Women and Justice: Keywords

Article 3502 lists the persons who can apply to the court for a restraining order, which means a judicial measure that temporarily restricts rights or imposes obligations on a perpetrator of domestic violence and is aimed at ensuring the victim's safety. For example, the court may order a ban on staying in the common residence with the victim of domestic violence; prohibition to approach within a specified distance to the victim’s place of residence, study, work, or other frequently visited locations; prohibition to contact the victim. The following categories of persons are eligible to apply for a restraining order: (i) a person who has suffered from domestic violence, or their representative; (ii) a person who has suffered from gender-based violence, or their representative; (iii) parents and other legal representatives of a child who suffered from domestic violence or gender-based violence; (iv) a guardian representing the interests of an incapable person who has suffered from domestic violence or gender-based violence.

Стаття 3502 містить перелік осіб, які можуть звернутися до суду із заявою про видачу обмежувального припису, що означає встановлений у судовому порядку захід тимчасового обмеження прав чи покладення обов’язків на особу, яка вчинила домашнє насильство, спрямований на забезпечення безпеки постраждалої особи. Наприклад, суд може встановити заборону на перебування у спільному місці проживання з жертвою домашнього насильства; заборону наближатися на визначену відстань до місця проживання, навчання, роботи чи інших місць, які часто відвідує потерпілий; заборону контактувати з потерпілим. Право на подання заяви про видачу обмежувального припису мають наступні категорії осіб: (I) особа, яка постраждала від домашнього насильства, або її представник; (II) особа, яка постраждала від ґендерно зумовленого насильства, або її представник; (III) батьки та інші законні представники дитини, яка постраждала від домашнього або ґендерно зумовленого насильства; (IV) опікун, який представляє інтереси недієздатної особи, яка постраждала від домашнього або ґендерно зумовленого насильства.

Article 4 (A/1) requires education, health, and social service providers (whether private or public sector) to report known or reported cases of domestic violence to the Juvenile and Family Protection Department. The obligation to report such cases (regardless of the consent of the victim) is in part mitigated by Article 4 (B) which guarantees the protection of victims by forbidding disclosure of their identities unless required by judicial procedures. The Law goes on to grant the police rights in relation to actual or suspected cases of violence or abuse. Additionally, Article 6 (A) obligates the Family Protection Department to act on every report or request of assistance in relation to domestic violence promptly. Article 7 (B) prohibits the Family Protection Department from settling a felony case; instead, such cases shall be referred to the Public Prosecutor for further legal action. Articles 16 further entails multiple measures the court may take including a restraining order from approaching the victim or any of the family members or to provoke another person to do so.

تفرض الفقرة (أ) من المادة 4 على كل من مقدمي الخدمات الصحية أو التعليمية أو الاجتماعية في القطاعين العام والخاص التبليغ عن أي حالة عنف أسري واقعة على فاقد الأهلية أو ناقصها حال علمه أو إبلاغه بها، ونصت الفقرة (ب) من المادة 4 أنه لا يجوز الإفصاح عن هوية مقدمي البلاغ في قضايا العنف الأسري إلا إذا تطلبت الإجراءات غير ذلك. والفقرة (أ) من المادة (6) ألزمت إدارة حماية الأسرة بالاستجابة لكل شكوى أو إخبار أو طلب مساعدة أو حماية تتعلق بالعنف الأسري بالسرعة القصوى، كما ألزمت جميع الجهات حال تلقيها أي شكوى عن أي حالة عنف أسري تحويلها إلى إدارة حماية الأسرة لاتخاذ الإجراءات اللازمة بشأنها. يمتنع على إدارة حماية الأسرة إجراء التسوية في حال كان الفعل يشكل جناية وعليها في هذه الحالة إحالته إلى المدعي العام المختص لإجراء المقتضى القانوني وفقًا للفقرة (ب) من المادة 7. وأشارت المادة 16 إلى أنه للمحكمة المختصة أن تصدر حال قناعتها بضرورة حماية المتضرر وأي من أفراد الأسرة وبناء على طلب أي منهما وفي غياب أو حضور مرتكب العنف الأسري عدة إجرائات ومنها أمر حماية بعدم التعرض للمتضرر.

The law includes a set of preventative measures aimed at preventing domestic violence among others crimes and administrative offenses. Art. 1 defines domestic violence as the intentional actions of a physical, psychological, or sexual nature against a family member that violate his or her rights, freedoms, or legitimate interests causing physical and/or mental suffering. Art. 1 further defines family members to include relatives, dependents and other persons that live together in a common household. Art. 5 defines the “actors of prevention,” which include various State agencies and Non-Governmental Agencies. The “actors of prevention” must annually develop and approve comprehensive regional programs for crime prevention, including programs to prevent domestic violence in accordance with Art. 11. Art. 17 provides the basic preventative measures against domestic violence, including identification and elimination of causes of domestic violence, educational and informational work to prevent domestic violence, record-keeping of domestic violence instances, provision of temporary shelters to victims of domestic violence, among others. Finally, Art. 31 allows the issuance of a protective order against a person who has committed domestic violence. A protective order can compel the offender temporarily to leave the premises jointly occupied with the victim and prohibit disposition of joint property.

The law decrees that a judge shall determine, for a defined period of time, the inclusion of the woman in a situation of domestic and family violence in the registry of assistance programs of the federal, state and municipal government. (Article 9). Article 10-A sets guidelines on how the victim's assistance will be handled by the police authority and guarantees specialized police and forensic care to be provided by previously trained officers - preferably female. If there is a current or imminent risk to the life or physical integrity of a woman in a situation of domestic or family violence, or to her dependents, the aggressor must be immediately removed from the home, residence, or place where the victim lives with him/her (Article 12-C). The law prohibits the imposition of pecuniary sentences against the aggressor. (Article 17).

O juiz determinará, por prazo certo, a inclusão da mulher em situação de violência doméstica e familiar no cadastro de programas assistenciais do governo federal, estadual e municipal (Artigo 9º). O artigo 10-A estabelece os procedimentos que deverão ser seguidos pela autoridade policial quando do atendimento das mulheres vítimas de violência doméstica, dentre os quais a garantia de polícia e perícia especializada e treinad e atendimento realizado preferencialmente por mulheres. Na existência de risco atual ou iminente à vida ou à integridade física da mulher em situação de violência doméstica e familiar, ou de seus dependentes, o agressor será imediatamente afastado do lar, domicílio ou local de convivência com a ofendida (artigo 12-C). A LMP ainda proíbe a imposição exclusiva de pena pecuniária contra o agressor (artigo 17).

The Family Violence Protection Act aims to maximise safety for children and adults who have experienced family violence, and to prevent and reduce family violence to the greatest extent possible. It also aims to promote accountability for those who perpetrate family violence. The Act provides for police protection before court, family violence intervention orders (and their enforcement), and counselling orders.

Article 10 both prohibits domestic violence and states that “everyone has the right to protection form domestic violence in accordance with the law.” The definition of family members is wider than under the Criminal Code as it includes former spouses and “persons who have been or still are in a mutual emotional or sexual relation…although they have never lived in the same family household.” The Family Law Act also included new protection measures for those victims of domestic violence including the right to file a civil lawsuit for restraining orders and eviction powers. Family members, the public prosecution service, and social workers are also empowered by the Family Law Act to file for protective orders on behalf of the victims. Greater protections include the right to evict perpetrators from the family home and restraining orders. (External link redirects to automatic download. Unofficial English version available here.)

The Domestic Violence and Matrimonial Proceedings Act of 1976 allows women to obtain a court order against abusive husbands without the need for divorce or separation proceedings. In addition, women can obtain a court order to remove a co-inhabitant from matrimonial home, regardless of whether the co-inhabitant owns the home. Case law has extended this Act to cover joint tenancies outside of marriage. See Case Law Section below.

The Domestic and Cohabitation Relationships Violence Ordinance superseded the earlier Domestic Violence Ordinance. It extends protections beyond married couples to both opposite-sex and same-sex cohabitants. One type of relief it offers is an injunction from the District Court or the Court of First Instance, which restrains the offender from using violence against the applicant or excludes the offender from the shared home or from other specified area.

The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.

家庭暴力防治法（即「DVPA」）的制定是為了防範家庭暴力行為並保護被害者的利益。家庭暴力防治法定義了何謂家庭暴力侵犯和可能受牽連的家庭成員，規定各主管機關的職責，並對如民事保護令、刑事訴訟、任何涉及未成年人利益、被害者保護及協助，以及教育和預防措施等議題作出規定。違反家庭暴力防治法的行為將被處以罰金或有期徒刑。

The Domestic Violence Act (“DVA”), originally enacted in 1996 and amended in 2004, aims to provide protections for women and children domestic violence situations. It gives courts the power to grant protection and occupation orders. Applications for such orders can be brought by the victim or, in the case of a child, a parent, guardian, constable, or social worker can bring an application on the child’s behalf. The DVA sets forth the limitations imposed by protective orders, and it states courts can grant such an order if “it is satisfied that” the individual against whom the order is sought used or threatened to use violence, mental or physical, against the person seeking the order. Even without that showing, the court can grant a protective order if it finds the order necessary for the protection of the person “having regard to all circumstances.” The court can grant protection and occupation orders on an ex parte basis if the court deems it necessary. Punishment for violating an order is a fine not exceeding $10,000 or imprisonment for a maximum of six months, or both.

This statute provides for Protection From Abuse Orders (“PFA Orders”). These PFA Orders act as a safeguard to victims and their children from a family/household member who is abusing them. The Protection from Abuse Act also provides for absolute confidentiality between a victim and a domestic violence counselor/advocate to encourage open and honest dialogue.

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims. It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases. The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence. Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months. (Section 21)

An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding. Pursuant to the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor so police can intervene before further violence happens. The expanded definition of domestic violence will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty. A court can no longer order a survivor to attend reconciliatory counseling with the abuser, which could put the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation program. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy rather than just a specified part of the residence. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates. The amendments also create the Emergency Protection Order (EPO), which helps survivors get protection faster. EPOs are issued by social welfare officers who are easily accessible. Survivors no longer have to make a police report to get an EPO, which is valid for seven days.

The respondent had previously been sentenced to 16 months’ imprisonment after pleading guilty to six charges relating to sexually assaulting, stalking, and threatening to kill his ex-wife, as well as attempting to pervert the course of justice (saying that he would kill himself if the victim did not drop the charges against him), and violating a family-violence intervention order. The Director of Public Prosecutions appealed this sentence, arguing that it was “manifestly inadequate.” Upon consideration of the gravity of the offending conduct, its effect on the victim, and aggravating features such as the existence of the intervention order, the Court of Appeal reversed the sentence. The court found that the previous decision gave too much weight to mitigating factors, some of which should not have been taken into account at all, such as the judge’s finding that the respondent regarded “now at least the relationship as [being] over.” He was re-sentenced to two years and 11 months imprisonment with a non-parole period of two years.

The deceased victim D.K. met her partner A.J. in secondary school, formed a union with him, and gave birth to a daughter. D.K. subsequently filed a claim to dissolve the union and for child custody at the Municipal Court because of a deterioration in her relationship with A.J. She also took their daughter to live with her parents. Following continuous threats by A.J., D.K. submitted a request to the Municipal Court for an emergency protection order under the Law on Protection from Domestic Violence. The court did not act within the statutorily mandated 24 hours of the request, and A.J. shot and killed D.K. several weeks later. The Kosovo Judicial Council (“KLJ”, the body which administers the judiciary) disciplinary committee issued a decision to discipline the responsible Municipal Court judge in response to a request by the Office of the Disciplinary Counsel, but D.K.’s parents were not party to the disciplinary proceedings. D.K.’s parents submitted a referral to the Constitutional Court, alleging the Municipal Court by its inaction violated D.K.’s rights under the Constitution of Kosovo, including Article 25 (Right to Life), Article 32 (Right to Legal Remedies), and Article 54 (Judicial Protection of Rights), as well as under the European Convention on Human Rights (“ECHR”), including Article 2 (Right to Life) and Article 13 (Right to Effective Remedy). The Constitutional Court observed that ECHR caselaw stresses that it is the duty of state authorities to take appropriate steps to safeguard the lives of those within its jurisdiction. This includes a positive obligation on the authorities to take preventive measures to (i) protect one whose life is at risk from another, (ii) where the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual from a criminal offense, but (iii) failed to take measures which reasonably might have been expected to avoid the risk. The court found the Municipal Court ought to have known about the real risk in existence when D.K. requested the emergency protection order since she had explained the deterioration of her relationship with A.J., specifically his death threats and her reports to the police. Furthermore, the Municipal Court was handling D.K.’s case for the dissolution of union and child custody. Accordingly, the tribunal concluded that the Municipal Court was responsible for acting under the Law on Protection from Domestic Violence and that its inaction was a violation of Article 25 of the Constitution and Article 2 of the ECHR. The court also found that the Law on Protection from Domestic Violence and the statute governing the judiciary do not offer effective legal remedies for the protection of the applicants’ rights, because the former does not contain measures for addressing court inaction, and the latter does not allow the applicants to participate in any disciplinary investigation or procedure. Thus, the inaction of the Municipal Court and the KJC’s practice of not addressing judicial inaction violated the deceased’s and applicants’ right under Articles 32 and 54 of the Constitution and Article 13 of the ECHR. (Also available in Srpski and English.)

The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.

La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.

The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend. The two ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media. In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff was currently living. The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone. The defendant began repeatedly calling and leaving voice messages for the plaintiff. Within a one-week period, he called her 40 times. On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore. The defendant also attempted to contact the plaintiff at her work. Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.” The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm. The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’” The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”

A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.

Father and Mother were divorced in 2003 and were granted joint custody of their son, Z. In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note. After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother. The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage. Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence. The court determined that Mother’s account was more convincing, and thus rejected Father’s argument. Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift. As a result, he could not perform security work in off-duty hours. The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work. Finally, Father argued that the protective order would diminish his right to participate decision-making about Z. The court found the argument unconvincing because father was free to reach Mother via e-mail or phone. Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.