1. INTRODUCTION
In its Activity Report for 2022, the Public Prosecutor’s Office mentioned, among its main objectives for 2023, the protection of victims of crime as well as combating crimes of domestic violence, crimes against minors, hate crimes and discrimination[1]. At the same time, a press release[2] of the General Inspectorate of the Romanian Police shows that, at national level, in the first 8 months of 2023, the number of criminal acts in the field of domestic violence increased by 3.6%, compared to the first 8 months of 2022, from 36,921 to 38,243 acts. In addition, the increased frequency of domestic violence cases recorded in Romania is also revealed by the content published in the national press; almost daily, news publications present cases of domestic violence mainly directed against women.
Beyond the worrying nature of the statistical data reported by the Romanian Police, the latter suggest an insufficiency of national legal mechanisms to prevent domestic violence.
In this opinion, we examine the extent to which the current legislative framework responds to the concrete needs of victims and survivors of domestic violence. We also make a set of proposals that could form the basis for developing or improving public policies on domestic violence.
2. DOMESTIC VIOLENCE
2.1. CONCEPT
From a legal point of view, domestic violence is defined by art. 3 of Law 217/2003 for the prevention and combating of domestic violence, meaning any inaction or intentional action of physical, sexual, psychological, economic, social, spiritual or cyber violence, which occurs in the family or domestic environment or between spouses or ex-spouses, as well as between current or former partners, regardless of whether the aggressor lives or has lived with the victim.
The Romanian legislator also circumscribed the content of the manifestations of domestic violence, alongside physical violence, including verbal, psychological, sexual, economic, social, spiritual and, more recently, cyber violence[3].
Despite the comprehensive definition, the diversity of social relations and the lack of terminological coherence at the legislative level may raise a number of questions regarding the scope of the notion of domestic violence.
2.2. FIELD OF APPLICATION
Domestic violence refers to acts of aggression produced in the family or domestic environment, art. 5 para. 1 of Law 217/2003 providing a definition of family member. Thus, family member means:
- ascendants and descendants, brothers and sisters, their spouses and children, as well as persons who have become relatives by adoption, according to the law;
- husband/wife and/or ex-husband/ex-wife; siblings, parents and children from other relationships of the husband/wife or ex-husband/ex-wife;
- people who have established relationships similar to those between spouses or between parents and children, current or former partners, regardless of whether they lived with the aggressor or not, the ascendants and descendants of the partner, as well as their brothers and sisters;
- the guardian or other person who exercises in fact or in law the rights towards the person of the child;
- the legal representative or other person who takes care of the person with mental illness, intellectual disability or physical disability, except for those who fulfill these duties in the exercise of their professional duties.
Among the terms used in the aforementioned legal text, the understanding of the term partner requires some additional mentions. Beyond cohabiting relationships, in the interpretation of the term partner it is essential to take into account relationships between people of the same sex; otherwise, the provisions of art. 8 of the European Convention on Human Rights. Regarding the passivity of the Romanian state to recognize the civil partnership regardless of the gender of the two partners, despite the existence of a definitive decision of the European Court of Human Rights in this regard[4], we consider it opportune and priority to nuance the legal provisions in the matter of domestic violence by expressly clarifying their applicability regardless of the gender of the partners involved.
2.3. CONCEPTUAL DELIMITATIONS
2.3.1. DOMESTIC VIOLENCE VS. FAMILY VIOLENCE
Domestic violence is a species of the general category of violence[5],distinguishing itself from other forms of violence by the fact that its subjects are determined, and the aggressor’s manifestation space is the family or domestic environment.
However, in current and legal parlance, the phrase family violence is also used, as a concept equivalent to domestic violence. Although there are authors in the field of psychology who recognize the synonymy of the two phrases[6], the coexistence of the notions of family violence and domestic violence gives rise to interpretation difficulties and legal inadvertences.
Thus, the Romanian Criminal Code regulates the crime of domestic violence, which consists in committing one or more acts provided for by criminal law[7] against a family member. According to Romanian criminal law[8], a family member means (i) the spouse, (ii) ascendants and descendants, brothers and sisters, their children, as well as persons who have become such relatives by adoption according to the law, (iii) persons who have established relationships similar to those between spouses or between parents and children, if they are cohabiting (i.e. cohabitants). From this point of view, an initial difference can be observed between the concepts analyzed, since the definition of the concept of family member in the Criminal Code is much more restrictive than that used in Law 217/2003.
Thus, it should be noted that, in the context of the current legislative framework, only some of the acts of domestic violence within the meaning of Law No 217/2003 can be qualified as crimes.
Moreover, it should be noted that national legislation does not provide a clear definition of the concept of family, the content of family relationships being broader or narrower depending on the purpose and object of the various relevant legal acts. In addition, the case-law of the European Court of Human Rights[9] also emphasizes that the right to respect for family life does not relate exclusively to relationships based on or similar to those resulting from marriage, but also to de facto family relationships.
In view of the above, we believe that the concept of domestic violence is better suited to the general interest of protecting the fundamental rights of individuals, regardless of whether they choose to formalize their affectionate relationship or choose not to live together. Furthermore, it has been pointed out in the literature that in order for domestic violence to be present, it is not essential that the victim and the aggressor live under the same roof, but that there be a sufficiently close relationship between the two persons[10]. We therefore consider it appropriate to harmonize the terminology used to designate and punish acts of domestic violence, so that there are no grounds for unjustified differences in treatment for acts of comparable seriousness.
2.3.2. DOMESTIC VIOLENCE VS. VIOLENCE AGAINST WOMEN
Although violence against women is deeply rooted in everyday life, […] it is one of the most systematic and widespread human rights violations[11], it is necessary to point out and raise awareness of the fact that any member of a wider family or domestic unit can be a victim of domestic violence.
For this reason, the Convention of the Council of Europe on preventing and combating violence against women and domestic violence, known generically as the Istanbul Convention, defines the two concepts under consideration separately.
Thus, violence against women is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life[12].
Domestic violence, on the other hand, refers to all acts of physical, sexual, psychological or economic violence occurring in the family or domestic unit or between former or current spouses or partners, regardless of whether the perpetrator shares or has shared the same home with the victim[13].
3. EFFECTIVE ACCESS TO JUSTICE FOR VICTIMS AND SURVIVORS OF DOMESTIC VIOLENCE
3.1. PRELIMINARY ISSUES
Beyond Law 217/2003 and the provisions of the Penal Code, Romania is systematically developing public policies[14] to combat domestic violence. Despite comprehensive legislation with a tendency to over-regulate, statistics on the incidence of domestic violence do not reflect real progress in combating the phenomenon that is the subject of this opinion. Therefore, we will now analyze the effectiveness of the legal provisions analyzed above, as reflected in access to justice for victims of domestic violence.
3.2. ACCESS TO FREE LEGAL AID FOR VICTIMS OF DOMESTIC VIOLENCE
Once the awareness of being a victim of domestic violence has been raised, accessing appropriate legal procedures is a major obstacle. Thus, the lack of legal training, as well as the excess of legislation, leads to the need for victims to obtain specialized help in order to know and exercise the rights provided by law. Often the costs of initiating legal proceedings[15] discourage or prevent victims from approaching prosecution and/or the courts.
For this reason, it is essential to legislate effective mechanisms to provide free legal aid for victims of domestic violence.
Currently, the Law 217/2003 provides for the right of victims of domestic violence to free legal advice and assistance; in particular, victims are entitled to free legal assistance, provided by a public defender, when applications for a protection order against the aggressor are being processed. Beyond this facility, Law 217/2003 does not expressly specify other forms of free legal assistance to victims.
However, the appropriate legal steps for victims of domestic violence go beyond the protection order, and it is often appropriate to make applications for the eviction of the aggressor, for the establishment of the minor’s residence by means of a court order or for the dissolution of the marriage. In order to assess the need to go through such legal steps, i.e. to consult a lawyer, victims of domestic violence need financial resources for which the law does not provide any special compensation mechanism.
Thus, the general provisions of Emergency Ordinance 51/2008 on public legal aid in civil matters become applicable, which are deeply open to criticism in view of the unreasonable value thresholds it imposes. In this respect, public legal aid may be requested by any natural person who is unable to meet the costs of a trial or those involved in obtaining legal advice in order to defend a legitimate right or interest in court, in the following situations:
- If the average net monthly income per family member in the two months preceding the application is less than the equivalent of 25% of the gross minimum basic wage in the country, in which case the amounts constituting legal aid shall be advanced in full by the State.
- If the average net monthly income per family member in the two months preceding the application is less than the equivalent of 50% of the minimum gross basic wage in the country, in which case 50% of the sums of money constituting public legal aid shall be advanced by the State.
Based on the value of the minimum gross basic salary in the country for the year 2023 (i.e. 3300 RON), it follows that in order to access full public legal aid, the average income per family member of the applicant must be below the ceiling of 825 RON.
Moreover, given that eligibility for legal aid takes into account the income of all family members of the victim, there is a possibility that the victim may be prevented from accessing some form of legal aid precisely because of the income earned by the perpetrator as a family member. At the same time, the conditions for granting public legal aid do not provide effective solutions for victims of domestic violence in the form of economic violence. For example, if the perpetrator earns an income that excludes the applicability of public legal aid, but has forbidden the victim from working and/or controls the victim’s economic resources, the victim’s access to justice will be limited for financial reasons.
On the judicial side, the situation regarding free legal aid is more ambiguous. Thus, according to the provisions of Article 93 para. 2 of the Code of Criminal Procedure, when the judicial body considers that the injured person would not be able to defend himself/herself, it shall order the appointment of a public defense counsel. Therefore, although the legislation in force guarantees in a generic way the right of defense for victims of domestic violence, leaving it to the discretion of the judicial body to assess the victim’s ability to prepare her own defense is not a real guarantee of access to justice. The legislator has not laid down clear criteria on the basis of which the judicial body can assess the ability of the victim to prepare her own procedural documents, so that taking steps to appoint a lawyer of its own motion is a discretionary and subjective approach on the part of the judicial body.
Similarly, Law 51/1995 on the organization and practice of the legal profession regulates the possibility[16] for the dean of the bar to approve, in exceptional cases, the victim’s request for free legal assistance. In order to be eligible, the applicant must demonstrate that (i) he or she lacks material means and (ii) his or her rights would be prejudiced by delaying access to legal aid. Similar to the regulation analyzed in the previous paragraph, the text of the law on the organization and practice of the legal profession lacks predictability and clarity for the persons concerned. Thus, there are no criteria for classifying the applicant as lacking material means, and this is assessed arbitrarily by the dean of the competent territorial bar. Moreover, the summary and incomplete nature of these legal provisions raises serious doubts as to their applicability, since no criteria are laid down for granting this form of support, nor are any appeals against any refusal by the dean of the bar.
For the reasons outlined above, we believe that the current legislative framework does not provide sufficient mechanisms to financially support access to justice for victims of domestic violence.
3.3. ACCESS TO EFFECTIVE LEGAL PROCEEDINGS FOR VICTIMS OF DOMESTIC VIOLENCE
Beyond the costs of legal proceedings, the efficiency of the latter is a key factor in providing real protection to victims of domestic violence.
The main legal instrument for the protection of victims of domestic violence is the provisional protection order[17]. It can be issued for a period of up to 5 days by the police when it is established that there is an imminent risk that a person’s life, physical integrity or freedom may be endangered by an act of domestic violence. To issue the provisional protection order, police officers administer evidence and assess the factual situation on the basis of a standard risk assessment form provided for by law. The provisional protection order must then be confirmed by the public prosecutor.
The immediate measures that can be ordered by the provisional protection order are (i) the temporary eviction of the aggressor from the common dwelling, regardless of whether he is the owner of the property, (ii) the reintegration of the victim and, where appropriate, the children in the common dwelling, (iii) ordering the perpetrator to keep a specified minimum distance from the victim, from members of the victim’s family, or from the protected person’s residence, place of work or educational establishment, (iv) ordering the perpetrator to wear an electronic surveillance device at all times, and (v) ordering the perpetrator to surrender to the police any weapons possessed.
The provisional protection order has the indisputable advantage of being effective, as the police can put a stop to the crime of domestic violence as soon as it is detected.
However, in order for the procedure of issuing a provisional protection order to meet the needs of victims of domestic violence, it is necessary for police staff to be trained in identifying situations of domestic violence and communicating with victims of domestic violence. In this respect, the standard form on the basis of which the provisional protection order is issued contains a set of questions for the victim and the police officers on the scene, the content of which may emphasize the state of distress felt by the victim as a result of the events which prompted the police intervention[18]. For this reason, it is essential to develop strategies and training programs for Romanian Police staff, in order to develop skills to recognize and communicate with victims of domestic violence.
In addition to the provisional protection order, which ceases to be valid 5 days after it is issued, victims of domestic violence may apply to the court for a protection order valid for up to 12 months from the date of issue. The main obstacle in such cases is the difficulty of proving that there is an imminent risk that the victim’s life, physical or mental integrity or freedom will be endangered by an act of violence by the aggressor.
From this perspective, the advantage of obtaining a provisional protection order before applying for a protection order is noted, since in this case the victim can secure consistent evidence with the help of the police and the confirmation of the prosecutor. Clearly, in order for victims of domestic violence to be able to make use of the legal instruments outlined above, it is crucial to carry out extensive public information campaigns on these instruments. Moreover, it is essential that police intervention plans require police officers to be proactive in directing the victim to the legal remedies available when there are suspicions of domestic violence.
4. CONCLUSIONS AND RECOMMENDATIONS
Despite the guarantees established by national and international regulations, access to justice is inevitably restricted by financial or institutional obstacles. The need to remedy this reality becomes all the more pressing in the case of victims of domestic violence, who are often subjected to (also) forms of economic violence.
Moreover, access to justice is not only about the formal existence of judicial procedures, but also about ensuring that the people subject to justice are properly informed and that the dignity of each participant in the judicial process is respected.
In our opinion, the objectives of the institutions with competence in the field of domestic violence prevention should include:
- The education of public opinion about the extent of the phenomenon of domestic violence in order to reduce public prejudice and raise awareness of the need to prevent and combat the phenomenon;
- The harmonization of national legislation in order to correct terminological inadequacies which may lead to unfair differences in the classification of offences committed by or against family members in a broad sense;
- Urgent reconfiguration of the value ceilings established for access to public legal aid in civil matters, taking into account the different situations in which victims of economic violence may find themselves;
- Training and preparation of the Romanian Police and judicial bodies’ staff to communicate with victims of domestic violence;
- The development of an integrated public policy, at national level, which includes all institutions with competences in the field of preventing and combating domestic violence and which provides for concrete measures to inform, educate and support the victims.
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Author: Roberta Secuianu
[1] Activity Report for 2022 published by the Prosecutor’s Office attached to the High Court of Cassation and Justice, p. 129, available at https://mpublic.ro/sites/default/files/PDF/raport_activitate_2022.pdf, accessed on December 18th, 2023, 15:38.
[2] Press release entitled Interventions to prevent and investigate domestic violence, available at www.politiaromana.ro/ro/stiri/interventii-pentru-prevenirea-si-investigarea-violentei-domestice1696146397, accessed on December 19th, 2023, 11.24 a.m.
[3] The concept of cyber violence was regulated in July 2020 by Law 106/2020 on amending and supplementing the Law 217/2003 on preventing and combating domestic violence. This form of domestic violence includes online harassment, online messages inciting gender-based hatred, online stalking, online threats, non-consensual publication of intimate information and graphic content, unlawful access to intercept private communications and data, and any other form of misuse of information and communication technology through computers, smart mobile phones or other similar devices that use telecommunications or can connect to the internet and transmit and use social or email platforms, with the purpose of shaming, humiliating, frightening, threatening, silencing the victim.
[4] Buhuceanu and Others v. Romania, para. 78 et. seq.
[5] G. Stoican, Domestic violence or violence in the family? The need for a unified regulation regarding the main institutions in the field of domestic violence, Human Rights Journal, Romanian Institute for Human Rights, no. 1/2020, Bucharest, 2020, p. 46.
[6] L.E. Walker, Psychology and Domestic Violence Around the World, American Psychologist, January 1999, vol. 54, no. 1, p. 23.
[7] Domestic violence refers to the commission of murder, aggravated murder, assault or other violence, bodily harm or assault or battery causing death against a family member. Thus, according to Article 199 para. 1 of the Criminal Code, if the offences referred to in Articles 188, 189 and 193-195 are committed against a family member, the special maximum penalty provided for by law shall be increased by one-fourth.
[8] Art. 177 para. 1 Penal Code.
[9] Kroon and Others v. The Netherlands, 18535/91, para. 30.
[10] N. Corcea, Ethimological identification of the term domestic violence, National Law Review no. 1/2015, p. 53.
[11] Nita A. J., The Convention of Istanbul – added value versus problematic aspects of regulation, Universul Juridic no. 12/2022, p. 72.
[12] Art. 3 lit. a. Convention of Istanbul.
[13] Art. 3 lit. b. Convention of Istanbul.
[14] For example, the Decision 1547/2022 approving the National Strategy for the promotion of equal opportunities and treatment between women and men and the prevention and combating of domestic violence for the period 2022-2027 or the Methodology on measures to prevent domestic violence adopted by the Ministry of Family, Youth and Equal Opportunities by Order 20266/2023.
[15] Without proposing to carry out an economic analysis, it should be noted that the minimum legal fees for filing a criminal prosecution (i.e. 810 RON) or, for example, for filing a divorce petition without minors (i.e. 2320 RON) may prove disproportionate in relation to the net value of the average salary in Romania in October 2023 (i.e. 4692 RON). Source: www.unbr.ro/wp-content/uploads/2023/06/Hotarare-Consiliu-353-2023_ghid-onorarii-minimale-recomandate_actualizare-IPC-aug2020-apr2023_cu-anexa_comunicata.pdf
N.B.: Onorariile minimale prevăzute în hotărârile Uniunii Naționale a Barourilor din România au caracter de recomandare;
[16] Art. 70 para. 2 of Law 51/1995: In exceptional cases, if the rights of the person lacking material means would be prejudiced by delay, the dean of the bar association may approve the granting of free legal assistance.
[17] Article 28 of Law 217/2003.
[18] For example, the victim must state whether he/she feels threatened by the perpetrator, whether he/she has been a victim of violence in the relationship with the perpetrator, whether he/she fears the perpetrator or whether the perpetrator has threatened to hurt or kill other family members/children.
