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* LEGISLATIVE CHANGES AFTER 2002


* TRENDS IN CRIMINAL PROSECUSION OF VIOLENCE


LEGISLATIVE CHANGES IN SLOVAKIA AFTER 2002


The Constitution of the Slovak Republic, Article 12, paragraph 1 states that all people have the right for liberty and are equal in their rights and dignity. According to paragraph 2 of the above article the basic rights and liberties are granted in the territory of the Slovak Republic to all people regardless their sex, race, ethnicity, language, religion, political and other views, nationality or social class, possessions, gender or other status. It is not allowed to harm, disadvantage or advantage a person for these reasons. This article of the Constitution is the base of provisions of other legal regulations that protect women -- victims of violence and meets the obligation of the state to grant the basic rights and liberties to all people.

In 2002 there were significant changes to the Slovak Penal Court Rule in relation to the rights of women -- victims of violence against women. As a result of a joint effort of NGOs advocating for the protection of rights of victims of violence against women, a lot of changes to the Slovak Penal Code, the Criminal Court Rule, the Civil Code and the Civil Court Rule.

The Penal Code


In the amended Penal Code, which came to force on September 1st 2002, the provision of Section 89, which defines terminology used in the Code, has been significantly changed. Since September 1st 2002 the term "closely related person" has been re-defined for the purposes of criminal acts mostly committed against women as follows: for Section 359 -- "violence against an individual and a group of people", Section 208 -- "violence against closely related persons or dependent persons", Section 189 -- "blackmail", Section 199 -- "rape", Section 200 -- "sexual violence" and Section 201 -- "child sexual abuse", a close person includes also ex-spouse, ex-partner, a parent of a couple's child and a person who is a closely related person to the above listed persons, as well as persons who shared or have shared residence with the perpetrator. Such a change has enabled to define violence against closely related persons as a criminal act according to Section 208 also in cases of criminal acts committed against an ex-wife, her children from her previous relationship/marriage, as well as against an ex-partner. This change gave a legal expression to the fact that in Slovakia, after a divorce or a break-up, ex-spouse or ex-partners often remain living in the same household and that a violent act committed under such circumstances is of the same nature as a violent act committed before the divorce or break-up of the relationship. At the same time, violent acts committed against ex-spouses and ex-partners have been included into category of more serious criminal acts, the same as it is in cases of violent acts against a spouse or a partner.

Another significant change to the Penal Code is the introduction of the barring order. The court can issue the barring order as a part of the sentence, in case the perpetrator is sentenced, or as a part of a discharge on probation.

In Section 359 -- "a violent act against an individual or a group of people" -- the change is that if a perpetrator commits such crime against a person, who is his/her closely related person or a dependent person, he/she will be punished more severely.

Provisions of Section 208 -- "violence against closely related persons or dependent persons" - have been defined anew. Previously, the provisions caused interpretation problems as it used words such as "repeated beating, unjustified deprivations and punishment, inadequate evoking of fear or stress". The new provisions of Section 208 are defined so that any repeated violence of any kind causing physical or psychological suffering of a person can be easily recognized as such criminal act. Words such as "unjustified, inadequate, etc." have been omitted from the new definition and a number of particular ways this crime can be committed in have been listed instead.

Section 189 -- blackmail -- has been amended so that the perpetrators who commit this crime against closely related persons are punished more severely. The same amendments have been introduced also to Section 199 (rape), Section 200 (sexual violence) and Section 201 (sexual abuse) of the Penal Code.

The Penal Court Rule


The Penal Court Rule has been changed particularly in relation to persons under fifteen years of age if they need to undergo a police or court hearing in cases of criminal acts against closely related or dependent persons and if there is a danger that a repeated testimony of a person under fifteen years of age could have negative impact on his/her psychological or moral development. In such cases the testimony is recorded with a camera recorder and a repeated testimony is virtually impossible. However, the reality is often different and a person under fifteen years of age is frequently repeatedly exposed to hearings in the preparatory procedures, as well as during the criminal proceedings even for four times and has no legal tools to refuse to testify, or to refer back to his/her previous testimony.

Another change to the Penal Court Rule is the possibility to appoint an NGO dealing with family rights protection as an under-tutor in cases of criminal acts against persons under fifteen. According to the current provisions of various areas of family and criminal law, parents cannot act on behalf of a child if there is a threat of collision of their interests. So, in cases when wives, ex-wives, partners, ex-partners and/or children of perpetrators were the victims of criminal acts, a mother cannot act on behalf of her child in the criminal proceedings. The usual practice was to appoint a state body for social and legal protection of children and youth as an under-tutor. Nevertheless, the state body frequently acted only formally.

A further change is that the injured party cannot withdraw his/her consent with criminal proceedings against the perpetrator or withdraw a criminal report. This change came to force on October 1st 2002 while before that, it was possible not to grant consent with criminal proceedings against the perpetrator if a criminal act was committed against a closely related person. The person authorized to grant or not his/her consent to begin criminal proceedings against perpetrator was the injured party. The perpetrator often made efforts to make the injured party withdraw the consent, which resulted in further violence against the injured party until the decision of the Appeal Court was issued.

The Civil Code

 
The amended Civil Code came to force on January 1st 2003. The newly introduced provisions enable to restrict one of the spouses' right of use of his/her estate if, as a result of psychological or physical violence against one of the spouses or a closely related person, a further common use of the household has become unbearable. Even though the new definition of a closely related person has not been included in the Civil Code, courts apply the definition included in the Penal Code when using the above provision. Restriction or exclusion of the right of use can be applied in case the estate is in separate or common ownership and in the case of an apartment, if the spouses or ex-spouses are the common lessees of the apartment. The amended provision of the Civil Code also clearly states that in cases of physical or psychological violence, the spouse who committed such violence does not have the right to demand a substitute residence from the injured party.

The Civil Court Rule

 
The amended Civil Court Rule came to force on January 1st 2003. The most significant change introduced is the provisional remedy. Even though the legal system enabled to issue an order restricting the perpetrator's right of use of his/her residence, the courts did not use this provision until the new amendment came to force. Since January 2003 Section 76 enables the court to issue a provisional remedy barring the person suspected of violence against closely related persons to enter the residence of a person who he/she has committed violence against. This provision also defines the period in which the provisional remedy is to be issued -- seven days from the day of filling the bill. At the same time the period of time, in which the files on such bills have to be submitted to the Appeal Court and the period the Appeal Court is obliged to issue its decision, have been defined.

The court decision on provisional remedy is actable regardless of the fact if one of the parties has appealed against it or not. In the course of 2003 and 2004 the practice was generally such that not respecting a provisional remedy is considered a criminal act of obstruction of the execution of an official order.

It is important to say that not only after the above significant amendments to the Penal Code, the Civil Code, the Penal Court Rule and the Civil Court Rule, but also before 2002, legal regulations, which have had a considerable significance for women -- victims of violence and also for prevention of violence against were passed.

The Labor Code


One of the legal regulations reflecting situation of women is also the Labor Code passed in 2001. Section 41 of the Labor Code responds to the generally known situation of women with small children who were constantly disadvantaged when applying for a job. The Section states that the employer has no right to require from the applicant information inter alia on pregnancy and family matters. Shall the employer demand such information; the applicant has the right for financial compensation.

Section 13 of the Labor Code was later amended by The Equal Treatment Act (Antidiscrimination Act), which says that the employer is obliged to treat the employees according to the equal treatment principles. This amendment also bans discrimination based on marital status and family status and provides legal measures on protection against violation of equal treatment principles.

The Equal Treatment Act


On 20th May 2004 The Equal Treatment Act (Antidiscrimination Act) preventing discrimination and defining equal treatment in various areas was passed. This act is an amendment to the equal treatment principles' application and also defines legal protection measures if the equal treatment principles are violated. The equal treatment is based on the ban of discrimination for any reason in a person's execution of his/her rights and duties, as well as in passing measures protecting against discrimination. In this act, direct discrimination is defined as any conduct or failure to act resulting in treating a person less favorably than another person in a comparable situation has been or would be treated. Indirect discrimination is defined as seemingly neutral regulation, decision, order or practice disadvantaging a person in comparison to another person, while a procedure justified by the fact that it follows a rightful interest and is necessary for meeting the interest is not considered discrimination.

The act also defines harassment -- it is such a conduct, which a person can consider unpleasant, inadequate or offensive and its intention or result is reduced dignity of a person, or creation of a hostile, humiliating or threatening surrounding. The act also states the obligation to respect the equal treatment principles in various areas of life and also defines mechanisms for reaching equal treatment and for protection against discrimination. The equal treatment principle was introduced also to other legal regulations, particularly regarding labor -- legal relations.

The Alimony Compensation Act

 
One of the most common forms of violence against women in Slovakia is economic violence enhanced by the fact that ex-husbands/partners who are fathers avoid or do not pay alimony on children in custody of mothers. Since January 1st 2005 The Alimony Compensation Act has been in force. This act states the conditions under which the state will provide alimony compensation in cases a person obliged to pay alimony does not do so in three consecutive months.

TRENDS IN CRIMINAL PROSECUTION OF VIOLENCE AGAINST A CLOSELY RELATED OR DEPENDENT PERSON

The current change of the Criminal Code, in relation to provisions of Section 208 on violence against a closely related or dependent person, of 1st September 2002 was triggered by the fact that it was apparent from the practice of the criminal prosecution bodies, when investigating such criminal cases, that they were particularly focusing on investigating if violence against victims was groundless and excessive. These facts were often interpreted in favor of the perpetrators and caused interpretation problems as to what could be regarded as beating. Also this was frequently interpreted in favor of the perpetrators since physical attacks that could be regarded as beating had to be of certain intensity.

Provisions of Section 208 of the Criminal Code have been changed since 1st September 2002 as follows (the original provisions are given in brackets in italics):

According to provisions of paragraph 1 of Section 208 a person who commits violence against a closely related or a dependent person causing them physical or psychological suffering especially by:

a) beating, kicking, punching, causing injuries and burns of different kind, humiliating, disdain, ongoing stalking, threatening, inducing fear or stress, violent isolation, emotional blackmail or other kind of behavior threatening their physical or psychological health, or their safety,
(repeated beating, unjustified locking up, excessive evocation of fear or stress, or by other forms of disproportioned or unreasonable punishing)

b) unjustified deprivation of food, rest or sleep, or deprivation of essential personal care, clothing, hygiene, health care, shelter or education


(repeated and unjustified deprivation of food, essential clothing, essential hygiene, essential health care or shelter)

c) forcing beggary or activities demanding their excessive physical or psychological strain as to their age or health condition, or activities likely to cause damage to health,
(forcing beggary or repeated activities causing their disproportioned physical strain considering their age, health condition or physical and psychological maturity, or forcing other activities damaging health of people)

d) exposure to substances likely to damage health

 
(repeated or disproportioned exposure to substances damaging people's health)

e) unreasonable restriction of access to the possessions they are entitled to use,
(part "e" was not included in the Criminal Code until 31st August 2002)

Shall be sentenced to imprisonment for two to eight years or punished by injunction of his/her activities.
(Shall be sentenced to imprisonment for one to five years or punished by injunction of his/her activities)

According to paragraph 2 of the above quoted provisions -- the perpetrator shall be sentenced to imprisonment for three to ten years if he/she

a) by committing the crime in paragraph 1, violates a separate duty arising from his/her occupation, job, status or position, or a duty he/she has undertaken to perform,
b) commits this crime although he/she has been sentenced for it in the last two years or has been released from imprisonment for such crime,


c) commits this crime against several persons, or


d) continues to commit this crime for a longer time.

According to paragraph 3 of the above provisions -- the perpetrator shall be sentenced to imprisonment for five to twelve years if he/she

a) commits the crime in paragraph 1 in a particularly cruel way or,
b) by committing this crime, causes a serious bodily harm.

According to paragraph 4 of the above provisions -- the perpetrator shall be sentenced to imprisonment for ten to fifteen years if he/she, by committing the crime in paragraph 1, causes a serious bodily harm of several persons or death.

According to paragraph 5 of the above provisions -- the perpetrator shall be sentenced to imprisonment for twelve to fifteen years or to special imprisonment time if he/she, by committing the crime in paragraph 1, intentionally causes death.

We expected this amendment to more significantly protect the victims of abuse -- particularly as to the victims being often suspected to have given reasons for violent behavior against them and as to violence being often excused on the basis of the victims' "hypersensitiveness". However, these expectations have not been met; moreover, there have been court verdicts in cases of violence against a closely related or dependent person as defined in Section 208 of the Criminal Code showing that the above legal provisions are being interpreted in opposition to the very body of violence against a closely related or dependent person. In spite of the unambiguous text of the above quoted legal provisions, a personal view of the individuals acting on behalf of the criminal prosecution bodies is clearly present in their procedures. This personal view reflects the still prevailing public opinion that domestic violence, violence in families and violence against women and children is an overestimated issue. The trend that violent acts are only those of brutal physical attacks is clearly present, as well as the fact that other forms of violence are being overlooked and often only physical violence is actually considered violence. All this is present at the very first stage of criminal procedure that is the police investigation of such cases. Although the victim describes ways of psychological violence, they are often not considered sufficient to press the charges against the perpetrator.


At this stage of the criminal prosecution, professionals in the field of psychology have a very important role. The proof that the perpetrator's acts can be qualified as a crime according to Section 208 of the Criminal Code depends on the fact if his/her doings have caused physical or psychological suffering of the victim. This is an indelible part of the very body of the above criminal act. In the criminal prosecution, an expert opinion of a professional in the field of psychology should prove if the victim has or has not physically or psychologically suffered due to the perpetrator's behavior. The experts in the field of psychology are registered with the Ministry of Justice of the Slovak Republic. A criminal procedure body can appoint any of these registered experts to investigate if the victim has experienced physical or psychological suffering. The criminal prosecution body does not ask, since there is no way they could ask, if the appointed expert specializes in psychological symptoms of abuse, if he/she specializes in working with victims of domestic violence or if he/she continues to expand their professional knowledge. It is virtually impossible to object in the course of the criminal prosecution that the appointed expert is not competent since he/she does not particularly focus on violence against closely related or dependent persons. Therefore the result of the psychological expertise is frequently influenced by the fact if the appointed expert does or does not specialize in this particular area. As a result, the psychological surveying often concludes that the victim does not show any signs of psychological abuse. In such cases, the criminal prosecution is stopped without obtaining any further proofs. The only way for the victim to change that is to provide another expert opinion carried out on the victim's own request. The victim has to cover the costs of the expert opinion, which is currently at 6.000,-Sk to 10.000,-Sk (from 150 EUR to 250 EUR). Most victims, however, cannot afford to pay this sum. Even if the expert opinion proves that the victim shows signs of abuse, it is not a guarantee that the perpetrator will be sentenced at all or that the sentence will be in compliance with the Criminal Code.

One of the cases, in which the court ignored the psychological expert opinion stating unambiguously that the victim and her dependent children showed signs of abuse caused by the behavior of her husband and the father of their children, was the verdict of the District Court Kosice I dismissing the charges against the perpetrator. The court's verdict stated that the perpetrator's behavior was merely strict and authoritative and not violent, with respect to the above legal provisions, even though the victim and both children clearly described the perpetrator's violent behavior in the whole course of the criminal prosecution: his verbal humiliation; use of vulgar language when addressing them; the fact that the children could only eat with the perpetrator's consent and only the amount of food he gave them; his beating one of the children with a belt, hitting him frequently on the head and back, which was proved by a medical report; the second child's extreme fear resulting in uncontrolled urinating; and despite the fact that the appointed expert in the field of psychology testified that even after one year the perpetrator had not lived with them the victim and both children still showed symptoms of abuse.

The above case has not been closed yet, however, it very accurately illustrates the attitude of people deciding in criminal cases of violence against closely related or dependent persons -- it illustrates an undeniable effort to pardon violence against a partner/wife and children.

Another absurd example of the court verdicts in a situation that makes it impossible not to conclude that the perpetrator abused his wife and the children (both a wife's child from previous marriage and their child) and that he abused several persons for a longer time is the following case of the District Court in Humenne. Normally, in a case like that the sentence is imprisonment for three to ten years without the possibility to postpone it for a probationary period. The court accepted the argumentation and proofs of the prosecutor, it considered it proved that the perpetrator had abused his wife and the children for a longer time, nevertheless the verdict said that in order to qualify violence in this case as committed against several persons and for a longer period of time there was one detail defined in the Criminal Code missing -- significantly higher degree of socially dangerous crime. The District Court's verdict literally concluded that:

"In the District Court's opinion on this case; the perpetrator's intentions, the circumstances under which the crime was committed and the way it was committed in, but particularly the fact that the perpetrator acted out of ignorance and in the effort or out of belief that his actions were right and just since he was contributing all his income to the household sending it to his wife's bank account; all this significantly lowers the degree of socially dangerous act."

Based on this argumentation, the court then sentenced the perpetrator to imprisonment for committing the crime under paragraph 1 of Section 208 of the Criminal Code for two years, which means the shortest time law allows for such crime and the sentence was postponed for probationary period of 4 years. The District Prosecutor did not appeal against this verdict. Based on the appeal of the injured party the Attorney General filed a complaint with the Supreme Court of the Slovak Republic on violation of law.

Another example of the above mentioned court approach is a case of the District Court in Presov. The criminal evidence unquestionably proved that the perpetrator committed the crime under Section 208, paragraph 2 of the Criminal Code, which means he should have been sentenced to imprisonment for three to eight years. The court found the perpetrator guilty; however it used a separate provision of the Criminal Court allowing exceptional reduction of sentence in order to decide on suspension of sentence. The separate provision states that it is possible to reduce sentence if the court, considering the circumstances of the particular case, finds the sentence defined for a particular crime inappropriately strict for the perpetrator. In this case, the court took into consideration the fact that the perpetrator did not contact his wife after she had escaped their home and did not continue to abuse her or their children. The District Prosecutor did not appeal against the verdict.

The above given cases undoubtedly show a trend towards judging the cases of domestic violence is becoming more benevolent than the contents and meaning of the Criminal Code provisions allow. The above described work of the criminal prosecution authorities makes a lot of victims of violence believe that despite filing the report against the perpetrator, he/she will not be made to take the responsibility for his/her actions. From this point of view, the situation of victims of domestic violence does not seem better than it was before the Criminal Code amendment in 2002. All facts mentioned above seem to prove just the opposite.

Author: JUDr. Iveta Rajtáková

 

 

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