Domestic violence de facto decriminalised in Moldova

By Natalia Vilcu, Executive Director, Women’s Law Centre

 Legal empowerment by WLC of a victim of domestic violence. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

Legal empowerment by WLC of a victim of domestic violence. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

Domestic violence is one of the most serious forms of gender-based violence. It severely violates the enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity and physical and emotional integrity, and it therefore cannot be ignored by governments[1]. This article analyses the Moldovan Government’s failure to effectively implement the judgments of the European Court of Human Rights (ECtHR) on domestic violence. Although some general measures have been undertaken to implement the judgments in the group of cases Eremia v. the Republic of Moldova[2], adequate protection for victims of domestic violence and prosecution and punishment of perpetrators is still inefficient. The response of the authorities to the judgments in this group of cases highlights the failure of the state authorities to protect victims of domestic violence, eliminate the risk of violence and punish perpetrators for their acts of violence against family members.

Measures undertaken by the Government to amend national legislation

The group of cases Eremia and other v. the Republic of Moldova includes four cases: Eremia and others v. the Republic of Moldova[3], B. v. the Republic of Moldova[4], Mudric v. the Republic of Moldova[5], and T.M. and C.M. v. the Republic of Moldova[6]. The ECtHR found violations in these cases of Articles 3, 8, and 14 in conjunction with Article 3 of the Convention. The Court stated that the national authorities failed to protect the applicants from ill-treatment and to undertake any measures that would deter the abusers from further violent attacks. Moreover, the authorities displayed a discriminatory attitude towards the applicants as women. The ECtHR judgments highlighted that prevention and response to violence were important to ensure the application of protection measures for the victim and to eliminate the risk of violence by the perpetrator.

In response, the national authorities undertook general measures, including amending legislation as follows:  

-        new wording of Article 201/1 of the Criminal Code (Domestic violence) was introduced, which, besides more serious punishment, established criminal liability for other forms of violence, including psychological and economic violence;

-        a new tool to protect victims of domestic violence was introduced – the emergency barring order – a temporary measure applied by police to protect victims of domestic violence by removing the aggressor from the house and setting certain prohibitions established by law;

-        the definition of family member was extended to also include intimate partners and divorced couples living separately;

-        the Contravention Code (which defines actions or inactions with a degree of social danger lower than of a crime) was supplemented with a new Article 78/1 (Domestic violence).

 Victim of domestic violence supported by WLC in her efforts to obtain a Protection Order. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

Victim of domestic violence supported by WLC in her efforts to obtain a Protection Order. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

On 7 December 2017, at the 1302nd meeting of the Ministers’ Deputies, the Committee of Ministers examined the information provided by the Government on individual and general measures and adopted a resolution[7] to close the examination of cases Eremia and others v. the Republic of Moldova, B. v. the Republic of Moldova and Mudric v. the Republic of Moldova. The Committee of Ministers decided to continue supervision of the outstanding individual and general measures under the T.M and C.M. case.

Amendment to the Contravention Code hinders victims of domestic violence from effective protection

The amendment to the Contravention Code has had serious negative consequences for victims of domestic violence. It has resulted in many fewer cases being treated as criminal, and many more as contravention cases. Thus, in 2015 and 2016, respectively, 1914 and 1679 criminal cases, while 544 and 833 contravention cases were initiated[8]. After the amendment to the Contravention Code was introduced, the number of criminal cases initiated halved compared to previous years (853), while the number of contravention cases doubled to 1941[9]. The contravention rule (Article 78/1) sanctioning domestic violence differs from the criminal rule (Article 201/1) by the degree of bodily injury caused. A perpetrator who causes a victim an insignificant bodily injury is subject to contravention liability. If a light, medium or serious bodily injury is caused, the perpetrator may be subject to criminal liability.

Thus, in practice, a mandatory condition to initiate a criminal investigation is the bodily injuries caused to the victim, which are typically characteristic of physical violence and in some cases of sexual violence. Therefore, while the Government claims that there are now harsher punishments for acts of domestic abuse and that there is criminalisation of psychological and economic violence, the reality is that criminal investigations are initiated primarily based on the degree of bodily injuries caused and there are almost no convictions for psychological or economic violence as these forms of violence do not cause any bodily injuries.

Many criminal justice officials share the perception that economic or psychological violence cannot produce suffering similar to that caused by physical violence. They tend to dismiss cases of economic or psychological violence if no bodily injuries accompany such acts. This is a very wrong perception of domestic violence, in contradiction with international standards. For instance, the Istanbul Convention imposes an obligation on member states to take necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalised[10]. The Council of Europe Parliamentary Assembly Resolution 1825 (2011) on psychological violence highlights that ‘…it is of utmost importance to combat psychological violence, not only because it is a serious form of violence which leaves deep and lasting scars on the victims, but also because, unless it is stopped, it often escalates into physical violence.’[11]

As a result of the legislative amendments, in many cases of domestic violence the punishments applied to perpetrators do not have any preventive and deterrent effect. There is no liability for psychological and economic violence although such acts are in the Criminal Code. The sanctions applied for a domestic violence offence under the Contravention Code are community service from 40 to 60 hours or contravention arrest from 7 to 15 days. There are some exceptions to contravention arrest. It shall not be applied to persons with severe disabilities, military staff of the Ministry of the Interior, juveniles, pregnant women, women who have children under the age of 8, individuals who are sole breadwinners of children aged under 16 and retired individuals. On the other hand, community service is applied only with the consent of the perpetrator. Hence, when a domestic abuser is retired or is the sole breadwinner who refuses to undergo the sanction in the form of community service, no sanction will be applied to him/her. Considering that most cases are contravention cases, perpetrators are mostly given a minimum sanction of 40 hours of community service. It is very seldom that contravention arrest is applied, while individuals exempted from contravention arrest and refusing community service avoid any liability for acts of domestic violence. The ECtHR judgments in the Eremia group of cases referred to lack of deterrent effect of the measures applied by the national authorities. Considering the aforementioned, the legislative amendments which the Government referred to in its report to the Committee of Ministers[12] had, in fact, the effect opposite to deterring perpetrators. They rather encourage them to perpetuate the acts of violence given the impunity or milder sanctions applied.

Conclusion

The Moldovan state authorities, in their efforts to enforce the ECtHR judgments and undertake general measures, continue to prioritize the rights of perpetrators and treat with less significance the rights, needs and interests of victims of domestic violence. An example to this end is the introduction of article 78/1 in the Contravention Code and, hence, de facto decriminalisation of domestic violence in Moldova. Even if Article 201/1 of the Criminal Code, in a new wording, toughens the punishment for committing domestic violence crime, it is not applied to the extent expected due to the contravention liability introduced for insignificant bodily injuries caused by an act of violence. Since 16 September 2016, when Law No. 196 came into force, the courts have acquitted defendants or terminated proceedings in several pending criminal domestic violence cases on the ground that the defendants were not charged with causing light, medium or severe bodily injuries, which became a mandatory condition to classify an act of violence as a crime. Hence, following the legislative amendments, the chances to deter domestic abusers, in particular for acts of violence not resulting into bodily injuries, significantly decreased as the punishments applied to them became milder and disproportionate to the acts committed.

The ECtHR reminds the Council of Europe member states that, in line with the Convention, they have the obligation not only to adopt laws, but also to apply them efficiently in order to observe the rights guaranteed by the Convention as ‘…particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection has been emphasised in a number of international instruments.’ [13] So far, the Republic of Moldova has made some progress in adopting necessary laws but still needs to ensure their effective application to guarantee that victims of domestic violence are protected and that perpetrators are brought to justice.

[1] Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017 (Istanbul Convention)

[2] https://hudoc.exec.coe.int/eng#{%22fulltext%22:[%22eremia%22],%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECIdentifier%22:[%22004-7033%22]}

[3] Idem

[4] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14042%22]}

[5] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14056%22]}

[6] https://hudoc.exec.coe.int/eng#{"EXECIdentifier":["004-14229"]}

[7] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168076d4d6

[8] http://politia.md/sites/default/files/ni_violenta_in_familie_12_luni_2017_plasare_web.pdf

[9] Idem

[10] Article 33 of the Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017

[11] http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=18052&lang=en

[12] https://rm.coe.int/168075998d%20(3;

[13]  ECtHR, Case of Bevacqua and S. v. Bulgaria, Judgment of 12 June 2008