WUNRN
THE MULTIPLE UN COMMITTEES MONITORING THE
HUMAN RIGHTS TREATIES PROVIDE AN IMPORTANT OPPORTUNITY FOR NGO'S AND
GENDER PROGRAMS TO SUBMIT SHADOW/ALTERNATIVE REPORTS.
The example that follows is for the
UN Committee Against Torture, and a gender-focused Shadow Report.
Press Resease - World Organisation
Against Torture - OMCT & Association for the Emancipation, Solidarity &
Equality of Women in Macedonia - ESE
"During the discussion with the
government delegation and again in its Concluding Observations, the Committee
strongly expressed its concern over “the persistence of violence against women
and children, including domestic violence” as well as over “trafficking in
women and girls, especially for the purpose of sexual exploitation”. NGOs are
particularly satisfied about the wide range of recommendations made by the
experts in order to “prevent, combat and punish violence against women and
children, including domestic violence”, “to provide recovery and reintegration
services to victims” of trafficking and finally to raise awareness and train
officials who are in close contact with the victims as well as the public at
large.
OMCT and ESE consider that the comprehensive dialogue with the government delegation and the detailed Concluding Observations of the Committee clearly show that major steps remain to be taken so that the FYROM fully comply with the Convention Against Torture. Measures implementing the Committee’s recommendations should be taken appropriately and without delay. OMCT and ESE remain deeply concerned and will scrutinize the government’s action."
______________________________________________________________
Conclusions and Recommendations of the Committee against Torture (advance unedited version): http://www2.ohchr.org/english/bodies/cat/docs/co/CAT-C-MKD-CO5.pdf
The Committee against Torture: http://www2.ohchr.org/english/bodies/cat/index.htm
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: http://www2.ohchr.org/english/law/cat.htm
Second Periodic Report of Macedonia to the UN Committee Against Torture:
http://daccessdds.un.org/doc/UNDOC/GEN/G06/437/43/PDF/G0643743.pdf?OpenElement
UN Website Link: http://www2.ohchr.org/english/bodies/cat/cats40.htm
______________________________________________________________________
IMPLEMENTATION OF THE UN CONVENTION AGAINST TORTURE
THE
REPUBLIC OF MACEDONIA
**************
Shadow Report
UN Committee Against Torture
40th session
May 2008
Researched and written by:
Violence
against women: Orlane Varesano ov@omct.org
(OMCT), Jasminka Friscik (ESE)
Child rights:
Cécile Trochu-Grasso ct@omct.org (OMCT)
TABLE
Violence against women: implementation of the Convention against
Torture towards women
1. The
Association for Emancipation, Solidarity and Equality of women- ESE
2. Overview of
the women human rights situation 3
3. Legal
framework for the protection of women’s rights
4. Practice of
torture and other CIDTP
5. Definition
and criminalisation of torture (articles 1 & 4)
6. Measures to
prevent acts of torture (Article 2 §1)
7.
Non-refoulement (Article 3)
8. Education
and information (article 10): Gender sensitive training
9. Arrest,
detention or imprisonment (Article 11)
10.
Investigation (Article 12):
11. Right to
remedy (Article 13)
12. Redress
and compensation (Article 14)
Violence against children: implementation of the Convention against Torture towards children
3. Occurrence
of torture or other CIDTP against children
4. Definition
and criminalisation of torture (articles 1 and 4)
5. Preventing
torture and other CIDTP against children (Article 2 §1)
6. Education
and information on child rights’ safeguards (article 10)
7. Review of
arrest and detention rules and facilities (Article 11)
8. Right to
remedy (Article 13)
Violence
against women: implementation of the Convention against Torture towards women:
Violence
against children: implementation of the Convention against Torture towards
children:
Violence against women: implementation of the Convention against Torture towards women
1. The Association for Emancipation, Solidarity and Equality of women- ESE
Since
1994, the Association for Emancipation, Solidarity and Equality of women- ESE -
has been continuously active in the field of promotion of women’s
rights and gender equality. The ESE Association has been proved to be a high
profile organization, which expertise has been consulted in developing and
preparing important strategic policy documents, plan of action, studies and
laws on national level. The
ESE Association has dedicated its professional expertise in improvement of the
position of women in the society, particularly women who face discrimination on
one or several grounds. Working
with women coming from different ethnical, religious, economic or social
background and assessing the obstacles in fulfilling their human rights gives
ESE ground base for further exploring the root causes of discrimination, gender
based violence, risks factor and constrains in accessing women human rights in
different fields of the society (access to the legal, social, health and
educational system, labor market, decision making process and etc.). In order
to improve the status of women, ESE privileges the active involvement and
participation of both women and men to lead to a factual and depart from
declarative gender equality. ESE’s motto is: For equal opportunities, For
equitable distribution of power, For factual, not declarative equality. In
addition to this comprehensive scope of research activities, ESE provides women with professional high quality services –
free of charge –including: advice, counseling, support and information on
domestic violence and health issues; ESE also works for developing and strengthening
the capacities of NGOs related to women and health issues. Every efforts aim at
strengthening the capacity of women in political parties to recognize and
facilitate the elaboration of gender-related concepts and policies at the
national and local levels and of legal and factual analysis of issues related
to women, followed by the engendering of relevant legislation.
2. Overview of the women human rights situation
If there have been some changes in urban areas to that
respect, rural areas and some ethnic communities (Albanian, Roma) conserve
patriarchal patterns of relationship, especially within the family context. For
example, even if both parents are equally entitled to parental rights and responsibilities
according to the legislation in the country, in practice women are those
responsible for upbringing the children.
The lack of women participation
in the political life
Women are not sufficiently involved in the political
life and do not reach high decision-making positions. This is also true for
women within political parties; they are involved to a lesser degree than men
in the development of political party platforms, since they are less
represented than men at the decision level.
Women participation in the political life is still
looked negatively by some communities, which has not been addressed by the
State. Women engaged in politics suffer from negative attitude; they are for
example disadvantaged regarding the media presentation during the elections
process.
With the introduction of the new Electoral Code from
The difficulties in accessing to
education
The legislation provides equitable access to education
for both the male and female population. However, it is not always the case in
practice and girls tend to complete only fourth or eighth grade and are kept at
home once they finish school, to work in the agriculture or to take care of the
household. The phenomenon of drop out of the educational process is also a
particular problem.
Girls from certain ethnic groups are especially at
risk to have a limited access to school. The traditions and stereotypes make
that boys are prioritized regarding to education. It is a burning question in
the Roma and Serb communities.
The following
are obstacles preventing girls from attending or completing schooling:
- Inaccessibility of schools in
certain regions where children walk for a few hours to arrive to school;
parents fear to let the girls alone over mountains
- Economic barriers, in cases
when the parents may only afford the education of one child, they chose the boy
In the past, female children were deprived of access
to certain educational institutions - such as the military and police
academies; but this has changed over the years. The only exceptions are the
religious schools, which are male or female only. In any case, women who have
obtained a degree at these faculties are not allowed to give religious
services, in accordance with the canonical rules. In some traditional families,
the girls are still encouraged to choose certain “female” professions or a
school that is located in the immediate vicinity.
Employment
From a formal aspect, men and women have the right to
equal employment opportunities including the use of equal criteria. However,
there are deviations in practice, especially in the private sector. Indeed,
there is a difference in practice between the state and the private sector. In
the private sector, legislation is not observed with regard to the issue of
entering employment and the enjoyment of the rights arising from employment in
general.
The State lacks an incentive mechanism that would
provide equal treatment of men and women at work. The only tool is the Labour
Inspection that oversees the application of the Labour Relations Act and of the
Law on Employment.
It must be noted that in certain ethnic communities,
such as the Albanian, there are cases where women are not allowed to have a
job.
The persistence of stereotypes makes that women are
best represented in some specific sectors such as the health and social welfare
sectors followed by the financial brokerage and education sector, while they
are still excluded from others.
Finally, women remain more at risk of falling in
precarity (in term of wages, temporary contract, and right to benefits). Unpaid
family workers are in a particular situation of vulnerability and are mostly
women.
3. Legal framework for the protection of women’s rights
Legal
Protection against Discrimination
The
Constitution of the
However,
there is no specific and comprehensive anti-discrimination law and this lack is
even more problematic since the majority of the laws have no provision
prohibiting discrimination.
Only
some laws in the
As
there is no stand alone law prohibiting discrimination, there is neither a
general definition of discrimination that would be disconnected from a
particular context, neither from a general point of view nor from a specific
perspective that is gender discrimination. This lack was already highlighted by
the CEDAW in
In
case of violation
of the provisions prohibiting gender discrimination the substantive legislation in the
The former is postulated in individual
laws (stated above)[8][8], while the latter is defined in
Article 137 of the Criminal Code, which refers to violation of equality between
citizens. Article 137 of the Criminal Code is of particular importance since it
prescribes imprisonment for those who will deprive of or restrict the rights of
people and citizens defined in the Constitution, in laws or in a ratified
international convention on the basis of their gender, race, complexion, etc.,
as well as for those who, on the basis of such differences, will entitle
citizens to privileges contrary to the Constitution, laws or a ratified
international convention[9][9].
When it comes to protection of
freedoms and rights of citizens defined in the Constitution and laws, there are
special powers assigned to the Public
Attorney, who may initiate a procedure upon the request of the damaged
person or under its own initiatives.
According
to article 24 from the Law on equal opportunities between men and women, an
initiation of procedure can be undertaken by submission of a written initiative
to the litigator. The established Litigator’s mandate on the way as it is
determined does not provide effective protection in cases of gender based
discrimination, as regard to the fact that the procedure results only in written opinion. This opinion
may contain violations of the equal treatment principle if it is determined, as
well as recommendations for application of the principle. Afterwards the
clients are referred for further protection to the responsible inspection body,
public attorney or other responsible body. The way as procedure is foreseen in
the Law on equal opportunities does not provide efficiency, in contrary it
postpones and duplicates the procedure itself.
Despite
some
legal provisions that may hinder the enjoyment of women human rights remain,
the national legislation is generally speaking quiet in compliance with the
international obligations on equality[11][11].
In
practice, discriminatory customs and traditions
as well as stereotypes remain very present. Even
if there have been changes to that respect, the majority of citizens accepts
the traditional roles (men are responsible for ensuring material safety in the
family, while women are responsible to take care of the children and home).
Here are some examples of areas where discrimination remains in practice:
Nationality:
-
From a formal point of view, both parents enjoy equal rights regarding the
choice of citizenship of their children. In practice, nevertheless, the role of
the father is emphasized, i.e. the citizenship of the father is the one chosen.
-
In the practice - especially among Roma’s and Albanians - women ask for
permission of their husbands, mother-in-law or another person to obtain a
passport. This permission has no formal value.
Marriage and Family:
- Under the
Family Law, the woman is entitled to make a voluntary decision about her
surname. In practice women most often choose the husband’s surname, or add their
surname to the husband’s.
-
After the divorce, the position of women is usually more difficult compared to
the position of men. Most often the custody is granted to women if the children
are small, a fact which additionally worsens their position. Furthermore, they
must leave the family house because the husband is the registered owner of the
real estate. It is harder for divorced women to enter into another marital
union.
The
only state institution for improvement of the status of women is the Sector for equal opportunities that was established in March 2007. One of the sub units works on
gender equality and the other for the prevention
and protection against all forms of discrimination. This sector needs further
strengthening of its capacity and having its mandate defined. There is no
separate body to ensure a monitoring, i.e. a mechanism which would follow the
operation of this Unit and would ensure independence in its operation. There is
also no separate body to enable coordination of the activities of the sector
with the NGOs. A National Action Plan for 2007-2012 has been established, but
no assessment has been made on the degree of realization of the planned
activities in the above Action Plan.
After the adoption of the Law on equal opportunities,
the National Commission on Equal Opportunities for Women and Men was
established in 2006 as a regular parliamentary commission. The commission does
not have prepared program/ agenda for the upcoming Commission’s sessions. Thus,
as a result of not having such program, neither relevant civil society
organizations are requesting their presence on these sessions, nor they are
invited by the Commission itself. As an illustration, since the Commission
establishment, the Association ESE was invited to participate in its sessions
only once, but it was not related with particular gender issue elaboration.
Contrary to this, the Parliamentary Commission for the protection of human
rights and freedom asked for our participation in two occasions (analyzing
legal necessity for new law on domestic violence and initiating and lobbing
amendments on the Law on amendments and addendum to the Family Code as regard
to domestic violence).
It
is also worth mentioning that several Gender Equality Committees have been
established at the local level. They work independently and are not a part of
the Sector’s structure. What should be stressed is the development of local
action plans for gender equality.
4. Practice of torture and other CIDTP
As
a general comment, it must be highlighted that there is a real lack of official
data on the issue of violence against women. Besides the Survey “Live in
Shadow”, which focused on domestic violence prevalence and institutional
response to it[12][12],
there is no other comprehensive surveys or analysis (governmental or
nongovernmental) on prevalence, complaint and conviction rates of the different
forms of gender based violence. There was no data on violence against women
within the latest four official reports of the Ombudsperson office. The same
can be outlined for the report of the Litigator for equal opportunities. There
are neither available data on gender based discrimination in the official
report.
Domestic
violence
According
to the ESE’s survey “Life in Shadow”, there is a high level of acceptance of the patriarchal
values that increase the risk of domestic violence. The acceptability of this
value is affected by the age, education, nationality, religious belonging,
membership to political parties and non-governmental organizations.
The traditional marriage and family relations, which
give to men a dominant position, including a total control over the woman and
violence as a means to regulate the mutual relations, is still part of the
Macedonian culture which has been passed on through the process of
socialization, and unfortunately, accepted by women.
The
number of complaints gives an indication on the occurrence of domestic
violence. In 2005 the police registered 3750 complaints and 2650 in 2006.
In practice,
all types of domestic violence (sexual, physical, psychological and economic)
are used against women. Yet, it should be noted that each type of violence does
not occur with the same frequency and in the same proportion.
Repartition of
the reported violence in 2000 and 2006[13][13]
|
Types of violence |
2000 |
2006 |
|
Psychological |
61.5% |
56.4% |
|
Physical |
23.8% |
17.7% |
|
Sexual |
5% |
10.6% |
The comparison of the results in both surveys
indicates the same prevalence rate of the various forms of domestic violence.
The information from both surveys lead to the conclusion that in 2006 the
number of reported cases of sexual violence increased. It probably lies on the
increased public sensibility on this type of violence. Six years ago, during
the first survey, sexual violence was the most tabooed segment of domestic
violence, it was neither spoken of, nor recognized easily. Therefore, we
believe that in the last survey, what increased is the reporting rate of this
type of violence rather than its actual occurrence.
The most common form of psychological violence
in
Most common forms of manifestation of physical violence are the slaps (87.5%), the threats for use of force (70.1%), grabbing and shoving (63.9%). The most severe forms of physical violence are most rarely used – burning or scalding (2.5%) and a use of a knife or a gun (9.9%). In addition to the rather high frequency of the occurrence of physical violence, the research information indicates the fact that women are victims of several different forms of violence. According to the reported forms of violence, each of the women victims was exposed to several different forms of violence, 4.3% on average.
The
dominant form of sexual violence is the unwanted sexual intercourse,
accounting for 85.5% of the reported sexual violence. All other forms of rape,
humiliating sexual intercourse, forced watching of pornographic films and pimping
are represented to a far lesser extent. The humiliating sexual intercourse was
reported in 6.6% cases, while rape in 3.9%. The least represented forms are
pimping and forced watching pornographic films (13.8%).
Case 1
One of the
cases involves E.T., a woman 60 years-old that had been continually physically
tortured by her husband. Beside the continuous psychological violence this
women was victim of combined physical and sexual violence. This case was
reported by the victim’s daughter on
Case 2
B.P is 34
years-old woman who had been psychologically and physically tortured by her
husband. For the first time this victim reported her case in our Legal aid
centre in April,
Trafficking
in human beings
In 2003, 132
foreign women were identified as victims of trafficking in human beings at the
Prostitution
Prostitution
is an existing phenomenon in the country. It is mainly treated as an individual
problem instead as a socially preconditioned phenomenon, and is not treated as
a social priority. Street prostitutes[16][16]
are predominantly local women and girls between the ages of 14 and 60. With the
exception of the oldest women, all women work for pimps who are usually their
husbands or boyfriends. Women working on streets come from the poorer regions
of the country and from the poorest districts of
Sexual
violence
The numbers of
criminal acts against sexual freedom and morality registered from the period of
2005-2007 show that women are more concerned by sexual violence. In 2005, 160
criminal acts were registered in total, out of which 102 acts were done against
women. Out of the total number of criminal acts, 28 cases of rape were
registered. In 2006, there were 163 criminal deeds registered from this kind,
out of which 130 were applied to women. Out of the total number, 44 cases of
rape were registered. In 2007, in the first half of the year, 86 acts were
registered in total, out of which 82 against women. Out of the total number, 23
cases of rape were registered[18][18].
Sexual
harassment
The issue of
sexual harassment has been an upsetting one for the public in
“Sexual
harassment at work is a taboo and an unpleasant issue that people are not too
keen to talk about. The reasons for this are numerous, but most often it is
because they fear condemnation and shame. Women in the
This
raises the issue of men’s awareness regarding sexual harassment at work, and
the types of behaviour at work considered as sexual harassment. The research
shows that in most cases women were exposed to verbal sexual harassment at
work, while non-verbal conduct of sexual nature was least represented (showing
erotic or pornographic contents (6.8 percent), messages and letters with sexual
provocative content (9 percent), and quid pro quo sexual harassment (15
percent)). The most severe form of sexual harassment at work identified was
violent attempt for unwanted sexual intercourse or unwanted sexual intercourse
(rape). 7.4 percent of the respondents stated that they had been exposed to
this type of physical conduct of sexual nature, whereas 34.3 percent had
experienced physical forms of sexual harassment at work (hugging, forced
kissing, “accidental” bodily touch). The percentage for other forms of verbal
conduct such as telephone calls with sexual intentions is also quite
significant (19.2 percent), whereas open expression of sexual offer (24
percent) and unwanted insisting or invitations to go out, to have dinner and
date outside work (26.1 percent). Women in subordinate positions proved to be
the most frequent group of victims of more serious forms of sexual harassment,
such as quid pro quo sexual harassment or physical forms of sexual harassment.
Women working in non-governmental organizations or foreign organizations are
mostly exposed to sexual harassment at work (71.4 percent), followed by women
working in the private sector (62 percent). Most protected from sexual harassment
at work are women working in the social sector (56.9 percent). The research
proves that job security is a factor for protection from sexual harassment –
women employed by means of oral contract are most frequent victims of sexual
harassment (85 percent), followed by women employed by means of short-term
contracts (75,8 percent), then women employed for a definite period (70.9
percent), and finally, as the most “resistant” group are women employed on
indefinite basis (55 percent).”
5. Definition and criminalisation of torture (articles 1 & 4)
5.1. Definition of torture (article 1)
Torture:
Torture is
prohibited both by Article 11 of the Constitution of the
Within the
criminal acts that regulates the sexual freedom and sexual morality the only
criminal acts that could regulate a situation when an official person is
violating these rights is the Statutory rape with misuse of position (article
189): “(1) A person who by misusing his position induces another, who is
subordinated or dependent or with the same objective abuses, intimidates or
acts in a way that humiliated the human dignity and the human person in
relation to him, to intercourse or to some other sexual, act shall be punished
with imprisonment of three months to three years”. Even if State agents are not
explicitly mentioned in the article, this disposition could take into account
the relation between the guard and the prisoner, the investigative judges and the
accused person, the teacher and the pupil, etc., in fact all relationship
implying someone who is subordinated or dependent in relation (article 189,
Criminal Code, Official Gazette No. 19/04) [20][20].
That is the opinion of the doctrine. It remains that the fact that State agents
are mentioned in the disposition is a real obstacle in charging them with this
criminal offence. It appears from the case law that only teachers and other
school employees have already been charged under this article whereas there is
no case related to law enforcement agents.
Domestic
violence over women, i.e. violence within the family, is regulated by the
latest amendments of the Criminal Code of the
“(19) Family
violence shall mean abuse, rude insults, threatening of the safety, inflicting
physical injuries, sexual or other physical and psychological violence which
causes a feeling of insecurity, being threatened, or fear towards a spouse,
parents or children or other persons which live in a marital or other community
or joint household, as well as towards a former spouse or persons which have a
common child or are have close personal relations”[21][21].
In addition, a
specific paragraph is added to certain dispositions to deal with the context of
domestic violence. Therefore, certain criminal acts are also understood in the
context of domestic violence and as such are included in the notion of family
violence, such as: murder, body injury, coercion, unlawful arrest, endangering
security. However, other dispositions do not include the context of domestic
violence such as sexual violence.
Within the Family Law, domestic violence is
considered to be the conduct of a family member who inflicts physical injuries
by force, intimidation and threats, emotionally or sexually abuses, and
materially, sexually or labour-wise takes advantage of another member of the
family. Therefore, domestic violence involves actions committed:
-
by one of the spouses against the other, who have lived or used to live
in marriage or extra-marital union or in any kind of union as a family or if
they have a common child;
-
between siblings, and step-siblings;
-
against children;
-
against elderly family members;
-
against individuals – family members having partial or full working
incapacity[22][22].
We can conclude
that the national legislation provided for an extended definition and takes
into account a wide range of situations of domestic violence. However, we could
regret that marital rape is not explicitly included in the definition of
domestic violence neither in the definition of domestic violence nor in other
dispositions.
Mediation in
conducting prostitution
It includes
the recruitment, instigation, encouragement or enticement to prostitution or
the participation in any other way in handing over another to someone for
performing prostitution. However, no definition of prostitution is provided.
Sexual
harassment
Macedonia’s legal order has incorporated the prohibition of harassment
and sexual harassment, and all related behaviours as acts of discrimination in
its Labor Relations Act (article 7) [23][23],
and has set forth the following definitions: “Harassment, for the purpose of
this Act, shall mean any unwanted conduct initiated by some of those enumerated
in Article 6 thereof, with the purpose or effect of violating the dignity of a
person seeking employment, or of an employee, and which creates an
intimidating, hostile, humiliating or offensive environment” [24][24].
“Sexual harassment, for the purpose of this law, shall mean, any verbal,
non-verbal, or physical conduct of a sexual nature, occurring with the purpose
or effect of violating the dignity of a person seeking employment, or of an
employee, and which creates an intimidating, hostile, humiliating, or offensive
environment”.
Sexual violence : rape
Rape is
committed by use of force or a threat to the life and body of the victim or a
person close to her, forcing her thus to a sexual intercourse or other
sexual acts, which are not precisely defined. The term sexual intercourse is
quiet narrow because it means the joining of the external reproductive organs
of two persons from opposite sex that is only the penetration. The expression
other sexual acts is also problematic in that it is difficult to define and
quiet uncertain that it would include all the realities of rape. As such, there
is a need for clarification of this definition.
What is most
striking is the fact that all of these present forms of violence against women
in the
In case of violation of the legal provisions related
to torture, the Criminal code envisages criminal liability at article 142.
Domestic violence
Domestic
violence is not punished in the criminal code as a separate criminal act, but
is criminalized through a number of criminal acts where the domestic violence
is mentioned as a context where it can happen. Since the amendment of 2004,
acts of violence committed in the context of domestic violence are prosecuted
ex-officio.
Therefore,
some crimes are more severely punished if they are committed “while performing
family violence”:
- Murder
(article 123 (2) 2))
- Body
injury (article 130 (2)) and grave body injury (article 131 (2))
-
Coercion (article 139 (2))
-
Unlawful arrest (article 140 (2)
-
Endangering security (article 144 (2))
- Mediation
in conducting prostitution (article 191 (6))
In these cases, the fact that it happens in the
context of family violence is an aggravated circumstance. Penalties envisioned
for some of the above stated criminal offences are higher if the victim and
perpetrator are relatives.
However, the criminal acts on sexual violence do not
refer to the context of domestic violence. Indeed, marital rape is not
explicitly criminalized but is treated as any other act of rape regardless
of the relation between the victim and perpetrator. If the rape is committed
as an act of domestic violence, the procedure is instigated ex-officio. It
is a positive result of the 2004 incrimination of domestic violence, whereas in
the past, prosecution could be undertaken only upon filing a private suit by
the victim. The punishment for the offender is one to ten years imprisonment.
Sexual assault on a weak person (article 187) in the context of domestic
violence is also prosecuted ex-officio, on the basis of the 2004
amendment.
Mitigation
of sentences and criminal responsibility
Article 40 of the Criminal Code
enables exoneration of the offender or mitigation of the criminal
responsibility, mostly illustrated by the application of a more lenient
punishment (replacement of the prescribed prison sentence by a fine or
reduction of the prison sentence). This can be applied if the law prescribes it
or if “extenuating circumstances exist which point out that the aim of the
punishment shall be achieved also through a more lenient punishment”, in the
limits of Article 41 which stipulates minimum sentences to be applied. In
case of domestic violence, this possibility of mitigation of the punishment is
really often used. For example, in cases of bodily injury, despite
the envisioned punishment of six months to three years, the courts
have rendered an imprisonment sentence only in 15% of the registered cases that
is 11 cases. As for the remaining 74 sentences, probation sentences prevail
(36.5%), followed by fines (19%), probational fines (12%) and acquittals. The
proceedings that dismiss the charges, terminate them or declare
non-jurisdiction account for 12% of the cases. An other example show that endangering
security, which is punishable by an imprisonment of three months to three
years, was sentenced by the court in only two cases (10%) out of the total of
20 registered cases. Probational imprisonment sentences or fines were rendered
in 50% of the cases; 25% were fines and 15% were acquittals or dismissed cases. The mitigation
of the punishment is a result of the non-sensitivity and non-familiarization of
some of the judges with the nature of domestic violence, as well as of the
entrenched traditional values, attitudes, prejudices and stereotypes these
professionals hold. The education of the judges on this issue may significantly
contribute to changing this negative practice. This has direct impact on the general
prevention. The situation is additionally worsened by the fact that domestic
violence has a fairly low reporting level in our country. Victims may get
discouraged to report violence facing this practice of mitigation of the
responsibility[25][25].
The national
legislation also foresees the cases when the victim of domestic violence
murders or injures the perpetrator of the violence:
-Momentary
Murder (article 125): it implies a re-qualification of the criminal
offense murder into the criminal
offense momentary murder[26][26].
It does not require an immediate connection with the previous violence and the
murder committed by the victim, namely, the qualification of a momentary murder
does not require perpetration in a short period of time after the suffered
violence, considering the fact that the violence was being inflicted in
continuity and having in mind the ensuing consequences on the victim’s
psychological and physical integrity. What bears relevance is the fact that
such murder is preceded by domestic violence inflicted by the murdered person
upon the person perpetrating the murder. However, the authorities do not fully understand the essence of the
criminal offence “momentary murder” committed as a result of domestic violence
and most of the time, victims of domestic violence are charged for murder
and not momentary murder.
-It is
important to note that the 2004 adopted amendments regulate those situations
when the person – victim of domestic violence- becomes the perpetrator of the
criminal offense “grave bodily injury”. The legislation prescribes more
lenient sanctions for such situations unlike for the basic offense grave bodily
injury[27][27]
(articles 130-131).
Prostitution
is not legal. Women engaged in prostitution are believed to be disturbing the
public order (article 19, Law on misdemeanours, Official gazette nb. 66/07) and
are liable for committing offence and punished[28][28].
Mediation in and organizing prostitution are punishable[29][29],
more severely than prostitution itself.
Trafficking in human beings
The Government of Macedonia's anti-trafficking law enforcement
efforts showed positive results in the last year. The Government of Macedonia
prohibits sex and labor trafficking through its 2004 criminal code article 418 on
trafficking in persons, article 418c on organizing a group for trafficking, and
article 191 covering forced prostitution. Article 418b is included in the
anti-trafficking legislation and includes criminal sanctions for smuggling.
Penalties prescribed for trafficking for commercial sexual exploitation are
commensurate with those for rape. The laws prescribe penalties that are
sufficiently stringent. Occasionally, however, relatively light sentences are
imposed on convicted offenders. The government in 2006 prosecuted 48 cases
related to trafficking, a significant increase from the 35 cases prosecuted in
the previous reporting period[30][30].
Sexual violence
Rape,
including implicitly marital rape is punishable and prosecuted ex officio
(article 186 Criminal Code, Official Gazette No. 19/04). Rape is treated as a
complex criminal act which assumes the use of force or threat and coercion to
intercourse.
6. Measures to prevent acts of torture (Article 2 §1)
There are no
specific programs that will prevent women from torture. Usually, this issue is
addressed trough the projects implemented by the civil society organisations
that are addressing torture.
The
National Action Plan for equal opportunities of women and men envision
certain measures in the area of violence against women. Namely, in one of its
strategic objectives this plan refers to preparation and implementation of
programs /strategies for fighting against violence, without specifying on which
forms of violence this action refers to. One of the strategic objectives on
this area refers to specific actions on the field of trafficking in
human beings which includes: preparation of SOP (standard operative
procedures), implementation of campaigns, establishment of a data base of
victims of trafficking, conduct of trainings and ratification of the European
convention against trafficking in human beings. Within the plan there are
certain actions foreseen for eradication of domestic violence.
Unfortunately,
other forms of violence are not addressed neither within the National Action
Plan for equal opportunities of women and men nor within a special program.
Domestic violence:
The intensity
of acceptance of the patriarchal values
The research
information on the existence of domestic violence is sufficiently indicative of
the need to approach the prevention of domestic violence and the consequences
it causes in a complex and systematic manner. The results of the researches
conducted to date have showed that the patriarchal values influence the
marriage and family relations, even when they are characterized by violent
elements. The acceptance of the patriarchal values, as the research data
indicate, has a surprisingly high intensity. The surprising element is actually
the high degree of acceptance of norms with certain contents. One of the values
“the good wife accepts her husband’s opinion even when she disagrees”, which is
accepted by 57.2% may be considered as a group norm of behaviour. However, the
biggest and the most disappointing surprise is the fact that every third woman
(28.3%) accepts, that is, justifies violence on women – in certain
circumstances. Therefore, measures to prevent domestic violence must
systemically focus on the elimination, or at least on the decrease of the
reasons which entail acceptance of these values, and change the value system
that regulates the marriage and family relations.
Preventive
activities have been traditionally organized in this country for over a decade
in the framework of the 16 international days of UN activism for fighting
against violence against women. The campaigns are usually organized by
citizens’ organizations, which actually deserve the greatest merit in the
awareness raising and in informing the public on domestic violence issues. In
2004, they were joined by the Ministry of Labor and Social Policy, the Ministry
of Interior and the Ministry of Health. The outcomes of their joint efforts
were the National campaigns for inter-agency cooperation in addressing domestic
violence conducted in 2005 and 2006[31][31].
In 2006,
The National Strategy to fight against
domestic violence[32][32]
has been put in place for the period 2008–2011. An inter-agency group composed
of government officials, experts, science representatives and NGO
representatives have been taking part in the development of the strategy.
Although there
were efforts undertook by the Agency for Development of Education within the
Ministry of Education, together with experts also involved in the work of the
Council of Europe - Committee for Education on the introduction of the concept
of gender equality in the curricula of the educational institutions in
the country, textbooks still contain content with traditional attitudes. There
were no such an efforts to include gender-based violence as part of the school
curricula.
Trafficking in human beings
A National
program for combating trafficking in human beings (was adopted in 2000).
There is not a full and extensive estimation of the effectiveness of the
actions taken within the Program.
A Government
body for combating trafficking in human beings was established in 2001 under
the name of National Commission for Combating Trafficking in Human Beings.
Its executive body is the Secretariat, which embodies all relevant ministries,
international organizations and NGOs engaged in the suppression of this type of
crime.
According to
the
“The
government should increase efforts to educate law enforcement
on the difference between trafficking and smuggling, take steps to ensure that
traffickers receive sentences consistent with the heinous nature of the
offense, and make greater efforts to prosecute and convict public officials who
profit from, or are involved in, trafficking”[33][33].
“The Government of
Macedonia made significant trafficking prevention efforts over the last year.
Posters with the hotline[34][34] telephone number were
prominently displayed at the
The NGO sector
undertakes a series of educational and preventive activities, especially among
the risk groups – in secondary education and university dorms, in secondary and
primary schools, at universities, and in rural areas. In addition, local
strategies for combating trafficking in human beings are being developed
through establishing local coalitions, initiated by local female organizations.
7. Non-refoulement (Article 3)
Article 81 of
the Law on Aliens provides for “Temporary residence for victims of trafficking in
human beings”:
Article 81: Period of decision-making
(1) An alien,
for whom there are grounds of suspicion to be a victim of the criminal act
“trafficking in human beings” as stipulated in the Criminal Code, shall be
enabled to bring a decision within a period of maximum 2 (two) months with a
view to providing him/her protection and assistance in the process of recovery
as well as avoiding influences from the perpetrators of such a crime. Within
this period, the victim is to decide on either to co-operate with the competent
authorities in detection of crimes and perpetrators or to return to the country
that s/he is national or permanent resident of.
However, the Law
on Asylum and Temporary Protection has no specific provision on human
trafficking. The Ministry of Interior has so far not received or registered any
application for asylum submitted by
a trafficked human being, despite strong fears of returning to their countries
of origin.
Real
impediment is that the gender based approach in granting asylum is not
transposed in the national legislation. Indeed, gender based violence
(domestic violence, sexual violence, trafficking) is not considered and
perceived as a specific ground to grant asylum.
As such, general provisions of the law on asylum are applicable in cases
of human trafficking, on the basis of the fear of persecution.
In addition,
despite the Law on Asylum foresees personal interview of the asylum seekers, women are regularly not
interviewed separately from men. Officials at the Asylum Unit within the
Ministry of Interior fail to demonstrate gender sensitive interviewing
techniques while interviewing women asylum seekers. We remind that in a
conclusion adopted in 1993, the Executive Committee of UNHCR noted that asylum
seekers who have suffered sexual violence are to be treated with special care.
Also, it calls upon asylum countries to introduce special programs for gender
sensitivisation of individuals included in the asylum granting procedure. This
is not the case in asylum procedures in
8. Education and information (article 10): Gender sensitive training
Domestic
violence and trafficking in person are incorporated as separate educative
subjects. Gender concepts and gender issues are not part of the basic educative
programme of the police academy.
The programme
for basic education in the Academy for training of the judges and public
prosecutors has been adopted on 04.06.2007. The programme itself is
structured in three sections: Judicial, General and Specific subjects. Within
the section “specific subjects”, there is one module (in total 11 hours)
dedicated to non-discrimination. This module incorporates issues, such
as: international human rights documents, system of the European Union,
national system for combating discrimination, discrimination in the court
procedures and discrimination in the employment[36][36].
This programme as it is foreseen remains insufficient to provide a
comprehensive understanding of violence against women and cannot allow in-depth
elaboration on this issue. However, since this program started in June 2007, it
is quite early to evaluate its effects.
In the
programme for continuing professional education of the judges and public
prosecutors (2007-2009), only one module II is dedicated to “Discrimination”.
All the educative subjects within the programme are lectured mostly by the
professors of the Law faculty, judges, Ministry of interior and Policy academy
representatives, as well as the relevant civil society organizations. For
illustration Association ESE is the first CSO that provided three two-days
trainings on domestic violence for these groups of professionals. Modules
dedicated to torture and gender issues are foreseen in the timetable of 2008,
but the conduction of trainings depends on the financial means.
Association ESE and Akcija Zdruzenska within the two year
project (2005-2007), titled as: “ Establishing unified and positive practices
in combating domestic violence in Macedonia”, conducted two three-day seminars on
gender issues, discrimination, women human rights and gender based violence for
both professional groups, civil justice actors in domestic violence
protection system (social workers, medical professional, civil court
judges) and criminal justice actors (criminal court judges, investigative
judges, police officers). 50 participants in total (25 per group) participated
in the seminars. The rationale for this training was that most of the members
of the working group already went through training on violence, but they had
not attended any training on gender. The training itself enabled professionals
to better recognize the problem of violence as rooted in the patriarchal
context with traditionally constructed gender roles, discrimination in the
context of the human rights and women’s right protection through detailed
elaboration on the CEDAW convention. Unfortunately, we can not speak about a
high level impact, having in mind the fact that these trainings were part of
the project activities.
To conclude,
the State failed to provide systematic training on these issues for
professionals dealing with different forms of gender based violence. No other
training, like the one cited above, has been organized for these groups of
professionals so far. The notions of gender based discrimination and violence
are not considered as relevant issues that professionals should be trained for.
There are no educative subjects related to sexual violence.
9. Arrest, detention or imprisonment (Article 11)
Statistics
The situation
concerning the detainees on 23 rd November 2005 was 2.256. Out of
this number, 227 prisoners are pre-trial detainees, 1843 sentenced prisoners,
161 persons imprisoned for misdemeanours (e.g. fine default) and 25 juveniles
in the educational-correctional institution. Of the total numbers of prisoners,
55 are females, one of them a juvenile[37][37].
In average, women prisoners are, in number between 35 and 50 per month,
including the penalties which are longer than 5 years.
Ill-treatments
According to
ESE, there are allegations of ill-treatment against women within the prisons
but they have never been documented. In general, official persons are
conditioning on women inmates in order to realize certain needs of the women.
They are asking them to do things for them, even a sexual favour. It is a sort
of blackmail. There are cases but there is no formal procedure that has been
initiated. The source of this information is one of ESE’s collaborators i.e.
the former head of the women ward in Idrizovo.
Separation between men and women detainees
There is no
special institution or prison for female detainees, but there is a female ward
in the prison of Idrizovo. All sentenced female prisoners are placed in this
ward. The internal unit of the women ward is secured by women, and the outside
unit is secured by men.
Women charged
with misdemeanour offences can be placed in any of the seven prisons for adult[38][38].
The
women pre-trial detainees are placed in special parts in the five prisons of
semi-opened type –
In these three contexts, we cannot be sure that the
separation between men and women detainees is fully respected. We have
especially huge concerns about this requirement in the context of the pre-trial
detention where even a simple ward reserved to women is not established.
Medical care
“There is a serious shortage of medical staff in the
Macedonian prison system. Idrizovo, with a full complement of 6 doctors and 10
nurses, has just one doctor on a short-term contract, another working half-time
and two nurses[40][40]". The health
protection of women prisoners is provided with one or two doctors. Within the
women unit in the Idrizovo Prison, there is an infirmary that serves the needs
of the women inmates with regard to the medicine needed, when available. As for
the hygiene and especially sanitary products, those who have financial means
can obtain them through the guards (they are making a list of needed products
and buying them) in the local shop placed within the prison of Idrizovo.
The law on the execution of sanctions, at its article
134[41][41], prescribes that the pregnant women have to be provided with
professional medical help care and support.
Women could have gynaecological checks only if the in-house doctors
recommend that. If it is recommended, women are brought to the special
department of arrest that is operating within the Clinical centre. While this
medical cares are lacking, "once a week, the prison of Idrizovo is visited
by ophthalmologist, neurologist and a radiologist”[42][42], situation that seems quiet
disproportionate regarding the lacks with other health professionals.
Activities for
women detainees
There is neither
informal education/ activity for the women inmates, organized by the State nor
family therapy (with inmates and their families) that will ensure better
re-socialization and reintegration after the penal detention. In the
penitentiary correctional facilities at
Idrizovo-Skopje, no attention has been paid to the informal education of
the women inmates. For quite a period a time, within the women’s department
there was no possibility to exercise some kind of informal education.
The
main part of ESE’s activities has been devoted to working with women inmates
within the women’s department in PCF - Idrizovo. Through conducting informal
educational and working activities inside the women's department, ESE has aimed
to broaden the scope of the correctional program which leads to promote and
implement the social and economic rights of the inmates in the prison of
Idrizovo. A large number of clusters of psycho-social workshops and sewing
courses, put in place by ESE, has helped women inmates in their active involvement in the
correctional process, as well as in the process of re-socialization during the
penal detention. Additionally, family therapies with women inmates and their
families were organized in 2004, aiming at achieving acceptance of the inmate
by the family members during and after serving the sentence and to ease the
process of integration and re-integration of the inmates within their families.
10. Investigation (Article 12):
Lacks in term of victims and state agents’ awareness
and knowledge:
Violence
against women, especially domestic violence, is quiet under-reported. According
to ESE estimation and researches, the
level of reporting of domestic violence cases to the police is only 20.7%,
which means that only one case of domestic violence over five is reported.
In
the context of domestic violence, the fact that these acts are under-reported
and under-investigated is due to the non-consent of the victim to press
charges against the offender. In the context of domestic violence, this is due
to the nature and closeness of the involved parties and the victim only wishes
the violence to stop and the offender to be warned against the inadmissibility
of his behaviour. The fact that women initiate essentially complaints and not
criminal procedure is yet another indicator of the victims’ reluctance to truly
face the offender and change her attitude to the violence she is suffering.
In addition, there are still women who do not actually
consider the violence committed on them as a crime. The research data indicate
that every fifth woman explicitly stated that violence within the family does
not constitute a criminal act. The most dominant reason for not reporting domestic violence is the
victim’s shame and feeling of guilty, which are revealing the taboo related
with this issue.
It also must be noted the victims’ insufficient information on the existing legal possibilities and the actual non-use of the available solutions by the police. In a situation when we are facing an absence of awareness of the legal regulation and low level of reporting of violence, it is necessary to intensify the promotion of the existing legal possibilities. One of the ways for such police action is to apply all possible solutions in a concrete case, which includes informing the victim of what the system offers for her adequate protection.
These observations illustrate the need for education
and awareness-raising campaigns towards the population as a whole on the
questions of violence against women and the available remedies.
This need for
education is also relevant regarding the policemen and investigators. A
precondition for an adequate police action is their permanent education,
focused on the legal mandate and including a more detailed description of the
existing criminal offenses that regulate violence against women, including
domestic violence, or the set up of special expert police teams that would be
specialized for working on such violence cases.
Reporting
rates are especially low in cases of marital rape and sexual violence because
of the failure to recognize this type of violence and due to the omissions in terms
of proceeding: collecting of evidence, prescription of
mandatory forensic medicine examinations, lack of medicine protocols or lack of
referral system for rape victims. Indeed, there is no specific system of
protection for victims of rape. Professionals
dealing with these cases (police, prosecutors and judicial officials) are very
reluctant to prosecute marital rapes. The same can be concluded in case of psychological violence especially in the domestic
context.
The lacks on a procedural aspect:
-The need for an ex-officio initiation of the
procedure and the question of the victim consent
The criminal charges for the sexual violence and domestic violence are initiated ex officio by the police, except for the criminal act bodily injury for which the procedure is initiated upon the private suite, which require the victim’s consent[43][43].
In
situations when the victim does not consent, a written notice is sent to the
offender to warn him highlighting the inadmissibility of his behaviour and the
existing legal mechanisms to be used in future. If the offender does not
respond to the written notice, there is no legal mechanism in place for the
police to ensure his presence. The case is registered as a complaint but no
effective action is undertaken to resolve it. This is even more concerning
since the existing mechanisms for dealing with cases of complaints do not offer
any guarantee of prevention of violence, contrary to the sanctioning of a
committed offense.
Unfortunately,
despite this legal requirement, our information obtained in the course of the
years-long working with this professional structure indicate that the police
require the victim’s consent even in cases of grave bodily injuries. They are
themselves aware of this situation but
do ask for the victims’ consent as a “preventive” measure since at the
beginning, they are not certain about the criminal qualification - that is
whether it is bodily injury or heavy bodily injury.
Moreover,
the victim may withdraw her consent in the course of the preparation of the
criminal charges by the police before it is submitted to the Basic public
prosecution offices. When this happens, the police inform the prosecution on
all undertaken actions in a special report and the prosecution decides on the
further proceeding. Unfortunately, there is no information on the number of
submitted special reports to the prosecution, although it can help determine
and overcome these negative tendencies.
The
withdrawal of the consent in this type of crime is possible even in the course
of the criminal proceeding. This information is again not explored sufficiently
in our country.
The
analysis of the missing parameters listed above may significantly contribute to
identifying the ways for elimination of the possibility for the victim’s
withdrawal of her consent in any stage of the proceeding. One of the possible
ways is simplification of the procedure, in the sense that the statement of the
victim given in the pre-court procedure is valid in court so that it would not
be re-investigated”[44][44]. In order to avoid the secondary
victimization and the risk of the victim to change her original statement and
withdraw the stated given previously, law amendments to the Law on Criminal
Procedure will be prepared, thus providing the victims of domestic violence
with special status during the criminal procedure.
- The problems regarding the registration of the facts
There
is an evident trend of registering the acts of domestic violence which have
constitutive elements of criminal offenses as misdemeanours and not as criminal
offences[45][45].
This conclusion may be supported by the large number of misdemeanours related
to psychological and physical violence. 965 requests for misdemeanour charges
were submitted to the MoI in 2006, out of which 280 were for maltreatment and
coercion, 111 for physical assault and 53 for endangering security.
This
situation is mostly due to the fact that when a case is reported to the police,
the police officials, who have neither sufficient knowledge for this issue nor
training for working with domestic violence victims, decide whether this
reported case will be registered as a criminal offense, a misdemeanour or a
mere complaint. This approach implies an inappropriate protection of the
victims as the protection measures guaranteed in this case, are not the same
under both system.
But we can notice positive steps. In 2006, more
criminal procedures of domestic violence were initiated, than in 2005. Indeed,
2,565 complaints were registered. It also appears that an increased number of
criminal charges were pressed by the police for the criminal offense bodily
injury that is 19.5% of the cases of domestic violence. On the other hand, the
number of mere complaints decreased in comparison with 2005.
11. Right to remedy (Article 13)
Right to complaint:
Domestic
violence is treated under the Department for juvenile delinquency within the
police (Ministry of Interior). There is no special mechanisms regarding the
reporting of the violence by the victims. The National SOS line for victims
of domestic violence is operating within civil society organization with the
support from the Ministry of labor and social affairs.
Several
elements have influence on the registration of the complaints. Indeed, even if
women do not face formal obstacles, they are facing
the lack of capacities of the professionals and the stereotypes
that can undermine the further proceeding of the case and as such the type of
protection that will be provided. These behaviors can clearly lead to a secondary victimization of the victims during the
criminal proceedings.
There
are cases of domestic violence when the profesionals from the CSWs are
directing their efforts toward conciliation of the spouses, evading the
main principles for work with victims of domestic violence.[46][46]
Namely, they are applying the methods characteristic for the work of the
Department for marriage and family, instead of the working methods
characteristic for the Departments for domestic violence[47][47].
Here, there is a clear need for education
of those professionals
working with women victims of violence and for regulation of the procedures
within the criminal legal system.
Right to protection:
Domestic violence:
Regarding the civil legal system, some weaknesses are identified. They are mostly due to the absence of an established procedure for the evaluation, the recommendation, the rendering, the enforcement and the monitoring of the rendered temporary protection measures. There is no standard or parameter to choose between the different types of protection and determine the effects of the provided protection. In addition, there is no reference list of institutions and organizations that will implement and monitor the protection measures on the basis of set rules.
The weakest point of the civil legal system is the complete
or partial non-functionality of certain temporary protection measures (for
example, the counselling for the offender and mandatory medical treatment of
the offender if he is an alcoholic or uses some psychotropic substances or is
ill).
The civil
system of protection is based on two types of protection measures: protection
measures and temporary protection measures.
The reforms in
the legislation addressing family in 2004 entailed introduction of a number of individual
protection measures. In this sense, the Centre for Social Work and the
non-governmental organizations that work on eradicating and preventing domestic
violence were given a legal opportunity to build the necessary coordinative
protection system. The range of individual measures to be undertaken by the
responsible institutions (the formal protection system) and the NGO sector (the
informal system) include the following a quiet comprehensive range of measures
from shelter, medical, psycho-social care, counselling and legal aid, etc.
Up
to date, there are no legal or supplemental legal provisions that specify in
more detail the contents and manner of implementation of each measure. The
need for their development is very pressing, especially considering the fact
that the state and NGO sectors form and build together the system for
implementation of these protection measures. This illustrates the need for a
coordinated approach.
In
this sense, standardization of the protection measures envisioned within
the family legislation has been undertaken by non-governmental organizations[48][48]
and the Ministry of Labor and Social Policy[49][49].
This initiative will result in modifications of the Law on Social
Welfare, in the elaboration of standards in the form of supplemental legal
provisions and in the definition of clear conditions and criteria to be met and
complied with by the actors in the formal and informal protection systems, in
order to avoid double standards.
In
absence of such standards, the functioning of the protection systems today is
based and greatly dependant of the professionalism and the capacities
available in the institutions/organizations and as such is quiet unequal
between the institutions. The capacities and the resources of the Centres
significantly influence the degree of application of some measures.
Regarding
temporary protection measures,
some of them have a prohibitive character (they prohibit certain kind of
behaviour) and others have imperative character (order certain kind of
behaviour)[50][50].
It appears that the Centres of Social Work recommend more easily those TPMs
that have a prohibitive nature and that will be ordered by the court more
easily than those TPMs that impose certain kind of behaviour on the offender.”[51][51]
There are quiet a lot of uncertainties regarding the
procedure of ordering the TPMs. An important question is who
can initiate a procedure for ordering temporary protection measures. In absence
of an authentic interpretation, the practice shows different views. Some views
interpret this provision restrictively, stating that only the Centres for
Social Work are authorized institutions that can submit such requests to the
court. The extensive interpretations, on the hand, insist on expanding the circle
of authorized subjects that can request ordering of TPMs. The latter
interpretation facilitates the access and maintains the spirit and meaning of
this protection (direct and prompt), without diminishing the importance of the
Centres as bodies that can give an opinion in accordance with the measures and
protection it provides for concrete violence cases. This difference will be
overcome with the adoption of the amendments to the Family law that is in
assembly procedure waiting for adoption. Same,
it remains unclear in which cases and how the Centres decide on a shorter time
period for the duration of the measures than the allowed maximum (one year).
Practice indicates cases for which there have been requests for a shorter
duration of the measures and the court grants such requests. There is neither a
mechanism for monitoring the enforcement of the TPMs nor one for the evaluation
of their level of efficiency.
There is
negative practice by some of the civil court judges within the procedure for
issuing Temporary Protection Measures in the domestic violence cases. In some
cases, judges have shown some reluctance to issue TPMs while the Centers
requested such measures, arguing that domestic violence was not extremely
serious and that the victim’s life might not be at danger. This practice is
contrary to the preventive nature of these measures, which should be used to
prevent further or grave violence. Indeed, there is quiet a low level of
initiation of temporary protection measures. In the period June 2005 – June
2006, out of the established cases (183) that needed enforcement of TPMs, the
Centre submitted 58 requests to the court, which means that every third victim
was provided with this type of protection. There are two reasons for this
discrepancy in the number of the established cases requiring recommendation of
TPMs and the submitted requests by the Centres to the courts. The first is the
necessary consent by the victim without which the Centres cannot submit a
request to the court, and the second, difficulties in the formulation and
documentation of the requests submitted to the court for ordering of measures,
which cause this discrepancy to a considerable degree.
Some
of the measures, despite being legally prescribed, cannot be partially or
completely implemented. An instance of a complete impossibility to enforce
a measure is the case of TPM Mandatory
attendance of appropriate counselling due to the inexistence of such
counselling.
Trafficking
in human beings[52][52]
AS we told it
before, there is a Transit Centre for victims of human trafficking. The
Transit Centre while accepting women victims of trafficking attempts to provide
social and psychological assistance. Rehabilitation and re-socialization,
however, require much longer periods than the time spent by the women at the
Centre.
Concrete
obstacles undermine the role of protection of this Centre. The findings of the
OSCE (Organization for Security and Cooperation in
12. Redress and compensation (Article
14)
There is no measure of recovering and reintegration
that are explicitly adjusted to women victims of torture or other
ill-treatment. This issue is treated in the context of the right for
compensation, both for women and men. Unfortunately, women victims of sexual
violence do neither benefit from special measures of compensation,
rehabilitation which are explicitly prescribed for them.
In practice,
women do initiate procedures for compensation under the general articles of the
Law on obligations and do not face particular obstacles.
Concerning the
access of women to medical and psychological rehabilitation, offered by
specialised professionals, we can say that in
There are five
shelters for victims of violence in
There is no special type of programs for protection of
victims of family violence among women coming from rural areas, despite
the fact that they know a particular reality. The women living in rural areas
face double discrimination-as women, and women coming from rural areas,
especially in the access to health care system, access to education,
participation in the political, economic and social life. Regarding domestic
violence, the traditional and patriarchal values which are the main reason for
occurrence and existence of the phenomenon, are much more expressed in the
rural areas. In addition, they are less exposed to the influence of campaigns,
education courses and other forms of making them aware of this phenomenon,
which makes the access to the direct services for victims of domestic violence
limited for them.
On the other
hand, separate programmes for social and health protection for women
prostitutes do not exist[54][54].
They are only recorded by the Centres for Social Work for the purpose of
acquiring certain material benefits granted to individuals with a status of
social deprivation. A significant portion of the prostitutes is classified in
this category and receive social benefits on those grounds.
Violence against children: implementation of the Convention against Torture towards children
According
to different non-governmental sources of information, the main matters of
concern related to the implementation of the CAT to children are 1) the
treatment of children in conflict with the penal law (articles 2, 11, 16 CAT),
2) child trafficking and exploitation (article 2, 16) and 3) violence of
children in various situations (family, community, schools, care institutions)
(article 1, 2, 4, 16). The implementation of articles 12, 13 and 14 in cases
where victims are children also remains largely incomplete.
In
her 2006 report, the Ombudsperson for the Rights of the Child denounces violence
against children within the family, at school, and labour exploitation. She
also indicates that in 2006 “the number of complaints regarding the children’s
rights increased, which is a sign that these rights are increasingly violated,
but also that the public consciousness about them is increased too. The
Ombudsman still cannot express satisfaction about the treatment of the children
as subjects with special rights, interests, and obligations. The non-acceptance
of this status is mostly noticeable at the parents and teachers, but also in
the public institutions responsible for the children’s rights.”[55][55]
In
addition, without giving a global view of the situation of violations of
children’s rights, the results of the work of the SOS line for children of the
Macedonian NGO First Children Embassy in the World – Megjashi in 2007 are at
least good indicators of the type of problems and sufferings of children.
Indeed, in 2007, the highest rate of the phone calls was related to family
relationships (which includes domestic violence), followed by abuse and
violence of children and then commercial exploitation (including prostitution,
paedophilia and beggary) [56][56]. It results
from the numerous phone calls that violence usually occurs in schools, in the
family and on the streets.
2.1
Legal framework - General legislation on child rights’
protection from violence
A- Definition of the child
In
In this regard, a child below 15 years old is not allowed to work
(article 42(1) of the Macedonian Constitution); boys and girls below 18
cannot marry (as an exception, they can from 16 providing that some
conditions are matched - decision by a court according to particular criteria)
(Family Act); from 14 year-old a child (girl or boy) may legally have sexual
intercourse; and from 14 years old a child can be held somehow responsible
under criminal grounds (this is a limited criminal responsibility, whereas
from 18 it is full).
B- Existing national legislation on
violence against children: protecting provisions and gaps
Article
11 of the 1993 Constitution protects all individuals, including children,
against “any form of torture, or inhuman or humiliating conduct or punishment”
(article 54(4) states that there is no exception to this principle).
As
far as children are particularly concerned, article 42 of the Constitution
provides a general protection of children by the Republic. The Constitution
gives further protection on particular issues: protection (care and education)
by the parents and by the State in case the child is parentless (article 40)
and protection at work (article 42(2) and (3)). In addition, the Law on the
Protection of Children (2000) and some provisions of the Family Law (2004)[57][57]
also protect children from different forms of violence, including torture and
other cruel, inhuman or degrading treatment or punishment.
The
Criminal Code of the
2.2
Institutional structure implementing child rights
related legislation
A- Centre for Social Work[58][58]
The
main body that acts on behalf of children in protective proceedings is the
Social Work Centre. The Social Work Centre has the authority and discretion to
petition and advise the Chamber for minors of the relevant court in all matters
related to child protective proceedings, among others. The law also stipulates
that the Social Work Centre may intervene in situations of alleged domestic
violence either on its own or by a request from a member of the family. The law
is unclear whether a child victim may directly complain to the Centre.
Despite
its important mission, the Centre for Social Work suffers from several
shortcomings. The centres face financial difficulties that limit their
fieldwork. There is no common national approach in working with children.
Obligatory training for staff is not organized on a regular and structured
basis. The Centre remains too general while addressing particular delicate
situations and does not adapt its work to the type of sufferings and to the
specific situation.
B- The Ombudsperson for children’s
rights
The
Ombudsperson for children’s rights belongs to the Department for the protection
of the rights of children of the National Office of the Ombudsman. The
Ombudsperson investigates violations of children’s rights and reports to the
Parliament annually. The Ombudsperson deals with cases either reported by
stakeholders (parents, teachers, witnesses, etc.) or initiated ex officio. S/he can take measures
against public authorities and sensitise the population. This is a useful
mechanism but it comes up against the deficiencies of law enforcement agencies.
3. Occurrence of torture or other CIDTP against children
A- Violence at school
Despite
the existing legislation aims at protecting children from violence at school,
pupils are victims of physical, mentally and sexually mistreatment[59][59].
Unfortunately, such violations are often not registered. Indeed, the victims
and the other pupils and students witnesses are reticent to report the acts of
violence and the teachers frequently refuse to report violations by their
colleagues. Furthermore, there is no measure taken for the full protection of
children and for adequately sanctioning the offenders. Indeed, the competent
bodies do not react quickly and appropriately and are not taking all the
measures to protect the children, especially in cases where a teacher should be
sanctioned for physical or mental mistreating of a child.[60][60] As
for OMCT, the
In early 2006, the child A.T.
suffered from physical violence by his sport’s teacher K.S. in the Elementary
school “Toli Zurdumis” in Kumanovo. The case was reported by a journalist to a
national NGO (First Children’s Embassy in the World – Megjashi) which informed
relevant authorities. Some recommendations had been addressed to the executive
of the school as well as to the Ministry for education and science and they
were asked to take the necessary measures in the shortest deadline possible,
for the responsibility of the teacher (i.e. raising an action against the
teacher and a punishment fitting the crime) and for protection of the other
pupils. As a result, the executive of the school fined the teacher with a 10%
fee of his 6 months’ income for his non pedagogical behaviour. However, the
behaviour was far from being only non pedagogical, since real physical violence
was committed against the child. The punishment of the teacher was inadequate
with the seriousness of the violation.
B- Violence in the family
Violence
suffered by children within the family is a very serious problem in
C- Discriminatory violence against Roma children
Ÿ Violence against Roma
children engaged in child labour
There are reports
according to which Roma children are particularly vulnerable to commercial
exploitation. The low socio-economic situation of Roma community in
Ÿ Violence against Roma children at school
Recently, the
UN Human Rights Committee has expressed its concern about the harassment
against Roma children in schools.[62][62]
Ÿ Early and arranged marriage
Even
though children who have not attained 18 years old cannot enter into marriage,
there are reports that hundreds of Roma children are married every year,
especially in
D- Violence against children by law enforcement officials
There
are allegations of excessive use of force during the arrest and during police
custody. In particular, the Council of Europe's Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) revealed in 2006
that children also suffer from
ill-treatment by law enforcement officials and reported allegations concerning
juveniles being denied the right of access to a lawyer (or to a guardian) while
being interrogated by the police; this puts a further risk that children be
ill-treated when interrogated by the police.
E- Violence against children
deprived of liberty
The
visit of the CPT in 2006 revealed the following problems:
-
allegations of ill-treatment in Skopje
prison, in particular the lack of adequate care provided to juveniles and
children (this includes cruel, inhuman or degrading punishment and disciplinary
measure –chaining for instance- to punish juveniles in Skopje Prison who had
attempted to commit suicide and acts of self-harm);
-
ill-treatment and harsh discipline, lack of
adequate care and appropriate measures, conditions of detention of children in
the educational-correctional institution -
-
children and young adults (until 23 years
old) are held together.
F- Child trafficking and
exploitation
The hopeless economic situation also exposes children
to trafficking and exploitation. Many street children (particularly in
4. Definition and criminalisation of torture (articles 1 and 4)
4.1. Definition of torture: interpretation of the
torture definition when the victim is a child (article 1)
Article 142 of
the CC does not provide for a particular child-oriented definition of torture
when the victim is a child, taking into account his/her specific vulnerability.
Similarly, it does not provide for more severe penalties when the victim is a
child.
The Macedonian
legislation provides for the criminalisation of certain acts and treatments
that may amount to torture or other cruel, inhuman or degrading treatment or
punishment, thus complementing the prohibition of torture by article 142 of the
CC. Some of those treatments particularly target the child as a victim.
A- Sexual violence
The risk to be particularly exposed to sexual violence
justifies the provisions providing for a special protection for children.
Article 188 of
the CC provides for the sexual attack (covering statutory rape or some other
sexual acts) upon a child and penalties from 6 months to 5 years of
imprisonment. The inability of the child victim to resist the attack, the
misuse of his/her position by the perpetrator and the cruelty of the manner and
the grave consequences on the victim are aggravating circumstances (article
188(2) (3) (4) CC) justifying more severe penalties.
Despite an interpretation by the doctrine that
includes in article 188 all persons having a certain authority or position and
abusing it to commit sexual violence against a child, consequently including
law enforcement agents, OMCT is concerned that the misuse of position does not
clearly and certainly include the possible abusing behaviour of law enforcement
agents like police officers and prison guards. The Criminal Code remains
lacking on this question. In practice, only teachers and other school employees
have been charged under article 188 CC.
B- Family violence
Article 93 of the 2004 Family Law states that abuse and negligence by a
parent against his/her own child is punishable by a court. In this framework,
the Family Law describes abuse and negligence as any physical or emotional
mistreatment, sexual abuse, forcing into inadequate labour, allowing the use of
alcohol and drugs, abandon for more than 3 months.
In addition, article 122(19) of the CC defines family violence as
follows: “Family violence shall mean abuse, rude insults, threatening of the
safety, inflicting physical injuries, sexual or other physical and
psychological violence which causes a feeling of insecurity, being threatened,
or fear towards a spouse, parents or children or other persons which live in a
marital or other community or joint household, as well as towards a former
spouse or persons which have a common child or are have close personal
relations”.
According to
article 130(2) of the CC, a person who injures bodily another, or damages his
health, while performing family violence (aggravating circumstance), shall be
sentenced to imprisonment from six months to three years, instead of up to one
year without family violence.
Chapter 20 of the CC is dedicated to “Crimes against marriage, family
and youth”. In this framework, article 201 of the CC forbids child neglect and
mistreatment by a care giver as follows: “(1) A parent, adoptive parent,
guardian or some other person who by crudely neglecting his duty of caring and
upbringing neglects a juvenile or mistreats him, shall be punished with
imprisonment of three months to three years. (2) The punishment from item 1
shall apply also to a parent, adoptive parent, guardian or some other person
who forces a juvenile to work which does not correspond to his age and physical
force, or from self-interest induces him to begging or to performing other
activities which are damaging to his development. (3) If because of the crimes
from items 1 and 2 a serious body injury or a severe damage to the health of
the juvenile was caused, or the juvenile started with begging, prostitution, or
other forms of asocial behaviour, the offender shall be punished with
imprisonment of three months to five years.”
C- Corporal punishment[66][66]
Corporal punishment is prohibited in schools. The Law on Elementary Education (1995,
amended 2006) and the Law on Secondary Education (1995, amended 2007) forbid
corporal punishment and harassment of pupils, and hold the school, rather than
the individual teacher, responsible for violation of the law. As stated in the
previous paragraph, the prosecution of individual teachers for ill-treatment of
pupils is possible under article 201 of the Criminal Code.
Corporal punishment as a sanction and as a disciplinary measure in penal institutions is prohibited under the
Law on Execution of the Sanctions. As underlined in the State party report
(§52), articles 184(1) and 185 of this Law make possible the opening of a
procedure against an official person who used or ordered unlawful means of
coercion.
The
article 9 of the Law on Protection of Children (2000) prohibits corporal
maltreatment, punishment and other inhuman treatment and abuse. However these
terms have not been defined and the law has not been interpreted as clearly
prohibiting parental corporal punishment. Article 130(2) and 201 CC could be
used by the courts to punish corporal punishment of a child at home. However,
case-law on this issue lacks. Therefore, as an answer to § 38 of the List of
Issues, OMCT is very much concerned about the fact that there is not a legal
provision neither case-law that clearly prohibit corporal punishment in all
settings, in particular as measure of education in the home.
5. Preventing torture and other CIDTP against children (Article 2 §1)
Preventing
torture and other CIDTP by respecting particular judicial safeguards of
children in the framework of a juvenile justice system
5.1.
Minimum age of criminal responsibility
As
previously mentioned in section 3.1 of the present report, a child who has
committed an offence when s/he was below 14 is not criminally punishable
(article 70 CC). According to article 438 of the Criminal procedure Code (CPC),
when a child under 14 commits an offence, the criminal system is not able to
act but the institution for guardianship will be the referring body.
From
14 to 16, the child who has committed an offence is named a junior juvenile and is only subject to
educational measures (article 72(1) CC) which are disciplinary measures,
measures of intensified supervision and institutional measures (article 74(1)
CC)[67][67]. Between 16 and 18, s/he called a senior juvenile and can be subjected to
behavioural measures under the conditions determined by the Criminal Code, and
as an exception can be sentenced to juvenile prison.
5.2.
Criminal procedure towards juveniles
Chapter
27 of the Criminal Procedure Code on Procedure against minors and chapter 6 of
the Criminal Code on Educational measures and punishment of juveniles provide
for some rules particularly applicable to person below 18 at the time the crime
was committed.
[68][68] There is not a piece of legislation dedicated to
juvenile justice as a special criminal system. Although some provisions protect
juveniles, shortcomings still exist.
Within
the ordinary criminal court system, there are Chambers for minors that have
jurisdiction over criminal cases involving children more than 14. Chambers for
minors may act as a first degree court and as a second degree court. When
acting as a first degree court, they are composed of one or more judges for
minors and when acting as a second degree court, they are composed of one judge
for minors (chair) and two lay judges (elected among persons who have an
experience in the education of minors). The second degree Chamber has
jurisdiction over appeals against decisions by the first degree court, by the
public prosecutor and by the judge for minors and over cases where a crime was
committed.
Following
are some legal safeguards aimed at protecting children in conflict with the
law:
-
legal assistance from the beginning of the investigation (article 440 CPC);
- a
juvenile cannot be judged in his/her absence (article 439(1) CPC);
-
summoning by the legal representative unless it is not possible due to urgency
(article 445 CPC);
-
at some moments during the procedure (to decide the initiation of the
procedure, to help clarify the facts and the circumstances of the facts), the
public prosecutor and the judge for minors may request reports or investigation
by relevant stakeholders in order to know the circumstances of the case,
including the context, the personality of the minor (articles 453 and 456 CPC);
-
the different phases of the procedure are timely bound;
-
right to challenge decisions;
-
sanctions alternative to detention (article 91-a CC, 2004 amendment).
Despite
those positive rules, the criminal procedure towards juveniles still lack care
for the status, the problems and the perspectives of young people. Certain
educational measures are not applied because there are no conditions to their
execution. It is hoped that the New Juvenile Justice Law will resolve those and
other shortcomings.[69][69]
5.3.
Punishing juvenile offenders: educating first
In compliance with
the spirit of relevant international standards[70][70], article 73 of the
Criminal Code states that “(1) The aim of the educational measures and of the
punishment and the alternative measures is to provide for the education,
correction and proper development of the juvenile offenders, by giving
protection and help to them, by performing supervision over them, by their
professional training and by developing their personal responsibility. (2) The
aim of juvenile imprisonment is to perform an intensified influence upon juvenile
offenders so that they would not commit crimes in the future, as well as upon
other juveniles not to commit crimes.” Moreover, chapter 6.4 of the Criminal
Code provides for the Application of the Alternatives Measures.
However, the
assessment of the effective implementation of those provisions by the law
enforcement professionals (in particular assessment with regard to the
principle according to which the detention of a child should be used as a
measure of last resort) is difficult because of a lack of data on juveniles in
conflict with the law and particularly those deprived of liberty.
6. Education and information on child rights’ safeguards (article 10)
As
rightly said in the State party report, police officers are trained with
respect to human rights (see § 153), but it is not specified whether any
special training focused on child’s rights is provided. At least, some NGOs
provide for child rights training of law enforcement agents on children’s
rights.
It is necessary to establish specialised departments
for juvenile criminality in all police departments, with police officials
assigned specifically with the juvenile delinquency.
7. Review of arrest and detention rules and facilities (Article 11)
A part of the mission of the Ombudsman Office is to
monitor the respect and protection of the constitutional and legal rights of
the persons arrested, detained, imprisoned, and those who are serving a prison
sentence, or a corrective and educational measure, in the prisons and
educational-correctional facilities.[71][71]
7.1 Arrest, investigation and trial phases, including pre- and
pending-trial detention
There is no special rule for the arrest of a child.
Contrary to international standards on juvenile justice, the same rules as for
adults apply.
During the
interrogation of a juvenile suspected of having infringed the penal law at the
Police Station as well as in front of the Juvenile Judge, the presence of a
parent, guardian or an adult family member is obligatory, and if the juvenile
has a physical impairment, the presence of suitable experts, such as a special
teacher, sign language interpreter (for the deaf-and-dumb), social worker and
psychologist.
However, the legal procedure is not always respected by law enforcement
officials. As an example, on
A
judge for minors may decide the temporary placement or supervision of the
juvenile before and during the trial.[72][72]
The judge for minors may also decide the detention of a juvenile in the cases
determined by law[73][73],
for no longer than 30 days and Chamber for Minors may, “for justified reasons”,
extend the detention to 60 days, but in no case may the detention exceed 90
days, i.e. three months all in all.[74][74]
When
a juvenile is sentenced to prison, the preliminary detention is counted as time
served. For other types of sanctions, detention is not calculated in the
corrective or educational measures.
In
practice there are cases where juveniles may be kept more than three months in
pre-trial detention.
7.2 Detention of children
Legal grounds for detaining a child and time
limits
As previously mentioned children may be
deprived of their liberty on criminal grounds.
Those who were between 16 and 18 –older
juvenile- at the time they committed the offence may be sentenced to
imprisonment as an exception (article 72(2) CC) from one to ten years (article
87 CC). Article 86 of the CC justifies this possibility to imprison a juvenile
by the “serious consequences from the crime and the high degree of criminal
responsibility”. In addition younger children (between 14 and 16 at the time
the offence was committed) may also be subject to measures depriving them
somehow of their liberty: educational measures indeed cover sending children to
an educational institution (from 6 months to 3 years) or to a house of
education and correction (from 1 year to 5 years)[75][75] which can be semi-open or closed institutions.
Life imprisonment against juveniles is
prohibited under article 35(4) CC.
Places of detention and separation
from adult detainees
A juvenile may be deprived of his/her liberty in an educational
institution or in a house of education and correction. The law is unclear
whether a juvenile may be detained in a prison as such when serving juvenile
imprisonment as provided for in articles 86 and 87 of the CC.
For
example, the correctional institution Tetovo is an institution that enforces
educational measures towards male juvenile offenders aged from 14 to 23
year-old. The prisons of Ohrid and Idrizovo receive juveniles sentenced to
juvenile imprisonment.
Separation in detention with adults in not set up as a key principle in
the Macedonian legislation. This is a real gap for a full protection of
children in conflict with the law. Only article 460(1) of the Criminal Code
provides for the separation from adults in pre-trial detention. However, article
460(2) establishes an exception: “if the detention of the minor is determined
for a longer period, and there is a possibility the minor to be in a cell with
an adult who would not inflict any harm on the minor”. As for OMCT, this
exception is too large and does not conform to the international agreed rule
according to which a child should not be detained with adults “unless it is
considered in the child’s best interest not to do so”.[76][76]
In practice,
there are reports that the Central Prison in
For practical
reasons, because very few girls are detained, there is no specific detention
facility for them.[77][77] In
practice, all female juveniles serve educational custodial measures in
“Idrizovo” penitentiary. There are detained in the same ward as adult women
detainees but kept in different cells.
8. Right to remedy (Article 13)
Even though under article 101 of the Family Law, the
Social Work Centre has the right to intervene “when [it] has information that
there is violence against children in a family” to provide “legal support”,
“notify the authorities” and “aid in prosecution”, the Law does not set up a
general obligation for professionals to report cases of violations against
children. This article also stipulates that Social Work Centre may intervene in
situations of alleged domestic violence either “on its own or by a request from
a member of the family”. It is not clear whether this also includes child
victims’ request to intervene.
The
legislation does not provide for comparable institution acting on behalf of
child victims when the violence occurs at school. This is more regrettable
because such violations are often difficult to be registered since teachers
often refuse to report violations caused by colleagues.[78][78] In
this context, according to reports, the government remains inactive when faced
with such a violence happened in school, demonstrating a grave lack of due diligence.
Specific
measures should be taken to allow children to report their experience of abuse
and facilitate the right to seek legal protection through procedures for
complaints accessible for child victims. In this regard, in the 2006 report the
Ombudsman suggested legal possibilities for children to may lodge a complaint
autonomously, as any other person who has information about violated rights of
the child.
Except
the requirement to interrogate the child in a careful manner without
re-traumatising him/her, legally speaking, the child victim of violence
undergoes the same interrogation procedure as the juvenile offender in terms of
the persons that should be present, the judge responsible (the testimony is
given before the judge for minors), etc.[79][79]
Violence against women: implementation of the Convention against Torture towards women:
General situation of
women:
- A
specific and comprehensive anti-discrimination law must be adopted in order to define
and prohibit discrimination, especially gender discrimination, in all contexts;
Precise and adequate procedures and mechanisms must be included to ensure an
effective protection in gender based discrimination cases;
- The
State should undertake activities via the introduction of educational and pedagogical measures, as well as through the
adjustment of the teaching methods to help in the overcoming of the dominant
traditional divisions of roles in the family, as well as the overcoming of the
bias and stereotypes that have strong influence on the factual situation of men
and women;
- The national
machinery for advancement of women doesn’t have enough visibility and power
to bring decisions nor enough financial and human resources; it should include
in its work relevant actors such as NGOs;
Violence against women:
-
The state should undertake activities to determine parameters that will enable
collecting the relevant data on all forms of violence against women;
these data must be collected in order to put in place statistics and initiate
problem analyses;
Articles
1 and 4:
-
Forms of violence against women that amount to torture or cruel, inhuman and
degrading treatment or punishment should explicitly be considered as such in
the criminal legislation;
-
The state should clarify the definition
of rape set forth in the law in order to explicitly state what kind of
sexual violence are prohibited;
-
Marital rape must also be explicitly criminalized and not simply deduced
from the notion of rape;
Article
3:
-
The national legislation should include a gender based approach in asylum
legislation and procedure in order to take into account situation of violence
specific to women, including trafficking, while granting the asylum protection;
Article 10:
-
It must include the issues related to violence against women in the training
of the professionals dealing with women victims, training that remains for the
moment quiet insufficient and launch raising-awareness campaigns towards
the population and firstly towards women over their rights; Again, the State
must make effort to cover not only domestic violence and trafficking but all
forms of violence;
Article 11:
-
The State must investigate and address the allegations of ill-treatment within
the prisons which consists in asking favor including sexual favor to
women detainees in order they reach certain needs; It must ensure the
separation between men and women in any case, especially in the context of
pre-trial and short term detention; it must ensure an access to medical care
and medicines in accordance with the basic needs of women including pregnant
women;
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[1][1] Electoral
code (Official Gazette no. 20/06).
[2][2] Article 9 of the Constitution of
the
[3][3] Law on Labour Relations, Law on Obligation, Family law, Law on
inheritance, Law on Associations of Citizens and Foundations, Law on Health
Protection, Law on Ownership and other Material Rights.
[4][4] UN Doc. CERD/C/MKD/CO/7,
[5][5] Constitution of the R.of
Macedonia, Part 1 Civil and political freedoms and rights, article 29: “(1)
Foreigners enjoy freedoms and rights guaranteed by the Constitution in the
[6][6]Constitution of the R.of
Macedonia, Part 2 Economic, Social, and Cultural Rights, article 31:
“Foreigners in the
[7][7] Law on labor
relations[7][7] (articles 6 and 7); Law on Higher
Education [7][7]
(article 7); Law on Secondary education[7][7]
(article 3); Law for amendments and addendum on the Law for social protection[7][7]
(article 7-v); Law on Equal Opportunities[7][7]
(article 3).
[8][8] The Law on Labor Relations, Law on Social protection, Law on Secondary
Education.
[9][9] From 3 months to 5 years; in case such an act is committed by officials
in the course of their service, they shall be punished by imprisonment from 6
months to 5 years. Following the amendments to the Criminal Code in 2004, legal
entities are also subject to fines for such acts.
[11][11] In the
existing family legislation, there
is no provision to ban the entering into false marriages or marriages entered
into for the purpose of achieving economic security, and there is no measure
imposed by law, such as one that will aim at the eradication of agreed
marriages among the Roma and Albanian population.
[12][12] “Live in Shadow”,
2007, Association for emancipation, solidarity and equality of women in the RM-
ESE.
[13][13] The comparison
of the basic findings with those of the research conducted in 2000 is not
appropriate, since there are differences in the sample used for the last
survey. However, the comparison of the results can be used as an indicator and
not as precise information of the movement or other characteristics of the
occurrence of domestic violence.
[14][14] “Life in a Shadow”, 2007, Association
for emancipation, solidarity and equality of women in the RM- ESE.
[15][15] Shadow report
on the implementation of the Convention CEDAW, 2005, Association for
emancipation, solidarity and equality of women in the RM- ESE.
[16][16] While there is a tendency to replace the term prostitutes by the term
commercial sexual workers, the former terms is still exclusively used in the
country. The term "prostitutes" was used during the research due to
its common usage.
[17][17] Shadow report on the implementation of the Convention CEDAW, 2005,
Association for emancipation, solidarity and equality of women in the RM-
ESE.
[18][18] Ministry of Interior,
Information No. 152-54038/1 dated
[19][19] For the
purpose of this report, the authors have drawn on a recent master’s degree
thesis by Viktoria Gavritova entitled “Sexual Harassment at Work”,
[20][20] 3 months to 3 years.
[21][21] Criminal
Code of the
[22][22] Family Law, Article 99, Official
Gazette No. 38/04
[23][23] Official Gazette No.62,
July 28, 2005
[24][24] Ibid.
[25][25]“Life in a Shadow”, 2007, Association for
emancipation, solidarity and equality of women in the RM- ESE
[26][26] “A person who takes the life of another without premeditation, brought
into a state of strong irritation without
his own fault, by an attack or with heavy insult or as a result of
domestic violence committed by the murdered person, shall be punished with
imprisonment of one to five years” (Article 125).
[27][27] The
basic offense grave bodily injury is sanctioned by six months to five years
imprisonment, while if the person who commits this offense as a consequence of
domestic violence the offense is sanctioned by a fine or an imprisonment of up
to three years.
[28][28] Monetary fine ranging in amount of 600 to 800 EUR.
[29][29] 6 months to 5 years.
[30][30] Extracted
from
[31][31] The
Citizens’ Association
[32][32] Holders
of this process in the country are the Ministry of Labor and Social Policy and
the Association for emancipation, solidarity and equality of women – ESE,
supported by the Institute for Sustainable Communities through USAID funds.
[33][33] Extracted
from
[34][34] This
information and prevention SOS line operates 12 hours a day and employs
trained operators, social workers, pedagogues, psychologists and lawyers who
can speak several languages.
[35][35] Extracted
from
[36][36] Additionally,
in the section on legislative subject, part 3: ”International - legal
protection of the human rights within the system of the Council of Europe”-
subject : Rights and freedom guaranteed with the European convention of human
rights, is foreseen to be elaborate with 7 hours in total, including article 3 – Torture.
[37][37] Report of the
Council of Europe assessment visit to prisons in the
[38][38] Ibid, p.41.
[39][39] Ibid, p.41.
[40][40] Ibid, p.17.
[41][41] Official
Gazette no. 2/06.
[42][42] Report of the Council of Europe assessment visit to prisons in the
[43][43] The criminal
acts incorporated in the Criminal Code of Macedonia are initiated ex officio.
In the cases where there is an exception from this rule, an additional
paragraph is added under the given article which stipulates if the criminal
procedure for that criminal act is initiated under proposal or private suite.
[44][44] “Life in a Shadow”,
2007, Association for emancipation, solidarity and equality of women in the RM-
ESE.
[45][45] The complaint is the
mere fact of reporting certain acts to the police. The misdemeanors are treated
in the Law on misdemeanors, prescribing sanctions as fines. The criminal
offences are regulated in the Criminal Code and the prison sentences are
characteristic for them.
[46][46] “Unification of civil
justice system” , 2006-2008, Report of the
Association ESE and Akcija Zdruzenska on the operation of the Centers
for social welfare
[47][47] For the purposes of
the project Unification of criminal and civil justice system, questionnaires
were sending to the Centers for social welfare regarding their proceeding and
methods of work when dealing with domestic violence cases. It was stated by the
professionals that they are using this methods when dealing with cases of
domestic violence. However we don’t have concrete example to illustrate it.
[48][48] Akcija Zdruzhenska and the Association for
Emancipation, Solidarity and Equality of Women of the
[49][49] Section for the Socially Excluded Persons, Department for Social Welfare.
[50][50] The request to
the court for ordering TPMs is submitted by the Centre upon prior proposal or
by its own initiative. Such proposal may be submitted to the Centre by the
spouse, parents, children or other persons that live in a marital or extra-marital
union or a common household, a former spouse or persons that are in close
personal relations and against whom domestic violence has been inflicted. The
TPMs may be ordered for a period of up to a year.
[51][51]“Life in a Shadow”, 2007, Association for
emancipation, solidarity and equality of women in the RM- ESE
[52][52] Shadow report
on the implementation of the Convention CEDAW, 2005, Association for
emancipation, solidarity and equality of women in the RM- ESE.
[53][53] UNICEF,
UNHCR, and OSCE/ODIHR (with the administrative support of UNDP for
[54][54] Shadow report
on the implementation of the Convention CEDAW, 2005, Association for
emancipation, solidarity and equality of women in the RM- ESE.
[55][55] Information on the work of the
Department for Protection of the Rights of Children within the National Office
of the Ombudsman, 2006. Available at www.crin.org/docs/god.izvest.%20ENOK.pdf
[56][56] Report of the work of the SOS
line for children and youth at FCEW-Megjashi from 01.01.2007 to 31.12.2007.
[57][57] Family Law of the
[58][58] See Family Law of the
[59][59] Information on
the work of the Department for Protection of the Rights of Children within the
National Office of the Ombudsman, 2006. Available at www.crin.org/docs/god.izvest.%20ENOK.pdf
[60][60] Information on
the work of the Department for Protection of the Rights of Children in 2006,
Ibid., § 3
[61][61] There is no
exact measurement of this phenomenon.
[62][62] Human Rights
Committee, Concluding Observations: FYR of
[63][63] Natasha Dokovska
[64][64] Please see: http://www.thewip.net/contributors/2007/06/child_marriage_persists_in_mac_1.html
[65][65] Human Rights
Committee, Concluding Observations: FYR of
[66][66] Information
mainly taken from www.endcorporalpunishment.org/pages/frame.html
[67][67] On educational
measures, see also articles 74 to 85 of the Criminal Code.
[68][68] Even under 21
at the time of the trial is held.
[69][69] Prof. Dr.
Vlado Kambovski, Comparative Analysis of Juvenile Justice Legislation, 2002.
Available on www.oijj.org .
[70][70] UN Convention
on the Rights of the Child (particularly articles 37 and 40), Beijing Rules and
Riyadh Guidelines.
[71][71] Article 31 Law on Ombudsman. See also § 54 of the
State party report.
[72][72] No clear time limit. Articles 458 and 468 of the Criminal Procedure
Code.
[73][73] Article 184(1) of the Criminal Procedure Code:
If there is a grounded suspicion that a person has
committed crime, a pre- trial detention for the person may be determined: 1) if
he hides, if his identity cannot be detected or if there are other
circumstances emphasising danger of escape; 2) if there is justified fear that
he will destroy the traces of the crime or if certain circumstances point out
that he will inflict the investigation influencing the witnesses collaborators
or conceivers; 3) if certain circumstances justify the fear that he will commit
crime again, or he will complete the attempted crime or will commit crime with
which he threatens.
[74][74] Article 459 of the Criminal Procedure Code, in conformity with article
12 of the Constitution.
[75][75] Articles 72(1), 7, 82 and 83 of
the CC.
[76][76] Article37(c) of the Convention on the Rights of the Child.
[77][77] See UNICEF,
“Survey On The Status Of Children And Youth In The System Of Juvenile Justice”,
p.24-25
[78][78] See
Information on the work of the Department for Protection of the Rights of
Children in 2006, §3.
[79][79] Vasilka
Bozinovska, Legal Interventions in cases of criminal over children and child
abuse, 2008,