Alina DEMCHYK | Protecting the rights of victims of domestic violence

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Domestic violence is one of the most urgent social problems affecting Ukrainian society. Statistics show that about 1.8 million Ukrainian women experience domestic violence every year. Every day, the police record about 350 cases of domestic violence, and 22% of women between the ages of 15 and 49 have experienced it themselves. In 2020, more than 600 Ukrainian women were killed as a result of domestic violence.

These grim numbers show that Ukrainian legislation on domestic violence is seriously underdeveloped. Unfortunately, for many people prone to committing domestic violence, it is not enough to simply understand that they are harming their loved ones. These people must also understand the consequences of their actions in terms of potential criminal liability.

Legal protection against domestic violence

The Criminal Code of Ukraine became more acquainted with the concept of “Domestic Violence” only at the end of 2017. This happened after the introduction of the relevant Article 126-1 in the current Code. This rule only came into force on January 1, 2019.

The criminal code article on domestic violence recognizes intentional systematic actions aimed at committing physical, psychological or economic violence against a spouse or ex-spouse or another person with whom the perpetrator is (was) in a family or close relationship. The legislation recognizes that, as a result of such actions, victims suffer physical and psychological injuries, disorders, a deterioration of their quality of life, disability and more. Depending on the severity, such acts are punishable by between 150 and 240 hours of community service, or arrest for a term up to six months, or restraint of liberty for a term up to five years, or imprisonment for up to two years.

Interestingly, the malicious actions described in Article 126-1 of the Criminal Code of Ukraine already fall under the scope of related articles of current criminal law. For example, the Criminal Code contains the concept of infliction of bodily harm, forcible taking of children (by parents) or evasion of alimony. The consequences of such actions may also be the physical or psychological suffering of their victims. In the case of physical consequences, it is obvious that they lead to injuries of varying severity. However, the psychological suffering of the victim is no less dangerous, and can result in health problems, emotional dependence and even death. No forms of violence should be underestimated, as they can equally lead to undesirable consequences.

Nowadays, there is a lot of current judicial practice, which shows an increase in cases of physical and psychological violence. Often in domestic conditions there is a combination of these two things. Article 126-1 of the Criminal Code of Ukraine also includes and describes such actions as the systematic commission of one or more criminal acts. For example, there are cases when a person first commits physical violence and then adds psychological or economic violence.

In order for an attacker to be properly punished by law, the corpus delicti must be properly qualified. The regularity of abusive acts is important for the correct qualification of several types of violence. In turn, systematic nature of the acts can be manifested as different variations of forms of violence. Thus, in order to qualify the crime as accurately as possible, it is important to consider a number of issues. Proper consideration of existing cases of domestic violence and all its aspects will help to bring perpetrators to justice.

The limits of the domestic violence classification

Violence of a physical or psychological nature may occur against a spouse or ex-spouse or another person with whom the perpetrator is (or was) in a family or close relationship (a special victim) and against third parties. If violence (except as regulated in Articles 125, 126-1 of the Criminal Code of Ukraine) occurs against a special victim, such actions already require additional qualification under the relevant articles of the law on criminal liability. It should be noted that on such grounds the commission of a crime against a spouse or former spouse or another person with whom he/she is (was) in a family or close relationship cannot be assessed as an aggravating circumstance, as per Art. 126-1 of the Criminal Code of Ukraine.

The qualification of actions of the person who systematically commits beatings and muggings or light bodily injuries, cannot be carried out on set of crimes, that is, simultaneously under Art. 125 (or Article 126) and Art. 126-1 of the Criminal Code of Ukraine, as the constitutional principle prohibiting double jeopardy will be violated. Double jeopardy attaches due to the fact that beatings, beatings and light bodily injuries are a way of committing domestic violence, which is fully covered by Art. 126-1 on physical violence. This is evidenced by a systematic interpretation of the law on criminal liability, namely Art. 126-1 and Articles 125 and 126 of the Criminal Code of Ukraine. Yes, Art. 126-1 of the Criminal Code of Ukraine, as a sign of the objective side of the crime, provides for physical violence, which is manifested not only in the infliction of physical pain, but also ofin health disorders and injuries. A comparison of the sanctions of Articles 125 and 126-1 of the Criminal Code of Ukraine shows that the penalty for violation of Art. 126-1 is more severe. This suggests that physical violence includes beatings, beatings and minor injuries. It will not cover only the act provided for in Part 2 of Art. 126, as the sanction of this article is much stricter compared to that for domestic violence. Thus, in cases of physical violence which manifested in the form of infliction of severe or moderate bodily harm, there is a need for additional qualification for the totality of the crime. The commission of such bodily injury against a special victim cannot be assessed as a special corpus delicti of the crime of “domestic violence”, as was the case with non-payment of alimony, as such injuries can be committed against both a special victim and third parties.

Thus, at the stage of qualifying acts related to domestic violence, it is worth paying special attention to several provisions. In particular, systematic actions covered by the concept of “domestic violence” include a combination of both physical and psychological or economic violence. At the same time, there are cases of purely physical or psychological violence, without such combinations. For example, in the case of economic violence, which manifests itself in the form of evasion of child support (or support for disabled parents), the actions of a person are qualified under a special rule of Art. 164 or Art. 165.

Modern times need urgent solutions

Judicial practice in Ukraine shows an increase in the number of cases related to domestic violence. This has led to the creation of appropriate tools to protect victims, including children as well as women. The law “On Prevention and Counteraction to Domestic Violence” № 2229-VIII, which has recently entered into force, is intended to serve as one such tool. This normative legal act actually makes certain facts of domestic violence into criminal offenses.

If a person previously accused of domestic violence had received a small fine, the newly enacted law provides the right to prosecute the perpetrator. This law applies to spouses, including ex-spouses, any relatives and close relations, regardless of whether they reside together or separately. This also includes all actors involved in the prevention and combating of domestic violence, as well as relatives or close relations who have mutual rights or responsibilities, as well as those living together.

The Law “On Prevention and Counteraction to Domestic Violence” № 2229-VIII, first, changed the qualification from “victim” to “injured person”. In addition, the Ministry of Health has officially introduced a systematic approach to detecting domestic violence and providing medical care to victims. The Ministry issued an appropriate order, which prescribes all actions to be taken by doctors in case of detection of domestic violence. In addition, in medical educational institutions of Ukraine, students will study issues of preventing and combating domestic violence.

Social programs and support for victims of violence

It is not uncommon for people who have suffered from domestic violence to have no place to escape to. Thus, special shelters have been set up in Kyiv, Kharkiv, Rivne, Kryvyi Rih and Vinnytsia, where victims can apply to stay. There, they will be able to not only find a safe haven, but also receive medical, psychological and legal assistance. Of course, such institutions are important, and it is similarly important to establish and support them in as many places in Ukraine as possible.

In addition to opening shelters for victims of domestic violence, Ukraine is also creating new social programs to protect them The well-known Polina (Police against Violence) project, has been operating since June 12, 2017 in Kyiv, Odessa and Severodonetsk. The program involves precinct officers of the National Police, juvenile offense prevention workers, detectives and patrol police teams. All members of these mobile groups receive prior training, in particular on counteracting and responding to domestic violence. The training was made possible with the support of international partners and colleagues from the OSCE, UNDP, UN Women and the Canadian Police Mission. The Polina program has shown its effectiveness in these cities and has significantly reduced the incidence of domestic violence. The National Police has repeatedly expressed plans to extend the project to the whole of Ukraine.

When a child is harmed

A significant number of domestic violence cases involve children. In families with children where any type of violence is present, it is the young members of society who suffer most of all. Statistics show that only about 10% of children who have suffered or witnessed domestic violence turn to law enforcement. Such low numbers are due to children’s fear and distrust of law enforcement. Numerous and sometimes ill-considered interrogations of children by law enforcement officers, which only cause more trauma, can explain the reasons for such distrust. In addition, during court hearings, children are required to testify not in the presence of a psychologist, but both parents, one of whom is usually the perpetrator. Thus, law enforcement and the judiciary must consider in detail the mechanisms of interaction with affected children, so as not to re-injure them.

Some may point to Ukraine’s obligations under the Lanzarote Convention, which Ukraine has ratified and which details how law enforcement officers ought to communicate with children who have suffered from domestic violence. However, in practice, law enforcement officers do not comply with all these rules. A survey of law enforcement officers shows that out of 281 respondents, 56% are not at all familiar with the provisions of the Convention.

The law in practice

Given the current case law, the practical application of Art. 126-1 is still in question. In particular, the revision concerns the issue of systematic and fixed regulation of a criminal offense provided for in Art. 126-1.

It is necessary to note criminal proceedings which are provided by Art. 126-1. A client, who is a citizen of the United States of America applied to the TIHISHVILI Law Firm for legal protection after experiencing domestic violence. The perpetrator was her ex-husband, who after about two months of marriage began to show violence, both physical and psychological.

Unfortunately, even taking into account all the means available today to protect victims of domestic violence, the dynamics of the progress of the case is extremely low. Based on the adopted regulations and their descriptions, the mechanisms for resolving such cases appear clear and coherent in principle, but this is not the case in practice. In fact, in the case of the US citizen, shortly after receiving her statement, the police closed the criminal case, arguing that there was no corpus delicti. Of course, a petition was immediately filed with the investigating judge and his decision overturned the inspector’s decision to close the proceedings. In addition, an application was submitted to the prosecutor’s office for committing a criminal offense under Article 126-1. The case file was immediately returned for consideration.

What to do for victims of domestic violence?

In the event of any form of domestic violence, action must be taken immediately, as patience and inaction will not remedy the situation. We should not be silent or fear that the attempt to protect victims will draw condemnation in society. This is an effective way to show strength, and it has helped many.

If you or your children are victims of domestic violence, you should immediately contact law enforcement. At the same time, you need to think about reliable legal support. In case of persistent danger or lack of a safe place to flee from your abuser, you should use the services of shelters mentioned above. Pre-collection and safe storage of all necessary documents or their copies in case of emergency escape would be very well-advised.

Particular attention must be paid to children, who are most sensitive to acts of violence. They need to be given maximum support and protection. When parents avoid taking action, children can later experience serious mental disorders and socialization issues. Talking to a qualified psychologist who can help alleviate this difficult period in life is essential for children affected by domestic violence.

Alina Demchyk, lawyer Law Firm TIHISHVILI

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