Ukraine: legislation on domestic violence
Ukraine’s legislation on domestic violence gets a reboot – but is it enough?
Ukraine’s parliament may be afraid of words such as “gender”, but a recent law goes some way to fighting domestic violence.
This article was originally published on opendemocracy.net
4 March 2020
In 2017, Ukraine initiated a reform of legislation on domestic and sexual violence. The now former president Petro Poroshenko signed a law (“On Preventing and Counteracting Domestic Violence”) which launched this reform process.
Ukraine’s parliament may not have ratified the Istanbul Convention on combating gender-based violence due to the presence of the word “gender”, which angers a certain section of parliamentary deputies. But this law still puts the Convention’s main provisions on protection, prosecution and policy into force.
Ukraine’s new domestic violence law came into effect in 2019. The changes and effects it has brought are praised from every side: lawmakers, law enforcement and experts see it as making a positive change.
But if you look closely, there’s room for improvement.
The 2017 law presents “an integrated approach to combating domestic violence,” as well as a framework for developing necessary tools. More importantly, it criminalises domestic violence and distinguishes between physical, sexual, psychological and economic domestic violence – something previously unseen in Ukraine. The law also requires the establishment of shelters, additional hotlines, a unified state register of investigations of domestic violence and social programmes for victims.
As a result, Ukraine’s Criminal Code received a new statute, Article 126-1. This states that “the systematic physical, psychological or economic violence against a spouse or former spouse or another person with whom the perpetrator is (was) in a family or close relationship” is a criminal offence. The word “systematic” is key here.
Previously, perpetrators of domestic violence could face only administrative procedures, with a fine between 170 and 340 hryvnias (between £5 and £10). And it would often be women who paid the fines as they are, in general, the ones who take care of family finances. But now offenders can receive a community service order from 150 to 240 hours, arrest for up to six months or a prison sentence of up to five years.
The Ukrainian police now have the power to issue restraining orders on the spot, but they are only valid for up to 10 days. Orders may be extended through the courts for up to six months, which means that it’s essentially the judge who will issue the restraining order. In comparison to western practices, in Ukraine it is the victim who has to request a restraining order.
Serhiy Pernykoza from the Association of Ukrainian Human Rights Monitors on Law Enforcement points out that this reform didn’t go smoothly, particularly when establishing regulations on restraining orders.
“It took them ten months to develop the urgent restraining order instead of the six specified by law,” Pernykoza says. “And the system of risk assessment, according to which a police officer must make a decision when delivering an urgent restraining order, has only been operational since May 2019. Because of that, for a long time an offender could easily avoid responsibility by simply stating in court that he has not received an order.”
One of the flaws in the new law is the lack of a procedure for collecting evidence in cases of sexual abuse or rape, including child molestation. As for now Ukrainian law has a loophole: it says that only an expert can provide evidence which can be used in court, and at the same time, these experts are few and far between. It’s almost as if there are no sexual assaults in Ukraine because sexual violence cases don’t get to court.
Good training, limited powers
An important step on the path towards fighting domestic violence was the creation of the “Polina” police unit – a specialised group of police officers whose duty is to respond to cases of domestic violence.
Piloted in summer 2017 in districts in Kyiv, Odesa and Severodonetsk, the internationally-led project is still under development – the final plan is to have 45 police groups in every region of Ukraine.
Sylvia Desousa, who acted as gender advisor as part of a Canadian police training mission to Ukraine, tells me that Polina officers have been trained how to interview a victim without retraumatising them, conduct risk assessments and collect evidence of a personal nature.
This kind of training is invaluable. Ukrainian police officers and judges have been, on the whole, lacking when it comes to understanding gender, domestic or sexual violence – these concepts had no provision in law. Now, the Ukrainian National Police Academy has increased the number of training hours in domestic violence from four to eight.
Police officers volunteer to work in Polina, which is named after the abbreviation for “police against violence” in Ukrainian. But after the Canadian mission ended, the Ukrainian state did not continue offering training to new Polina recruits. Officers trained by the international mission have long left Polina, says Olena Rozdolska, precinct officer at the Darnytsia district police department responsible for the domestic violence project. Now it’s staffed by police officers who generally do not have any previous training on gender-based violence.
Part of Desousa’s job was to evaluate whether the Polina programme works. Although it is hard to judge the results of the mission, she says that “we are having the effect that we want.”
But Desousa notes that the conditions which Polina officers are working in pose a problem for the efficiency of their work.
They feel helpless, she says, as they don’t have enough resources to help a domestic violence victim. Sometimes it’s a simple matter of an available car to respond to a call. Instead, Polina officers try all possible tactics as there’s few mechanisms for punishment. They cannot issue a restraining order, nor can they detain an offender unless there’s solid evidence. But if it’s a case of death threats via text messages, the officers can’t do anything.
Indeed, when Ukraine police officers enter a home, they still are afraid that they will get sued. “Even if they’ve entered an apartment with a full right, because they were saving a victim, very often they still have to pay a lawyer from their pocket to defend themselves. They want more support and confidence from the community to do actions in domestic violence cases,” says officer Desousa. “At the same time people should stop thinking that police will come in and stop all of these problems. They are a first intervention, they are a risk assessment.”
As for trainings, Desousa says she didn’t have problems with Ukrainian officers, even when explaining terms as such marital rape or economic violence. The problem, for Desousa, was that both female and male police officers had gender-based prejudices about their work. Male police officers sometimes preferred to work with women because “they write really nice reports”, but sometimes didn’t because “a woman cannot arrest a person”. While some women preferred not to work night shifts and stay in the office.
Cases thrown out
How does Ukraine’s new domestic violence law work in practice? According to Ukraine’s Unified Register of Court Judgments, 2,288 administrative and 42 criminal cases on domestic violence were opened in 2019. So far, most domestic violence penalties have lead to fines of 170 hryvnias (around £5) or they are closed because a plaintiff fails to appear or withdraws their statement.
The reason why so few criminal cases are open is both because Ukraine’s judicial system is slow to change – and because proving the systematic nature of domestic abuse is a long process. For example, the first court decision on domestic violence in Kyiv was made at the end of last year, when a district court sentenced a 33-year-old man to three months in jail for a domestic violence offence. The decision was made after the offender had been charged with an administrative offence on nine occasions.
Another example – this time from western Ukraine – involved a court in the small town of Khust in Zakarpattya, which sentenced a 56-year-old man to 200 hours of community service for continuously harassing his wife while drunk. The victim also called the police numerous times.
Anton Yefimov, the first deputy head of the prosecutor’s office in Kyiv’s Obolon district, explains that “the difficulty [with domestic violence cases] is that systematicity is not legally defined. To distinguish an administrative from criminal offence, a systematic approach is required, that is, a person guilty of domestic violence must have already received an administrative charge.”
Yefimov says that an offender should receive three or more administrative offences before facing criminal charges, even though this is not written in the law. Prosecutors may use other evidence like calls to the police, neighbours’ testimony and so on. But in practice a criminal case is opened when the offender has numerous administrative cases.
Other factors that slow down domestic violence cases is the role of prosecutors and judges – who still fail to understand the cycle of domestic violence. Desousa says that prosecutors will often send cases back to the police on several occasions asking for more evidence. According to official statistics, in more than 90% of court cases judges will send administrative reports back for improvement because of mistakes.
“Prosecutors complain that the police reports are not well done,” Desousa says. “And sometimes it could be a little problem that is not important. And a case should not be thrown out or sent back and not processed because of a mistake in someone’s address.”
Judges, on the other hand, like to work with solid evidence in court, tend to focus on a woman who changes her story, and sometimes won’t even prosecute if testimony is altered, or don’t like it when victims do not attend court.
Moreover, only a third of police administrative protocols on domestic violence receive court rulings today. If the systematic nature of domestic violence can only be proven by the number of administrative cases, this means that the majority of domestic violence cases will never be criminally prosecuted.
Thus, the legal concept of systematic domestic violence may seem attractive and logical on paper, but it’s proving to be slow and inadequate in practice. Plus, it may not be necessary, Sylvia Desousa points out. “They want to prove systematic violence,” she says. “But we know that victims will be abused an average 20 times before they call the police for the first time.”
“So your systematic is already there. But they want evidence from neighbours, family. The woman is giving you a declaration, she’s telling you ‘it happened Wednesday, then Friday…’ Why aren’t you taking that as valuable evidence? If there’s a rape happening in the bedroom, even marital rape, do you think the neighbour is witness? No. It’s very private. So why don’t we accept what the survivor woman is saying?”
Ukraine has taken its first step in combating domestic violence. Now the question is how many more years will it take to make the country’s law on domestic violence more efficient. In the meantime, there is a strong need for more shelters, more resources and more encouragement to call the police when witnessing or experiencing domestic violence.