Preventing and combating gender-based violence in Kosovo
Recommendations on the implementation of the examples of good practice from the Czech Republic
– POLICY PAPER –
The aim of this document is to present the basic principles of some of the measures used in the Czech Republic for the effective implementation of instruments for the prevention and combating of domestic and gender-based violence (hereinafter referred to as domestic violence), a discussion of the possibilities of using similar measures in Kosovo and the resulting recommendations for relevant institutions.
- Political Framework in Kosovo
The public policy framework for preventing and combating domestic and gender-based violence in Kosovo is based on the Government’s strategy, the National Strategy on Protection Against Domestic Violence and Violence Against Women 2022-2026, by which Kosovo subscribes to the principles of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Treaty).
National Strategy is based on the vision: A society where everyone is safe and equal and lives without the fear or threat of domestic violence and violence against women, aiming at preventing and not tolerating violence, protecting, reintegrating and empowering victims, and holding perpetrators accountable.
The main objectives of the National Strategy:
- take responsibility for prioritizing all cases of domestic violence and violence against
- provide sufficient human, financial and infrastructural resources to combat domestic
violence and violence against women;
- provide access to quality integrated services;
- guarantee justice for victims and survivors;
- provide reintegration and empowerment of victims/survivors of domestic violence and violence against women;
- punish, re-socialize and rehabilitate perpetrators of violence;
- raise the awareness of the whole society against domestic violence and violence against women.
- Legal Framework in Kosovo
The proper treatment of the phenomenon of domestic violence requires serious and professional commitment of all relevant actors to prevent, help and protect the victims of domestic violence both in formal and material terms. Taking into account the processes that Kosovo has gone through, a specific legal framework has been approved for dealing with the phenomenon of domestic violence.
In this regard, in 2010, Kosovo Institutions adopted the first national Law on Protection from Domestic Violence, thus including domestic violence in the Criminal Code, followed by the National Strategies for Protection from Domestic Violence 2011-2014 and 2016-2020.
Moreover, the Standard operating procedures were established, ensuring that all victims of domestic violence are treated with respect, and informed about their rights. The state institutions and other partners harmonize and coordinate cooperation in the phases of activities of identification, referral, protection, rehabilitation and reintegration of victims of domestic violence and families of perpetrators of domestic violence.
Moreover, on September 25, 2020, the Assembly of Kosovo approved the amendment to the Constitution giving direct effect to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), and demonstrating its genuine political interest to take action to prevent and combat violence against women and domestic violence. The Istanbul Convention contains a comprehensive set of provisions that include broad measures and obligations covering four areas of action, often called its four pillars: 1) Prevention of violence against women, 2) Protection and support for victims, 3) Prosecution of perpetrators of violence, and 4) Implementation of related comprehensive and coordinated Policies (i.e. integrated policies). These four pillars include various provisions, requiring legal, policy and practical measures aimed at ensuring an adequate response against violence against women and domestic violence by all relevant sectors, including justice, law enforcement, social, health and education sectors, and other sectors. After the amendment of the Constitution giving direct effect convention on September 25, 2020, the National Strategy for Protection from Domestic Violence and Violence against Women (2022-2026) was approved in January 2022, which represents the main policy instrument of planning measures to address violence against women as defined in article 3a of the convention.
- Comprehensive legislation on protection against domestic violence in the Czech Republic
Comprehensive legislation on protection against domestic violence came into force in the Czech Republic in 2007, on the basis of Act No. 135/2006 Coll., amending certain acts in the field of protection against domestic violence. The legislation is based on the existence of a set of interrelated measures to prevent and combat domestic violence, based on the direct participation of state institutions and civil sector institutions and their mutual cooperation at the individual level (protection of individual victims) as well as at the conceptual and methodological level. The basic measures of protection against domestic violence are:
- Protection of the person at immediate risk of domestic violence – assessment of domestic violence incidents, expulsion of the perpetrator
- Immediate provision of psychological, social and legal services to the victim by an independent (non-state) institution – intervention centre
- Civil legal means of protection for the victim – judicial interim measures for protection against domestic violence
- Interdisciplinary cooperation between the institutions involved
- Specific guarantees for the protection of the rights of the victim – protection of rights in criminal proceedings, right to free legal aid, right to free professional counselling
- Criminal law safeguards – specific offences in the field of domestic violence, including protection of the victim in the event of the perpetrator continuing to act after the end of cohabitation (protection against stalking)
- Methodology for the evaluation of domestic violence incidents by the Police of the Czech Republic
- Obligation to respond to every report of an incident of domestic violence
In the event of a report made by telephone to the emergency line by a person directly threatened by an attack by a violent person, an investigation shall be carried out immediately in the common dwelling to assess the seriousness of the threat. The same procedure shall be followed if the notification is made after the attack (e.g. at a Police station), i.e. at the time of notification the incident of domestic violence has ended.
- The intervening police officer has the necessary competences and skills
Immediately after the entry into force of the comprehensive legislation (in 2007), a special training programme was formulated, aimed at recognising the phenomenon of domestic violence, understanding the position of the person at risk and the violent person, the methodology of assessing domestic violence incidents, support for victims and the treatment of perpetrators. In particular, all members of the riot police service (whose remit includes first contact with domestic violence incidents, i.e. investigations in shared housing) were trained as part of the intensive programme. Training in the field of domestic violence was also included in the basic training (entry training), which all applicants for service in the Police of the Czech Republic are obliged to undergo. Continuous training in dealing with domestic violence incidents is also organised for officers of the riot police service. A prerequisite for ensuring effectiveness in the prevention of domestic violence is to emphasize the deepening of the competences of police officers intervening in such incidents.
- The intervening police officer shall be familiar with the risk factors at the place and time
Prior to intervening in a shared dwelling, police records are checked to determine whether the persons in question have a history of incidents or evictions, whether the threatened or violent persons are in possession of firearms or are perpetrators of violent crime, or other relevant facts.
- The intervening officer shall observe for the presence of symptomatic signs of domestic violence, to wit:
- the presence of any form of violence (psychological, physical, social, economic, sexual) between persons living in a shared dwelling,
- repetition and longevity (cycle of violence repeats: tension rises – violent incident -calming down),
- a clearly identifiable division of roles (the violent and the threatened person can be distinguished, the relative positions are unequal and the roles do not change during the course of the incidents),
- increase in the intensity of violence (incidents are more frequent, violence escalates – from humiliation, insults to physical assaults, restriction of personal freedom, blackmail, threats).
- The threat assessment shall consider the condition of the dwelling
The intervening officer shall primarily request the threatened person’s consent to enter the dwelling. If consent is not given, this shall not be an automatic bar to determining the condition of the dwelling (the threatened person may be acting under duress or threats of violence). In such a case, the police officer shall arrange access to the dwelling according to the principles of forced entry (e.g. suspicion of committing a misdemeanour or a crime), and in case of uncertainty about the relevance of the threat, the threatened person shall be contacted by the operations centre.
The police officer focuses on detecting signals of possible violent behaviour, e.g. damage to the equipment of the flat, the area designated for the threatened person, etc.
- Spatial separation of the threatened person and the violent person
In order to prevent the continuation of the violent act or increase its intensity or to prevent manipulations by the violent person, the violent person is spatially separated from the threatened person, an analytical interview is conducted with each of them by one of the intervening officers separately – with each of them in a different room so that the content of the interview is not audible, if there are no more rooms in the dwelling, another appropriate measure is taken (e.g. use of the corridor of the apartment building, garden, garage, etc.).
- Protection of children
The police officer shall ascertain whether there are minors living in the shared dwelling, what condition they are in and whether they have been directly affected by the violent behaviour. The police officer shall always ensure that minors are separated from the violent person.
- Assessment of the threat of dangerous assault or particularly serious assault
The aim of the police investigation in the dwelling is to assess the credibility of the report made by the reporting person (i.e. the likelihood that an incident of domestic violence has actually occurred or may have occurred) and, in connection with this, to assess the threat of further dangerous attack (a reasonable expectation that the violent person will commit a dangerous act resulting in a direct threat to the life, health or freedom of the person threatened, e.g. an attack using significant physical force or a weapon) or a particularly serious attack (a reasonable presumption that the violent person will commit a dangerous act resulting in a particularly serious degradation of the human dignity of the person threatened, in particular a threat of gross psychological or sexual humiliation, etc.).
For this purpose, the police officer shall take into account in particular:
- previous attacks, their intensity and number,
- the degree of aggression of the violent person (physical and verbal attacks against the threatened person in the presence of police officers, threats of physical harm),
- the state of impairment by alcohol or other addictive substances and the violent person’s own relationship to alcohol or other addictive substances (frequency and intensity of alcohol or other addictive substance use),
- the violent person’s tendency to use weapons,
- the possession of a firearm by the violent person and the likelihood of its future use against the person at risk,
- the tendency to absolute social isolation of the person at risk,
- making it impossible to meet the basic needs of the person at risk,
- destroying, soiling clothes and breaking objects in the possession of the person at risk with the aim of humiliating him,
- using disapproving language towards the person at risk.
- Controlled interview with the threatened and violent person
The basic tool for threat assessment is a guided interview with the persons involved, conducted on the basis of a standardized questionnaire “SARA DN Questions” (Spousal Assault Risk Assessment), see Appendix. The interview is carried out simultaneously with the threatened person and the violent person, who are separated by space, and by comparing their answers, the assumption of a threat of attack is evaluated as a basis for taking further measures (in particular eviction of the violent person, possibly detention of the violent person in case of a threat of victimisation of the threatened person, especially in the form of an imminent attack on the health or life of the victim, possibly of other persons in the dwelling, typically children).
The findings of the interview are then evaluated in conjunction with the objective facts; the conclusion that there is a threat of attack cannot be based solely on the subjective statement of the person at risk. The objective facts that may serve as a basis for expulsion may be, for example, visible injuries of the person threatened, statements of neighbours or other persons, investigations at the place of common habitation, search of the premises where the violent act took place, investigations from available records, etc. It is true that the fewer factual findings the intervening police authority has to assess whether or not a reasonable presumption has been established, the higher the demands it must place on the credibility and internal integrity of the explanation given by the person threatened.
- Territorial protection of a person at risk – expulsion of a violent person
The basic tool for preventing an imminent attack in an individual case (i.e. in the context of a specific assessment of the threat of an attack by a violent person) is the eviction of the violent person from the common dwelling for a period of 10 days. The expulsion is directly linked to the assessment of the threat of attack and is ordered by the intervening police officer on the basis of the assessment carried out in the common dwelling (see Article 1). Expulsion is purely preventive, it is not a sanction, its principal aim is to prevent an immediate risk of harm to the person threatened (and other persons in the shared accommodation), i.e. to protect them from the violent person, and to prevent an escalation of violent behaviour on the part of the violent person, in particular to give the violent person the opportunity to realise the unacceptability of his behaviour and to change it in the future.
Basic principles of expulsion:
Expulsion is a non-criminal measure which is a preventive response to the dangerous behaviour of the violent person in terms of the risk of future attacks. It does not replace a sanction for the violent person’s behaviour. Expulsion involves an obligation on the person expelled:
- to leave without delay the area defined by the police officer in the eviction certificate,
- to refrain from entering the defined area,
- refrain from personal contacting or making any form of contact with the threatened person,
- surrender to the police officer, on his/her request, all keys to the common dwelling in his/her possession.
Expulsion is based on an assessment of the threat of attack, which objectifies the risk of harm to the person at risk. For this reason, it is irrelevant what position not only the violent person but also the person at risk takes on this measure. The existence of an objective threat does not take into account the possible disagreement of the person at risk; what is also relevant is the prevention of victimisation of the person at risk, who could become, among other things, the object of the violent person’s reproach for having consented to the eviction, which could lead to a further escalation of violent behaviour after the eviction has been completed.
For the purposes of eviction, the legal title of the use of the common dwelling is completely irrelevant. It is always the violent person who is evicted, even if he or she has a stronger right to the use of the space, e.g. if he or she is the owner or tenant of the dwelling and the person threatened has only a derivative right of use, e.g. resulting only from the verbal consent of the violent person.
An eviction in the form of an order to leave the common dwelling immediately and a prohibition to return to the dwelling and to stay there occurs immediately, as part of an investigation by police officers. The police officers shall ensure that the violent person leaves the premises of the dwelling. The evicted persons may take personal belongings, valuables and personal documents with them. If the person is not present at the time of the eviction, the police shall serve the person with an eviction order without delay, stating that the person shall not enter the common dwelling. During the period of the eviction, the evicted person may, at his/her request and in the presence of a police officer, enter the dwelling once in order to collect personal necessities or items necessary for the exercise of his/her profession or business.
- Fundamental immutability
The legal order allows for the possibility of an appeal against the expulsion in the form of an objection, which may only be lodged by the person expelled within 3 days of receipt of the certificate of expulsion. Objections do not have suspensive effect and their filing does not alter the duration of the orders and prohibitions resulting from the expulsion. In the assessment of objections, the sole consideration is the existence of the statutory grounds for expulsion, in particular whether an assessment of the threat of attack has been properly carried out.
The period of banishment of 10 days is fixed and cannot be shortened, even with the consent of the person being banned (again, taking into account the risk of secondary victimisation of the victim, who might act under pressure from the violent person). The period of expulsion is extended if the person at risk files an application for an interim measure for protection against domestic violence, until the court’s decision on the application becomes final.
- Criminalisation of breaches of orders and prohibitions
The institution of expulsion is in itself purely preventive in nature, but this does not mean that the implementation of expulsion is informal, in particular that expulsion ends in a single act. Monitoring compliance with the prohibitions and orders is essential for the effectiveness of the banning order. In particular, the law provides that within three days of the order of eviction, an unannounced and thorough inspection of the common dwelling (including an inspection of all fixtures and fittings of the home, e.g. cellar, garage, cupboards and other areas that can accommodate a person, etc.) is mandatorily carried out by the police to verify that the person being evicted is not on the premises.
In the event that it is found (both during the inspection of the dwelling and on the basis of other facts, e.g. based on a report from the person at risk) that the person being evicted has breached any of the orders and prohibitions, the evicted person may be convicted in criminal proceedings for the offence of obstructing the execution of an official decision and eviction. In the event that the banned person remains in the designated area despite the order, the threatened person may also be sanctioned for committing an offence by allowing the violent person into the dwelling (however, in the case of the threatened person, this is only an administrative offence, not a criminal offence).
- Principle of protection of the rights of the person at risk – follow-up support measures
The comprehensiveness of the measures for the prevention of domestic violence is reflected in the fact that the protection of the person at risk does not end with the fact of the exclusion of the violent person from the common dwelling; on the contrary, the person at risk is given the opportunity to use the period of 10 days of presence without the violent person to treat the psychological and social consequences of the domestic violence and to identify the legal possibilities to further resolve his/her situation.
To this end, immediately after the police have evicted the abuser, the person at risk is provided with information on the possibility of filing a lawsuit for a preliminary injunction for protection against domestic violence (as a measure of so-called personal protection of the person at risk) and on the possibility of using psychological, social or other services in the field of assistance to victims of violence. For this purpose, the person at risk is in particular given the contact details of the intervention centre for persons at risk of domestic violence.
The police also have a notification or information duty towards other relevant entities, and they immediately inform the court, the intervention centre and the child welfare authority (as a public child welfare institution) about the eviction if there are usually underage children in the common dwelling (who are automatically regarded as endangered persons under the law, even if they are not directly affected by violence or the threat of attack).
- Instructions to the evicted person
In the case of an evicted person, it is his/her responsibility to arrange his/her own accommodation and to take care of his/her circumstances during the period of eviction by his/her own means and at his/her own expense. The evicted person shall be provided by the intervening police officers with information on assistance for persons with violent behaviour (e.g. available psychotherapeutic services) and on the possibilities of further accommodation (list of locally available shelters, hostels and hotels).
- Personal protection of a person at risk – judicial interim measures in the matter of protection against domestic violence
In addition to expulsion, the protection of victims and persons at risk is ensured by a specific civil law instrument, which is a court decision ordering an interim measure of protection against domestic violence. An interim measure may be ordered either in addition to the eviction (for which case the fixed duration of the interim measure starts only after the expiry of the eviction) or after the expiry of the eviction. The duration of the interim measure is 1 month, which may be extended for a maximum of 6 months on the application of the person entitled.
The protection afforded to a person at risk under this measure is considerably broader than in the case of expulsion. The prohibitions and orders addressed to the violent person are not limited to a specific area (the dwelling and its immediate surroundings) but are linked to the person of the victim (the violent person may not associate with the victim anywhere, regardless of the defined area).
Judicial protection is based on the principle of voluntariness; proceedings may be initiated only on the application of the person threatened. Therefore, the court cannot prohibit contacts ex officio or at the initiative of a third party, e.g. the police or a person close to the victim.
In the context of an interim measure, the violent person may, depending on the circumstances of the case, be ordered to:
- leave the common dwelling as well as its immediate surroundings, not to stay in the common dwelling or not to enter it,
- not to enter or remain in the immediate vicinity of the common dwelling or the applicant,
- refrain from associating with the person at risk, or
- refrain from unwanted surveillance or harassment of the person at risk in any manner.
An interim measure may also be ordered in cases where the joint household of the victim and the offender has already been terminated, but the offender continues to have unwanted contact with the victim. In such a case, the interim measure is in the nature of protection against conduct fulfilling the characteristics of stalking, i.e. in serious cases the offences of dangerous stalking or dangerous threats.
- Intervention centres for people at risk of domestic violence
Specialised services provided to persons at risk of domestic violence are an indispensable element of the system of comprehensive protection against domestic violence.
Intervention centres play an indispensable role in the eviction of a violent person, as they are the immediate point of contact and counselling for the person at risk or the victim. On the basis of the law, the Intervention Centre is informed by the police about the implementation of the eviction, following which the staff of the Centre actively contacts the person at risk and offers the possibility of providing further support according to the needs of the person at risk, in particular psychological and socio-legal support.
The model of intervention centres is based on their independence from the state and at the same time on ensuring direct financing of their activities from public budgets, within the framework of the legal regulation of social services provision.
Basic principles of intervention centres:
- Legal anchorage
Intervention centres are conceived by the Czech legal system as a specific social prevention service within the meaning of Act No 108/2006 Coll., on Social Services. The Act defines the scope of their activities (support for persons at risk of domestic violence), as well as general mandatory standards for the provision of this service, the forms of the service provided and the target group, which is persons at risk of domestic violence. At the same time, intervention centres are explicitly emphasised by the legal regulation of eviction as an institution of follow-up assistance provided to victims of domestic violence.
The legal regulation and standardisation of the services of intervention centres is an implementation of the principle of effective and efficient protection of victims of domestic violence, including the right of victims and persons at risk to free socio-legal and psychological assistance, guaranteeing them the realisation of their right to access to justice and a fair trial.
Intervention centres have the nature of a social service provider, they are therefore entities of private law and are independent of the state. They are mostly established in the form of non-governmental non-profit organisations (NGOs), some intervention centres have the legal form of a contributory organisation, the founder of which is the city within the framework of self-government.
Independence from the state is an important basis for the credibility of providers of support for vulnerable persons; intervention centres can act as a confidant of the vulnerable person or victim on this basis. It is often essential for vulnerable persons that their first contact with a support provider (and not exceptionally their first contact with a third party to whom they inform about their situation) is informal and confidential; vulnerable persons need to share their situation, receive basic information about their options and at the same time be given adequate time to freely consider whether to take specific legal action to protect themselves. They therefore need to be assured that the content of their conversation will not immediately be treated as an incentive to sanction the violent person, e.g. to initiate criminal proceedings. The independence of the intervention centres from the state or the public sector gives the persons at risk a sense of security, including the possibility of freely deciding on their next steps without being pressured to initiate repressive procedures against the violent person.
The principle of independence is further supported by the principle of confidentiality; any information provided by the person at risk remains “hidden” in the centre and cannot be disclosed to third parties or institutions without the consent of the person at risk. This principle further deepens the sense of security for the persons at risk, who are not afraid to describe their situation in detail, to confide. Under these circumstances, persons at risk are not bound by the fear that a violent person will find out about the information they have shared and may revenge.
The principle of confidentiality is legally implemented by the statutory duty of confidentiality of the staff of the intervention centres; without a waiver of the duty of confidentiality by the person at risk themselves, any information may not be disclosed to third parties, not even information about crimes committed (typically domestic violence committed between adults, i.e. abuse of a person living in the same household). The only exceptions to this principle are serious crimes for which there is a qualified duty to report (failure to report them is a criminal offence because of the high importance of the protected public interest), this exception typically concerns crimes against children (e.g. abuse of a ward or sexual abuse or rape).
- Low threshold
The services of the intervention centre are provided free of charge and to the general public, i.e. to any person who identifies themselves as a person at risk or a victim of domestic violence. By law, services must be provided, or offered, to the person at risk within 48 hours of the eviction of the violent person. In addition, however, the intervention centres provide services at the request of any person who identifies himself or herself as a person at risk of domestic violence, or on the basis of an initiative by third parties (e.g. in the case of a criminal complaint for suspected abuse of a person living in a shared household in a situation where, for example, the shared household has already been terminated and there is therefore no threat of attack and the use of the institution of eviction is not an option). Services are also provided to witnesses of domestic violence or persons who wish to help resolve the situation of a victim of domestic violence.
Intervention centres are designed as a support option for vulnerable persons, but vulnerable persons are not obliged to use these services (even in the case of eviction of a violent person), cannot be forced to use these services and cannot and must not be sanctioned in any way for not using the services. It is entirely up to the free decision of the person at risk whether or not to cooperate with the intervention centre, a decision based on adequate information about the services on offer (which, on the other hand, must be provided by the intervention centre to the person at risk in the event of the use of the instrument of expulsion).
The legislation is based on the fact that for persons at risk, the eviction of the violent person itself may be an entirely sufficient protective measure, just as they may have other options available to them for accessing the relevant services (e.g. other social service providers or commercial professionals such as a psychologist or attorney). At the same time, the legislation takes into account the criminological and psychological perspective of the phenomenon of domestic violence, in particular the usual reticence of the victim of domestic violence, who often needs sufficient time to consider her situation before taking intensive legal action against the perpetrator of the violent act, aimed both at ending the cohabitation and at prosecuting him.
A fundamental principle of the legislation is to ensure that victims and vulnerable persons have access to highly qualified specialist assistance in protecting them from domestic violence.
The services provided by intervention centres are therefore based on the specialisation of their staff in working directly with clients. They must be specialists in the field of domestic violence, trained in this issue, including the specifics of communication with the victim or crisis intervention.
The law regulates general qualification requirements for workers of social service providers, in particular social workers, whose professional competence is conditioned by at least a higher professional or bachelor university degree in (in particular) social work, social policy, social pedagogy, social welfare, social pathology, law or special pedagogy. The intervention centres also include other professionals focusing on the specific needs of the target group, in particular psychologists, psychotherapists, lawyers or health professionals.
Further (specialised) training in the field of assistance to victims of domestic violence is provided by the intervention centres themselves, either as part of the sharing of experience or as part of the Association of Intervention Centre Workers as an interest association of these organisations.
- Financial stability
A prerequisite for the effectiveness of the services provided to persons at risk of domestic violence is the certainty of the availability of intervention centres.
The activities of the intervention centres as providers of social services are financed by law from public budgets, namely from subsidies for social services provided through the regions or directly by the Ministry of Labour and Social Affairs.
However, the financing of their activities is not limited only by public funds; intervention centres are free to obtain funds de facto from any source, typically from local government subsidies, on the basis of specific projects from other state institutions, from the European Social Fund or from non-governmental donors (foundations), as well as through individual or corporate donations.
The effectiveness of the services provided by the intervention centres is supported by their intensive cooperation with other stakeholders within the model of interdisciplinary cooperation. The basic cooperating entities are, by nature, the Police of the Czech Republic and the judiciary, especially the courts. In order to treat the victim’s situation comprehensively, cooperation is also typically with the helping entities where the first contact with the victim or the person at risk occurs, e.g. municipal police, marriage counselling centres, other social service providers and NGOs, misdemeanour commissions, the Probation and Mediation Service, health care facilities, schools, etc.
Interdisciplinary cooperation is implemented both at the individual level, when dealing with the situation of a specific victim or person at risk, and at the methodological and coordination level.
From the perspective of the specific person at risk, the principle of cooperation is essential in the possibility of recommending or arranging other professional services to treat the specific problems of the victim, e.g. social background (housing and income situation), childcare arrangements (typically in the case of divorce or separation from an abusive partner), children’s educational problems (e.g. due to traumatisation from being present during incidents of domestic violence), accommodation (in the form of crisis or shelter accommodation), addiction services, health services, etc.
Intervention centres can offer services in outpatient, outreach or residential form. The basic activities they must offer are psychological, social and legal services.
- Qualified protection of victims of domestic violence in criminal proceedings
It should be stressed that the use of any of the above measures for protection against domestic violence does not preclude the simultaneous prosecution of the violent person (perpetrator) for an offence fulfilling the symptoms of domestic violence.
Criminal law protection of victims of domestic violence is based on the existence of individualised offences. This approach makes it possible to take into account the specifics of the range of violent acts by which domestic violence can be perpetrated (in the forms of physical, psychological, sexual, economic and social). In addition to the offences that affect the consequences of domestic violence, whether in the form of completed offences or in the stage of attempt or preparation (in particular, offences against life and health, against freedom, against sexual dignity, against family and children, against property), special offences relating to the phenomenon of domestic violence are regulated, namely:
- Abuse of a person living in the same household (in short, domestic violence between adults)
- Abuse of a person entrusted to care (in short, domestic violence against minor children or against adults under the influence of the abuser for another reason, e.g. a person who is deprived of his or her legal capacity because of a serious mental illness)
- Offences fulfilling the characteristics of stalking, namely dangerous stalking and dangerous threats.
The legal order, or Act No. 45/2013 Coll., on victims of crime, grants special legal guarantees to victims of specific crimes involving domestic violence (both acts of abuse and the crime of rape). The victim of abuse is regarded as a particularly vulnerable victim of the crime, from which the victim’s rights derive, inter alia, to:
- Free professional assistance, which means psychological counselling, social counselling, legal assistance, provision of legal information or restorative programmes, before, during and after the criminal proceedings,
- Free legal assistance by an attorney as an agent of the victim in criminal proceedings.
- Discussion – preconditions and obstacles to the implementation of Czech legal measures in the legal environment of Kosovo
During the last ten years, significant efforts have been made in Kosovo to draft specific laws and protocols, as well as comprehensive and coordinating policies and mechanisms to respond to domestic violence. In this regard, the Law on Protection from Domestic Violence approved in 2010 and the Standard Operating Procedures (SOPs) for Protection from Domestic Violence approved in 2013 and National Strategies for Protection from Domestic Violence are central instruments that define measures to help and protect victims of domestic violence. The appointments of the National Coordinator against Domestic Violence and the Inter-ministerial – Coordinating Group against Domestic Violence, linked to senior political mandates, also illustrate political will of Kosovo to improve the drafting and implementation of comprehensive laws and policies in this field. On the ground, the creation of municipal coordinating mechanisms against domestic violence, and the appointment of specialized police units, prosecutors and judges also demonstrate the will to develop a tailored and multi-agency response to the needs for assistance and protection of victims of violence in family.
Recently, the measures taken by the authorities show their interest in aligning the legal and political framework in Kosovo with the standards of the Istanbul Convention. The National Strategy for Protection from Domestic Violence and Violence against Women (2022-2026) approved in January 2022 is the best example promising these efforts to design policies using the convention as a reference point for it cover other forms of violence against women, beyond domestic violence. Another positive development to be had highlighted is the ongoing reform of the Law on Protection from Domestic Violence and the SOPs for Protection from Domestic Violence, the scope of which is planned to be expanded to ensure that women victims of against all forms of gender-based violence you can be provided with protection and support.
Despite these important advances, Kosovo has shown the urgent need to address the practical shortcomings in the protection and assistance of victims of all forms of violence against women covered by the Istanbul Convention. As such, greater efforts must be made to ensure that relevant professionals in all key sectors, including but not limited to the judiciary, law enforcement, health and social care, are trained and equipped to support all victims in a gender-sensitive and victim-centred manner. Such measures would require addressing gaps in current legal and policy frameworks and their implementation, in relation to support and protection of victims, including lack of access to sustainable resources for specialized support services provided by NGOs, uneven assessment performance comprehensive risk. and deficiencies in the timely issuance and monitoring of restraining orders and emergency protection.
Kosovo does not have specific legislation for housing victims of domestic violence in Kosovo. However, their licensing, responsibilities, funding, oversight, relationship with central and local level institutions, as well as cooperation with other relevant parties, are regulated by a wide range of legal documents. These documents can are grouped into two categories; the first refers to the legislation that deals directly with it domestic violence; and the second, the legislation that regulates the functioning of organizations non-governmental organizations that provide social services to people in need, including victims of domestic violence.
Finally, the current system in Kosovo does not understand and address it the long-term impact of domestic violence/women, including its long-term economic and psychological effects. Therefore, measures are needed to guarantee the socio-economic empowerment of women victims of gender-based violence, including in the context of social assistance, employment and property policies.
Based on the law on protection from domestic violence, there are 3 types of protective order: temporary emergency protective order issued by the head of the regional unit of the Kosovo Police against domestic violence, which is valid during the days when the Court does not work, the Emergency protective order that is issued by the Competent Basic Court at the request of the party within 24 hours, as well as the protective order that is issued by the Competent Basic Court at the request of the party within 15 days.
The protective measures that are foreseen by this law, and which can be requested in the process of the protective order are: the prohibition of providing a certain distance to the protected party, the removal of the perpetrator of domestic violence from the residential facility where the protected party lives, the appointment of a temporary guardian of the protected party’s children as well as alimony for the children and the protected party, payment of rent, accompanying the police during the collection of personal belongings of the protected party, allowing the protected party to return to the shared house, forced medical treatment for persons with mental disorders and/or drug and alcohol users, the prohibition of the use of any violent action according to the definition of the law on protection from domestic violence, etc. The duration of protective measures is a maximum of 12 months with the possibility of extension for another 12 months.
While the protective measures that are applied in the Czech Republic, such as the removal of the perpetrator of domestic violence from the house for a period of 10 days through a Police order is a very necessary measure which is not defined by law in Kosovo. However, this measure is aligned with the protective measures issued by the head of the regional unit of the Kosovo Police with a temporary Emergency protective order, or in criminal proceedings where the perpetrator of violence is detained for 48 hours or even by being assigned a detention measure according to the prosecutor’s proposal.
Based on the above information and reasons, it appears appropriate and desirable to recommend to the relevant state institutions for implementation in the Republic of Kosovo the following measures:
- Emphasize the importance of NGOs in the system of assistance to persons at risk of domestic violence, especially because of their independence from the State or public authority, guaranteeing greater confidence of individuals to use their services in dealing with sensitive issues and situations related to domestic violence.
- To create a basis for the establishment and functioning of a system of specialized intervention centres for persons at risk of domestic violence, as private law entities independent of public authorities, including local government, especially from among specialized NGOs.
- To implement a pilot project of an intervention centre for victims of domestic violence, established by a specialised NGO selected on the basis of transparently established criteria in an open tender procedure, and to provide funding for the pilot project.
- Formulate standards for services provided by intervention centres and standards for training of staff in direct work with victims and persons at risk of domestic violence.
- Establish the basis for stable funding of intervention centres with public budgets.
- Involve specialised NGOs (NGOs working with victims of domestic violence, NGOs working in the field of human rights protection, especially women’s rights) in the system of coordinated cooperation in addressing domestic violence at the individual and methodological level.
- Strengthen the effectiveness of instruments for the protection of persons at risk of domestic violence, in particular the process of assessing the threat of attacks and eviction of the violent person, using good police practice in the Czech Republic.
Republic of Kosovo, National Strategy on Protection Against Domestic Violence and Violence Against Women 2022 – 2026, in https://kryeministri.rks-gov.net/wp-content/uploads/2022/08/ENG-Strategjia-Kombetare-per-Mbrojtje-nga-Dhuna-ne-Familje-dhe-Dhuna-ndaj-Grave-2022-2026.pdf
Police Presidium of the Czech Republic, Methodological Manual No. 1/2022 of the Director of the Directorate of the Riot Police Service of the Police Presidium of the Czech Republic on the implementation of the Instruction of the President of the Police No. 181/2020 on the procedure for dealing with incidents with signs of domestic violence, and on the implementation of evictions
Police Presidium of the Czech Republic, Instruction of the President of the Police of 3 August 2020 on the procedure for dealing with incidents with signs of domestic violence
Čírtková, L, Domestic violence. Dangerous relationships in the 21st century, Publishing house Aleš Čeněk, s.r.o., 2020
Expert texts: Association of Work Intervention Centres, in http://www.domaci-nasili.cz/
Expert texts: White Circle of Safety, z.s., in https://www.bkb.cz/
Council of Europe Convention on preventing and combating violence against women and domestic violence (CETS No. 210), in https://www.coe.int/en/web/istanbul-convention/text-of-the-convention
Act No. 135/2006 Coll., amending certain acts in the field of protection against domestic violence
Act No 273/2008 Coll., on the Police of the Czech Republic
Act No. 108/2006 Coll., on Social Services
Act No. 40/2009 Coll., Criminal Code
Act No. 89/2012 Coll., Civil Code
Act No. 292/2013 Coll., on Special Court Proceedings
Act No. 45/2013 Coll., on Victims of Crimes
Compiled by: Counselling Centre for Citizenship/Civil and Human Rights, Prague, Czech Republic, www.poradna-prava.cz, in cooperation with: Civil Rights Program Kosovo, www.crpkosovo.org, November 2022
Appendix: SARA DN Questions
Specify the answer for any question in this part when YES is selected.
Part 1: Violence in close relationship
Does the violent person commit physical or sexual violence:
(e.g., physical and sexual assaults, attempts at such assaults, use of weapons)
YES – NO – NOT DETECTED*)
Does the person threaten with serious violence, openly speaks about their violent intentions:
(e.g., voices murderous or aggressive thoughts, plans, destroys endangered person’s favourite belongings) YES – NO – NOT DETECTED*)
Do the violent person’s physical or sexual violence, threats and violent intentions escalate:
(e.g., increasing cruelty, frequency or diversity of violent acts, threats or intentions)
YES – NO – NOT DETECTED*)
Does the violent person break court orders and other regulations:
(e.g., bail conditions, trial period, conditional release, sentence of ban on residence, social guarantees, probation, etc.) YES – NO – NOT DETECTED*)
Does the violent person express opinions and attitudes that approve of violence:
(praises and excuses the abuse of power and various forms of violence, is morbidly jealous, has an urge to control close persons, belittles or denies domestic violence)
YES – NO – NOT DETECTED*)
Part 2: General violent tendencies of the violent person
Does the violent person commit general crimes:
(is the violent person antisocial in public (i.e., excluding domestic violence), is there any information about such behaviour, do they own a weapon) YES – NO – NOT DETECTED*)
Is there any information about problems in previous relationships:
(did the violent person have issues establishing and maintaining a long-term close relationship (repeatedly abandoned the partner, violence in the relationship)
YES – NO – NOT DETECTED*)
Does the violent person have employment or financial problems:
(e.g., they are unemployed for a long time, often change jobs, have significant financial problems)
YES – NO – NOT DETECTED*)
Does the violent person have a substance use disorder or other addiction problems:
(e.g., problems associated with the use of illegal drugs, alcohol or prescription drugs, gambling addition, e.g., slot machines) YES – NO – NOT DETECTED*)
Does the violent person have mental health problems:
(e.g., obvious signs of losing contact with reality, extreme behaviour deviating from the norm)
YES – NO – NOT DETECTED*)
Part 3: Vulnerability of the endangered person
Does the endangered person have a contradictory attitude towards the violent person:
(even though they want to distance themselves from the violent person, they maintain regular or irregular contact with them, they deny and excuse violent person’s actions, blame themselves)
YES – NO – NOT DETECTED *)
Are they afraid of the violent person:
(i.e. their level of fear significantly affects their ability for self-defence, their fear traumatizes and paralyses the person)
YES – NO – NOT DETECTED*)
Does the endangered person have issues ensuring their safety:
(there is a great risk in case the endangered person does not have any knowledge about where to find help, is not able to ensure their safety, does not know their rights, has little or no contact with their friends and original family)
YES – NO – NOT DETECTED*)
There are objective obstacles which prevents ensuring safety of the endangered person (not only at the place of their residence but also at work):
(these places do not guarantee safety, there is lack of support from other people, sources of help are not quickly and easily available, there is an issue with the availability of traffic services)
YES – NO – NOT DETECTED*)
Does the endangered person have serious personal problems:
(e.g., employment or financial problem, legal issues, mental health issues, substance use problems)
YES – NO – NOT DETECTED*)
Have the conditions for a banishment of a violent person been met? YES – NO*)
If NOT, briefly clarify why:
Questionnaire conducted by: ……………………………………….
(rank designation, name, surname)
*) Delete if not applicable.