Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 76
Enero
Marzo
2023
Recibido el 29/11/22 Aceptado el 15/01/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 76 (2023), 512-527
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Peculiarities of judicial consideration
of causes related to domestic violence:
comparative analysis
DOI: https://doi.org/10.46398/cuestpol.4176.30
Liudmyla Golovko *
Nataliia Shynkaruk **
Olena Yara ***
Olena Uliutina ****
Viktoriia Halai *****
Abstract
The article is devoted to the analysis of the features of legal
protection of victims of domestic violence, with the purpose
of identifying the positive experience that has been proved in
practice and, therefore, is worth following in Ukraine as in other
countries to prevent this form of violence. To achieve this purpose,
general and special scientic research methods were used, in particular
dialectical, historical-legal, systematic, comparative legal methods. In this
regard, international experience in dealing with cases related to domestic
violence was also studied using the examples of European countries and
Canada and the United States. The legal provision for the protection of
persons who have suered domestic violence was also considered. As a
contribution of the research, the problems of legal provision of judicial
protection of victims of domestic violence in Ukraine were revealed and, at
the same time, suggestions were made to improve the legislation regulating
the killing. It is concluded that it is necessary to strengthen the position
of the victim of domestic violence by giving her the opportunity to claim
compensation for moral damages within the framework of a given criminal
proceedings.
Keywords: judicial protection; domestic violence; right to judicial
guarantees; protection against domestic violence; victims of
domestic violence.
* National University of Life and Environmental Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-3742-2827
** National University of Life and Environmental Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-4488-6240
*** National University of Life and Environmental Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-7245-9158
**** National University of Life and Environmental Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0003-1982-9911
***** State University of Economics and Technologies, Kryvyi Rih, Ukraine. ORCID ID: https://orcid.
org/0000-0003-1568-5068
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 512-527
Peculiaridades de la consideración judicial de las
causas relacionadas con la violencia doméstica: análisis
comparado
Resumen
El artículo está dedicado al análisis de las características de la protección
jurídica de las víctimas de violencia doméstica, con el propósito de
identicar la experiencia positiva que se ha probado en la práctica y, por
lo tanto, vale la pena seguir en Ucrania como en otros países para prevenir
esta forma de violencia. Para lograr este propósito se utilizaron métodos
de investigación cientíca generales y especiales, en particular métodos
dialécticos, histórico-jurídicos, sistemáticos, jurídicos comparados. En este
sentido, se estudió además la experiencia internacional en el tratamiento
de casos relacionados con la violencia doméstica utilizando los ejemplos
de países europeos y de Canadá y Estados Unidos. También se consideró
la provisión legal de protección de las personas que han sufrido violencia
doméstica. Como un aporte de la investigación, se revelaron los problemas
de la provisión legal de protección judicial de las víctimas de la violencia
doméstica en Ucrania y, al mismo tiempo, se hicieron sugerencias para
mejorar la legislación que regula la mataría. Se concluye que es necesario
reforzar la posición de la víctima de violencia doméstica dándole la
oportunidad de reclamar una indemnización por daños morales en el marco
de un proceso penal determinado.
Palabras clave: protección judicial; violencia intrafamiliar; derecho a
las garantías judiciales; protección frente a la violencia
intrafamiliar; víctimas de violencia domestica.
Introduction
The problem of domestic violence is becoming more and more relevant
in all countries and in Ukraine in particular. The reason for the increase in
the number of cases of domestic violence around the world is, among other
things, quarantine and forced self-isolation. According to the data of the
national hotline of the public organization “La Strada”, since the beginning
of the COVID-19 pandemic in Ukraine, the number of calls to the hotline
has increased by at least half time. Victims of domestic violence need help
and protection, including legal protection. Undoubtedly, one of the most
eective means of protection against domestic violence is protection in
court. Moreover, the judicial review of this category of cases has its own
peculiarities.
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Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
At the same time, in many countries, a signicant number of issues
remained unsettled by legislation. This especially applies to the issues of
judicial resolution of cases related to domestic violence and the realization
of the right to a fair trial in cases related to domestic violence, as well
as enforcement of court decisions on issuing restraining orders. This
encourages comparative research in this area.
The purpose of this scientic article is to determine and justify main
features of judicial consideration of cases related to domestic violence in
dierent countries with the goal to make suggestions for improving the
relevant legislation in Ukraine.
1. Materials and methods
To achieve the goals and solve the tasks set in the article, general
scientic and special research methods were used. Dialectical method was
used to determine the conceptual and categorical apparatus, denition of
the concept of the right to a fair trial. Historical-legal method was used
to research the history of the formation of legislation on prevention and
protection from domestic violence in Ukraine. With the help of systematic
method, the structure and constituent elements of the right to a fair trial in
cases related to domestic violence were determined.
The comparative legal method was used to establish the features of
judicial protection of victims of domestic violence in individual countries,
the legislative provision of this type of protection, as well as legislation in
the eld of combating domestic violence, and the identication of positive
experiences and weaknesses in this area; institutional method - to study the
functioning of various institutions which function in the eld of protection
of victims of domestic violence; analysis and synthesis - to study the basic
principles of legal regulation of protection of victims of domestic violence in
European countries, Canada and the USA; system method - to systematize
and generalize the source base of research. Using a predictive method
proposition to improve the legislation of Ukraine in the eld of prevention
and countermeasures against domestic violence and legal protection of
victims of domestic violence were made.
2. Results and Discussion
The problem of domestic violence has been studied by many scientists.
Thus, Lesko in her dissertation research studied the administrative and legal
protection of children from domestic violence (Lesko, 2019). Samchenko in
her dissertation paid attention to the protection of minors from domestic
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violence, but emphasized the criminological characteristics and prevention
of domestic violence (Samchenko, 2011). Kovalyova studied administrative
and legal responsibility for committing domestic violence (Kovalova, 2018).
Slukhayenko studied the criminological characteristics of domestic
violence. The author claims that creating a criminological portrait of a
criminal makes it possible to prevent violence in the future (Slukhayenko,
2020). Lischuk investigated the issue of protecting women from violence
with the help of criminal legal norms (Lischuk, 2020).
Problems of combating domestic violence were also studied (Funta et al.,
2020) emphasizing the need for the cooperation of subjects implementing
measures in the eld of prevention and counteraction of domestic violence.
However, the realization of the right to a fair trial in cases related to
domestic violence still remains relevant and urgent and requires deep
scientic analysis.
In order to ensure the protection of victims of domestic violence, it
is necessary for the state to ensure the right to a fair trial. The right to a
fair trial in cases related to domestic violence requires the presence of the
following components: the creation of an opportunity to protect rights in
court, access to eective legal remedies for victims of domestic violence,
compensation for the damage caused.
According to the European Convention for the Protection of Human
Rights and Fundamental Freedoms, everyone has the right to a fair and
public hearing within a reasonable time by an independent and impartial
court established by law, which will resolve a dispute regarding his/her
civil rights and obligations or establish the validity of any criminal charge
brought against him/her.
The judgment is announced publicly, but the press and the public may
not be admitted to the courtroom during all or part of the trial in the interests
of morality, public order or national security in a democratic society, if the
interests of minors or the protection of the privacy of the parties so require,
or to the extent, which is recognized by the court as strictly necessary when,
under special circumstances, publicity of the proceedings may harm the
interests of justice (Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950).
In 2017, the Verkhovna Rada of Ukraine adopted the Law of Ukraine
“On Prevention and Combating Domestic Violence”, which entered into
force on January 7, 2018. This law denes the basic principles of preventing
and combating domestic violence, the main directions of implementation of
the state policy in the eld of prevention and combating domestic violence,
regulates the issue of determining the entities that carry out measures in the
eld of prevention and combating domestic violence, tasks and measures
for the prevention of domestic violence.
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Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
The adoption of the Law “On Prevention and Combating Domestic
Violence” is an important step in the direction of combating such a
shameful phenomenon as domestic violence. Domestic violence is no longer
considered a private matter that is not talked about, but is recognized as a
dangerous social problem that must be countered at the national level. To
eradicate domestic violence, the Law introduced new approaches and new
tools to counter this negative social phenomenon.
The law introduced new special measures to combat domestic violence,
namely: an urgent restraining order against the oender; a restraining order
against the oender; preventive registration of the oender and carrying out
preventive work with him/her; sending the oender to undergo a program
for oenders (Article 21 of the Law).
Urgent restraining order against the oender (obligation to leave the
place of residence (stay) of the injured person; ban on entering and staying
at the place of residence (stay) of the injured person; prohibition of any
contact with the injured person) is issued by police ocers for a period of
10 days. Preventive registration of the oender and carrying out preventive
work with him/her is also carried out by the relevant police oce at the
place of residence (stay) of the applicant.
Since January 2019, not only administrative, but also criminal liability is
provided for domestic violence in Ukraine. According to Article 126-1 of the
Criminal Code of Ukraine, domestic violence is punishable by community
service (for a term of 150 to 240 hours), arrest (for a term of up to 6 months),
restriction of liberty (for a term of up to 5 years) or imprisonment (for term
up to 2 years).
To qualify this article of the Criminal Code, it is necessary to prove the
systematicity of domestic violence. Scientists (Funta, 2016; Gulac et al.,
2022; Kondratenko et al., 2020; Ladychenko et al., 2019; Oleksenko et al.,
2021; Sobol et al., 2022) and others prove their position that systematicity
should be understood as three or more acts of domestic violence. The
introduction of criminal liability for domestic violence is denitely a
positive step, as understanding the possibility of criminal liability serves as
a deterrent for the oender.
According to the Law of Ukraine “On Prevention and Combating
Domestic Violence” in civil proceedings, the court may issue a restraining
order against the oender who committed domestic violence, which
determines one or more measures to temporarily limit the rights of the
oender or impose obligations on him:
1. prohibition to stay in the place of common residence with the
injured person;
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2. removal of obstacles to the use of property that is the object of the
right of common co-ownership or personal private property of the
aected person;
3. restriction of communication with the aected child;
4. prohibition to approach within a specied distance to the place
of residence, work, other places frequently visited by the aected
person;
5. prohibition to search for the injured person personally and through
third parties, if he/her is voluntarily in a place unknown to the
oender, to pursue him/her and communicate with him/her in any
way;
6. prohibition to conduct correspondence, telephone conversations
with the victim or contact him/her through other means of
communication personally and through third parties (Law of
Ukraine, 2018).
The positive side of Ukrainian legislation is the establishment of limited
terms for consideration of cases on the issuance of a restraining order.
Thus, according to part 2 of Article 350-5 of the Civil Procedure Code of
Ukraine, the court must consider the case of issuing a restraining order no
later than 72 hours after the application is submitted to the court, which
contributes to ensuring such an important component of the right to a fair
trial as “a reasonable period of consideration of the case”. The positive side
is also that, according to the Law of Ukraine “On Court Fees”, the applicant
is exempted from paying the court fee for submitting an application for the
issuance of a restraining order.
Court costs for consideration of such cases are reimbursed by the
state. It certainly also contributes to the realization of the right to a fair
trial for victims of domestic violence. At the same time, a gap in Ukrainian
legislation regarding the settlement of the following issue should be noted.
The decision to issue or refuse to issue a restraining order is made on the
basis of an assessment of the risks of committing domestic violence.
However, there is no form of risk assessment that can be used by judges.
Undoubtedly, judges can use the form for assessing the risks of committing
domestic violence, developed for police ocers when establishing the need
to issue an urgent restraining order, which is dened by the order of the
Ministry of Social Policy of Ukraine and the Ministry of Internal Aairs
of Ukraine of 13.03.2019 No. 369/180 “On approval of the Procedure
for conducting an assessment of risks of domestic violence.” However,
approving a form for judges to assess the risks of committing domestic
violence would make their work much easier and allow for a more objective
assessment of the situation.
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Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
According to Part 2 of Article 350-8 of the Code of Civil Procedure, the
court noties the authorized subdivisions of the National Police of Ukraine
at the place of residence of the applicant about the issuance or extension of a
restraining order no later than on the day following the day of the decision,
in order to arrest the person in respect of whom the restraining order has
been issued or extended prescription, for preventive registration, as well as
regional, district in the cities of Kyiv and Sevastopol state administrations
and executive bodies of village, settlement, city, district councils in cities
at the place of residence (stay) of the applicant (Civil Procedural Code of
Ukraine, 2004).
After receiving the notication, the National Police body must place
the oender on preventive registration, ensure control over the oender’s
behavior and carry out preventive work in order to prevent further violence
in the family. However, it is not established at the legislative level what
is understood under the control over the oender’s behavior and what is
understood under preventive work with him/her, and exactly how it should
be carried out. As a result, this requirement of the law is not fullled in
practice.
Therefore, without a doubt, it is necessary to enshrine at the legislative
level the denition of control over the behavior of the oender, to reveal
what is the preventive work of police ocers with the oender and in what
way they should be carried out, since without proper legal regulation of this
issue, this type of special measure of combating domestic violence has a
declarative nature. In addition, there is a problem of refusal of public and
private executive services to enforce court decisions on the establishment of
restraining orders, which also requires legislative regulation.
According to Article 128 of the Criminal Procedure Code of Ukraine, a
person who has suered moral damage as a result of a criminal oense
has the right to le a civil lawsuit against the oender during criminal
proceedings, before the trial begins. In our opinion, it is necessary to
strengthen the position of the victim of domestic violence by giving her/
him the opportunity to claim compensation for moral damage also within
the framework of criminal proceedings, and not only within the framework
of civil proceedings.
The issue of ensuring a sucient number of institutions that provide
assistance to women who have experienced domestic violence has not
been fully resolved. It is necessary to expand the existing network of social
services for victims of domestic violence. The goal is to provide support for
those individuals who, after leaving an abuser, start life “with a clean slate”
and without nancial resources, or who do not have access to nancial
resources, or who for other reasons nd themselves without aordable
housing.
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It is also necessary to develop standards for work with victims of domestic
violence, as well as standards that apply to the work of crisis centers, for
example in the form of a code of ethics. The need to respect the secrecy of
the address of the place of residence of a person who has become a victim of
domestic violence must be reected at the legislative level as well.
Let’s consider the peculiarities of legal protection of victims of domestic
violence in Canada and the USA, which belong to the Anglo-American legal
family. In these countries, considerable attention is paid to the protection
of victims of domestic violence, so studying their experiences is useful.
Canada is a federal state. Therefore, protection against domestic
violence is carried out at two levels: federal and provincial. At the federal
level, there is no single regulatory law aimed at preventing and combating
domestic violence. Such laws have been passed in some provinces that
provide protection to victims of domestic violence. In particular, statutory
civil remedies include emergency intervention orders, which may entitle
only the victim to stay at home and use the family vehicle. Preventive
measures may also include prohibiting the oender from communicating
with or contacting the victim or family members.
The judicial system in each of its provinces also has its own
characteristics, for example, in some provinces cases of domestic violence
are heard by special courts or judges who specialize in the consideration of
this type of cases, and in others by general courts that lack specialization
(Fouley, 2018). Importantly, the creation of specialized courts to deal with
domestic violence cases has received favorable reviews from both the public
and academics.
The creation of specialized courts to deal with this category of cases
indicates the state’s condemnation of such a shameful phenomenon and the
fact that domestic violence is a social problem, and not only the problem of
the victim of domestic violence. The creation of specialized courts to deal
with domestic violence cases has a number of advantages. First, a uniform
approach to solving domestic violence cases is ensured, improves the
quality of judicial implementation, increases the protection of the rights of
victims of domestic violence. Secondly, a quick resolution of this category
of cases is guaranteed, which allows for faster and more eective response
to cases of violence.
Domestic violence cases are heard in a courtroom specially equipped
for hearing this category of cases. Courts also have special rooms where
lawyers representing the parties (oender and victim), social workers
and psychologists gather. If the oender has pleaded guilty to domestic
violence, he/her is asked whether he/she agrees to undergo a psychological
and social rehabilitation program and to compensate the harm caused to
the victim.
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Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
If the person who committed domestic violence does not admit his/
her guilt, the court considers the case. Employees of public organizations
involved in combating domestic violence, police and social service workers
are often involved in the judicial review of cases. The oender is not deprived
of the right to peaceful settlement of the dispute during the trial, but in this
case the oender will be forced to pay higher court costs.
In Ontario, there are 47 specialized family courts which oer family
mediation and provide information services. In Ontario, mediation is
provided even in the case of domestic violence (Schwartz, 2022).
Here it should be noted a debatable point about whether mediation
should be used in cases involving domestic violence. A certain group
of experts argue that domestic violence leads to an inequality of power
between the abuser and his/her victim, which the mediator cannot balance,
and this inequality, according to them, precludes mediation. The victim,
in their opinion, is not able to make free decisions concerning him/her,
but also children, property, etc. Moreover, in most cases, the ability of the
abuser and his victim to make joint decisions is lacking. Domestic violence
also threatens the legality of mediation.
The result of successful mediation should be the conclusion of a mutually
benecial agreement (mostly in written form). It is therefore a legal act to
which the provisions of the criminal code or a special law apply. In the case
when one party commits violence or psychological abuse on the other side,
then the validity of the agreement concluded between them under such
conditions can be successfully doubted.
It can therefore be concluded that both parties went through mediation
in vain, because the condition of free agreement (without coercion) in the
mediation process on the relationship of both parties involved is highly
improbable and the agreement may be invalid (Žofčák, 2014). In addition,
the use of mediation in domestic violence cases is contrary to the Council
of Europe Convention on the prevention of violence against women and
domestic violence. Protection of the rights and interests of victims, their
personal and public safety should be given priority when solving domestic
violence cases.
An emergency protection order for victims of domestic violence can be
issued by a provincial court judge. The issuance of such an order can be
carried out without notifying the oender, if the judge concludes that as a
result of the violence, the applicant has reason to believe that the oender
will continue to commit violence and the seriousness of the situation
requires immediate protection of the victim.
A feature of the USA is the presence of a developed and eective system
for preventing domestic violence. Having a mandatory response strategy
is worth following. The country has more than ve rapid response services
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(hotlines) for combating domestic violence: a general line for domestic
violence and special lines for sexual violence, protection of victims against
rape (National Hotlines, 2022). Medical facilities are required to report any
incidents of violence. In some states, citizens must inform law enforcement
agencies about cases of child abuse (Lesko, 2019).
More than 30 US states have their own laws that prohibit or restrict
convicted sex oenders from living near places visited by children. In
addition, a specic distance is xed at which persons under control are
prohibited from approaching the protected object (Kharlamova et al.,
2021).
As in Canada, domestic violence cases are handled by specialized courts
in the United States. A useful experience of the USA is the creation of the
Model Code on Domestic and Family Violence, which, although not a law
in the general sense, serves as an example of the development of its own
legislation by individual states. The ve chapters of the Model Code include
General Provisions, Criminal Penalties and Procedures, Civil Orders for
Protection, Family and Children, and Prevention and Treatment (Model
Code, 1994). In our opinion, the development of such a code would be
useful in Ukraine and other European countries.
On the basis of the police of European states, there are specialized groups
for combating domestic violence, which have been working successfully for
a long time. On their basis, interdisciplinary cooperation between various
bodies is carried out. The purpose of creating these specialized groups is to
expand this good practice and introduce it to the judicial system.
An important tool of their activity is interdisciplinary cooperation and
the exchange of information and experience between interested entities,
establishing contacts between relevant institutions, expressing their own
requirements regarding the form or quality of work of individual institutions,
providing information on the competence and capabilities of individual
entities. The creation of such specialized groups is a new practice and, in our
opinion, Ukraine should follow this experience. It is also necessary to create
a system of permanent education based on interdisciplinary cooperation.
The task consists mainly in the systematic and long-term education of
those professionals who, in the performance of their ocial duties, most
often come into contact with persons who are at risk of domestic violence.
This applies primarily to doctors, medical personnel, teachers, educators
and pedagogical workers, social workers, judges and representatives of
the state, including police ocers. The goal is to provide workers in these
professions with the information necessary to recognize domestic violence
and to provide qualied assistance in the event of domestic violence.
According to the Criminal Code of Slovakia № 301/2005, for the
beginning of criminal proceedings against a person who committed
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Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
domestic violence, the victim’s permission is not required. The great
positive moment of the new Criminal Procedure Code is to reduce the terms
of investigation of family crimes. Thus, according to § 204 of the Criminal
Procedure Code, it is possible to bring the oender before the court up to 48
hours after committing domestic violence, which signicantly reduces the
possibility of the oender escaping and imposing punishment (including
imprisonment) more quickly (Law of the Slovak Republic, 2005).
The principle that the right to protection of life and health has priority
over the protection of property rights is also reected in the Civil Code of
Slovakia. § 142 of the Civil Code establishes the court’s right to make a
decision on limiting the right of one of the spouses to use a joint residence.
At the same time, it is important to cancel the provision that obliged to
provide a place of residence for the partner who committed violence in the
family.
A signicant positive eect in the ght against domestic violence was
given by the development of the Procedures of police ocers in the case of
family violence within the framework of the “Alterna” project of the Slovak
crisis center “Dotyk” (Slovak crisis center Dotyk, 2022).
This technique was distributed in all police departments. The purpose
of this methodology was to help police ocers who have the rst contact
with persons who have experienced domestic violence in their work. Police
assistance always depends on a specic case. At the initial stage of domestic
violence, police ocers can help the victim and the perpetrator to classify
the oense and advise to resolve the conict with the help of support
organizations.
At a later stage, when a woman is ready to submit a statement about the
commission of a criminal oense, the police ocer is obliged to accept the
statement and act in the interests of the victim of domestic violence. The
Methodology draws attention to the fact that it is undesirable for police
ocers to have any delays, it is necessary to accept the statement on the
spot.
The Methodology examines in detail the sequence of activities of police
ocers after arriving at the crime scene, contact with both parties, the
sequence of information gathering and problem solving by police ocers.
Police ocers are obliged to inform the victim of domestic violence not only
about her rights, but also about the possibility of obtaining further help and
support. Part of the methodology is also the obligation to provide contacts
of organizations that provide assistance to victims of domestic violence.
In January 2007, Law No. 135/2006 “ On Prevention of Domestic
Violence “ came into force in the Czech Republic (Law of the Czech
Republic, 2006). With the adoption of the above-mentioned legal act, the
Czech Republic, like other European countries, joined the intention to take
a comprehensive approach to solving the problem of domestic violence.
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The law outlined the main directions of implementation of state policy in
the eld of combating and preventing domestic violence, established legal
boundaries for solving the problem of domestic violence by introducing
special measures to combat domestic violence, including by temporarily
evicting the perpetrator from the apartment shared with the victim.
The law also regulates the conditions for providing legal, psychological,
and social assistance to victims of domestic violence in crisis centers, as
well as cooperation between state bodies, municipal bodies, and public
organizations which activities are aimed at combating domestic violence
and helping victims of violence.
In order to implement the provisions of the Law “On the Prevention of
Domestic Violence” in the Czech Republic since 2007, crisis centers have
been operating that provide social and psychological assistance to victims
of domestic violence. If there is a threat of repeated domestic violence,
according to the Law, legal aid is provided to persons at risk of violence by
evicting the perpetrator from the apartment shared with the victim.
In order to apply the legislation in practice, systematic training measures
were implemented for police ocers, social workers, judges, doctors,
employees of social and legal child protection bodies, administrative
commissions, local self-government bodies and other professionals who
have contact with victims of domestic violence. These training measures
had signicant positive eect.
§ 199 of the Criminal Code of the Czech Republic provides for a criminal
oense, which is classied as “violence against a person living in a shared
apartment”; § 354 provides for the criminal oense of “dangerous stalking,”
which often becomes a “domestic violence” oense after the victim of
domestic violence leaves the abuser. § 141 of the Criminal Code establishes
the possibility of mitigating the punishment for murder by taking into
account the condition of the murder by a person who has been a victim of
domestic violence for a long time (Law of the Czech Republic, 2009).
On January 1, 2009, Law No. 273/2008 “On Police” (Law of the Czech
Republic, 2008) entered into force, which amended the Law “On Prevention
of Domestic Violence”, based on the experience of implementing the
legislation in practice during the year. The eviction of the oender from
the apartment shared with the victim of domestic violence came to be
understood as the exercise of the powers of police ocers, that is, it is
not a question of a decision issued in administrative proceedings, but is
understood as an actual action.
Thus, according to Law No. 273/2008 “On the Police”, the procedure
for eviction of an oender from a shared residence has been signicantly
simplied for police ocers, since they are no longer forced to make a formal
decision with all its components, including justication, and the need for
524
Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
a complex decision of administrative body on assignment procedure, as
well as the need to investigate compliance with the terms of the oender’s
eviction in appeal proceedings has disappeared.
A positive feature of the above-mentioned changes is also the
elimination of the risks of procedural oenses, and the simplication of the
work of police ocers makes it possible to focus in practice on the correct
determination of qualifying signs of domestic violence.
Conclusions
A special feature of Canada and the USA is the presence of specialized
courts to resolve domestic violence cases. Such a system has positive
feedback from the public and scientists, as it contributes to a more qualied
and quick resolution of cases.
Having studied the practice of combating domestic violence in the
countries of Eastern Europe, we found the following positive experience:
actual assistance to victims of domestic violence by ensuring the
availability of specialized social services; work with oenders; educational
work for employees who have contact with victims of domestic violence;
disseminating information about the state of domestic violence in order
to prevent it and change society’s attitude to domestic violence, as well as
about the bodies and services to which victim can turn for help in the event
of violence in the family.
The value of the Czech experience in combating domestic violence lies
in its systematicity. The main directions of measures include: legal reform
on this issue, improvement of law enforcement agencies, development
of social services; educational programs, rehabilitation programs. The
Czech experience is relevant not only in the introduction of mandatory
psychological programs for oenders and educational programs in schools
to work with students on the topic of promoting benevolent and tolerant
coexistence of family members, but also in the development of teaching
methods for the mentioned issues.
A positive experience of Slovakia should be considered the development
of the Methodology of actions of police ocers in the case of domestic
violence, which was developed in the framework of the “Alterna” project
of the Slovak crisis center “Dotyk”, which was distributed to all police
departments. One of the most important parts of this methodology is the
contacts of organizations that provide assistance to victims of domestic
violence.
Undoubtedly, the adoption of the Law of Ukraine “On the Prevention
and Counteraction of Domestic Violence”, the introduction of criminal
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liability for the commission of domestic violence and the introduction
of amendments to a number of normative legal acts aimed at regulating
domestic violence issues is a positive step in the ght against such a negative
phenomenon as domestic violence. At the same time, a signicant number
of issues remained unresolved. This especially applies to the issues of
judicial resolution of cases related to domestic violence and the realization
of the right to a fair trial in cases related to domestic violence, as well as
enforcement of court decisions on issuing restraining orders.
There is a need to develop a form for assessing the risks of re-committing
domestic violence, as it is done for police ocers when establishing the
need to issue an urgent restraining order. Also, at the legislative level, it
is necessary to establish what the preventive work of police ocers with
the oender is and how it is carried out, since without proper regulatory
and legal regulation of this issue, this type of special measure of combating
against domestic violence is declarative in nature and is not applied in
practice.
There is a problem of the refusal of public and private executive services
to enforce court decisions on the establishment of restraining orders,
which also requires legislative regulation. In addition, it is necessary to
strengthen the position of the victim of domestic violence by giving them
the opportunity to claim compensation for inicting moral damage within
the framework of criminal proceedings.
Bibliographic References
CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS. 1950. Available online. In: https://
www.echr.coe.int/documents/convention_eng.pdf. 02/11/2022.
FOULEY, Tetiana. 2018. “A training course on domestic violence adjudication:
the Canadian experience” In: Bulletin of the National Academy of the
Prosecutor’s Oce of Ukraine. Vol. 4/2, No. 58, pp. 110-121.
FUNTA, Rastislav. 2021. International law. 2. vyd. MSD. Brno, Czech Republic.
FUNTA, Rastislav; GOLOVKO, Liudmyla; JURIŠ, Filip. 2016. Europe and
European law. Bratislava, Slovakia.
GULAC, Olena, OLEKSENKO, Roman., KALUHA, Volodymyr, KRAVCHENKO,
Olena, YUKHYMENKO, Nataliia. 2022. “Overcoming the environmental
crisis in the forest sector of Ukraine in the context of the European green
course” In: Revista de la Universidad del Zulia. Vol. 13, No. 38.
526
Liudmyla Golovko, Nataliia Shynkaruk, Olena Yara, Olena Uliutina y Viktoriia Halai
Peculiarities of judicial consideration of causes related to domestic violence: comparative analysis
KHARLAMOVA, Darya; INOZEMTSEV, Mykola. 2021. “The ght against
domestic violence in Ukraine and global practice” In: Young Scientist.
Vol. 5, No. 93, pp. 341-347.
KONDRATENKO, Vitalii; MANZHULA, Andrii; SOBOL, Yevhen. 2020. “The
Current Factors of Ensuring the Activities of Public Administration
Regarding the System of Social Adaptation of Children with Disabilities”
In: Journal of History Culture and Art Research. Vol. 9, No. 1, pp. 122-
132.
KOVALOVA, Olena. 2018. “Administrative responsibility for committing
domestic violence: features of the implementation of new legislation” In:
South Ukrainian Law Journal. Vol. 2, pp. 60-63.
LADYCHENKO, Viktor; YARA, Olena; ULIUTINA, Olena; GOLOVKO,
Liudmyla. 2019. “Environmental liability in Ukraine and the EU” In:
European Journal of Sustainable development. Vol. 8, No. 2, pp. 261-
267.
LAW OF THE CZECH REPUBLIC. 2006. Law amending some laws in the
eld of protection against domestic violence No. 135/2006. Available
online. Available online. In: https://www.psp.cz/sqw/sbirka.
sqw?cz=135&r=2006. Consultation date: 15/11/2022.
LAW OF THE CZECH REPUBLIC. 2008. Law on the Police of the Czech
Republic No. 273/2008 Coll. Available online. In: https://www.epi.sk/
zzcr/2008-273. Consultation date: 15/11/2022.
LAW OF THE CZECH REPUBLIC. 2009. Criminal Code. Available online.
In: https://www.zakonyprolidi.cz/cs/2009-40. Consultation date:
15/11/2022.
LAW OF THE SLOVAK REPUBLIC. 2005. Criminal Code No. 301/2005.
Available online. In: https://www.zakonypreludi.sk/zz/2005-300.
Consultation date: 15/11/2022.
LAW OF UKRAINE. 2004. Civil Procedure Code of Ukraine. Bulletin of the
Verkhovna Rada of Ukraine, № 40-41, 42, st.492.
LAW OF UKRAINE. 2018. Law on Prevention and Counteraction to Domestic
Violence. Bulletin of the Verkhovna Rada. № 5, st.35.
LESKO, Natalia. 2019. Administrative and legal support for the formation and
implementation of state policy in the eld of protection of children from
violence and other illegal actions. PhD Thesis. Lviv Polytechnic National
University. Lviv, Ukraine.
527
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 512-527
LISCHUK, Natalia. 2020. Violent actions against women: causes and prevention.
PhD Thesisis, Lviv State University of Internal Aairs. Lviv, Ukraine.
MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE. 1994. Available
online. In: https://www.ncjfcj.org/publications/model-code-on-
domestic-and-family-violence/. Consultation date: 15/11/2022.
NATIONAL HOTLINES AND HELP FOR VICTIMS. 2022. Available online.
In: http://surl.li/bockh. Consultation date: 15/11/2022.
OLEKSENKO, Roman; MALCHEV, Bogdan; VENGER, Olga; SERGIIENKO,
Tetiana; GULAC, Оlena. 2021. “The Phenomenon of the Modern
Ukrainian Voter: Essence, Peculiarities and Trends of its Development”
In: Cuestiones Políticas. Vol. 39, No. 71, pp. 417-432.
SAMCHENKO, Marta. 2011. Criminological characteristics and prevention of
domestic violence against minors. PhD Thesisis. Lviv State University of
Internal Aairs. Lviv, Ukraine.
SCHWARTZ, Daniel. 2022. “Mediation Where There Has Been Domestic
Violence” Available online. In: https://www.separation.ca/videos/
alternative-dispute-resolution/mediation-where-there-has-been-
domestic-violence/. Consultation date: 15/11/2022.
SLOVAK CRISIS CENTER DOTYK INTRODUCES ITSELF. 2022. Available
online. In: https://www.martin.sk/slovenske-krizove-centrum-dotyk-
sa-predstavuje/d-25901. Consultation date: 15/11/2022.
SLUKHAYENKO, Yuriy. 2020. “Forensic characteristics of domestic violence”
In: Bulletin of LDUVS named after E.O. Didorenko. Vol. 3, No. 91, pp.
295-306.
SOBOL, Yevhen; KONDRATENKO, Vitalii; OKOPNYK, O; FOMICHOV,
K; SLIARENKO, I. 2022. “Interactions between the international
convention and the system of guaranteeing the rights of persons with
disabilities in Ukraine” In: Cuestiones Políticas. Vol. 40, No. 74), pp. 662-
672.
ŽOFČÁK, M. 2017. Mediation in practice – the possibility of solving domestic
violence. Criminology options to solve domestic violence. Proceedings
of the scientic conference with international participation held on
April 20, 558-566. Available online. In: https://www.paneurouni.com/
wpcontent/uploads/2017/03/zbornik_prispevkov_domace_nasilie_
bez_orezov.pdf. Consultation date: 15/11/2022.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
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Vol.41 Nº 76
