B Explanatory
memorandum by Ms Myller, rapporteur
1 Introduction:
the protection needs of victims of violence
1. Domestic violence is a persistent problem affecting
the lives of millions of people, especially women, with sometimes
fatal consequences.
2. Even if this is a serious and widespread scourge, an inadequate
legal framework and a lack of understanding of the phenomenon affect
Council of Europe member states’ responsiveness to the manifold protection
needs of the victims.
3. Before the violence has actually taken place or before it
has reached a certain level of severity, victims need to find authorities
which are willing and legally able to accept a complaint, start
investigations and take precautionary measures to ensure their physical
safety and the safety of their children.
4. In the immediate aftermath of violence, victims need to have
their physical safety and security ensured, for example through
the eviction of the perpetrator from the common residence or the
provision of secure premises for themselves. They also need immediate
access to health care, including a gender- sensitive and appropriate
medical examination and treatment by properly qualified personnel
who have also been trained in matters regarding violence against
women. Finally, they need to have access to affordable legal advice
from appropriately trained personnel on legal options, including
taking of statements, preservation of evidence and seeking protection
orders.
5. Long-term protection needs depend on the particular situation
of the victim and the context of the violence. They may include:
guaranteed continued access to secure shelter for the victims and
their dependants; ongoing and confidential treatment for medical
and psychological harm looking to long-term healing and rehabilitation;
and provision for excused absence from employment or assistance
in finding another job if it is not safe to return to the previous
one.
2 Scope
of the report
6. The present report will look at the particular issue
of the legal measures which should be made available at the preventive
stage, that is to say when violence has not yet taken place or is
below a certain level of severity, and in the immediate aftermath
of violence. In particular, I would like to analyse the different
protection orders that have been set up in a number of member states,
assess why they sometimes fail and try to develop new and better
measures of protection.
7. It should be clear from the outset, however, that specific
orders to protect the victims are only one form of protection; they
are not very effective without provision of shelters, the availability
of non-violence programmes, fair and efficient criminal proceedings,
suitable sanctions and effective enforcement.
3 Who are the victims?
8. Prevalence rates for Europe do not exist, but an
overview of national surveys suggests that from one fifth to one
quarter of all women have experienced physical violence at least
once during their adult lives and more than one tenth have suffered
sexual violence involving the use of force. Figures for all forms
of violence, including stalking, are as high as 45%. The majority
of such violent acts are carried out by men in the women's immediate
social environment, most often by partners or ex-partners.
Note
9. Domestic violence against children is widespread and studies
have revealed the link between domestic violence against women and
physical abuse of children, as well as the trauma that witnessing
violence in the home causes to children.
10. For other forms of domestic violence, such as elder abuse
and domestic violence against men, reliable data is relatively scarce.
11. Separation and divorce are the most common situations in which
tensions within a couple can degenerate into violence and create
a need for protection measures. However, protection is in many cases needed
during the marriage or cohabitation as well as after separation
or divorce.
12. Harassment, stalking and threats are by no means limited to
intimate relationships. This is illustrated in the case law of the
European Court of Human Rights in the case of Osman
v. the United Kingdom (1998), concerning a threat by
a teacher against a secondary school student, which caused the death
of a parent.
13. Persons in certain professions are often the object of harassment
and stalking. Sometimes stalking is not explicitly threatening or
even hostile. For example, performing artists and politicians are
sometimes harassed by insistent fans. Such stalking may become extremely
disturbing and violate the privacy of the victim. It may also suddenly
change into threatening mode when the victim does not fulfil the
expectations of the stalker. Another example of persons who are
often threatened are gays, lesbians and transgender people.
4 Terminology
14. As the national laws vary, so does terminology:
- The European Union uses the
term “protection order” to cover all civil, criminal and administrative
orders that are issued by national authorities, including courts,
to protect victims of violence.
- Civil court orders prohibiting the violent or harassing
person from approaching the victim are called “civil injunctions”.
- Orders that are connected to criminal procedure or specifically
designed to protect victims of violence are usually called “restraining
orders”.
- When the perpetrator is removed from a home shared with
the victim, the term used is usually “eviction order” or “barring
order”.
5 Types of protection
15. Most countries have introduced legal measures which
can be resorted to in the context of cases of violence. Important
differences exist as regards:
- the
legal nature of the measure (civil law, criminal law, or mixed);
- its aim (to protect the victim or to ensure the physical
presence of the defendant at a trial);
- its duration (urgent, short term or medium term);
- the authorities who can issue it;
- who can initiate it (the victim, the authorities or other);
- what sanctions can be taken for breaches of the measure.
16. This picture is further complicated by the fact that in most
member states different kinds of measures co-exist.
5.1 Civil injunctions
17. Civil injunctions are legal instruments that exist
in almost all countries. They were initially conceived to prevent
destruction of property and they continue to be applicable in this
area: one of the fields where injunctions are widely used today
is to prevent or prohibit the unlawful use of intellectual property
rights.
18. A number of countries have adapted civil injunctions to suit
cases of violence and harassment. A feature of these orders is that
they are issued by a civil law court in a simple and quick civil
procedure, and ask the perpetrator to take a certain action (for
instance, to stop intimidating behaviour).
19. In general, the victim files for the protection without the
assistance of police and prosecutors. The applicant has to satisfy
the required level of proof, which is normally “reasonable grounds”.
20. The injunction is usually registered in the police records.
Breaches of the injunction may lead to civil sanctions – normally
of a pecuniary nature – or criminal sanctions.
21. The fact that, historically, injunctions originate from the
protection of property law presents strengths and weaknesses in
the context of their application to cases of violence. Their main
strengths are that:
- they can
be combined with a barring/eviction/temporary restraining order
issued ex parte;
- they can be obtained quickly;
- the burden of proof is relatively easy to meet (reasonable
grounds);
- as they are filed at the initiative of the applicant they
do not burden the officials;
- thanks to the simplified procedure the costs are reasonable;
- the procedure is very simple: the victim of violence or
harassment can apply for the injunction, appear unaccompanied in
court, present the case and call a witness.
22. The main weaknesses of civil injunctions are that:
- they are not necessarily accompanied
by any police protection;
- the sanctions for the breach of the order may be inefficient,
especially when they are pecuniary;
- the law sometimes requires that a lawsuit on the main
issue (ownership, divorce, etc.) is filed within a given time, which
may be difficult for the victim to do.
23. One of the main weaknesses of civil injunctions is that they
require the victim to play a proactive role in initiating the procedure
and throughout its course. In the overwhelming majority of cases,
this is impossible, as any victim of physical violence is, first
and foremost, a victim of psychological violence, having lost confidence in
herself and believing that she is the cause of the aggressor’s behaviour.
It is not infrequent, therefore, for victims who file for civil
injunctions to withdraw the request immediately afterwards.
24. As there is no automatic intervention on the part of the authorities
to distance the perpetrator from the victim who has filed for protection,
victims are not protected against the risk of retaliation.
5.2 Protection orders
in the context of a criminal procedure (restraining orders)
25. The bulk of research from the past twenty years shows
that domestic violence is often serious, repeated and becomes more
dangerous with time if no intervention takes place. Similarly, stalking
and sexual violence are often protracted over time, and the signs
of threatening behaviour should be addressed before the victim is
put at greater risk. In such situations, civil injunctions are not
sufficient: it is clear that people who are at risk of serious violence
need the protection of the criminal justice system.
26. The laws on criminal procedure traditionally offer instruments
that restrain the freedom of the suspect. In cases of serious violent
crime, the suspect can be arrested and detained. Instead of arrest,
a restraining order is a less intrusive measure.
27. Restraining orders in the context of a criminal procedure
restrict the suspect’s freedom of movement before the trial. In
fact, they have been designed to ensure the presence of the suspect
at the trial, and not to protect the victim. A typical problem is
that suspects are supposed to be within reach of the police, normally
at their home. This, of course, is unsuitable to protect victims
of domestic violence as it obliges the suspect to live in the same
place as the victim.
28. In other respects, however, coercive measures in a criminal
procedure can offer effective protection to victims. For example,
the breach of a criminal protection order usually leads to the arrest
of the suspect.
29. The most important advantage of restraining orders when applied
to cases of domestic violence is that they do not require the victim’s
proactive role throughout the procedure because the police can initiate
the order on their own initiative. In addition,
- the police may also envisage
additional protection measures;
- the sanctions are effective (the perpetrator can be arrested
if in breach of the order);
- the legal safeguards are at the level of the criminal
procedure.
30. However, the weaknesses are also obvious:
- If nobody reports the crime
– victim nor witness – in the first place, the order cannot be imposed.
- Unfortunately, the police do not always register a complaint:
for instance when they consider that the facts raised by the victim
do not reach such a level of gravity as to engage a criminal procedure.
- As is the case for civil injunctions, also in the context
of the criminal procedure in many member states there is the possibility
for the victim to withdraw the complaint. In this respect, the French
legislation is to be considered as a model of good practice, as
it establishes that the procedure will be pursued ex officio, even if the victim withdraws
the complaint.
5.3 Eviction orders/barring
orders/temporary restraining orders
31. The majority of member states have introduced specific
protection orders for the benefit of victims of violence, which
enables the police and/or the court to order the immediate removal
of the perpetrator from the home. These orders may be called eviction
orders, barring orders, injunctions or, especially in the United States,
temporary restraining orders.
32. Austria was the first European country to introduce eviction
orders to protect victims of domestic violence. Its legislation
in this area is very comprehensive and is considered as a model.
France, Germany and Spain have enacted similar laws. In fact, Germany
and Spain also provide the possibility of protection orders for
rape victims (outside cases of domestic violence).
33. Eviction orders have been designed specifically for domestic
violence: to stop violence, offer short-term protection to the victim
and give her or him time to think and seek further protection, such
as an injunction. They do not easily fall into the categories of
civil injunctions or restraining orders in the context of a criminal procedure.
Rather, they are somewhere in-between the two. The removal is enforced
by the police.
34. A common feature to all member states is that removal is enforced
by the police. Considerable differences remain as regards:
- the duration of the validity
of the eviction order;
- the authority which can issue it;
- the assistance which is provided to the victim.
35. To mention a few examples: In Slovakia, in 2008, legislation
was passed allowing police officers to remove the perpetrator of
domestic violence from the common home and also from the neighbourhood
in which the victim lives, for forty-eight hours. The new restraining
order introduced by law in Hungary in 2009 permits police removal
of the perpetrator for a maximum of seventy-two hours, but application
for a court order takes several weeks.
NoteNote
36. At the other end of the spectrum, in Austria the police can
order the removal of a perpetrator for twenty days. During such
period, the victim is offered support, shelter and legal advice
on further steps to take.
37. Most member states that have adapted a version of the Austrian
model (such as the Czech Republic, Germany, Luxembourg and Switzerland)
aim for a duration that permits medium-term safety measures to be put
in place before the emergency measure runs out. Often the removal
of perpetrator is for a period of seven to ten days, during which
a court hearing on prolongation of the measure can be held.
Note
38. Legislation in force since 2009 in the Netherlands allows
mayors to impose a ten-day restraining order. In practice, they
authorise an executive police officer to use this power, so that
the protection can be implemented on the spot. The court can validate
the order within three days after its commencement date. After the
ten days have expired, the mayor may decide to extend the order
by another four weeks. It is foreseen that both the victim and the
perpetrator will receive professional help during the ten-day restraining
order.
39. The introduction of specific measures to protect victims of
violent crimes, especially in the context of intimate relationships,
is certainly to be welcomed. There is scope, however, for further
improving their effectiveness:
- If
the removal of the perpetrator can be ordered only for a very short
time, there is a risk that the victim could be at even greater risk
upon his return.
- Not many victims are prepared to seek legal action or
further protection after the immediate threat is over. According
to a Finnish study, the cases in which the victim did not file for
further protection were cases in which violence was quite severe.
This gives reason to suspect that the victims were under threat or
pressure.
6 Transnational threats,
transnational protection
40. Threats of violence cross borders easily. Not only
can the perpetrators move freely or easily in Europe, but also the
threats themselves cross borders via the Internet and social media
networks, possibly reaching victims wherever they go. The Internet
makes it possible to threaten and harass large numbers of people.
In response to this phenomenon, a number of countries, such as Spain,
the United Kingdom and the United States, have addressed “cyberstalking”
as a crime.
41. A number of issues of international and European law can be
raised in this context. The most important are cross-border enforcement
of measures of protection and the improvement of the level of protection
in all European countries by setting common standards and identifying
and sharing best practices.
42. The Council of Europe could play an important role in this
context, through its Convention on Preventing and Combating Violence
against Women and Domestic Violence. In addition, the Parliamentary
Assembly should encourage member states to establish closer co-operation
in this area, and to recognise protection orders for victims of
violence issued by other member states.
7 Mutual recognition
of protection orders in the European Union
43. An important step forward in the protection of victims
of violence is provided by the Directive on the European Protection
Order, which was adopted by the Council of the European Union on
23 September 2011. This directive places the obligation on national
authorities across the European Union to recognise protection orders
issued on the basis of domestic criminal law in another member state.
More specifically, the directive "sets out rules allowing a judicial
or equivalent authority in a Member State, in which a protection
measure has been issued with a view of protecting a person against
a criminal act of another person to issue a European protection
order enabling a competent authority in another Member State to
continue the protection of the person concerned in the territory
of this Member State”.
Note
44. The scope of the directive is wide, since it applies to protection
measures which aim to protect a person against a criminal act of
another person which may endanger his or her life, or physical or
psychological integrity or dignity.
Note
45. In addition to the European Protection Order Directive, the
European Commission adopted, on 18 May 2011, a set of proposals
to ensure a minimum level of rights, support and protection for
victims of violence across the European Union, irrespective of where
they come from or live, as well as the mutual recognition of orders
issued by European Union member states under civil or administrative
law.
Note
46. The proposed regulation on mutual recognition of civil law
protection measures is designed to help protect victims of violence
from any further harm by their aggressor. It aims to ensure that
victims of violence, including domestic violence, can still rely
on restraint or protection orders issued against the perpetrator
if they travel or move to another European Union country.
47. The European Parliament will start considering the proposed
regulation at committee level in autumn 2011, under the normal legislative
procedure. After adoption by the Council of the European Union,
the regulation will have immediate effect.
8 Protection orders
in Recommendation Rec(2002)5 of the Committee of Ministers on the
protection of women against violence
48. Recommendation Rec(2002)5 of the Committee of Ministers
is, in many respects, the legal and political platform on which
much of the work on violence against women conducted by the Council
of Europe is based.
49. Although this text does not explicitly mention restraining
orders, it asks Council of Europe member states to introduce, develop
and/or improve, where necessary, national policies against violence,
based on, amongst others, ensuring maximum safety and protection
of victims and adjustments of the criminal and civil law, including
the judicial procedure. In addition, it asks member states to “ensure
that measures are taken to protect victims effectively against threats
and possible acts of revenge” and “enable the judiciary to adopt,
as interim measures aimed at protecting the victims, the banning
of the perpetrator from contacting, communicating with or approaching
the victims, residing in or entering certain defined areas”.
9 Protection of victims
of violence under the European Convention on Human Rights
50. There are several ways in which the European Convention
on Human Rights (ETS No. 5) can act as a legal basis to provide
protection for victims of violence:
- its Article 2 protects the right to life;Note
- its Article 3 can be engaged in cases where violence reaches
such a level of severity as to constitute inhuman, cruel or degrading
treatment;Note
- its Article 8 protects the right to privacy.Note
51. The case law of the European Court of Human Rights has clarified
the extent of the obligations falling upon Council of Europe member
states under the Convention.
Note Not only do they have the obligation
to refrain from violations of the rights mentioned above, but they
also have a positive duty to take effective steps to protect persons
from violations of these rights by private individuals.
52. This means that states must put in place effective criminal
law provisions to deter the commission of offences, backed by law-enforcement
machinery for the prevention, suppression and punishment of breaches of
such provisions.
Note
53. As far as breaches of Articles 2 and 3 are concerned, this
positive obligation extends in appropriate circumstances to requiring
the authorities to take preventive operational measures to protect
an individual whose life is at risk from the criminal act of another
individual.
Note
54. However, the scope of this positive obligation should not
be interpreted as imposing an impossible or disproportionate burden
on the authorities and does not apply to every claimed risk to life:
“For a positive obligation to arise, it must be established that
the authorities knew or ought to have known at the time of the existence
of a real and immediate risk to the life of an identified individual
from the criminal acts of a third party and that they failed to
take measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk”.
Note
10 Protection orders
in the Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul Convention)
55. The Istanbul Convention, which was opened for signature
on 11 May 2011 and has so far been signed by 16 Council of Europe
member states, represents a landmark instrument in the protection
of victims of violence, especially women.
56. The convention includes provisions on ensuring a physical
distance between the victim and the perpetrator. Article 52 on emergency
barring orders states that:
“Parties
shall take the necessary legislative or other measures to ensure
that the competent authorities are granted the power to order, in
situations of immediate danger, a perpetrator of domestic violence
to vacate the residence of the victim or person at risk for a sufficient
period of time and to prohibit the perpetrator from entering the
residence of or contacting the victim or person at risk. Measures
taken pursuant to this article shall give priority to the safety
of victims or persons at risk.”
57. Rather than placing the burden of urgently seeking safety
in a shelter or elsewhere on the victim, who is often accompanied
by dependent children, the convention privileges the removal of
the perpetrator to allow the victim to remain in the family home.
58. Article 53, therefore, establishes the obligation for states
to equip the competent authorities with the power to order a perpetrator
of domestic violence to leave the common residence and to bar him
or her from returning or contacting the victim. The immediate danger
is assessed by the relevant authorities.
59. The convention leaves it to the parties to decide on the length
of period for such an order, which should, however, be sufficient
to provide effective protection to the victim. Likewise, the convention
leaves it to the parties to identify and empower, in accordance
with their national legal and constitutional systems, the authority competent
to issue such orders and decide on the applicable procedure.
60. In addition to and in complementarity with emergency measures,
the convention places on the states parties the obligation to also
ensure that appropriate restraining or protection orders are available
for the victims of all forms of violence covered by the convention
(Article 53).
61. It leaves it to the parties to choose the appropriate legal
regime under which such orders may be issued, whether civil law,
criminal procedure law or administrative law. In all cases, such
measures should meet the following criteria:
- provide immediate protection and without undue financial
or administrative burden on the victim. This means that any order
should take effect immediately after it has been issued and shall
be available without lengthy court proceedings. Any court fees levied
against the applicant, most probably the victim, shall not constitute
an undue financial burden which would bar the victim from applying.
At the same time, any procedures set up to apply for a restraining
or protection order should not present insurmountable difficulties
for victims;
- be issued for a specified period or until modified or
discharged;
- where necessary, be issued on an ex
parte basis which has immediate effect. This means a
judge or other competent official would have the authority to issue
a temporary restraining or protection order based on the request
of one party only;
- be available irrespective of, or in addition to, other
legal proceedings. For example, where such orders exist, research
has shown that many victims who want to apply for a restraining
or protection order may not be prepared to press criminal charges
against the perpetrator. Standing to apply for a restraining or protection
order shall therefore not be made dependent on the institution of
criminal proceedings against the same perpetrator. Similarly, they
should not be made dependent on the institution of divorce or other proceedings;
- be allowed to be introduced in subsequent legal proceedings
to ensure that the existence of a restraining or protection order
may be introduced in any other legal proceedings against the same
perpetrator.
62. As regards sanctions against breaches of such orders, the
convention requires them to be “effective, proportionate and dissuasive”,
leaving it to the states parties to decide their legal nature (criminal,
civil or administrative).
63. Some additional provisions set out in the convention are particularly
progressive, even if they do not establish an obligation on the
states parties. For instance:
- Since
establishing the truth in domestic violence cases may, at times,
be difficult, parties may consider limiting the possibility of the
perpetrator to thwart attempts of the victim to seek protection
by taking the necessary measures to ensure that restraining and
protection orders may not be issued against the victim and perpetrator
mutually.
- Parties should consider banning from their national legislation
any notions of provocative behaviour in relation to the right to
apply for restraining or protection orders. Such concepts allow
for abusive interpretations that aim to discredit the victim and
should be removed from domestic violence legislation.
- Finally, parties may also consider taking measures to
ensure that standing to apply for restraining or protection orders
is not limited to victims. These measures are of particular relevance
in relation to legally incapable victims, as well as regarding vulnerable
victims who may be unwilling to apply for restraining or protection
orders because of fear or emotional turmoil and attachment.
64. The inclusion of Articles 52 and 53 in the convention is to
be welcomed, as a very good basis for a high common standard. Similarly,
it is important to underscore that the states parties are not allowed
to make reservations to these articles. However, I would like to
recall that, in its opinion on the convention, the Assembly proposed
to amend Article 53 so that restraining or protection orders could
be issued also
ex officio as
well as “irrespective of and in addition to other proceedings”.
Note Unfortunately, these amendments
were not accepted by the Committee of Ministers.
11 Conclusions
and recommendations
65. The key to all measures aimed at tackling domestic
violence is to have a framework in place which can effectively and
promptly ensure the safety of the victims. The criminalisation of
acts of domestic violence, however important as a political statement
and a matter of justice, can tackle only a part of the problem:
most cases never make it to court, because victims are in a state
of psychological subjugation, but also because, when balancing the
advantages and disadvantages of reporting violence, they often conclude
that the risk of exposing themselves to retaliation is greater than
the chances of obtaining protection. Similarly, a great proportion
of cases of domestic violence fall out as they progress through
the justice system, for similar reasons.
66. Strengthening the measures available to provide the physical
safety of the victims in the short and medium term and ensuring
their effective implementation and enforcement therefore become
a priority, not only to prevent further harm to the victims but
also to ensure the credibility and effectiveness of the entire criminal
framework on violence against women.
67. A comparison of the different kinds of protection measures
set up in Council of Europe member states shows great disparities.
The Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence could play an important role
in achieving harmonisation of such measures, based on a high standard.
68. However, it is possible and desirable for Council of Europe
member states to go beyond the provisions of the convention and
introduce more protective measures, as is recommended in the draft
resolution.
69. I would like the concluding remark of this report to be on
the concept of domestic violence. I have used this expression throughout
my report, as a way to make myself easily understood. However, as
recently stated by the European Court of Human Rights in the case
of Opuz v. Turkey, it should
be clear that there is nothing “private” about domestic violence:
this is an issue of public interest which requires the state’s action
and its political commitment.
70. Finally, a special word of thanks to the former rapporteur,
Ms Krista Kiuru, who left her assignment as rapporteur to become
a minister in Finland and who put a lot of personal effort into
the preparation of this report, and to Ms Johanna Niemi, Professor
of International Law at the University of Helsinki, for her expert
advice.
