Proceedings of the 1st regional seminar on
Legal Measures to Combat Violence against Women, including Domestic Violence, The Hague, 21-22 February 2007
Background to the seminar
During the Third Summit of the Council of Europe in May 2005, the Heads of State and Government of the Council of Europe reaffirmed their commitment to eradicating violence against women, including domestic violence. In adopting an Action Plan envisaging the launch of a Campaign to Combat Violence against Women, including Domestic Violence, and the institution of a Task Force on the same topic, they defined future activities by the Council of Europe in this field.
The Task Force, consisting of a group of eight international experts in the field of preventing and combating violence against women, developed the Blueprint for the Campaign. This document serves as a roadmap for the implementation of the Campaign and was approved by the Committee of Ministers of the Council of Europe. It contains a definition of violence against women, as well as aims, objectives, messages and activities to implement the Campaign.
Following the approval of the Campaign Blueprint by the Committee of Ministers, the Campaign was launched at a high-level conference on 27 November 2006 in Madrid. The Campaign incorporates three closely linked dimensions: governmental, parliamentary and local/regional. It is carried out by the Council of Europe as well as its member states, in partnership with international intergovernmental organisations and NGOs involved in the protection of women against violence.
The Campaign will end with a closing conference to be held in June 2008. On this occasion, the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence, will present its conclusions and assessment of measures and actions taken at national level to combat violence against women, including domestic violence as well as its recommendations to the Council of Europe for future action in this field.
The intergovernmental Campaign activities carried out by the Council of Europe include five regional/multi-lateral seminars - in co-operation with the requesting member state - devoted to one of the Campaign objectives as laid out in the Campaign Blueprint.
The Regional Seminar on Legal Measures to Combat Violence against Women, including Domestic Violence, was the first such seminar. It was held on 21-22 February 2007 in The Hague, the Netherlands.
Around 40 government and NGO representatives from Austria, Belgium, France, Germany, Ireland, Netherlands, Spain and the United Kingdom gathered in The Hague for two days to share information on and discuss different legal measures designed to curb violence against women, including domestic violence.
Keynote speeches and presentations of national experiences centred around topics such as protection and non-molestation orders, specialised courts on domestic violence and aggravating circumstances in criminalising domestic violence. In addition, a large part of the seminar was devoted to ways and means by which to guarantee adequate implementation of legal measures.
Protection and non-molestation orders
Several participating member states have introduced protection, barring and/or non-molestation orders; others are following suit. Protecting victims by legally prohibiting the perpetrator from approaching the victim on the street or in the common home is at the core of such legal measures. However, the seminar has shown that the existing models differ quite significantly in many important areas. In some member states, provisional barring or restraining orders are issued ex officio, while the legal system of others require the victim’s consent. In some member states, the power to issue such orders lies partially with the police, while in others it is a combination of both police and court powers. Temporary and longer-term barring and non-molestation orders vary in their duration.
The scope of application also differs significantly among participating member states, ranging from applicability to all cohabitating couples to those lawfully married or those residing together for the last six out of nine months only. Finally, not all member states envisage mandatory counselling by intervention centres or women’s refuges after a barring or protection order has been issued.
Discussion therefore centred on these variations. Rooted in the particularities of different legal systems, participants considered such strong differences a drawback to the protection of women. It emerged from the discussion that current gaps in the scope of application should be closed and questions of jurisdiction and duration of barring or restraining orders should be harmonised to ensure standardised protection of women throughout Council of Europe member states.
In addition, most participants highlighted the need to embed protection orders as a purely legal measure in a system of well co-ordinated individual assistance to both victim and perpetrator. Any law addressing a subject as sensitive as this needs to be accompanied by systematic communication with both sides. Victims need counselling to better understand the procedure in force, receive information on their options and grow strong enough to re-build their lives. Representatives of women’s refuges stressed the importance of counselling to make clear that a barring order is not a punitive measure by the state against the family. Only if victims are aware that this is a safety measure for their benefit will the ground be laid for successful prosecution.
Similarly, to help them move away from violent behaviour, the need to assist and counsel perpetrators was emphasised. While it was agreed that the Council of Europe Recommendation (2002)5 by the Committee of Ministers to member states on the protection of women against violence includes valuable recommendations on perpetrator programmes, the importance of evaluating, improving and enlarging such programmes became apparent1.
The need to link legal measures with support services for both victims and perpetrators thus crystallised as a core component for improvement.
Nature of relationship between victim and perpetrator as an aggravating circumstance in criminalising domestic violence
Some of the participating member states have introduced a legal basis in criminal law to increase court sentences if violent acts have been committed against a former or current partner as opposed to a stranger. The underlying idea is to reflect in law the serious nature of violent acts against a partner and to signal that this is a serious public matter, not a private one. Others have issued sentencing guidelines to public prosecutors and judges to the same effect.
The keynote speech as well as the ensuing discussion raised a set of questions on the benefits and drawbacks of such a legal provision. On the one hand, it was recognised as a useful tool to enhance sentencing and therefore criminal justice in cases of domestic violence because its application is enshrined in law and therefore mandatory. At the same time, clearly stating that a criminal offence perpetrated by an intimate partner carries a stricter sentence than the same criminal offence committed against a stranger sends out an important message. On the other hand, its usefulness for prevention through deterrence was questioned because there is no certainty that harsher penalties will actually be applied. To date, data on the use of such a provision by courts is scant and its implementation therefore difficult to monitor.
Specialised courts on domestic violence
In some of the participating member states, the idea of creating a specialised court within the judiciary to accommodate the particular needs of victims of domestic violence has gained ground. The Organic Law of Spain on Comprehensive Protection Measures against Gender Violence introduces Specialised Domestic Violence Courts, which have simultaneous criminal and civil jurisdiction on all matters related to domestic violence. The United Kingdom is running a pilot project involving several courts where domestic violence cases receive special attention and victims are guided through the judicial process by trained personnel.
The aim of such courts is to enhance criminal justice by improving reporting and prosecution rates as well as victim involvement in the judicial process. The examples of Spain and the United Kingdom have shown that this can be achieved through specialised domestic violence courts, if adequate resources are made available. As with the discussion on protection orders, seminar participants emphasised that independent counsellors offering advice to victims of domestic violence pursuing justice through such courts are a cornerstone to success. By guiding victims through the justice system, their advice and support helps to attain lower rates of retraction by victims and heightened understanding for judicial proceedings. The significant reduction in length of judicial proceedings has further led to a high level of acceptance among the victims.
Implementation of legal measures
The stage for discussion on the implementation of legal measures was set by the keynote speech on this issue, which provided an overview of issues to consider in implementing legal measures. Suggesting that legal measures pursue a two-fold strategy: deterrence and punishment on the one hand, and protection and support for victims on the other, it was made clear that designing measures which achieve both at the same time has proven difficult. Criminal law sanctions for example reflect the authority of the state to sanction breaches of the law rather than empower the victim. Recognition of this tension has resulted in the establishment of multi-agency support and improved intervention procedures to accompany legal proceedings. Without such empowerment, any legal measure is likely to fail.
Another keynote speech pointed out that legislation needs to be evaluated and continuously monitored through comprehensive and comparative research in order to assess whether or not it is serving its purpose. Different tools and approaches such as theory-based and impact evaluation have been developed in other spheres and can be applied in the context of evaluating and monitoring the implementation of legal measures to combat violence against women. How this could be achieved and which issues to consider was also addressed as was the pertinent question of “what counts as a success”. In connection to this question, NGO participants presented their findings on the implementation to legal measures.
Further information on the implementation of measures to protect women against domestic violence can be found in the recent Council of Europe Analytical study on the effective implementation of Recommendation Rec (2002) 5 on the protection of women against violence in the Council of Europe member states.