Victim Safety and Offender Accountability: How do we achieve it through legal reform? By Mirjana Dokmanovic, Serbia Regional Conference on Domestic Violence Legal Reform Sofia, February 12, 2008

Guidelines for transforming int. commitments into legislation States have obligations to respect, fulfill and protect women’s HR In the field of DV, this means that a state has responsibilities not only to prohibit the violation of HR of women, but also to take ACTIVE MEASURES for PREVENTION and PROTECTION. A state is obligated to ensure that domestic violence does not occur, and if it does occur, it is obligated to ensure that victims are protected. Obligations: of conduct and to achieve concrete results States have to implement international law: - in good faith - without delay - with due diligence (no excuse to suspend activities) - and with consideration of changing social conditions. All appropriate measures: 1) positive duties (to take action) 2) negative duties (to refrain from action)

CoE Campaign 2007 to Combat VAW Aims: - to raise awareness - to urge States to demonstrate political will by providing adequate resources to deliver concrete results in ending VAW - to promote implementation of effective measures through legislation and NAPs for implementation of Rec(2002)5 Member states are urged to make significant progress in: - legal and policy measures - support for and protection of victims - data collection - awareness raising

Int. norms/directions for providing victim’s safety and offender’s accountability Adopt specific legislation about DV including penal sanctions and civil remedies To enact or amend domestic legislation, including measures to enhance the protection of victims, to investigate, prosecute, punish and redress the wrongs done to women subjected to any form of violence, whether in the home, the workplace, the community or society, in custody or in situations of armed conflict, to ensure that such legislation conforms with relevant international human rights instruments, and to take action to investigate and punish persons who perpetrate acts of violence against women (Res. 2003/45, art. 14, sub g.) To take measures to ensure that the victim's interests are not prejudiced by interference between civil, administrative and criminal measures, it being understood that criminal measures should be taken only as a last resort. (rec. R(85)4, par. 11, rec.(2002)5)

Int. norms/directions for providing victim’s safety and offender’s accountability Make domestic violence a criminal offence (cedaw, dvaw, res.2003/45, rec.1450 (2000), rec.1450 (2000), rec.(2002)5, Resolution 1997, rec.1681(2004)). Revise and/or increase the penalties, where necessary, for deliberate assault and battery committed within the family ( rec.(2002)5). Penalise incest (cedaw, rec.(2002)5). Penalise marital rape (cedaw, rec.1450 (2000), rec.(2002)5). Access to justice Victims of violence must be encouraged to use legal remedies (cedaw) Inform women of their right to access to the mechanisms of justice (dvaw, res.2003/45)

Victim’s safety Before, During and After legal proceedings Take immediate and effective measures to guarantee the physical and mental integrity of a victim and her family (shelters, counselling, legal aid, rehabilitation programmes etc.) Provide access to specialized services, including medical assistance Establishment of telephone help line (cedaw, rec. (90) 2, rec.(2002)5, resolution 1997) Establishment shelters for battered women (cedaw, rec.1582 (2002), rec.1450 (2000), rec. (90) 2, resolution 1997, Recommendations of the Expert Forums) When one of the partners should leave the house, the perpetrator should be the one to be forced to leave the house, not the woman (cedaw, rec. (90) 2, Recommendations of the Expert Forums)

Victim’s safety Before, During and After legal proceedings Legal protection and aid during legal (court) proceedings Envisage the institution of special conditions for hearing victims or witnesses of violence in violence in order to avoid the repetition of testimony and to lessen the traumatising effects of proceedings (rec.(2002)5) Provision of (free) legal aid to the victims (cedaw, rec.1582 (2002), rec.(2002)5, Recommendations of the Expert Forums) Ensure that at all stages in the proceedings, the victims may receive medical and psychological care (rec.(2002)5) Encourage the recruitment of female police officers (rec.1450 (2000))

Victim’s safety Before, During and After legal proceedings Provide restraining orders against offenders Ensure that the court may impose any additional conditions (e.g. state of mind, inclination to violence, dependence on alcohol and drugs) it deems reasonably necessary to provide safety of the victim, including an order to seize any firearm in possession or under the control of the offender Stricter conditions for obtaining firearms licence (obligatory competency test, background checks, family members notified of the intention to acquire a licence; licence refused if this is demanded by a family member victim of dv) Ensure that reports on DV automatically trigger a review of a firearm licence Include emergency protection measures, including forbidding stalking or harassment of the victim, exclusion of the perpetrator from the family home and the confiscation of weapons

Victim’s safety Before, During and After legal proceedings Ensure systematic inter-agency cooperation, special police units and trained professionals Develop intervention strategies and protocols at local level

Legal reform Holistic approach Comprehensive and coherent legal reform 1. Specific Law on DV 2. Criminal Code 3. Family Law 4. Law on Public Order 5. Law on Criminal Procedure 6. Law on Arms, etc. Interaction of legal norms (laws / provisions support each other) (Good example of the interaction between criminal and civil norms: in Serbia, for the violation of protective measures ordered by a court, the perpetuator may be sentenced to a fine or imprisonment for up to six months (Penal Code supports the protective measures provided by the Family Law). (Bad example: Croatia: The severity of the sanction depends on the prosecutor’s qualification - as a criminal act qualified as dv (with a lower sanction) or as a criminal act with a qualified form of murder (with a much higher sanction).

Legal reform Supportive policies / policy documents: 1. NAP for Advancement of Women 2. NAP against VAW / DV 3. NAP against Violence 4. Education and training 5. Media, etc.

Conclusions  It is not enough to enact laws that prohibit and sanction acts of dv  It is important to set up a judicial system that gives women the opportunity for safe and prompt access to justice  Governments should: - ensure that victims of dv receive the maximum protection - investigate promptly, thoroughly, impartially and seriously all allegations of dv and bring the offenders to justice. - provide specific budget lines for foreseen activities / legal measures  Women must to be informed of their right of access to the mechanisms of justice.  The protection system – based on preventive measures, pronounced during a civil procedure, while criminal sanctions have to be implemented when preventive measures are not sufficient or effective.  Legal reforms produce poor changes in providing safe access to justice and protecting the victims without raising gender awareness and education of all state officials