Domestic violence: how it will be punished?

The Law of Ukraine “On the Prevention and Counteraction of Domestic Violence” entered into force more than a year ago. However, according to statistics, the situation with domestic violence in Ukraine has not changed radically.

According to the Ministry of Social Policy, 70% of women have faced violence, of which 31% in the last 12 months. The National Police reports that 90% of complaints about domestic violence come from women.
Every third woman, who seeks the advice on family matters of our Attorney at law complains about domestic violence. Most of them do not appeal to the police. Those who have appealed to law enforcement agencies at least once complain about their inefficiency in dealing with such situations.
To date, our legislation identifies four special measures to combat domestic violence, which are drawn from the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Similar rules apply in all European countries that are signatories to this Convention.

Preventive work with the offenders
It is the most important measure prevention of violence, but it actually does not apply. The reason is that the Ministry of Internal Affairs of Ukraine has not yet issued the special order, which would regulate the procedure for registering offenders (although the draft order has been considered by the Ministry of Internal Affairs of Ukraine since last May).

Completion programs for offenders
Local state administrations and local governments have not yet established programs, that must base on the existing Model Program for Offenders, approved by the Order of the Ministry of Social Policy of Ukraine. Therefore, abusers still do not undergo special programs aimed at correcting their behavior and psychological state.

Urgent prohibition order
An urgent prohibition order is issued to the offender by a unit of the National Police. It is issued only in the case of the threat of a victim’s life or victim’s health in order to immediately stop domestic violence for up to 10 days. An urgent prohibition order may contain such measures (one or all): the obligation to leave the place of residence of the injured person, the prohibition to enter and stay in the victim’s place of residence, the prohibition of any contact with the victim.
And again – this measure in practice still does not work. The reason is that the scale of risk assessment of domestic violence has not yet been approved. Without this scale of risk, police officers cannot issue urgent prohibition order. Although the Order of the Ministry of Internal Affairs of Ukraine No. 654 «On Approving the Procedure for Issuing Urgent Prohibition Orders Against the Offender by the Authorized units of the National Police of Ukraine» has already entered into force. And according to the National Police, special forms for risk assessment have already been printed.
The police officer can issue an urgent prohibition order with the obligation of the abuser to leave the place of residence only in case of a high level of danger. That order can be issued even if such housing is his (her) personal private property.
Many scholars and legal practitioners opposed to the introduction of an urgent prohibition order. They refer to the lack of a judicial procedure for its issuance and property rights violations of the so-called “offender”. Of course, this opinion makes sense, since to a certain extent it goes against the principle of the inviolability of the home-ownership rights.
Some experts predict that law enforcement officers will take the side with the “victim”. That is, policemen will not handle with family feuds, but they will be able to issue an order that the abuser leaves the common home. Such situations can be provoked by the “injured” family member and it is aimed at resolving property issues or creating a negative image of the “offender” in other family disputes that are heard in court.

Restraining order
It is easier. The restraining order for the abuser works in practice.
Such an order imposes on the offender one or more time restrictions, in particular, the prohibition to be at the place of cohabitation with the victim; approach a certain distance to the place of residence, study, work of the victim of violence; prohibition of personally and through third parties to search for the injured person, to conduct correspondence with her (him), telephone calls.
Unlike an urgent prohibition order, a restraining order can be issued only by the court at the request of the for up to 6 months. Such applications are considered in a separate proceeding up to 72 hours.
The applicant in such cases must prove the systematic nature of the violence and its separation from family conflict. Particular attention should be paid to collecting evidence, in particular, evidence of appealing to law enforcement agencies, bringing the abuser to administrative responsibility for domestic violence, witness testimony, audio, video recordings, and etc.
Judicial practice shows, in the Lviv region the courts of the first instance considered in the period 2018-2019 about 40 cases of issuing restraining order, and only in 12 cases the applicant’s claims were denied. This indicates that it is quite possible to prove the fact of violence and get a restraining order. The main at the stage of court proceeding is to attract professional legal support. Most important thing – victims of domestic violence can receive free secondary legal aid.
It should be noted, that the law does not provide for the possibility of repealing a restrictive prescription, even if the person is found innocent of committing a crime or an administrative offense for domestic violence. The only way to solve such a problem may be the annulment of a court decision on newly discovered circumstances.
The national practice in combating domestic violence faced with many problems: the delay in the development and adoption of relevant by-laws, programs, the declarativeness of individual laws and the imbalance in increased responsibility for the commission of domestic violence and the lack of effective preventive measures for it.
In addition, the imperfection of legislative instruments to counter domestic violence in practice is complemented by the lack of professionalism of law enforcement officers, who do not take into account the specific situations and in some cases ignore reasonable challenges and do not distinguish family conflict from domestic violence.
It is assumed that a comprehensive system of combating violence will be able to fully work and effectively reduce the percentage of domestic violence only after the adoption and introduction of appropriate preventive programmes, that is, no less than two or three years later.

 

Domestic violence: how it will be punished?
You may like
A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
20/01/2022

We will
call you