited to witnesses, written records, expert’s opinions, hearing of the parties
and investigation. In cases of psychological violence there are usually no
witnesses and written evidence is quite rare. In the nature of things the
investigation is impossible. And as far as expert’s opinion is considered there
are no adequate experts in the field of medicine or psychology who are
specialized to give opinion regarding the consequences that domestic violence
has imposed upon the psychological integrity and to what degree the victim has
been traumatised. Obviously, in most of the cases the only evidence can be taken
directly from hearing the victim and the perpetrator of violence. “Word against
word”. In cases when the judges are not sensitised to the issue of victims of
domestic violence and as a result they do not have a clear picture of the
behaviour of victim and perpetrator, it is obvious that the perpetrator will win
the case. Very often, perpetrators of violence are well prepared prior to
appearing before the court and they behave kindly and courteously. On the other
hand, victims may react differently; sometimes they may lose their temper and
start to shout; sometimes due to their traumas, their statements may be
disjointed, they cannot express their thoughts and very often they give
impression of rather confused and humble persons. This issue must be emphasised.
According to the latest research, every second woman in
CRIMINAL LAW SYSTEM OF PROTECTION FROM DOMESTIC
VIOLENCE
On
In conformity with new law, marital
rape is defined as criminal act against sexual freedom. The law that was
previously in effect did not consider marital rape as criminal act which should
be punished.
As far as the domestic violence is
concerned all sanctions referring to criminal act of domestic violence have been
lifted. However, new criminal law has included new form of criminal act of
domestic violence and it refers to cases where the measures for protection from
domestic violence imposed by the court in conformity with the law are not
obeyed. In such manner, if the court passes a judgement prohibiting the
perpetrator of violence to approach the victim at distance less than 300 metres
and the perpetrator approach the victim at distance of 10 metres, violating the
court order in such manner, the public prosecutor is obligated to initiate
criminal proceeding against the perpetrator.
The criminal act of domestic
violence is formulated as domestic violence.
ARTICLE 194
(1) Whoever by use of
violence, threat of attacks against life or body, insolent or ruthless behaviour
endangers the tranquillity, physical integrity or mental condition of a member
of his family, shall be punished with a fine or imprisonment up to one
year.
(2) If in committing the
offence specified in paragraph 1 of this Article weapons, dangerous implements
or other means suitable to inflict serious injury to body or seriously impair
health are used, the offender shall be punished with imprisonment from three
months to three years.
(3) If the offence
specified in paragraphs 1 and 2 of this Article results in grievous bodily harm
or serious health impairment or if committed against a minor, the offender shall
be punished with imprisonment from one to eight years.
(4) If the offence
specified in paragraphs 1, 2 and 3 of this Article results in death of a family
member, the offender shall be punished with imprisonment from three to twelve
years,
(5) Whoever violates a measure against domestic violence that was imposed
on them by the court in accordance with the law shall be punished with a fine or
imprisonment up to six months.
In such manner completed system of protection
from domestic violence is consisted in the Criminal Law and Family
Law.
As far as enactment of the Criminal Law is
concerned, there are no major problems in cases of physical violence, and
especially when there is medical evidence and expert’s report. The evidence is
clear and the proceedings end in a short period of time. The only problem refers
to psychological violence. All the objections stated before when discussing
psychological violence and the proceedings regarding order issuing are also
present here.
Finally, in cases of protection of
children from domestic violence, new Criminal Law provides more rigorous
sanctions for the criminal act of abuse and negligence of
juveniles.
Neglecting and Abusing a
Minor
Article
193
(1) A parent, adoptive
parent, guardian or other person who by gross dereliction of their duty to
provide for and bring up a minor neglects a minor they are obliged to take care
of, shall be punished with imprisonment up to three
years.
(2) A parent, adoptive parent, guardian or other person who abuses a
minor or forces him to excessive labour or labour not commensurate with his age,
or to mendacity, or for gain induces him to engage in other activities
detrimental to his development, shall be punished with imprisonment from three
months to five years.
CONCLUSION
New Family Law has been enforced for
a year and a half so far, which is not long enough to establish court practice.
That matter is still under consideration. However, it is significant that this
issue is finally put within the legal frame and regulated by the law. That is,
however, only the beginning. There is more to be done in order to sensitise
persons working in institutions, such as courts, prosecutor’s offices and social
service centres to the issue of domestic violence.
___________________________________________________________________________
Legislation on Domestic Violence - Serbia:
Lobbying, Implementation,
Successes and Obstacles
Situation in country on domestic violence legislation and work of AWC-Autonomous Women's Center-Serbia
LOBBYING for LEGISLATIVE
CHANGESS
During
the campaign 250 copies of the leaflet with
the request for changes of the Criminal Law was given to the MP Ms Leila
Ruždić Trifunović, who put each leaflet to
place of seat of all others MP’s in the Serbian
parliament.
AWC participated in the
negotiations within Ministry of Justice,
lobbying for
the proposal of the new Article into the Criminal Law
that had been
created back in 1998 by the lawyers from NGO’s and women attorneys.
During this campaign AWC
asked from the state to pass a new Family law and protection orders. Lawyers
from the women NGO’s had again created a legislative proposal.
For the first time a new
institute of law was provided in our legislature – protection orders, with a
wide range of those who can ask for its issuance (emotional and sexual
relationships).
The aim of the campaign was
promotion of protection orders, with the intention to inform the public, and to
make state institutions to apply them.
LEGISLATION on DOMESTIC
VIOLENCE: Family Law and Criminal Law
I will tell you only in
brief what are the existing Laws, and my colleague from the court will give you
more detailed insight on the existing laws in
On
The
research performed by AWC associates and professors from the Faculty of Law in
Nis, focused on domestic violence cases in court proceedings and police
departments (from March 2002
to December 2003) in five cities in
Serbia, showed that the problem of inadequate legal practice/low implementation lies
in uneven interpretation of the law, problems regarding bringing and
rejection of criminal charges, punitive policy (type and length of punishment),
procedures and mechanisms of protection. To be concrete, there
is:
-
different interpretation of a criminal law
(articles, that influence on inadequate legal protection of domestic violence
victims;
-
inadequate
qualification of the criminal act (not as domestic violence criminal case, but
as LAKSE of serious physical injuries);
-
withdrawal
of criminal charges even if there
is no legal ground;
-
during
the court proceedings, some of the circumstances, relevant to the case, are not
considered or even are neglected;
-
public
prosecutors often withdraw the criminal charges, if e.g. the victim changes the given statement or if
refuse to testify against the perpetrator;
-
public
prosecutors often relies only on the victim’s statement as the only evidence
and fails to investigator
other relevant evidences;
-
judges
often do not consider all aggravating circumstances, such as duration and
intensity of the previously committed acts of violence and other circumstances
relevant for the case;
-
there
is a tendency to probation sentences and fines;
-
the
criminal proceedings often last for a unreasonable long time
-
time
between the indictment and the court trial often lasts more than a
year
Above
mentioned legal practice analysis of attitudes of professionals toward
work of institutions shows the following results:
-
majority
(90% of those interviewed ) highlighted insufficient knowledge in the field of
domestic violence;
-
there
is a necessity for specialized services that provide adequate prevention and repression
measures;
-
majority
of interviewees have no feedback
information regarding the further development of
proceedings;
-
judges
have very different opinions about punitive policy, even if they are of the same
court
-
majority
assess that the court work is not effective;
-
the
existing regulations are not precise, so the changes in legislature are
needed
-
70%
of interviewees quote that they
have no knowledge of existing regulations in foreign legal systems;
-
40%
of interviewees stated that the poor cooperation between relevant institutions.
SUCCESSES AND OBSTACLES
DURING IMPLEMENTATION
How it works in connection
with services for the women - victims of domestic violence and their
children?
From October 2005, AWC
started project Domestic Violence - A Barrier to development, Cooperation with
judicial institution in prevention and protection from domestic violence.
Project activities have been conducted in
The project is divided in
different segments and first was education of representatives from judicial
institution. Parallel we have organized court representation of our clients and
monitoring process of cases.
COURT REPRESENTATION OF
AWC’s CLIENTS
Here are some of the
typical problems
·
depending
on a court, 2 to 4 specialized judges, with more that 300 cases in progress, are
unable to invite the parties within the 8 days;
·
judges are obliged to ask
CSW for the opinion on the requested protection
order(s);
·
in many courts there are no
jurors that had previous knowledge in work with children (condition set up in
Law), and therefore there are no process conditions (specialized court counsels)
for the hearings to be held.
The family law judges feel
obliged to “consider of the wellbeing of the perpetrator”, and they oppose to
the issuance of protection order – eviction from the house. They even say that
it is against the right of protection of property and that the state will face
the consequences before the
a)
make initiative within the
prosecutions offices to write protection orders in all cases where prosecution
had started criminal proceedings (the CD’s with the examples of plains and the
book Guidance through the system of
family law protection from domestic violence have been distributed to the
prosecutions) – the family law gives that opportunity to the prosecutions and
the judges are more likely to believe in its credibility;
b)
the same initiative had
been made in the CSW, but here we have a problem of court asking for an opinion
from another court expert;
c)
file the plaints for the
issuance of protection orders separately from other family law
proceedings
d)
because of the civil
proceedings being as it is, AWC feels that a formation of specialized family law
courts outside the regular municipal courts, like in Germany or USA, would make
this processes, and especially for protection orders,
quicker.
MONITORING
The
aim of
monitoring cases of domestic violence
is to identify specific and typical obstacles that women encounters within
institutions during the process of realization of their rights. These are
starting from stereotype opinions and prejudice regarding different personal
characteristics (gender/sex, nationality, educational, health and mental status
and similar) up to <<institutional violence>> caused mostly by lack
of knowledge and systematic bonding/cooperation between public services.
Monitoring is organized as a process of observing, following and controlling,
and when it’s necessary and acting in
the best interest of woman.
We had chosen 6 various cases for the
monitoring process, with the same outcome – discrimination and secondary
victimization of a woman:
a)
with alcohol
addiction
b)
with addiction on drugs and
Hepatitis C infection
c)
falsely accused of a child
abuse
d)
with diagnose of a mental
illness
e)
who decided to be single,
unmarried mother
f)
who is well educated,
employed but decided to divorce
Typical prejudice and
obstacles:
The AWC survey conducted on
professionals within CSW (psychologists, pedagogies, social workers) showed
that:
·
40% of professionals
consider that woman suffering violence from partner can get help, always when
she ask for it from police, CSW or prosecutor office
·
70% believes that mother
should protect child from abuser, even if she risk her own
life
·
37% believes that mother is
capable to protect child from abuse, in most cases by separation or displacing
of abuser from apartment (60%)
·
28% consider that mother
who doesn’t succeed in protecting child from injures is responsible for those
Lessons
learned
during monitoring processes:
i)
women, victims of domestic
violence, need to be prepared for the interviews before the institutions because
they are seen by the professionals as a neurotic, angry and
quarrelsome;
ii)
for the same reasons, these
women need to be represented in the court cases;
iii) AWC consultants need to
work with women, victims of domestic violence, on their anger management and on
building their parental capabilities;
iv)
AWC consultants should, as
a support for a women, follow women during their appearances before the
institutions;
v)
AWC must keep on public
presentation on specific need of women who are victims of domestic violence
pointing out the connection with existing prejudice of the professionals and/or
no efficiency of the protection system.
In our future work in this
particular project and in other AWC complementary projects we will proceed with
lobbying equalization of legal practice,
research of legal practice regarding criminal law and proceeding and include
participants’ suggestions. Some of
the suggestions were:
1.
Exchange of experience
between
different services and different levels of the same services:
i.
Expert meetings of the
lawyers from different services – court, prosecution,
Centre for social welfare, municipal free legal aid services for citizens –
exchange of experience, identifying difficulties in cooperation, identifying the
needs of other services, suggestions for legal practice
improvement;
ii.
Expert meetings of courts
of different jurisdictions – meetings of
judges/prosecutors from municipal and District courts, and meetings with judges
of Supreme court and prosecutors of Republic prosecution office, in order to
define legal practice and upper court opinions;
2.
Assessing the uniformity of
legal solutions for domestic violence issues – Law on misdemeanors, Family law
(civil procedure) and Criminal Law:
i.
Expert meetings of judges
of different courts
–
policy compliance (harmonization )
3.
Local connection of
services in creation of model of
integrated protection from domestic violence (coordinated
action):
i.
Inclusion of court and
prosecution in creation of policies and
procedures of local community regarding domestic violence;
4.
Analyses of the use of
protection orders from the moment of entering
into force.[1]
5.
Expert meetings with attorneys in cooperation with
[1] This
analyses still doesn’t exgist and AWC will try to find funds for this research
to be conducted for the city of Belgrade, starting from the day of legal changes
(from 1.7.2005 till the end of
2007.);