Domestic violence is a challenging issue worldwide. It is even more relevant during the Covid-19 pandemic. Victims suffer from physical, sexual and psychological violence occurring in the family, including battering, sexual abuse, dowry-related violence, marital rape and other violence related to exploitation. Acts of domestic violence cause physical, mental, and economical costs to the whole society. Efficient legal measures, which fully address domestic violence in all its forms, are crucial in this process. Such measures contribute to the prevention of domestic violence by protecting and empowering the victims and prosecuting the perpetrators. That is why international organizations promote criminalization of domestic violence. Many European countries have followed this path.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was a major step forward in this area. In 2017, the CEDAW Committee recommended that States parties should “ensure that all forms of gender-based violence against women in all spheres, which amount to a violation of their physical, sexual or psychological integrity, are criminalized and introduce, without delay, or strengthen, legal sanctions commensurate with the gravity of the offence, as well as civil remedies”.

Convention on Preventing and Combating Violence against Women and Domestic Violence (The Istanbul Convention) also requires to criminalise specific types of domestic violence: psychological violence, stalking, physical violence, sexual violence, forced marriage, forced abortion, forced sterilisation and sexual harassment.

In the EU, the most important legal instrument providing support to victims of domestic violence is the Victims’ Rights Directive 2012/29/EU. In this directive it is recognised that violence in close relationships may result in physical, sexual, emotional or psychological harm, or economic loss. It also addresses sexual violence (including rape, sexual assault and harassment) and different forms of harmful practices, such as forced marriages and ‘honour crimes’. These acts could cause severe consequences because the offender is a person whom the victim should be able to trust. Victims of violence in close relationships may therefore be in need of special protection measures. Victims received protection under this directive regardless of whether an offender is identified, apprehended, prosecuted or convicted.

Regarding the forms of criminalisation, there are two main approaches to introducing domestic violence in criminal law:

1. Dedicated offence on domestic violence in the Criminal Code;
2. Listing “domestic violence” as an aggravating circumstance.

In Sakartvelo, a separate article defines the crime of domestic violence. This provision recognizes physical, physiological, economic, and sexual violence or coercion as forms of domestic violence and defines this crime as the “systematic abuse, blackmail, or humiliation of one family member by another if such acts cause physical pain or suffering.” The Code contains a list of people who can be held responsible for the commitment of this crime. They include a spouse, mother, father, grandmother, grandfather, child, adopted child, stepchild, stepparent, stepparent’s spouse, member of a foster family, guardian, grandchild, sister, brother, parent-in-law, son-in-law, daughter-in-law, an ex-spouse, or any other person who lives in the household.

Sentencing guidelines included in the Criminal Code of Sakartvelo provide for punishment of this crime by community work for a period of between 80 and 200 hours. If an act of domestic violence was committed against a pregnant woman, a minor, or a disabled person, or in the presence of a minor who witnessed the act of violence against his/her family member, or against two or more people, it is to punishable upon conviction by deprivation of freedom for up to one year.

In most of the EU member states domestic violence is criminalized as a separate offence or serves as an aggravating factor to other offences.

Domestic violence is criminalized as a separate offence in Hungary which has an offense “relationship-related violence,” under which a restraining order may be issued. In Slovakia, a wide range of physical acts, as well as the denial of basic necessities, may result in a prison sentence. In Slovenia, the Criminal Code addresses “Family Violence” and includes threats, limitations on freedom of movement, stalking, or actions by the perpetrator that “in any other way puts them into a subordinate position by aggressively limiting their equal rights.” Italian Criminal Code punishes mistreating a family member, a cohabiting person, or a person subjected to the perpetrator’s authority (“Maltreatment of family members or cohabitants”). In Sweden, the offence covers criminal acts (e.g. assault, unlawful threat or coercion, sexual abuse) by a man against a woman with whom he is/has been married or with whom he cohabits/has cohabited.

Domestic violence can serve as an aggravating circumstance for crimes such as causing serious damage to health, participation in a fight, threat, physical abuse, and torture in Austria, Estonia, Latvia, France, Luxemburg, the Netherlands etc. In Romania, the Criminal Code punishes domestic violence by increasing the penalty for murder, battery and other violent acts by 25 percent.

In most of the discussed EU legal systems, domestic violence is prosecuted despite a complaint by a victim (Hungary, Romania, Slovakia Austria, Italy, Portugal and Spain) is made or not. In some states (Estonia, Poland) the authorities are required to continue criminal proceedings despite the victim’s withdrawal of a complaint. While in other states prosecution authority decides whether to proceed when the victim withdraws her complaint and takes into account the public interest in continuing criminal proceedings (France, Germany, Luxembourg, the Netherlands and Sweden, Bulgaria, the Czech Republic, Hungary, Latvia, Slovakia).

Criminal measures varies from imprisonment, issuing restraining order, prohibition to communicate, prohibition to return to the scene of crime or the victim's residence, withdrawal of weapons or other dangerous objects as well as an obligation to complete interventional programs for domestic violence offenders.

Therefore, it is important to establish comprehensive legal framework to provide safety and support to victims of domestic violence. Criminalisation of domestic violence has proven to be successful in many countries and is recommended by international community.

 

This publication has been produced with the financial assistance of the European Union. The contents of this publication are the sole responsibility of EU Twinning project “Strengthening the Capacity of State Bodies and Local Level Referral Mechanisms to Provide Safety and Support to Victims of Domestic Violence in Azerbaijan“ and can in no way be taken to reflect the views of the European Union.