Why does the Ukrainian judicial, law enforcement and legal community need the Istanbul convention? - Jurfem

Why does the Ukrainian judicial, law enforcement and legal community need the Istanbul convention?

Since 2011 Ukraine has been in the process of preparing for the ratification of the Council of Europe Convention on the Prevention of Violence against Women and Domestic Violence (hereinafter, the Istanbul Convention), which, despite a lot of efforts to prepare draft laws and draft bylaws, has not been ratified yet.

On  December 06, 2017 the Law of Ukraine “On Amendments to the Criminal Code and the Criminal Procedure Code of Ukraine in Order to Implement the Provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence” was adopted, and on December 07, 2017 the Law of Ukraine “On Preventing and Combating Domestic Violence” was adopted. These legislative acts introduced significant changes to the legislation, but they are not enough, and we will try to answer why.

Article 9 of the Constitution of Ukraine stipulates that effective international treaties, the binding consent to which has been given by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. Part 2 of Article 19 of the Law of Ukraine “On International Treaties of Ukraine” stipulates that, if an international treaty of Ukraine, which has entered into force in accordance with the established procedure, introduces provisions other than those provided for in the relevant legislative act of Ukraine, the provisions of the international treaty are to be applied.

Therefore, international acts, which include the Istanbul Convention, have priority over the national legislation of Ukraine. Accordingly, the ratification and further implementation of the provisions of the Istanbul Convention will contribute to a stable approach to the regulation of social relations in the field of women’s rights protection. As a result, we will have implemented systematic and comprehensive measures to protect the rights of victims of violence and domestic violence. Equally important is the fact that the ratification of the Istanbul Convention will protect Ukrainian legislation against political influences, which can be manifested in the cancellation of existing laws on prevention and counteraction of domestic violence, etc. After all, a law may or may not change, and the guarantees established by an international act remain effective. At the same time, new laws, which will be adopted upon ratification of the Istanbul Convention, may not contradict it.

Although the Ukrainian lawmaker has taken significant steps towards criminalization of actions, which constitute discrimination on the basis of gender and violate the rights of women (establishing liability for domestic violence, a new version of the article providing for liability for rape, etc.), however, the following provisions stipulated by the Istanbul Convention were not taken into account:

CHAPTER 1. GOALS. DEFINITIONS.

States that have ratified this Convention undertake, among other things, to provide mechanisms for protection against all forms of violence against women and domestic violence and to promote international cooperation in this field.

Thus, if Ukraine ratifies this Convention, the state will have to review the established discriminatory practice in cases related to violence against women.

According to the UN Population Fund and the Geneva Center for the Democratic Control of Armed Forces, 38% of judges and 39% of prosecutors consider domestic violence a “private matter”, 59% of law enforcement officers consider most reports on domestic violence to be false, up to 84% of police officers prioritize reconciliation, and not punishment, up to 62% of law enforcement officers believe that many rape victims provoke this crime.

Research also shows that 10% of prosecutors, 11% of judges and 12% of police officers share this opinion.

CHAPTER 2. COMPREHENSIVE POLICY AND DATA COLLECTION

State policy aimed at protecting women being victims of violence, as well as persons affected by domestic violence, should include data collection and also provide for adequate funding.

Under the Istanbul Convention, Ukraine undertakes to:

  1. Regularly collect statistical and population data on cases of violence against women and domestic violence.
  2. The data must reflect information about the gender of the victim and the offender, their family relationships, place of residence, and age. As of today, there are no official data in Ukraine about which women from which area most often suffer from domestic violence and gender-based violence, we do not know the age of the victims and perpetrators, which means that we cannot formulate an appropriate state policy for the prevention of and response to cases of domestic violence. The accounting data should also contain information on the share of convictions for all forms of violence covered by this Convention, as well as on the number of court orders issued to protect the victims against violence.
  3. Adopt and implement state programs to combat domestic violence and provide for adequate funding and operation of services dealing with victims of domestic violence. 
  4. Conduct research in the field of violence against women and domestic violence and allocate funds for conducting systematic sociological research, which has as its goal not only the identification of problems, stereotypes and other discriminatory phenomena in society, but also has a preventive and educational purpose among the population.
CHAPTER 3. PREVENTION

Taking preventive measures by the state with the aim of eradicating stereotypical gender roles, improving awareness and preventing domestic violence

  • Introducing into the educational process (all levels of education: primary, secondary, higher) courses/subjects/lessons on issues of equality, refutation of gender stereotypes, interpersonal relations without the use of violence, etc.

Article 21 of the Law of Ukraine “On Ensuring Equal Rights and Opportunities for Women and Men” stipulates that educational institutions ensure the education of a culture of gender equality, non-violent behaviour, mutual respect and equal distribution of professional and family responsibilities between women and men. However, the Law “On Education” does not take into account the requirement established by the Istanbul Convention to provide students with educational materials on matters such as equality between women and men, combating domestic violence and violence against women, and the right to personal integrity.

The General Recommendations adopted by the Committee on the Elimination of Discrimination against Women, No. 1-37, among other things, provide that in order to implement the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), it is necessary to introduce age-appropriate compulsory school subjects at all levels of education related to comprehensive sexuality education, including the topics of sexual and reproductive health and rights, responsible sexual behaviour, prevention of early pregnancy and prevention of sexually transmitted diseases. Teachers at different levels should receive special training on age-appropriate presentation of information. In situations where teachers at the secondary level are predominantly male, the state is encouraged to make efforts to find, train and employ women teachers who can serve as role models and make classrooms safer and more empowering for girls and young women.

  • Taking measures to spread information on issues of equality, refutation of gender stereotypes, interpersonal relations without the use of violence and others in informal educational units, as well as in sports and cultural units

For example, conducting separate classes on the topic of equality between men and women, violence in the family, etc. in extracurricular leisure facilities (in summer camps, sports, vocal, etc. classes).

  • Implementation of comprehensive programs for the training of specialists in the prevention and detection of violence, equality, needs of victims, prevention of re-victimization and support of interdepartmental cooperation.

On the one hand, Article 21-2 of the Law “On Ensuring Equal Rights and Opportunities of Women and Men” stipulates that the state ensures the organization and holding of joint and specialized trainings and seminars for specialists responsible for preventing and countering gender-based violence, as well as for law enforcement officers and judges. Appropriate training is conducted for judges, social workers, police officers, etc. Thus, taking into account the recommendations of CEDAW, the National School of Judges of Ukraine, the National Academy of Prosecution of Ukraine, etc. hold such training.

However, there are no training programs for lawyers, advocates, which should provide relevant specialists with the appropriate tools for identifying and working with cases of violence at the early stages, advanced training programs on ways to protect victims of gender-based violence.

At the same time, the Law of Ukraine “On Social Work with Families, Children and Youth” provides that volunteers may be involved in social work and provision of social services, and obviously they will not always be trained for preventing and combating gender-based violence, so that is why it is necessary to implement appropriate training programs for beginners who want to protect their rights or the rights of others in the field of preventing and combating gender-based violence.

  • Implementation and support of treatment programs aimed at preventing recidivism of offenders, in particular persons who have committed sexual crimes.
  • A direct ban on advertising that depicts degrading treatment of women or harmful stereotypes.
CHAPTER 4. PROTECTION AND SUPPORT

The state must provide victims with the best possible protection and support to prevent further violence and promote their physical, psychological and social recovery.

  1. The work of all the services should be adjusted so that the victim could receive the most effective comprehensive protection in one place. Situations where services, particularly law enforcement agencies, are located in the same building or nearby and work together show much higher levels of service satisfaction and, in some cases, victims are more willing to seek protection. Therefore, Clause 3 of Article 18 of the Convention encourages efforts to concentrate services in one building.
  2. A sufficient number of shelters for women falling victims of gender-based violence, which should be financed by the state.

Currently, Ukraine has a small number of shelters for victims of domestic violence, and some regions do not have them at all.

In Ukraine, there are presently 24 shelters or units for victims of domestic violence and/or gender-based violence, but here are the data to understand the picture of the relationship to the number of victims: thus, in 9 months of 2019, the number of reports on domestic violence amounted to 95 thousand.

The availability standard recommended by the Council of Europe is one family place (one woman and two children) per 10 thousand of the population.

In Ukraine, there must be at least one shelter for victims in each regional center and in large cities of regional subordination (200 000 residents) at the level of one place per 30 to 35 thousand residents. The total estimated need reaches 1 300 to 1 500 places + specialized crisis centers with the possibility of short-term (up to one week) stay and deployment of mobile teams to work in remote rural communities. The minimum appropriate number of places in a shelter is 6. The maximum is 20 (for simultaneous accommodation of 20 people in one room, including women with children). The optimal number is 12 to 15 people.

CHAPTER 5. SUBSTANTIVE LAW

The national legislation of Ukraine should provide legal protection and compensation measures to effectively prevent and combat violence against women: such measures should be introduced in the corresponding criminal, civil, and administrative legislation.

  1. Establishing liability for stalking, intentional behaviour consisting in repeated threatening behaviour directed at another person, causing him or her to fear for his or her safety. This can be the task of damaging property, taking action against the victim’s family, friends or pets, or spreading implausible information on the Internet, etc.
  2. Establishing separate criminal liability for intentional mutilation of female genitalia: a) removal, infibulation or any other mutilation in whole or in part of the labia majora, labia minora or clitoris; b) forcing a woman to undergo the acts listed in subparagraph “a” or inducing her to do so; c) inciting, forcing a girl to undergo the acts listed in subparagraph “a”, or inducing her to do so.
  3. The right to demand compensation from persons who have committed any of the offences provided by the Convention.
  4. For example, the Ukrainian lawmakers provided liability for sexual harassment in a broad sense (unwanted verbal, non-verbal or physical behaviour of a sexual nature, the purpose or consequence of which is to violate the dignity of a person, in particular by creating an intimidating, hostile, humiliating or offensive environment) by criminalizing sexual violence. At the same time, it is important to envisage other ways of protecting the rights of victims. In particular, guaranteeing the right to demand compensation from persons who have committed sexual violence within the framework of civil proceedings.
  5. The right to adequate public compensation for women who have suffered serious bodily injury or health impairment, to an extent not covered by the offender, insurance or public health and social security.
  6. Establishing criminal liability for persons who are accomplices or instigators in the commission of crimes involving psychological, physical or sexual violence, persecution, forced marriage, intentional mutilation of female genitals, forced abortions, or forced sterilization.
  7. Domestic violence against a child should be considered as one of the grounds for deprivation of parental rights.

As of today, domestic violence against a child under the Family Code of Ukraine constitutes no grounds for deprivation of parental rights. Potentially, a person who has committed such violence can be deprived of parental rights if the person is cruel to a child or has been convicted of committing an intentional criminal offence against a child.

A positive innovation in Ukrainian legislation is Part 4 of Article 22 of the Law of Ukraine “On Prevention and Counteraction of Domestic Violence”, which states that the facts of domestic violence against a child or in his/her presence must be taken into account by courts and/or by the guardianship body considering disputes regarding the participation of one of the parents in raising the child, determination of the child’s place of residence, separation of the child, deprivation and renewal of parental rights, visitation with the child of the mother and father of the child who are deprived of parental rights, separation of the child from the person who keeps him/her not on legal grounds or not according to a court decision.

8. Establishing a ban on mandatory alternative dispute resolution methods (mediation), including mediation and conciliation, in relation to all forms of violence.

Article 111 of the Civil Code of Ukraine stipulates that the court takes measures to reconcile the spouses, if this does not contradict the moral principles of society. The Criminal Code and the Criminal Procedure Code also provide for the possibility of applying the conciliation procedure to such legal relations. However, this approach creates situations when, for example, a victim of domestic violence goes to the court to divorce the abuser, but the court does not grant permission for a divorce, but sets a deadline for reconciliation, thereby putting the victim at risk of experiencing violence again. Thus, in cases that contain a component of violence, mediation or conciliation is not possible.

CHAPTER 6. INVESTIGATIONS, PROSECUTION, PROCEDURAL LAW AND PROTECTIVE MEASURES

The procedure for investigating crimes related to domestic violence, as well as access of victims of violence and domestic violence to the effective protection of their rights.

Due to the fact that cases related to violence against women and domestic violence are often perceived as private matters, the criminal procedure legislation includes a concept of private prosecution cases, which include cases related to domestic violence. This means that such cases can be considered and brought to court only upon the victim’s request.

As a result of this approach, we have a significant number of cases that are closed due to the fact that the victim, exposed to psychological pressure and threats from the offender, withdraws statements from the police and refuses to support the prosecution. And the offenders avoid liability.

However, the Istanbul Convention obliges states to change their approach to this category of cases, namely, it provides that:

  1. Domestic violence cases are not cases of private prosecution and are considered even in the absence of reports and complaints
  2. Reasonable deadlines for consideration of cases without prolonging them
  3. Cancellation of the terms of prosecution for crimes related to domestic violence and sexual violence.

In Ukraine, crimes such as domestic violence (Article 126-1 of the Criminal Code of Ukraine), sexual violence (Article 153 of the Criminal Code of Ukraine), rape (Article 152 of the Criminal Code of Ukraine), coerced sexual intercourse (Article 154 of the Criminal Code of Ukraine) also have a statute of limitations. This means that if the rape happened more than 5 years ago, and domestic violence occurred more than 2 years ago, an individual can be found guilty, but exempt from criminal liability.

CHAPTER 6. MIGRATION AND SHELTER

Protecting the rights of migrant and asylum-seeking women falling victims to gender-based violence is one of the state’s obligations under the Istanbul Convention, which, unfortunately, is not given much attention in the Ukrainian legislation.

 Given the requirements of the Istanbul Convention, Ukraine needs to:

  1. Provide a definition of violence based on gender discrimination as a form of persecution within the framework of the 1951 Refugee Convention.
  2. Develop reception procedures and improve the work of support services for asylum seekers, provision of asylum taking into account the gender factor.
  3. Provide guarantees to ensure that victims whose residence status depends on the residence status of a spouse or partner upon dissolution of a marriage or relationship will be granted an autonomous residence permit regardless of the duration of the marriage or relationship.
  4. Extend the status of a refugee family member to persons who are the person’s unmarried partner. Under the laws of Ukraine, such guarantees apply only to a man or a woman with whom the marriage is registered in accordance with the established procedure.
  5. Protect from return all victims of violence who have not yet obtained a refugee status under the 1951 Convention based on their request for asylum, regardless of their status in the country of origin or residence, and who may be at risk of gender-based violence in the event of expulsion/deportation that can develop into the above-mentioned cruel treatment.
  6. Establish mechanisms to prevent the expulsion/deportation of persons to a country where there is a real threat to their life in case of rejection of the asylum request.
CHAPTER 8. INTERNATIONAL COOPERATION

34 countries have ratified the Council of Europe Convention on the Prevention of Violence against Women and Domestic Violence. Countries that have ratified it cooperate and share experience, data and research concerning the protection of the rights of victims of gender-based violence. Moreover, consistent with the requirements of the Istanbul Convention, they must, if necessary, cooperate by providing access to evidence and assistance in the investigation of relevant cases.

This means that if a citizen of Ukraine, who stays/lives in Georgia, Germany or another country that has ratified the Istanbul Convention, falls victim of domestic violence, she will receive guaranteed protection and provided that Ukraine ratifies the convention, the states will cooperate to protect the rights of the victim and jointly take measures to investigate crimes and share information under the Istanbul Convention.

CHAPTER 9. MONITORING MECHANISMS

Having ratified the Istanbul Convention, Ukraine will be able to report and receive recommendations from the group of experts on actions involving violence against women and domestic violence (hereinafter, GREVIO), an expert body consisting of independent and highly qualified experts at human rights, gender equality, violence against women and domestic violence, criminal law, providing assistance and protection to victims of violence against women and domestic violence, responsible for “monitoring the implementation of this Convention by the Parties”.

In addition, nongovernmental/human rights organizations will be able to monitor and submit alternative reports on Ukraine’s compliance with the requirements of the Convention, which will contribute to the improvement of legislation and judicial and law enforcement practices regarding the protection of victims of domestic violence.

Furthermore, the Parliament of Ukraine, consistent with the Istanbul Convention, will play an important and key role in the process of monitoring the fulfillment of the requirements of the Convention.

To sum it up, it should be noted that the ratification of the Council of Europe Convention on the Prevention of Violence against Women and Domestic Violence will create an opportunity to introduce additional mechanisms for the protection of the rights of victims of gender-based violence, cover the existing gaps in the Ukrainian legislation and provide an opportunity for Ukraine to cooperate with the international community and gain access to information, international protection mechanisms and recommendations, which is valuable for protecting the rights of Ukrainian women both in and outside Ukraine.

Prepared by Analytical Center JurFem