No. 9669 of 18.12.2006 On Measures against Violence in Family Relations

Introduction

The Albanian Law on Measures against Violence in Family Relations (the Law) (translation provided by Emira Shkurti; translated version of the law includes tracked changes) is an important step in Albania’s effort to address domestic violence.  The Law includes promising features that will facilitate its implementation.  Those features include specific details about what should be included in protection measures ordered by the district court and criminalization of the violation of a protection order. The Advocates for Human Rights commends the drafters of the Law and encourages the Albanian government and civil society to carefully monitor the implementation of the Law to ensure that it promotes victim safety and offender accountability for domestic violence. 

Comments on Specific Articles

Article 1.2: Scope

The law should clearly state that its primary purpose is the promotion of victim safety and offender accountability. Addressing violence against women in intimate partner relationships should be a priority reflected in the law. 

Child protection should be addressed in a separate statute.  In cases of violence against children, other issues should be considered including possible removal from a violent parent, visitation issues, re-unification issues and the involvement of social service agencies.  These issues are best addressed in separate legislation focused on the protection of children.

Article 3: Definitions

The definition of violence should focus on physical harm or the fear of physical harm.  The definition provided in the Law is too vague as it includes any act or omission of one person against another, resulting in violation of the physical, moral, psychological, sexual, social and economic integrity.  This definition is open to abuse and to retributive counterclaims by violent perpetrators.  For example, a perpetrator may claim that physical violence is an appropriate response to an act of “psychological violation.”

Article 6:  Lead Responsible Authority Objectives

This article reflects the intent that government agencies work in partnership and collaboration with non-profit agencies in providing services to domestic violence victims and providing funding for those services.  This is an effective and efficient approach.  Providing services for victims is best achieved by non-profit agencies with experience and expertise on domestic violence.  These services should be supported by funding from the government.

Services to victims should be the primary priority of the law, not services for perpetrators. 

Article 6(e) requires the Ministry to maintain statistical data on the level of domestic violence.  Law enforcement and judicial agencies should also be explicitly required to document the facts of a domestic violence incident, measures taken, and other statistical data such as gender and relationship of the parties. Statistics should also be maintained on the number of calls regarding domestic violence which police receive, arrests and non-arrests, prosecutions, convictions, and compliance with court orders. 

Article 7:  Duties of Other Responsible Authorities

Article 7(1) The Law should explicitly require that police departments develop written policies that dictate police response to domestic violence cases.  Police departments should be required to collect data on the nature and extent of domestic violence cases.

Article 7(3) The Law should require domestic violence training for judges.  The Ministry of Justice should be required to collect data on the nature and extent of domestic violence cases.

Article 8:  Duties of All Responsible Authorities

Article 8(4) should clarify that police authorities should treat the violation of a protection order as a crime, as is articulated in Article 17, and impose criminal sanctions as authorized by law.

Article 9:  Subjects Who May Report to Responsible Authorities

Article 9(2)  To the extent the Law authorizes government officials or others to take measures on the victim’s behalf without the victim’s consent, the Law presents a risk to victims.  Victims of domestic violence are most often the best judges of the dangers presented to them by violent partners.  Therefore, it is not advisable to exclude them from any decision regarding protection orders, separation from violent offenders or other measures.  

Article 10:  Protection Measures against DV

Article 10 includes important details about protection measures and specific directives for district courts.  This level of detail facilitates effective and efficient implementation of the Law.

The exception to provisions forbidding the perpetrator from approaching places frequented by the victim for “work-related reasons” in Article 10(1)(e) may present a risk to victims.   

The requirement in Article 10(1)(f) to immediately place the victim and minors in shelters will likely discourage victims’ use of the Law.

Article 13: Subjects Entitled to Request Protection Orders

Authorizing third parties to petition for a protection order on behalf of victims may compromise the interests and safety of domestic violence victims.  Victims themselves are most often the best judges of the dangers presented to them by violent partners.  Therefore it is not advisable to exclude them for the decision to apply for a protection order.

Article 14: The Form of the Petition

The requirement in Article 14(4) that a petitioner must pay court expenses if the petition is not sustained will likely discourage victims of domestic violence from using the law. There should be no cost to petitioners.

Article 15:  Evidence during the Hearing

Article 15(3) clarifies that the court shall make a decision regarding a protection order based solely on the victim’s petition if other evidence is not presented to the court.  This provision is important to preserve the safety of the victim because frequently in domestic violence cases, independent evidence of violence does not exist.

Article 17:  Court Decision for Protection Orders

Article 17(3)(c) includes the very important provision regarding criminalization of the violation of a protection order. Article 17 states that the court shall clarify in its order that violation of a protection order is a criminal offense.

Article 17(5) states that the court shall notify the social services department of its issuance of a protection order.  This provision may deter domestic violence victims from using the law.  Read in the context of Article 10, which allows for placement of minors in shelters, a domestic violence victim may fear separation from her children if she reports violence to government officials.

Article 18:  The Hearing for Emergency Protection Orders

The Law should grant authority to the court to issue emergency protection orders immediately upon the petition of a victim of domestic violence.  The Law should clarify that the court has authority to issue the order based solely on the victim’s petition, without a hearing and outside the presence of the perpetrator or his attorney.  The provision in Article 18 that the court may issue an order within 48 hours of presentation of the petition may endanger the safety of the victim.  This delay is too long.  Victims are often at an increased risk of violence when they seek intervention by courts or service providers, thus courts should act immediately to provide protection to the victim. 

Article 19:  Issuance of emergency protection orders

Article 19 (5)(c) repeats the directive to the court to notify the social services department of its issuance of a protection order. This provision may deter domestic violence victims from using the law.  Read in the context of Article 10, which allows for placement of minors in shelters, a domestic violence victim may fear separation from her children if she reports violence to government officials.

July 7, 2006

Introduction

The Moldovan Draft Law on Prevention and Combating Domestic Violence (hereinafter the ‘Draft Law’) is an important step in Moldova’s effort to address domestic violence.  The Draft Law envisions increased protections and remedies for victims of domestic violence. However, the law could be improved to more clearly reflect the most important reasons for government intervention in domestic violence cases -- to ensure victims’ safety and abusers’ accountability for violent crimes.  General observations are provided below, followed by article-specific comments. 

The Draft Law should more clearly reflect the primary purpose of any government intervention in domestic violence cases – to ensure the safety of the victim and the accountability of the offender.  The Draft Law needs more specific directions to government agencies.  The Draft Law focuses heavily on perceived psychological aspects of domestic violence.  This is a problematic approach.  Psychological rehabilitation is rarely the most urgent need of a domestic violence victim.  Rather, laws should focus on ensuring victim safety and offender accountability for violent crimes.   Similarly, with regard to perpetrators of domestic violence, the focus of the law should be on holding him accountable for his crimes and changing his violent behavior. 

Chapter III is a critically important part of the Draft Law.  It should be expanded significantly to include detailed directives to law enforcement and the judiciary.  These directives should outline specific steps to be taken by law enforcement and the judiciary in issuing and enforcing measures to protect victims from violence.  The Draft Law should provide that courts are the only competent authority to issue protective measures.   The Draft Law should include specific language on how victims can apply for protective measures, where they can apply, the courts’ obligations to conduct a hearing on the application for protective measures, what specific protective measures the courts can impose and law enforcement’s duty to enforce protective measures.

The Draft Law should include explicit criminal sanctions for violation of protective measures issued by courts pursuant to Draft Law, Article 19.

The Advocates for Human Rights urges drafters of this law to work closely with individuals and groups who provide direct service to domestic violence victims.  These individuals and groups have the most accurate information about how government agencies can best promote victim safety and offender accountability through laws and their enforcement.

Chapter I

Article 1 and Preamble

The Draft Law’s objectives should focus on the protection of victims of domestic abuse and the accountability of the offenders, rather than the protection and consolidation of the family.  A focus on preserving the family may prioritize family unity over victim safety and minimizes offender accountability.  Article 1 should state that the object of the law is to provide a legal remedy for victims of domestic violence.

Article 2

Article 2 is too specific in its definition of domestic violence. Listing specific forms of violence may result in some form of abusive or violent behavior that is not on the list being excluded from sanctions.

Article 2 should state that violent acts result in “harm” not “duress.”

Article 3

The provision “subjects of actions of violence in the family” is too narrow.  It should include unmarried partners who are living together, dating, or have a child in common. 

Article 5

The “basic principles of preventing and combating violence in the family” should include protecting the rights and safety of the victim.   

Chapter II

Article 7

“Authorities and institutions vested with functions to prevent and combat violence in the family” should include advocates or other non-profit service agencies that work directly with victims and can best represent their interests. 

Article 8

Art. 8(b) is an important provision in that it requires state authorities to collaborate with NGOs and others and to offer them appropriate support. 

Article 9

Generally Article 9 envisions too much intervention by the state.  Article 9(e) is vague and difficult to apply in its requirement that government authorities must detect people who are “susceptible of committing acts of violence in the family.”  This directive risks diverting needed government resources from the priority goal of holding violent offenders accountable and promoting victim safety. 

Article 9 also presents the risk that a domestic violence victim will be further victimized by the state by having her children taken away from her.  Art. 9(c) states that internal affairs authorities are to “…notify tutorship and guardianship bodies in case of minor victims.”  This may unfairly penalize a victim of domestic violence and may also not be in the best interests of the child. 

Art. 9(f), which requires internal affairs authorities to visit families “whose members are subject to monitoring and organize preventive activity in order to prevent repeated acts of violence”, is vague and fails to specify what prophylactic measures are envisioned.  

Article 9(j) refers to “psychological services for the rehabilitation” of offenders.  Rather, treatment of offenders should focus on changing their attitudes and behavior. 

Article 10

Art. 10(b) should ensure that victims are included in any decision to “place victims in psycho-social centres for rehabilitation.”  Victims of violence are most often the best judges of the dangers presented to them by violent partners.  Therefore, it is not advisable to exclude them from decisions about separation from violent offenders.  Research shows that one of the most dangerous times for many women is when they separate from their abusers.  A 2003 study described by the Family Violence Prevention Fund, a non-profit agency in the United States, confirmed, “[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at ‘higher risk’ of becoming a victim of homicide.” 

Art. 10(c) envisions psychological and psycho-social counseling for victims of domestic violence.  While resources and services for victims are an important goal, drafters of the law should consider the possibility that this provision risks diverting needed government resources from the primary goal of victim safety and offender accountability to the misguided goal of `fixing the victim.’

Article 12

Art. 12(b) presents the risk that a victim of domestic violence will be further victimized by government officials who make decisions without the victim’s input or consent.

Article 14

Article 14 contains important provisions regarding resources and safety for victims of domestic violence.  However, the focus on “psycho-social centres for rehabilitation” reflects an assumption that the victim needs to change her behavior in some way.  In fact, many victims of domestic violence do not need psychiatric counseling or rehabilitation services.  Rather, domestic violence victims need government agencies to focus resources on ensuring their safety through adequate provision of shelters and economic opportunities and ensuring offender accountability through adequate criminal laws and procedures. 

The length of time victims can stay in a safe house or shelter should not be limited to three months.

Art. 14(2) states that “the ways of functioning of these institutions shall be established by the Government.”  A more efficient and effective approach would be for the government to  provide funding to non-profit agencies that work with victims, best know victims’ needs and can most effectively represent their interests. 

Chapter III

Chapter III is the most important section of the Draft Law.  It envisions an immediate remedy for domestic violence victims through protective measures issued by a Court.  However, much more detail is needed to clarify the exact obligations and authority of law enforcement and the Courts.

 Articles 15 and 16

By authorizing third parties to report and take action in cases of domestic violence, independent of victims’ wishes, Articles 15 and 16 may compromise domestic violence victims’ interests and safety.   Such provisions also risk abuse of the process by third parties whose motivations are not in the victim’s best interests or the best interests of her children.  A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims.  Thus, wherever possible, the adult victim’s wishes and needs should be paramount.  Women who are victims of violence are most often the best judges of the dangers presented to them by violent partners.  Therefore, it is not advisable to exclude them from the decision to apply for protection measures. 

Article 17

Article 17 should provide that claims should be submitted only to the Court.  Drafters of the law should also consider the role of the police and outline it specifically in this provision.

Article 18

Article 18 should include specific detailed procedures to be followed in cases of domestic violence where courts are authorized to order that protective measures be implemented.

Article 19

Article 19 should be expanded and enhanced as discussed above in the Introduction. 

The “temporary regime for visiting minors” envisioned in Art. 19(1)(b) should not be allowed until the abuser has demonstrated a change in his behavior.  The safety of the victim and children is paramount.  A violent offender should be required to earn the right to visit the minor.  The devastating effects on children who witness domestic violence should be reflected in the Draft Law.

Art. 19(1)(c) should ban the perpetrator from appearing at the residence of the victim.

Only the court, upon application of the victim, should have the authority to revoke orders containing protective measures.

Article 20

There should be greater involvement of non-governmental organizations and advocates who have experience and expertise in domestic violence issues.  A better approach is for the state to provide funding to organizations that provide services or shelters to victims of domestic violence. 

Article 21

Article 21 should specifically state that violation of the protective measures issued by a court is a crime.  Sanctions and penalties for such violation should increase upon repeated violations of protective measures. 

Call for Comments on the Montenegro Draft Law on the Protection from Violence in the Family
Vanja Mikulic:
SOS Hotline for Women and Children Victims of Violence Podgorica is seeking experts to review and comment on the draft Law on the Protection from Violence in the Family (Serbian).

In 2005, the Ministry of Justice, in collaboration with Save the Children UK program in Montenegro and Professor Radoje Korac, PhD, Law Faculty, department for family law, formed a working group to develop a draft law on the protection from violence in the family. The project also received funding from the Canadian International Development Agency (CIDA) which hopes Montenegro will adopt accessible and effective judicial remedies in combating domestic violence. In January of 2006, a draft version of the law, entitled “Law on Protection of Domestic Violence,” was circulated amongst local NGOs in Montenegro and international organizations abroad, seeking comments or suggestions for improving and strengthening the law. Gathering opinions on the draft law from a range of professionals, field-workers, and scholars will assist the working group in developing and refining the eventual document. The domestic violence law is expected to pass in June of 2006.

While the Law represents a sincere step forward in recognizing domestic violence as a societal problem, initial criticisms of the draft law express concern that women who suffer or who have suffered violence will not be adequately protected under the current version. The Law relies upon vague language, and enables the police or non-governmental organizations to apply for protection measures against the batterer without consent of the adult victim. The Law also imposes lighter criminal penalties on perpetrators of domestic violence than those provided by general criminal assault laws. Commentators stress the need to hold perpetrators accountable for their crimes in order to provide real protection for victims of domestic violence.

A general evaluation of the first draft Law on protection from violence in the family by the NGO SOS hotline Podgorica is that this draft law does not follow the intensity and the scope of the serious social problem as domestic violence is, nor does it provide adequate protection to the critical target group of women who suffer or suffered violence in the family – the Law is systematically drafted in a wrong way, first of all because it transfers violators’ sanctioning from the criminal-legal regulation to the law of torts by which this incriminated behavior gives lower (lighter) level of social danger.

Genoveva Tisheva:
Genoveva Tisheva is a lawyer and the Managing Director of the BGRF. She is one of the initiators and the drafters of the Bulgarian law on Protection against Domestic Violence. Her organization also organized the contacts with the parliament and the main lobbying campaign, which brought to the successful adoption of the law in March 2005. Since then she has been participating in the work for the successful implementation of the law. She has also consulted the Tajik NGOs on their Draft law against family violence in July 2005 through holding a seminar in Dushanbe during that period.

It is a good initiative as a whole. There are some concerns regarding the mixture of social, administrative and court protections and the fact that decisions will be taken within the criminal procedure, as well. In some places, there is a great deal of intervention by people other than the victim, and there is no guarantee how quick the protection could be.

Art. 1- Should define more precisely the second and the third purpose of the law; they are almost the same: “ to protect the victim.”

Art. 2- It is good that there is both a general and a more detailed definition of domestic violence. The only issue with the more detailed definition is that the court might look for these exact hypotheses instead of developing practice. Psychological violence as such is expressly missing.

Art. 3, para. 7- This provision is good, but will pose problems.

Art. 5 and following- This is a big commitment by the state. Hopefully, it will be developed in more detail in other legislation.

Art. 8, para. 2- If it is possible, it would be better to shorten the period of reaction, such as a maximum of 6 hours?

Art. 9- It would be good to leave more space for the services for NGOs, which have the expertise already and it is up to the state to support them. They should not leave too much initiative to the state and the local authorities- they will not do it properly.- The NGOs not only in the interdisciplinary teams, but also to have the initiative for the centres.

Art. 12- This provision contradicts Art. 11 a bit. They should not go too far with this publicity; it is up to the victim in the first place to decide, upon her free initiative. It will worsen the situation. The law should be careful to limit the people and institutions involved in this. When she/he is a child, that is okay, but in other cases- there is a difference. The victims should be offered just information and support.

Art. 14- This is a good initiative. It should be in compliance with the procedural codes. Will it be an advocate officially entitled in court? It should be stated explicitly.

Art. 15- What about measures about the children, when limiting the contacts? Also, other places like the workplace should be mentioned.

Art. 16- Among other issues, the purpose is to protect the rights of the victim in the first place.

Art. 17, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.
Art. 17, para. 3- The maximum period is too short. It should be as long as needed- up to 6 months at least or 1 year.

Art. 18, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.

Art. 19- It can be ordered anyway, and qualifying circumstances are not needed.

Art. 20- This should be in accordance with other laws related to addictions.

Art. 21- This should not be restricted to only 6 months, but as long as it is needed, e.g. up to 1 year.

Art. 22- This provision seems good, it is a bit unclear as a link to the above mentioned articles. The victims stays at home according to the measures.

Art. 23- This may not be in all cases.

Art. 24- NGOs, the prosecutor, police cannot initiate the procedure. It is too much.

Art. 24, para. 2- This is unclear.

Art. 25- This is maybe their criminal procedure, and they have such a crime in their law. This is good that the state has it. It explains why they want to hear the perpetrator. But it is also creates a limitation of the criminal procedure. It limits the ex-parte procedure opportunity, and the shift of the burden of proof, which is needed in this case. A declaration of the victim is not provided.

Art. 27- It is not clear how quickly you can have the protection, there are no guarantees in this procedure. The accused can hide indefinitely.

Art. 29, para. 2- This is not needed, it opens other opportunities to the aggressor.

Art. 30, para. 3- There has to be such services available in this case.

Art. 33, para. 1- in the last part, as mentioned above, this body cannot ask for termination or prolongation.

IV. Sanction Provisions- The last section is really criminal sanctions- it means that this law also regulates criminal sanctions. Since it is possible under their law.

Art. 35, para. 2- It is acceptable to have such a provision for the child.

Art. 36, para. 2- This is too short as a sanction. The law should provide more severe sanctions when repeated.

Art. 39- In addition to this, it should provide a broader inter-ministerial forum on DV issues.

Cheryl Thomas:
Cheryl Thomas is the Director of the Women's Human Rights Program of The Advocates for Human Rights. For more information about The Advocates, please visit www.mnadvocates.org

The Law of Montenegro on the Protection from Violence in the Family (hereinafter, the Law) includes positive changes in legislation with regard to domestic violence. The Law articulates important principles aimed at combating domestic violence. However, the Law also presents potential obstacles to ensuring domestic violence victims’ safety and offender accountability for violent crimes. These are outlined below.

Article 2 (6): Language is vague and difficult for judicial officer to apply.

Articles 7 and 8: Language directs the state to provide services and/or shelters for victims. A more effective and efficient approach is for the state to provide funding for shelters or safe homes that are operated by non-profit service agencies with experience and expertise in domestic violence issues.

Article 20: This provision reflects a false assumption that domestic violence is caused by alcohol or drug abuse. In fact, research shows that while an abuser's use of alcohol may have an effect on the severity of the abuse or the ease with which the abuser can justify his actions, an abuser does not become violent because he drinks too much. (Domestic Violence, Theories of Violence, Myths About Alcohol) Rather than alcohol or drug abuse programs, domestic violence offenders should be required to attend batterer’s intervention programs. These programs are based on research that shows that domestic violence is intentional and that battering is a system of abusive behaviors that a batterer uses to maintain control over his wife or intimate partner. (Batterer’s Intervention Programs)

Article 22: This provision is confusing in its description of the conditions under which the victim leaves the home. The law should make clear that, in cases of domestic violence, the offender will be ordered to leave the home, enabling the victim to remain there safely.

Article 12 and 24: The Law contemplates a great deal of state intervention and/or third party intervention in cases of domestic violence, independent of the adult victim’s wishes or requests and potentially without the involvement of advocates who work with victims and can best represent their interests. Article 24 authorizes prosecutors, police and NGOs to apply on behalf of an adult victim for protection measures which may exclude a domestic violence offender from the victim’s home. Such third party requests may jeopardize the safety and other interests of the adult victim. A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims. Thus, wherever possible, particularly in cases involving court ordered measures for protection, the adult victim’s wishes and needs should be paramount. (Domestic Violence, Explore the Issue, Coordinated Community Response, Core Principles of Intervention). In cases involving child victims, reporting requirements such as those listed in Article 12 may be appropriate.

Women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. (Domestic Violence, Explore the Issue, Victim Protection Support and Assistance, Safety Planning) Therefore, it is not advisable to exclude them from the decision to apply for protection measures. This is particularly true since research shows that one of the most dangerous times for many women is when they separate from their abusers. A 2003 study described by a leading domestic violence agency in the United States, the Family Violence Prevention Fund confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for an adult victim of domestic violence to make her own decision to leave a relationship because she is in the best position to assess the potential danger.

Article 35: The law should include a provision making clear that violation of a court order for protection measures is a crime in itself, independent of any evidence of violence or threats of violence.

Also, Article 35 appears to provide criminal sanctions for acts of domestic violence separate from general criminal assault laws. It is important to ensure that crimes involving domestic violence are not treated less seriously than other crimes. In fact, many jurisdictions increase criminal penalties for repeated domestic violence offenses, even if they involve low level injury. For example, three or more convictions for assaults involving low level injury may become a felony with more serious sanctions.

For the link to the Mongolia country page, click here.

Comments by Minnesota Advocates for Human Rights
May, 2004

The Mongolian Law Against Domestic Violence (hereinafter, the Law) includes positive changes in legislation with regard to domestic violence. The Law articulates important principles on which it is based. Article 4 states, “Activities aimed at combating domestic violence shall be based on the principle of providing security to victims, prevention from possible violence, taking complete measures against violence timely, influencing behavior of offenders and strengthening stable family relationship.”

The Law also states that the State shall provide shelter to victims and promote NGO activities aimed at combating and preventing domestic violence. Government funding of these activities is also addressed in the Law. The Law provides the important remedy of orders for protection. However, the Law also presents many potential obstacles to ensuring domestic violence victims’ safety and offender accountability for violent crimes.

The Law contemplates a great deal of state intervention in cases of domestic violence, independent of victims’ wishes or requests and without the involvement of advocates who work with victims and can best represent their interests. For example, Article 7.1 authorizes police, “To submit a request to the court regarding an issuance of temporary protection order or protection decision.” Article 8.1.1 authorizes social welfare staff, “To assess environment in domestic violence might occur and define level of negative influence of the environment and danger jointly with police officers”. Article 10.1 obligates teachers, medical personnel and social welfare staff to inform police of violence or “potential violence. Articles 14 and 15 authorize attorneys, social welfare staff and others to request an order for protection and Article 16.3 provides the court with authority to issue the order based on that request.

Provisions which authorize government representatives to make decisions about the issuance of an Order for Protection without the involvement of the victim may in some cases interfere with safety and other interests of the victim. A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims. This goal is not served by provisions in the Law which authorize government action and intervention in the Order for Protection process independent of the victim’s wishes.

In addition, women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. Therefore, it is not advisable to exclude them from decisions about how to handle a violent situation in their home. This is particularly true since we know that one of the most dangerous times for many women is when they separate from their abusers, which would occur, of course, upon the issuance of an Order for Protection as provided by the Law. A 2003 study described by the Family Violence Prevention Fund confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for a battered woman to make her own decision to leave a relationship because she is in the best position to assess the potential danger.

For the link to the Romania country page, click here.

Comments by Minnesota Advocates for Human Rights
May, 2003

Romanian Law to Prevent and Fight Against Domestic Violence (May 2003)

The Romanian Law to Prevent and Fight Against Domestic Violence (Romanian)(hereinafter, the Law) includes positive changes in legislation with regard to domestic violence but also presents many obstacles to ensuring domestic violence victims' safety and offender accountability for violent crimes. Positive aspects of the law include the following:

• The Law states that domestic violence encroaches on womens fundamental rights and freedoms. (Art. 2) 
• The Law provides for the establishment of both public and private shelters along with social services for victims of domestic violence. (Art. 23)
• The Law allows for public subsidies for private organizations that serve victims of violence and directs government ministries to conduct research and education on domestic violence. (Arts. 7, 17 and 18)
• The Law allows courts to order that violent offenders leave the family home. (Art. 26)

The following provisions of the law present obstacles to ensuring the safety of domestic violence victims and the accountability of offenders for their violent crimes.

1. The language of the Law frequently focuses on the protection and support of the family rather than the safety of domestic violence victims and the accountability of violent offenders. For example, the first sentence of the Law Chapter 1, Art. 1 (1) states that it is in the national interest to protect and support the family. Art. 8 (2) states that the objective of the agency charged with implementing the Law, the National Agency for Family Protection, is to support family values. While the goal of providing support to families is admirable, there are circumstances where the Law's focus on protecting the family may not serve the interests of a domestic violence victim seeking to escape a violent familial relationship. Experts involved in drafting model domestic violence legislation recognize the importance of laws which prioritize victim safety.  See the sections of this website entitled United Nations Framework for Model Legislation on Domestic Violence and United States Model Code on Domestic and Family Violence.
2. The Law anticipates a great deal of state intervention in cases of domestic violence, independent of victims' wishes or requests and without the involvement of advocates who work with victims and can best represent their interests. For example, Art. 13 (1) requires that family social workers identify and keep account of the families where potential violent situations may occur and identify amiable settlement by maintaining contact with the persons herein. Provisions that authorize government representatives to independently make decisions about a domestic violence situation may in some cases interfere with safety and other interests of the victim. 
3. The Law contemplates that victims of domestic violence need social rehabilitation. See Art. 8 (2) c and Art. 9 (1) j. In fact, many victims of domestic violence do not need psychiatric counseling or rehabilitation services. Rather, domestic violence victims need government agencies to focus resources on ensuring their safety through adequate provision of shelters and economic opportunities and ensuring offender accountability through adequate criminal laws and procedures. 
4. The Law's reference to "conflicting parties" diminishes offender accountability for violent behavior and reflects an assumption that both parties are equally at fault for violence. (See Art. 16 c and e). 
5. The Law's directive that state representatives counsel the conflicting parties to the purpose of mediation diminishes offender accountability for violent behavior and reflects an assumption that both parties are equally at fault for violence. Art. 16 (1) e. It also may further endanger victims of domestic violence since, if seen as an alternative to criminal prosecution, it may allow for violent offenders to avoid criminal prosecution and sanctions for their behavior. Finally, as discussed in the OFPs and Family Law Issues section of this website, mediation is based on an assumption that both parties in a relationship have equal power to negotiate. This is usually not the situation in domestic violence cases and mediation may actually present additional risk of danger to victims.
6. The Law presents a risk that a domestic violence victim will be further victimized by the State by having her children taken from her. Art. 16 states that the state should report cases to institutions of child protection. This may unfairly penalize a victim of domestic violence and may also not be in the best interests of the child. For a further discussion of these issues, see the Role of Child Protection Services section of this website.
7. The Law does not provide victims adequate access to shelters. Art. 23 (2) states that victims may be admitted to shelters only in emergency cases or with written confirmation of the family social worker. By requiring an independent evaluation of the situation, the Law presents obstacles to victims who have decided that they or their children are in danger. In most cases of domestic violence, it is the victim who is best able to evaluate the level and immediacy of danger presented by an offender. For more information on this issue, see the Safety Planning and Safehouses and Shelters sections of this website.