Ukraine after the ratification of the Istanbul Convention: what legislative changes are needed in the future? - Jurfem

Ukraine after the ratification of the Istanbul Convention: what legislative changes are needed in the future?

Was the ratification needed? 

During the last 10 years, many different discussions have arisen in Ukraine around The Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter – the Istanbul Convention), ranging from the questions “should this document really be a part of Ukrainian national legislation?” to a gradual proposal of changes to our legislation. Even before the ratification of the Istanbul Convention, a significant part of its norms related to responsibility for domestic violence had been implemented, but there were gaps in the part concerning responsibility for sexual violence, as well as imperfect mechanisms of prosecution for violence against women and domestic violence. Yet, the latter is extremely latent in its nature but, at the same time, prevails significantly in the social life of Ukrainians. 

For example, the number of police calls about domestic violence is increasing every year. According to the National Police, there were 142,000 reports of domestic violence in 2019, and 208,748 reports in 2020, which is by 47% more than in the previous year. In 2021 the number of such appeals amounted to almost 326 thousand statements

And these are only the cases we are aware of when the victim asked the state to “intervene”. We can only guess how many cases remain unreported. The problem is that sometimes people may not even realize they are subjected to domestic violence. In this case, without outside help, there is a risk of staying forever in a relationship that encroaches on your basic needs and security.

Reasons and explanations for this can be found in many factors, such as stereotypes concerning the role of women in society or the long-term absence of criminal responsibility, for example, for committing domestic violence. Let me remind you that criminal responsibility for domestic violence appeared in the Criminal Code of Ukraine only in December 2017. 

Certain types of violence against women, such as sexist statements, sexual harassment, violence in the digital sphere are still not prosecuted in Ukraine. 

Even if there is liability for certain types of violence against women, the issues of detecting such an offense or distinguishing between such types of criminal offenses as rape, sexual violence, sexual coercion, etc. remain

All these considerations allow us to raise questions — is ratifying the Istanbul Convention enough for the state to really protect victims of violence, and for society to react sharply to every such case? Will we, Ukrainians, have the courage to finally say “no” to sexist jokes in the workplace, judging a person based on their appearance, the scepticism and victim blaming when we learn about another case of sexual violence? 

The answers to these questions largely depends on defining future state policy and covering the topics related to violence against women and domestic violence in the public space. Improving the mechanism of bringing the guilty to justice is just as important. 

This can be done both by providing for relevant provisions in the legislation and by improving the law enforcement authorities’ performance in detecting and investigating such violations. At the same time, it can’t be done without a strong educational component, which should embrace training on the specifics of the investigation, including the collection of evidence and risk assessment as well as the consideration of cases related to the perpetration of violence against women and domestic violence. The issues of national and international legislation in the field of gender equality and non-discrimination as well as practices of the European Court of Human Rights (ECHR) must be also included in the programs. 

The Istanbul Convention, which was ratified by Ukraine on June 20, 2022, established a “framework” within which we must operate, bringing our approaches to detecting and responding to violence against women and domestic violence closer to the modern European standards set by this international document. 

It is ratified – so what’s next?  

It is obvious, that ratification of the Istanbul Convention is another signal that Ukraine is ready to take responsibility for the detection, investigation and prevention of crimes related to violence against women and domestic violence. Now the implementation of the provisions of the Istanbul Convention by Ukraine may be a subject of monitoring for the independent Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO).

At the same time, the adoption of the Law on Ratification is only an initial step, because in order to improve the protection of victims, one should consider, among other things, such issues as:

  • Establishing a ban on the use of conciliation procedures by courts in cases related to sexual and domestic violence, as well as ensuring the right of victims of domestic violence to file a lawsuit for divorce. Because, as of now, according to the general rule, it is impossible to dissolve a marriage during the pregnancy of the wife and within one year after the birth of the child (in this part, Draft Law No. 5492 dated 14.05.2021 on amendments to Articles 110 and 111 of the Family Code of Ukraine has already been developed and registered and YurFem participated in its developing).
  • Changing the approach to crimes related to domestic and sexual violence and prosecuting them even in the absence of complaints or statements from the victim. That is, they must be excluded from the list of private prosecution cases. Since, as of today, according to the Criminal Procedure Code of Ukraine, “domestic violence” belongs to the list of cases that can be initiated only at the request of the victim (private prosecution).

It should be added, that Ukraine has already taken certain steps in this direction. Thus, Article 284 of the Criminal Procedure Code of Ukraine provides that criminal proceedings are closed if the victim or their representative refused from initiating a criminal proceeding in the form of private prosecution, except for proceedings related to domestic violence crimes. 

Such legislative changes are generally in line with the provisions of Article 55 of the Istanbul Convention regarding “that the proceedings may continue even if the victim withdraws her statement or complaint” and could contribute to the protection of victims of domestic violence against threats to silence these cases.  However, this rule applies only to the criminal offence provided for in Article 126-1 of the Criminal Code of Ukraine – “Domestic violence”, but domestic violence can also be qualified under other articles of the Criminal Code of Ukraine.  

In this aspect, the Istanbul Convention contains a recommendation for national authorities: when interpreting the concept of “crimes related to domestic violence”, it is advisable to apply a broad interpretation, and include not only the criminal offence provided for in Article 126-1 of the Criminal Code of Ukraine, but also other criminal offences if they are related to domestic violence. For example, Articles 125 and 126 of the Criminal Code of Ukraine. This approach should also be taken into account by the legislator.

  • Improving the procedure for receiving and considering statements and reports about domestic violence against children and with the participation of children.

The fact is that according to the provisions of the Istanbul Convention, for example, a child, who was present during the perpetration of domestic violence coming from one parent against the other, should automatically be recognized as a victim of domestic violence. However, according to the provisions of the national legislation of Ukraine, in order for a child to acquire the status of a victim, their legal representatives (for example, parents, guardians) must submit a corresponding statement about the commission of an offence.

  • Impossibility of exemption from liability in case of domestic violence and sexual violence.

Thus, in accordance with national legislation in the case of reconciliation of the victim with the offender, effective remorse of the offender, release on bail or a change in the situation criminal proceedings may be closed. This situation often occurs in practice. As a result, a person, even under the conditions of applying for help to the state, does not receive adequate protection, and the offender remains “unpunished”, which, in fact, can encourage further violence, because the person understands that no negative consequences will occur.

  • Providing for criminal liability for harassment of a person, including harassment through the Internet. It also requires the development of ways to detect such offences, as currently laws do not regulate Internet behaviour and issues related to the use of personal data.
  • Providing administrative or criminal liability for sexual harassment and providing the specific definition of “sexual harassment”.
The Istanbul Convention and sexual violence during the war of the Russian Federation against Ukraine

In addition, it should be emphasized that the Istanbul Convention covers, among other things, conflict-related sexual violence (hereinafter – CRSV), which is especially relevant for Ukraine today. Mass cases of CRSV committed by Russian servicemen against the civilian population on the territory of Ukraine require proper assessment by the state in the form of bringing the latter to criminal compliance.  

In this regard, to fulfill the goals of the Convention, the Art. 438 of the Criminal Code of Ukraine, which establishes responsibility for “Violation of the laws and customs of war”, requires changing. According to this article, criminal proceedings are initiated regarding the commission of CRSV. By the way, such changes are proposed by the Draft Law on Amendments to Certain Legislative Acts of Ukraine on the Implementation of International Criminal and Humanitarian Law No. 2689 dated 27.12.2019, which was adopted by the Verkhovna Rada of Ukraine, but has not been signed by the President of Ukraine yet. In this case, the interpretation of Article 438 of the Criminal Code of Ukraine would be clearer and would not create difficulties in the qualification of CRSV, and would cover rape, sexual exploitation, forced pregnancy, forced sterilization or any other forms of sexual violence as a type of such criminal offence.

Afterword

Finally, it should be added that without implementing gender-sensitive practices, understanding gender specifics by law enforcement officers when working with victims of violence and conducting work “to anticipate” such violence, the provisions of the Istanbul Convention implemented into national legislation will be ineffective,  That is why the provisions of the Istanbul Convention should be a reference point for people both in their professional activities and in everyday life, because the main goal of these social processes is the “eradication” of violence in all its manifestations.

The material was prepared with the financial support of the Council of Europe within the framework of the “Combatting Violence against Women in Ukraine (COVAW)” project. The views expressed in this document can in no way be taken to reflect the official position of the Council of Europe.