Why is the ECHR decision “Levchuk versus Ukraine” still relevant? - Jurfem

Why is the ECHR decision “Levchuk versus Ukraine” still relevant?

ANNOTATION

Based on an analysis of the ECHR decision “Levchuk versus Ukraine”, this material identifies the problems arising during law enforcement in cases related to domestic violence (in particular, in terms of eviction from home, if the offender is a co-owner of an apartment/house or lives in it, with the aim of “eliminating” the risks of domestic violence in the future), which in practice creates difficulties for the proper protection of victims of domestic violence; it also gives recommendations for improving the state’s response to cases of domestic violence in Ukraine.

INTRODUCTION

Despite certain legislative changes in the field of domestic violence in Ukraine, statistics show that the number of cases of domestic violence is increasing every year, but the state is not always able to identify such offences and bring the offenders to justice, thereby ensuring adequate protection of victims against potential domestic violence cases in the future. The case “Levchuk versus Ukraine” is indicative because it reveals the problems that currently exist in Ukraine, the need for legislative changes, as well as difficulties that victims of domestic violence face every time they want to be protected against such actions by the state. These problems include:

  • a significant number of cases related to domestic violence is dropped due to the psychological pressure that the offender can exert on the victim so that the latter gives up the case;
  • the authorities consider domestic violence as a “private matter”;
  • when it comes to eviction from home, the legislation of Ukraine does not currently provide for an effective mechanism for ensuring the victim’s right to life, safety, and health, or the victim’s property rights, if the offender is a co-owner of the home or lives in it;
  • judicial practice consists in refusing eviction in such cases due to the lack of evidence of the systematic nature of domestic violence, which constitutes a criminal offence under Article 126-1 of the Criminal Code of Ukraine, which is an obstacle preventing victims from accessing justice in case of domestic violence;
  • children are “invisible” victims of domestic violence.

Children witnesses are not identified as children victims of domestic violence in most cases either by the court or by the plaintiffs or law enforcement agencies. As a result, the interests of children are not taken into account in cases of eviction from home and prosecution of offenders for domestic violence.

BRIEFLY ABOUT DOMESTIC VIOLENCE IN UKRAINE

Since 2015, Ukraine has been in the process of preparing for the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter referred to as the Istanbul Convention). Drafts of new laws and government resolutions have been developed. Unfortunately, the Istanbul Convention has not been ratified yet, but 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 on  December 06, 2017 and the Law of Ukraine “On Preventing and Combating Domestic Violence” was adopted on December 07, 2017.

The new legislation introduced new measures to protect victims of domestic violence, in particular, an urgent injunction and a restraining order, and the state undertook to create shelters for victims of domestic violence. Domestic violence was also criminalized and the concept of “voluntary consent to sex” was introduced to qualify crimes related to sexual freedom and integrity.

At the same time, domestic violence is investigated only at the victim’s request; when considering cases related to domestic violence, judges, the police and lawyers give priority to the right to protect the offender’s property as compared to the victim’s right to safety, life and health. One of the causes of such situations is that to this day domestic violence is considered a private matter. According to the UN Population Fund and the Geneva Center for Democratic Control of the Armed Forces, 38% of judges and 39% of prosecutors in Ukraine consider domestic violence a “private matter”; 59% of law enforcement officers consider most reports of domestic violence to be false; and up to 84% of police officers prioritize reconciliation, but not punishment; up to 62% of law enforcement officers believe that many rape victims provoke this offence themselves. The research also shows that 10% of prosecutors, 11% of judges and 12% of police officers share this opinion.

According to the National Police, 141 814 reports of domestic violence were registered in 2019. 1 881 reports came from children accounting for 1.33% of the total number of reports. As regards adults, women filed reports in 79.97% of cases (113 403 reports); as regards children, girls reported domestic violence in 61.30% of cases (1 153 reports from girls).

As compared to 2019, in 2020 the number of domestic violence reports increased by 32% and amounted to 208 748, including 1.64% reports coming from children. As regards adults, women filed reports in 87.19% of cases (182 008 statements); as regards children, girls reported domestic violence in 58.61% of cases (2 012 reports from girls).

At the same time, it should be noted that in 2019, only 759 out of 1 563 criminal offences under Article 126-1 of the Criminal Code of Ukraine were brought to court accounting for 48.56%, and in 2020, 1 823 out of 3 037 criminal offences were brought to court accounting for 60.03% of the registered criminal offences under Article 126-1 of the Criminal Code of Ukraine “Domestic violence”.

Therefore, the very fact of the authorities’ intervention in cases related to domestic violence, without really assessing the situation (in particular, the risks of domestic violence in the future) by bringing the perpetrators to justice and ensuring a “fair balance of the interests of the parties”, cannot be considered a proper way of fulfillment of the state’s positive obligations.

WHAT IS THE “LEVCHUK VERSUS UKRAINE” CASE ABOUT?

The case concerns a violation of the plaintiff’s right to have respect for her private life (Article 8 of the ECHR), since in 2016 – 2018 the national courts dismissed her demand for the eviction of her ex-husband from home without conducting a comprehensive analysis of the plaintiff’s situation, in particular domestic violence committed by her ex-husband. As a consequence, due to the fact that the plaintiff’s ex-husband was not evicted from home, she and her children were repeatedly exposed to the risks of psychological and sexual violence. As the proceedings in the national courts lasted for a long time, the ECHR concluded that Ukraine failed to ensure the plaintiff’s effective protection against domestic violence as the plaintiff and her children continued to be exposed to further violence (§ 90).

WHAT RECOMMENDATIONS SHOULD BE TAKEN INTO ACCOUNT ACCORDING TO THE OUTCOME OF THE ECHR RESOLUTION ON “LEVCHUK VERSUS UKRAINE”?
  • Eviction of the offender from home should be considered as one of the ways to protect the rights of the victim of domestic violence, and not another property dispute. 

The use of property and the victim’s safety in case of this property being owned jointly with the offender is an extremely complex issue. Sometimes victims of domestic violence do not seek protection from the police because they are aware that the offender owns the home. In addition, there is concern among judges, police officers and lawyers about where the offender will go if he is evicted out of his home. This question is often asked by representatives of law enforcement agencies to victims of domestic violence.

Furthermore, Ukraine’s legislation provides no effective mechanisms for protecting the victim’s property rights or the right to a safe life and health in the event that the perpetrator is a co-owner of the home or lives in it. For example, Article 116 of the Housing Code of Ukraine stipulates that a person may be evicted from home that does not belong to him/her if he/she “systematically violates the rules of socialist coexistence.” Due to the obsolescence of the norms of the Housing Code, as well as the ambiguity of judicial practice when it comes to the interpretation of “systematic violation of the rules of coexistence”, victims are denied the protection of their rights in this way.

In addition, in case of disputes about termination of the right to use property under Article 365 of the Civil Code of Ukraine, a factor such as violence is not a reason for termination of the right of ownership.

Due to a lack of legal certainty and legislative clarity, a lack of proper response of law enforcement agencies to cases of domestic violence, it is difficult to prove in court that domestic violence is systematic, which, in fact, makes it impossible to apply Article 116 of the Housing Code of Ukraine regarding the possibility of evicting the offender from home.

As stated in the resolution on “Levchuk versus Ukraine”, in cases of domestic violence the rights of the perpetrators may not prevail over the rights of the victims, in particular, the latter’s rights to physical and psychological integrity, and, therefore, the perpetrator eviction from home should be considered by the court system and legislation as a proper way to protect the victims against domestic violence.

  • The need to ensure the effective work of law enforcement agencies and social services in terms of proper response to cases of domestic violence, in particular qualification of acts as domestic violence and prosecution of offenders.

Based on the circumstances of the “Levchuk versus Ukraine” case, it was established that, despite the plaintiff’s repeated claims submitted with the authorities, the police, and social services, her claims remained not responded to, or the authorities limited themselves to oral warnings to and preventive conversations with the offender. At the same time, law enforcement agencies explained their non-interference by the fact that the parties had already reconciled, emphasizing the private nature of such cases.

As cases related to violence against women and domestic violence are perceived as private ones and are defined as private cases by criminal procedure legislation, they can be handled and brought to court only at the victim’s request. As a result of this approach, in practice, we have a significant number of cases that are dismissed because the victim, being psychologically pressurized by the offender, withdraws claims from the police and refuses to pursue prosecution. And the offenders avoid liability. Therefore, it is necessary to change an approach to this category of cases, namely to make sure that:

  1. Domestic violence cases are not private prosecution cases and should be responded to even in the absence of the victim’s claims and complaints.
  2. Reasonable deadlines for considering cases and not prolonging such consideration unreasonably.
  3. Cancellation of the deadlines for prosecution for crimes related to domestic violence.
  4. Introduction of the concept of “crimes related to domestic violence” in criminal legislation and proper identification of these crimes in other criminal cases, not only under Article 126 of the Criminal Code of Ukraine.

  • Proper work of courts to prevent domestic violence

Court practice in denying eviction because systematic acts constituting the crime may not be proved (in particular, court decisions to impose administrative liability or court verdicts by which the offender is found guilty) is an obstacle to access to justice for victims of domestic violence. The Supreme Court should generalize judicial practice in cases regarding the issuance of restraining orders and other cases related to domestic violence, in particular in terms of properly analyzing and assessing the situation as a whole, including the risk of future violence. In the “Levchuk versus Ukraine” case, the Ukrainian courts, in fact, find that the facts of violence against the victim and the risks of such violence in the future in case of cohabitation constitute no grounds for eviction from home.

  • Identification of witness children as children being victims of domestic violence

In the “Levchuk versus Ukraine” case, the children were not identified by the national authorities as victims of domestic violence. In 2018, the legislation of Ukraine began to stipulate that children being witnesses to domestic violence must be recognized as victims of domestic violence, and, therefore, they must receive all the services and appropriate legal aid and effective protection.

The statistics of law enforcement agencies and the Ministry of Social Policy of Ukraine regarding the number of children affected by domestic violence differ significantly. Witness children are not identified by police officers, and if they are identified, the information is not forwarded to the Children’s Service. As a result, the interests of children are not taken into account in cases of eviction from home and prosecution for domestic violence.

Despite the formally prescribed mechanism for identifying witness children, who have suffered from domestic violence, as victims, this mechanism does not work in practice due to the lack of proper coordination of work between the authorities.

CONCLUSIONS

As we can see, the ECHR resolution in the “Levchuk versus Ukraine” case is significant because for the first time the state of Ukraine was recognized liable for improper response to cases of domestic violence. At the same time, this resolution gives rise to a number of proposals that should be taken into account to improve the protection mechanism for victims of domestic violence:

1. Ensuring fulfillment of obligations regarding proper response of the law enforcement system to cases of domestic violence, namely:

  • stop considering crimes related to domestic violence as private prosecution cases
  • introducing a concept of “crimes related to domestic violence” in criminal legislation and ensuring proper identification of these crimes in other criminal cases, not only under Article 126 of the Criminal Code of Ukraine
  • including topics related to pre-trial investigations of crimes related to domestic violence in the training programs of judges, lawyers and law enforcement officers, with an emphasis on the protection and restoration of the rights of victims

2. Ensuring compliance with the principle of legal certainty when handling civil cases related to domestic violence, in particular as regards eviction from home, termination of the right to use property, issuance of a restraining order, etc.

3. Generalizing systematically court practices in civil and criminal cases related to domestic violence. 

4. Introducing a mechanism for interaction of the authorities in prevention and counteraction of domestic violence, in particular when it comes to identifying children affected by domestic violence and providing them with assistance.

Prepared by Analytical Center JurFem